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/raid1/www/Hosts/bankrupt/CAR_Public/180111.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 11, 2018, Vol. 20, No. 9 Headlines 3M CO: Faces Suit Over Non-Functioning Safety Mask ABM INDUSTRIES: Class Cert Denial in Janitors' Suit Reversed ACORDA THERAPEUTICS: Kessler Topaz Files Securities Class Action ALLIANCEONE RECEIVABLES: Faces "Lowy" Suit in E.D. New York ANTHEM INSURANCE: Suit Over ABA Therapy Coverage to Go to Trial AQUA METALS: Glancy Prongay Files Securities Class Action AT&T MOBILITY: Arbitration in False Advertisement Suit Affirmed AUSTRALIA: Attys Considering Class Action Over PFAs Contamination BANKSIA GROUP: Perpetual Limited Settles Class Action for $64MM BAY AREA RAPID: Class Action Must Be Amended, Court Says BROADWAY STORAGE: Faces "Mendizabal" Suit in S.D. of New York CALIFORNIA SERVICES: Court Certifies "West" TCPA Class CANADA: Faces Class Action Over Qalipu Enrolment Process CENTRA TECH: Suit Targets ICO Promoted by Floyd Mayweather CHESAPEAKE BANK: Faces "Carroll" Suit in Eastern District of Va. CHINESE BODYWORKS: Faces "Li" Suit in District of New Jersey COMMUNITY HEALTH: 6th Cir. Revives $891MM Securities Fraud Suit CONVERGENT OUTSOURCING: Faces "Pedersen" Suit in E.D.N.Y. CURRY SHACK CORP: Faces "Lawrence" Suit in S.D. of New York EI DUPONT: Price-Fixing Settlement Obtains Prelim Court Nod EL TORAZO: Court Grants Conditional Certification in "Perez" EXACTECH INC: Bronstein Gewirtz Files Securities Class Action EXPEDIA INC: Averts Texas Occupancy Tax Class Action F&R CLEANING: Faces "Castaneda" Suit in E.D. of New York FAMILY AND CHILDREN'S: Faces Negligence Suit FIAT CHRYSLER: In Hot Seat Vacated by VW FLAT RATE MOVERS: Faces "Mendizabal" Suit in S.D. of New York FLORISSANT, MO: Loses Bid to Dismiss Unlawful Jailing Suit FRONTIER AIRLINES: Former FAs Cheated of $40MM Payout GEICO GENERAL: Faces Class-Action Lawsuit Over Unsafe Repairs GENERAL MOTORS: Sued Over Defective Power Lift-Gate Struts GRAIN PROCESSING: Muscatine Residents Can Rejoin Class-Action HEARST CORP: 2nd Circuit Refuses to Revive Minimum-Wage Claims HYDRO ONE: Certification Denied in Proposed Class Action IFINEX: Bitfinex Critic Claims to be Organizing CA Lawsuit INC RESEARCH: Vincent Wong Files Securities Class Action INVESTMENT RETRIEVERS: Faces "Barzola" Suit in S.D. of Florida JIMMY JOHN'S: 7th Cir. Orders Wage Class-Action to Proceed JOHNSON COUNTY, IN: Suit Over Public Defender Rules Pending JOHNSON UTILITIES: Accused of Bribery, Fraud JP MORGAN: Faces Class Action Over Extended Overdraft Fees JP MORGAN: Court Dismisses "Capozio" FDCPA Claims LG CHEM: Judge Okays $41.5MM Lithium Ion Battery Settlement LIBERTY MUTUAL: Lebanon Settlement Entitled to Full Credit LIBERTY TAX: Rosen Law Firm Files Class Action Lawsuit MACY'S INC: Judge Lets Most Claims Stand in Sale Price Class Suit MANHATTAN MINI STORAGE: Faces "Mendizabal" Suit in S.D. of NY MARDI GRAS: Strip Club Denies Keeping Dancers Off-Books MARK HJELLE: Faces Orion Property Suit in S.D. of Kansas MIZUHO BANK: Court Reviews Denial of Rule 12 Bid MOISHES MOVING: Faces "Mendizabal" Suit in S.D. of New York MORGAN & BROTHER MANHATTAN: Faces "Mendizabal" Suit in S.D.N.Y. MRI INTERNATIONAL: Time to Seek OK of Class Deal Extended MRS BPO: Faces "Abrahamov" Suit in Eastern District of New York NEW YORK: Court Approves $5MM "Parker" Class Action Settlement NFL: Super Bowl Ticket Pricing Class Action Back in the Game NIGERIA DEPOSIT: Ex-Bankers to File Suit Over N9.8N Entitlements NORTHWESTERN POLYTECHNIC: Class Action Seeks Tuition Refund NRG YIELD: Court Junks Shareholders' Suit Against Board Members OSI SYSTEMS: ClaimsFiler Reminds Investors of Lead Plaintiff Date OSI SYSTEMS: Kaplan Fox Files Securities Class Action Suit PARC HOTEL: Faces "Zeng" Suit in Eastern District of New York PARTSSOURCE INC: "Gembarski" Class Certification Affirmed PAYPAL HOLDINGS: Levi & Korsinsky Files Class Action Lawsuit PIER 1: $3.5MM Class Settlement in "Mathein" Has Prelim Approval PURDUE PHARMA: Parker County Joins Class Action Opioid Lawsuit PURDUE PHARMA: Harris County to Sue Over Opioid Epidemic QUDIAN INC: Kaplan Fox Files Class Action QUDIAN INC: Scott+Scott Files Class Action Suit QUDIAN INC: Lawsuits Claiming False IPO Information QUINCY BIOSCIENCE: Brain Health Supplement Class Certified R.A. ROGERS: Faces "Leavens" Suit in Eastern District of NY RAMONA MUNICIPAL: Class Action Over Sewer Service Charge Ongoing RBM OF CALIFORNIA: Westside Families Sue Over Construction REVIVE NAILS SPA: Faces "Hsieh" Suit in Eastern District of NY RJ REYNOLDS: Fla. Court Flips Statute of Limitations Ruling ROYAL SIAM RESTAURANT: Faces "JinZhong" Suit in S.D.N.Y. SAMSUNG CORP: Class Action Over Alleged CRT Price-Fixing Settled SAN FRANCISCO, CA: Money Bail Class Action Evidence Inadmissible SCHNIPPER RESTAURANTS: "Alvarez" Has Conditional Certification SCHWANS COMPANY: Faces "Leguette" Suit in E.D. of New York SHREVEPORT, LA: Jan. 22 Water Dep't Class Action Hearing Set SLATER & GORDON: Australian Ct. Approves Class-Action Settlement SOUTH AFRICA: Residents Near Coronation Park Consider Suing STERLING JEWELERS: Faces "Hudson" Suit in C.D. California TEZOS: Hagens Berman Files Suit to Stop Dissipation of ICO Funds TEZOS: Lawsuit Seeks Freezing of Foundation Assets TEZOS: Auditor Resigns Amid Investor Class Action TIME INC: Shareholders File Class Action Over Meredith Merger TOSHIBA CORP: Wins Summary Judgment in Price-Fixing Class Action TOYOTA MOTOR: Class Action Over Soy-Based Wiring Ongoing UNITED STATES: Veteran Files Class Action Over Radiation UNITED KINGDOM: Faces Class Action Over Future of NHS Services UTZ QUALITY: Will Pay $1.25-Mil. to Settle Class-Action VIRGINIA BEACH, VA: Schools Face Age Discrimination Class Action VOLKSWAGEN GROUP: Audi Emissions Fix Under Settlement Approved VOLTAGE PICTURES: Hollywood to Sue Pirates in Canada WELLS FARGO: Navajo Nation Sues Over Predatory Sales Practices WESTJET: Loses Bid to Have Proposed CA Lawsuit Tossed Out * FCRA Class Action Plaintiffs Must Show Actual Injury ********* 3M CO: Faces Suit Over Non-Functioning Safety Mask -------------------------------------------------- Courthouse News Service reports that three Kentucky coal miners with black lung disease claim in state court that dust masks made by 3M Company, Mine Safety Appliances and American Optical Corporation failed to protect them from inhaling dangerous particles. ABM INDUSTRIES: Class Cert Denial in Janitors' Suit Reversed ------------------------------------------------------------ The Court of Appeals of California, First District, Division Four, issued an Opinion reversing the judgment of the Trial Court denying Plaintiff's Motion for Class Certification in the cases captioned IN RE ABM INDUSTRIES OVERTIME CASES, Nos. A132387, A133077, A133695 (Cal. App.). On behalf of themselves and similarly situated Californians, plaintiffs filed their complaint in September 2007, alleging that ABM violated California labor laws by, among other things, failing to properly record and compensate employees for meal breaks; requiring employees to work split shifts without appropriate compensation; and failing to ensure that employees were reimbursed for expenses incurred when traveling between work sites. After a number of years of discovery and other preliminary matters, plaintiffs filed their motion for class certification. The motion sought certification of a general class described as all non-exempt janitorial employees and former non-exempt janitorial employees employed by ABM in the State of California at any time from April 6, 2002 to the present (ABM Workers). This putative class was estimated as of 2007 to include approximately 35,000 ABM janitorial employees. Plaintiffs argued that class certification was warranted because, among other reasons, common legal and factual issues predominated. For instance, plaintiffs alleged that ABM applied a uniform payroll policy which compensated employees according to anticipated work schedules rather than for hours actually worked, leading to uncompensated time. The trial court found certification inappropriate due to issues with the subclass definitions. In particular, the trial court appeared concerned that the subclasses were defined in terms of individuals who had been harmed, making class members unascertainable until the conclusion of the case. In addition, the trial court concluded that the plaintiffs had failed to meet their burden to show that common issues of fact and law predominated over individual questions, given the employment structure and the variety of circumstances that each worker finds him or her under. The trial court further noted with regards to predominance that the number of declarations submitted by plaintiffs disclosing labor code violations was insufficient standing on its own to establish commonality. In response, plaintiffs filed a motion pursuant to Code of Civil Procedure section 473, subdivision (b) (the 473(b) motion), attempting to supplement the evidence previously provided with respect to the qualifications of their expert. The trial court denied plaintiffs' 473(b) motion. Following entry of the trial court's written order denying class certification, appellants filed a third notice of appeal (case No. A133695). By order dated January 26, 2012, the three cases were consolidated for all future proceedings in the Cal. App. In addition, at the parties' request, the Cal. App. stayed the matter pending issuance by the Supreme Court of its decision in Brinker, supra, 53 Cal.4th 1004. Once the Supreme Court's opinion in Brinker was final, a briefing schedule was set, and the matter is now before the Cal. App. for decision. As a preliminary matter, the Cal. App. addressed the trial court's decision to disregard the declarations of plaintiffs' expert, Woolfson, in making its class certification determination. Woolfson's expert declaration additionally indicated that he had provided "payroll and timekeeping database analysis for attorneys in Northern and Southern California involving numerous wage and hour class action cases." The Cal. App. reiterated that additional information regarding the specifics of Woolfson's expertise in matters relevant to this case would clearly have been preferable. However, the Cal. App. concluded that the materials submitted in advance of the April 2011 hearing on class certification in this case were sufficient to qualify Woolfson as an expert in database management and analysis, and that the trial court's conclusion to the contrary was an abuse of discretion. In particular, the Cal. App. found that the trial court's emphasis on formal education and membership in professional organizations was misplaced with respect to Woolfson's stated expertise, given his clear familiarity with numerous, highly complex transactions in that subject matter. Moreover, although ABM did argue briefly before the trial court that Woolfson was not qualified to analyze the data at issue and that certain of his conclusions were overly broad and lacked sufficient factual foundation, ABM did not challenge the veracity of any of Woolfson's qualifications as set forth in his declaration, nor did it contest even a single one of the myriad factual findings made by Woolfson during the course of his analysis. Under these circumstances, plaintiffs' evidence supporting Woolfson's expert qualifications showed that he had sufficient skill or experience in the field of database management and analysis such that his declarations should have been considered by the trial court. In sum, it was error for the trial court to completely disregard plaintiffs' proffered expert evidence of common practice, rather than accepting it for what it was and weighing it against the existence of any individualized inquiries that might properly have defeated plaintiffs' request for class certification. Plaintiffs contend that the trial court abused its discretion, both in concluding that their proposed subclasses are not ascertainable and in determining that common issues do not predominate over individual inquiries. The trial court refused to certify this matter as a class action because, among other reasons, it believed the subclasses proposed by appellants were not ascertainable. In particular, the trial court opined that defining the proposed subclasses by reference to the alleged Labor Code violations sustained was a fatal defect, because the putative subclass members could not be identified without a determination on the merits of each class member's case. The subclasses are all defined using objective characteristics and common transactional facts sufficient to allow a potential class member to identify himself or herself as having a right to recover pursuant to that subclass. For example, the nonexempt ABM workers who would receive notice as part of the general class would all be aware whether they worked though meal periods, failed to receive reimbursement for their travel expenses between worksites, or otherwise fell within the articulated subclasses. Under these circumstances, ABM's speculation that some potential class members identified in the data may ultimately not be entitled to relief because, perhaps, they actually took an otherwise unrecorded meal, or were not entitled to a split shift premium on a particular day, or did not drive themselves between job sites goes to the merits of each class member's recovery and, as such, was an inappropriate focus of the trial court's ascertainability inquiry. Having determined that the plaintiffs have proposed ascertainable classes, the Cal. App. next addressed the trial court's conclusion that class certification was inappropriate in this matter because individual inquiries predominate over common questions. When analyzing the element of predominance for purposes of class certification the focus must be on the policy the plaintiffs are challenging and whether the legality of that policy can be resolved on a class-wide basis. Instead of identifying the principal legal issues presented in this matter and determining whether those operative legal principles, as applied to the facts of the case, render the claims susceptible of resolution on a common basis, the trial court here improperly focused on the minutiae of each individual janitor's personal situation. This was a legal error and appears also to have been the reason the trial court found Woolfson's evidence irrelevant to the class certification inquiry. However, when the merits of the ultimate damages issues are set aside and Woolfson's analysis of ABM's payroll practices is considered, along with the other evidence submitted by plaintiffs, it becomes clear that numerous common issues predominate in this matter, rendering class certification appropriate. Given that the classes proposed by plaintiffs in this case were ascertainable and plaintiffs' allegations presented predominantly common questions, the trial court's determinations to the contrary cannot stand. Rather, the Cal. App. concluded that the trial court's denial of class certification including its decision regarding the admissibility of the Woolfson materials rested on improper criteria and erroneous legal assumptions, amounting to an abuse of discretion. Plaintiffs have made a showing sufficient to allow them to take the next step in attempting to prove the merits of their contentions on a class- wide basis. The trial court's order denying class certification is reversed and the matter remanded for certification of classes. A full-text copy of the Cal. App.'s December 11, 2017 Opinion is available at https://tinyurl.com/yd6qvqp8from Leagle.com. ACORDA THERAPEUTICS: Kessler Topaz Files Securities Class Action ---------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP, disclosed that a shareholder class action lawsuit has been filed against Acorda Therapeutics, Inc. on behalf of purchasers of the Company's securities between April 18, 2016 and November 14, 2017, inclusive. Investors who purchased Acorda securities during the Class Period may, no later than January 18, 2018, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit https://www.ktmc.com/new-cases/acorda-therapeutics-inc#join Acorda shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne Bell, Esq.) at (888) 299-7706 or at info@ktmc.com. Acorda is a biotechnology company focused on the identification, development, and commercialization of therapies for neurological disorders. On January 19, 2016, Acorda announced an agreement to acquire Biotie Therapies Corporation ("Biotie") for approximately $363 million (the "Biotie Acquisition"). In connection with the Biotie Acquisition, Acorda announced that it would "obtain worldwide rights to tozadenant, an oral adenosine A2a receptor antagonist currently in Phase 3 development in Parkinson's disease (PD)." Among other things, the shareholder class action complaint alleges that Acorda and certain of its senior executive officers made a series of false and misleading statements and/or failed to disclose to investors that: (i) tozadenant entailed significant undisclosed safety risks; (ii) the Company had overstated tozadenant's approval prospects and commercial viability; and (iii) for the foregoing reasons, the Company had likewise overstated the benefits of the Biotie Acquisition. On November 15, 2017, Acorda disclosed the deaths of several patients enrolled in final-stage studies of tozadenant. The Company further disclosed that it had paused new enrollment in the drug's long-term safety studies pending further discussion with the independent Data Safety Monitoring Board and the U.S. Food and Drug Administration. On this news, shares of Acorda's stock fell $11.20 per share, or nearly 40%, to close on November 15, 2017 at $17.00 per share, on heavy trading volume. Acorda shareholders may, no later than January 18, 2018, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. For additional information, or to learn how to participate in this action, please visit https://www.ktmc.com/new-cases/acorda-therapeutics-inc#join. Kessler Topaz Meltzer & Check prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. Darren J. Check, Esq. D. Seamus Kaskela, Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP Tel.No.: (888) 299-7706 (610) 667-7706 E-mail: dcheck@ktmc.com skaskela@ktmc.com abell@ktmc.com [GN] ALLIANCEONE RECEIVABLES: Faces "Lowy" Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against AllianceOne Receivables Management, Inc. The case is styled as Shoel Lowy, on behalf of himself and all others similarly situated, Plaintiff v. AllianceOne Receivables Management, Inc., Defendant, Case No. 1:17-cv-07574 (E.D. N.Y., December 29, 2017). AllianceOne provides debt collection services and contact center solutions.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Joseph H. Mizrahi Law, P.C. 337 Avenue W, Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com ANTHEM INSURANCE: Suit Over ABA Therapy Coverage to Go to Trial --------------------------------------------------------------- The United States District Court for Southern District of Indiana, Indianapolis Division, issued an Opinion granting Plaintiff's Motion for Reconsideration of the Court's Order granting Defendant's Motion for Partial Judgment on the Pleadings in the case captioned W.P., a minor by and through his parents and guardians KATHRYN PIERCE and CHESTER PIERCE, on behalf of themselves and similarly situated individuals, A.B., a minor by and through his parents and guardians MICHAEL BECK and JOANNE KEHOE, on behalf of themselves and similarly situated individuals, Plaintiffs, v. ANTHEM INSURANCE COMPANIES, INC., an Indiana corporation, Defendant, Case No. 1:15-cv-00562-TWP-TAB (S.D. Ind.). W.P. is a thirteen year-old who suffers from severe autism. W.P. has limited verbal skills, is unable to navigate stairs without assistance, and frequently exhibits repetitive behaviors including rocking, flapping his arms and hands, and heavy breathing. W.P.'s treating physician prescribed forty hours per week of ABA therapy to treat his autism. W.P. began receiving ABA therapy and his parents observed almost immediate improvements in his ability to walk, use words, and respond appropriately to prompts. W.P.'s repetitive behaviors also decreased. W.P. is the beneficiary of a health insurance plan (Plan) sponsored by his father's employer. Anthem is the insurer and claims administrator for the Plan. Anthem initially covered W.P.'s forty hours per week of ABA therapy but Anthem reduced the number of covered ABA therapy hours for W.P. to twenty-five hours per week. Anthem further reduced the number of covered hours to twenty hours per week. Plaintiffs filed this putative class action asserting that Anthem's policy and practice of limiting coverage for ABA therapy for school-aged children with autism violates ERISA because it fails to comply with Indiana's Autism Mandate, as well as federal law. Anthem filed a Motion for Partial Judgment on the Pleadings. The Court granted Anthem's Motion for Partial Judgment on the Pleadings. The Court dismissed Plaintiffs' claim against Anthem for violation of the Autism Mandate because it found that the plain language of the statute does not prohibit Anthem from imposing a cap on the number of ABA therapy hours it covers. Plaintiffs argue that the Court's failure to explicitly explain why it gave no persuasive weight to the IDOI's interpretation was error and that Bulletin 136 has guided insurance coverage in Indiana for over a decade. The Court's decision rested on the plain language of the Autism Mandate, which was the reason it gave Bulletin 136 no persuasive weight. Additionally, Bulletin 136 prohibits dollar limits and visit limits, but it does not mention hour limits. Plaintiffs argued that these were all synonymous, but the Court never reached the merits of Bulletin 136 because the plain meaning of the Autism Mandate foreclosed judicial interpretation of the permissibility of hours caps. Bulletin 136 speaks on the gray area that hours limitations fall under. Although the statute allows for hours limitations, insurers must provide for services that are consistent with the treatment plan and medical necessity decisions under subsection (a) of the Autism Mandate. Bulletin 136 resolves the permissible restrictions insurers may place on coverage, restrictions related to lack of medical necessity. Because restrictions in coverage (hours caps) of services included in a patient's treatment plan as medically necessary may violate the Autism Mandate, Anthem must still show that its denial of additional ABA hours rested on considerations of medical necessity. Anthem contends that it will demonstrate at trial, that its hours caps were based on medical necessity criteria which resulted in fewer hours than requested because mandated services are available in public schools. Further, as previously discussed, Bulletin 136 prohibits dollar and visit caps, but makes no mention of caps on the number of covered ABA therapy hours. In light of the medical necessity analysis, the Court concedes that it made an error of apprehension. Under the plain meaning of the statute, hours limitations are permitted under subsection (b) of the Autism Mandate. However, hours limitations must comply with the broad mandate of subsection (a) and Bulletin 136's interpretation which places an affirmative duty on insurers to provide coverage for medical necessity treatments proscribed by a provider in the patient's treatment plan. Plaintiffs' Motion for Reconsideration is granted for limited purposes. The alternative request for Certification and Interlocutory Appeal is denied as moot. The Motion for Partial Judgment on the Pleadings is granted in part and denied in part. Counts I and II are reinstated to the extent that Plaintiffs assert that Anthem wrongfully denied ABA therapy hours for non- medical reasons in violation of the Indiana Autism Mandate. Having reinstated the state law claims for violation of the Autism Mandate, Counts I and II remain for trial. Count II's equitable relief claim for wrongful denial and Count III in its entirety remain dismissed. A full-text copy of the District Court's November 8, 2017 Opinion is available at https://tinyurl.com/yagwgczv from Leagle.com. W. P., Plaintiff, represented by Blythe H. Chandler -- bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. W. P., Plaintiff, represented by Toby J. Marshall -- tmarshall@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Syed Ali Saeed -- ali@sllawfirm.com -- SAEED & LITTLE LLP. A.B., Plaintiff, represented by Blythe H. Chandler, TERRELL MARSHALL LAW GROUP PLLC, Syed Ali Saeed, SAEED & LITTLE LLP & Toby J. Marshall, TERRELL MARSHALL LAW GROUP PLLC. ANTHEM INSURANCE COMPANIES INC, Defendant, represented by Kristopher N. Kazmierczak -- kkaz@katzkorin.com -- KATZ KORIN CUNNINGHAM, P.C., Martin J. Bishop -- mbishop@reedsmith.com -- REED SMITH LLP, pro hac vice, Rebecca R. Hanson -- rhanson@reedsmith.com -- REED SMITH LLP, pro hac vice, Sally F. Zweig -- szweig@katzkorin.com -- KATZ KORIN CUNNINGHAM, P.C. & Timothy R. Carwinski -- tcarwinski@reedsmith.com -- REED SMITH LLP. AQUA METALS: Glancy Prongay Files Securities Class Action --------------------------------------------------------- Glancy Prongay & Murray LLP has filed a class action lawsuit in the United States District Court for the Northern District of California (Docket Number 3:17-cv-07142) on behalf of persons and entities that acquired Aqua Metals, Inc. ("Aqua Metals" or the "Company") (NASDAQ: AQMS) securities between February 9, 2017 and November 9, 2017, inclusive (the "Class Period"), asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Investors are hereby notified that they have 60 days from the date of this notice to move the Court to serve as lead plaintiff in this action. Investors suffering losses on their Aqua Metals investments are encouraged to contact Lesley Portnoy of GPM to discuss their legal rights at 310-201-9150 or by email to shareholders@glancylaw.com, or visit the Aqua Metals case page on our website at www.glancylaw.com/case/aqua-metals-inc. On May 9, 2017, Aqua Metals held a conference call to discuss its Q1 2017 results. On the call, Defendant Stephen R. Clarke ("Clarke"), the Chairman and Chief Executive Officer ("CEO") of Aqua Metals, stated that "it took longer than we planned to get the breaking and separation up and running." On this news, the Company's stock price fell $4.34 per share, or 26%, to close at $12.31 per share on May 10, 2017, thereby injuring investors. Thereafter, on August 9, 2017, the Company held a conference call to discuss its Q2 2017 results. On the call, Clarke disclosed that the Company had made and installed improvements such that "breaking and separation is now operational," and "breaking and separation is operating reliably." On this news, the Company's stock price fell $2.56 per share, or 23.6%, to close at $8.31 per share on August 10, 2017, thereby injuring investors. On October 23, 2017, the Company issued a press release entitled "Aqua Metals Provides Update on Plant's Operations." Therein, the Company disclosed that Aqua Metals had only "produced small quantities of AquaRefined lead during the commissioning process" and that "under certain conditions, the operators would need to periodically assist the lead removal." On this news, the Company's stock price fell $0.96 per share, or 17.9%, to close at $4.41 per share on October 23, 2017, thereby injuring investors. Finally, on November 9, 2017, after the market closed, Aqua Metals issued a press release entitled "Aqua Metals Provides Third Quarter 2017 Corporate Update." Therein, the Company revealed that it "faced . . . many challenges as [it] worked to ramp up production." On this news, the Company's stock price fell $0.08 per share, or 2.1%, to close at $3.71 per share on November 10, 2017, thereby further injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose: (1) that Aqua Metals' breaking and separating process was facing substantial obstacles due to AquaRefining's need for a much higher degree of separation than is normal in the industry; (2) that the Company's breaking and separating process was not operating reliably or efficiently; (3) that the breaking and separating obstacles and issues were negatively impacting the Company's output; (4) that the Company's four "operating modules" were being used primarily for experimentation, rather than production; (5) that module operators were assisting with lead removal; (6) that, as a result of the foregoing, the ramp up of the Company's recycling process was being significantly hindered and delayed; and (7) that, as a result of the foregoing, Defendants' statements about Aqua Metals' business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. If you purchased Aqua Metals securities during the Class Period you may move the Court no later than 60 days from the date of this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. Lesley Portnoy, Esq. Glancy Prongay and Murray LLP Los Angeles Tel.No.: 310-201-9150 Email: lportnoy@glancylaw.com [GN] AT&T MOBILITY: Arbitration in False Advertisement Suit Affirmed --------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, issued an Opinion affirming the District Court's Order granting Defendant's Motion to Compel Arbitration in the case captioned MARCUS A. ROBERTS; KENNETH A. CHEWEY; ASHLEY M. CHEWEY; JAMES KRENN, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. AT&T MOBILITY LLC, Defendant-Appellee, No. 16-16915 (9th Cir.). Marcus Roberts, Ashley and Kenneth Chewey, and James Krenn appeal an order compelling arbitration of their putative class action claims against AT&T Mobility LLC. Plaintiffs allege that AT&T falsely advertised their mobile service plans as unlimited when in fact it intentionally slowed data at certain usage levels. AT&T moved to compel arbitration, and Plaintiffs opposed on First Amendment grounds. The district court compelled arbitration, holding as a threshold matter that there was no state action. On appeal, Plaintiffs raise two arguments. First, they claim there is state action whenever a party asserts a direct constitutional challenge to a permissive law under Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996). Second, Plaintiffs contend that the Federal Arbitration Act (FAA) including judicial interpretations of the statute, "encourages" arbitration such that AT&T's actions are attributable to the state. There is no state action here. First, AT&T's conduct must be fairly attributable to the state, and Denver Area did not hold otherwise. Second, AT&T is not a state actor under the encouragement test. The FAA merely gives AT&T the private choice to arbitrate, and does not encourage arbitration such that AT&T's conduct is attributable to the state. AT&T's actions must be attributable to the government for state action to exist. Denver Area did not broadly rule that the government is the relevant state actor whenever there is a direct constitutional challenge to a permissive statute, and does not support finding state action here. AT&T's actions must be attributable to the government for state action to exist. Denver Area did not broadly rule that the government is the relevant state actor whenever there is a direct constitutional challenge to a permissive statute, and does not support finding state action here. Under Lugar, 457 U.S. at 937, AT&T's conduct must be attributable to the state. Plaintiffs try to circumvent this requirement by bringing a direct First Amendment challenge to the FAA and its Supreme Court interpretations. They assert state action exists because the government is the relevant state actor as to Plaintiffs' direct challenge, not AT&T. But the Supreme Court already rejected that argument in American Manufacturers. There, the plaintiffs sued private insurers for withholding disputed medical treatment payments, as permitted by a state workers' compensation law. The plaintiffs perhaps hoping to avoid the traditional application of our state-action cases framed their challenge as direct. They claimed the identity of the defendant' or the act or decision by a private actor or entity who is relying on the challenged law was irrelevant. Just as the plaintiffs in American Manufacturers and Flagg Bros. had to show the private defendants were state actors, AT&T's conduct must be fairly attributable to the state. 526 U.S. at 50- 51; 436 U.S. at 157. Plaintiffs cannot convert AT&T into a state actor simply by framing their FAA challenge as direct. If every private right were transformed into a governmental action just by raising a direct constitutional challenge, the distinction between private and governmental action would be obliterated. Plaintiffs argue Denver Area's implicit edict changed this established state action framework and made proving private arbitration clause drafters to be state actors unnecessary. The 9th Circuit disagrees. As an initial matter, Plaintiffs' reading must be incorrect, as Denver Area did not overrule Flagg Bros., decided eighteen years earlier; nor was Denver Area overruled by American Manufacturers, decided three years later. Plaintiffs unsuccessfully attempt to distinguish Flagg Bros. and American Manufacturers as section 1983 lawsuits that sought money damages from private parties for harm caused by the alleged constitutional violations. This distinction, drawn from a dissenting opinion, lacks binding legal authority. Plaintiffs argue that, even if their Denver Area argument fails, they can still show state action under Lugar because the government sufficiently encourages AT&T to arbitrate. They reason the FAA's mandate and the Supreme Court's corresponding enforcement of consumer adhesion forced arbitration contracts have sufficiently encouraged the drafting of such contracts, particularly in the mobile phone industry, so as to hold the State fairly responsible for their burgeoning use. For a private party to be a state actor, there must be a sufficiently close nexus between the State and the challenged action of the private entity. Whether such a close nexus exists depends on whether the State has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed that of the State. Conduct by private entities with the mere approval or acquiescence of the State is not state action. Permission of a private choice cannot support a finding of state action and private parties do not face constitutional litigation whenever they seek to rely on some statute governing their interactions with the community surrounding them. Plaintiffs must, but cannot, show AT&T's conduct is attributable to the state. Because there is no state action, the 9th Circuit affirms. A full-text copy of the Ninth Circuit's December 11, 2017 Opinion is available at https://tinyurl.com/y9uvmp2g from Leagle.com. Alexander H. Schmidt -- Schmidt@whafh.com -- (argued), Colts Neck, New Jersey; Michael Liskow -- liskow@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, New York, New York; Rachele R. Rickert -- rickert@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, California; Michael W. Sobol -- msobol@lchb.com -- and Roger N. Heller -- rheller@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, San Francisco, California; John A. Yanchunis -- JYanchunis@ForThePeople.com -- and Rachel Soffin -- rsoffin@forthepeople.com -- Morgan & Morgan Complex Litigation Group, Tampa, Florida; Jean Sutton Martin -- jean@jsmlawoffice.com -- Law Office of Jean Sutton Martin PLLC, Wilmington, North Carolina; Daniel M. Hattis -- dan@hattislaw.com -- Hattis Law, Clyde Hill, Washington; D. Anthony Mastando -- teri@mastandoartrip.com -- and Eric J. Artrip -- artrip@mastandoartrip.com -- Mastando & Artrip LLC, Huntsville, Alabama; Douglas C. Martinson II -- dougii@martinsonandbeason.com -- Martinson & Beason PC, Huntsville, Alabama; for Plaintiffs- Appellants. Andrew J. Pincus -- apincus@mayerbrown.com -- (argued), Archis A. Parasharami -- aparasharami@mayerbrown.com -- Kevin Ranlett, kranlett @mayerbrown.com and Daniel E. Jones -- djones@mayerbrown.com -- Mayer Brown LLP, Washington, D.C.; Donald M. Falk -- dfalk@mayerbrown.com -- Mayer Brown LLP, Palo Alto, California; for Defendant-Appellee. Karla Gilbride -- kgilbride@publicjustice.net -- and F. Paul Bland Jr. -- pbland@publicjustice.net -- Washington, D.C.; Brian Hardingham, Oakland, California; as and for Amicus Curiae Public Justice P.C. 555 12th Street, Suite 1230. Oakland, CA 94607 Adam G. Unikowsky -- aunikowsky@jenner.com -- Jenner & Block LLP, Washington, D.C.; Kater Comerford Todd -- ktodd@uschamber.com -- and Warren Postman, U.S. Chamber Litigation Center, Washington, 1615 H Street, NW. Washington, DC 20062; Deborah R. White -- deborah.white@rila.com -- Retail Litigation Center Inc., Arlington, Virginia; for Amici Curiae Chamber of Commerce of the United States of America and Retail Litigation Center, Inc. AUSTRALIA: Attys Considering Class Action Over PFAs Contamination ----------------------------------------------------------------- Ellen Ebsary, writing for The Border Mail, reports that Shine Lawyers is considering a class action for Wodonga residents against environmental PFAS contamination from the Bandiana Military Area. Similar cases are running in four other areas, including Katherine, where residents are not using bore water and signs have been erected warning against the consumption of river fish. The Australian Defence Force and other agencies used firefighting Aqueous Film-Forming Foam, containing per- and poly-fluoroalkyl substances (PFAS), from the 1970s to mid-2000s. The presence of PFAS, particularly PFOA and PFOS, in Wodonga is currently being investigated by Defence. Environmental consultant Golder Associates was commissioned in July to review the historical use of the foam, identify pathways for migration off-site and to sample soil, water and potentially plants and animals. Shine Lawyers special counsel Joshua Aylward, Esq. thinks the results of this investigation will 'send shock-waves through Wodonga'. "Defence used these chemicals on a 70 to 80-year basis and have identified the bases where they used those chemicals the most, and they became the highest priority," he said. "Wodonga is one of those 18 sites, and that's concerning because it means they think they will find levels off the base. "At the very first community meeting in Oakey, Defence called it 'the new asbestos', which sends shivers down your spine. "They now say that is not their official position, but they were forced to admit that was said, at a senate inquiry. "People don't know what PFAS are, but they know what asbestos is." A preliminary report based on limited testing was prepared for Defence in 2016, which prompted the need for further investigation. Seven water samples were collected in June 2016 -- three within army grounds; one in Bonegilla; and two others; at Whytes Road Killara and Jack in the Box Creek, near Victoria Cross Parade. At the time, acceptable levels of PFAS in drinking water as outlined in 'Defence Directive Number Eight' were used to analyse results, but since then Food Standards Australia New Zealand has developed health-based guidance values, deeming 0.07 micrograms of PFAS per litre as acceptable. When using these new guidelines to assess the samples collected in 2016, two sites exceed 0.7 ug/L. The sample collected from Jack in the Box Creek, which is not a water supply source, was seven times higher than the recommended PFOS level for drinking water and three-and-a-half times higher for PFHxS. The surface water collected from a creek that runs under Whytes Road, adjacent to East Bandiana, was almost double the level for PFOS and PFHxS. Both samples do not exceed ecological freshwater levels, and if water from those creeks enters into the Murray and Kiewa rivers concentration of PFAS would significantly drop. Only a detailed study spanning several locations and dates will show the true representation of the chemicals in the environment. A Defence spokeswoman said North East Water was 'regularly testing the Wodonga water supply and has not detected PFAS to date'. "The community's health and safety is Defence's primary concern," she said. "Defence is committed to being open and transparent about the progress and findings of the investigation at Bandiana. "Defence has held two community walk-in sessions in Bandiana to provide the community with preliminary findings and an opportunity to speak with representatives from Defence, the contracted investigation team and other relevant government agencies." Mr Aylward said the residents most likely to be impacted by PFAS would be those using contaminated bore water for drinking, or consuming produce grown with impacted water. "Even outside the investigation area in Townsville, there are unacceptable levels coming out of bores and Defence has had to redraw their investigation footprint," he said. "In Oakey it spread nine kilometres in a particular direction, in Katherine 18 kilometres, and there were still high levels at that distance. "It's not just affecting people close to the base; it's been used for decades and had a long time to spread. "People in these towns want to get out from the contamination because it's going to be there for generations, and there are elderly people who can't sell their devalued properties so they can go into a home." State and federal governments maintain there is no conclusive evidence that PFAS are harmful to human health and the science is still developing around the chemicals. In an interim position statement from November, the Environment Protection Authority Victoria stated environmental contamination was of growing concern as 'PFAS have been shown to have adverse impacts on fish and some animals', and that 'as a precaution human exposure to PFAS should be minimised'. An everyday person will already have been exposed to the chemicals in some form, as EPA chief executive Nial Finegan explained. "As they have heat, water and stain-repelling properties, PFAS have been widely used in a range of industrial and consumer products both in Australia and internationally, including in fire retardants, water-proofing, food preparation, food packaging, furnishings, clothing and recreational equipment," he said. "The EPA works closely and cooperatively with Commonwealth agencies to ensure their environmental investigations meet appropriate standards." An editorial published in 2016 in the Environmental Science and Technology journal referenced contamination in America as 'old news'. "Since 2002, close to 300 papers published in ES&T have documented the presence of these compounds in water supplies, wildlife, and humans," it read. "The voluntary end of production of PFOA in the U.S. did not occur until 2015 and industry has continued to use chemicals that can be transformed to PFOA and PFOS in the environment. "It is time for EPA and other agencies to treat unregulated chemicals more seriously." The most extensive contamination in Australia has been detailed by the ABC and Four Corners, including the case of a four-year- old Oakey girl whose PFOS blood levels were 23 times higher than the state average. A senate committee recommended in 2015 that Defence fund annual blood tests for Oakey residents, and that the federal government 'commit to voluntarily acquire property and land which is no longer fit for purpose due to PFOS/PFOA contamination' in the town. A Defence spokeswoman said blood testing programs were running in Oakey, Williamtown and Katherine 'because the extent of contamination and exposure pathways at these sites is well understood'. "Once further investigations of other areas have been completed, and the extent of the contamination and exposure pathways are better understood, the Australian government will be in a position to consider whether it would be appropriate to expand the voluntary blood testing program, epidemiological study and additional mental health and support services to these investigation areas," she said. The spokeswoman said defence had 'not identified any residents within the investigation area that require alternative water supplies'. "Defence is currently conducting the second stage of the detailed environmental investigation process, a detailed site investigation, at Bandiana," she said. "The DSI involves the sampling of soil, sediment, surface water, groundwater, on and near Bandiana to further assess the nature and extent of PFAS contamination." Mr Aylward said if he was living in Wodonga, 'he would want to be having blood testing done'. "Around the world these levels are totally unacceptable -- in America they are blood testing all communities affected by these chemicals," he said. "Rural people grow their own food and have livestock, and they are concerned because they rely heavily on their own water sources. "A couple moths ago I was contacted by people in Wodonga as they had heard from Defence. "They are really concerned about being in an investigation area and the messages they are getting from Defence seem to contradict what they find online." Mr Aylward is in contact with six Wodonga residents and said potential legal action would be guided by further PFAS results. "I will be in Wodonga in the first quarter to talk about what can be done for the town," he said. Indi MP Cathy McGowan said she would follow the issue. "I encourage those with concerns to get in touch with my Wodonga office to discuss their situation -- their questions and comments will be passed on to the appropriate ministers for a response," she said. North East Water and Wodonga Council both declined to comment on the issue. [GN] BANKSIA GROUP: Perpetual Limited Settles Class Action for $64MM --------------------------------------------------------------- Peter Hemphill, writing for The Weekly Times, reports that the trustee of failed Kyabram finance company Banksia Group will pay out $64 million to settle a class action brought by depositors. The payout brings a lengthy battle to resolve one of rural Victoria's biggest financial collapses closer to completion. The Banksia Group collapsed in October 2012, owing about $660 million mostly to 16,000 depositors from around the state. The trustee was The Trust Company (Nominees) Limited, which was bought by Perpetual Limited in 2013 for $350 million. Kyabram investor Laurie Bolitho was the representative plaintiff in a class action brought by debenture holders, or depositors, against TTC. Mr Bolitho appointed litigation funder BSL Litigation Partners to back the class action. The case against TTC was settled by Perpetual but has to go before the Honourable Justice Clyde Croft of the Supreme Court of Victoria on January 30 for approval. Class action committee member Don McKenzie, of Kyabram, said the $64 million settlement would add about eight cents in the dollar in returns to debenture holders. Mr McKenzie said the investors had already received about 82 cents in the dollar and there was scope to pick up one or two cents more through outstanding litigation against Banksia's insurer and some tax rulings being sought from the Australian Taxation Office. He said debenture holders were initially told they might receive 50-60 cents in the dollar through a winding up of Banksia. "We hope we will end up getting 92 or 93 cents in the dollar," Mr McKenzie said. "We are happy but so frustrated the process has taken so long. "So, yes, we are very happy with the end result." [GN] BAY AREA RAPID: Class Action Must Be Amended, Court Says -------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reports that a woman who accuses the Bay Area Rapid Transit District of using the BART Watch mobile app, intended to let commuters communicate with police, to spy upon its customers must amend her class action, a federal judge ruled. BROADWAY STORAGE: Faces "Mendizabal" Suit in S.D. of New York ------------------------------------------------------------- A class action lawsuit has been filed against Broadway Storage LLC. The case is styled as Maria Mendizabal, on behalf of herself and all others similarly situated, Plaintiff v. Broadway Storage LLC doing business as: Gotham Mini Storage LLC d/b/a GOTHAM MINI STORAGE LLC, Defendant, Case No. 1:17-cv-10236 (S.D. N.Y., December 31, 2017). Broadway Storage LLC is an affordable storage unit located Appleton, WI North-Side.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Joseph H Mizrahi Law PC 337 Avenue W Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com CALIFORNIA SERVICES: Court Certifies "West" TCPA Class ------------------------------------------------------ The United States District Court for the Northern District of California issued an Order granting Plaintiffs' Motion for Class Certification in the case captioned SANDRA WEST, et al., Plaintiffs, v. CALIFORNIA SERVICES BUREAU, INC., Defendant, Case No. 16-cv-3124-YGR (N.D. Cal.). Plaintiffs Sandra West and Hector Membreno bring the putative class action against defendant California Services Bureau, Inc. (CSB) alleging that defendant called plaintiffs without consent, in violation of the Telephone Consumer Protection Act (TCPA). Plaintiffs moves to certify that following class: Cell Phone Wrong Number Class: All persons within the United States who, within the four years prior to the filing of the complaint in this action, through the date of class notice (the Class period), Defendant or its agent/s or employee/s caused to be made at least 2 telephone calls using its Global Connect dialer to said person's cellular telephone through the use of any automatic telephone dialing system or an artificial or pre- recorded voice, where such person was not listed in Defendant's records as the intended recipient of the calls. Commonality and Predominance According to plaintiffs' expert, the reverse lookup service will identify the users for each of the phone numbers which appear in defendant's call log databases, not merely the account holder. Stated differently, a reverse lookup will generate a list of all individuals who customarily use each phone number. This list would necessarily include family members who use the cell phone number and arguably have authority to consent to be called at that number. As noted, this list can be compared to defendant's call log databases to determine on a class-wide basis whether consent was given with respect to each class member. Therefore, the Court finds that plaintiffs satisfy the requirement that questions common to the class predominate over other questions under Rule 23(b)(3). Numerosity The Court finds that plaintiffs need not rely on the Kopel Declaration to establish numerosity. The record reflects that CSB made 32 million calls through Global Connect during the class period. Plaintiffs' call records expert Anya Verkhovskaya analyzed these calls in defendant's call log databases and determined that CSB placed two or more calls to 635,096 unique phone numbers during the class period. Accordingly, applying common sense assumptions and reasonable inferences, the Court finds that plaintiffs have satisfied the numerosity requirement. Typicality Defendant challenges typicality only as to West. CSB's argument hinges on the fact that West's claim is not typical of the proposed class because it is possible she "authorized her son to use her [cell phone] number and therefore consented to the phone calls to that number." However, defendant overlooks the fact that West testified during her deposition that that (i) the cell phone number in question was never the number for her son, and (ii) she never authorized her son to use or provide that number as an emergency contact. Therefore, the Court finds defendant's argument speculative and insufficient to defeat typicality. Accordingly, the Court finds that plaintiffs have satisfied the adequacy requirement under Rule 23(a)(4) with regard to West and Membreno. Adequacy The record before the Court indicates that plaintiff West has been an active participant in the litigation. Additionally, plaintiffs' counsel, Bursor & Fisher, P.A., have experience litigating class action claims in both federal and state courts, and appear to have been prosecuting this action vigorously. Defendant raises no arguments to the contrary. The Court finds that plaintiffs have satisfied the adequacy requirement under Rule 23(a)(4) with regard to West and her counsel. Superiority Defendant argues that plaintiffs' claims lack superiority due to the difficulties in managing the class action. Specifically, defendant asserts that plaintiffs lack a comprehensive list of call recipients who did not consent and that putative class members cannot be identified using the Global Connect call records due to the frequency of cell phone turnover. Such manageability concerns are alone insufficient to defeat superiority of the proposed classes here. The Ninth Circuit has specifically noted that it was not clear why requiring an administratively feasible way to identify all class members at the certification stage is necessary to protect defendant's due process rights. The Court finds that a class action is superior to individual adjudication. Rule 23(b)(2) allows a Court to certify a class when the requirements of Rule 23(a) are satisfied and the defendant has acted or refused to act on grounds that apply generally to the class, so that final injunctive or corresponding declaratory relief is appropriate respecting that class as a whole. Here, the large amount of potential liability undermines the proposition that declaratory or injunctive relief is primary to plaintiffs' action. However, in cases where a plaintiff seeks both declaratory and monetary relief, courts may certify a damages-seeking class under Rule 23(b)(3), and an injunction- seeking class under Rule 23(b)(2). The Court finds that certifying the classes here as both damages-seeking classes under Rule 23(b)(3) and injunctive relief only classes under Rule 23(b)(2) is appropriate and promotes judicial efficiency. The Court finds that plaintiffs have satisfied the requirements for certification under Rule 23(b)(2). Plaintiffs' motion for class certification under both Rule 23(b)(2) and Rule 23(b)(3) is granted. A full-text copy of the District Court's December 11, 2017 Order is available at https://tinyurl.com/ydygbwbj from Leagle.com. Sandra West, Plaintiff, represented by G. Thomas Martin, III -- tom@mblawapc.com -- Martin & Bontrager, APC. Sandra West, Plaintiff, represented by Lawrence Timothy Fisher- ltfisher@bursor.com -- Bursor & Fisher, P.A., Yitzchak Kopel -- ykopel@bursor.com -- Bursor Fisher & Nicholas J. Bontrager -- Nick@mblawapc.com -- Martin & Bontrager, APC. Hector Membreno, Consol Plaintiff, represented by Lawrence Timothy Fisher, Bursor & Fisher, P.A., Nicholas J. Bontrager, Martin & Bontrager, APC, Annick Marie Persinger, Bursor & Fisher, P.A., Thomas A. Reyda, Burosr and Fisher, P.A., Yeremey O. Krivoshey, Bursor Fisher, P.A. &Yitzchak Kopel, Bursor Fisher. California Service Bureau, Inc., Defendant, represented by Charles Robert Messer -- messerc@cmtlaw.com -- Carlson & Messer LLP, David J. Kaminski -- kaminskid@cmtlaw.com -- Carlson & Messer LLP & Stephen Albert Watkins WatkinsS@cmtlaw.com -- Carlson and Messer LLP. CANADA: Faces Class Action Over Qalipu Enrolment Process -------------------------------------------------------- Gary Kean, writing for The Western Star, reports that one of the four legal actions centered around the controversial Qalipu Mi'kmaq First Nation Band enrolment process has been hit by a major legal blow. The lawsuit filed by former lawyer Douglas Doucette in the Federal Court of Canada has been dismissed, though he says he is appealing the decision. Doucette filed a statement of claim against Qalipu, the Federation of Newfoundland Indians (FNI) and the federal government in March. He had asked the court to strike down both the 2008 agreement-in- principle between the government and the FNI to create the Qalipu band and the 2013 supplemental agreement that introduced stricter criteria for band membership. This past summer, Doucette encountered some legal snags and indicated he wished to submit an amended statement of claim. On Nov. 3, the court dismissed Doucette's statement of claim with no chance of him amending it. He said an appeal of that decision was filed Nov. 13. The three other court actions filed in relation to the Qalipu enrolment process are at various stages of the legal process. Related stories: Mi'kmaq assembly needs more time to file Qalipu enrolment judicial review application Lawsuit to strike Qalipu enrolment process hits legal road bumps in Federal Court Former Corner Brook resident Jerry Brake puts his name on class action against Qalipu enrolment One filed has former Corner Brook resident Jerry Brake as the representative plaintiff in a potential class-action lawsuit. That legal action is against the federal government and seeks to invalidate the 2013 supplemental agreement that led to some 80,000 people being rejected from inclusion on the Qalipu founding members list. Brake's lawsuit on behalf of all rejected applicants is at a procedural stage that precedes a hearing being set. Both Doucette and Brake had been seeking financial compensation for their claims of wrongdoing. The other two court cases challenging the legalities of the enrolment have been jointly filed by the Mi'kmaq First Nation Assembly of Newfoundland and Labrador, an entity established to support those who feel disenfranchised by the Qalipu enrolment process. Those claims are seeking to have the process used to determine Qalipu membership declared null and void and for the entire process of enrolment to start afresh. According to the Federal Court of Canada, one of those legal battles, which names Sandra Frances Wells as a plaintiff, is also still at the case-management phase. The other, which names assembly chairperson David Robert Wells as its plaintiff, has completed all the procedural steps necessary leading up to a hearing to request a judicial review of the enrolment process. Dave Wells told The Western Star on Dec. 13 that both of the assembly's jointly filed cases are awaiting a hearing date and will be heard together, but no hearing date has yet been set. The difference between the two jointly filed applications is that one group, including David Wells, involves applicants who never found out they had indigenous ancestry until after the Sept. 22, 2011 deadline imposed by the enrolment process. The scenario being challenged in the group that includes Sandra Wells, who is of no relation to David Wells, involves people who knew of their ancestry but were having trouble proving it before Sept. 22, 2011. The assembly is also trying to raise money to pay for its legal battles. A social media funding effort to raise $10,000 has raised a little more than $2,000 so far. In the meantime, there is talk of another court action being launched. The Facebook group Friends of Qalipu Applicants has posted that it has a legal opinion supporting pursuing litigation against the enrolment process, including seeking an injunction to have it halted until the legal challenges have been sorted out. [GN] CENTRA TECH: Suit Targets ICO Promoted by Floyd Mayweather ---------------------------------------------------------- Stan Higgins, writing for Coin Desk, reports that an initial coin offering (ICO) promoted by boxing champion Floyd Mayweather, Jr., is at the center of a newly filed class-action complaint. Dated Dec. 13, the lawsuit names Sohrab Sharma, Raymond Trapani, Robert Farkas and William Hagner, as well as Centra Tech, Inc., as defendants, accusing them of violating U.S. securities law through a token sale that ultimately raised $30 million for the development of a cryptocurrency-focused debit card. The filing comes more than a month after two of the firm's founders left the startup. According to an Oct. 31 blog post from Centra, both Sharm and Trapani exited the project following the sale's completion, as well as a profile of them and the ICO by The New York Times. In the complaint, lawyers for the plaintiff alleged that the Centra sale constituted an unregistered offering and sale of securities. They wrote: ". . . . in connection with Centra Initial Coin Offering (the "Centra ICO"), Defendants raised over $30 million in digital cryptocurrencies by offering and selling unregistered securities in direct violation of the Securities Act." The complaint also accused the defendants of misleading investors about the nature of its relationship with card networks Visa and Mastercard, as well as listing fake team members on its website. In a statement posted to its blog, the Centra team disputed the lawsuit filed by "an alleged purchaser of Centra Tokens." "This lawsuit, which for the most part, appears to repeat unfounded claims regarding Centra Tech, alleges that Centra Tech's initial coin offering of Centra Tokens was an unregistered sale of securities. The plaintiff's complaint attempts to mimic claims and allegations the Securities and Exchange Commission has lodged against other cryptocurrency offerors," the startup wrote, adding: "Centra Tech disputes the allegations in the complaint." The Centra ICO was notably promoted by Mayweather as well as music producer DJ Khaled prior to its completion. Though the timing is currently unclear, the original posts by Mayweather on Instagram and Facebook that promoted the sale appear to have been deleted, and a post on Instagram by DJ Khaled is also unavailable as of press time. Neither Mayweather or Khaled were named in the suit. Jacob Zowie, the plaintiff, is being represented by Komlossy Law and Levi & Korinsky LLP in the suit. A representative for Mayweather did not immediately respond to a request for comment. [GN] CHESAPEAKE BANK: Faces "Carroll" Suit in Eastern District of Va. ---------------------------------------------------------------- A class action lawsuit has been filed against Chesapeake Bank. The case is styled as Keith Carroll, an individual and on behalf of all others similarly situated, Plaintiff v Chesapeake Bank, Defendant, Case No. 3:17-cv-00860-HEH (E.D. Va., December 29, 2017). Chesapeake Bank is a banking institution.[BN] The Plaintiff is represented by: Thomas Eugene Strelka, Esq. Strelka Law Office PC 119 Norfolk Avenue SW, Suite 330 Roanoke, VA 24011 Tel: (540) 283-0802 Email: thomas@strelkalaw.com - and - Linda Leigh Rhoads Strelka, Esq. Strelka Law Office PC 119 Norfolk Avenue SW, Suite 330 Roanoke, VA 24011 Tel: (540) 283-0802 Email: leigh@strelkalaw.com CHINESE BODYWORKS: Faces "Li" Suit in District of New Jersey ------------------------------------------------------------ A class action lawsuit has been filed against Chinese Bodyworks Inc. The case is styled as Xin Li, on behalf of herself and others similarly situated, Plaintiff v. Chinese Bodyworks Inc, Defendant, Case No. 2:17-cv-13863 (D. N.J., December 31, 2017). Chinese Bodyworks Inc. is a massage parlor.[BN] The Plaintiff appears PRO SE. COMMUNITY HEALTH: 6th Cir. Revives $891MM Securities Fraud Suit --------------------------------------------------------------- Ayla Ellison, writing for Becker's Hospital Review, reports that on December 13, the Sixth Circuit U.S. Court of Appeals revived a shareholder class-action lawsuit against Franklin, Tenn.-based Community Health Systems, alleging the for-profit hospital operator deceived shareholders by keeping secret that its profits were based on Medicare fraud. Here are eight things to know about the lawsuit. 1. Shareholders sued CHS in 2011, claiming the company followed a policy that encouraged physicians to admit Medicare patients to the hospital instead of treating them in less lucrative outpatient settings. 2. Those allegations first surfaced in an April 11, 2011, complaint filed by Dallas-based Tenet Healthcare, which sued CHS to avoid a hostile takeover bid. Immediately after Tenet sued, CHS issued a press release stating Tenet's allegations were meritless. However, Larry Cash, who then served as CHS' CFO, allegedly admitted the company's hospitals did use the Blue Book, a guide CHS created that prompted physicians to provide inpatient services for many conditions other hospitals would treat as outpatient cases. Mr. Cash said 30 of CHS' hospital had already quit using the Blue Book, and the rest would do so by the end of 2011, according to court documents. 3. CHS' stock fell 35 percent after Tenet sued. However, shareholders did not immediately take legal action against CHS. 4. In October 2011, CHS released weaker-than-expected earnings. On an earnings call, Mr. Cash said inpatient admissions had declined at 75 percent of its hospitals after physicians phased out the Blue Book. On that same call, CHS Chairman and CEO Wayne Smith said, "there's no question we've had some adverse impact related to issues . . . . around the Tenet lawsuit," according to court documents. 5. After the admissions by executives, CHS' stock price dropped another 11 percent. Shareholders subsequently sued CHS, claiming they lost a combined $891 million in the little more than six months between April 11, 2011, when Tenet sued, and Oct. 27, 2011, the day after the earnings call and the executive admissions. 6. Although CHS continued to deny Tenet's allegations, the company entered into a $98.15 million settlement with the Department of Justice in 2014 to resolve allegations it knowingly billed government payers for inpatient services that should have been billed as outpatient or observation services. 7. The district court dismissed the lawsuit filed by shareholders in 2016. The court said the shareholders failed to show Tent's lawsuit caused CHS' stock to drop and triggered their losses. 8. On December 13, an appeals panel revived the shareholder suit, finding that CHS executives' public admissions combined with the fraud allegations were enough to keep the shareholders' lawsuit alive. [GN] CONVERGENT OUTSOURCING: Faces "Pedersen" Suit in E.D.N.Y. --------------------------------------------------------- A class action lawsuit has been filed against Convergent Outsourcing, Inc. The case is styled as Heather M. Pedersen, individually and on behalf of all others similarly situated, Plaintiff v. Convergent Outsourcing, Inc., Defendant, Case No. 2:17-cv-07595 (E.D. N.Y., December 30, 2017). Convergent provides a wide range of customer contact management services which help to lower cost, manage uneven call volumes, deal with specific call types and prepare for unexpected outages or natural disasters.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com CURRY SHACK CORP: Faces "Lawrence" Suit in S.D. of New York ------------------------------------------------------------ A class action lawsuit has been filed against Curry Shack, Corp. The case is styled as Leo Chad Lawrence, on behalf of himself and others similarly situated, Plaintiff v. Curry Shack, Corp., Defendant, Case No. 1:17-cv-10250 (S.D. N.Y., December 31, 2017). Curry Shack, Corp is engaged in the restaurant business.[BN] The Plaintiff appears PRO SE. EI DUPONT: Price-Fixing Settlement Obtains Prelim Court Nod ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge preliminarily approved an undisclosed settlement on Dec. 13 on class-action claims that Dupont conspired to fix the price of titanium dioxide, a key ingredient in white paint. A fairness hearing is set for Aug. 16, 2018. The case is JAN HARRISON; LEE RANALLI; MORGAN TANNER; SPENCER HATHAWAY; TODD TURLEY; DEBBIE HALE; KELI ANNO; JOHN ZULLO; CHRISTOPHER KUON-TSEN LEE; JIM BUCKINGHAM; TANDA SAXTON; JOHN WOZNIAK; JEROME SHERMAN; BEVERLY JENKINS; DA VID PETERSEN; TOM STEVER; BRIAN BAWOL; RANSOME FOOSE; and, STACY FRANKLIN, Plaintiffs, v. E.I. DUPONT DE NEMOURS AND COMPANY; HUNTSMAN INTERNATIONAL, LLC; KRONOS WORLDWIDE, INC.; and, MILLENNIUM INORGANIC CHEMICALS, INC.; Defendants, Case No. 5:13-cv-01180-BLF (N.D. Calif.). A full-text copy of the Order is available at https://is.gd/CMZoDt EL TORAZO: Court Grants Conditional Certification in "Perez" ------------------------------------------------------------ The United States District Court for the Western District of Kentucky, Louisville Division, issued a Memorandum Opinion and Order granting Plaintiff's Conditional Class Certification in the case captioned FELIPE CRUZ PEREZ and MARLIN PALMA, on behalf of themselves and others similarly situated, Plaintiffs, v. EL TORAZO MEXICAN RESTAURANT, INC.; and GUSTAVO ORTIZ, Defendants, Civil Action No. 3:16-CV-00545-GNS (W. D. Ky.). This action is brought to recover unpaid compensation in the form of unpaid wages and overtime allegedly owed to Plaintiffs, who are former employees of Defendants, El Torazo Mexican Restaurant, Inc., and Gustavo Ortiz pursuant to the Fair Labor Standards Act (FLSA) and the Kentucky Wage and Hour Act (KWHA). Plaintiffs seek to certify a class of servers, waiters, waitresses, and other tipped employees (Tipped Employees) employed by Defendants from August 24, 2013 on. Defendants argue that Plaintiffs' declarations are speculative, self-serving, and reliant on inadmissible hearsay, and are therefore not sufficient to establish a class of similarly situated plaintiffs. Defendants further allege that the proposed class is overbroad. This Court has found similar declarations relating to observations of FLSA violations in the workplace as sufficient evidence to find a similarly situated class of plaintiffs in the first phase of certification. These declarations are sufficient to meet the modest showing needed to find a similarly situated class. As to Defendants' argument of overbreadth, the Court has previously certified a class under situations where a uniform corporate policy applied to similar, but not identical, types of employees. Thus, a class may be certified regardless of the differing categories of employees in the proposed class. At a minimum, Plaintiffs have offered a modest showing sufficient to meet their burden under the fairly lenient standard to establish a similarly situated class. The Court finds such similarity within the Tipped Employees to conditionally certify the class. Defendants have not objected to Plaintiffs' proposed notice or consent forms as offered. The Court finds that the proposed notice form is largely adequate, but will modify it to reflect that the state law claims being pursued arise under the law of Kentucky rather than Ohio. The modified notice, as attached, should be provided in both English and Spanish, as proposed. A full-text copy of the District Court's December 11, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/y7qzp7z2 from Leagle.com. Felipe Cruz Perez, Plaintiff, represented by Robert E. DeRose, II -- bderose@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz. Felipe Cruz Perez, Plaintiff, represented by Trent R. Taylor -- ttaylor@barkanmeizlish.com -- Barkan Meizlish Handelman Goodin DeRose Wentz. Marlin Palma, on behalf of themselves and others similarly situated, Plaintiff, represented by Robert E. DeRose, II, Barkan Meizlish Handelman Goodin DeRose Wentz & Trent R. Taylor, Barkan Meizlish Handelman Goodin DeRose Wentz. El Torazo Mexican Restaurant, Inc., Defendant, represented by Mitzi Denise Wyrick, Wyatt, Tarrant & Combs, LLP & Roosevelt J. Stennis, Jr., Wyatt, Tarrant & Combs, LLP, 500 West Jefferson Street, Suite 2800 '. Louisville, Kentucky 40202-2898. Gustavo Ortiz, Defendant, represented by Mitzi Denise Wyrick, Wyatt, Tarrant & Combs, LLP &Roosevelt J. Stennis, Jr., Wyatt, Tarrant & Combs, LLP. EXACTECH INC: Bronstein Gewirtz Files Securities Class Action ------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notified investors that a class action lawsuit has been filed against Exactech, Inc. ("Exactech " or "the Company") (NASDAQ: EXAC) for alleged breaches of fiduciary duty in connection with the proposed sale of the Company to affiliates of private equity firm TPG Capital ("TPG"). Such investors are encouraged to learn more about this case by visiting the firm's site: http://www.bgandg.com/exac. On December 4, 2017, the Exactech and TPG announced the signing of an amended merger agreement pursuant to which TPG will acquire Exactech in a merger deal valued at $737 million. Pursuant to the merger agreement, Exactech shareholders will receive $49.25 per share in cash for each share of Exactech. A class action lawsuit has already been filed. If you are a Exactech shareholder and wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/exac. You may also contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697- 6484 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC, is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. Peretz Bronstein, Esq. Bronstein, Gewirtz & Grossman, LLC Email: peretz@bgandg.com [GN] EXPEDIA INC: Averts Texas Occupancy Tax Class Action ---------------------------------------------------- Dee Thompson, writing for Southeast Texas Record, reports that in a class action brought by 173 Texas municipalities, a federal appellate court has ruled that the cost of occupancy tax on a hotel reservation in Texas need not be included in the fees charged by online travel companies like Expedia and Orbitz. The Nov. 29 U.S. 5th Circuit Court of Appeals order explains that in regard to the Texas online occupancy tax on hotel rooms, "The OTC retains its service fee as compensation for its online services. Therefore, although the hotel determines the discounted room rate, an OTC decides the total amount the traveler pays when booking through the OTC's website. The OTC later forwards the amount of the discounted room rate and applicable taxes to the hotel, which remits the taxes to the taxing authority. The OTC is the merchant of record in the transaction with the traveler." Because the lower court judgment was vacated, the 173 Texas cities lost the years-long court battle to collect unpaid Texas online occupancy taxes on hotel rooms booked through online travel websites. The city of San Antonio, Texas, on behalf of itself and all other similarly situated Texas municipalities filed the class action against Hotels.com LP; Hotwire Inc.; Trip Network Inc., doing business as Cheaptickets.com; et al. As explained in the order issued by the U.S. Fifth Circuit Court of Appeals on Nov. 29, "When a traveler chooses to book a room through an OTC [online travel company], it requests a reservation on the traveler's behalf. If the hotel chooses not to make a reservation available, the OTC cannot make the reservation. If the hotel issues the reservation, it does so in the traveler's name, and the OTC forwards a confirmation to the traveler." In July 2011 a jury determined that ". . . the retail rate paid the OTC by the traveler, rather than the discounted room rate the OTC pays the hotel, is subject to the hotel occupancy tax," according to the order. The cities appealed that ruling and the court battle continued. In 2013, $55,146,489 in unpaid taxes, interest and penalties were awarded to the cities. According to the order, the "OTCs then pursued a renewed motion for judgment as a matter of law, or alternatively, motion for new trial; the court denied both motions on 20 February 2014. Two years later, the court issued an amended final judgment of $84,123,089 to include increased penalties, as well as the taxes and interest that had accrued since the first judgment in April 2013." The appellate court vacated that judgment and found in favor of the travel companies, explaining that "Cities concede OTCs have been collecting taxes on the discounted room rate paid to the hotel, and the hotels have been remitting them. Because the only monetary amounts at issue in this class action are those not included in the scope of the hotel occupancy tax base, as limited by our above holding, OTCs are not liable." The case was heard before judges James Dennis, Rhesa Barksdale and Edith Brown Clement. [GN] F&R CLEANING: Faces "Castaneda" Suit in E.D. of New York -------------------------------------------------------- A class action lawsuit has been filed against F&R Cleaning Services Corp. The case is styled as Nilda J Suarez Castaneda and Maria Caridad Calle, on behalf of themselves and others similarly situated, Plaintiffs v. F&R Cleaning Services Corp, Defendant, Case No. 1:17-cv-07603 (E.D. N.Y., December 31, 2017). F & R Cleaning Services Corporation is in the Cleaning Services business.[BN] The Plaintiffs appear PRO SE. FAMILY AND CHILDREN'S: Faces Negligence Suit -------------------------------------------- Sabrina Bedford, writing for The Recorder and Times, reports that an alleged privacy breach at Family and Children's Services of Lanark, Leeds and Grenville (FCS) has led to the agency being sued for negligence, invasion of privacy and a breach of the Canadian Charter of Rights and Freedoms. A multi-million-dollar class action lawsuit was filed in April 2016 against the agency as a result of a security breach that allegedly allowed for the names of 285 local children's aid clients being published on Facebook, an offense made illegal under the Child and Family Services Act. Lawyers for the plaintiff, named only as M.M., confirmed they filed a notice of motion in a Toronto courtroom to pursue claims of negligence, intrusion upon seclusion (invasion of personal privacy) and a breach of section 7 of the Charter (life, liberty and security of person) against FCS. The suit initially alleged that someone hacked into the website to find the list, but lawyers for the plaintiff say an affidavit from Kelley Denham, the person who allegedly posted the location of the client list to Facebook and one of the defendants in the case, changed their course of action. "We initially believed, based on quotes from (FCS executive director) Raymond Lemay and news reports, that this was a case of hacking of the secured FCSLLG website intended only for members of its board of directors," Sean Brown, a lawyer with Flaherty McCarthy LLP who represents the plaintiff, told The Recorder and Times in an email. "It now appears that this is not the case. Rather, it appears that the FCSLLG website was completely unsecured between February and April 2016, with the full knowledge of FCSLLG." The suit seeks $25 million in general damages, $25 million in special damages and $25 million in punitive, aggravated and exemplary damages. According to the suit, the personal information of the 285 clients was compiled into an electronic file, prepared for the service's board of directors on new cases arising between April and November of 2015, but was not properly secured on the agency's network. This made the list publicly available to anyone, they said, and in her affidavit Denham explained how she came into possession of the sensitive and confidential documents. She said she found and clicked on an unrelated document on the website intended for the public. She deleted a portion of the URL, and she was taken to a directory of folders with documents, within which she found the document with the names of local families. She said she was never asked a user name or password and was never faced with any security measures that impeded her ability to access the documents. She said she attempted multiple times to advise the agency the confidential documents were available on the public website, beginning in February 2016, but the documents were still publicly available by late April 2016. This is when she decided to post the location of the report on the Facebook group where she claims she posted an image of a hyperlink, which was deleted by the group's administrator within hours. She said she did not hack any secure portals, rather the site was completely unsecured and she was able to access the files unimpeded. She is listed in the lawsuit as a defendant and is being charged with intrusion upon seclusion. According to her own website kelleyandderek.com, she is also being charged criminally for matters in relation to this case that are still before the court, including: Theft under $5,000, mischief over $5,000, mischief to data, unauthorized use of a computer, traffick in identity information, and publication of identifying information. Brown said the evidence offered by Denham voluntarily in support of their notice of motion "directly contradicts the narrative pushed by FCSLLG at the time of this alleged breach." "Our own client, M.M., was not previously aware of the facts as alleged by Ms. Denham," he said. "She believed and accepted the version of events offered by FCSLLG. She was both surprised and upset to read Ms. Denham's Affidavit and learn that the version of events offered by FCSLLG at the time may not be true." M.M., the plaintiff in the case representing the class action, wrote in an affidavit her family was the subject of a FCSLLG investigation for a brief period in April 2015. She said her file was soon closed and no action was taken against her family, and that the investigation was short-lived and found no wrongdoing on the part of her or her partner. "I did not expect to hear from FCSLLG again," she wrote in the affidavit. But her name was included as one of the 285 made publicly available during the security breach, according to the suit. "The knowledge that my name was disclosed in the breached report has caused me distress, anxiety and humiliation. I fear that the fact my family was the subject of an FCSLLG investigation will brand both myself and my partner as child abusers, when this is categorically and unequivocally not true." None of the allegations have been proven in court. The plaintiff will be in court Dec. 21 seeking an order to move forward with the class action suit in a Toronto courtroom. Multiple requests for comment to the executive director of FCSLLG were not returned before deadline. [GN] FIAT CHRYSLER: In Hot Seat Vacated by VW ---------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reports that with lengthy settlement talks on the horizon, Fiat Chrysler sought to fight off the same emissions cheating claims that cost Volkswagen billions of dollars in fines and settlements over the last two years. Fiat Chrysler attorney Robert Giuffra Jr., Esq. -- giuffrar@sullcrom.com -- who also defended Volkswagen in its dieselgate scandal, told U.S. District Judge Edward Chen that consumers cannot sue his client for emissions cheating because only U.S. regulators can enforce those rules under the Clean Air Act. "Any attempt to enforce emission standards is preempted," Giuffra, of Sullivan & Cromwell in New York, told Judge Chen. But class attorneys say their clients are not suing for Clean Air Act violations. They seek damages for a conspiracy to trick them into paying more for "EcoDiesel" cars that Fiat Chrysler claimed were environmentally superior to other diesels. "These were not environmentally friendly diesels, and they never have been," class attorney Stacey Slaughter with Robins Kaplan in Minneapolis said. The class accuses Fiat Chrysler of installing emissions cheating software in nearly 104,000 Grand Jeep Cherokees and Ram 1500 EcoDiesel trucks between 2014 and 2016. Like Volkswagen, Fiat Chrysler used defeat devices created by German auto parts maker and codefendant Robert Bosch to mask nitrogen dioxide pollution during emissions tests, the class claims. The cars spew up to seven times more pollution on the road than when hooked up for tests, according to a 378-page class action complaint. The parties will spend several days hammering out a potential settlement in January, according to court-appointed settlement master Kenneth Feinberg, a veteran who also handled claims from victims of the Sept. 11 terror attacks and the BP oil spill. On December 19, the two sides spent more than two hours arguing over Fiat Chrysler's motion to dismiss the consumer class action. Giuffra said Fiat Chrysler never orchestrated a nationwide advertising campaign to tout its vehicles as environmentally friendly, as Volkswagen did. Volkswagen has paid more than $20 billion in U.S. penalties and settlements, and one of its executives was sentenced to seven years in federal prison for it this month. Giuffra argued that the Fiat Chrysler complaint lacks allegations that even one car buyer relied on any false statement the automaker made about emissions. "The only thing they can point to is a vague label: EcoDiesel, which is actually puffery," Giuffra said. Puffery is defined as an exaggerated statement that no reasonable consumer could rely on as factual. For instance, "Our cars are the best in the world," is puffery, whereas, "Our cars are better than Volkswagens" states a specific claim. "No consumer could think EcoDiesel means these cars are compliant," Giuffra argued. Slaughter replied that whether "EcoDiesel" is puffery is a question of fact that must be resolved at a later stage of litigation. Turning to the question of preemption under the Clean Air Act, Chen asked how the class could show misrepresentations were made about emissions without proving noncompliance with emissions rules. If the Clean Air Act did not exist, class attorney Kevin Budner, Esq. said, consumers could still sue Fiat Chrysler for fraud. "It's about telling consumers you're getting a clean diesel vehicle," said Budner, with Lieff, Cabraser, Heimann and Bernstein in San Francisco. Chen said that even if Chrysler Fiat had a duty to tell consumers about emissions, the issue still overlaps significantly with Clean Air Act rules. "The knowledge was exclusively in the hands of the defendant. It's completely one-sided knowledge of a material fact, and there's a duty to disclose," Chen said. "Assuming that's true, isn't that claim squarely in the bull's eye of the Clean Air Act?" Budner replied that the alleged fraud does not turn on compliance with the Clean Air Act, but on Fiat Chrysler's misstatements and omissions. Giuffra said Fiat Chrysler is confident it can create a fix that will make the vehicles compliant with federal emissions standards. Leigh Rende, with the Department of Justice, said the Environmental Protection Agency might approve an emissions fix for the nearly 104,000 vehicles by April 2018. FLAT RATE MOVERS: Faces "Mendizabal" Suit in S.D. of New York ------------------------------------------------------------- A class action lawsuit has been filed against Flat Rate Movers, Ltd. The case is styled as Maria Mendizabal, on behalf of herself and all others similarly situated, Plaintiff v. Flat Rate Movers, Ltd., Defendant, Case No. 1:17-cv-10238 (S.D. N.Y., December 31, 2017). Flat Rate Movers, Ltd. provides transportation and logistic services.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Joseph H Mizrahi Law PC 337 Avenue W Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com FLORISSANT, MO: Loses Bid to Dismiss Unlawful Jailing Suit ---------------------------------------------------------- The United States District Court for the Eastern District of Missouri, Eastern Division, issued a Memorandum and Order denying Defendant's Motion to Dismiss the case captioned THOMAS BAKER, et al., Plaintiffs, v. CITY OF FLORISSANT, Defendant, Case No. 4:16- CV-1693 NAB (E.D. Mo.). Plaintiffs in this putative class action claim that they were repeatedly jailed by the City of Florissant due to their inability to pay fines, fees and other costs arising from traffic tickets or other minor municipal offenses, without being offered legal representation or any inquiry into their ability to pay. Defendant argues that all counts of the amended complaint should be dismissed on the basis that it fundamentally fails to comply with the applicable rules of pleading, disadvantaging the Defendant in its ability to provide a meaningful answer. The City argues that the amended complaint does not comply with Rule 8(a), as it is not a short and plain statement of claims, and that it also fails to comply with Rule 10(b) because its numbered allegations are not limited as far as practicable to a single set of circumstances. The Court has reviewed Plaintiffs' amended complaint and finds that it satisfies the requirements of Rules 8 and 10. The background information provided at the beginning of the amended complaint presents sufficient, yet not unduly superfluous, information that helps place the allegations against Defendant in context. Moreover, Plaintiffs' allegations in the individual paragraphs are limited, as far as practicable, to discrete sets of circumstances, which should allow Defendant to frame a responsive pleading. Finally, the Court does not find any of the language in the amended complaint to be so redundant, immaterial, impertinent, or scandalous as to warrant striking sections of the pleading. The Court will deny the City's motions for repleading or striking under Rules 12(e) and 12(f). The Court finds that Plaintiffs have pleaded facts sufficient to raise a reasonable expectation that discovery will reveal evidence to support their claim of municipal liability under Section 1983, which is all that is required at this early stage in the proceedings. Because Plaintiffs were pretrial detainees at the time of the alleged violation of their constitutional rights, the Court analyzes their claims under the Fourteenth Amendment, rather than the Eighth Amendment. When evaluating the constitutionality of conditions of confinement that are alleged to violate due process, the "proper inquiry is whether those conditions amount to punishment of the detainee." Plaintiffs allege that they were held for up to several days at a time during which they were exposed to conditions that had a mutually enforcing effect that produced the deprivation of a single, identifiable human need such as food, warmth, or exercise. Plaintiffs also allege that on at least one occasion jail officials explicitly stated that they were keeping the jail uncomfortably cold in order to make prisoners so uncomfortable that they would want to pay up and leave. At this early stage of the proceedings, the Court finds Plaintiffs' allegations are sufficient to state a plausible claim for a due process violation attributable to the City. A full-text copy of the District Court's December 11, 2017 Memorandum and Order is available at https://tinyurl.com/ydygbwbj from Leagle.com. Thomas Baker, Plaintiff, represented by Blake Alexander Strode -- bstrode@archcitydefenders.org -- ARCHCITY DEFENDERS. Thomas Baker, Plaintiff, represented by Jeffrey D. Kaliel -- jkaliel@tzlegal.com -- TYCKO AND ZAVAREEI LLP, Michael-John Voss -- mjvoss@archcitydefenders.org -- ARCHCITY DEFENDERS, Nathaniel Richard Carroll -- ncarroll@archcitydefenders.org -- ARCHCITY DEFENDERS & Thomas B. Harvey -- tharvey@archcitydefenders.org -- ARCHCITY DEFENDERS. Sean Bailey, Plaintiff, represented by Blake Alexander Strode, ARCHCITY DEFENDERS, Jeffrey D. Kaliel, TYCKO AND ZAVAREEI LLP, Michael-John Voss, ARCHCITY DEFENDERS, Nathaniel Richard Carroll, ARCHCITY DEFENDERS & Thomas B. Harvey, ARCHCITY DEFENDERS. Nicole Bolden, Plaintiff, represented by Blake Alexander Strode, ARCHCITY DEFENDERS, Jeffrey D. Kaliel, TYCKO AND ZAVAREEI LLP, Michael-John Voss, ARCHCITY DEFENDERS, Nathaniel Richard Carroll, ARCHCITY DEFENDERS & Thomas B. Harvey, ARCHCITY DEFENDERS. Allison Nelson, Plaintiff, represented by Blake Alexander Strode, ARCHCITY DEFENDERS, Jeffrey D. Kaliel, TYCKO AND ZAVAREEI LLP, Michael-John Voss, ARCHCITY DEFENDERS, Nathaniel Richard Carroll, ARCHCITY DEFENDERS & Thomas B. Harvey, ARCHCITY DEFENDERS. Meredith Walker, individually and on behalf of all others similarly situated, Plaintiff, represented by Blake Alexander Strode, ARCHCITY DEFENDERS, Jeffrey D. Kaliel, TYCKO AND ZAVAREEI LLP, Michael-John Voss, ARCHCITY DEFENDERS, Nathaniel Richard Carroll, ARCHCITY DEFENDERS & Thomas B. Harvey, ARCHCITY DEFENDERS. City of Florissant, Defendant, represented by Blake Daniel Hill - - bhill@kingkrehbiel.com -- KING AND KREHBIEL, LLC & William A. Hellmich -- bhellmich@kkhhb.com.- KING AND KREHBIEL, LLC. FRONTIER AIRLINES: Former FAs Cheated of $40MM Payout ----------------------------------------------------- Rox Laird, writing for Courthouse News Service, reports that retired Frontier Airlines flight attendants filed a federal lawsuit against their former employer December 28 saying they were cheated out of their share of a $40 million payout from a profit-sharing agreement. According to the complaint filed in Des Moines, Iowa, federal court, the $40 million in equity payments compensated Frontier employees who agreed to concessions in a 2011 collective- bargaining agreement when the Denver-based airline was struggling financially. Frontier filed for bankruptcy in 2008 and has since been acquired by a private-equity firm. The 78 plaintiffs, represented by lead attorney Kellie Paschke, Esq. with Skinner & Paschke, claim they were wrongly denied payments because the cutoff date for eligibility was set after their retirements, in violation of the CBA. Flight attendants employed through Jan. 1, 2012, were initially eligible for equity payments, according to the agreement cited in the complaint, but the airline and the Association for Flight Attendants union allegedly modified the deal to restrict eligibility to those who were "continuously employed" through March 15, 2017, after the plaintiffs retired. Paschke said via email that her clients in 16 states "took wage freezes and benefit reductions in order to help Frontier remain afloat at a time when the airline was facing severe financial difficulties." "Frontier's refusal to honor their 2011 agreement, despite record profits in 2016, is disappointing," Paschke said. Frontier did not immediately respond December 29 to a request for comment. The plaintiffs, who claim the airline breached the CBA, say the precise amount due to them must be determined in court. Other flight attendants who were given equity payments received about $62,000 each based on their length of service, Paschke said. GEICO GENERAL: Faces Class-Action Lawsuit Over Unsafe Repairs ------------------------------------------------------------- A lawsuit filed by Leif Hansen on behalf of GEICO customers claims the insurance giant has routinely violated the terms of its auto policies by refusing to pay for essential and critical vehicle repairs. According to the lawsuit, which is seeking class-action status, GEICO has a nationwide, longstanding policy and practice of refusing to pay for electronic vehicle scans, which help determine the safety and repair status of a vehicle. On average, these scans cost $100 and are required or recommended by nearly all major auto manufacturers to ensure auto repairs are safe and complete. Consumer advocate and auto repair shop owner Leif Hansen is the lead plaintiff of the lawsuit, filed December 13 in U.S. District Court. The lawsuit seeks damages for losses incurred by all current and former GEICO policyholders that have suffered collision losses in the past six years. "This is about seeking justice for the millions who have been bullied into claim settlements. Many are left without appropriate compensation and may be unknowingly driving unsafe cars," said Leif Hansen. "As many consumers already know, airbags, steering, braking and accident avoidance systems can be compromised after a collision. Electronic scans play a critical role in ensuring that vehicles are safe to drive." The lawsuit alleges GEICO used its superior knowledge and bargaining position to deprive policyholders from receiving the full benefits of their insurance policies. "Astonishingly enough, GEICO actually may not know how many unsafe cars they've put back on our roads. However, they certainly know how many millions of dollars they've saved by not finding out," said attorney Steven Olson, who is representing Hansen. A PDF accompanying this announcement is available at https://is.gd/JNc1Lk About Leif Hansen: Leif Hansen is the founder and owner of Leif's Auto Collision Centers and a recognized consumer advocate. He opened Olympic Auto in 1991 with one employee, which and founded Leif's Auto Collision Centers in 1994. By 2014, Leif's organization in Oregon and Washington was handling over 40,000 customers a year throughout its four divisions, In 1994, Hansen uncovered a scheme where body shops were giving kickbacks to insurance companies in exchange for referrals. This inspired him to go to the Oregon Legislature to protect consumers from illegal steering practices. He was instrumental in passing Senate Bill 523, which requires insurance companies in Oregon to inform consumers that they have the legal right to choose where their vehicle is repaired. Under the law, insurance companies must inform consumers of their rights prior to making a recommendation for a repair provider. The law also prevents insurance companies from limiting reimbursement when consumers choose a repair provider without a referral from the insurance company. Chris Edmonds Tel: (503) 342-7158 E-mail: Chris@thinkhubbell.com [GN] GENERAL MOTORS: Sued Over Defective Power Lift-Gate Struts ---------------------------------------------------------- Courthouse News Service reports that a class of motorists claims in a federal complaint that defective power lift-gate struts on certain General Motors SUVs unexpectedly fail, causing the lift gate to fall on people trying to access the trunk. GRAIN PROCESSING: Muscatine Residents Can Rejoin Class-Action ------------------------------------------------------------- The Seattle Times reports that hundreds of Muscatine residents who settled lawsuits against a local polluter will be given the chance to void the deals and rejoin a class-action lawsuit. District Judge Tom Reidel says he has "significant doubt" that residents who opted out of the class had a full understanding of deals they signed with Grain Processing Corp. He says attorneys didn't disclose important terms, including that they'd take one-third of the payments. He called GPC's timing in negotiating settlements "highly suspect." The settlements compensated residents based on a formula, including a maximum $22,000 after attorneys' fees. They also required residents to grant GPC easements on their land and give up other legal rights. The court is sending notices to 2,000 residents who opted out to decide whether to rejoin the class. The lawsuit alleges the company spewed pollution over their neighborhoods for decades. Trial's scheduled this year. [GN] HEARST CORP: 2nd Circuit Refuses to Revive Minimum-Wage Claims -------------------------------------------------------------- Courthouse News Service reported that the Second Circuit refused on Dec. 8 to revive minimum-wage claims against Hearst Corp., finding that the five unpaid interns who sued cannot be considered employees under the Fair Labor Standards Act. HYDRO ONE: Certification Denied in Proposed Class Action -------------------------------------------------------- Justice Perell's November 28, 2017, decision in Bennett v Hydro One Inc., 2017 ONSC 7065 [Bennett] to deny certification of a putative class action alleging that Hydro One was systemically negligent in billing customers serves as a powerful reminder to class litigants: where common issues are not a substantial ingredient of putative class members' claims, the common issues requirement will not be satisfied. The variety of potential causes of the putative class members' alleged harm and the fact that any harm suffered by individual class members diverged (if it existed at all) led Justice Perell to conclude the claim lacked the requisite basis in fact to satisfy the common issue requirement. The lack of common issues, coupled with the jurisdiction and powers of the Ontario Energy Board (OEB), also resulted in the conclusion that the preferable procedure requirement for class certification was not satisfied. On these bases, class certification was denied. The Decision The Common Issue Requirement Was Not Met The plaintiff proposed a series of common issues relating to the causes of action advanced: negligence, breach of contract and unjust enrichment. Each cause of action arose from the same factual nexus, namely the alleged systemic negligence of Hydro One in connection with a new billing program. Justice Perell reviewed the established law regarding the common issue requirement. While the requirement sets a "low bar" for plaintiffs, it requires an issue that is a "substantial ingredient of class member's claim and its resolution must be necessary to the resolution of each class member's claim." A common issue need not be dispositive but, through its resolution, it must advance the litigation. Having acknowledged that some basis in fact is required to satisfy the common issue requirement, Justice Perell held that the claim as alleged could not clear the low bar of the common issue requirement. Central to his conclusion was the need for individual inquiries regarding the existence and cause of any billing issues experienced by class members. Justice Perell was critical of the putative class' decision to pursue their claim as one of systemic negligence, because the class could not establish a basis in fact that Hydro One's billing practices caused a common harm to all class members. Justice Perell noted that Hydro One had made a multiplicity of errors (overbilling, under billing, delayed billing, etc.). As the alleged systemic issues produced various results to the class members --some harmful, some neutral and some even beneficial-- individual inquiries would be required. The putative class was unable to provide him with a methodology to extricate the customers who benefitted from the billing errors, or were potentially harmed by a cause that was independent of the new billing program (e.g., through human error). Again, on the record argued before him, he could not escape the conclusion that individual inquiries would be required. The facts alleged in Bennett indicated that while all class members were at risk of being improperly charged, individual examinations of all class members' claims would be needed to determine the cause of any overcharging and whether such overcharging occurred at all. As a result, there was no rational relationship between all class members and Hydro One's alleged systemic negligence, with a further result being that the class definition was overbroad. Justice Perell concluded that the plaintiff's blanket reliance on system negligence as opposed to reliance on a discrete common error thought to have harmed all class members was critical and distinguished Bennett from previously certified claims (e.g., cases involving illegal interest, overtime miscalculation or price-fixing, where there was a common or single adverse consequence for class members). The Preferable Procedure Requirement Was Not Met The absence of common issues also led Justice Perell to conclude that a class proceeding was not the preferable procedure. In addition, Justice Perell held the OEB would be the superior forum for addressing the plaintiff's claims as it would better fulfill both the access to justice and behaviour modification objectives of the Class Proceedings Act. He held that the OEB had the powers to adjudicate the claims, and although individual plaintiffs cannot initiate proceedings at the OEB, he found the OEB had the mandate to address their concerns. Key Takeaways Bennett confirms an important distinction between claims arising from a discrete common error that might harm all class members (which have been certified) from claims of systemic negligence that require individual inquiries about both the existence and nature of defendants' missteps and the impacts on class members (which cannot be certified). Defendants will be well-advised to remember this distinction when devising their responses to putative class actions. While it remains to be seen whether the Bennett decision will be appealed, it accords with the growing trend in favour of more closely scrutinizing common issues to ensure a class proceeding is truly the preferable procedure in resolving putative class members' claims. Systemic negligence must generally result in a common wrong to ground common issues, and where there are no common issues that will advance the litigation, a class proceeding will not be the preferable procedure. [GN] IFINEX: Bitfinex Critic Claims to be Organizing CA Lawsuit ---------------------------------------------------------- Samuel Hain, writing for Bitcoin.com, reports that a prominent Twitter-based critic of Bitfinex, AB33, has announced his intention to initiate a class-action lawsuit against Ifinex -- a BVI based company of which Bitfinex has previously asserted it is owned and operated by. The announcement of AB33's desire to seek litigation against the company came shortly after the surfacing of documents revealing that Ifinex had been struck off from Singapore's Accounting and Corporate Regulatory Authority (ACRA) register. On the 11th of December, AB33 published a post stating his intention to organize a "class action against iFinex." AB33 accuses the exchange of "market manipulation," "misleading patrons," and "publicly trading shares of a private company" illicitly. Most of the accusations likely relate to Bitfinex's conversion of BFX tokens into iFinex shares following the major hack suffered by the exchange during 2016. After losing approximately $72 million USD worth of customer funds to the hack, the exchange chose to socialize losses, resulting in the conversion of 36% percent of all customers' account balances into BFX tokens. Although the exchange promised to pay back all BFX tokens with a corresponding quantity of USD, Bitfinex quickly began to encourage its customers to convert their BFX tokens into equity in the company. A prominent Bitfinex critic currently facing litigation from the exchange has previously alleged that the exchange continued to encourage the conversion of BFX tokens after losing its banking relationships, asserting that the company withheld said information from its customers and investors at the time. AB33 has also accused Ifinex of violating the British Virgin Islands' laws through issuing shares for an entity registered as a Private Limited Company. Analysis of Bitfinex's Recent ETP Flash-Crash News.Bitcoin.com recently reported on sudden flash-crashes of between 60% -- 98% that affected multiple altcoin markets on Bitfinex during the 29th of November. Bitfinex described the events as comprising "panic across multiple markets," claiming that the exchange's "protection measures" prevented the markets from "dropping [. . .] further than they did." The company denied technical issues being the catalyst for the crashes, despite maintaining that the exchange has been under a sustained DDoS attack since late November. A telegram group is reported to have compiled CSV files documenting the trades executed leading up to and during the recent 98% ETP flash-crash. The group's analysis concludes that ETP dropped from $3.42 USD to just $0.11 USD in 2 seconds. Furthermore, someone purchased 12,720 ETP at between $2.751 and $3.40 in the middle of the crash, after which the price returned to $0.11 USD before 12 seconds of total market inactivity on Bitfinex. As such, the group's conclusions have renewed old concerns that Bitfinex's orderbooks may not be as liquid as they appear. Said concerns stem from isolated flash-crashes on Bitfinex during 2015 and earlier that invoked speculation that the company was continuing to import the orderbooks of other exchanges to give the illusion offering greater liquidity -- a deceptive tactic that Bitfinex's Chief Financial Officer, Giancarlo Devasini, has previously admitted the exchange used to practice. Ifinex to be Struck off Singaporean ACRA Register Shortly before AB33 published the post indicating his intention to pursue litigation against Ifinex, documents circulated online indicating that the company was struck off ACRA's register in November. The documentation shows that both Ifinex and Renrenbee LTD (formerly Bitfinex LTD) were struck off on the 6th of November. The ACRA news is seen as significant due to Bitfinex appearing to have not previously informed its customers that the associated companies were registered in Singapore, further intensifying scrutiny surrounding the exchange's alleged lack of transparency. [GN] INC RESEARCH: Vincent Wong Files Securities Class Action -------------------------------------------------------- The Law Offices of Vincent Wong disclosed that a class action lawsuit has been commenced in the United States District Court for the Southern District of New York on behalf of investors who purchased INC Research Holdings, Inc. securities between May 10, 2017 and November 9, 2017. Click here to learn about the case: http://www.wongesq.com/pslra- sb/inc-research-holdings-inc?wire=3. There is no cost or obligation to you. According to the complaint, throughout the Class Period, the Company issued materially false and misleading statements and/or failed to disclose that: (1) the merger with inVentiv Health, Inc. ("inVentiv") was not providing the benefit that defendants stated it would; (2) inVentiv was underperforming; (3) in turn, INCR's 2017 financial performance would be negatively impacted; and (4) as a result, defendants' statements about INCR'S business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. If you suffered a loss in INCR you have until January 30, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. To obtain additional information, contact Vincent Wong, Esq. either via email vw@wongesq.com, by telephone at 212.425.1140, or visit http://www.wongesq.com/pslra-sb/inc- research-holdings-inc?wire=3. Vincent Wong, Esq. is an experienced attorney that has represented investors in securities litigations involving financial fraud and violations of shareholder rights. Vincent Wong, Esq. Tel. 212.425.1140 Fax. 866.699.3880 E-Mail: vw@wongesq.com [GN] INVESTMENT RETRIEVERS: Faces "Barzola" Suit in S.D. of Florida -------------------------------------------------------------- A class action lawsuit has been filed against Investment Retrievers. The case is styled as Adrian Barzola, individually and on behalf of all others similarly situated, Plaintiff v. Investment Retrievers, Defendant, Case No. 1:17-cv-24724-KMW (S.D. Fla., December 29, 2017). Investment Retrievers is a debt buyer and/or debt collector engaged in the business of filing consumer debt collection lawsuits in the Courts of the State of Texas as the alleged assignee of original consumer creditors and/or successors in interest.[BN] The Plaintiff is represented by: Jon Paul Dubbeld, Esq. Berkowitz & Myer 4900 Central Ave St. Petersburg, FL 33707 Tel: (727) 344-0123 Fax: (727) 344-0185 Email: Jon@berkmyer.com JIMMY JOHN'S: 7th Cir. Orders Wage Class-Action to Proceed ---------------------------------------------------------- Dave Stafford, writing for The Indiana Lawyer, reports that Jimmy John's assistant store managers nationwide may proceed with class-action overtime pay litigation against franchisees, the 7th Circuit Court of Appeals ruled December 14, delivering a reversal of an Illinois decision that had restricted their suits. The ruling allows Jimmy John's assistant managers to proceed with suits against the 98 percent of Jimmy John's sandwich shops that are franchises. The ruling arises from three class-action suits from Illinois and Ohio that were consolidated for this ruling from the appellate court in Chicago. The suits generally allege that assistant managers were misclassified as employees exempt from overtime pay in violation of the Fair Labor Standards Act and related state wage-and-hour laws. The suits seek a putative class of all Jimmy John's assistant managers at company-owned stores and franchises, back overtime pay and other damages. The 7th Circuit's ruling reversed an Illinois district court order that had barred plaintiffs from pursuing their complaints against their franchisee employers until claims against the Jimmy Johns corporate defendants had been resolved. The panel held the District Court lacked the authority to enjoin these cases. "Jimmy John's does not cite to a single case in which a non-(Multi-District Litigation) court has enjoined parallel litigation in circumstances like this. Each case that Jimmy John's relies on is distinguishable because they involved MDL proceedings; pending or final class settlements and judgments; duplicative litigation between the same parties; or some combination thereof," Judge Joel Flaum wrote for the panel in In Re: Jimmy John's Overtime Litigation, 17-1655. The panel agreed with the assistant managers that Judge Charles P. Kocoras of the District Court for the Northern District of Illinois blocked litigants from pursuing their cases without considering the traditional factors for granting an injunction and without making required findings of facts and conclusions of law. "The record does not suggest that the franchisee cases were filed to evade the district court's pretrial orders. Rather, plaintiffs repeatedly told the district court they were filing the franchisee cases because the statute of limitations was running against those claims," Flaum wrote, noting plaintiffs had agreed to stay the franchisee cases if the statute of limitations was tolled pending the instant litigation. Headquartered in Champaign, Illinois, Jimmy Johns has more than 2,500 U.S. locations and dozens in Indiana. The 7th Circuit observed in a footnote that just 2 percent of the chain's eateries are company-owned. [GN] JOHNSON COUNTY, IN: Suit Over Public Defender Rules Pending ----------------------------------------------------------- Scott L. Miley, writing for Pharos-Tribune, reports that Kenneth Alford was arrested in January 2015 on charges that included sexual misconduct with a minor. That month, Alford requested a public defender. During the first seven months following his arrest, a court- assigned public defender met twice with Alford, each time in court for a total of two minutes, according to court documents. By September, a new public defender was named. Thirteen months later, Alford was sentenced to 834 days in jail under a plea deal he said he was pressured to accept, according to court documents. Six other men, also arrested in Johnson County, faced similar problems alleging little contact with their public defenders, according to a lawsuit. In many cases, the problems could lead to a complaint over ineffective counsel. But one of Alford's attorneys, Jessica Wegg, said that this was a case of "no counsel." In October 2015, the seven men filed a class-action complaint alleging they were being denied assistance of counsel as guaranteed by the U.S. and Indiana constitutions. If they win their case, it could mean that Johnson County, and perhaps other Indiana courts, must provide public defenders to all indigent defendants. Public defenders in Johnson County, and typically throughout the state, provide the $90 an hour service while running their own private practices. In one Johnson County example, a public defender was assigned 176 felony cases and 32 misdemeanors cases. Of the 176, 140 were resolved in 2014 including 106 by plea agreements, according to the lawsuit. "These deficiencies run so deep and are so pervasive that there is simply no way that the public defense system in Johnson County can result in the constitutionally adequate provision of assistance of counsel," Ms. Wegg said in an October filing for the men. Currently the decision to appoint a public defender is left up to a judge who considers numerous factors including whether attorneys, contracted with a court for public defender services, have room on their schedules to handle a defense. The seven men sued the Johnson County Commissioners as well as the judges who presided over the cases and the public defenders who had contracts to provide services. The defendants filed a motion to dismiss, which was granted in January by Shelby Superior Court. Attorneys for the men sought an appeal, which was heard by three Indiana Court of Appeals judges. In part, attorneys for the Johnson County commissioners and judges say providing public defenders is statutorily not a responsibility of counties but rather the state. Trial courts, as in Johnson County's case, shouldn't interfere with the public defender structure set by the Legislature, the attorneys say. Also, not all of the public defenders in Johnson County are named in litigation "which raises the question whether there could be a systemic challenge," said Attorney William Barrett representing Johnson County. Indiana Court of Appeals Judge Edward W. Najam Jr. rephrased one of Ms Wegg's references in his final remark to attorneys following oral arguments. "If I can borrow a term from the oral argument, this is not a run-of-the-mill case as it comes to us," Judge Najam said. "It's a very interesting case. It has a lot of moving parts and this panel will spend quite some time deciding what the proper disposition will be." [GN] JOHNSON UTILITIES: Accused of Bribery, Fraud -------------------------------------------- Scott Buffon, writing for Courthouse News Service, reports that customers of an Arizona water utility claim in court the company's owner bribed a state regulator for clearance to charge excessive prices. In a federal racketeering class action filed December 18, customers of Johnson Utilities say the water utility's owner, George Johnson, using a lobbyist as a go-between, bribed a former state regulator and his wife to "corruptly charge the public excessive prices." Johnson Utilities is headquartered in Scottsdale and provides water and wastewater service in central Arizona's Pinal County. According to the class action, Johnson planned with lobbyist Jim Norton to funnel $31,500 to former Arizona Corporation Commissioner Gary Pierce through his wife, Sherry. The lawsuit names Johnson, Johnson Utilities, Johnson International, the Pierces, and Norton as defendants. In exchange for the money, Pierce introduced an amendment in 2011 to a previous decision barring Johnson Utilities from a rate increase and tax reimbursement, the class claims. "Gary Pierce and a majority of the ACC voted -- against ACC staff recommendations -- to approve the amendment and grant Johnson the requested rate increase and ability to request income tax reimbursement in the future," the lawsuit says. To funnel the funds to Sherry Pierce, money was sent to a co- conspirator consultant that is unnamed in the indictment. The consultant opened up a separate bank account to pay Sherry Pierce, as an alleged employee of the consulting firm. Payments were made to the Pierces from November 2011 through August 2012, the class claims. Johnson, the Pierces, and Norton were indicted May 23 on conspiracy, bribery and fraud charges. They have all pleaded not guilty, and face trial Jan. 3. The May indictment also claims the Pierces were in discussion of receiving a property worth $350,000 supposedly to be paid for by Johnson. It is unclear if that property was ever received. The class includes a number of Pinal County residents who had their rates increased. "These plaintiffs are looking forward to their opportunity to present to the court the wide array of Mr. Johnson's misconduct, as well as the other defendants," Jeffrey Goulder, Esq. -- jeffrey.goulder@stinson.com -- an attorney for the class, told Courthouse News. "They're trying to do what's best for the entire community." Johnson's actions allegedly arose after an Aug. 24, 2010, decision in which the Arizona Corporation Commission -- on recommendation from its staff -- rejected his request for a wastewater rate increase, and to allow Johnson to have his personal income taxes reimbursed by payments made by Johnson Utilities customers. The original response, in which Pierce was a voting member, unanimously deemed Johnson Utilities' request inappropriate. "It is not appropriate or in the public interest to allow pass- through entities such as [Johnson Utilities] to recover personal income tax expenses through rates. [Johnson Utilities'] request is not reasonable and will be denied," the commission said in its rejection. Goulder says more people may be later added as defendants. "Frankly Mr. Johnson has a reputation of retaliation in lawsuits where he is sued, he oftentimes will file countersuits against those that take him on," Goulder said. "This group of citizens is willing to step up, do the right thing, and try to bring some justice to the people who have suffered these rate overcharges." Johnson Utilities did not respond to requests for comments before publication. The class action seeks class certification, restitution and damages on claims of fraud and violations of the Racketeer Influenced and Corrupt Organizations Act. JP MORGAN: Faces Class Action Over Extended Overdraft Fees ---------------------------------------------------------- Courthouse News Service reported that a federal class action accuses JPMorgan Chase Bank of charging customers "extended overdraft fees" with illegally high rates of interest. JP MORGAN: Court Dismisses "Capozio" FDCPA Claims ------------------------------------------------- The United States District Court for Eastern District of Pennsylvania issued a Memorandum Opinion granting in part and denying in part Defendant's Motion to Dismiss in the case captioned MARK CAPOZIO, et al., Plaintiffs, v. JP MORGAN CHASE BANK, NA, Defendant, Civil Action No. 16-5235 (E.D. Pa.). Presently before the Court is the motion to dismiss filed by Defendant JP Morgan Chase Bank, NA (Chase), pursuant to Federal Rule of Civil Procedure (Rule) 12(b)(6), in which Defendant seeks the dismissal of all of the federal and state claims asserted against it by Plaintiffs. Plaintiffs filed an amended class action complaint against Defendant essentially claiming that Defendant has uniformly engaged in illegal and deceptive business practices in violation of the Fair Debt Collection Practices Act (FDCPA), the Pennsylvania Unfair Trade Practices and Consumer Protection Laws Act (UTPCPL), the Fair Credit Extension Uniformity Act (FCEUA), Real Estate Settlement Procedures Act (RESPA) and Section 524 of the United States Bankruptcy Code, specifically the discharge injunction. In essence, Plaintiffs contend that Defendant failed to honor the parties' negotiated agreement that Plaintiffs' future mortgage and escrow payments would not include a sum for insurance premiums, and as a consequence, Defendant misapplied Plaintiffs' monthly mortgage payments resulting in the incurrence of late fees and other penalties. Plaintiffs' FDCPA Claims The Supreme Court has clarified that Congress did not intend for debt buyers to be considered debt collectors for the purposes of the Act, where the debt buyer attempted to collect debts which the debt buyer owned. Here, in their amended complaint, Plaintiffs allege that Defendant is a debt collector as defined by 15 U.S.C. Section1692a(6)(F)(iii) because Defendant was assigned the Plaintiffs' mortgage while the loan was in default. In light of Henson, however, the mere assignment of the mortgage loan at issue to Chase while the loan was in default does not make Chase a debt collector under the section of the FDCPA on which Plaintiffs expressly rely. Notwithstanding the absence of any allegations in their amended complaint, Plaintiffs argue in their supplemental brief that Defendant is a debt collector' under the first definition as Defendant's main business is the making of loans and the collection of the indebtedness evidenced by its loan portfolio. Even if this allegation was included in the amended complaint, however, it would not satisfy Plaintiffs' pleading requirement with respect to Defendant's requisite role as a debt collector. To the contrary, the inclusion of this purported allegation would merely affirm Defendant's alleged status as the owner of the loan and/or a creditor under 15 U.S.C. Section 1692a(4), and not one of a debt collector. Therefore, in light of the Supreme Court's recent decision in Henson, Plaintiffs have not asserted facts sufficient to show that Defendant is a debt collector" for purposes of the FDCPA. Plaintiffs' FDCPA claims at Count I are dismissed. Plaintiffs' RESPA Claim Premised on Alleged Failure to Respond to a QWR (Count IV) Defendant argues that Plaintiffs' RESPA claim at Count IV must be dismissed because the letter correspondence underlying the claim does not meet the statutory requirements of a Qualified Written Request (QWR). Here, the letter underlying Plaintiffs' RESPA claim includes eight separate requests for information pertaining to Plaintiffs' mortgage loan. With respect to the escrow, Plaintiffs inquired why JP Morgan Chase is escrowing our home owners' insurance policy, and what the escrow advances represent. Plaintiffs' letter, however, does not anywhere state that Plaintiffs believe that this escrow is in error or why Plaintiffs believe it is in error. In their response to Defendant's argument, Plaintiffs concede that the letter on which their RESPA claim is based fails to set forth the reasons why the account is in error. Thus, in the absence of this required information, Plaintiffs' RESPA claim fails. Accordingly, the claim is dismissed. Plaintiffs' Pennsylvania Unfair Trade Practices Claims At Count II, Plaintiffs assert Pennsylvania state law claims for unfair trade practices in violation of the FCEUA and the UTPCPL. Unlike the FDCPA (discussed above), the FCEUA prohibits unfair or deceptive collection practices of both debt collectors and creditors. With respect to creditors, the FCEUA provides, in its relevant part, the following: (5) A creditor may not use any false, deceptive or misleading representation or means in connection with the collection of any debt. (6) A creditor may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph: (i) The collection of any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless such amount is expressly authorized by the agreement creating the debt or permitted by law. In addition, a violation of the FCEUA shall constitute a violation of the Unfair Trade Practices and Consumer Protection Law. Because the FCEUA does not provide individuals with the right to institute private causes of action for violations, individual plaintiffs must use 73 Pa. Cons. Stat. Section 201- 9.2, the remedial provision of the UTPCPL, to obtain relief. Plaintiffs' remaining state law unfair trade practices claims are premised upon Plaintiffs' contention, as alleged in the amended complaint, that Defendant has wrongfully required Plaintiffs' monthly mortgage payments to Defendant to include a sum for insurance premiums as part of escrow despite the parties' negotiated agreement that Plaintiffs' future monthly mortgage payments would not include insurance premiums as part of escrow. Plaintiffs' amended complaint relies upon and attaches a series of correspondence between the parties through their respective counsel and/or representatives prior to final execution of the Loan Modification in which Defendant purports to agree that Plaintiffs' monthly mortgage payment will not include escrow of insurance premiums. In particular, at Paragraph 27 of the amended complaint, Plaintiffs allege that the parties entered into a letter agreement, as evidenced by an attached letter dated December 28, 2015, from Defendant to Plaintiffs (December 28 Letter), through which the parties agreed that homeowner's insurance would not be required to be paid into escrow. The December 28 Letter from Defendant sets forth Plaintiffs' new monthly mortgage payment as follows: "Your new principal and interest payment will be $980.96, plus a monthly escrow amount for taxes and insurance of $516.88, which equals a new total monthly payment amount of $1,497.84. This amount may change if there's an increase or decrease in your taxes or insurance premiums or other escrow items." This letter from Defendant can plausibly be construed as Defendant's written waiver of Plaintiffs' obligation to include fees for insurance premiums for escrow. As such, this Court finds that Plaintiffs' factual allegations, including, in particular, the December 28 Letter from Defendant and the facts surrounding it, sufficiently plead a waiver of the escrow of insurance premiums requirement as permitted by the terms of the Mortgage. In light of this alleged written waiver, if in fact effective, Defendant's alleged misapplication of Plaintiffs' monthly mortgage payments and assessment of late fees and other charges could constitute unfair trade practices under the FCEUA and/or UTPCPL. Defendant's motion to dismiss Count II is denied. Plaintiffs' Regulation X Claim (Count V) At Count V, Plaintiffs assert a RESPA claim for the violation of 12 U.S.C. Section 2605 premised on Defendant's alleged failure to comply with Regulation X, in particular, 12 C.F.R. Section 1024.17. Defendant moves to dismiss this claim solely on the basis of its argument that Plaintiffs were required to pay insurance premiums into escrow. Because this argument is without merit, at this stage of the litigation, Defendant's motion to dismiss Count V is denied. Defendant's motion to dismiss is granted, in part, and denied, in part. Counts I, III, and IV are dismissed in their entirety. Count II is dismissed to the extent it relies upon Defendant's alleged status as a debt collector and/or a violation of the FDCPA only. A full-text copy of the District Court's November 7, 2017 Memorandum Opinion is available at https://tinyurl.com/y86h85k7 from Leagle.com. MARK CAPOZIO, Plaintiff, represented by STUART A. EISENBERG, MCCULLOUGH EISENBERG LLC, 65 West Street Road Suite A-204. Warminster, PA 18974 LINDA CAPOZIO, Plaintiff, represented by STUART A. EISENBERG, MCCULLOUGH EISENBERG LLC. JP MORGAN CHASE BANK, NA, Defendant, represented by JOHN C. GOODCHILD, III -- john.goodchild@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, L.L.P. LG CHEM: Judge Okays $41.5MM Lithium Ion Battery Settlement ----------------------------------------------------------- Courthouse News Service reported that a federal judge on Dec. 22 granted preliminary approval to three settlements in the sprawling lithium ion battery antitrust case: $41.5 million from LG Chem, $24.5 million from Samsung and $4.95 million from NEC Tokin. LIBERTY MUTUAL: Lebanon Settlement Entitled to Full Credit ---------------------------------------------------------- The Court of Appeals of Washington, Division One, issued an Opinion granting Plaintiff's Motion for Declaratory Judgment in the case captioned CHAN HEALTHCARE GROUP, PS, a Washington professional services corporation, Respondent, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY and LIBERTY MUTUAL INSURANCE COMPANY, foreign insurance companies, Petitioners, No. 75541-2-I (Wash. App.). This appeal concerns use by Liberty Mutual Insurance Company of a computerized database to determine the amounts payable for treatments covered by personal injury protection coverage under automobile insurance policies. Washington's PIP statute requires automobile insurers to pay all reasonable and necessary medical expenses incurred by the insured. Insurers must "conduct[] a reasonable investigation" before refusing to pay claims. Liberty sets the benchmark reasonable medical charges payable using the FAIR Health database, reflecting other healthcare provider charges in the same geographic area. Liberty's use of the FAIR Health database was previously challenged in Lebanon Chiropractic Clinic v. Liberty Mutual Insurance Company, a multistate class action lawsuit litigated in Illinois. The class included Washington providers. The lawsuit alleged that Liberty's use of the FAIR Health database was unfair under the Illinois Consumer Fraud and Deceptive Business Practices Act and other states' equivalent acts, including the Washington Consumer Protection Act. Chan, a Lebanon class member, received reasonable notice and did not opt out. In October 2014, the parties in Lebanon reached a proposed class settlement. In January 2015, class member Dr. David Kerbs, a Washington chiropractor, filed an objection to the proposed settlement asserting, among other things, "Lebanon Chiropractic Clinic is an inadequate class representative for Washington providers and has a conflict of interests with Washington providers." Dr. Kerbs argued the conflict of interest was the result of differences between Illinois and Washington's consumer protection statutes. In February 2015, following a fairness hearing, the Illinois court entered a final order and judgment approving settlement and dismissing the case. In the order, the court acknowledged Dr. Kerbs' objection, overruled all objections to the proposed settlement, and determined the named plaintiff was an adequate representative. Dr. Kerbs appealed the judgment to the Appellate Court of Illinois. He specifically challenged the adequacy of representation resulting from conflict between the Illinois and Washington's consumer protection and PIP statutes. In February 2016, the Illinois appellate court affirmed the trial court in an unpublished opinion. In September 2015, while Dr. Kerbs' appeal was still pending in Illinois, Chan Healthcare Group, PS (Chan) filed the current case against Liberty in King County Superior Court. Chan alleged Liberty's reliance on the FAIR Health database constituted an unfair practice under the Washington Consumer Protection Act. Chan moved for a declaratory judgment that Lebanon did not preclude the claims because the class representative was an inadequate representative. Liberty moved for summary judgment seeking dismissal of the case. The superior court declined to give full faith and credit to the Lebanon settlement and found the named plaintiff in Lebanon did not adequately represent the interests of Washington providers. The trial court granted Chan's motion and denied Liberty's motion. Chan asks the Wash. App. to take on the role of the Illinois trial court deciding the issue of adequate representation. But the Wash App. said it does not review de novo whether it would have found adequate representation as the Illinois trial court. Neither does it decide whether it would have affirmed the trial court determination of adequate representation sitting as the Illinois appellate court. And the Wash. App. does not consider whether it would have affirmed the appellate court's decision if it was the Illinois Supreme Court. In conducting a full faith and credit analysis, the Wash. App. said it does not dwell on the precise rationale and analysis used by the sister state to resolve the due process claim. To allow an automatic de novo review by collateral attack whenever lack of due process is alleged would be contrary to full faith and credit principles emphasizing the importance of finality. The scope of collateral attack is narrow. The Wash. App.'s consideration of the argument and materials before the Illinois court is limited to whether the issue at hand was raised, litigated, and decided by that court. Chan contends the issues litigated in Illinois are completely different than the issues raised in Washington. But in Illinois, Dr. Kerbs argued the Lebanon plaintiff was an inadequate representative because differences between the consumer protection and PIP statutes in Washington and Illinois created a conflict of interest. Chan now attempts to revive those same claims that were raised, litigated, and decided in the Illinois trial and appellate courts. Chan's collateral attack fails. The Lebanon settlement is entitled to full faith and credit. Therefore, the Wash. App. reversed. A full-text copy of the Wash. App.'s December 11, 2017 Opinion is available at https://tinyurl.com/ychspom7 from Leagle.com. Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave Sw, Third Floor Ste C, Seattle, WA, 98126-2138. John Michael Silk -- silk@wscd.com -- Wilson Smith Cochran Dickerson, 901 5th Ave Ste 1700, Seattle, WA, 98164-2050, Russell Yager -- ryager@velaw.com -- Vinson and Elkins, 2001 Ross Ave., Ste. 3700, Dallas, TX, 75201-2975. Manuel Berrelez -- mberrelez@velaw.com -- Vinson & Elkins, LLP, 2001 Ross Avenue Suite 3700, Dallas, TX, 75201-2975, Counsel for Petitioners. David Elliot Breskin -- dbreskin@bjtlegal.com -- Breskin Johnson & Townsend PLLC, 1000 Second Avenue Suite 3670, Seattle, WA, 98104, Cynthia J Heidelberg -- cheidelberg@bjtlegal.com -- Breskin, Johnson & Townsend, 1000 2nd Ave Ste 3670, Seattle, WA, 98104-1053, Counsel for Respondents. LIBERTY TAX: Rosen Law Firm Files Class Action Lawsuit ------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of Liberty Tax, Inc. (NASDAQ: TAX) from June 29, 2016 through December 11, 2017, both dates inclusive ("Class Period"). The lawsuit seeks to recover damages for Liberty Tax investors under the federal securities laws. To join the Liberty Tax class action, go to http://www.rosenlegal.com/cases-1254.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Liberty Tax's former CEO John T. Hewitt created an inappropriate tone at the top; (2) the inappropriate tone at the top led to ineffective entity level controls over the organization; and (3) as a result, defendants' statements about Liberty Tax's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 13, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1254.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767- 3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen_firm. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Since 2014, Rosen Law Firm has been ranked #2 in the nation by Institutional Shareholder Services for the number of securities class action settlements annually obtained for investors. Laurence Rosen, Esq. Phillip Kim, Esq. Kevin Chan, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: 212-686-1060 Toll Free: 866-767-3653 Fax: 212-202-3827 Email: lrosen@rosenlegal.com pkim@rosenlegal.com kchan@rosenlegal.com [GN] MACY'S INC: Judge Lets Most Claims Stand in Sale Price Class Suit ----------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge let most claims stand on Dec. 21 in a class action accusing Macy's of advertising bogus "on sale" prices to California consumers. The case is KRISTIN HALEY, et al., Plaintiffs, v. MACY'S, INC., et al., Defendants, Case No. 15-cv-06033-HSG (N.D. Calif.). A full-text copy of the Order is available at https://is.gd/oE4c2V MANHATTAN MINI STORAGE: Faces "Mendizabal" Suit in S.D. of NY ------------------------------------------------------------- A class action lawsuit has been filed against Manhattan Mini Storage, LLC. The case is styled as Maria Mendizabal, on behalf of herself and all others similarly situated, Plaintiff v. Manhattan Mini Storage, LLC, Defendant, Case No. 1:17-cv-10235 (S.D. N.Y., December 31, 2017). Manhattan Mini Storage is NYC's trusted self-storage company with 17 locations.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Joseph H Mizrahi Law PC 337 Avenue W Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com MARDI GRAS: Strip Club Denies Keeping Dancers Off-Books ------------------------------------------------------- Dan Glaun, writing for Mass Live, reports that the Mardi Gras strip club has denied allegations that it underpaid dancers, charged illegal fees to employees and kept workers off the books, responding to a labor lawsuit filed by two former dancers in October. In the suit, former Mardi Gras employees Leah LaRock and Sarah Chartier claimed that the club, after being forced to change its labor practices following a 2010 class action suit, quickly reverted to violating labor laws. Mandatory "house fees" charged to dancers were rebranded as "locker fees," which were assessed even to employees that did not use lockers at the club, the suit claimed. In its answer to the suit, filed on Nov. 17, Mardi Gras flatly rejected all the allegations about its labor practices -- admitting only the already public fact that it settled its 2010 previous lawsuit for $1.8 million. "The allegations are simply untrue and we look forward to defending it," Kelly said in an October interview, shortly after the suit was filed. Kelly declined to comment further on December 14. The suit names Mardi Gras Entertainment, Inc. and its president Anthony L. Santaniello as defendants. Santaniello is the brother of James Santaniello, the strip club operator and one-time federal informant whose company B. S. C. Realty took out a mortgage on the Mardi Gras property in 2009. In an October interview, Larock said dancers would pay cash to managers before they were allowed to work: $35 to $100 for a "locker rental" fee, and $20 to the club's DJ. If they could not front the money it would be taken from that night's tips, she said. "The Locker Rental Fees in this regard constitute a disguised 'fee to work,' which is prohibited by state law," the suit states. House fees are not an uncommon requirement to work in strip clubs, though the practice has been challenged before. A federal lawsuit filed in March claimed that Denver strip clubs exploited dancers in part by charging them to work. LaRock started working at Mardi Gras in 2007 and Chartier in 2011, and both stopped dancing there in 2016. They were classified differently as workers, according to the lawsuit: LaRock received a paycheck at Massachusetts' tipped minimum wage, while Chartier was paid nothing by the club and made money solely on tips. After Mardi Gras settled its 2010 class action, it changed the name of its "house fee" to a "locker fee" but kept charging dancers to work, the suit alleges. "This new name did not change the amount of the fee nor the fact that payment was mandatory," the suit says. The amount allegedly charged exceeded what LaRock earned from her hourly wage, requiring her and other dancers to pay out of their tips. That alleged policy was a violation of state labor law, the suit claims. LaRock and Chartier are suing on behalf of all Mardi Gras employees who worked between 2014 and 2017 and were affected by the fees, numbering at least 500 people, the suit says. The dancers are asking for triple their unpaid wages in accordance with state labor law, plus interest, costs and attorney's fees. Neither were part of the 2010 class action suit. According to series of potential defenses asserted by the club in its response to the suit, the Mardi Gras may raise a number of objections to the claims -- including whether LaRock and Chartier fully worked the hours they were paid for, have a legitimate class action claim or filed a timely lawsuit. "Most of the affirmative defenses raised are standard boilerplate defenses," Larock and Chartier's attorney Raymond Dinsmore wrote to MassLive in response to the club's filing. "The ones that aren't are either spurious or inapplicable to the causes of action that we pleaded." [GN] MARK HJELLE: Faces Orion Property Suit in S.D. of Kansas --------------------------------------------------------- A class action lawsuit has been filed against Mark Hjelle. The case is styled as Orion Property Group, LLC, individually and on behalf of others similarly situated, Plaintiff v. Mark Hjelle, Defendant, Case No. 2:17-cv-02738-KHV-GEB (S.D. Kan., December 29, 2017). The Defendant is an individual.[BN] The Plaintiff is represented by: Brennan P. Fagan, Esq. FaganEmert & Davis LLC 730 New Hampshire, Suite 210 Lawrence, KS 66044 Tel: (785) 331-0300 Fax: (785) 331-0303 Email: bfagan@fed-firm.com - and - William Skepnek, Esq. Skepnek Law Firm, PA 1 Westwood Road Lawrence, KS 66044 Tel: (785) 856-3100 Fax: (785) 856-3099 Email: bskepnek@skepneklaw.com - and - Ryan C. Hudson, Esq. Rex A. Sharp, PA 5301 W. 75th Street Prairie Village, KS 66208 Tel: (913) 901-0505 Email: rhudson@midwest-law.com MIZUHO BANK: Court Reviews Denial of Rule 12 Bid ------------------------------------------------ The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Defendant's Motion for Reconsideration of the denial of its Rule 12(b)(2) Motion in the case captioned GREGORY GREENE, JOSEPH LACK, ANTHONY MOTTO, and GREGORY PEARCE, individually and on behalf of all others similarly situated, Plaintiffs, v. MIZUHO BANK, LTD. and MARK KARPELES, Defendants, No. 14 C 1437 (N.D. Ill.). In this putative class action, Gregory Greene, Joseph Lack, Anthony Motto, and Gregory Pearce allege that Mizuho Bank, Ltd. and Mark Karpeles are liable for financial losses arising from the demise of the Mt. Gox bitcoin exchange. Plaintiffs bring only state law claims, and subject matter jurisdiction lies under the Class Action Fairness Act, 28 U.S.C. Section 1332(d). The complaint states a tortious interference claim against Mizuho on behalf of Motto, Pearce, the Deposit Subclass, and the Withdrawal Subclass and unjust enrichment and fraudulent concealment claims against Mizuho on behalf of Motto and the Deposit Subclass. The complaint's other claims, brought by Plaintiffs on behalf of themselves and the Mt. Gox Class, are against Karpeles only. Three months after the operative complaint's filing, the Supreme Court issued Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017). Bristol-Myers holds that specific personal jurisdiction does not lie over a nonresident plaintiff's claim against a defendant not subject to general personal jurisdiction solely because the non-resident plaintiff's claim is similar, or even identical, to a resident plaintiff's claim in the same suit. The Supreme Court had granted certiorari in Bristol-Myerson January 19, 2017, more than a month earlier, 137 S.Ct. 827 (2017), putting front and center the theory that Mizuho now presses on reconsideration. Yet instead of opposing Plaintiffs' motion on the ground clearly teed up in Bristol-Myers that specific jurisdiction does not lie over Pearce's claims, Mizuho consented to the amendment. And because, as Mizuho admits, pre- Bristol-Myers Seventh Circuit precedent did not foreclose it from pressing that theory, Mizuho could have raised that theory before Bristol-Myers was issued, and it therefore forfeited any argument based on that theory. The court would not have excused the forfeiture if doing so would materially prejudice Pearce and the putative Withdrawal Subclass, but there is no such prejudice here. As far as personal jurisdiction is concerned, Pearce is free under Bristol-Myers to pursue its claim against Mizuho in Pennsylvania. True enough, there appears to be a two-year limitations period on that claim. But Mizuho concedes that American Pipe & Construction Co. v. Utah, 414 U.S. 538, 553-54 (1974), tolled the limitations period from March 14, 2014, when Plaintiffs first named Mizuho as a defendant, through March 7, 2017, when Pearce was added as a named plaintiff, meaning that the statute of limitations has not expired. And should a Pennsylvania court, despite Mizuho's concession here, dismiss Pearce's claim on limitations grounds, this court would entertain a motion to add Pearce back into this case on the ground that excusing Mizuho's forfeiture turned out to materially prejudice him and the Withdrawal Subclass. The court recognizes, as Plaintiffs observe, that having Pearce and the Withdrawal Subclass proceed in Pennsylvania while the rest of the case proceeds in Illinois is sub-optimal from an efficiency standpoint. But Bristol-Myers teaches that such practical problems must yield to the more abstract matter of whether it is legitimate to submit Mizuho to personal jurisdiction in an Illinois court for a non-resident's claims that have no tie to this forum. Mizuho's reconsideration motion is granted. A full-text copy of the District of Court's December 11, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/ydyx99w7 from Leagle.com. Gregory Greene, Plaintiff, represented by Ari Jonathan Scharg -- ascharg@edelson.com -- Edelson P.C.. Gregory Greene, Plaintiff, represented by Christopher Lillard Dore cdore@edelson.com -- Edelson PC, Jay Edelson -- jedelson@edelson.com -, Edelson PC, Robert A. Clifford, Clifford Law Offices, P.C., 120 North LaSalle Street, 31st Floor, Chicago, IL 60602 Steven Lezell Woodrow -- swoodrow@woodrowpeluso.com -- Woodrow & Peluso, LLC, Benjamin Scott Thomassen -- bthomassen@edelson.com -- Edelson P.C., Eve- Lynn J. Rapp -- erapp@edelson.com -- Edelson P.C., John Aaron Lawson -- alawson@edelson.com -- Edelson Pc, Scott Bennett Kitei -- skitei@honigman.com. -- Honigman Miller Schwartz and Cohn LLP & Shannon Marie McNulty, Clifford Law Offices. 120 North LaSalle Street, 31st Floor, Chicago, IL 60602 Joseph Lack, Plaintiff, represented by Ari Jonathan Scharg, Edelson P.C., Steven Lezell Woodrow Woodrow & Peluso, LLC, Eve- Lynn J. Rapp, Edelson P.C., John Aaron Lawson, Edelson Pc & Benjamin Scott Thomassen, Edelson P.C.. Anthony Motto, Plaintiff, represented by Benjamin Scott Thomassen, Edelson P.C. & Eve-Lynn J. Rapp, Edelson P.C.. Gregory Pearce, Plaintiff, represented by Benjamin Scott Thomassen, Edelson P.C. & Eve-Lynn J. Rapp, Edelson P.C.. Mark Karpeles, an individual, Defendant, Pro Se. Mizuho Bank, Ltd., Defendant, represented by Jason A. Frye -- jfrye@nge.com -- Neal, Gerber & Eisenberg, Jeffrey Resetarits -- jeffrey.resetarits@shearman.com -- Shearman & Sterling LLP, Jerome Steven Fortinsky -- jfortinsky@shearman.com -- Shearman & Sterling, Llp, John A. Nathanson -- john.nathanson@shearman.com - - Shearman & Sterling LLP & Jonathan Stuart Quinn -- quinn@nge.com -- Neal, Gerber & Eisenberg. MOISHES MOVING: Faces "Mendizabal" Suit in S.D. of New York ----------------------------------------------------------- A class action lawsuit has been filed against Moishes Moving Systems, LLC. The case is styled as Maria Mendizabal, on behalf of herself and all others similarly situated, Plaintiff v. Moishes Moving Systems, LLC, Defendant, Case No. 1:17-cv-10239 (S.D. N.Y., December 31, 2017). Moishe's Moving Systems is a moving company that offers local and long distance moving services, self-storage, and mobile storage.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Joseph H Mizrahi Law PC 337 Avenue W Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com MORGAN & BROTHER MANHATTAN: Faces "Mendizabal" Suit in S.D.N.Y. --------------------------------------------------------------- A class action lawsuit has been filed against Morgan and Brother Manhattan Storage Company, Inc. The case is styled as Maria Mendizabal, on behalf of herself and all others similarly situated, Plaintiff v. Morgan and Brother Manhattan Storage Company, Inc., Defendant, Case No. 1:17-cv-10237 (S.D. N.Y., December 31, 2017). Morgan and Brother Manhattan Storage Company, Inc. provides moving services.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Joseph H Mizrahi Law PC 337 Avenue W Suite 2f Brooklyn, NY 11223 Tel: (917) 299-6612 Fax: (347) 665-1545 Email: jmizrahilaw@gmail.com MRI INTERNATIONAL: Time to Seek OK of Class Deal Extended --------------------------------------------------------- The United States District Court for the District of Nevada issued an Order for Continuance of Deadline to File Motion for Preliminary Approval of Class Action Settlement in the case captioned SHIGE TAKIGUCHI, FUMI NONAKA, MITSUAKI TAKITA, TATSURO SAKAI, SHIZUKO ISHIMORI, YUKO NAKAMURA, MASAAKI MORIYA, HATSUNE HATANO, and HIDENAO TAKAMA, individually and on behalf of all others similarity situated, Plaintiff, v. MRI INTERNATIONAL, INC., EDWIN J. FUJINAGA, JUNZO SUZUKI, PAUL MUSASHI SUZUKI, LVT, INC., dba STERLING ESCROW, and DOES 1-500, Defendants, Case No. 2:13-cv-01183-HDM-NJK (D. Nev.). On November 17, 2017 the Court ordered Parties to file a motion for preliminary approval of class action settlement no later than December 11, 2017. Mr. Fujinaga raised, for the first time, his concern that, since a receiver has been appointed by the Court in the parallel U.S Securities and Exchange Commission's action against MRI and himself, he believed that he may not be authorized to enter into any settlement on behalf of MRI or himself. On November 30, 2017, and December 7, 2017, Plaintiffs' counsel met and conferred with Receiver's counsel, Michael Lynch, Esq., explaining that the order appointing receiver specifically includes a carve-out provision exempting the present action from the Receiver's control and that, in any event, the settlement is in the best interest of all parties, including the receivership estate. The Parties intend to file a joint motion in the SEC Action requesting direction from the Court, either that the Receiver lacks authority to direct the settlement in this action, or that Judge Mahan order the Receiver to enter into the Class Action Settlement Agreement. A full-text copy of the District Court's December 11, 2017 Order is available at https://tinyurl.com/y7ycsybb from Leagle.com. Shige Takiguchi, Plaintiff, represented by James Edwin Gibbons -- jeg@manningllp.com -- Manning & Kass Ellrod, Ramirez, Trester LLP. Shige Takiguchi, Plaintiff, represented by James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, 9950 W Cheyenne Ave, Las Vegas, NV 89129, USA, Mariko Taenaka -- mt@robertwcohenlaw.com -- Law Offices of Robert W. Cohen, Robert W. Cohen -- rwc@robertwcohenlaw.com -Law Offices of Robert W. Cohen, APC & Steven Jeff Renick -- sjr@manningllp.com -- Manning & Kass, Ellrod, Ramirez, Trester LLP. Fumi Nonaka, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP. Kaoruko Koizumi, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP. Tatsuro Sakai, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP. Mitsuaki Takita, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP. Shizuuko Ishimori, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP, pro hac vice. Yoko Hatano, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP, pro hac vice. Yuko Nakamura, Plaintiff, represented by James Edwin Gibbons, Manning & Kass Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC & Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP, pro hac vice. MRI International, Inc., Defendant, represented by Daniel L. Hitzke -- Daniel.hitzke@hitzkelaw.com -- Hitzke & Associates & Erick M. Ferran, 720 South 7th Street, Suite 300, Las Vegas, NV 89101 Edwin J Fujinaga, Defendant, represented by Daniel L. Hitzke, Hitzke & Associates & Erick M. Ferran. Junzo Suzuki, Defendant, represented by Jeffrey A. Silvestri -- jsilvestri@mcdonaldcarano.com -- McDonald Carano Wilson, Nicolas Morgan -- nicolasmorgan@paulhastings.com -- Paul Hastings LLP, pro hac vice & Paul J. Georgeson -- pgeorgeson@mcdonaldcarano.com -- McDonald Carano Wilson LLP. Paul Musashi Suzuki, Defendant, represented by Jeffrey A. Silvestri, McDonald Carano Wilson, Nicolas Morgan, Paul Hastings LLP, pro hac vice & Paul J. Georgeson, McDonald Carano Wilson LLP. ICAG, INC., Defendant, represented by Jacob A. Reynolds -- freynolds@hutchlegal.com -- Hutchison & Steffen, Mark A. Hutchison -- mhutchison@hutchlegal.com -- Hutchison & Steffen, LLC & Robert T. Stewart -- rstewart@hutchlegal.com -- Hutchison & Steffen, LLC. First Hawaiian Bank, as Trustee of the Junzo Suzuki Irrevocable Trust UAD 7/12/2013, Defendant, represented by Christopher R. Ramos, Vedder Price, LLP, 1925 Century Park East Suite 1900 Los Angeles, California 90067, pro hac vice, Rex Garner -- rex.garner@akerman.com -- Akerman LLP, Ariel E. Stern -- ariel.stern@akerman.com -- Akerman LLP & Lisa M. Simonetti, Vedder Price, LLP, 1925 Century Park East Suite 1900 Los Angeles, California 90067 First Hawaiian Bank, as Trustee of the Keiko Suzuki Irrevocable Trust UAD 7/12/2013, Defendant, represented by Christopher R. Ramos, Vedder Price, LLP, pro hac vice, Lisa M. Simonetti, Vedder Price, LLP, Rex Garner, Akerman LLP & Ariel E. Stern, Akerman LLP. First Hawaiian Bank, as Trustee of the Junzo Suzuki and Keiko Suzuki Irrevocable Life Insurance Trust U/A dtd 5/1/2008, Defendant, represented by Christopher R. Ramos, Vedder Price, LLP, pro hac vice, Rex Garner, Akerman LLP, Ariel E. Stern, Akerman LLP & Lisa M. Simonetti, Vedder Price, LLP. Suzuki Enterprises, Inc. Profit Sharing Plan, Defendant, represented by Gregg D. Zucker -- gregg@foundationlaw.com -- Foundation Law Group, Robert A. Rabbat -- rrabbat@enensteinlaw.com -- Enenstein Pham & Glass & Tess Emily Johnson -- tjohnson@sdfnvlaw.com -- Backus Carranza. Damon Key Leong Kupchak Hastert, Interested Party, represented by Paul D. Alston -- palston@afhi.com -- Alston Hunt Floyd & Ing & Nickolas A. Kacprowski -- nkacprowski@ahfi.com -- Alston Hunt Floyd & Ing. Mary Luszczyk, Material Witness, represented by Mark S. Dzarnoski -- mdzarnoski@gordonsilver.com -- Gordan & Silver, Ltd. MRS BPO: Faces "Abrahamov" Suit in Eastern District of New York --------------------------------------------------------------- A class action lawsuit has been filed against MRS BPO, LLC. The case is styled as Daniel Abrahamov, on behalf of himself and all others similarly situated, Plaintiff v. MRS BPO, LLC, Defendant, Case No. 1:17-cv-07570 (E.D. N.Y., December 29, 2017). MRA BPO, L.L.C. provides business process outsourcing services. The Company offers back office, accounts receivable, and customer relationship management services. MRA BPO serves customers in the United States.[BN] The Plaintiff appears PRO SE. NEW YORK: Court Approves $5MM "Parker" Class Action Settlement -------------------------------------------------------------- The United States District Court for the Eastern District of New York issued an Memorandum and Order granting Preliminary Approval of Class Action Settlement in the case captioned ROY PARKER et al. on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF NEW YORK, Defendant, No. 15 CV 6733 (CLP) (E.D.N.Y.). Roy Parker, on behalf of himself and all others similarly situated, filed a class action Complaint against the City of New York, claiming that the New York City Department of Corrections (NYCDOC) had violated the Constitution by holding pre-trial detainees in solitary confinement or punitive segregation (PSEG) without providing them with due process and for no legitimate purpose. The Class is defined as the named plaintiffs and all people who were confined in PSEG while a pre-trial detainee based on the Old Time Policy at any time between November 23, 2012 and September 16, 2015 (Class). Under the settlement, Class members will receive minimum compensation of $175 per day spent in PSEG while a pre-trial detainee, as a result of the Old Time Policy. Class members who were diagnosed as having a serious mental illness or who were under the age of 18 when they served PSEG time due to the Old Time Policy will receive $200 per day spent in PSEG. Based on the discovery conducted during the litigation, the parties have identified approximately 470 class members and thus, on average, the class members will receive approximately $10,500, with an anticipated total maximum amount paid of $4,963,175. The Stipulation further provides for modest service awards to the named plaintiffs of no more than $500 per person. Plaintiffs' counsel will move for approval of those individual awards at the time the Class moves for final approval of the settlement. The parties represent that the proposed settlement was entered into only after plaintiffs' counsel conducted a thorough investigation, obtained extensive discovery, and analyzed the proper measure of damages and the likelihood of class certification. Counsel conducted interviews with the named plaintiffs and other pretrial detainees, obtained and reviewed over 3,000 pages of documents pertaining to the claims, and conducted a 30(b)(6) deposition of the defendant's employee responsible for implementing the Old Time Policy. Given the presumption of fairness when a class settlement has been reached after arm's-length negotiations between experienced, capable counsel after meaningful discovery, the Court finds that the process of reaching the proposed settlement in this case was procedurally fair. The parties seek to avoid the expense and delay that would result from continuing litigation. Plaintiffs note that continued litigation would require extensive additional discovery, including multiple depositions of defendant's employees, the named plaintiffs, various class members, and NYCDOC representatives, in addition to more document discovery related to the development of and justification for the Old Time Policy. Accordingly, the parties believe that this settlement allows for resolution of the claims, providing significant monetary relief to the Class members in a prompt and efficient manner. Thus, the first Grinnell factor of avoiding potential protracted litigation favors settlement. The reaction of the Class to the settlement may only be evaluated after notice of the proposed settlement has been sent to the Class and the time for objections has passed. In this case, notice of the proposed settlement has not yet been distributed to the Class. Thus, this factor is neutral. The parties believe they have completed a sufficient amount of discovery to evaluate the case and to conclude that the settlement is warranted. Plaintiffs have interviewed current and former NYCDOC detainees and obtained numerous records, sufficient to allow them to understand the Old Time Policy and the impact of this Policy on the detainees. Given the extent of discovery conducted in this case and the time spent between the parties negotiating the settlement, the Court finds that this factor favors approval of the proposed settlement. A trial on the merits would involve resolution of liability issues that have never been litigated to conclusion in this context and would likely involve an appeals process, both of which pose a risk of uncertainty with respect to outcome and duration. Accordingly, the proposed settlement seeks to alleviate these risks. In light of the foregoing, considering the risks of appeal and the prolonged nature of the litigation, the Court finds that this factor favors approval of the proposed settlement. Plaintiffs acknowledges that there is a risk associated with obtaining and maintaining class certification through trial. Since the proposed settlement would eliminate the aforementioned risk, expense, and delay, the Court finds that this factor favors approval. The parties acknowledge that defendant, as a municipality, may be able to withstand a greater judgment. However, the parties contend that this alone should not preclude the Court from finding that the settlement is fair. Accordingly, the Court finds that this factor is neutral and does not prevent approval of the proposed settlement. Plaintiffs contend that the settlement reached here falls within the range of reasonableness in that it provides "more than 'a fraction of the potential recovery. When the proposed settlement provides a meaningful benefit to the class when considered against the obstacles to proving plaintiff's claims with respect to damages in particular, the agreement is reasonable. On these bases, the Court finds that the total award, including the deductions for administrative costs and individual awards to the named plaintiffs, is fair and reasonable. Here, the proposed Class members likely lack the means to prosecute individual actions and employing the class method will achieve economies of scale and avoid the waste of judicial resources and the possibility of inconsistent findings. The Court agrees with plaintiffs that the Rule 23(b)(3) factors weigh heavily in favor of finding that a class action is a superior method of resolving the class members' claims. The Court finds that plaintiffs have satisfied the requirements of Rule 23(a) and Rule 23(b)(3) as to the Settlement Class. Therefore, pursuant to the parties' Stipulation, the Court conditionally certifies a settlement class consisting of all people who, while pretrial detainees at any time between November 23, 2012 and September 16, 2015, were confined in PSEG in a NYCDOC facility pursuant to the Old Time Practice a/k/a the Historical Time Practice. The Court finds that the named plaintiffs are adequate class representatives and that proposed Class Counsel satisfy the criteria of Rule 23(g). Thus, the Court appoints plaintiffs' counsel to represent the class members in this matter. The Court grants the plaintiffs' motions for preliminary approval of the class settlement, for conditional class certification, and for the appointment of plaintiffs' counsel as Class Counsel. A full-text copy of the District Court's December 11, 2017 Memorandum and Order is available at https://tinyurl.com/ybuea8wu from Leagle.com. Roy Parker, Plaintiff, represented by Alexander A. Reinert -- areinert@yu.edu -- c/o Benjamin N. Cardozo School of Law. Roy Parker, Plaintiff, represented by Daniel Erik Mullkoff dmullkoff@chwllp.com, Cuti Hecker Wang LLP & Eric Jason Hecker -- EHECKER@CHWLLP.COM -- Cuti Hecker Wang LLP. Rajab Asep, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. Christopher Chandler, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. Jamal Coleman, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. Allana Dixon, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. Chauncey Miranda, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. Cesar Rivera, on behalf of themselves and all others similarly situated, Plaintiff, represented by Alexander A. Reinert, c/o Benjamin N. Cardozo School of Law, Daniel Erik Mullkoff, Cuti Hecker Wang LLP & Eric Jason Hecker, Cuti Hecker Wang LLP. City of New York, Defendant, represented by Martin John Bowe, The City of New York Law Department & Ryan Budhu, New York City Law Department. NFL: Super Bowl Ticket Pricing Class Action Back in the Game ------------------------------------------------------------ Perry Cooper, writing for Big Law Business, reports that a proposed class action alleging the National Football League is responsible for inflated Super Bowl ticket prices is back in action after the U.S. Court of Appeals for the Third Circuit revived it Dec. 15. Ticket buyers alleged a causal chain explaining how the NFL's withholding of tickets ultimately raised prices on the secondary market, Judge Julio M. Fuentes wrote. That's enough to establish standing to sue, the court said. This is the second time the Third Circuit has considered the case. In January 2016, it found the case should be dismissed because the plaintiffs' claims were based on conjectural assertions of causation and injury. Only 1 Percent for Sale Josh Finkelman bought two tickets to the 2014 Super Bowl in New Jersey on the resale market for $2,000 apiece. The seats had a face value of $800 each. He filed a class action against the NFL, alleging that its ticketing practices violated New Jersey's Ticket Law, which makes it unlawful to withhold more than 5 percent of tickets to an event from sale to the general public. The NFL distributed 99 percent of Super Bowl tickets to league insiders and only made 1 percent available to members of the general public, who had to enter a lottery for the chance to buy tickets, Finkelman alleges. This time around, the Third Circuit said Finkelman established standing because he alleged that insiders who get tickets sell them through third-party brokers who are more likely to charge higher prices. Judges D. Brooks Smith and Leonard P. Stark, sitting by designation from the U.S. District Court for the District of Delaware, joined the opinion. Nagel Rice represented the ticket buyers. Fox Rothschild and Haynes & Boone represented the NFL. The case is Finkelman v. Nat'l Football League, 2017 BL 449256, 3d Cir., No. 16-4087, 12/15/17. [GN] NIGERIA DEPOSIT: Ex-Bankers to File Suit Over N9.8N Entitlements ---------------------------------------------------------------- Ibrahim Apekhade Yusuf, writing for The Nation, reports that barring any last minute hitch, over 10, 000 former bankers who filed a class action suit through the Registered Trustees of the Association of Ex-Staff of Non-Consolidated Banks of Nigeria at the National Industrial Court, Lagos Judicial Division have resolved to file individual suits. Confirming this development in a telephone interview with our correspondent was the counsel to the aggrieved ex-bankers, Bar. Daniel Omotilewa. According to him, this move followed the striking out of the subsisting suit in court by Justice Benedict Kanyip. Expatiating, he said, "We're just been tactical about the whole thing. Definitely we're withdrawing the case to file a fresh one. We came to this court under the umbrella of Registered Trustees of the Association of Ex-Staff of Non-Consolidated Banks of Nigeria and since we foresee a challenge that we may not be able to follow through with this action with our prayers in this court, the wisest thing do under the circumstances was to take a new path," he said. Thankfully, he said: "All the affected members of the group are all in agreement with the new line of action. What we want to do now is to compile the comprehensive list of those affected as we plan the next line of action at the court," he said. The lawyer who hinted that the fresh case will be filed was however quick to admit that the resumed date of hearing of the fresh is at the discretion of the court. Echoing similar sentiments, the chairman of the group, Magnus Maduka, while addressing journalists said: "We decided to restrategise because there are certain development. There is no way we can continue the way we are going and succeed unless we factor in some of the things we know." "We were trying to explore the possibility of not going to court at all these past years believing that the CBN and NDIC and the banks concerned would do the needful. But it does appear that we may have to wait forever and that is why we decided to take the matter before the court to get justice for all the affected parties," Maduka stressed. It may be recalled that the consolidation exercise introduced by the then CBN governor, Prof. Chukwuma Soludo which swept through the banking sub-sector, left some banks defunct as a result of their inability to meet the new N25billion capital benchmark. Consequently, over 10, 000 ex-staff of banks have sued the Nigeria Deposit Insurance Corporation (NDIC) and the Central Bank of Nigeria (CBN) over non-payment of their N9.8billion gratuities 11 years after they were retrenched. Also joined in the suit are Ecobank Nigeria Plc, UBA Plc, Skye Bank Plc and Zenith Bank Plc. The claimants had instituted the action on behalf of the ex-staff of eight banks including: Allstates Trust Bank, Assurance Bank, Eagle Bank, Gulf Bank, Hallmark Bank, Liberty Bank, Metrolpolitan Bank and Trade Bank respectively. A breakdown of the claimants' gratuities showed that Allstates and Hallmark Bank both acquired by Ecobank were owed over N7billion. Besides, UBA which acquired Gulf Bank, Liberty Bank, Metropolitan Bank and Trade Bank owed ex-staff of the respective banks over N1.3bn just as Skye Bank and Zenith Banks were owing over N600m and N22million. [GN] NORTHWESTERN POLYTECHNIC: Class Action Seeks Tuition Refund ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Northwestern Polytechnic University, of Fremont, California, refused to refund tuition after losing its accreditation, and was run for the private benefit of a man and his brother-in-law, a class claims in Alameda County Court. NRG YIELD: Court Junks Shareholders' Suit Against Board Members --------------------------------------------------------------- The Court of Chancery of Delaware issued an Opinion dismissing, for failure to state a claim, the Complaint in the case captioned IRA TRUST FBO BOBBIE AHMED, on behalf of similarly situated Class A stockholders of NRG YIELD, INC., Plaintiff, v. DAVID CRANE, JOHN F. CHLEBOWSKI, MAURICIO GUTIERREZ, KIRKLAND B. ANDREWS, BRIAN R. FORD, FERRELL P. McCLEAN, CHRISTOPHER S. SOTOS and NRG ENERGY, INC., Defendants, Consolidated C.A. No. 12742-CB (Del. Ch.). This action arises out of a reclassification of the shares of NRG Yield, Inc. (Yield) that went into effect in May 2015. Yield's business model is to own a portfolio of income-producing energy generation and infrastructure assets from which dividends can be distributed to public stockholders a model often referred to as a yieldco. Since its formation in 2012, Yield has been controlled by NRG Energy, Inc. (NRG), which manages Yield's day-to-day affairs and is responsible for identifying and placing assets into Yield. A Class A stockholder filed the action asserting that the members of the Yield board breached their fiduciary duties in connection with their approval of the Reclassification, and that NRG breached its fiduciary duty as a controlling stockholder by causing Yield to undertake the Reclassification. Plaintiff argues that the Reclassification was a conflicted transaction that is subject to entire fairness review. According to plaintiff, NRG obtained a unique benefit in the Reclassification that the minority stockholders did not enjoy because the transaction perpetuated NRG's majority stake in Yield at a time when that control was slipping away. Defendants argue that the business judgment rule should apply for two reasons. First, defendants argue that the Reclassification was a pro rata transaction that affected all of Yield's stockholders equally. In other words, defendants contend that NRG did not receive a unique benefit from the Reclassification so that it was not a conflicted transaction. Second, defendants posit that even if, arguendo, the Reclassification was a conflicted transaction, the business judgment rule still applies because the framework set forth in Kahn v. M&F Worldwide, Corp. (MFW) 88 A.3d at 645, should apply to the Reclassification, and plaintiff has failed to plead sufficient non-conclusory facts that any of the elements of that framework was not satisfied. The Court finds that notwithstanding defendants' contentions, plaintiff has pled non-conclusory facts to support a reasonable inference that, whatever may have been the intentions behind Yield's original business model, NRG nevertheless was on the cusp of losing its control position in Yield when it undertook the Reclassification, which admittedly was done to perpetuate that control. Although Delaware law does not impose on controlling stockholders a duty to engage in self-sacrifice for the benefit of minority shareholders, a refusal to require that a controller be altruistic is not relevant to what standard of review should apply to a transaction in which the controller extracts something uniquely valuable to the controller, even if the controller nominally receives the same consideration as all other stockholders. Here, that something was a means for NRG to ensure it would be able to retain voting control of Yield well into the future without abandoning a key aspect of its original business model, using Yield equity to acquire income-producing assets. Thus, plaintiff has pled sufficient facts for purposes of this motion to warrant review of the Reclassification as a conflicted controller transaction that presumptively would be subject to entire fairness review. A full-text copy of the Chancery Court's December 11, 2017 Opinion is available at https://tinyurl.com/ycpp6sbs from Leagle.com. Peter B. Andrews -- pandrews@andrewsspringer.com -- Craig J. Springer -- pandrews@andrewsspringer.com -- & -- David M. Sborz - - dsborz@andrewsspringer.com -- of ANDREWS & SPRINGER LLC, Wilmington, Delaware; Jeremy S. Friedman -- jfriedman@fotpllc.com -- Spencer Oster -- soster@fotpllc.com -- & David Tejtel -- dtejtel@fotpllc.com -- of FRIEDMAN OSTER & TEJTEL PLLC, New York, New York; Jason M. Leviton jason@blockesq.com -- Joel Fleming -- joel@blockesq.com -- of BLOCK & LEVITON LLP, Boston, Massachusetts; Counsel for Plaintiff. William M. Lafferty -- wlafferty@mnat.com -- & D. McKinley Measley -- mmeasley@mnat.com -- of MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Counsel for Defendants John F. Chlebowski, Brian R. Ford, and Ferrell P. McClean. Brian C. Ralston -- bralston@potteranderson.com -- Andrew H. Sauder asauder@potteranderson.com -- & -- Mathew A. Golden -- mgolden@potteranderson.com -- of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Counsel for Defendants David Crane, Mauricio Gutierrez, Kirkland B. Andrews, Christopher S. Sotos, and NRG Energy, Inc. OSI SYSTEMS: ClaimsFiler Reminds Investors of Lead Plaintiff Date ----------------------------------------------------------------- ClaimsFiler, a free shareholder information service, reminds investors that they have until February 5, 2018 to file lead plaintiff applications in a securities class action lawsuit against OSI Systems Inc., if they purchased the Company's securities between August 16, 2013 and December 6, 2017, inclusive (the "Class Period"). This action is pending in the United States District Court for the Central District of California. Get Help OSI Systems investors should visit us at https://www.claimsfiler.com/cases/view-osi-systems-inc- securities-litigation-1 or call to speak to our claim center toll-free at (844) 367-9658. About the Lawsuit OSI Systems and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On December 6, 2017, Muddy Waters Research reported several allegations of corrupt business practices by the Company. Specifically, that an Albania concession was acquired through bribery or other improper measures; an unannounced transfer of 49% of its project company, S2 Albania SHPK, to an Albanian holding company for consideration of less than $5.00; and, based on information from former employees, other unlawful acts including improper sales, bribery and fraud. On this news, the price of OSI Systems' shares plummeted $24.55 per share, or 29.2%. [GN] OSI SYSTEMS: Kaplan Fox Files Securities Class Action Suit ---------------------------------------------------------- Kaplan Fox & Kilsheimer LLP has filed a class action suit in the United States District Court for the Central District of California against OSI Systems, Inc. ("OSI" or the "Company"), and certain of its senior officers. The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder by the SEC, and is brought by Plaintiff on behalf of all persons and entities who purchased the common stock of OSI between August 21, 2013 and December 6, 2017, inclusive (the "Class Period"). The complaint further alleges that throughout the Class Period, Defendants "made materially false or misleading statements, and failed to disclose" material adverse facts about the Company's business, operations, and prospects. "On December 6, 2017, Muddy Waters Research published a report on OSI entitled "OSIS: Rotten to the Core." (http://www.muddywatersresearch.com/research/). Muddy Waters alleges that there was corruption in the 2013 award of OSI's Albania concession. Muddy Waters claims that while the concession "has an estimated top line lifetime value of $150 million to $250 million," OSI "likely bribed somebody by giving half of it away for $4.50" since "[t]here was an unannounced transfer of 49% of OSIS's project company, S2 Albania SHPK, to a holding company owned by an Albanian doctor, for consideration of less than $5.00." Muddy Waters also alleges that its "investigators' interviews with former employees yielded numerous anecdotes indicating OSIS is rotten to the core," including "knowledge of improper sales, cash payments to government officials, fraud in a significant contract, and that OSIS had narrowly avoided being debarred from doing business with the U.S. government." On this news, the Company's stock price declined $24.55 per share, or 29.2%, to close at $59.52 per share on December 6, 2017, on unusually heavy trading volume. If you are a member of the proposed Class, you may move the court no later than February 5, 2018 to serve as a lead plaintiff for the proposed Class. You need not seek to become a lead plaintiff in order to share in any possible recovery. Plaintiff seeks to recover damages on behalf of the proposed Class and is represented by Kaplan Fox & Kilsheimer LLP (www.kaplanfox.com). Our firm, with offices in New York, San Francisco, Los Angeles, Chicago, and New Jersey, has decades of experience in prosecuting investor class actions and actions involving violations of the Federal securities laws. Jeffrey P. Campisi, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Toll-Free Telephone: (800) 290-1952 Telephone: (212) 687-1980 Fax: (212) 687-7714 E-mail address: jcampisi@kaplanfox.com Laurence D. King, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Fax: (415) 772-4707 E-mail address: lking@kaplanfox.com [GN] PARC HOTEL: Faces "Zeng" Suit in Eastern District of New York ------------------------------------------------------------- A class action lawsuit has been filed against The Parc Hotel LLC. The case is styled Qinghai Zeng, on behalf of herself and others similarly situated, Plaintiff v. The Parc Hotel LLC doing business as: Parc Hotel, Defendant, Case No. 1:17-cv-07601 (E.D. N.Y., December 31, 2017). The Parc Hotel LLC is engaged in the hotel business.[BN] The Plaintiff appears PRO SE. PARTSSOURCE INC: "Gembarski" Class Certification Affirmed --------------------------------------------------------- The Court of Appeals of Ohio, Eleventh District, Portage County, issued an Opinion affirming the Court of Common Pleas' granting Plaintiff's Motion for Class Certification in the case captioned EDWARD F. GEMBARSKI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee, v. PARTSSOURCE, INC., Defendant-Appellant, No. 2016-P-0077 (Ohio App.). Edward F. Gembarski alleged that PartsSource took back the commissions earned by Plaintiff and the putative class, and that money has never been returned. And this same alleged wrongful taking of the alleged earned commissions happened to Mr. Gembarski as well as approximately 75-120 other Account Managers. Mr. Gembarski has personal knowledge of the list of Account Managers PartsSource regularly sent out advising that they were having their commissions pulled, and whose complaints were exactly the same as Mr. Gembarski's. Appellee filed a class-action complaint for damages against appellee in the Summit County Court of Common Pleas. The court certified the class and defined the same as follows: All current and/or former PartsSource, Inc. Account Managers and/or employees who are or ever have been subject to Defendant PartsSource, Inc.'s policy and wrongful practice of reducing, withholding or deducting, taking back or 'pulling' earned commissions on sales of medical equipment and/or supplies. Appellant challenges the finding that appellee seeks certification of a class of Account Managers who sold medical equipment and/or parts for Defendant PartsSource, and, in a footnote, observed that Account Managers, Sales Representatives and Customer Service Representatives are used, at times, interchangeably. Appellant counters that, at the certification hearing, appellee testified that the proposed class included account managers, senior account managers, and strategic account managers, but not product managers. Appellant also notes that Charles Koch, its Chief Administrative Officer, testified that different categories of employees were compensated differently so that the titles were not interchangeable. The Ohio App. finds that the objection fails to identify a recognizable error. The class certified by the trial court includes any of appellant's employees who received commissions from the sale of medical equipment and/or supplies and who were subject to an allegedly improper policy of having earned commissions rescinded. Membership in the class does not depend on job title, responsibilities, or overall compensation package. Moreover, Koch testified by deposition that there were a variety of titles that were applied to salespersons who were, nonetheless, paid by commission. Appellant also maintains the magistrate erred when it identified appellee as an Account Representative, not acknowledging that he held other positions and/or titles during his employment with it. These objections are inconsequential to the ultimate issue of class certification. As such, any error is harmless as a matter of law. Appellant argues the magistrate erred in finding that at least 75 persons were in the same position as Mr. Gembarski and earned their commissions in the same manner he did. Appellant counters that appellee testified that he only had personal knowledge of six other employees' compensation plans and, therefore, speculated about the actual number. The Ohio App. discerns no error in this. The magistrate's finding fairly reflects appellee's testimony, which was based on complaints he heard from approximately 50 or 60 other salespersons (100 percent of them) who had commissions pulled back. The magistrate also cited the deposition testimony of Daniel Brenner, the Director of Customer Implementation for appellant, who estimated that there were between 45 and 65 persons who sell medical parts for commission at any given time. Koch in his deposition testimony referred to "140 or so sales reps" who had received reduced commissions over a number of years. The magistrate's finding is therefore adequately supported by the record. Appellant's first assignment of error lacks merit. For its second assignment of error, appellant asserts that the trial court abused its discretion in adopting the magistrate's finding of fact and conclusion of law which by improperly engaging in a merits based inquiry, certifying a proposed class that is unascertainable and ordering PartsSource to ascertain the putative class members. Appellant contends the magistrate relied on impermissible evidence, Disc A, a spreadsheet that appellant produced in response to a discovery response in August 2013 reflecting only commission amounts during a limited period of time that the Company did not reimburse, without any indication of whether customers ultimately paid on those transactions. Appellant contends that Disc A cannot show whether salespersons who had "earned commissions rescinded actually received appropriate reimbursement under the terms of their specific compensation plans" and that appellee impermissibly raised Disc A as evidence in his reply brief in support of class certification. The Ohio App. sees nothing impermissible about the magistrate's consideration of Disc A. Contrary to appellant's characterization, appellee's use of Disc A is not a new argument but evidence duly produced during discovery and introduced into evidence as an attachment to the reply brief prior to the certification hearing, the contents of which were thoroughly discussed in Koch's deposition testimony. The magistrate properly described the contents of Disc A as the identities of well over one hundred (100) Account Managers who have had their alleged earned commissions pulled and whose money has not been returned to them. There was no claim that Disc A resolved issues of damages or ultimate liability. Appellant's second assignment of error lacks merit. Appellant's third assignment of error provides that the trial court abused its discretion in summarily concluding that appellee satisfied Civ.R. 23's seven prerequisites, where the record does not contain competent and credible evidence supporting that conclusion, and where such conclusion is against the manifest weight of the evidence. Here, the magistrate determined the differences in individual class-member's contracts, as well as potential statute-of- limitations problems with individual claims, were insufficient to undermine the conclusion that there were adequate questions of law and/or fact that predominate the class as a whole. The magistrate further determined the class action was superior to other methods of fair and efficient adjudication of the controversy because (1) no other person within the putative class expressed an interest in separately prosecuting the allegations in this matter; (2) appellee is the only current or former employee to have commenced suit relating to the alleged wrongdoing; (3) appellee sought out the forum in which the case was being prosecuted, without objection, thereby suggesting the concentration of the litigation was desirable; and (4) there would be no significant difficulty in managing the class action because each class member has a claim arising from the same nucleus of operative facts and legal theories, all of which can be resolved in a single stroke under the class action mechanism. The foregoing findings are reasonable and, as a result, the trial court did not abuse its discretion in adopting the magistrate's decision certifying the class. Appellant's final assignment of error is without merit. The judgment of the Portage County Court of Common Pleas is affirmed. A full-text copy of the Ohio App.'s December 11, 2017 Opinion is available at https://tinyurl.com/yb7bmug6 from Leagle.com. Thomas J. Connick -- tconnick@connicklawllc.com -- Connick Law, LLC, 25550 Chagrin Blvd., #101, Beachwood, OH 44122 (For Plaintiff-Appellee). Jeffrey J. Wedel -- jjw@zrlaw.com -- Stephen S. Zashin ssz@zrlaw.com, and Helena Oroz -- hot@zrlaw.com -, Zashin & Rich Co., L.P.A., Ernst & Young Tower, 950 Main Avenue, 4th Floor, Cleveland, OH 44113 (For Defendant-Appellant). PAYPAL HOLDINGS: Levi & Korsinsky Files Class Action Lawsuit ------------------------------------------------------------ The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of PayPal Holdings, Inc. ("PayPal") (NASDAQ:PYPL) between February 14, 2017 and December 1, 2017. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Northern District of California. To get more information go to: http://www.zlk.com/plsra-c/paypal-holdings-inc-2?wire=3 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll- free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) TIO's data security program was inadequate to safeguard the personally identifiable information of its users; (2) the vulnerabilities threatened continued operation of TIO's platform; (3) PayPal's revenues derived from its TIO services were thus unsustainable; (4) consequently, PayPal had overstated the benefits of the TIO Acquisition; and (5) as a result, PayPal's public statements were materially false and misleading at all relevant times. On November 10, 2017, PayPal suspended its TIO services, pending a security review, stating that it had discovered security vulnerabilities on the TIO platform and that the TIO data security program did not meet PayPal's standards. Then on December 1, 2017, PayPal disclosed that personal information for roughly 1.6 million TIO users had potentially been compromised as a result of the previously announced security vulnerabilities. If you suffered a loss in PayPal you have until February 5, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky is a national firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. Attorney advertising. Prior results do not guarantee similar outcomes. [GN] PIER 1: $3.5MM Class Settlement in "Mathein" Has Prelim Approval ---------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting Plaintiffs' Motion for Preliminary Approval of Class Action Settlement in the case captioned LAUREN MATHEIN and CHRISTINE SABAS, individually and on behalf of all others similarly situated, Plaintiffs, v. PIER 1 IMPORTS (U.S.), INC., Defendant, No. 1:16-cv-00087-DAD-SAB (E.D. Cal.). The primary issue in this case revolves around whether defendant's Flex Shift policy violated various provisions of the applicable California wage order. As part of that "Flex Shift" policy, associates would report to work, either by phone or in person, before learning if she or he would actually be able to work the flex shift and earn wages. Plaintiffs alleged the following causes of action, inter alia: (i) failure to pay reporting time pay; (ii) failure to pay minimum wage; (iii) failure to maintain required business records; (iv) failure to furnish proper wage statement stubs. The proposed class for purposes of settlement is defined as all current and former non-managerial associates who are/were working for defendants in a store in California from January 20, 2012, up through March 26, 2016. Under the proposed settlement agreement, defendant offers a maximum settlement amount of $3,500,000. The Court found the settlement to be the product of serious, substantial, and arms-length negotiations. The parties conducted meet and confer sessions about the discovery and additional documents were produced as a result. The two class representative plaintiffs and defendant's PMQ were deposed. After a full day session, the parties concluded the formal mediation without a settlement but with signs of clear progress. Afterwards, the parties continued to engage in negotiations and eventually accepted a mediator's proposal. The court is convinced that the parties' negotiations were extensive, involved, and non-collusive, lending weight to the fairness of the settlement and the motion for preliminary approval. To evaluate the fairness of the settlement award, the court should "compare the terms of the compromise with the likely rewards of litigation." Here, the total proposed settlement is for $3.5 million, which will be paid proportionally to all class members based on the number of weeks each class member worked. Plaintiffs state that the overall average payment for all class members will be approximately $375 -- $3.5 million divided by 9,339 class members. After accounting for deducted fees, the overall average payment for all class members will be approximately $236. Given that class members often worked approximately 20 hours per week at an average of less than $10 in pay per hour, plaintiffs estimate that this sum represents about two weeks of pay for an average class member. Given the lack of clear precedent and the novelty of plaintiffs' arguments, the court finds that the proposed settlement award, which recovers approximately 28% of the global damages estimate, is fair and adequate. The court finds the settlement agreement in this case to be fair for the purposes of preliminary approval. The hearing for final approval of the proposed settlement is set for April 17, 2018 at 9:30 a.m., with the motion for final approval of class action settlement to be filed 28 days in advance of the final approval hearing. A full-text copy of the District Court's December 11, 2017 Order is available at https://tinyurl.com/ybbgktgx from Leagle.com. Lauren Mathein, Plaintiff, represented by William Anthony Baird - - tbaird@marlinsaltzman.com -- Marlin & Saltzman, LLP. Lauren Mathein, Plaintiff, represented by Stanley D. Saltzman -- ssaltzman@marlinsaltzman.com -- Marlin & Saltzman, LLP. Christine Sabas, individually and on behalf of all others similarly situated, Plaintiff, represented by Stanley D. Saltzman, Marlin & Saltzman, LLP & William Anthony Baird, Marlin & Saltzman, LLP. Pier 1 Imports (U.S.), Inc., Defendant, represented by Gregory William Knopp -- gknopp@akingump.com -- Akin Gump Strauss Hauer and Feld LLP & Galit Avitan Knotz -- gknotz@akingump.com -- Akin Gump Strauss Hauer & Feld, LLP. PURDUE PHARMA: Parker County Joins Class Action Opioid Lawsuit -------------------------------------------------------------- Maggie Fraser, writing for Weatherford Democrat, reports that Parker County joined 25 other Texas counties in a class action lawsuit against Purdue Pharmaceuticals and other major drug manufacturers for their role in the epidemic of opioid addiction. The Parker County Commissioners Court December 11 unanimously approved both a resolution to join the suit and a retention agreement for the services of Cappolino, Dodd and Krebs L.L.P, one of the two firms pursing the class action suit. "We have a law firm that's contacted us," County Attorney John Forrest said. "They currently have filed litigation against pharmaceutical companies for the prescription of opioids. They have 25 counties under contract, and they're discussing with us if we'd like to join in that class action suit." If successful, the suit would "go back and recover costs" from pharmaceutical companies to cover costs incurred by counties in dealing with the effects of opioid abuse, Forrest said. "Pharmaceutical companies have been prescribing opioids for chronic pain as opposed to acute pain, meaning that they encourage doctors and physicians to continuously prescribe this medication," he said. "Based on studies, they've determined that after 30 days on these prescriptions, individuals become addicted. "It causes all kinds of problems in a community. Specifically, increased medical costs, increased costs due to crimes committed, and problems with these individuals' productivity due to their addiction. These drugs are Fentanyl, OxyContin and those types of prescription drugs that contain opioids." Over-prescription of opioids can be a "gateway" to heroin use, with 80 percent of heroin users beginning their addiction with prescription opioids, according to a report from the National Institute on Drug Abuse. "Once individuals can no longer get prescription drugs, they could potentially get into heroin," Forrest said. "You have overdoses that are documented here in Parker County as a result of heroin use. Apparently, with CPS, we also have this issue with parents who are using heroin or opioids." There is no cost to the county to join the suit, he said, though the firms seeking damages will receive a 25 percent contingency fee from the money recovered if the suit is successful. [GN] PURDUE PHARMA: Harris County to Sue Over Opioid Epidemic -------------------------------------------------------- Courthouse News Service reported that Harris County, Texas, is the latest government body to sue over the national opioid epidemic, blaming Purdue Pharma, Cephalon, Janssen and other drug companies for widespread addiction and the crushing cost of dealing with the crisis. QUDIAN INC: Kaplan Fox Files Class Action ----------------------------------------- Kaplan Fox & Kilsheimer LLP has filed a class action suit in the United States District Court for the Southern District of New York against Qudian Inc. ("Qudian" or the "Company") (NYSE: QD), certain of its senior officers, directors, and underwriters. The complaint alleges that Defendants violated Sections 11 and 15 of the Securities Act of 1933. The complaint is brought on behalf of all persons who purchased Qudian American Depository Shares ("ADS") in the Company's October 17, 2017 initial public offering ("Offering") under or traceable to an Amended Registration Statement filed with the SEC on Form F-1/A on October 13, 2017 and a Prospectus filed with the SEC on October 17, 2017 (collectively the "Registration Statement") (the "Class"). In the Offering, 37.5 million Qudian ADSs were sold at $24.00 per share for gross proceeds of $900 million. The complaint further alleges that the Registration Statement made representations "concerning the Company's risks concerning security breaches and unauthorized access to its customers confidential information" and that these representations "were untrue statements of material facts and omitted material facts necessary to make the statements contained therein not misleading, because the Registration Statement did not disclose that, at the time of the Offering, the Company's security measures for protecting its customers' confidential information had been breached or the Company had experienced unauthorized access to its customers confidential information, exposing the Company to liability related to the loss of the information, litigation and negative publicity." On December 13, 2017, Qudian ADSs closed at $13.98 per share, or more than 41% below the IPO price of $24 per share. If you are a member of the proposed Class, you may move the court no later than February 12, 2018 to serve as a lead plaintiff for the proposed Class. You need not seek to become a lead plaintiff in order to share in any possible recovery. Plaintiff seeks to recover damages on behalf of the proposed Class and is represented by Kaplan Fox & Kilsheimer LLP. Our firm, with offices in New York, San Francisco, Los Angeles, Chicago, and New Jersey, has decades of experience in prosecuting investor class actions and actions involving violations of the Federal securities laws. If you have any questions about this Notice, the action, your rights, or your interests, please e-mail attorneys Jeff Campisi, Esq. -- jcampisi@kaplanfox.com -- or Larry King, Esq. -- lking@kaplanfox.com -- or contact them by phone, regular mail, or fax: Jeffrey P. Campisi, Esq. Laurence D. King KAPLAN FOX & KILSHEIMER LLP Telephone: (212) 687-1980 Fax: (212) 687-7714 E-mail: jcampisi@kaplanfox.com lking@kaplanfox.com [GN] QUDIAN INC: Scott+Scott Files Class Action Suit ----------------------------------------------- Scott+Scott, Attorneys at Law, LLP is notifying investors that a class action lawsuit has been filed against Qudian, Inc. (NYSE: QD) and other defendants, related to alleged violations of federal securities laws. If you purchased Qudian American Depository Shares in or traceable to the Company's initial public offering, held on or about October 18, 2017, or if you purchased Qudian ADS after October 18, 2017, you are encouraged to contact a Scott+Scott attorney at (844) 818-6980 for additional information. Qudian is a Chinese provider of online micro-lending credit products. The Company offers cash credit products which includes funds in digital form and merchandise credit products. Qudian serves customers in China. The lawsuit claims materially false and misleading statements were made regarding Qudian's loan collection practices and the security of its borrowing data. On November 21, 2107, Chinese media reported that the personal information of millions of Qudian customers was allegedly available for sale on the black market. On November 23, 2017, Bloomberg News reported that "Chinese regulators and police are investigating a potential leak of data" from Qudian. Since the IPO, the price of Qudian ADS has dropped precipitously. As of the time of this writing, the Company's ADS are trading at $13.44, approximately 44% lower than the IPO price of $24.00. What You Can Do If you purchased Qudian ADS on or after October 18, 2017, or if you have questions about this notice or your legal rights, please contact attorney Rhiana Swartz at (844) 818-6980, or at rswartz@scott-scott.com. Investors have until February 12, 2018, to move for lead plaintiff. About Scott+Scott Scott+Scott has significant experience in prosecuting major securities, antitrust, and employee retirement plan actions throughout the United States. The firm represents pension funds, foundations, individuals, and other entities worldwide with offices in New York, London, Connecticut, California, and Ohio. Rhiana Swartz, Esq. Scott+Scott, Attorneys at Law, LLP Tel. No.:(844) 818-6980 E-mail: rswartz@scott-scott.com [GN] QUDIAN INC: Lawsuits Claiming False IPO Information --------------------------------------------------- Liu Xiao and Li Mingming, writing for Caixin, reports that a spate of law firms has filed class-action lawsuits against microlender Qudian for alleged false and misleading information in its initial public offering (IPO) documents. Even before tightening measures in the Chinese microlending market, Qudian shares plunged after its CEO gave an interview in October suggesting the firm treated bad loans as charity, putting the firm's stated bad loan ratio of 0.5% into question. In late November, Chinese media reported that personal information of Qudian customers was allegedly compromised and being sold on the black market. Chinese regulators and police are investigating the potential data leak, Bloomberg reported citing people with knowledge of the matter. The first lawsuit filed focuses on whether Qudian failed to disclose that "its loan collection practices were materially deficient and/or nonexistent as the Company treated bad loans as welfare, and . . . .[whether] Qudian's data systems and procedures were materially inadequate to safeguard sensitive borrower data against breach," according to a filing from Faruqi & Faruqi LLP. Since then, Rosen Law Firm, Kirby McInerney LLP; Holzer & Holzer LLC; Bronstein, Gewirtz & Grossman, LLC; Kaplan Fox & Kilsheimer LLP; and Johnson Fistel, LLP have also filed lawsuits against the microlender for the same reasons. The cases were filed in New York. Qudian said the lawsuits have no foundation and that it will mount an active defense, Sina Technology, an online Chinese media outlet, reported on December 14. Qudian didn't reply to Caixin's request for comment. [GN] QUINCY BIOSCIENCE: Brain Health Supplement Class Certified ---------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge certified a class led by Philip Racies that claims Quincy Bioscience misrepresented the effects of its "brain health supplement." A similar claim was made in 2014. R.A. ROGERS: Faces "Leavens" Suit in Eastern District of NY ------------------------------------------------------------ A class action lawsuit has been filed against R.A. Rogers, Inc. The case is styled as Corissa Leavens, individually and on behalf of all others similarly situated, Plaintiff v R.A. Rogers, Inc., Defendant, Case No. 2:17-cv-07588 (E.D. N.Y., December 30, 2017). R.A. Rogers, Inc. is a full service collection agency, specializing in credit unions, banks, medical, property management and commercial collections.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com RAMONA MUNICIPAL: Class Action Over Sewer Service Charge Ongoing ---------------------------------------------------------------- Karen Brainard, writing for The San Diego Union-Tribune, reports that attorneys representing the Ramona Municipal Water District in a class action lawsuit challenging its sewer service charge method were scheduled to file opening briefs on the merits of their case with the state Supreme Court by Dec. 13. RMWD's attorneys with Procopio, Cory, Hargreaves & Savitch LLP of San Diego requested an extension to file the opening briefs, which was granted in November. This was the second extension granted. The state Supreme Court agreed to review the case on Sept. 13 after it was petitioned by the water district for a rehearing following an appellate court decision in the plaintiffs' favor. In Eugene Plantier v. Ramona Municipal Water District, filed Jan. 13, 2014, commercial property owners Eugene Plantier and Orrin Day claim that RMWD's sewer service charge is unlawful and violates California's Proposition 218 because the district imposes a sewer service charge based on equivalent dwelling unit (EDU) value that bears no rational relationship to a parcel's actual wastewater use. The case was bifurcated into two phases with Phase 1 determining whether the plaintiffs had exhausted their administrative remedies by first protesting the fees at the district's Proposition 218 public hearings on proposed sewer fee increases. The trial court found that the plaintiffs had not done so and therefore did not have standing in court. That decision prevented the complaint from moving into Phase 2 to determine whether the sewer charge is lawful. The plaintiffs appealed the ruling and won with the court finding that the Prop. 218 notices state the public hearings are to address protests over proposed fee increases as opposed to protests over the method used to charge the fee. That decision was issued June 13. If the state Supreme Court favors the appellate court ruling, the case will be able to move to the second phase to consider whether the sewer service charge is lawful. If the state's high court agrees with the trial court, the case will not proceed. [GN] RBM OF CALIFORNIA: Westside Families Sue Over Construction ---------------------------------------------------------- Howard Blume, writing for Los Angeles Times, reports that several Westside families and school employees are suing to prevent construction that they say will harm students at Palms Elementary School. The cause for concern is a large apartment development that would be built adjacent to the campus. A fence is all that separates the construction site from the kindergarten play area, potentially exposing the students to toxic dust and other harms, according to the lawsuit filed by attorney Olu K. Orange, Esq. a parent at the school. An additional worry, Orange said, is the potential effect on hearing-impaired students who benefit from a special program at Palms. These students use devices that amplify sounds and spend some of their time in a specially outfitted classroom -- with carpeted walls and a low ceiling -- that is designed to minimize extraneous sounds. "Every distinct noise and ongoing noise interferes with their ability to learn," Orange said. "It hurts them and it causes them pain." Those named in the suit include L.A. City Councilman Paul Koretz and developer Hiro Kobayashi, whose social media profile describes him president of RBM of California, which specializes in real estate development, investment and asset management. A spokeswoman for Koretz, who represents the area, said his office "cannot comment on pending lawsuits" and did not answer additional questions about the development. An attorney for the developer said the project will be positive for the neighborhood. "The proposed residential complex . . . will bring significant investment to the community and is expected to add millions of dollars to the local economy," Elisa Paster said in a statement. The suit asserts that the city and the developer have not followed through with necessary environmental reviews. Paster took issue with that claim, saying that the developer agreed to remove asbestos and lead paint from an old structure on the site when "neighboring buildings are not being utilized." "Throughout the successful entitlement process, which was conducted according to all the city's rules and regulations, the developer has met with school leaders and city officials," her statement said. The lawsuit seeks class-action status, which, if granted, would mean that attorneys would be representing the interests of all students at the school. A spokeswoman for the L.A. Unified School District said the district is aware of the issue. "L.A. Unified is working with Councilman Koretz's office -- as well as parents, teachers, staff, the school community and the developer -- to ensure that the developer will implement mitigation measures that will limit the impacts to students and staff," Barbara Jones said. The district could provide no immediate information on those measures. According to Orange, a demolition team briefly began work December 15 on the site. [GN] REVIVE NAILS SPA: Faces "Hsieh" Suit in Eastern District of NY -------------------------------------------------------------- A class action lawsuit has been filed against Revive Nails Spa Corp. The case is styled as Hui-Ju Hsieh also known as: Ruby Hsieh on behalf of herself and others similarly situated, Plaintiff v. Revive Nails Spa Corp, Chi Onn Lai and Lay Heong Lee, Defendants, Case No. 2:17-cv-07598 (E.D. N.Y., December 31, 2017). Revive Nails Spa Corp. is located in Huntington, New York. This organization primarily operates in the Manicurist, Pedicurist business/industry within the Personal Services sector.[BN] The Plaintiff appears PRO SE. RJ REYNOLDS: Fla. Court Flips Statute of Limitations Ruling ----------------------------------------------------------- The District Court of Appeal of Florida, Fifth District, issued an Opinion reversing the judgment of the Trial Court granting Defendant's Motion for Summary Judgment in the case captioned DEMOND MANSFIELD AS PERSONAL REPRESENTATIVE OF THE ESTATE OF THELMA BROWN, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA AND LORILLARD TOBACCO COMPANY, Appellees, Case No. 5D16-1826 (Fla. Dist. App.), and the case is remanded for evidentiary hearing. Demond Mansfield, as Personal Representative of the Estate of Thelma Brown, deceased, appeals the final summary judgment entered in favor of R.J. Reynolds Tobacco Company and Philip Morris USA (Tobacco Companies) on their statute of limitations defense. Mansfield sued Tobacco Companies, alleging that the decedent, Thelma Brown, purchased and smoked cigarettes containing nicotine that were designed, manufactured, advertised, and marketed by Tobacco Companies and that as a result, the decedent became addicted to these cigarettes. Mansfield asserted that the decedent's addiction to cigarettes caused her to contract illnesses that proximately led to her death. Mansfield further alleged that the decedent was a member of the class that initially brought a class action suit against Tobacco Companies for injuries caused by smoking and that obtained a final judgment for punitive damages. The filing of a complaint is complete once the pleading is delivered to and received by the proper officer. In this case, the proper officer was the Clerk of the Circuit Court in Osceola County. Because the complaint filed in this case bears an Osceola County Clerk of Court date stamp of January 14, 2008, Tobacco Companies moved for summary judgment based on their statute of limitations defense that Mansfield did not file his complaint by the Engle-imposed deadline. The trial court granted the motion and entered the final summary judgment now on review. The Fla. App. held that the effect of a clerk's date stamp on a document is to create a rebuttable presumption that the document was filed on that day. Nevertheless, the clerk's date stamp is not conclusive proof of the filing date and may be rebutted by the submission of competent substantial evidence that the complaint was actually received in the clerk's office by the filing deadline. Here, although the presumption exists that Mansfield's complaint was untimely filed on January 14, Mansfield filed evidence in opposition to Tobacco Companies' motion for summary judgment indicating that on January 11, 2008, the subject complaint and a filing fee check was delivered to the clerk of court in Osceola County and that the clerk of court issued a receipt showing that the complaint was filed by Mansfield against Tobacco Companies on that day. These circumstances present an unresolved question of fact. In Strax, the court ruled that in those rare cases where a paper is delivered to the clerk's office within the jurisdictional time frame but, for some reason, through inadvertence or error is not timely stamped by the clerk, it is appropriate to remand for an evidentiary hearing to determine if the document was timely filed. Accordingly, the Fla. App. remanded the matter back to the trial court for an evidentiary hearing to allow Mansfield the opportunity to rebut the presumption that his suit was filed on January 14, 2008, with competent substantial evidence that the complaint was in fact timely received by the Osceola County Clerk of Court on January 11, 2008. A full-text copy of the Court of Appeals' November 3, 2017 Opinion is available at https://tinyurl.com/ydfa6eol from Leagle.com. Willie E. Gary -- weg@williegary.com -- Donald N. Watson -- dnw@williegary.com -- and Charles L. Scott, Jr., of Gary, Williams, Parenti, Watson & Gary PLLC, Stuart, for Appellant. Geoffrey J. Michael -- geoffrey.michael@apks.com -- of Arnold & Porter LLP, Washington, D.C., Cathy A. Kamm -- ckamm@shb.com -- Daniel F. Molony -- dmolony@shb.com -- and Kristopher J. Verra -- kverra@shb.com -- of Shook, Hardy & Bacon LLP, Tampa, and Jennifer Blues Kenyon -- jbkenyon@shb.com -- of Shook, Hardy & Bacon LLP, Kansas City, Mo. for Appellee, Philip Morris USA. Jason T. Burnette -- jtburnette@jonesday.com -- of Jones Day, Atlanta, GA, Troy A. Fuhrman -- troy.fuhrman@hwhlaw.com -and Marie A. Borland -- marie.borland@hwhlaw.com -- of Hill, Ward & Henderson, P.A., Tampa for Appellee, R.J. Reynolds Tobacco Company. Dawn Giebler Millner -- gieblerd@gtlaw.com -- of Greenberg Traurig, P.A., Orlando, for Appellee, R.J. Reynolds Tobacco Company as successor-by merger of Lorillard Tobacco Company. ROYAL SIAM RESTAURANT: Faces "JinZhong" Suit in S.D.N.Y. -------------------------------------------------------- A class action lawsuit has been filed against Royal Siam Restaurant, Inc. The case is styled as Xin JinZhong and Ruixuan Cui, on behalf of themselves and others similarly situated, Plaintiffs v. Royal Siam Restaurant, Inc doing business as: Royal Siam Thai Cuisine, 1A Royal Thai Cuisine & 1A Anago Sushi, Inc doing business as: Royal Siam Thai Cuisine, Sushi Suki Yorker, Inc. doing business as: Sushi Suki and Sushi Suki New York, Inc. doing business as: Sushi Suki, Defendants, Case No. 1:17-cv-10240 (S.D. N.Y., December 31, 2017). Royal Siam Thai Restaurant is situated in the quaint Milkwood Village in Wilderness, Garden Route. It offers traditional Thai cuisine.[BN] The Plaintiffs appear PRO SE. SAMSUNG CORP: Class Action Over Alleged CRT Price-Fixing Settled ---------------------------------------------------------------- James Neveau, writing for NBC Chicago, reports that Illinois residents who purchased a certain type of television set could be eligible for payments after a class-action lawsuit was settled by the Attorney General's office. Attorney General Lisa Madigan announced that Illinois residents who purchased TV's and monitors with cathode ray tubes (CRT's) will have until 2018 to claim part of a $36 million settlement with manufacturers of the devices. The settlement came amid a lawsuit that claimed companies had illegally conspired to fix prices on the devices, according to Ms. Madigan's office. Samsung, Philips, Hitachi, and LG were all named in the lawsuit and were part of the settlement. "I encourage any Illinois consumers or businesses who bought a television or monitor containing these CRT's to file claims to recover the money they are owed," Ms. Madigan said in a statement. According to a press release, residents who purchased TV's or monitors from Mar. 1, 1995, to Nov. 25, 2007, are eligible for payments under the settlement. The maximum amount that consumers can potentially get back for TV purchases is $20, and $60 for a computer monitor, Madigan's office said. That number could change based on the number of people that file claims, according to the Attorney General. Illinois consumers have until July 12 of 2018 to fill out a claim form as part of the class action settlement. That form can be found on a special website set up by the Attorney General's office. [GN] SAN FRANCISCO, CA: Money Bail Class Action Evidence Inadmissible ---------------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reports that at a hearing on Dec. 12, a federal judge lit into a lawyer challenging San Francisco's bail scheme over evidence she said would be inadmissible in a federal court. Phil Telfeyan with Equal Justice Under Law, arguing the case on behalf of a proposed class of arrestees who cannot afford bail but are otherwise eligible for pretrial release in San Francisco, argued other jurisdictions have effectively used other non- monetary methods to ensure arrestees appear in court. He said in Kentucky, which has had a pretrial release program since 1976, 92 percent of defendants make all future court appearances. This drew a heated response from U.S. District Judge Yvonne Gonzalez Rogers, who wanted to know where he got that figure. "You're asking me to accept that as true but you have no foundation for it," she said. "It seems to me you want to cut corners and you don't understand the rules of evidence and what that means in a federal court. If you think that a district court can just say, 'Hey let me pull something off the internet and view that as true,' if it gets to the Ninth Circuit, do you think the Ninth Circuit will say that judge did his or her job? This is a fact-finding entity." "We're citing scholarly articles," Mr. Telfeyan said. "So what? I'm just supposed to take some academic at their word? Without any examination?" Judge Gonzalez Rogers said, her voice rising in irritation. She said she was loathe to accept an academic study or a law review article as evidence on which to upend "the prevailing system in the United States." In 2015, the nonprofit legal group Equal Justice Under Law brought a federal class action against San Francisco, claiming it unconstitutionally criminalizes poverty by keeping poor arrestees in jail. Lead plaintiffs Riana Buffin and Crystal Patterson spent 29 and 48 hours in jail, respectively, because they couldn't afford bail. The two women were arrested in October 2015 in San Francisco, Ms. Buffin on suspicion of grand theft and Patterson on suspicion of assault. Ms. Buffin's bond was set at $30,000, Patterson's at $150,000. Mr. Telfeyan and Equal Justice Under Law say this wealth-based detention scheme violate the 14th Amendment, and want an injunction prohibiting San Francisco from using a bail schedule to keep people behind bars because they cannot afford to buy their freedom. Judge Gonzalez Rogers said she believes strict scrutiny, the highest standard of review in constitutional matters, should apply to the case. For the city's money bail scheme to survive, it must be justified by a compelling state interest, be narrowly tailored to meet that goal, and there must be no other less restrictive ways of achieving it. "If strict scrutiny applies, the plaintiffs only need show a number of plausible alternatives," Mr. Telfeyan said, noting the goal of future court appearances can be achieved through a risk assessment tool by which arrestees are screened based on a number of factors, from the serious of their crimes to their past criminal convictions. Judges can use that tool to evaluate whether a detainee should remain in jail or be released pending their future court dates, with no money changing hands. Krista Baughman, arguing for the bail industry, said there are other alternatives. "The effectiveness of risk assessment tools is unknown and less effective than bail," she said. Judge Gonzalez Rogers seemed exasperated. She said she was "appalled" by the plaintiffs' motion for class certification, which she said had little to do with the complaint. "I was frankly appalled when I saw that proposed order and I questioned your competency," she told Mr. Telfeyan. "The way you postured this class certification motion led me to think you don't know what you're doing." Mr. Telfeyan apologized, saying the same motion from 2015 had been filed because the judge had previously ruled it untimely. Judge Gonzalez Rogers declined to rule on Dec. 12, and set a tentative bench trial date for Feb. 12. In an interview after the hearing, Mr. Telfeyan said he was looking forward to Gonzalez Rogers' order. "We're going to learn a lot from her order. I'm looking forward to finding what evidence the judge needs," he said, adding he would prefer either summary judgment in favor of the plaintiffs or clarification on what evidence she wants to see at trial. The case comes as California is poised to likely eliminate bail through legislation, and San Francisco City Attorney Dennis Herrera has also said he will not defend the system. Chief Justice Tani Cantil-Sakauye called money bail unsafe and unfair in October, vowing to work with legislators to replace it with a reformed pre-trial scheme. A class action lawsuit is still pending, with the next hearing set Jan. 22. [GN] SCHNIPPER RESTAURANTS: "Alvarez" Has Conditional Certification -------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting Plaintiff's Motion for Conditional Certification in the case captioned MARTIN ALVAREZ a/k/a EDUARDO LOPEZ, individually and on behalf of all others similarly situated, Plaintiff, v. SCHNIPPER RESTAURANTS LLC, SRG1 LLC d/b/a SCHNIPPER'S QUALITY KITCHEN, SRG2 LLC d/b/a SCHNIPPER'S QUALITY KITCHEN, SRG 570 LEX LLC d/b/a SCHNIPPER'S QUALITY KITCHEN, SRG NYP LLC d/b/a SCHNIPPER'S QUALITY KITCHEN, ANDREW SCHNIPPER, and JONATHAN SCHNIPPER, Defendants, No. 16 Civ. 5779 (ER) (S.D.N.Y.). Alvarez brings an action under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) alleging that he and all other similarly situated employees are entitled to unpaid minimum wage and costs for tools of the trade from a chain of Manhattan restaurants operating under the name Schnipper's Quality Kitchen. Plaintiff filed a motion for: (1) conditional certification of a FLSA Collective Action; (2) approval of Plaintiff's proposed notice and consent forms; (3) production by Defendants of contact information for all potential opt-in plaintiffs; (4) approval of the posting of the proposed notice at Schnipper's Quality Kitchen locations; (5) tolling of the FLSA statute of limitations until Plaintiff is able to send notice to potential opt-in plaintiffs; and (6) tolling of the FLSA statute of limitations from November 10, 2016 to the date of this Order due to the parties' participation in the S.D.N.Y. Plaintiff seeks to conditionally certify a collective that spans all non-exempt tipped employees, including bartenders, barbacks, waiters, runners, bussers, and delivery persons, employed at each of the four Schnipper's Quality Kitchen locations spanning a six year time period. Defendants argue that Plaintiff has not met their burden of demonstrating that Plaintiff and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. The Court finds that Alvarez's declaration provides the modest factual showing required to certify a collective action that includes delivery persons. Alvarez asserts, based on his own experiences and conversations with co-workers, that all non- managerial tipped employees employed by Defendants were subject to the same wage and hour policies. With respect to Plaintiff's allegations about other nontipped employees, in the Second Circuit, courts routinely find employees similarly situated 'despite not occupying the same positions or performing the same job functions and in the same locations, provided that they are subject to a common unlawful policy or practice. Plaintiff's allegations with respect to non-delivery workers are sparse. Plaintiff affirms that he often had conversations with three co-workers who were servers at various Schnipper's locations and that from those conversations, he knows that all non-managerial tipped employees employed by Defendants were subject to the same wage and hour policies. These unsupported assertions and conclusory allegations are insufficient to conditionally certify a class. Therefore, Plaintiffs' motion for conditional certification is granted, but given the information presently before the Court, the class shall only include delivery workers. Plaintiff seeks to conditionally certify a collective action dating back six years, because Plaintiff has brought both FLSA and NYLL claims before the Court. Some courts in this Circuit routinely allow parties to list a six year time period on collective action notices when a plaintiff presents claims under both the FLSA and the NYLL, which has a six-year statute of limitations. However, three years is the maximum time period to join FLSA collective actions, and no New York state class action has been certified. It would be confusing to employees who are ineligible for the FLSA opt-in class to receive the opt-in notice, which does not relate to any state law claims. Therefore, the appropriate time period listed on the notice is a period of time dating back three years prior to the filing of the Complaint. Plaintiff has submitted a proposed notice to potential opt-in plaintiffs. Defendant has raised several objections to the notice. The parties are instructed to meet and confer and submit a joint proposed notice within two weeks of the entry of this Order. The parties are also instructed to discuss the best methods to be used to provide current employees of Defendants notice of the lawsuit, including by posting a notice at the four Schnipper's locations or by enclosing notice within a pay envelope. If the parties fail to agree, they are instructed to submit a joint letter explaining the remaining differences. Plaintiff additionally seeks an order directing Defendants to produce the names, social security numbers, titles, compensation rates, dates of employment, last known mailing addresses, email addresses, and all known telephone numbers" of potential opt-in plaintiffs. Defendants argue that this request is overbroad, and that Defendants should only be required to provide names and addresses of potential opt-in plaintiffs. Courts in this District commonly grant requests for the production of names, mailing addresses, email addresses, telephone numbers, and dates of employment in connection with the conditional certification of an FLSA collective action. The Court will therefore grant Plaintiff's motion with respect to names, titles, compensation rates, dates of employment, mailing addresses, email addresses, and telephone numbers. However, Plaintiff has not yet demonstrated the need for the productive of such sensitive information as employees' social security numbers. Plaintiff may renew this request if Plaintiff is unable to effectuate notice on potential opt-in plaintiffs with the information that is produced by Defendants. The Court grants conditional certification of the FLSA claim as a representative collective action pursuant to 29 U.S.C. Section 216(b) on behalf of all delivery persons employed by Defendants at each of their four restaurants located in New York City for the three-year period prior to the filing of the Complaint (collectively, the Covered Employees). The Court grants approval of the distribution of the notice of this FLSA Action to Covered Employees, including a consent form (or opt-in form) as authorized by the FLSA. The Court denies Plaintiff's motion for equitable tolling of the FLSA statute of limitations until such time that Plaintiff is able to send notice to potential opt-in plaintiffs; and the Court denies Plaintiff's motion for equitable tolling of the FLSA statute of limitations for the period during which the parties were engaged in the S.D.N.Y. Mediation Program. A full-text copy of the District of Court's December 11, 2017 Opinion and Order is available at https://tinyurl.com/y8fqbwqh from Leagle.com. Martin Alvarez, on behalf of himself, FLSA Collective Plaintiffs and the Class also known as Eduardo Lopez, Plaintiff, represented by Anne Melissa Seelig -- anne@leelitigation.com -- Lee Litigation Group, PLLC. Martin Alvarez, on behalf of himself, FLSA Collective Plaintiffs and the Class also known as Eduardo Lopez, Plaintiff, represented by C.K. Lee -- cklee@leelitigation.com -- Lee Litigation Group, PLLC. Schnipper Restaurants LLC, Defendant, represented by Jeffrey A. Kimmel -- jak@msf-law.com -- Meister Seelig & Fein LLP, Racquel Crespi Weintraub -- rcw@msf-law.com -- Meister Seelig & Fein LLP & Paul J. Rutigliano -- pjr@msf-law.com -- Meister Seelig & Fein LLP. SRG1 LLC, doing business as Schnipper's Quality Kitchen, Defendant, represented by Jeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP & Paul J. Rutigliano, Meister Seelig & Fein LLP. SRG2 LLC, doing business as Schnipper's Quality Kitchen, Defendant, represented by Jeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP & Paul J. Rutigliano, Meister Seelig & Fein LLP. SRG 570 Lex LLC, doing business as Schnipper's Quality Kitchen, Defendant, represented byJeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP & Paul J. Rutigliano, Meister Seelig & Fein LLP. SRG NYP LLC, doing business as Schnipper's Quality Kitchen, Defendant, represented by Jeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP &Paul J. Rutigliano, Meister Seelig & Fein LLP. Andrew Schnipper, Defendant, represented by Jeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP & Paul J. Rutigliano, Meister Seelig & Fein LLP. Jonathan Schnipper, Defendant, represented by Jeffrey A. Kimmel, Meister Seelig & Fein LLP, Racquel Crespi Weintraub, Meister Seelig & Fein LLP & Paul J. Rutigliano, Meister Seelig & Fein LLP. SCHWANS COMPANY: Faces "Leguette" Suit in E.D. of New York ---------------------------------------------------------- A class action lawsuit has been filed against Schwans Company. The case is styled as Shatequa Leguette, individually and on behalf of all others similarly situated, Plaintiff v. Schwans Company, Schwans Consumer Brands, Inc., Schwans Food Service, Inc. and SFC Global Supply Chain, Inc., Defendants, Case No. 1:17-cv-07599 (E.D. N.Y., December 31, 2017). Schwan's Company, formerly known as The Schwan Food Company, is a privately owned company with approximately 11,000 employees. Based in Marshall, Minnesota, the company sells frozen foods from home delivery trucks, in grocery store freezers, by mail, and to the food service industry.[BN] The Plaintiff is represented by: Joshua Levin-Epstein, Esq. Levin-Epstein & Associates One Penn Plaza, Suite 2527 New York, NY 10119 Tel: (212) 792-0046 Fax: (212) 563-7108 Email: joshua@levinepstein.com SHREVEPORT, LA: Jan. 22 Water Dep't Class Action Hearing Set ------------------------------------------------------------ Melody Brumble and Vickie Welborn, writing for KTBS, report that Shreveport's Water Department still faces scrutiny even though the city's off the hook after a judge tossed out a year-old lawsuit. Judge Ramon Lafitte ruled on Dec. 11 that Shreveport doesn't owe Shreveport businessman Scott Pernici and attorney Michael Wainwright nearly $2 million. They claimed they were due the money as a finder's fee after discovering hundreds of Shreveport's heavy water users were being underbilled. Attorneys representing Messrs. Pernici and Wainwright said on Dec. 12 they'll appeal the ruling, saying in part, "Sand Beach is confident that on appellate review this ruling will be reversed in its entirety." The attorneys said their clients were "shocked" at the judge's decision. Separately, a federal investigation of the city's water billing software contract is ongoing. That review was requested by Mayor Ollie Tyler in 2016. "We know that the Department of Justice has interviewed different persons, and they don't report to us what their status is. We assume that when they complete their review they will notify us of their findings," attorney Julie Lafargue said. Ms. Lafargue said on Dec. 12 the FBI is not investigating the city's Architectural and Engineering Committee contract award activity. An external auditor will conduct a performance audit of the city's water department starting in early 2018. The review will include meters, billing and collections, among other operations. But Shreveport is already moving ahead to fix its water billing system, Ms. Lafargue said. A recommendation for a new billing software company should be coming in about a month. That's when the city plans to interview four companies -- Hansen, Cayenta, Rostech and Advanced. A selection committee will interview those companies in mid-January and then make a recommendation to the mayor. Ms. Largargue doesn't know exactly when the new company would take over but said there would be a transition period with the new software phased in while the existing software is phased out. Meanwhile, the city has been working to correct errors for a year. Ms. Lafargue said the city wants an early warning system - -something akin to a warning lights in a car -- built into the new software. "A light needs to come on in the system to warn our employees there's a problem. The light did not come on, so we're going to a better system, a better software system," Ms. Lafargue said. Still another related lawsuit is pending in federal court. The city filed a breach of contract lawsuit against Systems & Software, the company that generates the water and sewer bills. The city contends the company is to blame for the billing problems because of errors in the way it programmed the tiered rates into the city's computerized system. As a result, the city says about 180,520 customers were billed lower rates, resulting in a loss of $834,774 in revenue. Additionally, an unauthorized change by S&S support analyst to the sewer billing rates resulted in an incorrect billing of 5,785 sewer accounts and loss of $217,342 in revenue. A city employee then discovered the S&S software was not applying a mandatory state fee to all accounts, causing an under collection of $130,000. So the city is seeking a judgment of $1,052,000 in under collection of water and sewer revenue and $130,000 in under collection of fees as a result of S&S's breaches in its contract and maintenance agreements. The billing system "has not functioned properly or as intended by System & Software, Inc. and the city, and these failures have resulted in system wide problems which have affected the city's ability to accurately bill its customers and collect water and sewer revenue," states the lawsuit. The city filed a motion Dec. 8 asking to extend until January and February the deadlines originally set in December for expert witness lists and reports. They blame the delay on the defendant's "document dump" or late production of almost 106,000 electronic pages of documents over the preceding three days. Trial is set for June if the date is not changed. A brief look at the other lawsuits and their status: -- A defamation lawsuit filed by Messrs. Wainwright and Pernici on March 2 was dismissed in September. A judge them to pay $18,832.70 to the city for the city's attorney fees. Wainwright & Pernici have appealed that ruling to the Second Circuit Court of Appeal. -- Mr. Wainwright filed a public records lawsuit in November 2016. A judge ruled that city had satisfied the request and awarded Mr. Wainwright $10,000 to cover attorney's fees. The judge did not order the city to pay damages. -- A class action lawsuit is still pending, with the next hearing set Jan. 22. [GN] SLATER & GORDON: Australian Ct. Approves Class-Action Settlement ---------------------------------------------------------------- Nasdaq reports that Australian law firm Slater & Gordon Ltd said a court had approved a recapitalisation scheme with its senior lenders and another to settle a class-action against the company by shareholders. Slater & Gordon said in a statement it would lodge a copy of the Federal Court of Australia orders approving the schemes with the Australian Securities and Investments Commission (ASIC) on December 15, upon which they would take effect. In 2017, Slater & Gordon reached an in-principle agreement to settle a class-action suit against the company and its directors, as well as related shareholder claims, for A$36.5 million. Slater & Gordon said approval of the recapitalisation deal would lead to implementation of the deal announced in June 2017, whereby its secured lenders would have almost full ownership of the company. [GN] SOUTH AFRICA: Residents Near Coronation Park Consider Suing ----------------------------------------------------------- Northern Natal Courier reports that it is probably the most notorious park in Endumeni. Yet, the complaints from residents living near Coronation Park, on McKenzie and Handley Streets, continue to fall on deaf ears. For years, residents say they have to endure weekly, and now daily parties, accompanied by drinking in public, loud music and piles of litter left behind. Residents say calls to the police and municipality have 'all been ignored'. According to the Magistrate's Court in Dundee, the by- laws which govern offences like drinking in public, public nuisances and littering, were promulgated in 2016. However, residents say their calls to the police and/or municipality 'go largely unanswered' and there appears to be confusion over who should implement the bylaws. Residents who called the Courier this morning, said an 'end-of- year' party moved in and more parties moved in. Residents said they have contacted attorneys to consider drawing up a class action forcing the authorities to either fence in or close park. They say 'the excessive rates that they have to pay cannot be justified as the values of their properties and are being compromised'. Already one bed and breakfast has closed down in the area with the owner saying the continuous public nuisance problem made his establishment unattractive. [GN] STERLING JEWELERS: Faces "Hudson" Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been filed against Sterling Jewelers Inc. The case is styled as Larry Hudson, individually and on behalf of all other persons similarly situated, and on behalf of the general public, Plaintiff v. Sterling Jewelers Inc., an Ohio corporation, Signet Jewelers Limited, a foreign corporation and DOES 1 through 30, inclusive, Defendants, Case No. 2:17-cv-09301 (C.D. Cal., December 29, 2017). Sterling Jewelers is an American specialty jewelry company headquartered in Akron, Ohio. The company was founded in 1910 by Henry Shaw, from LeRoy's Jewelers in Lorain, Ohio.[BN] The Plaintiff appears PRO SE. TEZOS: Hagens Berman Files Suit to Stop Dissipation of ICO Funds ---------------------------------------------------------------- Hagens Berman Sobol Shapiro LLP, has filed a class action in the Northern District of California on behalf of investors to recover the bitcoin (BTC), Ethereum (ETH) and fiat currency paid in the Tezos Initial Coin Offering ("ICO"). The complaint, which names Defendants Dynamic Ledger Solutions, Inc. (DLS), Tezos Stiftung (aka the "Tezos Foundation"), Kathleen Breitman, Arthur Breitman, Timothy Cook Draper, Draper Associates, Johann Gevers, Diego Ponz, Guido Schmitz-Krummacher, Bitcoin Suisse AG, and Niklas Nikolajsen, alleges that Defendants illegally sold unqualified securities in violation of California's Corporate Securities Law of 1968 (Cal. Corp. Code Sec 25110) and California's Unfair Competition Law (Cal. Bus. & Prof. Code Sec 17200 et seq.). In doing so, Defendants collected approximately $232 million USD worth of cryptocurrencies from investors (primarily Bitcoin and Ethereum), now worth over $1.2 billion USD. If you purchased or otherwise acquired the right to purchase TEZOS currency in the Tezos ICO or would like to aid in the investigation with non-public knowledge, contact Hagens Berman Sobol Shapiro LLP. For more information visit: "In light of recent developments, ICO participants want their consideration back and justifiably want action quickly," said Hagens Berman partner Reed Kathrein. "Our new complaint seeks to get that relief as soon as possible, though the international aspect of this scheme presents many hurdles." About Hagens Berman Hagens Berman is a national investor-rights law firm headquartered in Seattle, Washington with 70+ attorneys in 11 offices across the country. The firm represents investors, whistleblowers, workers and consumers in complex litigation. More about the firm and its successes can be found at www.hbsslaw.com. For the latest news visit our newsroom or follow us on Twitter at @classactionlaw. Reed Kathrein, Esq. Hagens Berman Sobol Shapiro LLP Tel. No.: 510-725-3000 E-mail: reed@hbsslaw.com [GN] TEZOS: Lawsuit Seeks Freezing of Foundation Assets -------------------------------------------------- Matthew Allen, writing for Swissinfo.ch, reports that a fourth Tezos lawsuit filed in the United States has called on Californian courts to freeze an estimated $1 billion (CHF990 million) of investor assets sitting in a Swiss-based foundation. Law firm Block & Leviton argues that the recent departure of a Tezos Foundation director and the apparent replacement of the entity's auditor gives weight to its demand for funds, derived from an initial public offering (ICO) in July, to be frozen. "The situation regarding the ICO proceeds has deteriorated further, making irreparable looting an imminent prospect," court filings claim. "Without immediate judicial intervention, Defendants may completely consume the illegally obtained ICO proceeds, leaving Plaintiff and the Class with no remedy." The filings argue that California courts would have the jurisdictional power to freeze assets held by the Swiss-based foundation because the ICO fundraiser was "governed By Federal and California law". Along with the injunction demanding that assets are frozen, Block & Leviton has filed a class action lawsuit, alleging the ICO represented an "unqualified and unregistered" sale of "securities". Tezos Foundation President Johann Gevers is named in the lawsuit, along with two other foundation directors, plus Kathleen and Arthur Breitman, founders of the Tezos project, their company Dynamic Ledger Solutions and venture capitalist Tim Draper, a large investor in Tezos. It also names Bitcoin Suisse, a Swiss crypto financial services firm that recently revealed it has the power to block Tezos Foundation transactions. Bitcoin Suisse founder Niklas Nikolajsen is also named in the lawsuit. Trouble with Tezos The Tezos project has been thrown into turmoil since a row between the Gevers and the Breitmans went public in October. Gevers denies allegations that he attempted to fake the real value of a bonus and has in turn accused the Breitmans of conducting a smear campaign against him. In the meantime, investors and grassroots Tezos supporters have expressed annoyance that the project has become eclipsed by the bitter personal dispute. A group known as the Tezos Community has attracted more than 1,000 signatures to an online petition external link calling for the removal of Gevers. Tezos Community describes itself as an informal network of Tezos supporters. The person who set up the community, says he has no formal affiliation with the Breitmans, or DLS -- and neither is he in their pay. The petition has been signed by Olaf Carlson-Wee, founder of the US Polychain Capital hedge fund that has invested heavily in Tezos. He told swissinfo.ch that he was motivated to add his signature out of frustration that funds are not moving out of the foundation towards developers of the protocol. "By far the most important issue is that the Tezos Foundation has not been efficiently allocating resources and capital to developing the Tezos infrastructure," he said during a telephone interview. "In my opinion, there has been an absurdly slow deployment of capital. It should have been allocated months ago." In August, the foundation statedexternal link: "We are extremely pleased to announce a commitment of $50 million in funding to companies looking to build on the Tezos platform. The innovation and growth of the ecosystem is the top priority of the Tezos Foundation." In September external link, the foundation listed a number of measures it was taking to meet that target. Repeated attempts by swissinfo.ch to get an update on those statements and to determine the size of funds that have actually been allocated to development projects have not been answered by the foundation. [GN] TEZOS: Auditor Resigns Amid Investor Class Action ------------------------------------------------- Silver Miller, a securities fraud and investment loss contingency-fee law firm based in South Florida, working with the Wites Law Firm, was the first law firm to file a class action lawsuit in federal court against troubled blockchain startup Tezos and Arthur and Kathleen Breitman -- the American founders of Tezos who own all of its intellectual property through Dynamic Ledger Solutions (DLS). Tezos raised from investors in a July 2017 Initial Coin Offering (ICO) cryptocurrency assets now valued at more than $1.3 billion but has experienced additional uncertainty this month, as Tezos' outside auditor and one of the three board members tasked with managing the funds Tezos raised have each resigned amidst questionable conduct and escalating litigation. Silver Miller's lawsuit pleads that the Court rescind all investments in Tezos; return to all investors their cryptocurrency; and adjudicate that Tezos, the Breitmans, and DLS violated multiple securities laws when they promoted and conducted the unregistered, pre-functional ICO. According to numerous published reports, the Tezos auditor and Swiss board member's resignations -- along with the ongoing power struggle between the Breitmans and Tezos Chairman Johann Gevers - - are at best likely to cause indefinite delays in the development of the Tezos project. At worst, these power struggles and delays could cause the project to collapse before investors receive any return on their billion-dollar investment. Tezos investors concerned about protecting their investment are urged to contact Silver Miller at 954-516-6000 to join the class action and protect their rights. You can also reach Silver Miller through the firm's website at www.SilverMillerLaw.com or by email at dsilver@silvermillerlaw.com The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. Silver Miller -- http://www.SilverMillerLaw.com-- currently represents the victims in class/group action lawsuits against multiple cryptocurrency exchanges (Cryptsy; Coinbase; Kraken) and is investigating several companies that conducted ICOs within 2017 for potential regulatory violations and misrepresented solicitations. If you have invested in an ICO and are concerned that your investment is in jeopardy or that you have been defrauded, contact Silver Miller for a no-cost, no-obligation consultation to discuss your legal rights. [GN] TIME INC: Shareholders File Class Action Over Meredith Merger ------------------------------------------------------------- Josh Russell, writing for Courthouse News Service, reported that shareholders filed a federal class action challenging Time Inc's proposed $2.8 billion sale to the Koch-backed Meredith Corporation. Represented by the firm WeissLaw, lead plaintiff Joel Rosenfeld accuses Time's board and executive of failing to disclose conflicts of interest for Time insiders and its financial adviser Morgan Stanley. Only Time, its top executives and board are named as defendants -- not Meredith or Morgan Stanley. Iowa-based Meredith owns television stations that reach 12 million U.S. households. Its women- and lifestyle-focused magazines and websites include Better Homes & Gardens, Family Circle and Allrecipes. Time has its eponymous magazine, Sports Illustrated, People, Fortune and Entertainment Weekly, boasting monthly engagement of more than 230 million users globally. When Time announced the merger on Nov. 26, 2017, it touted the $18.50 per-share price as a 46 percent premium over the Nov. 15, 2017, closing price. But shareholder Rosenfeld says Time insiders will reap a substantial financial windfall under terms of the merger agreement that convert all unvested equity-based awards held by company executives into right-to-receive cash payments. Richard Battista, the media empire's CEO, stands to reap $6.2 million in cash payouts, while three other top executives would each garner more $2 million. If fired after the merger, Mr. Battista would walk away with more the $15 million, the complaint alleges. Golden parachutes would also lead other Time executives to split at least $20 million if they are fired after the acquisition, according to the complaint. The complaint further accuses Time of failing to disclose the company's unlevered free-cash flows for 2017 through 2022, and not disclosing the line items utilized to calculate the Time's unlevered free cash flows, including adjusted operating income before depreciation and amortization, stock-based compensation, taxes, capital expenditures, and changes in net working capital. Meredith received $650 million in financial backing from Koch Equity Development, the private-equity arm of Koch Industries, the energy conglomerate of the billionaire Koch brothers known for their advocacy for conservative causes. Meredith has maintained that Koch will not get a board seat or influence editorial operations. Representatives for Time and Meredith did not respond to request for comment on Dec. 19. Mr. Rosenfeld seeks class certification, an injunction against the merger, and rescission and damages if it is completed. He is represented by Richard Acocelli -- racocelli@weisslawllp.com -- at WeissLaw in Manhattan. TOSHIBA CORP: Wins Summary Judgment in Price-Fixing Class Action ---------------------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that in a $250 million antitrust class action on Dec. 18, a federal judge dealt a blow to indirect buyers of optical disk drives, granting summary judgment to Samsung, Toshiba and others in a long-running conspiracy case accusing them of fixing prices around the world. U.S. District Judge Richard Seeborg found that the indirect purchasers failed to prove that the defendants overcharged direct purchasers for the drives, and that the direct purchasers passed on the overcharges to them. "Even if no evidence existed to the contrary, this single piece of secondary evidence from the deposition testimony of one corporate representative falls woefully short of meeting IPPs' burden to show proof of pass-through," Judge Seeborg wrote. A slew of plaintiffs in 2010, including HP, accused disk-drive makers of bid-rigging and price-fixing in a scheme that gave them control of 90 percent of the optical disk drive market. It allowed them to make more than $45 billion between 2004 and 2008, the class claimed. The Department of Justice revealed in 2009 that it was investigating antitrust violations in the optical disk drive industry. Hitachi-LG Data Storage pleaded guilty to criminal antitrust violations paid a $21.1 million criminal fine. Some of its employees went to prison. Indirect purchasers' attorney Jeff Friedman, with Hagens Berman Sobol Shapiro in Berkeley, was disappointed with the Dec. 11 ruling. "The court found we had presented sufficient evidence of a longstanding price fixing conspiracy. It's a shame that sometimes our system appears to let wrongdoers get away with illegal behavior and rewards their efforts to avoid responsibility," he said in an email. Judge Seeborg found that the indirect buyers failed to show an industry-wide conspiracy. They showed that the defendants probably targeted only Dell and HP. Their best evidence of an overarching conspiracy consisted of pricing charts that indicated the defendants targeted Dell, HP, Lenovo, IBM and Acer. But much of the evidence barely mentioned the last three companies, and some contained pricing information only for Dell, Judge Seeborg found. Judge Seeborg did grant summary judgment on the buyers' failure to prove pass-through, rejecting deposition testimony of a corporate representative for Circuit City and a report from the plaintiffs' expert, Dr. Kenneth Flamm. "While he displays in theory how pass-through could have worked, his expert report does not identify and cannot substitute the necessary record evidence to support that it actually occurred in this case," Judge Seeborg wrote. "The evidence that Dr. Flamm points to is often tangentially related and at best, of uncertain application to the pass-through issue," he added. Also on Dec. 11, Judge Seeborg granted summary judgment against Acer, finding it had not proved the defendants targeted it in a conspiracy. He also granted summary judgment against the bankruptcy trustees of Circuit City and Radio Shack, for failing to prove they had been harmed by the alleged conspiracy. Judge Seeborg found that the Foreign Trade Antitrust Improvements Act precludes claims based on Category 1 sales -- foreign sales to foreign consumers -- because they fall outside the scope of federal and state antitrust laws. But Category 2 sales -- foreign sales to consumers in the United States -- and Category 3 sales -- domestic sales to consumers in the United States -- may proceed for the defendants remaining in the indirect purchaser and Acer cases. Those defendants in the omnibus order include Samsung and Toshiba. Category 1 sales account for about 36 percent of Dell's optical disk drive purchases and about 60 percent of HP's purchases. Category 2 sales account for about 26 percent of Dell's purchases and about 28 percent of HP's purchases. Category 3 sales account for about 38 percent of Dell's purchases and about 12 percent of HP's purchases. Judge Seeborg so far has awarded $180 million in class action settlements to indirect purchasers in the multidistrict litigation. In November he granted final approval of a $50.5 million settlement with Philips and Pioneer. In December 2016, he granted final approval of a $124.5 million settlement with Sony, Panasonic, NEC and Hitachi-LG. Direct buyers, who ended their litigation last year, have been awarded nearly $75 million. Samsung is represented by Ian Simmons -- isimmons@omm.com -- with O'Melveny & Myers in Washington, D.C., and Toshiba by Belinda Lee -- belinda.lee@lw.com -- with Latham & Watkins in San Francisco. They could not be reached for comment after business hours on Dec. 18. TOYOTA MOTOR: Class Action Over Soy-Based Wiring Ongoing -------------------------------------------------------- Jennifer Titus, WTSP, reports that have you looked under your car's hood lately? You may want to as more people say rodents have made it their unlikely home. According to lawsuits filed against major car manufacturers, it's thanks to your car's new wiring that is attracting their hungry bellies. Boris Itric has been a mechanic for more than 50 years, so when he looks under a car hood, "This one is damaged a lot," he said. He knows instantly whether the wires here have been chewed. "Right here there were bite marks," says Mr. Itric. Mr. Itric says this is something he says is common and not biased to just one type of car. He's been seeing this type of damage for years. This lawsuit 10 investigates got their hands on against Toyota claims that it's happening more because of the soy based materials in the wiring now being used. "Soy is a food product and arguably soy is delicious to rodents and what we alleged is it attracts a high number of rodents and they chew through the wires and it disables cars," says Brian Kabateck an attorney with Kabateck Brown Kellner LLP, the firm who is representing the class action lawsuit. Names on both lawsuits are from car drivers all over the country. We also have photos they say showing the damage these rodents cause. These ones are from a Florida woman and her Toyota where you can clearly see bite marks. "We're talking thousands of dollars to fix these repairs," says Mr. Itric. "We're not sure why manufacturer started using soy based but we believe it was because it was good for environment," says Mr. Kabateck. Mr. Kabateck says it's not good for the car owner's pocketbook as this problem isn't covered under warranty. "Wire gets completely chewed through," says Mr. Kabateck. So Mr. Kabateck says he only wants to see Toyota make things right. "All we are asking in this case if people paid money out of their pocket give them their money and update the warranty," says Mr. Kabateck. In a statement from Toyota: "While we cannot comment on this litigation, we can say that rodent damage to vehicle wiring occurs across the industry, and the issue is not brand- or model-specific. We are currently not aware of any scientific evidence that shows rodents are attracted to automotive wiring because of alleged soy-based content. " Many insurance policies do cover your wiring getting fixed. The only problem, owners are still left with the deductible. How to prevent this from happening: There is anti-rodent tape that you can find online at stores like Walmart and Amazon where you can wrap it around your wires. It costs around $20. Another solution, is also fox urine. You can pick it up at many hardware and hunting stores. You just sprinkle it in the parking spot before you park your car and it scares away rodents because they think there's a predator nearby. [GN] UNITED STATES: Veteran Files Class Action Over Radiation -------------------------------------------------------- Amelia Wigton, writing for CCHeadliner.com, reports that an 81-year-old Nixa man is at the forefront of a cause he hopes will help other veterans and their widows. On Dec. 11, Victor Skaar, a retired U.S. Air Force chief master sergeant, filed a request with the U.S. Court of Appeals for Veterans Claims in Washington, D.C., challenging the refusal of the U.S. Department of Veterans Affairs to provide disability compensation to veterans exposed to ionizing radiation. "I've been working on this since '82. I'm just so proud that we're getting the attention. It's been very emotional," Mr. Skaar told the Headliner News. "The attorneys have been very up front with me. Nothing is certain in law. We may be denied and everything's over. But they're trying for us and they are very encouraging in their conversation." The "they" Mr. Skaar is referring to are Yale Law School students with the Veterans Legal Services Clinic. The group filed the proposed nationwide class action lawsuit, saying the VA needs to provide disability compensation to veterans exposed to ionizing radiation after a Jan. 17, 1966, mid-air collision of Air Force planes that released four hydrogen bombs over Palomares, Spain. According to a release from the Yale Veterans Legal Services Clinic, the Palomares 'Broken Arrow' incident irradiated the Spanish countryside with plutonium dust after two of the bombs' non-nuclear explosives detonated on impact. In the following months, the U.S. military ordered approximately 1,600 service members to the site to search for airplane and bomb parts and remove irradiated crops and soil. "The VA refuses to recognize Palomares as a 'radiation-risk' activity, and relies on a scientifically flawed methodology to systematically deny Palomares veterans the benefits other nuclear veterans receive," the release says. "A recent report from Dr. Frank von Hippel, a senior research physicist and professor of public and international affairs emeritus at Princeton University concludes, 'it appears that the dose estimates that have been made for the Palomares veterans are extremely uncertain and, in many cases, the maximum doses have been grossly underestimated.'" "No one's listening to us about it and taking our word for what happened," Mr. Skaar said about the veterans who worked the Palomares site. "There's no question about the fact we were there and no question about the fact we were exposed." Mr. Skaar, who was 29 years old at the time, helped clean up the Palomares site. He was in charge of detection and decontamination and helped recover more than 5,500 55-gallon drums over the course of 62 days. Mr. Skaar said plutonium was released throughout the area and, "if you inhale it, which we did, it is highly radioactive, highly hazardous." "When we were trained in medical disaster control -- in all the training manuals when it talked about radiation and plutonium, it said there was no such thing as an insignificant amount of exposure to plutonium," Mr. Skaar said. "Once it's in your system, it will stay in your system 40, 50, 60 years." According to the court documents, the motion is for "all U.S. veterans who were present at the 1966 cleanup of plutonium dust at Palomares, Spain, and whose application for service-connected disability compensation based on exposure to ionizing radiation the Department of Veterans Affairs has denied or will deny." The motion says that the VA's exclusion of Palomares as a radiation risk is based on "scientifically flawed methodology." "Original bioassay testing shows that many Palomares veterans were exposed to dangerously high levels of radiation, in excess of the current annual limit . . ." court documents said. In 1981, doctors told Mr. Skaar he was anemic. At that time, what he didn't know is that his anemia was caused from undiagnosed leukopenia. Mr. Skaar submitted a claim to the VA in 1982 and it was denied in 1984. "So I kind of gave up on it, but then I didn't like the idea that I had a blood disorder that was not my fault. There was no other environmental factor, nothing else to cause me to have this disorder," he said. In 1997, the doctors at the Cancer Institute diagnosed Mr. Skaar with leukopenia, which is a low white blood cell count. The doctor "said it was caused by exposure to radiation," Mr. Skaar said. "But the VA would not accept that . . . My disease condition is not recognized as a radiogenic disease." Mr. Skaar can list off many veterans he worked with in Palomares who have been diagnosed with or have died from cancer. "I believe this isn't about me anymore because I'm 81 years old," Mr. Skaar said. "I don't care if they reverse the decision on my claim, but there are people out there who have already died and there are widows out there who have already been neglected. Through this class action, it brings all of us together under one group and looks at us in a more humane, technical way and looks at our exposure for what it is -- what we know it to be, not what some computer model tells some health physicists." [GN] UNITED KINGDOM: Faces Class Action Over Future of NHS Services -------------------------------------------------------------- Tess De La Mare, Jasmine Watkiss and Maximilian Maerkl, writing for getSURREY, report that Stephen Hawking will challenge South West Surrey MP and Health Secretary Jeremy Hunt in court over plans to privatise some NHS services. The physicist has joined campaigners in their efforts to fight greater privatisation of the NHS. Mr Hawking announced he had joined the JR4NHS campaign, founded by three doctors and a university professor, on December 8. The group filed High Court papers on Decembers 11. Mr Hawking hopes the move will set in motion a full public inquiry into the health secretary's plans to introduce commercial companies to run parts of the health and social services -- to be known as accountable care organisations (ACOs). He said: "I have decided to join Dr Colin Hutchinson, Professor Allyson Pollock, Professor Sue Richards and Dr Graham Winyard in bringing a legal action against the Secretary of State for Health, Jeremy Hunt, and NHS England, to stop the introduction of accountable care organisations (ACOs) without full public consultation and parliamentary approval. "I am concerned that ACOs attack the fundamental principles of the NHS. "The NHS must be protected from those who want to privatize it." He posted a link to a video published on the Royal Society of Medicine website, in which he declared his unwavering support for the NHS, our sister site Cambridge News reports. Campaigners fear that ACOs, which were first introduced in the US, will lead to an "Americanisation" of the NHS. Students urged to get meningitis and septicaemia vaccinations after charity warns number of cases expected to rise over winter JR4NHS wrote on its Crowdjustice page that the companies will get to decide when care is free and when it has to be paid for. They also argued that ACOs may be paid more if money is saved. The government called the campaign's move "scaremongering". A Department of Health spokesman said: "We strongly resist the misleading claims in this action; it is irresponsible scaremongering to suggest that ACOs are being used to support privatisation and harm the fundamental principles of the NHS. [GN] UTZ QUALITY: Will Pay $1.25-Mil. to Settle Class-Action ------------------------------------------------------- Keith Schweigert, writing for Fox43, reports that Utz Quality Foods Inc. will pay a $1.25 million settlement in a lawsuit claiming that the company falsely advertised that its chips and other snack products were "all natural," according to court documents. The Hanover-based company also agreed to stop using the terms "natural" and "all natural" on its labeling and advertising within the next four months as part of the settlement, which was filed Dec. 6 in federal court. The class action lawsuit was brought by consumers Matt Difrancesco and Angela Mizzoni in Dec. 2014 in the U.S. District Court of Massachusetts. The suit alleged that Utz labelled and advertised 43 products as "all natural," which was misleading to customers because the products ingredients that were either genetically modified, heavily processed or synthetic, court records state. Consumers are eligible for reimbursement for $2 per qualifying purchase up to a maximum of $20 per household. [GN] VIRGINIA BEACH, VA: Schools Face Age Discrimination Class Action ---------------------------------------------------------------- Mike Connors, writing for The Virginian-Pilot, reports that at least three people are part of a class-action lawsuit against the school division that claims its hiring practices discriminated on the basis of age. Joseph Andreana filed suit in U.S. District Court in Norfolk claiming that in the spring of 2015, the division decided to reorganize, asking computer resources specialists to reapply for information technology jobs, along with other employees and the public. Computer specialists "who were substantially older and with vastly more experience in the position and field were systematically passed over" the lawsuit claims. A spokeswoman said the division does not comment on ongoing litigation. The computer specialists who applied for IT slots had an average age of 48.1 in March 2015, the suit said. Those who were initially denied were on average 56.1; those initially accepted were on average 45.6 years old, it claims. Mr. Andreana had been a computer specialist for 16 years until summer 2015, the suit said. He was forced to accept a job with the division as a classroom teacher at lower pay than he would have made in IT. He does not ask for a specific dollar amount in the suit, instead making several requests. Among those are back pay and other compensation from the division and a job with the division as an IT specialist. The suit was filed in November. As of early December, at least two other people had filed notice to join, court documents show. In March 2015, Margaret Marcotte was 45 and had 11 years' experience as a computer specialist, but did not get an IT job. Marie Gerdes was also passed over. [GN] VOLKSWAGEN GROUP: Audi Emissions Fix Under Settlement Approved -------------------------------------------------------------- Courthouse News Service reported that the U.S. Environmental Protection Agency and the California Air Resources Board on Dec. 18 approved an emissions fix for 24,000 Audi vehicles tainted with emissions cheating software as part of a $1.2 billion settlement with Volkswagen. The approval covers 2014-2016 Audi A6 Quattro, A7 Quattro, A8, A8L and Q5 diesel vehicles. VOLTAGE PICTURES: Hollywood to Sue Pirates in Canada ---------------------------------------------------- Jordan Pearson, writing for Motherboard, reports that a groundbreaking lawsuit is underway in Canada that will test key elements of the country's copyright regime. If successful, it would set up what one prominent intellectual property lawyer called a legal "machine" for cheaply and easily getting cash settlements from scores of people who illegally download movies online. "This case is a game changer," said David Fewer, director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa. It's the first lawsuit of its kind in Canada, he said. Every Canadian internet user should be paying attention, especially if they've illegally downloaded a movie before. The novel case is being brought by Voltage Pictures, the American production company behind Oscar-winning films like Dallas Buyers Club and The Hurt Locker. Voltage has brought lawsuits against pirates in Canada before, but its last litigation attempt in 2012 was withdrawn. Now, the company is after more than settlements from a few individuals who downloaded a movie once -- much, much more. Voltage Pictures and its legal representation, Toronto-based firm Aird & Berlis LLP, are presently engaged in a "reverse" class action lawsuit. Normally, a class action lawsuit involves a large group of individuals (a "class") suing a single entity. In a reverse class action suit, one company sues a class of people -- in this case, people who illegally downloaded Voltage's films. Reverse class action suits are rare, but not unheard of in Canada or the US. But, according to Fewer, Voltage's case is the first having to do with intellectual property in Canada. Voltage filed a request with the courts in 2016 to get Rogers (one of the "big three" telecom companies in Canada) to identify a single Canadian to be the representative defendant in the lawsuit. If legal liability is established for this one person, then the court will set fines for everybody else who pirated Voltage's films. It's not clear how many individuals will be swept up in the reverse class action, but a federal appeals court judge stated in May that Voltage had estimated "tens of thousands of suspected infringers." "What Voltage effectively wants to do is create a cheap little troll machine that churns out settlements cheaper than a federal court case, cheaper than any mechanism you can imagine," Fewer said over the phone. In an emailed statement, Ken Clark of Aird & Berlis said that the goal of the litigation is to "reduce legal expenses for everyone caught up in a copyright lawsuit -- creators and infringers alike." Clark said that if the litigation is successful, pirates in Canada will be paying settlements "in the order of magnitude of a speeding ticket." The idea isn't simply to extract settlements from people, Clark said, but to change their behaviour. "We want people to pay for the movies that they watch, instead of feeling entitled to watch them for free," Clark wrote. But first, Voltage has to go through the courts to settle a few thorny legal questions. One key issue, which would lower the cost of suing a class of people from potentially millions of dollars to zilch, is proceeding to the Supreme Court of Canada. That hearing is tentatively scheduled for late April of 2018. Historically in Canada, learning the identity of an alleged pirate isn't cheap for copyright holders. Service providers in the past charged a fee to reveal a customer's identity, and that cost would be multiplied by the number of defendants to be sued. However, this changed in 2015, when Canada began employing a "notice-and-notice" system for copyright infringement. Under this regime, a copyright holder sends an ISP a notice of infringement, which the ISP passes on to the consumer. To get the alleged infringer's identity, the copyright holder still has to file for a Norwich order with the courts, but notice-and-notice left the question of fees for Norwich orders up in the air since the federal government has not yet set any rates in legislation. With notice-and-notice leaving fees an open question, Voltage Pictures and Aird & Berlis saw an opportunity to get people's identities from service providers for free. "We are trying to take advantage of the new regime," Clark wrote me in an email. ISPs in Canada want the fee because, they argue, it takes more work to confirm someone's identity with enough certainty to drag them into litigation. "Making a mistake with a notice? Not a big deal," the CIPPIC's Fewer said. "Making a mistake with a Norwich order? You can really fuck up somebody's life." A federal appeals court agreed that Voltage should not pay Rogers fees for its Norwich order in May of 2017, calling the fees "a multi-million dollar barrier between [Voltage] and the starting gate for their legal proceedings." But Rogers is now fighting back against that ruling -- all the way up to the Supreme Court. In its written submission to the Supreme Court of Canada, Rogers stated that the case "impacts all internet-using Canadians, including the vast majority who do not engage in copyright infringement." The core of their argument is that the multi- million dollar cost of producing Norwich orders will be passed onto consumers. If the Supreme Court rules that ISPs can't charge fees to identify someone they already served a notice to, it will be a new dawn in Canada for copyright enforcement: The financial barrier for suing pirates will be significantly lowered. And once that hurdle is cleared, Voltage will go for its real prize: a cheap mechanism for taking small settlements from scores of Canadians who downloaded a movie for free. [GN] WELLS FARGO: Navajo Nation Sues Over Predatory Sales Practices -------------------------------------------------------------- ActionNewsNow reports that the Navajo Nation has sued Wells Fargo, claiming the bank targeted tribal members with "predatory sales tactics." In a federal lawsuit filed on Dec. 12, the tribe alleged that Wells Fargo -- the only national bank that services its territory -- preyed on people by opening unauthorized bank accounts and debit cards, and by pressuring people, particularly the elderly, to enroll in services they did not need. "Under intense pressure from superiors to grow sales figures, Wells Fargo employees lied to Navajo consumers, telling elderly Navajo citizens who did not speak English that in order to have their checks cashed, they needed to sign up for savings accounts they neither needed nor understood," the Navajo Nation said in its complaint. Representatives of Wells Fargo "stalked local events like basketball games and flea markets" to sign up as many customers as possible for "unnecessary accounts," the complaint continued. The "unlawful sales practices" are said to have been employed between 2009 and 2016. The Navajo Nation spans Arizona, New Mexico and Utah. Wells Fargo has five branches across the Navajo Nation and is its "predominant provider of banking services," according to court documents. Wells Fargo, in a statement, said it couldn't comment on details regarding pending litigation. "At Wells Fargo, we are focused on rebuilding trust and building a better bank. Over 2017, we have taken significant steps to make things right for our customers, including members of the Navajo Nation, who may have been affected by unacceptable retail sales practices," the company said. Wells Fargo's aggressive sales practices first attracted scrutiny in September 2016, when the bank said it had fired 5,300 workers for creating fake accounts. In August, Wells Fargo said it had uncovered a total of up to 3.5 million potentially fake bank and credit card accounts. As a result, Wells Fargo has been ordered to pay hundreds of millions of dollars. The company agreed to a $142 million national class action settlement, as well as millions of dollars in refunds for affected customers. The Consumer Financial Protection Bureau also levied a $185 million fine. Still, new scandals keep emerging. Wells Fargo has admitted that some mortgage borrowers were charged inappropriate fees, while other customers were charged for auto insurance they didn't need. The company is also accused of overcharging small businesses on credit card fees, and of signing up customers in California for insurance policies they didn't want. [GN] WESTJET: Loses Bid to Have Proposed CA Lawsuit Tossed Out --------------------------------------------------------- Srushti Gangdev, writing for Global News, reports that an appeal by WestJet to have a proposed class action lawsuit involving claims of workplace sexual harassment thrown out by the BC Supreme Court has failed. WestJet argued that the courts were an inappropriate venue for the complaint to be addressed, and said the case would be better handled by a human rights tribunal. Justice Mary Humphries said in her decision that the case deals with a breach of contract, so the courts are an appropriate venue. Former WestJet flight attendant Mandalena Lewis, who claims the airline violated its own anti-harassment policies, said she's relieved by the ruling -- both for her and for women who have gone through similar experiences in the workplace. "It's setting a precedent for women to tell women that if this does happen in your work environment -- that you can take your employer, if they have broken their anti-harassment contract, then they can go through this route. This is an available route for women." WestJet acknowledged the outcome of the motion but declined to comment further. In a previous statement to Global News, WestJet said it is "committed to fostering a harassment-free workplace where all employees are treated with respect and dignity." The Supreme Court's decision on December 15 means that the proposed lawsuit can continue to certification and potentially go to trial. Lewis claims she was sexually assaulted by a WestJet pilot in Maui in 2010. She claims the airline took steps to silence her and protect the pilot from being charged before eventually terminating her from the company. "WestJet basically told me to be quiet about the incident, and that it was an isolated event, and to sign a non-disclosure agreement -- and sort of encouraged me to leave the company because I wasn't happy with how they dealt with it," said Lewis. "They basically said that it was my word against his. They were concerned about reprimanding the pilot in any sort of fashion because they were concerned that he would actually sue them." Lewis says that the pilot has charges pending in Maui, but claims that WestJet prevented him from flying over water -- a move that she claims was put in place to protect him. Lewis says she was inspired to start the lawsuit after a former colleague told her she was raped by the same pilot who Lewis alleges assaulted her. She says she has heard reports of 19 similar incidents within WestJet. None of the allegations have been proven in court. [GN] * FCRA Class Action Plaintiffs Must Show Actual Injury ------------------------------------------------------ Megan Kokontis, Esq. -- megan.kokontis@akerman.com -- of Akerman LLP, in an article for JDSupra, reports that employers who run background checks on prospective employees take note -- applicants who sue prospective employers for Fair Credit Reporting Act violations for failure to provide notice in a stand-alone format may not be able to maintain a lawsuit unless they can show that they suffered an actual injury. As employers should know, the Fair Credit Reporting Act has specific procedures employers must follow when running background checks, including providing notice to applicants in a stand-alone format and getting written permission before running the background check. Employers who don't comply may find themselves facing expensive and time-consuming class action lawsuits for statutory damages of up to $1,000 per violation. In 2016, the Supreme Court in Spokeo, Inc. v. Robins issued an important decision involving a different provision of the Fair Credit Reporting Act, deciding that plaintiffs must show that they suffered a "concrete injury" in addition to the statutory violation. Since that time, defendants have argued with mixed success that standing requirements articulated by Spokeo should apply to a variety of statutes, including other provisions of the Fair Credit Reporting Act. Several courts have considered whether to apply Spokeo in the stand-alone notice context of the Fair Credit Reporting Act. The Seventh Circuit, which includes Illinois, Indiana and Wisconsin, has applied Spokeo in that context, but the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington did not apply Spokeo and instead found standing existed. Lower courts within a federal circuit must usually follow what the higher court does, but because the latter decision was limited to situations where the plaintiffs claimed confusion by the failure to provide a stand-alone notice, subsequent cases where confusion is not claimed are not necessarily bound by it. A recent California district court decision confirms that California judges see it the same way. The California class action lawsuit alleged that Home Depot violated the Fair Credit Reporting Act by including unlawful waivers in the background check consent forms. Plaintiffs alleged that the notice and waivers were not in a stand-alone format, and instead contained extraneous information in violation of the Act. According to the Plaintiffs, because the forms contained additional information, the waiver and the background checks were invalid and violated the Act. The Plaintiffs did not allege that they had suffered any actual injury though. Home Depot moved to dismiss citing Spokeo and argued that the complaints just alleged bare statutory violations, without claiming the plaintiffs suffered any actual injuries. The court agreed, finding that alleging a violation of the Act was not enough, plaintiffs also had to show a concrete injury. The court's short opinion did not address the Ninth Circuit case that found standing existed, but did note that the plaintiff "failed to plead even general allegations of injury," which could arguably include confusion. Lack of standing is, by no means, a new defense, but after Spokeo, federal courts seem to have a heightened sensitivity to standing issues. If the plaintiffs can't show that they suffered any harm, employers can breathe easier even if they may have made a mistake. Each case and each complaint varies, but employers facing such lawsuits should carefully consider whether the plaintiffs have actually shown that they suffered any concrete injury and raise standing arguments where appropriate. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. 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. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *