/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180130.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 30, 2018, Vol. 20, No. 22 Headlines ACADEMY LTD: "Lasley" Suit Seeks Unpaid Overtime Wages ACCOUNT CONTROL: Faces "Rodriguez" Suit in District of New Jersey ALCON LABORATORIES: 3d Cir. Denies Rehearing in "Cottrell" ALL ABOUT YOU: WCJ Judgment in Worker's Compensation Suit Upheld AMERICAN HONDA: Faces "Floyd" Suit in C.D. California AMERICAN PAYMENT SYSTEMS: "Palacios" Suit Seeks Unpaid Wages ANTHEM INSURANCE: $48MM Fee Request in Settlement Challenged APPLE INC: Faces Class Action in Korea Over iPhone Performance ARROWHEAD PHARMACEUTICALS: Kuhn Appeals Ruling to Ninth Circuit ARYZTA LLC: "Barnes" Remanded to the State Court ASD SPECIALTY: Petition for Writ of Certiorari Filed ATLANTIC MARINE: "Whatley" Suit Underway in South Carolina AUTO-OWNERS: Bid to Dismiss "Lammert" Suit Denied BALDWIN TAVERN: Fails to Pay for Kitchen Staff's OT, Rosario Says BERKSHIRE HEALTH: "Clark" Suit Seeks Unpaid OT Wages BMW: Faces Class Action in Australia Over Use of Takata Airbags BP EXPLORATIONS: "Harriel" Suit Transferred to Mississippi BUFFALO WILD: Monteverde & Associates Files Class Action CARMAX BUSINESS: "Santos" Suit Dismissed w/ Leave to Amend CAVALRY PORTFOLIO: Court Narrows Claims in "Clark" FDCPA Suit CAVIUM INC: "Stein" Suit Alleges Exchange Act Violations CHARLES SCHWAB: 9th Cir. Affirms Dismissal of "Fleming" Suit CHERRY HILL GOURMET: "Cuahuizo" Suit Seeks Unpaid Wages COMPUTER SCIENCES: Fails to Provide Rest Periods, Action Claims CORELOGIC INC: Mitchell Sues for Denied OT Pay, Wage Statements CORIZON HEALTH: Ninth Cir. Appeal Filed in "Abraham" Class Suit COUNTY OF LOS ANGELES, CA: "Harris" Suit Dismissed With Prejudice COVELLI ENTERPRISES: Ex-Panera Bread Employee Files Class Action DEMI AG INC: Court Enters Default Judgment in "Juarez" Labor Suit DRY CAST: Sent Unsolicited Fax Messages, "Conner" Suit Says EDGEWELL PERSONAL: Wants Banana Boat Sunscreen Class Action Nixed EDWARDS WILDMAN: Li Sues over Defective Cosmetic Products ELM RIDGE: Feb. 8 Planning Conference in "Neiberger" Suit EXPRESS SCRIPTS: Averts Class Action Over Drug Pricing Methods FAIRWAY STAFFING: Fails to Pay Employees OT, "Gomez" Suit Says FCA US: Faces "Sheets" Class Suit Over Workers Benefits Seniority FCA US: Court Issues Final Pretrial Order in "Hall" Suit FEDLOAN SERVICING: Gallagher Sues Over Student Loan Mismanagement FERGUSON ENTERPRISES: Fails to Pay All Wages, Conner Says FOGO DE CHAO: Does Not Properly Pay Employees, Action Claims FORD MOTOR: Responds to Class Action Over Emissions Cheating FORD MOTOR: Court Denies Bid to Dismiss "Anderson" MMPA Suit GENERAL NUTRITION: Judgment in "Chevalier" Suit Partly Affirmed GOPRO INC: Faces Class Action, March 12 Lead Plaintiff Deadline GREEN SUMMIT: Sued by "Garcia" Over Unpaid OT Wages, Tips HARRIS TEETER: "Laurence" Class Cert. Motion Due May 16 HEALTH GENESIS: Echevarria Seeks Unpaid Overtime Wages under FLSA HERMOSA BEACH, CA: "Marks" Suit Seeks Unpaid OT Wages under FLSA HIGHLINE BUILDING: Berrios Sues Over Unpaid Overtime HOSPITALITY STAFFING: "Rodriguez" Suit Seeks Unpaid OT Wages HUNTINGTON BANCSHARES: Karpik Sues for Breach of Fiduciary Duties HUNTINGTON NATIONAL: Denial of Class Certification Bid Reversed INTEL CORP: Rosen Law Firm Files Securities Class Action INTEL CORP: Faces at Least 12 Class Actions Over Chip Flaws J.K. GREEN: Answer to "Marquez" Suit Due Jan. 31 J.M. SMUCKER: Joseph Alleges Mislabeling of Crisco No-Stick Spray JAMES HOLDINGS: Court Vacates Class Certification in "Bagot" JOHNSON COUNTY, IN: Ind. App. Affirms Dismissal of "Alford" Suit JP MORGAN CHASE: "Doherty" Suit over Robocalls Dismissed KELLOGG CO: Court Lifts Two-Year Stay in "Mohamed" Suit KRISPY KREME: Court OKs Disclosure Only Class Action Settlement KROGER CO: Court Denies Bid to Dismiss 2nd Amended "Perez" Suit LEPRINO FOODS: Court Narrows Claims in "Perez" Wage and Hour Suit LEPRINO FOODS: Judgment on Pleadings Bid in "Vasquez" Suit OK'd LUXOR LIMO: "Chohan" Suit Seeks to Recover OT Pay, Reimbursements M & Y CARE: "Cardwell" Suit Seeks to Recover Unpaid OT Wages MBA WASTE SERVICES: Discovery in "Moore" Wages Suit Underway MDL 2804: Judge OKs Expanded Plaintiffs Leadership Team MI GROUP: Files Answer to Amended Complaint in "Roy" Suit MOUNT SINAI: 2nd Circuit Affirms Ruling in TCPA Class Action NEW KANG SUH: "Lee" Suit Seeks Unpaid Minimum & OT Wages NEW JERSEY: "Cloud" Suit Alleging Harassment Underway NEW JERSEY: "Miller" Suit over Discrimination Underway NEW JERSEY TURNPIKE: "Reynoso" Class Suit Shelved NFL: 3d Cir. Reverses Dismissal of "Finkelman" Suit NIAGARA BOTTLING: Frompovicz Files Suit Over False Ad NORTH ALABAMA FAMILY: Sued for Denying Health Care Staff OT Pay NORTHBAY HEALTHCARE: Cal. App. Refuses to Certify "Caudle" Class O'REILLY AUTO: Davidson Appeals C.D. Calif. Decision to 9th Cir. PALO ALTO NETWORKS: Fifth Circuit Appeal Filed in "Godert" Suit PARK COUNTY, CO: Inmates File Class Action v. Corrections Dept. PHARMAVITE LLC: Ference Appeals Order in "Barrera" to 9th Circuit PHILIPPINE AIRLINES: Settles Price-Fixing Class Action PRICEWATERHOUSECOOPERS: Compelled to Reply to "Adamov" RFPs PRINCETON UNIVERSITY: ERISA Suit Stayed Pending "Sweda" Ruling PROCTER & GAMBLE: Stewart Files Suit Over Deceptive Ads PROGRESSIVE GARDEN: Alpizar-Fallas Appeals Ruling to 3rd Circuit QUALITY CABLE: Helpers Not Included in Class of Foremen QUINCY BIOSCIENCE: Seeks 9th Circuit Review of Ruling in "Racies" REINS INT'L: Cal. App. Affirms Dismissal of "Kim" Labor Suit REPROS THERAPEUTICS: Neuterman Seeks to Block Allergan Deal RICHMOND HOMES: All Claims in Homeowners' Suit Dismissed SANTA CRUZ COUNTY BANK: Cal. App. Affirms Dismissal of "Bridges" SCANA CORP: Consumers' Class Action Ongoing SEATIDE GOURMET: "Gonzalez" Suit Seeks to Recover Unpaid Wages SIX FLAGS: Littler Mendelson Attorneys Discuss BIPA Case Ruling SMITHKLINE BEECHAM: 3d Cir. Won't Enforce Settlement vs. La. AG SOUTHERN CALIFORNIA EDISON: Sued Over Los Angeles-Area Wildfires SPRINT/UNITED MANAGEMENT: Fails to Pay Wages, "Caudle" Suit Says STEAK N SHAKE: Court Certifies Class of Missouri Managers SUGAR TRANSPORT: Court Denies Certification of Truck Drivers SUNRISE CREDIT: Liberato Sues over Debt Collection SYNEOS HEALTH: Jan. 30 Lead Plaintiff Motion Deadline Set TDS TELECOM: Court Denies Bid to Dismiss "Carroll" Suit TRANSAMERICA LIFE: Seeks 9th Cir. Review of Ruling in "Feller" UNITED STATES: Prelim Injunction in Detainees' Suit Affirmed UNITED STATES: Prelim Injunction in Hawai'i Suit Partly Affirmed US STEEL CORP: Athan Files Suit to Recover Wages, Benefits USAA GENERAL: 2 Suits over Medical Reimbursements Consolidated WATERSTONE MORTGAGE: $7.3MM Arbitration Award Confirmed WILLOWICK, OH: Denial of Judgment Bid in "Abramezyk" Affirmed WILLOWICK, OH: Denial of Judgment Bid in "Ragazzo" Affirmed WYNDHAM HOTELS: Macias Sues over Sexual & Disability Bias ZTO EXPRESS: "Guo" Suit Remanded to Superior Court * Class Action Settlements Hit Record High, Seyfarth Report Shows * Courts Let Companies Keep Sexual Misconduct Under Cover ********* ACADEMY LTD: "Lasley" Suit Seeks Unpaid Overtime Wages ------------------------------------------------------ Allan Lasley, Plaintiff, v. Academy, Ltd., Defendant, Case No. 17-cv-00897 (E.D. Tex., December 29, 2017), seeks unpaid overtime compensation, liquidated damages, costs and reasonable attorney's fees under the provisions of Fair Labor Standards Act in behalf of similarly situated individuals who have worked as Assistant Managers, including Hardlines Managers, Softlines Managers, Logistics Managers or Operations Managers, or in comparable roles with different titles for Academy Ltd. Defendant operates over 230 retail store locations across the United States offering sports and outdoor equipment. Lasley was employed by Defendant as an assistant manager. He claims to have worked 55-60 hours per week without overtime pay. [BN] Plaintiff is represented by: Alan L. Quiles Gregg I. Shavitz, Esq. Camar R. Jones, Esq. SHAVITZ LAW GROUP, P.A. 1515 S. Federal Highway Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 Email: gshavitz@shavitzlaw.com cjones@shavitzlaw.com aquiles@shavitzlaw.com ACCOUNT CONTROL: Faces "Rodriguez" Suit in District of New Jersey ----------------------------------------------------------------- A class action lawsuit has been filed against Account Control Technology, Inc. The case is captioned as ALICIA RODRIGUEZ, individually and on behalf of all others similarly situated, the Plaintiff, v. ACCOUNT CONTROL TECHNOLOGY, INC., the Defendant, Case No. 2:17-cv-12306-CCC-JBC (D.N.J., Dec. 1, 2017). The case is assigned to the Hon. Judge Claire C. Cecchi. ACT offers debt recovery, debt collection, accounts receivable management and business process outsourcing solutions for the education, consumer finance, government and commercial markets.[BN] The Plaintiff is represented by: Ari Hillel Marcus, Esq. Yitzchak Zelman, Esq. MARCUS ZELMAN LLC 1500 Allaire Avenue, Suite 101 OCEAN, NJ 07712 Telephone: (732) 695 3282 Facsimile: (732) 298 6256 E-mail: ari@marcuszelman.com yzelman@marcuszelman.com ALCON LABORATORIES: 3d Cir. Denies Rehearing in "Cottrell" ---------------------------------------------------------- In the case, LEONARD COTTRELL; SANDRA HENON; WILLIAM REEVES; GEORGE HERMAN; SIMON NAZZAL; CAROL FREBURGER; JACK LIGGETT; PATRICIA BOUGH; MACK BROWN; DOLORES GILLESPIE; DEBORAH HARRINGTON; ROBERT INGINO; EDWARD ROGERS, JR.; DEBORAH RUSIGNULOLO; DOROTHY STOKES; JOSEPHINE TROCCOLI; HURIE WHITFIELD; THOMAS LAYLOFF; CAROLYN TANNER; PATSY TATE; JOHN SUTTON; JESUS RENTERIA; GLENDELIA FRANCO; NADINE LAMPKIN, on behalf of themselves and all others similarly situated, Appellants, v. ALCON LABORATORIES; ALCON RESEARCH LTD; FALCON PHARMACEUTICALS LTD; SANDOZ INC.; ALLERGAN INC, RP; ALLERGAN USA INC; ALLERGAN SALES LLC; PFIZER INC; VALEANT PHARMACEUTICALS INTERNATIONAL; BAUSCH & LOMB INC; ATON PHARMA INC; MERCK & CO INC; MERCK SHARP & DOHME CORP; PRASCO LLC; AKORN INC., Case No. 16-2015 (3d Cir.), Judge L. Felipe Restrepo of the U.S. Court of Appeals for the Third Circuit denied the Appellees' petition for rehearing by the panel and the Court en banc. The petition for rehearing filed by the Appellees has been submitted to the judges who participated in the decision of the Court and to all the other available circuit judges of the circuit in regular active service. No judge who concurred in the decision has asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing. The Plaintiffs are consumers of prescription eye drop medications manufactured and distributed by the Defendants. The medication is sold in bottles designed with dropper tips that dispense more liquid than the relevant portion of the human eye can hold at any one time. Since the entire amount of each drop cannot be contained within the eye -- where it is pharmaceutically beneficial -- the bottle's design necessarily results in a portion of each drop being wasted. Arguing that this waste constitutes an unfair or unconscionable practice under state consumer protection statutes, the Plaintiffs filed a putative class action complaint. In his dissenting opinion, Judge David Brookman Smith joined Jane Richards Roth in holding that the Plaintiffs have not established that they have standing to bring their claim in federal court. He finds that the Plaintiffs would prefer that the eye drops prescribed for them be sold in a different type of packaging. The wisdom of their preference, however, is better left tested in the marketplace, not in the Court, he says. Creating a disparity with one of our sister circuits, the Majority's opinion reasons otherwise. Because he believe the Plaintiffs' unfulfilled preferences do not constitute an "injury" that the Court can evaluate in light of Article III of the Constitution, he respectfully dissents the denial of rehearing en banc. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/CNdX34 from Leagle.com. ALL ABOUT YOU: WCJ Judgment in Worker's Compensation Suit Upheld ---------------------------------------------------------------- In the case captioned CHRISTUS HEALTH SOUTHWEST LOUISIANA D/B/A CHRISTUS ST. PATRICK HOSPITAL, v. ALL ABOUT YOU HOME HEALTHCARE, INC., ET AL, Case No. 17-606 (La. App.), Judge Ulysses Gene Thibodeaux of the Court of Appeal of Louisiana for the Third Circuit affirmed workers' compensation judge (WCJ)'s judgment awarding Christus $1,398.03 in unpaid/underpaid charges, $2,000 in penalties, and $14,840 in attorney fees. In this workers' compensation dispute, the claimant, Christus, filed a 1008 Disputed Claim for Compensation in the Office of Workers' Compensation against the employer, All About You, and its insurer, Bridgefield Casualty Insurance Co., alleging the nonpayment and underpayment of medical charges. Related to the matter is a motion filed by a class of Louisiana hospitals and ambulatory surgery centers, of which Christus is a member, that sought to enforce a class action settlement agreement between the class and FairPay Solutions, Inc., the Defendants' billing review service. After the trial court granted the motion in favor of the class, FairPay appealed to the Court. Thereafter, the Defendants filed exceptions of res judicata, lack of subject matter jurisdiction, and nonjoinder of an indispensible party, all of which the workers' compensation judge (WCJ) denied. The WCJ then rendered judgment in favor of Christus on the merits, awarding Christus the unpaid and underpaid amounts due under our Louisiana Workers' Compensation Act ("LWCA") as regulated by the Louisiana Reimbursement Schedule, together with penalties and attorney fees. The Defendants now appeal that judgment, and Christus has answered the appeal, seeking an increase in attorney fees for work done on appeal. The Defendants ask the Court to decide: a. whether the WCJ legally erred in refusing to recognize the prior confected settlement agreement provisions, which dictate the payment of this medical bill that, if paid according to Christus's claim, was overpaid, and nevertheless held that the Defendants underpaid the medical bill pursuant to the fee schedule, which had no application to the initial determination in the case; b. whether it was legal error to find that payment of a medical bill, which was more than Christus contends it was entitled to under the settlement agreement, permitted the imposition of penalties and attorney fees despite no provision in the settlement agreement for penalties and when these defendants acted reasonably; c. whether it was legal error to find the Defendants solidarily liable with a non-party for penalties and attorney fees absent a finding of fault on the employer and insurer when the statute clearly states that penalties are only imposed based upon a party's fault; d. whether the WCJ legally erred in not dismissing the claim pursuant to the exception of nonjoinder of indispensible party as a necessary party to the litigation, FairPay, was not and could not be made a party to the suit; e. whether the WCJ legally erred in denying the Defendants' exception of lack of subject matter jurisdiction as it involves the interpretation of a contract and not a claim arising under the LWCA as was previously determined by this circuit in an earlier companion case, Opelousas General Hospital Authority, 118 So.3d 1269; and f. whether the WCJ legally erred in denying the Defendants' exception of res judicata as the claim concerns a matter previously compromised between the same parties in a prior lawsuit. Judge Thibodeaux finds that the WCJ did not err in awarding Christus $1,398.03, the difference between what the Defendants paid ($656.13) and the fee schedule rate ($2,054.16), and in imposing penalties and attorney fees for the Defendants' failure to reasonably investigate or controvert the disputed charges. He further finds no abuse of discretion in its award of $2,000 in penalties and $14,848 in attorney fees. The Judge likewise affirms the WCJ's rulings on the Defendants' exceptions of nonjoinder, subject matter jurisdiction, and res judicata. He says though artfully drafted, every one of these exceptions is based on an application of the settlement agreement and the FFPM to the disputed claim. But a disputed claim for compensation can only be brought (i) against an employer and its insurer in the manner set forth in La.R.S. 23:1032,6 and (ii) in the OWC, which has exclusive jurisdiction over all disputed claims arising under the LWCA. see La.R.S. 23:1310.3(F). As the WCJ found, FairPay is a third-party bill reviewer. Because a party is only deemed indispensible when that party's presence is absolutely necessary to protect its substantial rights, it logically follows that FairPay is not an indispensible party to the workers' compensation litigation. Moreover, the Judge finds that rather than precluding the claim, paragraph 11.7 of the settlement agreement explicitly grants Christus the right to seek redress in the OWC under the circumstances, i.e., 30 days after Christus presented its dispute to FairPay when the dispute has not been resolved and FairPay has not requested mediation. Neither the settlement agreement nor the judgment approving the settlement bars the litigation of this new, and as yet undecided, disputed claim for compensation against the employer in the OWC, thus rendering the doctrine of res judicata inapplicable. Accordingly, he holds the Defendants' arguments regarding their exceptions are meritless. In its answer, Christus seeks additional attorney fees for work done on appeal. Judge Thibodeaux finds that the award of additional attorney fees is warranted when the claimant successfully defends its judgment. Accordingly, he awards Christus an additional $5,000 for work done on the appeal. For these reasons, Judge Thibodeauz found no error or abuse of discretion in the WCJ's judgment awarding Christus $1,398.03 in unpaid/underpaid charges, $2,000 in penalties, and $14,840 in attorney fees. He further awarded Christus $5,000 in attorney fees for work done on the appeal. Costs of the appeal are assessed to the Defendants/Appellants. A full-text copy of the Court's Dec. 6, 2017 Order is available at https://is.gd/lN5bQJ from Leagle.com. Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, Telephone: (337) 436-6611, COUNSEL FOR: Plaintiff/Appellee - Christus Health Southwest Louisiana d/b/a Christus St. Patrick Hospital. Kevin Andrew Marks -- kmarks@mmkfirm.com -- Melchiode, Marks, King, LLC, 639 Loyola Avenue - Suite 2550, New Orleans, LA 70113, Telephone: (504) 336-2880, COUNSEL FOR: Defendants/Appellants - Bridgefield Casualty Insurance Company and All About You Home Healthcare, Inc. AMERICAN HONDA: Faces "Floyd" Suit in C.D. California ----------------------------------------------------- A class action lawsuit has been filed against American Honda Motor Co., Inc. The case is captioned as Heather Floyd, individually and on behalf of all others similarly situated, the Plaintiff, v. American Honda Motor Co., Inc., a California Corporation and Honda North America, Inc., a Delaware Corporation, Case No. 2:17-cv-08744-SVW-AS (C.D. Cal., Dec. 4, 2017). The case is assigned to the Hon. Judge Stephen V. Wilson. The American Honda Motor Company, Inc. is a North American subsidiary of the Honda Motor Company, Ltd. It was founded in 1959.[BN] The Plaintiff is represented by: Theodore W. Maya, Esq. Robert Ahdoot, Esq. AHDOOT AND WOLFSON PC 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474 9111 Facsimile: (310) 474 8585 E-mail: tmaya@ahdootwolfson.com rahdoot@ahdootwolfson.com AMERICAN PAYMENT SYSTEMS: "Palacios" Suit Seeks Unpaid Wages ------------------------------------------------------------ ERIKA PALACIOS, and other similarly situated Individuals, the Plaintiff, v. NORTH AMERICAN PAYMENT SYSTEMS, LLC, and ZULFIE R. RAJAKARIAR, individually, Defendant(s), the Defendants, Case No. 64819645 (Fla. Cir., 11th Judicial Circuit, Miami-Dade County, Nov. 30, 2017), seeks to recover damages exceeding $15,000 excluding attorneys' fees or costs for unpaid wages under the Fair Labor Standards Act. According to the complaint, the Plaintiff performed work for Defendants as anon-exempt employee from April 15, 2017 through August 15, 2017. The Defendants had or should have had full knowledge of all hours worked by Plaintiff; including those hours worked by Plaintiff in excess of 40 in a given work week. For the period April 15, 2017 through on August 15, 2017, Plaintiff worked numerous hours -- for which he received no compensation whatsoever, in violation of the laws of the United States and the State of Florida. For this period of time Plaintiff is owed unpaid wages for over 60 hours of overtime. Additionally, Plaintiff was asked to go to Colombia to open a Customer Service Center. The Defendant failed to cover the expenses while abroad for food; transportation, accessories and supplies for office use, in accordance with Defendant's assertions on which Plaintiff detrimentally relied.[BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. Loanmy Saranova, Esq. REMER & GEORGES-PIERRE, PLLC Courthouse Tower 44 West Flagler St, Suite 2200 Miami, FL 33130 Telephone: 305 416 5000 Facsimile: 305 416 5005 E-mail: agp@rgpattorneys.com Isaranova@rgpattorney.com ANTHEM INSURANCE: $48MM Fee Request in Settlement Challenged ------------------------------------------------------------ Amanda Bronstad, writing for Law.com, reports that a prospective class member has objected to the Anthem data breach settlement, specifically criticizing a fee request of nearly $38 million, and planning to ask that a special master investigate the case for potential over-billing. An objection says the fee request, which is 33 percent of the $115 million settlement, was "outrageous on its face" and should be closer to $13.8 million. APPLE INC: Faces Class Action in Korea Over iPhone Performance -------------------------------------------------------------- Kim Jae-seop, writing for the hankyoreh, reports that a civic group claims that the software updates are intended to drive up sales of new products. A class action suit is to be filed in South Korea on Jan. 13 in connection with Apple's degradation of performance on its old iPhone models. The civic group Citizens United for Consumer Sovereignty (CUCS) announced on Jan. 10 that it plans to file suit with Seoul Central District Court on Jan. 13 to demand damages from Apple and Apple Korea. An initial group of 150 people are reportedly to take part as plaintiffs, with requested damages set at 2.2 million won (US$2,050) each in view of average device costs and compensation payments. The key question in court is likely to be whether Apple software updates that degraded the performance of older iPhone models were deliberately intended to drive up sales of new products. Users claim the degradation was a ploy to increase new iPhone sales, noting that Apple was aware of it when the updates occurred. If the intent is proven, Apple is likely to face not only damages but also public censure. Many are also watching to see how the iPhone users attempt to prove negative material and psychological effects from the performance degradation in court. Users of the iPhone 6, 6S, and other older models have reported failures with money transfers and applications as a result of Apple's update. "Apple impaired the function of iPhone devices through in update without prior notification or user consent," said attorney Jeong Jun-ho of CUCS's consumer law center. "This could be seen as a serious infringement of consumer rights," he added. More domestic suits to claim damages appear to be on the horizon. The law firms Hannuri and Hwimyung are currently recruiting litigants for their own cases. [GN] ARROWHEAD PHARMACEUTICALS: Kuhn Appeals Ruling to Ninth Circuit --------------------------------------------------------------- Plaintiff Joel Kuhn filed an appeal from a court ruling in the lawsuit entitled Joel Kuhn v. Arrowhead Pharmaceuticals, Inc., et al., Case No. 2:16-cv-08505-PSG-PJW, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, three securities class action lawsuits against Arrowhead Pharmaceuticals, Inc. et al. have been consolidated at the behest of Joel Kuhn. The consolidated lawsuit is styled In re: ARROWHEAD PHARMACEUTICALS, INC. SECURITIES LITIGATION. The Plaintiffs bring claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 regarding certain public statements in connection with the Company's drug research programs and seek damages in an unspecified amount. The appellate case is captioned as Joel Kuhn v. Arrowhead Pharmaceuticals, Inc., et al., Case No. 17-56956, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by January 26, 2018; -- Transcript is due on February 26, 2018; -- Appellant Joel Kuhn's opening brief is due on April 6, 2018; -- Appellees Christopher R. Anzalone, Arrowhead Pharmaceuticals, Inc., Bruce Givens and Kenneth A. Myszkowski's answering brief is due on May 7, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant JOEL KUHN, On Behalf of Himself and All Others Similarly Situated, is represented by: Adam M. Apton, Esq. Adam McCall, Esq. Nicholas I. Porritt, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 E-mail: AApton@zlk.com amccall@zlk.com nporritt@zlk.com Defendants-Appellees ARROWHEAD PHARMACEUTICALS, INC., CHRISTOPHER R. ANZALONE, KENNETH A. MYSZKOWSKI and BRUCE GIVENS, M.D., are represented by: Gregory S. Bok, Esq. Alexander Kosta Mircheff , Esq. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7461 Facsimile: (213) 229-6461 E-mail: gbok@gibsondunn.com amircheff@gibsondunn.com ARYZTA LLC: "Barnes" Remanded to the State Court ------------------------------------------------ The United States District Court for the Northern District of Illinois, Eastern Division, issued a Memorandum Opinion and Order granting Plaintiff's Motion to Remand to the State Court the case captioned JAMEL BARNES, Plaintiff, v. ARYZTA, LLC, Defendant, No. 17-cv-7358 (N.D. Ill.). Plaintiff seeks (1) a declaratory judgment that Defendant violated Illinois Biometric Information Privacy Act ("BIPA"), and acted negligently; (2) injunctive and other equitable relief as is necessary to protect the interests of the class, including an order requiring Defendant to collect, store, and use biometric identifiers or biometric information in compliance with BIPA; (3) statutory damages under BIPA, as well as attorneys' fees and costs; (4) pre and post-judgment interest, and (5) any other relief that the Court deems reasonable and just. Defendant contends that the time-clock in issue does not collect or store an employee's fingerprint or any other biometric identifier or biometric information to establish any statutory liability under the BIPA on behalf of Plaintiff or a purported class. The issue before the Court is whether Defendant's removal of this class action lawsuit from state court was proper. Defendant argues in opposition to Plaintiff's motion to remand that satisfaction of the jurisdictional prerequisites under the CAFA is sufficient for removal purposes and that Defendant, having established CAFA jurisdiction, may raise the Article III standing issue at some later point in these proceedings in federal court. But to say that a court is without jurisdiction to decide a case on its merits yet has jurisdiction merely to remove the case is to state a contradiction. Section 1441 of Title 28 U.S.C. authorizes the removal of cases of which the district courts have original jurisdiction. By jurisdiction the statute means power to entertain the suit, consider the merits and render a binding decision thereon. The statute does not contemplate a result that permits a district court to remove a case which it is required to dismiss for want of jurisdiction. In any event, Defendant admits that Article III standing based on Spokeo in the context of Plaintiff's claims in this case is unsettled. That consideration alone supports remand, as any doubt regarding jurisdiction should be resolved in favor of the states. Indeed, as a general matter, federal courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum. Defendant, as the proponent of federal jurisdiction bears the risk of non-persuasion. Defendant has gone from arguing that this Court does not have jurisdiction to taking the position that federal jurisdiction may or may not later prove to be lacking. In short, Defendant does not even attempt and thus necessarily fails to persuade the Court that federal jurisdiction exists. The Court grants Plaintiff's motion to remand to state court. A full-text copy of the District Court's December 20, 2017 Memorandum Opinion and Order is available at https://tinyurl.com/ybc7zy8e from Leagle.com. Jamel Barnes, Plaintiff, represented by Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC. Jamel Barnes, Plaintiff, represented by David J. Fish, The Fish Law Firm, P.C., 1770 North. Park St., Suite 202, Naperville, IL 60563, J. Eli Wade Scott -- ewadescottWedelson.com -- Edelson PC, John C. Kunze, The Fish Law Firm, Kimberly A. Hilton, The Fish Law Firm, P.C., 200 E 5th Ave Suite 123. Naperville, IL 60563, Roger J. Perlstadt -- rperlstadt@edelson.com -- Edelson P.C., Sydney M. Janzen -- sjanzen@edelson.com -- Edelson Pc & Todd M. Logan tlogan@edelson.com -- Edelson PC, pro hac vice. ARYZTA LLC, Defendant, represented by Kevin Michael O'Hagan, -- kohagan@ohaganmeyer.com -- O'Hagan Meyer, LLC, Jamie L. Filipovic -- jfilipovic@ohaganmeyer.com -O'Hagan Meyer, LLC & Kristen Ann Cemate -- kcemate@ohaganmeyer.com -- O'Hagan Meyer, LLC. ASD SPECIALTY: Petition for Writ of Certiorari Filed ---------------------------------------------------- SANDUSKY WELLNESS CENTER, LLC, the Petitioner, v. ASD SPECIALTY HEALTHCARE, INC., the Respondent, Case No. 17-803 (U.S., Dec. 4, 2017), is an appeal filed before the United States Supreme Court from a lower court decision in a fraud class action, Case No. 16- 3741 (6th Cir., June 11, 2017). Petition for a writ of certiorari filed.[BN] Attorneys for Sandusky Wellness Center, LLC: Glenn L. Hara, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 E-mail: ghara@andersonwanca.com ATLANTIC MARINE: "Whatley" Suit Underway in South Carolina ---------------------------------------------------------- The venue of the case styled as Amanda Whatley, SSgt Joshua Whatley, Leah Fuhrman, PO1 Randy Fuhrman, Stephany Cross, SSgt Paul Cross, CW4 Robert Domen, GySgt Scott Howe, Jenna Risher and Sgt Levi Risher, on behalf of themselves and all others similarly situated, the Plaintiffs, v. Atlantic Marine Corps Communities LLC doing business as: Atlantic Marine Corps Communities at Tri- Command and Atlantic Marine Corps Communities Property Management LLC, the Defendants, was removed from Beaufort County Court of Common Pleas, Case No. 2017-CP-07-01799, on October 6, 2017, to the U.S. District Court for the District of South Carolina, Case No. 9:17-cv-02716-DCN (D.S.C.). The case is assigned to Honorable David C Norton for all further proceedings.[BN] Plaintiffs are represented by: Bert Glenn Utsey, III, Esq. PETERS MURDAUGH PARKER ELTZROTH AND DETRICK PO Box 1164 Walterboro, SC 29488 Telephone: (843) 549-9544 Facsimile: (843) 549-9546 Email: butsey@pmped.com - and - Ronnie L Crosby, Esq. PETERS MURDAUGH PARKER ELTZROTH AND DETRICK PA PO Box 457 101 Mulberry Street E Hampton, SC 29924 Telephone: (803) 943-2111 Facsimile: (803) 943-3943 Email: rcrosby@pmped.com - and - Samuel C Bauer, Esq. BAUER AND METRO PC PO Box 7965 Hilton Head Island, SC 29938 Telephone: (843) 842-5297 Facsimile: (843) 842-6563 Email: sbauer@bauerlawfirm.com Defendant is represented by: H Brewton Hagood, Esq. James A Bruorton, IV, Esq. ROSEN ROSEN AND HAGOOD PO Box 893 Charleston, SC 29402 Telephone: (843) 577-6726 Facsimile: (843) 724-8036 Email: bhagood@rrhlawfirm.com Email: cbruorton@rrhlawfirm.com - and - Liam Donovan Duffy, Esq. H Brewton Hagood, Esq. James A Bruorton, IV, Esq. ROSEN LAW FIRM PO Box 1840 Charleston, SC 29402 Telephone: (843) 266-8121 Email: lduffy@rrhlawfirm.com AUTO-OWNERS: Bid to Dismiss "Lammert" Suit Denied ------------------------------------------------- In the case, GREGORY J. LAMMERT, JAMIE LAMMERT, LARRY REASONS, and SUSAN REASONS, Plaintiffs, v. AUTO-OWNERS (MUTUAL) INSURANCE COMPANY, Defendant, Case No. 3:17-cv-00819 (M.D. Tenn.), Judge Waverly D. Crenshaw, Jr. of the U.S. District Court for the Middle District of Tennessee, Nashville Division, (i) granted the Plaintiffs' Motion for Certification of Question to the Tennessee Supreme Court; (ii) denied the Plaintiffs' Motion to Resolve Their Pending Motion for Class Certification Before, or at Least Simultaneously with, a Ruling on any Dispositive Legal Issues; and denied without prejudice to refiling after the certification process has been completed both the Plaintiffs' Motion to Certify Class and Auto-Owners' Motion to Dismiss. The named Plaintiffs in the putative class action are two married couples. Both couples had property insurance through Auto- Owners. Both also sustained covered losses to their property and received (or were offered) payments for that loses that depreciated not only materials, but also labor. The Lammerts own a dwelling and other structures in Nashville, Tennessee. Those properties are insured under a standard form "Dwelling Insurance Policy" issued by Auto-Owners. Hail damaged some of the Lammerts' residential buildings on May 10, 2016, and they filed a claim. Auto-Owners calculated its obligation to the Lammerts to be $9,986.36. It did so by first estimating the cost to repair or replace the damage with new materials ($12,146.55) and then subtracting for depreciation ($2,160.19). Both labor and materials were depreciated for certain line items. The Reasons own a home and other structures (including a pool house) in Jackson, Tennessee. Those structure were insured under Auto-Owners' standard form "Homeowners Insurance Policy." On Nov. 18, 2016, some of the structures on Reasons' property suffered wind damage. They also suffered losses on March 9, 2017, as a result of a hail storm that damaged their residence and four other structures. Auto-Owners accepted both claims. With regard to the November 2016 claim, Auto-Owners calculated the cost to replace the wind-damaged roofs and then deducted an amount to account for pre-loss depreciation. With regard to the March 2017 claim, the Reasons' policy provided for full replacement cost coverage, but the Reasons opted for the actual cash value under the policy. Accordingly, Auto-Owners again calculated the costs to repair or replace the damage property, and then deducted pre-loss depreciation, including labor. According to the Plaintiffs, many insurers licensed to do business in Tennessee pay full labor costs to both remove and reinstall damaged building material when making an actual cash value payment. The Plaintiffs' request the question on whether an insurer may withhold a portion of repair labor as depreciation when making an ACV payment under the actual cash value terms and conditions of the two insurance policies at issue b certified. In response, Auto-Owners proposes the question on whether an insurer is prohibited by Tennessee law from deducting the estimated pre-loss depreciation in a structural property's economic value from the estimated cost of labor to repair or replace the property when estimating the property's pre-loss actual cash value under an insurance policy that does not define ACV, explains that ACV includes a deduction for depreciation, or provides that ACV is calculated as the cost of repair or replacement less the amount of depreciation applicable to the damaged property immediately prior to loss. Having considered the parties' submissions, Judge Crenshaw certified the question on whether an insurer in making an actual cash value payment may withhold a portion of repair labor as depreciation when the policy (a) defines actual cash value as the cost to replace damaged property with new property of similar quality and features reduced by the amount of depreciation applicable to the damaged property immediately prior to the loss, or (b) states that actual cash value includes a deduction for depreciation. The Judge holds that the Tennessee Supreme Court is free to exercise its discretion to reframe the Rule 23 certified question before it so as to provide the guidance actually sought. Auto-Owners has filed a Motion to Dismiss, arguing that the Complaint fails to state a claim because, under well-established in Tennessee and elsewhere, the cost approach to calculating ACV is widely accepted and consistent with Tennessee's adoption of the broad evidence rule, and because the Plaintiffs claim relies on a purported labor-depreciation prohibition that does not exist in Tennessee law. Judge Crenshaw finds that these grounds are inextricably linked to the question to be certified and, as such, the Motion is denied without prejudice to refiling after the certification process has concluded. The Plaintiffs' Motion for Class Certification, which is also connected to the question to be certified because the Plaintiffs seek to represent a class of insured who received actual cash value payment that depreciated labor cost, is denied without prejudice. This leaves the Plaintiffs' Motion to Resolve Class Certification Issue Before or at Least Simultaneously With, a Ruling Any of the Dispositive Legal Issues Presented. At this point, the Judge says, the Court is simply reserving ruling on Auto-Owner's Motion to Dismiss pending a decision by the Tennessee Supreme Court should it accept certification. Regardless, the Sixth Circuit has consistently held that a district court is not required to rule on a motion for class certification before ruling on the merits of the case. The Court will decide the order in which to address the Motion for Class Certification and the Motion to Dismiss after the certification process has concluded. In their reply brief, the Plaintiffs also ask the Court to decide the class certification issue before certifying the question, arguing that the Tennessee Supreme Court is more likely to answer the question if the case is already certified as a class. The Judge holds that whether that is true, the Court has no way of knowing, particularly because the potential statewide ramifications of the question are made abundantly clear in both the decision and the Order Certifying Question. A full-text copy of the Court's Dec. 22, 2017 Memorandum Opinion is available at https://is.gd/GJ9rRG from Leagle.com. Gregory J. Lammert, Jamie Lammert, Larry Reasons & Susan Reasons, Plaintiffs, represented by David McMullan -- dmcmullan@barrettlawgroup.com -- Don Barrett, P.A., Don Barrett - - dbarrett@barrettlawgroup.com -- Don Barrett, P.A., J. Brandon McWherter, Gilbert Russell McWherter PLC & T. Joseph Snodgrass -- jsnodgrass@larsonking.com -- Larson King, LLP. Auto-Owners (Mutual) Insurance Company, Defendant, represented by Charles C. McLaurin -- cmclaurin@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Jeff Mason -- jeffrey.mason@stinson.com -- Stinson Leonard Street LLP, John S. Hicks -- jhicks@bakerdonelson.com -- Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Todd A. Noteboom -- todd.noteboom@stinson.com -- Stinson Leonard Street LLP & Zane Gilmer -- zane.gilmer@stinson.com -- Stinson Leonard Street LLP. BALDWIN TAVERN: Fails to Pay for Kitchen Staff's OT, Rosario Says ----------------------------------------------------------------- A Motion to Certify FLSA Collective Action/Motion for Conditional Certification, Leave to Distribute Notice, and Tolling Pursuant to 29 U.S.C. Sec. 216(b), was filed Jan. 19 in the case, Luis A. Rosario, on behalf of himself, individually, and on behalf of all others similarly-situated, the Plaintiff, v. Baldwin Tavern Inc. d/b/a Kitty O'Hara, David Baker and Shay Leavy, the Defendants, Case No. 2:17-cv-05879-SJF-ARL, (E.D.N.Y., October 6, 2017). Plaintiff also filed a Memorandum in Support of the Motion to Certify. Magistrate Judge Arlene R. Lindsay on Jan. 5 entered an order holding that the pre-motion conference requirement is waived, and setting this timeline: -- Plaintiff's motion for conditional certification due Jan. 19, 2018; -- Defendants' opposition to be served by Feb. 2, 2018; and -- Plaintiff may serve any reply by Feb. 9, 2018, at which time the motion papers shall be filed with the court. The Plaintiff states in his complaint that he work for the Defendants as a kitchen staff employee and was required by the Defendants to work six days a week without a scheduled break. Plaintiff states that the Defendants required him to work 52-1/2 hours per week. Plaintiff states that throughout the entirety of his employment, Defendants failed to pay him at the rate of 1-1/2 times his regular rate of pay for any hour that he worked in a week in excess of forty hours. Also, throughout Plaintiff's employment, Defendants failed to compensate for spread of hours with an additional hour's pay at the New York State minimum wage rate.[BN] Plaintiff is represented by: Joan B. Lopez, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Boulevard, Suite 328 Great Neck, New York 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 Attorneys for Defendant: Frank A. Cecere, Esq. Janice Berkowitz, Esq. AHMUTY, DEMERS & MCMANUS, ESQS. 200 I.U. Willets Road Albertson, NY 11507 Tel: (516) 294-5433 Fax: (516) 535-2400 E-mail: frank.cecere@admlaw.com janice.berkowitz@admlaw.com BERKSHIRE HEALTH: "Clark" Suit Seeks Unpaid OT Wages ---------------------------------------------------- Shayla Clark, on behalf of herself and all other employees similarly situated, Plaintiffs v. Berkshire Health Systems, Inc., Defendant, Case No. 17-cv-30186 (D. Mass., December 29, 2017), seeks to recover unpaid overtime wages, interest, liquidated damages, attorneys' fees and costs under the Massachusetts Wage Act, Massachusetts common law and the Fair Labor Standards Act. Berkshire Health Systems, Inc. operates multiple medical facilities in Berkshire County Massachusetts. Clark worked as a licensed practical nurse at their Hillcrest Family Health Center in Pittsfield, MA. Plaintiff worked through approximately 75% of her scheduled meal breaks without compensation. Berkshire automatically deducts 30-minutes from her hours worked without regard to whether the break was actually taken, notes the complaint. [BN] Plaintiff is represented by: Benjamin Knox Steffans, Esq. STEFFANS LEGAL LLC 28 North Street, Suite 307 Pittsfield, MA 01201 Tel: (413) 418-4176 Email: bsteffans@steffanslegal.com - and - Jeffrey S. Morneau, Esq. CONNOR & MORNEAU LLP 273 State Street, Second Floor Springfield, MA 01103 Tel: (413) 455-1730 Email: jmorneau@cmolawyers.com BMW: Faces Class Action in Australia Over Use of Takata Airbags --------------------------------------------------------------- Sarah Farnsworth, writing for ABC News, reports that German car maker BMW and Japanese manufacturer Nissan are facing legal action over the use of Takata airbags which have been linked to 18 deaths worldwide. The two car companies are the latest to be drawn into the class action before the New South Wales Supreme Court. Sydney lawyer Damien Scattini -- damianscattini@quinnemanuel.com -- from law firm Quinn Emanuel, said the statement of claims against the companies were lodged recently. All up five manufacturers including Honda, Subaru, Nissan, Toyota and BMW are now facing class-action law suits. It is claimed the car manufacturers marketed, distributed and promoted defective vehicles fitted with Takata airbags, stating they were safe to drive and did not take adequate steps to warn people of the dangers. Mr Scattini said the court action is seeking refunds based on an Australian consumer law that entitles consumers to refunds if a product has a fault that makes it unsafe and the problem cannot be rectified within a reasonable time. BMW Group Australia and Nissan Australia have been contacted for comment. Last year, the Japanese company, Takata Corporation, pleaded guilty to fraud and agreed to pay a $US1 billion ($1.3 billion) penalty for concealing evidence that its airbag inflators could explode with too much force. In the defective airbags, the ammonium nitrate used to inflate the airbags deteriorates over time and when deployed can shoot out shards of metal at people in the car. More than 180 injuries have been recorded worldwide, prompting the recall of 100 million vehicles globally -- making it the biggest recall in automotive history. The faulty airbags have been linked to the death of a 58-year-old Australian man in Sydney. A 21-year-old woman in Darwin was also injured in April. In Australia, 2.1 million vehicles have been recalled, but an investigation by consumer group Choice last year found more than two-thirds of those have not yet had their faulty airbags replaced. The three-month investigation found car owners were being told by manufacturers there was a minimum six-month wait to remove the potentially lethal safety devices. Choice also found that a number of car manufacturers, including BMW, have been replacing the airbags with like-for-like devices as a temporary fix. Last year, the Minister for Small Business Michael McCormack proposed a compulsory recall of all vehicles with defective Takata airbags installed which would require car makers to replace airbags within a specific timeframe. [GN] BP EXPLORATIONS: "Harriel" Suit Transferred to Mississippi ---------------------------------------------------------- In the case, KEVIN HARRIEL, v. BP EXPLORATION & PRODUCTION INC. ET AL. SECTION "J"(2), Civil Action No. 17-7024 (E.D. La.), Magistrate Judge Joseph C. Wilkinson, Jr. of the U.S. District Court for the Easter District of Louisiana (i) denied the Plaintiff's Motion to Compel Disclosure and Motion to Conduct Further Proceedings in the Eastern District of Louisiana; (ii) granted the Defendant's motion to transfer venue; and (iii) transferred the case to the U.S. District Court for the Southern District of Mississippi, Eastern Division. The BELO portion of the Medical Benefits Class Action Settlement Agreement in In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, and the Court's Case Management Orders ("CMO") in the case, provide for determination by the Court, with the input of the parties, of the appropriate venue for discovery and dispositive proceedings. Harriel filed a Motion to Compel Disclosure and a Motion to Conduct Further Proceedings in the Eastern District of Louisiana. He seeks to compel the Defendants to provide the names, addresses and telephone numbers of all employees or co-workers who worked with him while he was employed by Dynamic Environmental, Inc. as a cleanup worker at the "ERG BP Yard" in Morgan City, Louisiana, and while he was employed by Wallace-Eutaw, LLC as a beach cleanup worker in Gulfport, Mississippi. This type of discovery is expressly prohibited by the CMO, which limits the information that the parties must exchange during the initial proceedings phase of the lawsuit. The Defendants filed a timely memorandum in opposition to the Plaintiff's motion to compel, and filed a Motion to Transfer Venue to the U.S. District Court for the Southern District of Mississippi. Magistrate Judge Wilkinson finds that the CMO provides that no discovery may be commenced and all discovery in all BELO lawsuits is stayed at this time. Discovery is prohibited until after any BELO lawsuit is transferred to another court or reallotted within the Eastern District of Louisiana as provided in the CMO. The Plaintiff may seek discovery of additional information pursuant to the appropriate Federal Rules of Civil Procedure after the case is transferred or reallotted. Accordingly, the Judge denied Harriel's motion to compel disclosure of additional information. Considering the factors set forth in 28 U.S.C. Section 1404(a) and applicable case law, and the disclosure information provided by the Plaintiff, the Magistrate Judge finds that the most appropriate venue for further proceedings in the BELO lawsuit is the Southern District of Mississippi, Eastern Division. The convenience of the parties and witnesses and the interests of justice warrant transfer of the case. A magistrate judge is authorized to transfer a case of this sort to another district. Accordingly, he transferred the instant matter to the U.S. District Court for the Southern District of Mississippi, Eastern Division. A full-text copy of the Court's Dec. 6, 2017 Order and Reasons is available at https://www.leagle.com/decision/infdco20171207c41 from Leagle.com. Kevin Harriel, Plaintiff, represented by Franklin G. Shaw, Leger & Shaw. Kevin Harriel, Plaintiff, represented by Brigid E. Collins, Leger & Shaw, Walter John Leger, III, Leger & Shaw & Walter John Leger, Jr., Leger & Shaw. BP Exploration & Production, Inc., Defendant, represented by Kevin Michael Hodges -- khodges@wc.com -- Williams & Connolly, LLP, Catherine Pyune McEldowney -- cpm@maronmarvel.com -- Maron Marvel Bradley and Anderson LLC & Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis. BP America Production Company, Defendant, represented by Kevin Michael Hodges, Williams & Connolly, LLP, Catherine Pyune McEldowney, Maron Marvel Bradley and Anderson LLC & Don Keller Haycraft, Liskow & Lewis. A full-text copy of the Court's Dec. 6, 2017 Order is available at https://is.gd/lN5bQJ from Leagle.com. Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, Telephone: (337) 436-6611, COUNSEL FOR: Plaintiff/Appellee -- Christus Health Southwest Louisiana d/b/a Christus St. Patrick Hospital. Kevin Andrew Marks -- kmarks@mmkfirm.com -- Melchiode, Marks, King, LLC, 639 Loyola Avenue - Suite 2550, New Orleans, LA 70113, Telephone: (504) 336-2880, COUNSEL FOR: Defendants/Appellants - Bridgefield Casualty Insurance Company and All About You Home Healthcare, Inc. BUFFALO WILD: Monteverde & Associates Files Class Action -------------------------------------------------------- Monteverde & Associates PC on Jan. 9 disclosed that it has filed a class action lawsuit in the United States District Court for The District of Minnesota, case no. 0:18-cv-00047, on behalf of shareholders of Buffalo Wild Wings, Inc. ("Buffalo Wild Wings" or the "Company") (NASDAQ: BWLD) who held Buffalo Wild Wings securities and have been harmed by Buffalo Wild Wings and its board of directors' (the "Board") for alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the merger of the Company to Arby's Restaurant Group, Inc. Under the terms of the Merger Agreement, Buffalo Wild Wings shareholders will have the right to receive $157.00 in cash per share for each share of Company common stock they own (the "Merger Consideration"). The Proposed Transaction is valued at approximately $2.9 billion. December 28, 2017, Buffalo Wild Wings filed a Definitive Proxy Statement (the "Proxy") on Schedule 14A with the SEC. The complaint alleges that the Proxy, which recommends that Buffalo Wild Wings shareholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) the financial analyses conducted by the Company's financial advisor, Goldman Sachs & Co. LLC ("Goldman Sachs"); and (ii) past dealings or a historical relationship between Goldman Sachs and either Buffalo Wild Wings or Arby's. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 9, 2018. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: www.monteverdelaw.com/investigations/m-a/ It is free and there is no cost or obligation to you. Monteverde & Associates PC is a boutique class action securities and consumer litigation law firm committed that has recovered millions of dollars and is committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 [GN] CARMAX BUSINESS: "Santos" Suit Dismissed w/ Leave to Amend ---------------------------------------------------------- In the case styled ANTHONY GILBERT SANTOS, Plaintiff, v. CARMAX BUSINESS SERVICES, LLC, et al., Defendants, Case No. 17-cv-02447- RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California granted Carmax's motion to dismiss Santos' amended putative class action complaint. In 2006, Santos purchased a 2002 Ford F-150 pickup truck from a California Carmax location. According to Santos, that vehicle was subject to an active safety recall by the National Highway Traffic Safety Administration ("NHTSA") due to a risk of catching fire, even when parked without the engine running. Santos asserts that he was not aware of the recall at the time he acquired the truck, and that Carmax failed to inform him of the recall. He also claims that during the period leading up to the fire, nothing put him on notice of the vehicle's problems. On April 29, 2014, Santos's F-150 caught fire while parked in his driveway with its engine off. The vehicle was completely destroyed. As a result, Santos filed this putative class action on April 28, 2017, which was dismissed on Aug. 9, 2017. In his amended complaint, Santos advances eight claims for relief: violation of the Magnuson-Moss Warranty Act; violation of California's Unfair Competition Law; violation of California's False Advertising Law; violation of California Consumer Legal Remedies Act; breach of implied warranty of merchantability; violation of the Song-Beverly Consumer Warranty Act; breach of contract; and common law representation. Carmax once again moves to dismiss, arguing, among other things, that all of Santos' claims are barred by the applicable statutes of limitations. In opposition, Santos concedes that his Magnuson-Moss Warranty Act and Song-Beverly Consumer Warranty Act claims are not timely. He asserts that his other claims, however, are not time-barred because he did not discover the facts giving rise to his claims until 2014. Judge Seeborg holds that Santos alleges facts demonstrating that his discovery of the issues with his vehicle was hindered by Carmax's guarantee that there were no such issues. To impose an unreasonable obligation on consumers to double-check every guarantee made by their used-car dealer would render those guarantees virtually meaningless. Accordingly, Santos has successfully invoked the discovery rule with respect to his remaining claims. As to Carmax's motion to dismiss on the grounds that Santos' claims sound in fraud and are not pleaded in accordance with the heightened requirements of Federal Rule of Civil Procedure 9(b), the Judge holds the FAC does not make the necessary temporal connection to satisfy the Rule 9(b) pleading standard. Although Santos adequately identifies the misrepresentations at issue (the 125+ Point Inspection guarantee and failure to disclose the active recall) and the general format in which these representations take place, he fails to specify how he was exposed to the representations at the time he purchased his vehicle from Carmax. The Judge says the Plaintiff amend his complaint to, for example, allege that a Carmax salesperson represented that his vehicle had passed the inspection and was free of defects, that the 125+ Point Inspection was advertised at the dealership where Santos purchased his vehicle, or that Santos saw the guarantee advertised on Carmax's website before he purchased his vehicle. As pled, however, his FAC does not make the necessary temporal connection to satisfy the Rule 9(b) pleading standard. Judge Seeborg therefore dismissed the FAC with leave to amend. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/wLHuGQ from Leagle.com. Anthony Gilbert Santos, Plaintiff, represented by Edward William Hess, Jr. -- ed_hess@pacbell.net -- Law Offices of Edward W. Hess, Jr.. Carmax Business Services, LLC, Carmax Auto Superstores California, LLC, Carmax Auto Superstores West Coast, Inc. & Carmax, Inc., Defendants, represented by Alan Durrum Wingfield -- alan.wingfield@troutman.com -- Troutman Sanders LLP & Chad R. Fuller -- chad.fuller@troutman.com -- Troutman Sanders LLP. CAVALRY PORTFOLIO: Court Narrows Claims in "Clark" FDCPA Suit ------------------------------------------------------------- Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted in part and denied in part the CPS and CSI's motion to dismiss the case, LUKE CLARK, on behalf of himself and all others similarly situated, Plaintiff, v. CAVALRY PORTFOLIO SERVICES, LLC, CAVALRY SPV I, LLC, and SCHACHTER PORTNOY, LLC, Defendants, Case No. 17 CV 99 (VB) (S.D. N.Y.). The Plaintiff had a credit card issued by HSBC Bank Nevada, N.A. He recalls using his HSBC credit card to purchase personal items, but does not aver whether he eventually failed to pay the balance. In any event, in 2009, HSBC "charged-off" $3,188.22 of his debt ("underlying debt"). In 2010, CSI acquired the Plaintiff's debt. According to the amended complaint, CSI is a wholly-owned subsidiary of CPS, and both entities are debt collectors. The Plaintiff was not notified by HSBC, CSI, or CPS about the assignment of his debt. On March 12, 2012, either CSI or CPS engaged SP, a law firm, to pursue a collection action against the Plaintiff. On Aug. 15, 2012, SP filed a complaint on CSI's behalf in Supreme Court, Sullivan County, to collect on the Plaintiff's debt ("state court action"). According to the Plaintiff, the summons and complaint in the state court action were served at his parents' address in Barryville, New York. At the time, he was estranged from his parents and living in California. Thus, he never received the service documents, nor was he made aware of the action against him. As such, the Plaintiff never appeared in the state court action. On Jan. 14, 2013, CSI obtained a default judgment against the Plaintiff in the amount of $4,294.80, which accounted for the underlying debt, plus interest, costs, and disbursements. On Aug. 25, 2015, the Plaintiff received a copy of his credit report and discovered CSI's judgment against him. On Aug. 24, 2016, the Plaintiff timely commenced the action in Supreme Court, Westchester County. The Plaintiff alleges the Defendants violated the Fair Debt Collection Act ("FDCPA") by (i) bringing the state court action in a judicial district where he did not reside at the commencement of the action (first cause of action); (ii) falsely stating that he owed interest on the underlying debt and seeking such interest in the state court action (second cause of action); (iii) attempting to collect a debt they did not have a legal right to collect, or standing to pursue (third cause of action); and (iv) threatening to take action they could not legally take (fourth cause of action). The Plaintiff further asserts the state court action and the Defendants' application for a default judgment amounted to a deceptive act and practice in violation of New York General Business Law ("GBL") Section 349 (fifth cause of action). On June 28, 2017, the Plaintiff voluntarily dismissed his claims against SP pursuant to Rule 41(a)(1)(A)(ii). On Jan. 5, 2017, the Defendants removed the action to the Court. Before the Court is CPS and CSI's motion to dismiss pursuant to Rule 12(b)(6). The Defendants argue the Plaintiff's first cause of action must be dismissed because they're not vicariously liable for SP's decision to file the state court action in Sullivan County. They further argue the Plaintiff's second, third, fourth, and fifth causes of action must be dismissed because they are barred by the doctrine of res judicata. Judge Briccetti concludes that the Plaintiff has plausibly and sufficiently alleged the Defendants' control over SP such that they may be held vicariously liable for SP's actions. Accordingly, the motion to dismiss the Plaintiff's first cause of action will be denied. As to the Plaintiff's second, third, and fourth causes of action, the Judge agrees with the Defendants that these causes of action are barred by the doctrine of res judicata. He disagrees, however, as to the Plaintiff's fifth cause of action. He says the amount of judgment, and the Defendants' standing and legal right to bring the state court action and collect against the Plaintiff are issues that were decided when judgment was entered in CSI's favor. Accordingly, the Plaintiff's second, third, and fourth causes of action are barred by res judicata, and the Defendants' motion to dismiss those claims will be granted. Since the fifth cause of action arises from facts unrelated to the Defendants' right to collect on the underlying debt, the Judge will deny the Defendants' motion to dismiss the Plaintiff's fifth cause of action. For these reasons, Judge Briccetti granted in part and denied in part the Defendants' motion to dismiss the amended complaint. The second, third, and fourth causes of action are dismissed. The first and fifth causes of action will proceed. The Clerk is instructed to terminate the motion. A full-text copy of the Court's Dec. 29, 2017 Opinion and Order is available at https://is.gd/nNSLnw from Leagle.com. Luke Clark, On behalf of himself and all others similarly situated, Plaintiff, represented by Mitchell L. Pashkin, Mitchell L. Pashkin, Esq. Cavalry Portfolio Services, LLC & Cavalry SPV I, LLC, Defendants, represented by Thomas Robert Dominczyk -- tdominczyk@MauriceWutscher.com -- Maurice & Needleman, P.C.. CAVIUM INC: "Stein" Suit Alleges Exchange Act Violations -------------------------------------------------------- Shiva Stein, individually and on behalf of all others similarly situated v. Cavium, Inc., Syed B. Ali, Anthony S.Thornley, Sanjay Mehrotra, Edward H. Frank, Brad W. Buss, and Madhav V. Rajan, Case No. 5:18-cv-00141 (N.D. Calif., January 8, 2018), is brought against the Defendants for violations of the Securities Exchange Act of 1934. This is a shareholder class action brought by Plaintiff on behalf of herself and all other similarly situated public shareholders of Cavium to enjoin the Proposed Transaction whereby the Board has agreed to sell Cavium to Kauai Acquisition Corp., a wholly owned subsidiary of Marvell, for $40.00 in cash and 2.1757 shares of Marvell common stock for each share of Cavium stock owned. The Plaintiff alleges that rhe Proposed Transaction is at an unfair price and on grossly unfair and inadequate terms. The Plaintiff further asserts that Defendants failed to disclose certain material information necessary for Cavium stockholders to properly assess the fairness of the Proposed Transaction, thereby violating SEC rules and regulations and rendering certain statements in the S-4 materially incomplete and misleading. Plaintiff has owned the common stock of Cavium since prior to the announcement of the Proposed Transaction herein complained of, and continue to own this stock. Cavium is a corporation organized and existing under the laws of the State of Delaware and maintains its principal offices in San Jose, California. Cavium is, and at all relevant times hereto was, listed and traded on the NASDAQ under the symbol "CAVM". Cavium is a provider of integrated semiconductor processors that enable intelligent processing for wired and wireless infrastructure and cloud for networking, communications, storage and security applications. The Individual Defendants are officers and directors of Cavium. [BN] The Plaintiff is represented by: Benjamin Heikali, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Blvd., Suite 1470 Los Angeles, CA 90024 Tel: (424) 256-2884 Fax: (424) 256-2885 E-mail: bheikali@faruqilaw.com - and - Gregory M. Nespole, Esq. Benjamin Kaufman, Esq. Gloria Kui Melwani, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Tel: (212) 545-4600 Fax: (212) 686-0114 CHARLES SCHWAB: 9th Cir. Affirms Dismissal of "Fleming" Suit ------------------------------------------------------------ Judge Andrew D. Hurwitz of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the cases styled FRANCIS X FLEMING, JR., Plaintiff-Appellant, v. THE CHARLES SCHWAB CORPORATION; CHARLES SCHWAB & CO., INC.; WALTER W. BETTINGER II; UBS SECURITIES LLC, Defendants-Appellees. LOUIS LIM, Individually And On Behalf Of All Others Similarly Situated, Plaintiff-Appellant, v. CHARLES SCHWAB & CO., INC., Defendant- Appellee, Case Nos. 16-15179, 16-15189 (9th Cir.). Schwab is a financial services firm that trades securities for its clients. In 2004, it agreed to route 95% of its "non- directed trades" (trades for which clients have not selected another trading venue) to UBS Securities, LLC. Lim and Charles Fleming are Schwab retail customers. Their Account Agreements state that Schwab routes equity and options orders for execution to UBS and note that Schwab may receive remuneration from a market center to which orders are routed. Nonetheless, the Plaintiffs alleged in separate complaints, that Schwab breached various state-law duties by routing trades to UBS. They claimed that Schwab could have routed trades to many other venues, and that its arrangement with UBS sometimes resulted in unfavorable executions, both in terms of price and speed. On May 8, 2005, Lim filed a putative class action complaint in the Northern District of California alleging that Schwab's routing of order executions to UBS (1) violated the California Unfair Competition Law ("UCL"); (2) breached Schwab's fiduciary duty to its clients; and (3) unjustly enriched Schwab. Lim alleged that Schwab's common law duty of best execution in routing its clients' orders required Schwab to consider numerous factors when routing client trades, including execution price, market depth, order size, and trading character of the security. By blindly routing non-directed orders to UBS, Lim alleged, Schwab breached this duty. On June 24, 2015, Fleming filed a similar putative class action complaint in the same court against Schwab and UBS. Fleming alleged that Schwab (1) breached its contract; (2) violated the UCL; (3) engaged in intentional misrepresentation; and (4)engaged in negligent misrepresentation. Fleming also alleged that UBS violated the UCL. After the two cases were assigned to the same district judge, Schwab and UBS moved to dismiss the complaints. They assert the Plaintiffs lacked Article III standing or, in the alternative, that Securities Litigation Uniform Standards Act ("SLUSA") deprived the district court of subject matter jurisdiction. The district court upheld the Plaintiffs' standing, but dismissed both actions pursuant to SLUSA. The issue for decision is whether SLUSA deprived the district court of subject matter jurisdiction over complaints alleging a breach by a securities dealer of the "duty of best execution" in completing trades. Examining the substance of the allegations of the Plaintiffs' complaints, Judge Hurwitz concludes that all of the pleaded causes of action allege deceptive conduct. The district court correctly characterized the gravamen of these complaints as Schwab either misrepresented that best execution would be achieved for its customers, or failed to disclose that best execution was no longer possible. In either case, the district court properly concluded, the Plaintiffs are accusing Schwab of engaging in deceptive conduct. However, the Judge says that complaints merely involving contract interpretation that do not allege deception or manipulation are not covered by SLUSA even if they involve securities. And, only actions filed on behalf of a covered class (more than 50 people) fall within SLUSA's purview. The Plaintiffs assert that because the promise of best execution does not induce clients to trade a particular security, Schwab's breach of its best execution duty cannot be "in connection with" the Plaintiffs' trades. But SLUSA requires only that the misrepresentation makes a significant difference to someone's decision to purchase or to sell a covered security. Finally, as to Fleming's allegation that UBS violated the UCL by allowing so-called "high frequency traders" access to Schwab's order flow, enabling them to engage in market manipulation, the Judge finds that the complaint contended that once the trades from Schwab are routed to UBS, they are vulnerable to multiple forms of manipulation, resulting in a loss of profit opportunities for Schwab clients. He says the complaint thus plainly pleads a manipulative or deceptive device or contrivance in connection with the purchase or sale of a covered security, and is SLUSA-barred. For these reasons, Judge Hurwitz affirmed the judgment of the district court. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/BDcYX4 from Leagle.com. Andrew Love -- alove@rgrdlaw.com -- (argued) and Susan K. Alexander -- salexander@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, San Francisco, California; Juan Carlos Sanchez -- jsanchez@rgrdlaw.com -- Ashley M. Price -- aprice@rgrdlaw.com -- Benny C. Goodman III -- bennyg@rgrdlaw.com -- and Andrew J. Brown -- andrewb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, San Diego, California; Gerald L. Rutledge and Alfred G. Yates Jr. -- info@yatesclassactionlaw.com -- Law Office of Alfred G. Yates Jr. P.C., Pittsburgh, Pennsylvania; for Plaintiff-Appellant. Francis X Fleming Jr. Leslie E. Hurst -- lhurst@bholaw.com -- (argued), Paula R. Brown, Thomas J. O'Reardon II -- toreardon@bholaw.com -- and Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Reardon LLP, San Diego, California; Leonid Kandinov -- lkandinov@robbinsarroyo.com -- Ashley R. Rifkin -- arifkin@robbinsarroyo.com -- Kevin A. Seely -- kseely@robbinsarroyo.com -- and Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP, San Diego, California; David J. Harris Jr. , William R. Restis -- support@restislaw.com -- and Jeffrey R. Krinks , Finkelstein & Krinsk LLP, San Diego, California; for Plaintiff- Appellant. Louis Lim. David C. Bohan -- david.bohan@kattenlaw.com -- (argued), Patrick M. Smith -- patrick.smith@kattenlaw.com -- Peter G. Wilson -- peter.wilson1@kattenlaw.com -- and Allison M. Freedman -- allison.freedman@kattenlaw.com -- Katten Muchin Rosenman LLP, Chicago, Illinois, for Defendant-Appellee UBS Securities LLC. Gilbert R. Serota -- gilbert.serota@apks.com -- (argued) and Erica M. Connolly -- econnolly@velaw.com -- Arnold & Porter LLP, San Francisco, California; Lowell Haky -- lowell.haky@schwab.com -- and Mai Klaassen -- mai.klaassen@schwab.com -- Charles Schwab & Co. Inc., San Francisco, California; for Defendants-Appellees The Charles Schwab Corp., Charles Schwab & Co. Inc., and Walter W. Bettinger II. CHERRY HILL GOURMET: "Cuahuizo" Suit Seeks Unpaid Wages ------------------------------------------------------- PANFILO CUAHUIZO, on behalf of himself, and others similarly situated, the Plaintiff, v. CHERRY HILL GOURMET, INC., doing business as CHERRY HILL GOURMET MARKET, located at 1901 Emmons A venue, Brooklyn, New York 11235, and DAVID ISAEV, individually, Defendants, the Defendants, Case No. 1:17-cv-06895-KAM-RLM (E.D.N.Y., Nov. 27, 2017), seeks to recover unpaid wages and minimum wages; unpaid overtime compensation; liquidated damages; prejudgment and post-judgment interest; and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff is an adult resident of Kings County, New York. Panfilo Cuahuizo was employed by Defendants in Brooklyn, New York, to work as a stock person and cleaner/general helper in the produce department, for Defendants' grocery store known as "Cherry Hill Gourmet" from September 15, 2009, continuously through September 29, 2017. The Defendants knowingly and willfully failed to pay Plaintiff his lawfully earned wages in contravention of the FLSA and New York Labor Law. During Plaintiff's employment by Defendants, he worked over 40 hours per week. The Plaintiff generally worked six shifts per week, 12 hours per shift. As such, Plaintiff's worked approximately 72 hours per week. Plaintiff was not paid for all hours worked, or overtime compensation.[BN] Attorneys for Plaintiff: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third A venue - 6th Floor New York, NY 10017 Telephone: (212) 209 3933 Facsimile: (212) 209 7102 E-mail: pcooper@jcpclaw.com COMPUTER SCIENCES: Fails to Provide Rest Periods, Action Claims --------------------------------------------------------------- John Arreola, an individual, on behalf of himself and all others similarly situated v. Computer Sciences Corporation and Does 1 through 100, Case No. BC690043 (Cal. Super. Ct., January 11, 2018), is brought against the Defendants for failure to provide rest period of at least 10 minutes for each 4-hour period worked. Computer Sciences Corporation is in the business of providing information technology services to businesses. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. HAINES LAW GROUP, APC 2274 East Maple Ave. El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroiip.com - and - Sam Sani, Esq. SANI LAW, APC 1055 West 7th Street, 33rd Floor Los Angeles, CA 90017 Telephone: (310) 935-0405 Facsimile: (310)935-0409 E-mail: ssani@sanilawfirm.com CORELOGIC INC: Mitchell Sues for Denied OT Pay, Wage Statements --------------------------------------------------------------- Harriett Mitchell, individually, on behalf of others similarly situated, and on behalf of the general public, Plaintiff, v. CoreLogic, Inc. (d/b/a CoreLogic Valuation Solutions, Inc.) and Does 1-10, inclusive, Case No. 17-cv-02274, (C.D. Cal., December 29, 2017), seeks redress for Defendant's failure to pay overtime compensation and provide wage statements in violation of the Fair Labor Standards Act, California Labor Code and the California Business and Professions Code. Mitchell conducts residential appraisals for Defendants' property appraisal business. Plaintiff is represented by: Bryan J. Schwartz, Esq. DeCarol A. Davis, Esq. 1330 Broadway, Suite 1630 Oakland, CA 94612 Telephone: (510) 444-9300 Facsimile: (510) 444-9301 Email: bryan@bryanschwartzlaw.com decarol@bryanschwartzlaw.com CORIZON HEALTH: Ninth Cir. Appeal Filed in "Abraham" Class Suit --------------------------------------------------------------- Plaintiff Andrew Abraham filed an appeal from a court ruling in the lawsuit styled Andrew Abraham v. Corizon Health, Inc., Case No. 3:16-cv-01877-PK, in the U.S. District Court for the District of Oregon, Portland. As previously reported in the Class Action Reporter, the lawsuit was filed against Clackamas County, and Corizon Health, Inc., formerly known as: Prison Health Services, Inc., on September 23, 2016. The case was assigned to Magistrate Judge Paul Papak. The lawsuit is brought under the Americans with Disabilities Act. The appellate case is captioned as Andrew Abraham v. Corizon Health, Inc., Case No. 17-36047, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by January 29, 2018; -- Transcript is due on February 26, 2018; -- Appellant Andrew Abraham's opening brief is due on April 9, 2018; -- Appellee Corizon Health, Inc.'s answering brief is due on May 7, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant ANDREW ABRAHAM, on behalf of himself, and for all others similarly situated, is represented by: John David Burgess, Esq. Carl L. Post, Esq. Daniel J. Snyder, Esq. LAW OFFICES OF DANIEL J. SNYDER 1000 S.W. Broadway Portland, OR 97205 Telephone: (503) 241-3617 Facsimile: (503) 241-2249 E-mail: johnburgess@lawofficeofdanielsnyder.com carlpost@lawofficeofdanielsnyder.com dansnyder@lawofficeofdanielsnyder.com Defendant-Appellee CORIZON HEALTH, INC., FKA Prison Health Services, Inc., is represented by: Anne M. Talcott, Esq. SCHWABE, WILLIAMSON & WYATT 1211 SW 5th Avenue Portland, OR 97204 Telephone: (503) 222-9981 E-mail: atalcott@schwabe.com COUNTY OF LOS ANGELES, CA: "Harris" Suit Dismissed With Prejudice ----------------------------------------------------------------- Judge Otis D. Wright II of the U.S. District Court for the Central District of California dismissed with prejudice the case, BERNADINE HARRIS; OUDY WALL; and MARIA REYES, on behalf of themselves and all others similarly situated, Plaintiff, v. COUNTY OF LOS ANGELES, a public entity; ERIC GARCETTI, in his official capacity as Mayor of Los Angeles; CITY OF LOS ANGELES, a public entity; CITY OF INGLEWOOD, a public entity; CITY OF HAWTHORNE, a public entity; CITY OF GARDENA, a public entity; CITY OF TORRANCE, a public entity; CITY OF CARSON, a public entity; and DOES 1 through 50, inclusive, Defendants, Case No. 2:17-cv-08293-ODW (AGR) (C.D. Cal.). The Plaintiffs filed the action in Los Angeles Superior Court on Aug. 29, 2017, and assert numerous claims for the Defendants' purported violations of the Americans with Disabilities Act ("ADA"), among other derivative causes of action. On Nov. 14, 2017, the City of Los Angeles removed the case. Several of the Defendants joined in the removal, and then moved to dismiss the Plaintiffs' Complaint. The cities of Carson, Inglewood, and Hawthorne moved to dismiss the Plaintiffs' Complaint on Nov. 21, 2017. The City of Los Angeles moved to dismiss on Nov. 27, 2017. And the City of Torrance moved to dismiss on Dec. 6, 2017. All of the moving Defendants noticed the hearing for their respective motions on Jan. 8, 2018. Accordingly, the Plaintiffs' oppositions to the motions to dismiss were due on Dec. 18, 2017. The Plaintiffs have not opposed any of the motions. On Dec. 19, 2017, Plaintiff Harris voluntarily dismissed her claims against the City of Los Angeles, and City of Gardena. Since Harris dismisses her action against the City of Gardena, one of several Defendants named in the class action complaint that has not filed an answer or motion for summary judgment. Similarly, although the City of Los Angeles filed a Motion to Dismiss, Harris still has the "absolute right" to dismiss her action against that the Defendant prior to the filing of its answer or motion for summary judgment. Accordingly, Judge Wright will dismiss Harris' action against the City of Gardena and City of Los Angeles. Subject to the Court's ruling on the pending motions to dismiss, to the extent Harris has claims against any of the other Defendants, they remain intact. The Judge holds that the Plaintiffs' failure to oppose the motions to dismiss demonstrates that the Plaintiffs are not interested in prosecuting the action. He says the Plaintiffs are represented by counsel in this class action, and thus cannot claim ignorance of deadlines. Furthermore, on Nov. 16, 2017, the Court issued a minute order advising that the counsel are strongly encouraged to review the Central District's website for additional information. The Plaintiffs' lack of diligence is highlighted by the fact that their counsel is aware of the action since he filed dismissals on behalf of Harris, but still failed to oppose the four pending motions to dismiss. While there may be less drastic sanctions available, this factor does not weigh heavily in either direction. Accordingly, the Judge will grant the Defendants' motions to dismiss. For these reasons, Judge Wright dismissed Harris' action against City of Los Angeles and City of Gardena. He also granted City of Inglewood, City of Hawthorne, City of Torrance, City of Los Angeles, and City of Carson's Motions to Dismiss. Therefore, the Plaintiffs' action against each of the foregoing Defendants is dismissed with prejudice. With respect to the City of Los Angeles' Motion to Dismiss, the Judge did not grant it as to Harris because she dismissed her action prior to the Order. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/tacemj from Leagle.com. Bernadine Harris, on behalf of themselves and all others similarly situated, Oudy Thomas Wall, Jr., on behalf of themselves and all others similarly situated & Maria Reyes, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jonathan Daniel Winters -- jwinters@jwinterslaw.com -- Law Offices of Jonathan Winters. County of Los Angeles, a public entity, Defendant, represented by Dusan Pavlovic -- dpavlovic@counsel.lacounty.gov -- Office of the County Counsel. City of Los Angeles, a public entity, Defendant, represented by Kevin E. Gilbert -- kgilbert@ohshlaw.com -- Orbach Huff Suarez and Henderson LLP. City of Inglewood, a public entity & City of Hawthorne, a public entity, Defendants, represented by Kenton E. Moore -- kmoore@mccuneharber.com -- McCune and Harber LLP & Benson Edward Garrett -- bgarrett@mccuneharber.com -- McCune and Harber LLP. City of Carson, a public entity, Defendant, represented by Marsha Michiko Yasuda -- myasuda@awattorneys.com -- Aleshire and Wynder LLP. City of Torrance, a public entity, Defendant, represented by Daniel K. Spradlin -- dspradlin@wss-law.com -- Woodruff Spradlin and Smart APC & Myles S. Couch -- mcouch@wss-law.com -- Woodruff Spradlin and Smart APC. COVELLI ENTERPRISES: Ex-Panera Bread Employee Files Class Action ---------------------------------------------------------------- Lindsay McCoy, writing for WFMJ, reports that an employee who worked at a Northeast Ohio Panera Bread files a class action lawsuit against Covelli Enterprises, claiming she wasn't paid for working overtime. The plaintiff in the lawsuit worked as an assistant manager at a Panera in Wadsworth, which is just outside of Akron. Erin E. Kis and her attorney are alleging violations under the Federal Fair Labor Standards Act. Covelli Enterprises describes the lawsuit as "frivolous". The lawsuit claims Covelli Enterprises allegedly violated state law by failing to pay assistant managers time and half for hours worked beyond 40 hours. The class action suit seeks to include current and former employees that worked as assistant managers in the U.S. dating back three years from the day the suit was filed and those who work or worked as assistant managers at Ohio Panera Bread locations dating back the last two years. 21 News reached out to Kis and her attorney and have yet to hear back. Covelli Enterprises is headquartered in Warren. It's the largest Panera Bread franchisee with more than 250 locations, including many in Ohio. The company released this statement in response to the lawsuit filed on Jan. 9: "The accusations in the complaint are 100 percent false. These are salaried employees, who our company is vigilant about paying fairly and in compliance with all wage and hour laws. All employees who are entitled to overtime pay are paid by the Company in accordance with the law. Unfortunately, these types of frivolous lawsuits involving salaried managers have become too common place in the service industry. We thank our employees for their hard work and dedication and look forward to seeing this case dismissed." [GN] DEMI AG INC: Court Enters Default Judgment in "Juarez" Labor Suit ----------------------------------------------------------------- Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California granted in part and denied in part the Plaintiffs' motion for entry of default judgment in the case captioned OCTAVIANO JUAREZ, et al., Plaintiffs, v. RAFAEL VILLAFAN, et al., Defendants, Case No. 1:16-cv-00688-DAD-SAB (E.D. Cal.). The Plaintiffs are a group of workers who were employed by the Defendants pursuant to an oral contract of employment in Fresno County. They Plaintiffs were hired to pick grapes from Sept. 11, 2015 through Sept. 15, 2015. Defendants Villafan and Demi Ag were operating as farm labor contractors without a license as required by Cal. Labor Code Section 1683(a) and/or as labor contractors under Cal. Labor Code Section 2810.3(b). The Plaintiffs allege that Defendant Sangha Sundip Singh contracted with Defendant Villafan, Defendant Demi Ag, and/or Defendant Rafael Villafan, doing business as Demi Ag, Inc., to supply workers to perform agricultural work on his vineyards in Selma. The Plaintiffs filed the action on May 13, 2016, alleging violation of the Fair Labor Standards Act ("FLSA"); violation of the Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"); and California labor law; California's Unfair Competition Law; and the Private Attorney General Act ("PAGA"). Defendant Villafan has not answered the complaint. Defendant Demi Ag answered the complaint on June 3, 2016. However, the answer was filed by the owner of the business, Margarita Ortega, and not a lawyer. On June 7, 2016, the Court issued an order requiring Defendant Demi Ag to retain counsel and have said counsel appear in the matter. When Defendant Demi Ag did not respond to the June 7, 2016 order, the Court issued an order requiring Defendant Demi Ag to show cause why its answer should not be stricken for its failure to comply with the Court's June 7, 2016 order. Defendant Demi Ag did not respond to the Court's order to show cause. Therefore, on Aug.23, 2016, the Court struck Defendant Demi Ag's answer from the record. On Sept. 27, 2016, the Plaintiffs filed an amended request to enter default against Defendants Villafan and Demi Ag. On that same day, the Court entered default against these Defendants. On Oct. 6, 2016, the Plaintiffs filed a first amended complaint against Defendants Villafan, Demi Ag and Singh. On May 4, 2017, the Plaintiffs settled with Defendant Singh. On Oct. 6, 2017, the Plaintiffs filed a motion for default judgment against Defendants Villafan and Demi Ag. They're not seeking recovery for the fifteenth claim in the motion for default judgment as they concede the claim under California's Unfair Competition Law. The motion was served on Defendant Demi Ag, who has appeared, but not on Defendant Villafan, who has not appeared. During the Nov. 22, 2017 hearing on the motion for default judgment, the Plaintiffs requested that they be allowed to file supplemental briefing to address some of the Court's questions. On Nov. 22, 2017, the Court directed the Plaintiffs to file supplemental briefing regarding the motion for default judgment. After receiving an extension of time, the Plaintiffs filed their supplemental briefing on Dec. 8, 2017. The Magistrate Judge concludes that Defendants Villafan and Demi Ag's failure to respond was due to the affirmative decision not to oppose the action rather than excusable neglect. He says the defaulting Defendants have not defended the action despite having the opportunity to do so. Accordingly, he finds that the Plaintiffs are entitled to default judgment and the motion should be granted. Magistrate Boone finds that the Plaintiffs sufficiently allege that the defaulting Defendants have violated the FLSA by failing to provide at least minimum wages to Plaintiffs by not paying them wages due and owing to them. Therefore, Plaintiffs sufficiently plead the FLSA claim for failure to pay minimum wages. He also finds that the Plaintiffs have sufficiently alleged that the defaulting Defendants violated four provisions of the AWPA: 29 U.S.C. Section 1831(b); 29 U.S.C. Section 1831(c)(2); 29 U.S.C. Section 1832(a); and 29 U.S.C. Section 1832(c). For the Plaintiffs' third claim, the Magistrate Judge finds that Plaintiff Arturo Santo has not sufficiently stated a claim for wages owed entitling them to recover piece-rate wages under Sections 216 and 218 of the California Labor Code. However, he finds that Plaintiffs Octaviano Juarez, Angel Mendez Mendez, Noe Moises Ramirez Salazar, Patricio Reyes Venegas, Alejandro Rivera Fonseca, Daniel Ramirez Cuevas, Sergio Gomez Gonzales, Abel Isidro B., Pablo Lopez Cruz, Angelina Isidro B., Honorina Cruz Salinas, Rolando Juarez Martinez, Manual Juarez Ramirez, and Juana R. Mayoral Silva have sufficiently alleged a claim for and are entitled to damages for failure to pay wages owed under sections 201 and 218 of the Labor Code. Magistrate Boone finds that the Plaintiffs have sufficiently alleged (i) that the Defendants failed to pay them minimum wages under California law; (ii) that they are owed liquidated damages for failure to pay minimum wage under Cal. Lab. Code Section 1194.2; and (iii) that the Defendants failed to provide Plaintiffs with accurate wage statements, violating section 226(a. The Magistrate Judge further finds that (i) the Plaintiffs have not sufficiently alleged facts to state a claim for failure to allow inspection under Cal. Lab. Code Section 1695(a)(5); (ii) Plaintiff Juana Mayoral Silva has not sufficiently pled a claim for overtime; and (iii) the Plaintiffs have not sufficiently alleged facts to state a claim for failure to allow inspection under Cal. Lab. Code Section 1695(a)(5). For these reasons, Magistrate Boone recommended that the Plaintiffs' motion for entry of default judgment be granted in part and denied in part. He further recommended that judgment should be entered in the Plaintiffs favor and against Defendants Villafan and Demi Ag. The Plaintiffs should be awarded damages totaling $101,313.70, attorneys' fees in the amount of $44,525.25, and costs in the amount of $677.34. The total award should reduce by the $25,000 paid due to the settlement with Defendant Singh. These findings and recommendations are submitted to the district judge assigned to the action, pursuant to 28 U.S.C. Section 636(b)(1)(B) and the Court's Local Rule 304. Within 14 days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. Section 636(b)(1)(C). The Magistrate Judge advised the parties that failure to file objections within the specified time may result in the waiver of rights on appeal. A full-text copy of the Court's Dec. 29, 2017 Findings and Recommendations is available at https://is.gd/9vZDpC from Leagle.com. Octaviano Juarez, Angel Mendez Mendez, Noe Moises Ramirez Salazar, Patricio Reyes Venegas, Alejandro Rivera Fonseca, Daniel Ramirez Cuevas, Sergio Gomez Gonzales, Arturo Santos, Abel B Isidro, Pablo Lopez Cruz, Angelina B Isidro, Honorina Cruz Salinas, Manuel Juarez Ramirez, Juana Mayoral Silva & Rolando Juarez Martinez, Plaintiffs, represented by Aida S. Macedo -- asmacedo@mse-law.com -- Miles, Sears & Eanni, Blanca A. Banuelos, California Rural Legal Assistance & Estella Maria Cisneros -- ecisneros@crla.org -- California Rural Legal Assistance. Demi Ag. Inc., a California Corporation, Defendant, Pro Se. DRY CAST: Sent Unsolicited Fax Messages, "Conner" Suit Says ----------------------------------------------------------- Steven A. Conner DPM, P.C., individually and as the representative of a class of similarly-situated persons v. Dry Cast Holdings LLC d/b/a Dry Cast, Case No. 2:18-cv-00139-AB (E.D Penn., January 11, 2018), seeks to put an end to the Defendants' practice of sending one or more telephone facsimile messages about cast protection devices, without prior express consent. Dry Cast Holdings LLC is a manufacturer of dry cast original and dry cast swim products. The Plaintiff is represented by: Richard Shenkan, Esq. SHENKAN INJURY LAWYER LLC 6550 Lakeshore St. West Bloomfield, MI 48321429 Telephone: (248) 562-1320 Facsimile: (888) 769-1774 E-mail: rshenkan@shenkanlaw.com - and - Phillip A. Bock, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Ste. 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: service@classlawyers.com EDGEWELL PERSONAL: Wants Banana Boat Sunscreen Class Action Nixed ----------------------------------------------------------------- Stewart Bishop, writing for Law360, reports that an attorney for the makers of Banana Boat sunscreen on Jan. 10 asked a New York federal judge to toss a proposed class action claiming they falsely exaggerate the sun protection level on its children's sunscreen as SPF 50, when in fact it provides much less protection, saying the Food and Drug Administration should take up the dispute. The consolidated, putative class action was filed against Edgewell Personal Care Co., Playtex Products LLC and Sun Pharmaceutical LLC, which jointly manufacture the sunscreen. [GN] EDWARDS WILDMAN: Li Sues over Defective Cosmetic Products --------------------------------------------------------- SHUXIN LI, an individual, and Others Similarly Situated, the Plaintiffs, v. EDWARDS SCOTT PALMER, an individual, and EDWARDS WILDMAN LLP, RONNIE M. SCHMELZ, an individual, and Partner with EDWARDS WILDMAN; STEPHEN R. TUGGY, an individual, and Partner with LOCKE LORD, LLP SUZELLE M. SMITH, an individual, and Partner HOWARTH &SMITH, and DOES 1 through 10, inclusive, the Defendants, Case No. CV17-08732 (C.D. Cal., Dec. 4, 2017), seeks to recover damages as a result of Defendant's legal malpractice and constructive fraud. According to the complaint, in 2013, the principal party connected to the instant complaint is Jack Qin ("QIN") who at the time was a citizen of California and founder of EFT Holdings, Inc. ("EFT') As the Chief Executive Officer of EFT Holding, Inc., Qin was the President and Chairman of the Board of Directors. The Plaintiff alleges that EFT sold common stock to its customers at $3.80 per share. The Plaintiff and other class members were stockholders with a personal equity interest in EFT products allegedly made in United States, and sold in Asian markets, mostly to Chinese citizens, and Chinese Americans. The Plaintiff alleges that EFT is well an organized, well-funded, multijurisdictional in reach and with the express aimed of maximum profits from the distribution of its products to foreign countries allegedly made in the United States. While doing business in California in 2012, the Plaintiff alleges that Qin manufactured cosmetic and digestive products it knew were defective, unsafe, and offered the products on the market to consumers in the form of common stock or penny stock, knowing that the stock were worthless and would cause physical harm to consumers. The Plaintiff alleges Qin sold its EFT stock primarily to uninformed Chinese shareholders and Chinese Americans. The alleged products EFT sold on the market were mislabeled and false, and caused the Plaintiff and other class members to abdicate their equity interest in EFT shock, which caused the Plaintiff to suffer economic damages as a result.[BN] The Plaintiff is represented by: Shuxin, Li, Esq. 1320 West 83 Street Los Angeles, CA 90044 ELM RIDGE: Feb. 8 Planning Conference in "Neiberger" Suit --------------------------------------------------------- JOHN NEIBERGER, on behalf of himself and all similarly situated persons, the Plaintiff, v. ELM RIDGE OPERATING CO., INC., the Defendant, Case No. 1:17-cv-02886-MJW (D. Colo., Dec. 2, 2017), seeks to recover compensation, liquidated damages, attorneys' fees, and costs, pursuant to the Fair Labor Standards Act, the Colorado Wage Claim Act, and the Colorado Minimum Wage Act. The Plaintiff and the Putative Class Members are those similarly situated persons who worked for Elm Ridge and were paid a salary, but did not receive overtime for all hours worked over 12 in each day and/or 40) in each workweek. The Plaintiff and the Putative Class Members routinely work (and worked) in excess of 12 hours per day and/or 40 hours per workweek. The Plaintiff and the Putative Class Members were not paid overtime for all hours worked in excess of 12 per day and/or 40 hours per workweek. The decision by Elm Ridge not to pay overtime compensation to Plaintiff and the Putative Class Members was neither reasonable nor in good faith. Elm Ridge knowingly and deliberately failed to compensate Plaintiff and the Putative Class Members overtime for all hours worked in excess of 12 per day and/or 40 hours per workweek. * * * In a Dec. 6 Order, Magistrate Judge Michael J. Watanabe set this timeline: -- Consent/Non-Consent Form due on or before Jan. 25, 2018. -- Scheduling/Planning Conference set for Feb. 8, 2018, at 10:30 a.m. in Courtroom A 502. On Jan. 19, Defendant filed its answer to the Complaint. On Jan. 26, the case was randomly reassigned to Judge Philip A. Brimmer.[BN] Attorneys in Charge for Plaintiff and the Putative Class Members: Brian D. Gonzales, Esq. THE LAW OFFICES OF BRIAN D. GONZALES, PLLC 2580 East Harmony Road, Suite 201 Fort Collins, CO 80528 Telephone: (970) 214 0562 E-mail: BGonzales@ColoradoWageLaw.com - and - Clif Alexander, Esq. Lauren E. Braddy, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TXs 78401 Telephone: (361) 452 1279 Facsimile: (361) 452 1284 E-mail: clif@a2xlaw.com lauren@a2xlaw.com EXPRESS SCRIPTS: Averts Class Action Over Drug Pricing Methods -------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg BNA, reports that Anthem Inc. and Express Scripts Inc. defeated a proposed class action challenging their drug pricing methods under federal benefits, racketeering, and health discrimination law. The companies couldn't be liable under the Employee Retirement Income Security Act for allegedly setting high drug prices, because they weren't acting as ERISA fiduciaries when they set those prices, a federal judge ruled Jan 8. The judge also rejected claims by HIV-positive patients who said the high drug prices were discriminatory under the Affordable Care Act. He dismissed all claims in the 17-count lawsuit, although he gave the patients and health plans that filed suit another chance to litigate. The ruling is the latest chapter in the $15 billion battle between health insurer Anthem and pharmacy benefit manager (PBM) Express Scripts. Anthem sued Express Scripts in 2016, claiming the company was overcharging for prescription drug benefits in violation of the parties' agreement. That case remains pending after a federal judge dismissed some of Express Scripts' counterclaims against Anthem. Both cases stem from a 2009 deal in which Express Scripts agreed to provide prescription drug services for Anthem health plans and Anthem sold Express Scripts three PBM companies for more than $4 billion. The patients who filed this lawsuit say Express Scripts paid a multibillion-dollar premium for the PBM companies and in turn began significantly overcharging Anthem patients for prescription drugs. Anthem has since announced plans to start its own PBM unit and signed a five-year deal with Express Scripts' biggest competitor, CVS Health Corp. Case Dismissed The decision focused on whether Anthem and Express Scripts qualified as ERISA fiduciaries of the relevant health plans, and thus whether they could be liable for fiduciary breach. The patients said Express Scripts was an ERISA fiduciary because the company's deal with Anthem gave it discretion to set drug prices and therefore to determine what compensation it received from ERISA plan assets. The judge disagreed, saying service providers don't act as fiduciaries when they merely follow the terms of a contract. The patients also argued for Anthem's fiduciary status, saying the company exercised fiduciary discretion in creating this deal with Express Scripts. The judge again disagreed, saying Anthem was making business decisions -- and not plan administration decisions--when it contracted with Express Scripts and negotiated drug pricing terms. Finally, the judge rejected the idea that the pricing terms violated the ACA's nondiscrimination rules. The HIV-positive patients who advanced this argument didn't show they paid a disproportionately high amount for HIV-related drugs compared with other drugs, the judge said. In so ruling, the judge declined to decide whether the ACA's nondiscrimination rules, which prohibit health-based discrimination against people with disabilities, allows for a claim based on the "disparate impact" a policy could have on people with disabilities. Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York wrote the decision. The patients are represented by Keller Rohrback LLP, Consumer Watchdog, Whatley Kallas LLP, and Neubert Pepe & Monteith PC. Express Scripts is represented by Quinn Emanuel and Steptoe & Johnson LLP. Anthem is represented by White & Case LLP and Nelson Mullins Riley & Scarborough. The case is In re Express Scripts, Inc., 2018 BL 5645, S.D.N.Y., No. 1:16-cv-03399-ER, order granting motion to dismiss 1/5/18. [GN] FAIRWAY STAFFING: Fails to Pay Employees OT, "Gomez" Suit Says -------------------------------------------------------------- Maria Guadalupe Gomez, individually, and on behalf of others similarly situated v. Fairway Staffing Services, Inc., Elizabeth's Foods Co., Inc., and Does 1-50, Case No. BC689771 (Cal. Super. Ct., January 11, 2018), is brought against the Defendants for failure to pay overtime wages for work more than 40 hours in a week. Fairway Staffing Services, Inc. owns and operates an employment agency located at 17610 Bellflower Blvd. Suite A-204, Bellflower, CA 90706. Elizabeth's Foods Co., Inc. owns and operates a wholesale bakery located at 19301 S Santa Fe Ave, Compton, CA 90221. [BN] The Plaintiff is represented by: Heather Davis, Esq. Amir Nayebdadash, Esq. Cody Payne, Esq. Priscilla Gamino, Esq. PROTECTION LAW GROUP, LLP 136 Main Street, Suite A El Segundo, CA 90245 Telephone: (424) 290-3095 Facsimile: (866) 264-7880 E-mail: heather@protectionlawgroup.com amir@protectionlawgroup.com FCA US: Faces "Sheets" Class Suit Over Workers Benefits Seniority ----------------------------------------------------------------- Richard J. Sheets, Nichole Wawrzyniak, Jeffrey Weills, Deion C. Barnett Sr., Dennis Beaver, Don K. Byers, La Donn Coleman, Matthew G. Condon, Edmund Contreras, Andrew Czop, William F. Dear, Scott A. Deselms, Ryan Devol, Robert L. Dotson, Melissa Dotson, Marcus Everly, Pamela Gilmore, Randy Hall, Eve Harper, James M. Harrison, Robert E. Hartwig, Kim Hayward, Randall A. Holvey, Lisa Horn, Jose Huerta, Kenneth A. Kohn, Anthony M. Koperski, William Kuehling, Shawn Madalinski, Gregory Mattice, Daniel Miller, Nikola Nedeski, Earl R. Oswald Iii, Panfilo Ramon, Jr., Jason Renner, William D. Renner, Sharon Riger-Long, Tracey Rivard, Dennis J. Ross, Howard F. Rudes, Jamie Schetter, Donald J. Sinclair, Matthew Smith, Michael Stukenborg, Marc Styles, Kelley Szych, Paul Ulman, Sam Withrow, and Joseph A. Wood, individually and on behalf of others similarly situated v. FCA US LLC, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and United Automobile, Aerospace and Agricultural Implement Workers of America, Region 2B, Case No. 3:18-cv-00085 (N.D. Ohio, January 11, 2018), is brought on behalf of all individuals who were hired by nominally independent suppliers to work in a Chrysler plant, then unlawfully stripped of their Chrysler benefits and seniority. The Plaintiffs bring this action against FCA US LLC and their labor union, the United Automobile, Aerospace and Agricultural Implement Workers of America, for breach of a collective bargaining agreement pursuant to the Labor Management Relations Act, and against their labor union, the UAW International Union, for violations of its duty of fair representation by accepting bribes to bargain away the Plaintiffs' seniority and benefits. FCA US LLC operates a foreign automobile company organized under the laws of the State of Delaware. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America is one of the largest and most diverse labor organizations in the United States, representing over 400,000 active workers and 580,000 retirees. United Automobile, Aerospace and Agricultural Implement Workers of America, Region 2B is a labor organization and is a constituent part of the UAW International Union responsible for overseeing and supporting UAW locals in Ohio and Indiana. [BN] The Plaintiff is represented by: Leslie O. Murray, Esq. John T. Murray, Esq. Michael J. Stewart, Esq. MURRAY & MURRAY CO., L.P.A. 111 East Shoreline Drive Sandusky, OH 44870 Telephone: (419) 624-3125 Facsimile: (419) 624-0707 E-mail: lom@murrayandmurray.com jotm@murrayandmurray.com stewart@murrayandmurray.com FCA US: Court Issues Final Pretrial Order in "Hall" Suit -------------------------------------------------------- Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California has issued the final pretrial order in the case captioned, DENNIS L. HALL and MICHELLE L. HALL, Plaintiffs, v. FCA US LLC, a Delaware limited liability company, Defendant, Case No. 1:16-cv-00684-DAD-JLT (E.D. Cal.). On March 30, 2016, Plaintiffs Dennis Hall and Michelle Hall filed the action against FCA in the Kern County Superior Court, alleging state law causes of action for breach of express and implied warranties under the Song-Beverly Consumer Warranty Act, Cal. Civ. Code Section 1794 et seq., and fraudulent inducement. The Plaintiffs purchased a new 2012 Dodge Durango on Aug. 29, 2011, from Haddad Dodge. The subject vehicle was covered by express written warranties issued by FCA, including the "Basic Limited Warranty" and the "Powertrain Limited Warranty." The Plaintiffs timely submitted a request for exclusion from the proposed settlement of a class action lawsuit which concerned alleged defects in the TIPM-7 control module, Velasco, et al. v. Chrysler Group, LLC. The Plaintiffs seek restitution or damages for the diminished value of the vehicle, plus incidental and consequential damages. Additionally, they seek a civil penalty of up to two times the actual damages for the Defendant's alleged willful failure to comply with the Song-Beverly Act. They seek damages, including punitive damages, for the Defendant's fraudulent concealment of a known defect. The Plaintiffs request a jury trial. They suggested in the pretrial statement that they anticipated a jury trial lasting 10 to 12 days, while the Defendant estimates a jury trial would take five days. At the pretrial conference, the Plaintiffs' counsel agreed these cases typically require five to seven days of trial. Therefore, the Court anticipates the trial will consume approximately five court days. On Nov. 29, 2017, the Court issued a tentative pretrial order which gave the parties 14 days to file objections, and seven days thereafter to file any replies. The Defendant filed objections on Dec. 13, 2017. No objections were received from the Plaintiffs, and they filed no reply to the Defendant's objections. The Court now issues the final pretrial order. The parties have filed motions in limine. Opposition to these motions in limine will be filed no later than 14 days before trial and any replies will be filed no later than 10 days before trial. Upon receipt of any opposition briefs, the Court will notify the parties if it will hear argument on any motions in limine prior to the first day of trial. The parties have had settlement discussions, but have been unable to reach a resolution. They attended a mandatory, Court- supervised settlement conference on March 22, 2017, at which time the case did not settle. They plan to continue negotiating, and advised the Court at the Final Pretrial Conference that a further court-supervised settlement conference would not be helpful at this time. If the parties' position in that regard should change prior to trial, the counsel will so notify the Court. The parties do not seek a separate trial of any issues. They've each designated their own experts and do not seek Court-appointed impartial expert witnesses. Further, the parties do not believe that a limitation of the number of expert witnesses is advisable. The Defendant objects to the Plaintiff's expert witnesses as indicated. The Plaintiffs will move for an award of reasonable attorneys' fees and costs under California Civil Code Section 1794(d) if they are the prevailing party at trial or by settlement. The parties do not seek a protective order. Judge Drozd directed that the trial briefs addressing the points of law implicated by the remaining claims will be filed with the Court no later than seven days before trial in accordance with Local Rule 285. There are none abandoned claims or issues by the Plaintiffs. The Defendant withdraws its first, second, third, fourth, fifth, seventh, eighth, tenth, twelfth, thirteenth, sixteenth, seventeenth, eighteenth, and nineteenth affirmative defenses. The anticipated witnesses for both parties are named, including Dennis L. Hall, Michelle L. Hall and Michael McDowell, FCA's Person Most Knowledgeable, Irvine, California. Each party may call any witnesses designated by the other. Jury trial is set for Jan. 9, 2018 at 8:30 a.m. The trial is anticipated to last approximately five court days. The parties are directed to Judge Drozd's standard procedures available on his webpage on the Court's website. The counsel are to call Renee Gaumnitz, Judge Drozd's courtroom deputy, at (559) 499- 5652, one week prior to trial to ascertain the status of the trial date. The parties will file any proposed jury voir dire 7 days before trial. Each party will be limited to 15 minutes of jury voir dire. The Judge directs the counsel to meet and confer in an attempt to generate a joint set of jury instructions and verdicts. The parties will file any such joint set of instructions 14 days before trial, identified as "Joint Jury Instructions and Verdicts." To the extent the parties are unable to agree on all or some instructions and verdicts, their respective proposed instructions are due 14 days before trial. The counsel is also directed to e-mail a copy of all proposed jury instructions and verdicts, whether agreed or disputed, as a Word document to dadorders@caed.uscourts.gov no later than 14 days before trial; all blanks in form instructions should be completed and all brackets removed. Objections to proposed jury instructions must be filed seven days before trial; each objection will identify the challenged instruction and will provide a concise explanation of the basis for the objection along with citation of authority. When applicable, the objecting party will submit an alternative proposed instruction on the issue or identify which of his or her own proposed instructions covers the subject. The trial briefs are due seven days before trial. A full-text copy of the Court's Dec. 22, 2017 Final Pretrial Order is available at https://is.gd/qkXZaY from Leagle.com. Dennis L. Hall & Michelle L. Hall, Plaintiffs, represented by Sepehr Daghighian -- sepehr@daghighian.com -- Hackler Daghighian Martino & Novak, P.C., Steve Mikhov, Knight Law Group, Alastair Hamblin, Knight Law Group LLP & Russell W. Higgins, Knight Law Group. FCA US, LLC, a Delaware Limited Liability Company, Defendant, represented by Aaron M. Brian -- abrian@nixonpeabody.com -- Nixon Peabody LLP, Lisa Caryn Schwartz Tudzin -- tudzinl@gmail.com -- Kristi Livedalen, Nixon Peabody, LLP & Scott Steven Shepardson -- sshepardson@nixonpeabody.com -- Nixon Peabody LLP. FEDLOAN SERVICING: Gallagher Sues Over Student Loan Mismanagement ----------------------------------------------------------------- Arianne Gallagher, on behalf of herself and others similarly situated, Plaintiff, v. Pennsylvania Higher Education Assistance Agency (d/b/a Fedloan Servicing), Defendant, Case No. 17-cv- 02416, (M.D. Pa., December 29, 2017), seeks damages, prejudgment and post-judgment interest, costs of the suit, including reasonable attorneys' fees and expenses and any other further relief resulting from negligence, breach of contract and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law. Arianne Gallagher is a federal student loan holder. Pennsylvania Higher Education Assistance Agency constantly breached its duties it owed to service her loans properly due to processing delays, by placing Gallagher's account into forbearance on three separate occasions, spanning at least five monthly payments, denying her the opportunity to take part in alternative repayment plans and the opportunity to make qualifying payments, denying her Federal Interest Subsidies that the Department of Education must contribute on her behalf during repayment and denying her the reduced interest rates available for borrowers in repayment status and capitalization of accrued interest, says the complaint. [BN] Plaintiff is represented by: Gary F. Lynch, Esq. Kevin W. Tucker, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Tel: (412) 322-9243 E-mail: glynch@carlsonlynch.com ktucker@carlsonlynch.com - and - Bryan L. Bleichner, Esq. Gary K. Luloff, Esq. CHESTNUT CAMBRONNE PA 17 Washington Avenue North, Suite 300 Minneapolis, MN 55401 Tel: (612) 339-7300 Fax: (612) 336-2940 E-mail: bbleichner@chestnutcambronne.com gluloff@chestnutcambronne.com - and - Brian C. Gudmundson, Esq. Michael J. Laird, Esq. ZIMMERMAN REED LLP 1100 IDS Center 80 South 8th Street Minneapolis, MN 55402 Tel: (612) 341-0400 Fax: (612) 341-0844 E-mail: brian.gudmundson@zimmreed.com michael.laird@zimmreed.com - and - Arthur M. Murray, Esq. MURRAY LAW FIRM 650 Poydras Street, Suite 2150 New Orleans, LA 70130 Telephone: (504) 525-8100 Facsimile: (504) 584-5249 E-mail: amurray@murray-lawfirm.com FERGUSON ENTERPRISES: Fails to Pay All Wages, Conner Says --------------------------------------------------------- RAYMOND CONNER, on behalf of himself and all others similarly situated, the Plaintiff, v. FERGUSON ENTERPRISES, INC., a Virginia corporation; WOLSELEY INVESTMENTS, INC., a Virginia corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. BC6856S4 (Cal. Super. Ct., Dec. 4, 2017), seeks to recover unpaid wages, compensatory damages, penalties, and related relief through this class action under the California Labor Code, the Industrial Welfare Commission Order, and the Business and Professions Code. The Plaintiff alleges that Defendants are liable to him and other similarly situated current and former non-exempt hourly employees in California for unpaid wages and other related relief. These claims are based on Defendants' alleged failures to pay all wages for all hours worked at the correct rates of pay, including, but not limited to, overtime hours, provide all meal and rest periods, provide accurate written wage statements, timely pay final wages upon termination of employment, fairly compete. Defendants are also liable to Plaintiff for retaliation and wrongful termination. Ferguson Enterprises, Inc., headquartered in Newport News, Virginia, is the largest plumbing wholesaler in North America and a major distributor of HVAC&R equipment, waterworks and fire.[BN] The Plaintiff is represented by: David G. Spivak, Esq. THE SPIVAK LAW FIRM 16530 Ventura Blvd., Ste. 312 Encino, CA 91436 Telephone (818) 582 3086 Facsimile (818) 582 2561 E-mail: david@spivaklaw.com FOGO DE CHAO: Does Not Properly Pay Employees, Action Claims ------------------------------------------------------------ Sam Moussa, an individual on behalf of himself and all others similarly situated v. Fogo De Chao Churras Caria (California), LLC and Does 1 through 10 inclusive, Case No. BC689391 (Cal. Super. Ct., January 11, 2018), is brought against the Defendants for failure to maintain accurate records of the actual hours worked by each member of the Class, failure to provide a meal period after 5 hours of work or 10 hours of work due to lack of coverage, failure to pay premium pay for missed meal period, and failure to pay overtime wages in violation of the California Labor Code. Fogo De Chao Churras Caria (California), LLC owns and operates five Brazilian-style steakhouses in Beverly Hills, Los Angeles, San Diego, San Francisco, and San Jose. [BN] The Plaintiff is represented by: George S. Azadian, Esq. Ani Azadian, Esq. Edrik Mehrabi, Esq. AZADIAN LAW GROUP, PC 790 E. Colorado Blvd., 9th Floor Pasadena, CA 91101 Telephone: (626) 449-4944 Facsimile: (626)628-1722 E-mail: George@azadianlawgroup.com FORD MOTOR: Responds to Class Action Over Emissions Cheating ------------------------------------------------------------ Ratchet+Wrench reports that a class action lawsuit filed on Jan. 10 by law firm Hagens Berman accuses Ford and Bosch of knowingly installing emissions-cheating software devices in 2011- 2017 Ford 250 and 350 Super Duty diesel pickup trucks akin to the devices at the center of Volkswagen's Dieselgate scandal, allowing the affected pickups to pollute at levels up to 50 times legal limits. The suit adds that the diesel Super Duty trucks that pollute at illegal levels cost $8,400 more than their gasoline counterparts. Even in average stop-and-go conditions, emissions are routinely as high as five times the standard, the suit says. The class action hits Ford and Bosch with a total 58 counts of violations of state consumer laws, false advertising laws, deceptive trade laws as well as violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), adding that "Ford did not act alone," but colluded with Bosch in an organized scheme to evade emissions requirements, for sake of profit. The lawsuit, filed Jan. 10, 2018, in the U.S. District for the Eastern District of Michigan, states that the trucks' touted performance, power and towing capabilities are only obtained by switching off or turning down emissions controls when the software senses the vehicle is not in an emissions-testing environment. Update: Bosch representatives sent the following statement to Ratchet+Wrench: "Bosch takes the allegations of manipulation of the diesel software very seriously. Bosch is cooperating with investigations in various jurisdictions and is defending its interests in the litigation. As a matter of policy, and due to the sensitive legal nature of these matters, Bosch will not comment further concerning matters under investigation and in litigation." Ford representatives sent Ratchet+Wrench the following statement: "All Ford vehicles, including those with diesel engines, comply with all U.S. EPA and CARB emissions regulations. Ford vehicles do not have defeat devices. We will defend ourselves against these baseless claims." [GN] FORD MOTOR: Court Denies Bid to Dismiss "Anderson" MMPA Suit ------------------------------------------------------------ Judge Beth Phillips of the U.S. District Court for the Western District of Missouri, Southern Division, denied Ford's Motion to Dismiss the case, MICHELLE ANDERSON, individually and on behalf of all others similarly situated, Plaintiff, v. FORD MOTOR COMAPNY, Defendant, Case No. 17-3244-CV-S-BP (W.D. Mo.). Starting in the 2007 model year, Ford introduced vehicles with expanded sunroofs known as panoramic sunroofs. Panoramic sunroofs are made of tempered or laminated glass, and Ford is alleged to have used tempered glass. It also used ceramic paint or enamel on the glass prior to tempering. The Plaintiff alleges that the use of ceramic paint or enamel in panoramic sunroofs make them prone to spontaneously bursting. She further alleges that Ford was aware of this defect in its panoramic sunroofs based on a number of studies on panoramic roofs and consumer complaints of panoramic roofs spontaneously shattering. In January 2016, the Plaintiff purchased a new 2016 Ford Escape from Friendly Ford in Springfield, Missouri. Her Escape included a panoramic sunroof. The Plaintiff alleges she researched the vehicle before purchasing it and that the panoramic sunroof was a "huge selling point" in her buying decision. She asserts that she would not have purchased the vehicle or would have paid substantially less given this defect. On Feb. 7, 2017, the Plaintiff was driving on I-44 East near Springfield when she alleges she heard what sounded like a shotgun being fired. Thereafter, she discovered a hole in the sunroof as well as shattered glass inside the vehicle. She took the vehicle to Friendly Ford to have the sunroof repaired, but the dealer told her that the sunroof was not covered by the warranty. The Plaintiff then paid to have the sunroof replaced. Count I asserts a breach of express warranty on behalf of a nationwide class, or alternatively on behalf of a Missouri class. Count II asserts fraudulent concealment on behalf of a nationwide class, or alternatively on behalf of a Missouri class. Count III asserts violations of the Missouri Merchandising Practices Act ("MMPA"), on behalf of a Missouri class. Count IV alleges breach of implied warranty of merchantability on behalf of a Missouri class. All four counts assert claims on behalf of purchasers of 16 Ford vehicles that are sold with panoramic sunroofs. Ford filed its Motion to Dismiss. It first argues that the Plaintiff does not have standing to pursue claims concerning the 15 vehicle models she did not purchase. It then argues that Counts II and III should be dismissed for any of three independent reasons: (i) the Plaintiff has not alleged an actionable omission, (ii) Ford did not have a duty to disclose information to the Plaintiff, or (iii) the claims are barred under Missouri's economic loss doctrine. The Plaintiff argues that the standing argument is more appropriately considered at the class certification stage and that Counts II and III properly state causes of action for concealment and violation of the MMPA. Judge Phillips finds that Ford may be correct that the Plaintiff lacks standing to assert claims as to the 15 vehicle models, but she cannot resolve the dispute at this stage of the case. Moreover, even if the Court later determines that Ford is correct and the Plaintiff can assert claims with respect to the Ford Escape only, the matter may be more efficiently resolved at the class certification stage by limiting the class definition. For these reasons, she will deny Ford's request to dismiss all claims related to the other fifteen models. The Judge also finds that the Plaintiff has pleaded that Ford had reason to know about the issues with the panoramic sunroof and that the problem could not timely be known by the Plaintiff. The Plaintiff also alleges she would not have entered into the contract, had she known of the defect. Arguably, this claim is based on conduct that preceded the formation of the contract. Thus, given the stage of the litigation it is premature to dismiss the Plaintiff's fraudulent concealment claim. Judge Phillips concludes that Ford's arguments regarding the Plaintiff's ability to assert claims regarding panoramic sunroofs in vehicle models she did not purchase cannot be properly evaluated at this time. The arguments Ford has raised to support dismissal of Counts II and III are rejected. Accordingly, she denied Ford's Motion to Dismiss. A full-text copy of the Court's Dec. 29, 2017 Order is available at https://is.gd/aBKuxc from Leagle.com. Michelle Anderson, Plaintiff, represented by Adam A. Edwards -- adam@gregcolemanlaw.com -- pro hac vice, Gregory F. Coleman , pro hac vice, Lisa A. White , pro hac vice, Mitchell M. Breit -- mbreit@simmonsfirm.com -- SIMMONS AND HANLY, LLC, pro hac vice & Sarah S. Burns -- sburns@simmonsfirm.com -- Simmons Law Firm. Ford Motor Company, Defendant, represented by Bradley M. Strickland -- brad.strickland@alston.com -- Cari K. Dawson -- cari.dawson@alston.com -- pro hac vice, Jamie S. George -- jamie.george@alston.com -- pro hac vice, Kyle G.A. Wallace -- kyle.wallace@alston.com -- pro hac vice & Sherry A. Rozell -- sherry.rozell@mcafeetaft.com -- McAfee & Taft. GENERAL NUTRITION: Judgment in "Chevalier" Suit Partly Affirmed --------------------------------------------------------------- In the cases, TAWNY L. CHEVALIER AND ANDREW HILLER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Appellees, v. GENERAL NUTRITION CENTERS, INC. AND GENERAL NUTRITION CORPORATION, Appellants. TAWNY L. CHEVALIER AND ANDREW HILLER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED v. GENERAL NUTRITION CENTERS, INC. AND GENERAL NUTRITION CORPORATION, Appellants, Nos. 1437 WDA 2016, 92 WDA 2017 (Pa. Super.), Judge H. Geoffrey Moulton, Jr., of the Superior Court of Pennsylvania affirmed in part and reversed in part the trial court's judgment in Employees' favor, vacated the order concerning fees and costs, and remanded for further proceedings. Chevalier and Hiller, on behalf of themselves and all others similarly situated ("Employees") worked as store managers, assistant managers, or senior store managers for GNC during the period between 2009 and April 2011. The Employees were salaried employees whose weekly pay was the same no matter the number of hours worked. However, when a salaried employee worked more than 40 hours in a workweek, GNC was also required to pay overtime for the hours worked over the 40-hour workweek. Both parties agree that the Pennsylvania Minimum Wage Act ("PMWA") requires a payment of at least one and one-half of the employee's regular rate for each hour worked in excess of 40 hours. However, they disagree over how to calculate the employee's regular rate. GNC contends that through payment of salary, the salaried employee has already received regular pay for each of the 50 hours or, in other words, the salary covers the first 100% of the overtime. Thus, the employee is owed only an additional 50% of the wage as overtime. GNC's method of calculating overtime pay is called the fluctuating workweek ("FWW") method of compensating overtime. The Employees contend that the regular rate should be calculated based on what is earned in a 40-hour workweek. Thus, the regular rate should be calculated by dividing the $1,000 weekly payment by forty hours. This produces a $25 per hour amount which they treat as their regular rate. They next multiply each hour of overtime by one and one-half of this dollar amount, which, according to them is consistent with the Fair Labor Standards Act ("FLSA") which uses a 40-hour workweek. This will be referred to as the 40-hour method of compensating salaried employees. In 2014, GNC and the Employees filed cross-motions for summary judgment, limited to the issue of whether GNC's use of the FWW method to calculate overtime compensation complies with the PMWA. On Oct. 20, 2014, the trial court granted Employees' motion and denied GNC's motion. On Dec. 16, 2014, the Employees filed a motion for class certification, which GNC opposed. On July 15, 2015, the trial court granted the Employees' motion, certifying a class of current and former GNC employees in Pennsylvania who were paid overtime compensation using the FWW method. Thereafter, GNC requested additional discovery. On March 15, 2016, the Employees filed a motion for a protective order objecting to the requested discovery, which the trial court granted. Also on March 15, 2016, the Employees filed a motion to include commissions in the calculation of their damages for unpaid overtime. The trial court granted the motion, concluding that GNC may not use the FWW method of calculating overtime as to Employees' commissions. On Sept. 6, 2016, the trial court entered final judgment in favor of the Employees in the amount of $1,378,494.77 plus interest calculated at 6% per annum from the date of the non-payment of any overtime earned, or $362,286.08 for a total sum of $1,740,780.85 for interest accruing after the date of judgment at the statutory rate, plus costs and attorney's fees and incentive payments in amounts to be determined through further proceedings. On Sept. 29, 2016, GNC timely appealed from the judgment. On Sept. 15, 2016, the Employees filed a petition for counsel fees, litigation costs, and incentive payments, to which GNC filed a response. On Dec. 30, 2016, the trial court awarded counsel fees in the amount of $360,000 and litigation costs in the amount of $8,000 but denied the Employees' request for incentive payments. On Jan. 17, 2017, GNC timely appealed from that order. GNC raises these issues on appeal: a. Whether the FWW method of computing overtime compensation violates the PMWA; that is, whether under the PMWA: (i) the regular rate associated with a non-exempt employee's salary must be determined by dividing the employee's weekly salary by 40 (rather than by all hours worked); and (ii) the additional overtime compensation premium owed on that salary must be calculated at 1.5 times that regular rate for all hours worked over 40 (rather than 0.5 times the regular rate). b. Whether the Employees' motion for class certification should have been granted, despite the fact that GNC presented evidence that putative class members had an agreement or understanding with GNC that their overtime would be calculated pursuant to 34 Pa. Code Section 231.43(d)(3). c. Whether 34 Pa. Code Section 231.43(d)(3) permits GNC to calculate overtime compensation pursuant to an agreement or understanding with class members. d. Whether under the PMWA: (i) the regular rate associated with a non-exempt employee's commission earnings must be determined by dividing the employee's weekly commissions by 40 (rather than by all hours worked); and (ii) the additional overtime compensation premium owed on those commissions must be calculated at 1.5 times that regular rate for all hours worked over 40 (rather than 0.5 times the regular rate). e. Whether the trial court was authorized to apply a 1.5 contingency multiplier enhancement to the lodestar when calculating the award of attorney's fees, where the lodestar already reflected counsel's contingent risk. In light of the two concurring and dissenting opinions filed in this matter, the Court summarized its disposition as follows. First, based on the agreement of Judges Moulton and Solano, it holds that GNC's method of calculating an employee's "regular rate" by dividing the employee's salary in a given week by the number of hours actually worked in that week did not violate the PMWA. Second, based on the agreement of Judges Moulton and Musmanno, it holds that GNC's payment of an overtime premium of only one-half the "regular rate" violated the PMWA and its accompanying regulations. Finally, based on the agreement of Judges Moulton and Solano, it vacated the fees and costs order. Accordingly, the Court affirmed in part and reversed in part the judgment. It vacated the fees and costs order vacated. The case is remanded for further proceedings. Jurisdiction is relinquished. A full-text copy of the Court's Dec. 22, 2017 Opinion is available at https://is.gd/5z2y0l from Leagle.com. Allison Renee Brown -- arbrown@littler.com -- Littler Mendelson, P.C., for Appellant, General Nutrition Corporation. Robert William Pritchard -- rpritchard@littler.com -- Littler Mendelson, P.C., for Appellant, General Nutrition Corporation. Allison Renee Brown , Littler Mendelson, P.C., for Appellant, General Nutrition Centers, Inc. Robert William Pritchard, Littler Mendelson, P.C., for Appellant, General Nutrition Centers, Inc. Adrian Nathaniel Roe -- aroe@roeandsimonllc.com -- Roe & Simon LLC, for Appellee, Andrew Hiller. Michael D. Simon -- mdsimon@roeandsimonllc.com -- Roe & Simon LLC, for Appellee, Andrew Hiller. William N. Narwold, for Appellee, Andrew Hiller. Adrian Nathaniel Roe, Roe & Simon LLC, for Appellee, Tawny L. Chevalier. Michael D. Simon, Roe & Simon LLC, for Appellee, Tawny L. Chevalier. William N. Narwold, for Appellee, Tawny L. Chevalier. GOPRO INC: Faces Class Action, March 12 Lead Plaintiff Deadline --------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP, on Jan. 10 disclosed that a shareholder class action lawsuit has been filed against GoPro, Inc. (Nasdaq: GPRO) ("GoPro" or the "Company") on behalf of purchasers of the Company's securities between November 2, 2017 and January 5, 2018, inclusive (the "Class Period"). Investors who purchased GoPro securities during the Class Period may, no later than March 12, 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/gopro-inc-2018#join GoPro 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 GoPro develops and sells mountable and wearable cameras and accessories. During the Class Period, GoPro's product offerings included "Karma," a premium remote-controlled drone that retailed for $799. On November 1, 2017, GoPro held an earnings conference call with investors and financial analysts to discuss the Company's financial results. During that call, GoPro's Chief Executive Officer ("CEO") represented to investors that "the consumer feedback to Karma specifically, actual owners of Karma has been quite good, and so we're feeling really good about our prospects in the future there." The shareholder class action complaint alleges that, throughout the Class Period, GoPro and certain of its senior executive officers made false and misleading statements and/or failed to disclose that: (i) the market prospects for Karma were untenable due to margin challenges in an extremely competitive aerial market and a hostile regulatory environment in Europe and the United States; and (ii) as a result, defendants' public statements were materially false and misleading at all relevant times. On January 8, 2018, GoPro disclosed, among other things: (i) that it was reducing its global workforce by approximately 20%; (ii) that, due to "margin challenges in an extremely competitive aerial market," the Company would be exiting the aerial market after selling its remaining Karma inventory; and (iii) that the Company would incur an estimated $23 - 33 million in restructuring charges. Following this news, shares of GoPro's stock fell $0.96 per share, or over 12.7%, to close on January 8, 2018 at $6.56 per share, on heavy trading volume. GoPro shareholders may, no later than March 12, 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. Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- 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. [GN] GREEN SUMMIT: Sued by "Garcia" Over Unpaid OT Wages, Tips --------------------------------------------------------- Luis Garcia, Noe Rojas and Alejandro Salas, on behalf of themselves and FLSA Collective Plaintiffs, Plaintiffs, v. Green Summit Group LLC, Columbia Organic Holdings, LLC, Freefoods NYC 150 East 52nd Street, LLC, Peter Schatzberg and Michael Schatzberg, Defendants, Case No. 17-cv-10220 (S.D. N.Y., December 29, 2017), seeks unpaid wages for off-the-clock work caused by time shaving, unpaid spread-of-hours and overtime premium, illegally retained tips, liquidated damages, statutory penalties and attorneys' fees and costs under the Fair Labor Standards Act and New York Labor Law. Defendants own and operate Freefoods NYC restaurant and Green Summit online restaurant where Garcia, Rojas and Salas worked as delivery persons. Defendants also implemented a tip-credit but failed to provide proper statements, says the complaint. [BN] Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 HARRIS TEETER: "Laurence" Class Cert. Motion Due May 16 ------------------------------------------------------- Terry Laurence, individually and on behalf of others similarly situated, the Plaintiff, v. Harris Teeter, LLC, the Defendant, Case No. 3:17-cv-006602, (W.D.N.C., October 6, 2017), seeks to recover unpaid regular rate of pay for all hours worked including overtime pay in violation of the Fair Labor Standards Act, North Carolina Wage and Hour Act and Defendant's contractual obligation to pay its employees for all hours worked. Plaintiff's complaint states that Defendant has employed Keyholders, Grocery Managers and Assistant Grocery Managers at all if not most of its supermarket locations. Defendant has classified the Plaintiff and other similarly situated hourly-paid Keyholders, Grocery Managers and Assistant Grocery Managers as hourly-paid, non-exempt employees and has not guaranteed them any minimum weekly salaries. The Plaintiff and other similarly situated employees have regularly worked full-time schedules which regularly include hours in excess of forty hours in a workweek. The Plaintiff alleges that Defendant did not paid for the time they spent picking up keys and driving to the supermarket before and after shifts. Further, the Plaintiff and other similarly situated persons did not receive pay for thirty minutes of break. They did not enjoy a free uninterrupted break during such time because they were required to continue performing work. Furthermore, the Defendant did not include a profit bonus in calculation of overtime rate. In addition, Plaintiff throughout his employment with the Defendant did not receive compensation at time-and-a-half of his regular rate of pay. In a Jan. 5, 2018 Pretrial Order and Case Management Plan, Judge Robert J. Conrad, Jr., set this timeline: -- Plaintiffs Class Certification Motion due 5/16/2018. -- Defendants Response to Plaintiffs Motion for Class Certification shall be filed by June 15, 2018. -- Plaintiffs reply shall be due on June 29, 2018. -- Discovery due by 4/16/2018. Defendant has a pending Motion to Dismiss Plaintiff's State Law Claims. The Motion to Dismiss was filed Nov. 1. Harris Teeter is a North Carolina limited liability company that operates a supermarket chain in approximately 243 stores in seven states.[BN] Plaintiff is represented by: Trey Lindley, Esq. LINDLEY LAW, PLLC 225 S. McDowell Street Charlotte, NC 28204 Telephone: (704) 457-1010 Facsimile: (704) 457-1002 Email: tlindley@lindleylawoffice.com - and - Jason T. Brown, Esq. Nicholas Conlon, Esq. JTB LAW GROUP, LLC 155 2nd St., Suite 4 Jersey City, NJ 07302 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 Email: jtb@jtblawgroup.com Email: nicholasconlon@jtblawgroup.com Counsel For Defendant(s): Kevin Scott Joyner, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 4208 Six Forks Road, Suite 1100 Raleigh, NC 27609 Tel: (919) 787-9700 Fax: (919) 783-9412 E-mail: kevin.joyner@ogletreedeakins.com - and - Regina Worley Calabro, Esq. Ogletree Deakins Nash Smoak & Stewart 4208 Six Forks Road, Suite 1100 Raleigh, NC 27609 Tel: (919) 787-9700 Fax: (919) 783-9412 E-mail: gina.calabro@ogletree.com HEALTH GENESIS: Echevarria Seeks Unpaid Overtime Wages under FLSA ----------------------------------------------------------------- JAVIER ECHEVARRIA, and other similarly situated .employees, Plaintiff, v. HEALTH GENESIS CORPORATION, a Florida Profit Corporation, DAVID BOZDOGAN, individually and IRENA BOZDOGAN, individually, the Defendants, Case No. 64712808 (Fla. Cir., 11th Judicial, Miami Dade County, Nov. 29, 2017), seeks to recover unpaid overtime wages, liquidated damages, attorney's fees and costs, pursuant to the Fair Labor Standards Act. According to the complaint, the Defendants had or should have had full knowledge of all hours worked by Plaintiff, including those hours worked by Plaintiff in excess of 40 in a given week. The Plaintiff was at work and there was a surprise inspection, his supervisor then immediately told Plaintiff to shut down his work production because the F.D.A was not going to approve the way they handled their production, and then told Plaintiff to make fraudulent, Plaintiff refused. During Plaintiff's employment, Plaintiff complained that his supervisor was making fraudulent work logs that are required by law Defendant was violating the F.D.A regulations, The Plaintiff was terminated on August31, 2017 in retaliation of his complaints and refusing to do and fraudulent work logs.[BN] The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Telephone: 305 416 5000 Facsimile: 305 416 5005 E-mail: agp@rgpattorneys.com rregueiro@rgpattorneys.com pn@rgpattorneys.com HERMOSA BEACH, CA: "Marks" Suit Seeks Unpaid OT Wages under FLSA ---------------------------------------------------------------- AARON MARKS; MATTHEW HOYT; THOMAS SURBER; SCOTT DURKIN; MIKE SMOTRYS; JIM BRUCCOLIERI; BRIAN GREBBIEN; MICHAEL GAROFANO; AARON BUSH; JAMES CRAWFORD; DAVID SCHWARTING; STEVE RAMIREZ; JAMES DE LOS SANTOS, the Plaintiffs, v. CITY OF HERMOSA BEACH, a Municipal Corporation; HERMOSA BEACH FIRE DEPARTMENT, a public safety department; DOES I-X, inclusive, the Defendants, Case No. 2:17-cv-08739-FFM (S.D. Fla., Dec. 4, 2017), seeks to recover unpaid overtime compensation, liquidated damages and reasonable attorney fees, declaratory judgment, injunctive relief and other relief under the Fair Labor Standards Act. The Plaintiffs bring this collective action on behalf of themselves and all other persons similarly situated who were members of the Hermosa Beach Fire Department, between December 2014 and present and who were required or permitted to work additional hours, in excess of 53 hours a workweek (or 212 hours in a 28-day work period, if an 207k work period was established by the CITY OF HERMOSA BEACH), without being compensated the requisite compensation. The exact number of members similarly situated in the collective group, as herein above identified and described, is estimated to consist of not more than 50. Hermosa Beach is a beachfront city in Los Angeles County, California, United States. Its population was 19,506 at the 2010 census. The city is located in the South Bay region of the greater Los Angeles area and is one of the three Beach Cities.[BN] Attorneys for Plaintiffs: Corey W. Glave, Esq. 1249 8th Street Hermosa Beach, CA 90254 Telephone: (323) 547 0472 E-mail: POAattorney@aol.com HIGHLINE BUILDING: Berrios Sues Over Unpaid Overtime ---------------------------------------------------- Angel Berrios, individually, and on behalf of all others similarly situated, Plaintiff, v. Highline Building Services, LLC and Strategic Outsourcing, Inc., Defendants, Case No. 17-cv-10233 (S.D. N.Y., December 31, 2017), seeks unpaid overtime wages due, together with maximum liquidated damages, costs and attorney's fees pursuant to Fair Labor Standards Act, New York Labor Law and New York Minimum Wage Act. Strategic Outsourcing and Highline Building Services are staffing agencies who employed Berrios as a cleaner. Plaintiff claims to have worked in excess of 40 hours per workweek without overtime pay. Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Tel: (718) 740-1000 Fax: (718) 355-9668 E-mail: abdul@abdulhassan.com HOSPITALITY STAFFING: "Rodriguez" Suit Seeks Unpaid OT Wages ------------------------------------------------------------ Arevalo R. Rodriguez, and other similarly-situated individuals, Plaintiff, v. Hospitality Staffing Team LLC, Defendant, Case No. 17-cv-24719, (S.D. Fla., December 29, 2017), seeks unpaid overtime compensation, as well as an additional amount as liquidated damages, costs and reasonable attorney's fees under the Fair Labor Standards Act. Hospitality Team is a provider of temporal, part-time and fulltime staffing to the hospitality industry where Rodriguez was assigned as a maintenance employee in the Berkeley Hotel, located at 1610 Collins Avenue, Miami Beach, Florida. Plaintiff is claiming approximately 14 weeks of overtime wages. [BN] Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 Email: zep@thepalmalawgroup.com HUNTINGTON BANCSHARES: Karpik Sues for Breach of Fiduciary Duties ----------------------------------------------------------------- Julie Karpik, Michelle Lewis, Deborah Mondell and Robert Owen, individually and as representatives of class of similarly situated persons, and on behalf of the Huntington Investment and Tax Savings Plan, Plaintiffs, v. Huntington Bancshares Incorporated, Huntington Bancshares Incorporated Board of Directors, Stephen D. Steinour, Don M. Casto III, Jonathan A. Levy, Ann B. Crane, Steven G. Elliot, Michael J. Endres, John B. Gerlach Jr., D. James Hilliker, David P. Lauer, Gerard Mastroianni, Richard W. Neu, David L. Porteous, Kathleen H. Ransier, William R. Robertson, Peter J. Kight, Eddie R. Munson, John C. Inglis, J. Michael Hochschwender, Gina D. France, Robert S. Cubbin, Lizabeth Ardisana, and John Does 1-20, Defendants, Case No. 17-cv-01153 (S.D. Ohio, December 29, 2017), asserts claims for breach of the fiduciary duties of loyalty and prudence, failure to monitor fiduciaries, prohibited transactions with a party-in-interest and prohibited transactions with a fiduciary and seeks to recover losses to the Huntington Investment and Tax Savings Plan caused by Defendants' violations of Employee Retirement Income Security Act of 1974, profits earned by Huntington as a result of prohibited transactions and other appropriate relief. The complaint says Defendants applied a preference for Huntington products and services within the Plan, despite excessive costs compared to available options favored by similarly-sized plans; used the Plan to sustain Huntington's failing mutual fund business; and leveraged the Plan to Huntington's advantage in the consolidation and eventual sale of the funds. Huntington Investment and Tax Savings Plan is an employee pension benefit plan and a defined contribution plan of which Plaintiffs are members of. Huntington is the plan sponsor for the said plan. [BN] Plaintiff is represented by: Robert E. DeRose, Esq. BARKAN MEIZLISH HANDELMAN GOODIN DEROSE WENTZ, LLP 250 E. Broad Street, 10th Floor Columbus, OH 43215 Telephone: (614) 221-4221 Facsimile: (614) 744-2300 Email: bderose@barkanmeislish.com - and - Kai H. Richter, Esq. Carl F. Engstrom, Esq. Brandon McDonough, Esq. NICHOLS KASTER, PLLP 4600 IDS Center 80 S 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Facsimile: (612) 338-4878 Email: krichter@nka.com cengstrom@nka.com bmcdonough@nka.com HUNTINGTON NATIONAL: Denial of Class Certification Bid Reversed --------------------------------------------------------------- Judge James D. Jensen of the Court of Appeals of Ohio for the Sixth District, Lucas County, reversed the Lucas County Court of Common Pleas' order denying Appellant's, Paul Cheatham IRA, motion to certify a class in the case, Paul Cheatham IRA, Appellant, v. The Huntington National Bank, Appellee, C.A. No. L- 16-1292 (Ohio App.). On May 19, 2015, the Appellant filed the class action lawsuit against the Appellee, The Huntington National Bank, on behalf of itself and other bondholders who invested funds into a municipal bond issue described as "$6,590,000 County of Lucas Ohio Hospital Facilities Rrefunding Revenue (Non-Taxable) Bonds, Series 1998 (Villa North Project) CUSIP 54309 BP6, 549309 BQ4, 549309 BR2, 549309 BS0. The complaint alleged that Lucas County was the technical obligor on the bonds for tax purposes, but in reality, Foundation for the Elderly, Inc. was the obligor and lessee of the Villa North nursing home project. The Appellee served as the trustee for the bondholders and as lessor of the project pursuant to a Trust Indenture entered into between appellee and Lucas County. Sometime before June 2003, the Foundation went into default, and West Toledo Healthcare became the substitute obligor. By December 2003, Benchmark Healthcare of Toledo, Inc. had become the obligor in place of West Toledo Healthcare, and had defaulted on the bond payments. Notably, the Appellee provided notices to the bondholders of the defaults and changes in obligors. In May 2004, Benchmark filed for reorganization under Chapter 11 of the Bankruptcy Code, and in December 2007, filed its First Amended Plan of Reorganization. After the bondholders voted in favor of the plan, the bankruptcy court approved the plan. Relevant here, the Appellant began purchasing these bonds for a fraction of the face value on Nov. 3, 2003, and continued to purchase them through June 7, 2007. By July 2009, Benchmark had failed to implement the amended reorganization plan. Thus, the bankruptcy was dismissed, and the Appellee filed a foreclosure action against Benchmark. In November 2014, the Villa North project was sold and a final distribution was made to the bondholders. In the final distribution, the bondholders only received approximately $350,000 of the $6,590,000 initial bond issue. Within the class action complaint, the Appellant asserted claims for breach of fiduciary duty, breach of trust under R.C. 5801.01 et seq., negligence, breach of contract, and liability for mismanagement of the Villa North nursing home project. Upon motion of the Appellee, the trial court dismissed all of the claims except the breach of contract claim as being barred by the statute of limitations. Thereafter, the Appellant moved to certify a class on the remaining breach of contract claim, describing the class as all persons or entities who own bonds. The Appellee opposed the motion for class certification, arguing, inter alia, that the Appellant had not satisfied the requirement under Civ.R. 23(B)(3) that, the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Appellant concluded, therefore, that the right to sue for breach of contract that was held by bondholders at the time of the breach transferred to subsequent purchasers of the bonds. On Nov. 16, 2016, the trial court entered its judgment denying the Appellant's motion to certify a class. The Appellant has timely appealed the trial court's judgment, asserting one assignment of error for the Court review: The trial court incorrectly interpreted the provisions of R.C. 1308.16(A) (Section 8-302 of the Uniform Commercial Code) in ruling that the transferors' right to file a lawsuit was not one of the rights that was transferred when a municipal bond (an investment security) was acquired by the transferee, the Plaintiff- Appellant. Judge Jensen finds that the Appellant's cause of action arises from a breach of the Trust Indenture, which is part of the contract with the bondholders. The Appellee argues that R.A. Mackie & Co., L.P. v. PetroCorp Inc. is distinguishable because in that case the cause of action was against the issuer, not the indenture trustee. However, the Judge does not find that distinction to be meaningful since the basis for the claim is grounded in the same instrument that is part of the contract with the bondholders. The Appellee's position leads to the incongruous result that breach of the trust indenture by an issuer is a "right in the security," but breach of the same trust indenture by the trustee is not. Therefore, he holds that a contract claim for breach of the Trust Indenture, whether asserted against the trustee or the obligor, arises out of the contract with the bondholders and is thus a right in the security that automatically transfers to subsequent purchasers pursuant to R.C. 1308.16(A). Accordingly, the Appellant's assignment of error is well-taken. In addition to arguing in opposition to the Appellant's assignment of error, the Appellee argues that class certification under Civ.R. 23 is still not appropriate as appellant has failed to satisfy the other requirements of that rule. However, Judge Jesen says, because the trial court based its determination solely on Civ.R. 23(B)(3), and did not consider any of the other requirements, he declines to rule on those issues for the first time on appeal. Therefore, he must remand the matter to the trial court to consider the remaining Civ.R. 23 requirements. For these reasons, Judge Jensen reversed the judgment of the Lucas County Court of Common Plea. The matter is remanded to the trial court to consider the remaining Civ.R. 23 requirements for class certification and for further proceedings consistent with his decision. The Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. A certified copy of the entry will constitute the mandate pursuant to App.R. 27. A full-text copy of the Court's Dec. 22, 2017 Decision and Judgment is available at https://is.gd/k4rLQ6 from Leagle.com. Ronald R. Parry, for appellant. J. Philip Calabrese -- pcalabrese@porterwright.com-- Jay A. Yurkiw -- jyurkiw@porterwright.com -- Robert W. Trafford -- rtrafford@porterwright.com -- and Ryan L. Graham -- rgraham@porterwright.com -- for appellee. INTEL CORP: Rosen Law Firm Files Securities Class Action -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Jan. 10 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of Intel Corporation (NASDAQ: INTC) between July 27, 2017 and January 4, 2018, both dates inclusive ("Class Period"). The lawsuit seeks to recover damages for Intel investors under the federal securities laws. To join the Intel class action, go to http://www.rosenlegal.com/cases-1265.htmlor call Phillip Kim, Esq. or Daniel Sadeh, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or dsadeh@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, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) there is a fundamental design flaw in Intel's processor chips as they contain a feature that makes them vulnerable to hacking; (2) updates to fix the problems in Intel's processor chips could cause Intel chips to operate 5-30 percent more slowly; and (3) as a result, Defendants' public statements were materially false and misleading 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 March 12, 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-1265.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Daniel Sadeh of Rosen Law Firm toll free at 866- 767-3653 or via email at pkim@rosenlegal.com or dsadeh@rosenlegal.com [GN] Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. INTEL CORP: Faces at Least 12 Class Actions Over Chip Flaws ----------------------------------------------------------- At least 12 class action lawsuits have been filed against Intel after security vulnerabilities were revealed in its processors early this month. After three class action lawsuits were reportedly filed separately on January 4, nine additional suits have been filed regarding a "fundamental design flaw" in Intel processors. The bulk of complaints were filed in northern California, but two were filed in New York and one in Illinois. Researchers found a pair of chip flaws, known as Meltdown and Spectre, which affect virtually every computer and smartphone in the world and could leave them vulnerable to hacking. The revelations triggered class action lawsuits as consumers found out their devices could be affected, said Mark Rifkin -- rifkin@whafh.com -- a partner at Wolf Haldenstein Adler Freeman & Herz, which has been retained to pursue a class action lawsuit against Intel. The complaint was filed in U.S. District Court for the Northern District of California. While Intel rolls out fixes, the Wolf Haldenstein suit pointed out that the proposed software update for Meltdown would drag down performance by as much as 30%, and no solution has been published for Spectre. "In short, defendant has not been able to offer an effective repair to its customers," the suit claims. "Anyone who bought a chip, or a computer with a chip that had this defect, is entitled to be compensated for the difference between what they thought they were getting and what they got," Mr. Rifkin said. Meanwhile, media outlets are comparing the embattled chipmaker with its main competitor, Advanced Micro Devices. However, no class action suits against AMD could be found during a PACER search. An Intel representative said the firm doesn't comment on pending litigation. J.K. GREEN: Answer to "Marquez" Suit Due Jan. 31 ------------------------------------------------ Roberto Marquez on behalf of himself and all other Plaintiffs similarly situated known and unknown, the Plaintiff, v. J.K. Green Deli Corp. dba Deli On The Green, Merrick Blvd LLC. and Suk Hwan Jeong, the Defendants, Case No. 2:17-cv-07014 (E.D.N.Y. Dec. 1, 2017), seeks to recover overtime compensation under the Fair Labor Standards Act. According to the complaint, the Plaintiff regularly worked over 10 hours per day and over 40 hours per week. The Defendants never compensated Plaintiff with spread of hours pay nor overtime premium. Plaintiff further alleges that Defendants' failure to pay overtime wages is willful and intentional. * * * According to a Jan. 18 docket entry, Defendants have until Jan. 31 to file their answer to the complaint. The case is assigned to Judge Leonard D. Wexler and Magistrate Judge A. Kathleen Tomlinson.[BN] The Plaintiff is represented by: Ryan J. Kim, Esq. INSEED LAW, P.C. 2454 E Dempster St Suite 301 Des Plaines, IL 60016 J.M. SMUCKER: Joseph Alleges Mislabeling of Crisco No-Stick Spray ----------------------------------------------------------------- JOSHUA JOSEPH, individually and on behalf of all others similarly situated, the Plaintiff, v. THE J.M. SMUCKER COMPANY, the Defendant, Case No. 2:17-cv-08735-FMO-GJS (C.D. Cal., Dec. 4, 2017), seeks to recover damages, restitution, declaratory and injunctive relief, and all other remedies the court deems Appropriate for Defendant's violation of the California Civil Code and the California Business and Professions Code. The Plaintiff brings this consumer protection and false advertising class action lawsuit against Defendant, based on Defendant's false and misleading business practices with respect to the marketing and sale of its Crisco (TM) 100% Extra Virgin Olive Oil No-Stick Spray and Crisco (TM) 100% Canola Oil Original No-Stick Spray. The Defendant has, labeled, marketed, and sold the Products as "100% EXTRA VIRGIN Olive Oil" and "100% CANOLA OIL", thereby representing that the Products contain only a single ingredient, canola oil or extra virgin olive oil. According to the complaint, however, unbeknownst to consumers, the Products also contain Soy Lecithin, Dimethyl Silicone, and Propellant. Therefore, the Products fail to conform with a statement of quality made in Defendant's labeling because neither of the Products are 100% oil, as represented by Defendant. The Defendant's misrepresentations extend past the Products' front label as the ingredient Defendant represents as "Propellant" is actually comprised of Propane and Isobutane, substances that are classified as "Hazardous Ingredients" by the Occupational Safety and Health Administration of the United Stated Department of Labor. The Plaintiff and other consumers purchased the Products, reasonably relying on Defendant's 100% Oil representation, and believing that the Products contain oil as the only ingredient. Had Plaintiff and other consumers known that the Products contained the Additional Ingredients, they would not have purchased the Products or would have paid significantly less for the Products. Therefore, Plaintiff and consumers have suffered injury in fact as a result of Defendant's deceptive practices. The J. M. Smucker Company, also known as Smucker and Smucker's, is an American manufacturer of fruit spreads, ice cream toppings, beverages, shortening, peanut butter, and other products in North America.[BN] Attorneys for Plaintiff Joshua Joseph: Benjamin Heikali, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256 2884 Facsimile: (424) 256 2885 E-mail: bheikali@faruqilaw.com JAMES HOLDINGS: Court Vacates Class Certification in "Bagot" ------------------------------------------------------------ The Court of Appeal of Louisiana, Fifth Circuit, issued an Opinion vacating the judgment of the trial court granting class certification in the case captioned RICHARD BAGOT, JOAN BAGOT, WILSON REVELLE, DARLA REVELLE, MARK GUILLOTE, AND LASHAN GUILLOTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. JAMES HOLDINGS, LLC, VOLKERT, INC., PARISH OF JEFFERSON AND THE STATE OF LOUISIANA THROUGH THE LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, No. 17-CA-121 (La. App.). Plaintiffs, who are homeowners on Elizabeth Street in Metairie, brought this action for damages allegedly caused to their homes by heavy trucks using their street during an I-10 construction project in 2013. Homeowners Richard Bagot, Joan Bagot, Mark Guillote and Lashan Guillote brought this suit as putative class representatives against James Holdings, L.L.C., Volkert, Inc., Three C's Properties, State of Louisiana Department of Transportation, and Lefarge North America seeking class certification for all property owners on Elizabeth Street whose properties were similarly damaged. In their timely filed appeal, defendants raise the following assignments of error: (1) The trial court erred in finding plaintiffs met their burden of proof regarding threshold requirements of numerosity, commonality, typicality and adequacy of representation as required under La. C.C.P. art. 591(A). (2) The trial court erred in failing to consider the provisions of La. C.C.P. art. 591(B) in determining whether the proposed class meets the requirements for class action certification. The requirements for certification of the class are set forth in La. C.C.P. art. 591, which states, in part: "A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if: (1) The class is so numerous that joinder of all members is impracticable. (2) There are questions of law or fact common to the class. (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class. (4) The representative parties will fairly and adequately protect the interests of the class. (5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class. The party seeking class certification is responsible for demonstrating that the requirements of La. C.C.P. art. 591 have been met. In this case, the trial court, in its analysis of the numerosity requirement, focused solely on the mathematical number of potential plaintiffs and thereafter afforded plaintiffs the benefit of a non-existent presumption based upon that number to find that joinder was impracticable. The trial court's application of this incorrect legal standard mandates that we conduct a de novo review of the evidence presented relevant to the numerosity element in order to determine whether plaintiffs met their burden as to this element. The parties' arguments regarding the numerosity element, both before the trial court and this Court, focus largely on whether there are, in fact, 39 to 40 damaged homes whose owners have potential causes of action. Plaintiffs argue that the numerosity requirement has been satisfied because they provided both documentary evidence in the form of an aerial photograph showing there are approximately 40 homes on or adjacent to Elizabeth Street and testimony from the putative class representatives and an expert witness as proof that there are at least 40 individual claims that are ripe for adjudication arising from the singular course of conduct at issue. Plaintiffs have argued, correctly, that they are not required to identify every member of a potential class prior to certification. However, plaintiffs' argument and the trial court's statement that 39 or 40 potential claims would create a presumption that joinder is impractical is legally incorrect. There is no threshold requirement or magic number which will render joinder impracticable as a matter of law. To establish numerosity is a determination made on the facts and circumstances of each individual case. Our rigorous analysis of the facts and circumstances in this case is guided by factors adopted by the Supreme Court in Doe that may inform a court's determination of whether the proposed class has a sufficient number of members so that joinder is impracticable. These factors include: Geographic dispersion of the class Wide geographic dispersion of class members supports a finding of impracticability of joinder and therefore, a conclusion that the numerosity requirement is satisfied. The evidence of this case indicates that the class members are not widely distributed across a large geographic area, but rather narrowly concentrated to specific blocks on a single street in the same neighborhood. Accordingly, this factor supports a finding that joinder would be practical and that the numerosity requirement has not been met. Ease with which class members may be identified Knowledge of names and existence of members has been called the most important factor because it renders joinder practicable. In this case, over the course of the more than two-year time span between the initial filing of the litigation and the certification hearing, the class members may have been very easily identified by a simple public records search to determine the homeowners on the few blocks of Elizabeth Street, or a simple door-to-door inquiry as purportedly done by Mr. Bagot. This factor does not support a finding that the numerosity requirement has been met. Nature of the action Plaintiffs have filed claims under theories of negligence, inverse condemnation, and negligence per se for property damage, diminution of property value, mental anguish, and emotional distress. At least with regard to plaintiffs' claims for emotional distress and mental anguish, the individualized nature of such claims weigh against the use of the class action mechanism for their resolution. This Court has also found that claims for diminution of value require individualized proof and must be assessed on an individual basis. This factor, therefore, does not support a finding that the numerosity requirement has been met. Size of each plaintiff's claim and the financial resources of the class members Plaintiffs have not introduced any evidence indicating the size of class members' claims or their financial wherewithal to pursue individual litigation. Accordingly, the La. App. concludes that this factor does not support a finding that the joinder of all members in the proposed class would be impracticable. Judicial economy arising from avoiding multiple actions Plaintiffs have not presented any evidence of other lawsuits arising from the I-10 construction project. They also have not presented evidence that there are, in fact, a large number of dissatisfied persons that have come forward over the many years since completion of the I-10 widening project and the filing of plaintiffs' original petition who have expressed an interest in pursuing a claim for damages. Mr. Bagot testified that he spoke to the owners of all 40 houses on Elizabeth Street and that those persons reported experiencing property damage similar to the Bagots following the construction project. He did not testify whether or not those persons were interested in pursuing claims or seeking redress for those damages. Despite the close geographic proximity and the ease with which the potential claimants could be identified, none of the putative class representatives testified to speaking to a large number of neighbors who expressed an interest in filing a claim or joining a suit. The evidence presented by plaintiffs suggests that there are, in fact, a dozen or fewer persons besides the putative class representatives interested in pursuing claims. This factor therefore weighs against a finding that the claims are so numerous as to make joinder impracticable. Therefore, the La. App. vacates the judgment granting the motion to certify the class, and remands this case for further proceedings. A full-text copy of the La. App.'s December 20, 2017 Opinion is available at https://tinyurl.com/yc85gce4 from Leagle.com.. Scott R. Bickford -- usdcedla@mbfirm.com -- Lawrence J. Centola, III, Neil F. Nazareth -- nfn@mbfirm.com -- Spencer R. Doody, Jason Z. Landry, 338 Lafayette St. New Orleans, LA 70130.COUNSEL FOR PLAINTIFF/APPELLEE, RICHARD BAGOT, JOAN BAGOT, MARK GUILLOTE, AND LASHAN, GUILLOTE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS, SIMILARLY SITUATED. Thomas G. Buck -- tbuck@bluewilliams.com -- Brett W. Tweedel -- btweedel@bluewilliams.com -- COUNSEL FOR DEFENDANT/APPELLANT, JAMES HOLDING, LLC. Daniel J. Caruso -- danc@spsr-law.com -- Susan M. Caruso -- susanc@spsr-law.com -- COUNSEL FOR DEFENDANT/APPELLANT, VOLKERT, INC. A. Jacob Culotta, Jr. -- jculotta@shmrlaw.com -- COUNSEL FOR DEFENDANT/APPELLANT, STATE OF LOUISIANA, THROUGH THE LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Joseph M. Guillot -- jmguillot@christovich.com -- COUNSEL FOR DEFENDANT/APPELLANT, LAFARGE NORTH AMERICA, INC. Robert E. Birtel, COUNSEL FOR DEFENDANT/APPELLANT, THREE C'S PROPERTIES, INC, 3900 N Causeway Blvd #625, Metairie, LA 70002, USA JOHNSON COUNTY, IN: Ind. App. Affirms Dismissal of "Alford" Suit ---------------------------------------------------------------- Judge James S. Kirsch of the Court of Appeals of Indiana affirmed the trial court's dismissal of the case, Kenneth Alford et al., Appellants-Plaintiffs, v. Johnson County Commissioners et al., Appellees-Defendants, Case No. 73A04-1702-PL-223 (Ind. App.). Each of the Appellants in the case is an indigent Defendant and was charged with at least one felony in the Johnson County Courts. The cases of six of the Appellants, Alford, Hasket, Daniels, Bunton, Nye, and Strong, are still pending before the Johnson County Courts. Owens entered into a plea agreement, the details of which are not included in the record. A public defender has been appointed to represent each of the Appellants. The Appellants' complaint names five attorneys ("Public Defenders") -- Michael Bohn, Daniel Vandivier, Matthew Soloman, John Wilson and John Norris -- that were assigned, at various times, to the seven named Appellants. The attorneys who act as public defenders in Johnson County act in that capacity in addition to maintaining their own private practices. The complaint makes allegations against the Public Defenders in two general areas: (i) caseload in 2014 (the year prior to when the Appellants were arrested and charged); and (ii) deficiencies in performance as counsel. On Oct. 8, 2015, the Appellants filed a class action complaint against: (i) the Johnson County Commissioners, in their official capacities; (ii) Bohn, Vandivier, Solomon, Wilson, and Norris as individual attorneys who had entered into contracts to act as public defenders in Johnson County; and (iii) four Johnson County judges in their official and individual capacities, Mark Loyd, Kevin Barton, Lance Hamner, and Cynthia Emkes ("Judicial Appellees"). The Appellants sought declaratory judgment, injunctive relief, and damages for alleged violations of their rights under the Sixth and Fourteenth Amendments to the United States Constitution, Article 1, Section 13 of the Indiana Constitution, and as third-party beneficiaries of the Public Defenders' contracts to act as attorneys for indigent Defendants. Specifically, the complaint sought declaratory judgment stating that all of the Defendants are depriving the Appellants of their rights under the United States Constitution, the Indiana Constitution, and the Public Defenders' contracts. The complaint also sought injunctive relief to enjoin the Johnson County Commissioners from violating the Sixth and Fourteenth Amendments to the United States Constitution in the provision of indigent defense services. Additionally, the Appellants sought an injunction enjoining the Johnson County Commissioners and the Judicial Appellees from violating Article 1, Section 13(a) of the Indiana Constitution in the provision of indigent defense services. They also sought a third injunction to compel the creation of public defender services, which are not under the Courts' supervision or financial control, which are adequately funded, and which conform to the caseload standards set by the American Bar Association and the Indiana Public Defender Commission. Lastly, the Appellants sought damages against all of the defendants for breach of contract and for payment of Appellants' costs and attorney fees. They also sought class certification. In response to the complaint, two motions to dismiss pursuant to Indiana Trial Rule 12(B)(6) were filed: one by the Johnson County Commissioners and the Public Defenders ("Non-Judicial Appellees") and one by the Judicial Appellees. After a hearing on the motions to dismiss, the trial court issued its order granting the motions to dismiss. The Appellants now appeal. They raise the following dispositive issue for Court review: whether the Appellants sufficiently alleged facts to support their claims for relief under the United States and Indiana Constitutions and their third-party beneficiary breach of contract claim such that the trial court erred when it dismissed their complaint. Judge Kirsch concludes that the Public Defenders' contracts at issue here do not support the complaint as alleged. He explains that the Public Defenders have an obligation pursuant to the contracts to not undertake too great a workload, such that they are able to act with reasonable diligence and promptness in their representation of clients. He finds that the Appellants' complaint does not allege that the Judicial Appellees have systematically compelled the Public Defenders to accept case assignments and to undertake more work than they can competently handle after the Public Defenders have declined a case assignment due to an excessive workload. The Judge says the complaint merely alleges that the named Public Defenders have not provided effective assistance to the Appellants, which is an allegation of an individualized claim for relief, and not a claim of a systematic deprivation of constitutional rights. The Judge holds that such individualized claims are better suited for relief pursuant to criminal trial procedures, such as direct appeal, post-conviction relief, or petition for writ of habeas corpus relief, or legal malpractice actions against their individual attorneys, but these avenues can be pursued only after a claim has actually ripened. Judge Kirsch further concludes that the Appellants have failed to state a claim upon which relief can be granted. On the facts alleged in the complaint, including the language of the Public Defenders' contracts, it is the Public Defenders who are responsible for any deficient representation, and any alleged deficient representation is not attributable to either the Judicial Appellees or the Johnson County Commissioners. The Judge finds that the complaint did not contain any allegations that the Judicial Appellees or the Johnson County Commissioners were compelling the Public Defenders to take on a heavier caseload than they could handle. The trial court did not err when it dismissed the Appellants' complaint pursuant to Trial Rule 12(B)(6) for failure to state a claim as to the claims under the Sixth Amendment and Article 1, section 13 of the Indiana Constitution. For these reasons, Judge Kirsch affirmed. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/KXKgeA from Leagle.com. Jessica A. Wegg -- jessica@sllawfirm.com -- Jonathan C. Little -- jon@sllawfirm.com -- Saeed & Little, LLP, Indianapolis, Indiana, Michael K. Sutherlin -- msutherlin@gmail.com -- Michael K. Sutherlin & Associates, Indianapolis, Indiana, Attorneys for Appellants. Curtis T. Hill, Jr., Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Attorneys for Judicial Appellees. William W. Barrett -- wbarrett@wbwlawyers.com -- Daniel J. Layden -- dlayden@wbwlawyers.com -- Williams Barrett & Wilkowski, LLP, Greenwood, Indiana, Attorneys for Appellees Johnson County Commissioners and Public Defenders. JP MORGAN CHASE: "Doherty" Suit over Robocalls Dismissed -------------------------------------------------------- Plaintiff has filed a notice of voluntary dismissal of the lawsuit, Michael Doherty, individually and on behalf of all others similarly situated, the Plaintiff, v. JP Morgan Chase Bank, N.A., the Defendant, Case No. 3:17-cv-02070-JAH-KSC, (S.D. Cal., October 6, 2017). The case sought damages, injunctive relief and any other available legal or equitable remedies for defendant's violation of the Telephone Consumer Protection Act. Plaintiff's complaint states that on December 7, 2015, the Law Office of Daniel Shay sent by facsimile a Cease and Desist Notice to the Defendant expressly revoking any alleged consent to contact the plaintiff on the telephone numbers associated with their account with and prior to that date he did not provide his cell phone number to the Defendant. But, despite the explicit written revocation request communicated directly to the Defendant, the Defendant called the Plaintiff's cell phone through the use of an automatic dialing system which has the ability to store telephone numbers, does store telephone numbers, and has the ability to generate telephone numbers to be called from a stored database for the purposes of dialing such numbers. Defendant or its agent did not have prior express consent to place calls to Plaintiff's cellular telephone. Thus the Plaintiff for himself and other similarly situated person brings the class action against the Defendant for negligent and willful violations of the Telephone Consumer Protection Act.[BN] Plaintiff is represented by: Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ak@kazlg.com Email: jason@kazlg.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7429 Facsimile: (866) 431-3292 Email: danielshay@tcpafdcpa.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Email: josh@westcoastlitigation.com KELLOGG CO: Court Lifts Two-Year Stay in "Mohamed" Suit ------------------------------------------------------- Judge M. James Lorenz of the U.S. District Court for the Southern District of California lifted the stay order in the case, TASNEEM L. MOHAMED, Plaintiff, v. KELLOGG COMPANY, Defendant, Case No. 14cv2449-L (MDD) (S.D. Cal.). The Plaintiff filed a putative consumer class action alleging violation of California Unfair Competition Law, False Advertising Law, Consumer Remedies Act, and breach of express warranty. He alleges that the Defendant's representations on its Gardenburger product, that it is "made with natural ingredients" is false and misleading because it includes hexane processed soy ingredients. The Defendant's primary jurisdiction argument is based on the premise that the federal Food and Drug Administration ("FDA") is conducting an active regulatory review of the use of the word 'natural' in food labeling. On Jan. 6, 2016, the Court granted Joint Motion to Stay Case Pending the Ninth Circuit's Resolution of Pending Appeals in Similar False Food Labeling Cases. The case was initially stayed based on a joint request to await the decisions in Brazil v. Dole Food Company, Inc., Jones v. ConAgra Foods, Inc., and Kosta v. DelMonte Foods, Inc., which were pending before the Ninth Circuit Court of Appeals. The parties were ordered to notify the Court when lifting the stay would be warranted. When no activity occurred through Oct. 30, 2017, the Court issued an Order to Show Cause ("OSC"), directing the parties to show cause why the stay should not be lifted. In their respective responses, the parties disagreed regarding further necessity for a stay. The Plaintiff argues stay should be lifted because all three cases had been resolved, while the Defendant presents a new argument that the stay should continue based on Kane v. Chobani, LLC, under the primary jurisdiction doctrine. Upon review of responses to the OSC and further briefing submitted by both parties, the stay is lifted. Judge Lorenz holds that none of the foregoing considerations counsel continuing the stay of the action. Finally, so far the progress of the FDA's deliberations on the matter has proceeded at a glacial pace. Although the FDA has been considering defining the term "natural" since 1991, so far, it has not decided whether it will define the term at all. In addition, the Judge says the Defendant has not informed the Court of any report from the FDA regarding the timing of its decision. Accordingly, no assurances are provided that, if further stayed, the resolution of Plaintiff's claims would not be needlessly delayed. For these reasons, and because the case has already been stayed for nearly two years, the Judge denied the Defendant's request to extend the stay. No later than Jan. 5, 2018, the parties will contact the assigned Magistrate Judge to schedule a case management conference and issue a scheduling order. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/l1X6QS from Leagle.com. Tasneem L. Mohamed, on behalf of herself and all others similarly situated, Plaintiff, represented by Jessica Lynn Campbell, Aegis Law Firm, Samantha Alane Smith -- samanthas@haelaw.com -- Haeggquist & Eck, LLP & Scott B. Cooper, The Cooper Law Firm, P.C.. Kellogg Company, Defendant, represented by Dean Nicholas Panos -- dpanos@jenner.com -- Jenner & Block, LLP, pro hac vice & Kenneth Kiyul Lee -- klee@jenner.com -- Jenner & Block, LLP. KRISPY KREME: Court OKs Disclosure Only Class Action Settlement --------------------------------------------------------------- Mack Sperling, Esq. -- msperling@brookspierce.com -- of Brooks Pierce McLendon Humphrey & Leonard LLP, in an article for Lexology, reports that "Judge Gale's approval of a class action settlement, in In re Krispy Kreme Doughnuts, Inc. Shareholder Litigation, 2018 NCBC 1 gives me another opportunity to rail against disclosure only settlements. You know that I don't like them. If you don't know that, I've written on this subject several times. . ." "The Krispy Kreme shareholder class litigation followed what has become the inevitable path for almost every merger deal. The transaction was announced on May 9, 2016. Seven shareholder lawsuits alleging that the Krispy Kreme board members had breached their fiduciary duties in agreeing to the transaction (five in NC state courts and later consolidated in the NC Business Court) followed in the next month. "The plaintiff shareholders filed a motion for a preliminary injunction blocking any shareholder vote on the transaction until supplemental disclosures in Krispy Kreme's proxy statement were made. The very next day, in connection with a settlement agreement, Krispy Kreme filed a Form 8-K to supplement its proxy statement. The shareholder vote went ahead on July 27th, with 95% of those voting approving the deal. "The value of those additional disclosures was assessed by Judge Gale in determining whether to approve the settlement. As the Opinion didn't consider the amount of attorneys' fees to be awarded to Plaintiffs' class counsel (there has not yet been an application for fees), Judge Gale assessed the "give and the get" of the 'give' of the release by the class against the materiality of the additional disclosures (the "get"). "North Carolina assesses materiality based on the U.S. Supreme Court's definition of that term in TSC Industries, Inc. v. Northway, 4266 U.S. 48 (1976). The holding in TSC Industries was: "[a]n omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote . . . . It does not require proof of a substantial likelihood that disclosure of the omitted fact would have caused the reasonable investor to change his vote. What the standard does contemplate is a showing of a substantial likelihood that, under all the circumstances, the omitted fact would have assumed actual significance in the deliberations of the reasonable shareholder. Put another way, there must be a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the 'total mix' of information made available. Id. at 449. "Okay. Let's assume that I am a reasonable investor looking at the Krispy Kreme supplemented proxy. Would the supplemental disclosures obtained through the blood and sweat of Plaintiffs' counsel have "significantly altered the 'total mix of information made available" to me in the original proxy? I don't think so. "First, '[t]he Supplemental Disclosures included the specific projected unlevered, after-tax free cash flows of Krispy Kreme for the remainder of 2017 and for the fiscal years 2018 through 2023,as derived from the financial projections provided to Wells Fargo by Krispy Kreme management.' This disclosure was designed to deal with the lack of disclosure of Krispy Kreme's specific projected unlevered after-tax free cash flows Wells Fargo used in its DCF analysis." Op. "That would not change the mix of information before me because it is actually meaningless to me, Unlevered? Come on. What? I don't have a clue what that supplemental disclosure means. Maybe a hedge fund manager or an MBA student focusing on finance would. But they would be too knowledgeable to be considered "reasonable investors". "Class counsel argued that the differences between the discounted cash flow analyses, while 'slight in any particular year' that "the differences over time have greater significance." Op. Par 58. Judge Gale accepted that as "a reasoned argument that some shareholders might have found" that the Supplemental Disclosure regarding the DCF analysis was material." Op. Par 58. "The next supplemental disclosure has a little more meaning to me. It was in response to Plaintiffs complaining that the original Proxy did not disclose whether the Krispy Kreme board "had discussed post-Merger employment opportunities at the inception of merger negotiations." Op. Par 52. "In a less than stunning supplemental disclosure, the Defendants added this nugget of questionable value: that Krispy Kreme board members, in preliminary discussions about a potential merger . . . discussed [the buyer's] 'history or managing its portfolio companies for long-term growth and relying on company management to run the business.' Op. Par. 52. "So board members also employed by Krispy Kreme might have been influenced to vote in favor of the transaction because they might keep their jobs? That speculation makes no difference to me. And how many board members served in company management? Did they have excessively rich employment contracts being drafted with the buyer of Krispy Kreme's assets? Were their votes essential to the approval of the deal? "Another supplemental disclosure concerned the previous relationship of Wells Fargo -- the investment banker on the deal --- to Krispy Kreme and its acquiror. "The supplemental disclosures revealed that in the two years before the deal was struck, Krispy Kreme had paid Wells Fargo $300,000 for 'investment banking services" and that an affiliate of the buyer had paid Wells Fargo $1 million "in connection with corporate loans.' Op. Par 52. "Would that have caused reasonable investor me to discount Wells Fargo's analysis of the transaction because they were tainted by their previous receipt of fees? No. $1.3 million doesn't carry the influence that it used to. "There's at least one other Krispy Kreme ruling imminent from the Business Court. That will be the ruling on the fee application from the Plaintiff class' lawyers. I will be watching for that. "I should probably disclose that I prefer Dunkin' Donuts over Krispy Kreme." [GN] KROGER CO: Court Denies Bid to Dismiss 2nd Amended "Perez" Suit --------------------------------------------------------------- In the case, SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. THE KROGER CO.; and DOES 1-10, Defendants, Case 2116 2:17-cv-02448-ODW (AGR) (C.D. Cal.), Judge Otis D. Wright, II of the U.S. District Court for the Central District of California denied the Defendant's Motion to Dismiss Perez's Second Amended Class Action Complaint ("SAC"). This is a consumer product class action. Perez alleges that Kroger's use of the statement "No Sugar Added" on Kroger 100% Apple Juice, Kroger 100% Natural Apple Juice, and Simple Truth Organic 100% Apple Juice, does not comply with the applicable Food and Drug Administration ("FDA") regulations, specifically 21 C.F.R. Section 101.60(c)(2). Perez further alleges that Kroger's failure to comply with FDA regulations violates various California consumer protection statutes -- the Unfair Competition Law ("UCL"), the False Advertising Law ("FAL"), and the Consumer's Legal Remedies Act ("CLRA"). Perez alleges that in January 2017, she purchased Kroger 100% Apple Juice after reading and relying on the product's "No Sugar Added" label, because sugar level is important to her and she believed that Kroger 100% Apple Juice was healthier than other brands of apple juice. She claims that she would not have bought Kroger 100% Apple Juice if she had known that similar products contained the same level of sugar. If Kroger 100% Apple Juice had not included the "No Sugar Added" label, Perez alleges, she would have either not purchased the product or paid less for it. On Feb. 9, 2017, Perez filed a class action complaint in Los Angeles County Superior Court against Kroger. On March 29, 2017, Kroger removed the action to the Court. On May 6, 2017, Kroger moved to dismiss the complaint, and on May 26, 2017, Perez filed her first amended complaint, mooting the motion to dismiss. Kroger moved to dismiss again on June 16, 2017, arguing that Perez failed to state a claim and that the doctrines of preemption, primary jurisdiction, and safe harbor required dismissal. The Court granted Kroger's Motion in part, finding that Perez had failed to satisfy the requirements of Federal Rule of Civil Procedure 9(b) by pleading fraud with particularity and dismissed her FAL and CLRA claims and some of her UCL claims with leave to amend. It denied the remainder of Kroger's Motion. Perez timely submitted her SAC on Sept. 8, 2017. Kroger moved to dismiss the SAC on Oct. 6, 2017. Kroger moves to dismiss the entire action for failure to state a claim. It has also requested the Court to take judicial notice of a number of documents referenced in Kroger's Motion and its Reply. Perez opposes Kroger's Motion and the request for judicial notice related to Kroger's Reply. Judge Wright finds that although a court may take judicial notice of the existence and content of files in another court, it cannot take judicial notice of the truth of the facts recited therein. Because Kroger asks the Court to take judicial notice of the facts contained within the FDA letter, which the Court cannot do, he will deny Kroger's request for judicial notice as to that document. In her SAC, Perez corrects the deficiencies outlined in the Court's previous Order. Perez now alleges that she observed two different apple juice containers, Martinelli's and Langers, which did not include a "No Sugar Added" label. Therefore, and for the reasons discussed in the Court's previous Order, the Judge holds that Perez has sufficiently stated a claim for violations of the UCL, FAL, and CLRA. He also holds that Perez has standing to assert her claims. The Judge finds that Perez alleges that if Kroger Apple Juice's label had not included the "No Sugar Added" claim, she would not have purchased it, or would have paid less for it. This satisfies the standards set out in Kwikset, despite Kroger's argument regarding the competing juices. Finally, as to Kroger's argument that the Court should dismiss Perez's CLRA claim because she admits that the "No Sugar Added" label on Kroger Apple Juice is "literally true," the Judge says the Court already addressed and rejected that very argument in its previous Order, and he declines to address it again here. For these reasons, Judge Wright denied Kroger's Motion to Dismiss. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/324AL0 from Leagle.com. Sonia Perez, individually, and on behalf of a class of similarly situated individuals, Plaintiff, represented by Robert K. Friedl -- Robert.Friedl@CapstoneLawyers.com -- Capstone Law APC, Trisha Kathleen Monesi -- trisha.monesi@capstonelawyers.com -- Capstone Law APC. The Kroger Co., an Ohio corporation, Defendant, represented by Kelsey Marie Stricker -- kstricker@mofo.com -- Morrison and Foerster LLP & Purvi G. Patel -- ppatel@mofo.com -- Morrison and Foerster LLP. LEPRINO FOODS: Court Narrows Claims in "Perez" Wage and Hour Suit ----------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order granting in part and denying in part Defendant's Judgment on the Pleadings in the case captioned JOHN PEREZ and on behalf of all other similarly situated individuals, Plaintiff, v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTGS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants, Case No. 1:17-CV-00686-AWI- BAM (E.D. Cal.). Leprino moves for judgment on the pleadings regarding Plaintiff's first (failure to pay minimum wages), second (failure to compensate for all hours worked), third (failure to pay overtime wages), and eighth causes of action. Plaintiff and the putative class members are all non-exempt, hourly employees, who work pursuant to a Collective Bargaining Agreement (CBA) between Leprino and the Teamsters Union. The central factual allegation in the Plaintiff's action is that Leprino has a practice of requiring Plaintiff and the putative class members to work substantial amounts of time without pay. Leprino does not pay Plaintiff and the putative class members for all required pre- and post-shift work activies that are necessary and integral to their overall employment responsibilities, such as: donning and doffing required sanitary gear, walking to production lines, waiting in line to sanitize, and waiting for sanitary gear and/or supplies. Leprino emphasizes the following sections of the CBA: 1. The lowest hourly wage rate for any employee provided for in the CBA is $12.99. 2. Employees who are required to change into and out of uniforms will be paid a total of 14 minutes of additional compensation for donning and doffing at the straight time rate for each shift worked. This compensated time is not considered hours worked. 3. Time and one-half (1-1/2) will be paid for all hours worked above eight (8) hours within nine and one-half (9-1/2) consecutive hours in any one (1) day, or forty (40) hours in any one (1) week, whichever is greater. Plaintiff's First and Second Causes of Action Plaintiff goes on to highlight that the CBA continues on to explain that this compensated time is not considered hours worked. Plaintiff appears to suggest that the fourteen minutes of additional compensation paid by Leprino for donning and doffing is not considered hours worked for purposes of the California Labor Code because the CBA indicates that the compensated time is not considered hours worked. The Court rejects that position. If, as the CBA requires, the putative class members were compensated for fourteen minutes worth of time for donning and doffing, Plaintiff and the putative class members could not recover for failure to pay the minimum wage for that fourteen minutes. If, however, Plaintiff and the putative class members regularly spend more than fourteen minutes donning and doffing sanitary gear, they could recover for underpayment of that time. Plaintiff's allegations do not support one theory clearly over the other. Plaintiff has alleged facts that, if true, could just as easily support liability as an absence of liability. Insofar as Plaintiff's first claim is premised upon failure to pay wages for donning and doffing, it must be dismissed and Defendants' motion granted. Plaintiff's Third Cause of Action California Labor Code Section 510 requires an employer to pay a non-exempt employee overtime for any work in excess of eight hours in one workday or forty hours in one workweek. Plaintiff points out that Section 514 exempts employees from the reach of Section 510 only when the valid collective bargaining agreement provides premium wage rates for all overtime hours worked. Plaintiff argues that by defining time spent donning and doffing sanitary gear as something other than hours worked, the CBA does not provide a premium wage rate for all overtime hours worked for purposes of the California Labor Code. Plaintiff argues that to conclude otherwise would allow unionized employers to avoid overtime by unilaterally choosing what activities it will and will not count as hours worked. Although Plaintiff's position ignores the role that a labor union has in negotiating a CBA, an employer of unionized employees can take no unilateral action impacting the pay or conditions of employment of those employees--Plaintiff's position is not without merit. The California Labor Code only provides an exemption to payment of overtime pursuant to Section 510 if a premium wage is paid for all overtime hours worked. That limitation would be largely undermined if the parties to a CBA could exclude activities that are integral to performance of the principal work activity from consideration as "hours worked" for purposes of calculating overtime compensation. On the face of the CBA, it is clear that it does not require Leprino to pay a premium rate for all overtime hours worked, to wit donning and doffing time is not counted as hours worked for purposes of overtime calculation. Based on the allegations before the Court, Section 514 does not exempt Plaintiff or the putative class from the reach of the overtime requirements of Section 510(a). Defendants' motion to for judgment on the pleadings as to Plaintiff's third cause of action will be denied. Plaintiff's Eighth Cause of Action Plaintiff alleges that Leprino wrongfully withheld earned wages and other monies from Plaintiff and the putative class. In particular, Leprino failed to pay all wages earned pursuant to the applicable employment laws and regulations. Defendants further contend that Plaintiff's claim fails because the Plaintiff and putative class members did not allege that they held title to the wages allegedly converted or that the alleged wages were a specific sum capable of identification. In order to plead a cause of action, Plaintiff must specifically allege the basis for their claim and how a specific sum that was allegedly converted could be ascertained. In light of the likely absence of any identifiable specific sum converted, this claim will be dismissed. A claim that Defendants, over time, failed to pay Plaintiff an incalculable amount of wages regardless of why the amount is incalculable will not suffice. The Court cannot now determine that it would be futile to permit amendment. However, if any amended complaint does not cure the defect identified herein, Plaintiff's conversion claim will be dismissed without further leave to amend. A full-text copy of the District Court's December 20, 2017 Order is available at https://tinyurl.com/y7w8wvg9 from Leagle.com.. John Perez, and on behalf of all other similarly situated individuals, Plaintiff, represented by Cory Lee -- downeyjusticelee@gmail.com -- The Downey Law Firm, LLC. Leprino Foods Company, A Colorado Corporation & Leprino Foods Dairy Products Company, A Colorado Corporation, Defendants, represented by Sandra L. Rappaport -- srappaport@hansonbridgett.com -- Hanson Bridgett LLP, Daniel Robert Lentz -- DLentz@hansonbridgett.com -- Hanson Bridgett LLP, Kyle Aaron Mabe -- kmabe@hansonbridgett.com -- Hanson Bridgett LLP & Lisa M. Pooley -- lpooley@hansonbridgett.com -- Hanson Bridgett LLP. LEPRINO FOODS: Judgment on Pleadings Bid in "Vasquez" Suit OK'd --------------------------------------------------------------- In the case, ICTOR VASQUEZ and LINDA HEFKE on behalf of all other similarly situated individuals, Plaintiffs, v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive, Defendants, Case No. 1:17-CV-00796-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California granted the Defendants' motion for judgment on the pleadings regarding the Plaintiffs' fourth cause of action for conversion. On May 8, 2017, Vasquez and Hefke filed the instant wage and hour class action on behalf of themselves and other similarly situated non-exempt, hourly employees at the cheese processing plant operated by the Defendants. The Plaintiffs and the putative class members are all non-unionized non-exempt, hourly employees who work at the West Lemoore dairy/cheese processing facility. Until May of 2017, Leprino had a policy of "de crewing" on days when more workers arrived at the West Lemoore Plant than were needed for production. Leprino's policy involved sending workers home prior to the start of their scheduled shifts without pay. When sending workers home without pay, Leprino would require those workers to fill out Time Off Request forms ("TOR"). Those workers who did demand pay were ordered to forfeit a vacation day if they wished to be paid in lieu of Leprino paying them 4 hours of Reporting Time Pay ("RTP"). Leprino maintains or maintained during the class period, a policy of requiring the Plaintiffs and putative class members to remain on call and subject to return to work during their rest and meal breaks. Leprino removed the action to the Court on May 18, 2017. The action proceeds forward on the Plaintiff's First Amended Complaint ("FAC"), filed on June 16, 2017, consisting of five causes of action for violations of the California Labor Code, an Unfair Business Practices Act claim, and a conversion claim. The Defendant filed an answer on June 30, 2017. Leprino moves for judgment on the pleadings regarding the Plaintiffs' fourth cause of action for conversion. The Plaintiff opposes that motion. The Plaintiffs allege two bases for their conversion claim. First, they allege that Leprino wrongfully withheld earned wages and/or coerced them into forfeiting vacation days in lieu of being paid reporting time pay. Second, the Plaintiffs allege that Leprino failed to pay them for requiring them to remain on duty and to respond to work instructions during meal and rest breaks. They also allege separate Labor Code violations for both of those alleged courses of conduct. Judge Ishii holds that neither of those theories gives rise to a viable claim for conversion. Under California law, when the Legislature creates a right that did not exist at common law and provides a comprehensive remedial scheme for that right, the statutory remedies are exclusive. Both of the theories pursued by the Plaintiffs are reliant on protections created by the Labor Code as part of a comprehensive remedial scheme. Likewise, a right to recover reporting time pay did not exist at common law. As a result, the Plaintiff's conversion claim is precluded insofar as it seeks to recover wages for meal period premiums or reporting time pay. Because amendment would be futile as to both theories, the Plaintiff's fourth cause of action will be dismissed without leave to amend. Based on the foregoing, Judge Ishii granted the Defendants' motion for judgment on the pleadings as to the Plaintiffs' fourth cause of action. That claim is adjudicated in favor of Leprino. Leave to amend will not be granted. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/Ng1xJk from Leagle.com. Victor Vasquez & Linda Hefke, Plaintiffs, represented by Cory Lee, The Downey Law Firm, LLC. Leprino Foods Company, a Colorado corporation & Leprino Foods Dairy Products Company, a Colorado corporation, Defendants, represented by Lisa M. Pooley -- lpooley@hansonbridgett.com -- Hanson Bridgett LLP, Sandra L. Rappaport -- srappaport@hansonbridgett.com -- Hanson Bridgett LLP & Kyle Aaron Mabe -- kyle.a.mabe@gmail.com -- Hanson Bridgett LLP. LUXOR LIMO: "Chohan" Suit Seeks to Recover OT Pay, Reimbursements ----------------------------------------------------------------- Sajjad Chohan, Individually, and on behalf of all others similarly situated, Plaintiff, v. Luxor Limo Inc., Defendant, Case No. 17-cv- 07602, (E.D. N.Y., December 31, 2017), seeks unpaid commissions and unlawful wage deductions, full reimbursement of costs, including reimbursement for monies spent cleaning and maintaining uniforms, unpaid commissions and unlawful wage deductions, maximum liquidated damages, interest, and attorneys' fees pursuant to New York Labor Law. Defendant is in the business of providing transportation services where Chohan was employed as a driver. He claims overtime for hours rendered in excess of 40 per workweek and reimbursement of business expenses. Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Tel: (718) 740-1000 Fax: (718) 355-9668 E-mail: abdul@abdulhassan.com M & Y CARE: "Cardwell" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------ Rubie D. Cardwell and Charles M. Hill, on behalf of themselves and all other similarly situated employees v. M & Y Care, LLC, Case No. 1:18-cv-00044 (N.D. Ohio, January 8, 2018), seeks to recover unpaid overtime compensation and other benefits of employment under the Fair Labor Standards Act of 1938. The Plaintiffs currently reside in Cleveland, Ohio and were at all relevant times employed by Defendant as home health aides. Defendant M & Y is a home care agency that provides home healthcare services, including homemaker, custodial, and skilled and non-skilled home healthcare services to elderly and disabled persons. [BN] The Plaintiffs are represented by: David W. Neel, Esq. DAVID W. NEEL, LLC 16781 Chagrin Blvd. Shaker Heights, OH 44120 Tel: (216) 522-0011 Fax: (844) 548-3570 MBA WASTE SERVICES: Discovery in "Moore" Wages Suit Underway ------------------------------------------------------------ Defendant on Jan. 22 filed its answer to the complaint in the case titled, Daniel Moore, on behalf of himself and all others similarly situated, the Plaintiff, v. MBA Waste Services LLC and Kenneth W. Mitchell, the Defendants, Case No. 1:17-cv-03948-ELR, (N.D. Ga., October 6, 2017). According to a Jan. 22 docket entry, discovery ends on June 21, 2018. The Plaintiff alleges in the complaint that the Defendants failed to count all hours worked, to pay for all hours worked, failed to pay overtime and to keep accurate records of all hours worked as to Plaintiff and all employees similarly situated in violation of the Fair Labor Standards Act. Further, Plaintiff and all similarly situated employees have been damaged because of the said uniform and company-wide policies that resulted in the systematic failure to pay overtime at time and a half regular rate as well as the systematic failure to pay workers for all hours worked.[BN] Plaintiff is represented by: David S. Fried Georgia, Esq. Joseph A. White, Esq. Daniel Wyatt Georgia, Esq. FRIED & BONDER, LLC White Provision, Suite 305 1170 Howell Mill Road, NW Atlanta, GA 30318 Telephone: (404) 995-8808 Telephone: (678) 576-7816 Email: dfried@friedbonder.com Email: jwhite@friedbonder.com Email: danielwyatt@wyatt-law.com MDL 2804: Judge OKs Expanded Plaintiffs Leadership Team ------------------------------------------------------- Law.com reports that a federal judge has approved a plaintiffs leadership team in the opioid litigation that's expected to get bigger--much bigger. U.S. District Judge Dan Polster in Ohio on Jan. 4 approved a team of 22 lawyers to spearhead more than 180 lawsuits brought over the opioid epidemic, which has led to a public health crisis across the nation. The team reads like a "Who's Who" in mass torts and includes many of the same lawyers who obtained the $246 billion settlement with Big Tobacco. The proposed slate was submitted in a court filing on Jan. 3, complete with an organizational chart that shows various committees and working groups in which several more attorneys would be named. Overseeing those groups would be a plaintiffs steering committee, whose membership has yet to be decided. "I anticipate there will be dozens of more law firms involved than are identified in the current time," said Joe Rice -- jrice@motleyrice.com -- co-lead counsel on the team. "As to who they'll be, and what their role will be, will be largely dictated on how the court will organize the case." Peter Weinberger, managing partner of Cleveland's Spangenberg Shibley & Liber, who is one of three liaison counsel on the team, wrote in an email that he planned to submit additional names to the leadership slate following a Jan. 9 hearing, at which Judge Polster has indicated he could decide the structure of the MDL and whether to appoint a special master. The slate approved on Jan. 4 includes the most senior positions, including three co-lead counsel and 16 members of an executive committee. The membership was slightly revised from the original leadership team proposed last month after Judge Polster ordered that two lawyers representing nongovernmental entities -- specifically, hospitals and third-party payors -- should be included. He also limited the number of attorneys from the same law firm who could be on the executive committee. That dropped Jayne Conroy -- JConroy@simmonsfirm.com -- of Simmons Hanly Conroy, Burton LeBlanc of Baron & Budd and Linda Singer of Motley Rice from the executive committee. Paul Hanly -- phanly@simmonsfirm.com -- of Simmons Hanly and Rice, of Motley Rice, are co-lead counsel, along with Paul Farrell of West Virginia's Greene, Ketchum, Farrell, Bailey & Tweel and Roland Tellis of Baron & Budd are on the executive committee. Morgan & Morgan also was added to the executive committee after objecting to a selection process that took place at the Hilton Cleveland Downtown Hotel last month. "West Virginia and Appalachia, more especially, is the epicenter to the opioid epidemic," said James Young, the Morgan & Morgan partner in Jacksonville, Florida, who was named to the revised slate. Mr. Young was special counsel to the attorney general in Florida, prosecuting pharmaceutical fraud cases. His firm has filed nine opioid cases on behalf of cities in West Virginia. He said the ordinary leadership structures in most MDLs -- usually limited to lead counsel, an executive committee and plaintiffs steering committee -- wouldn't work in the opioid litigation because it's "simply too big." "I think of it as a collection of MDLs within a single consolidated proceeding," he said. "There are multiple defendants, which is a bit of a rarity, and multiple theories, in terms of governmental entities, different damages elements, causes of action. It's a very complex, huge piece of historic litigation." Those myriad parties and claims have complicated the creation of a leadership team. Claims against distributors, for instance, have focused on the failures of those companies to flag unusually large orders of opioids, while manufacturers have faced allegations of falsely marketing the prescription painkillers as not addictive. The approved leadership slate would include separate co-chairs focused on the disparate claims against seven manufacturers and five groups of distributors. In addition, the majority of the cases have been brought by governmental entities, like states, counties and cities, but hospitals, labor unions and Native American tribes also have brought suits -- all of which would be represented on the leadership team. After two groups of lawyers raised concerns last month that the original leadership slate did not include nongovernmental plaintiffs, Judge Polster ordered that lawyers be appointed to represent hospitals and third-party payors. The revised slate on Jan. 3 includes James Dugan of The Dugan Law Firm in New Orleans, for third-party payors, and Don Barrett of Barrett Law Group in Lexington, Mississippi, for hospital plaintiffs. The lawyer who objected on behalf of hospitals, J. Nixon Daniel of Beggs & Lane in Pensacola, Florida, filed a motion on Jan. 3 arguing that he should have been appointed to that slot -- either in addition to or in place of Mr. Barrett. Neither Messrs. Daniel nor Barrett responded to requests for comment. MI GROUP: Files Answer to Amended Complaint in "Roy" Suit --------------------------------------------------------- Defendant on Jan. 19 filed its answer to the amended complaint in the case, Samir Roy, individually, and on behalf of all others similarly situated, and on behalf of the general public, the Plaintiff, v. The MI Group, Inc., the Defendant, Case No. 3:17- cv-05800-EDL, (N.D. Cal., October 6, 2017). According to the complaint, the Plaintiff and other similarly situated persons were or are employed by the Defendant as Relocation Managers and Relocation Associates and were non-exempt employees under federal and state wage-and-hour laws, and should have been classified as such and received overtime pay consistent with the requirement of these laws. However, the Defendant failed to pay the appropriate overtime compensation as required by federal and state law.[BN] Plaintiff is represented by: Bryan Schwartz, Esq. Logan Talbot, Esq. BRYAN SCHWARTZ LAW 1330 Broadway, Suite 1630 Oakland, CA 94612 Telephone: (510) 444-9300 Facsimile: (510) 444-9301 Email: bryan@bryanschwartzlaw.com Email: talbot@bryanschwartzlaw.com MOUNT SINAI: 2nd Circuit Affirms Ruling in TCPA Class Action ------------------------------------------------------------ Hector E. Lora, Esq., of Maurice Wutscher LLP, in an article for Lexology, wrote that the U.S. Court of Appeals for the Second Circuit recently affirmed the entry of judgment on the pleadings against the plaintiff in a putative class action alleging that a text message sent by a third party on behalf of a hospital reminding the plaintiff about a flu shot violated the federal Telephone Consumer Protection Act (TCPA), holding that the plaintiff provided his prior express consent to receive such messages in a hospital admission form. The case is DANIEL LATNER v. MOUNT SINAI HEALTH SYSTEM, INC, WEST PARK MEDICAL GROUP, P.C. The plaintiff went to a medical clinic owned by a hospital for a routine health examination in 2003. He completed several new patient forms, including one that gave consent to the hospital to use his health information "for payment, treatment and hospital operations purposes." In June 2011, the hospital contracted with a third party to send mass text messages, "including flu shot reminder texts" on the hospital's behalf. In September 2014, the plaintiff received a text message advising him that "[i]ts [sic] flu season again" and providing a telephone number to make an appointment for a "flu shot." The plaintiff sued the clinic and hospital, alleging that the hospital violated Sec 227(b)(1)(A)(iii) of the TCPA, which "makes it unlawful to send texts or place calls to cell phones through automated telephone dialing systems, except under certain exceptions or with consent." In December 2016, the trial court granted the hospital's motion for judgment on the pleadings and dismissed the case. The plaintiff appealed. On appeal, the Second Circuit explained that "Congress delegated authority to issue regulations under the TCPA to the Federal Communications Commission." The Court then discussed the history of the FCC's TCPA rulemaking, beginning with a 1992 order in which the FCC "concluded that 'persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.'" The Court went on to explain that "[i]n 2008, the FCC extended this proposition to cell phone numbers." Then, in 2014, the FCC clarified that "the scope of [an individual's prior express] consent must be determined upon the facts of each situation." In addition, the Court explained that "[i]n 2012, the FCC devised a 'Telemarketing Rule' requiring 'prior written consent for autodialed or prerecorded telemarketing calls.'" However, in the Telemarketing Rule, the FCC exempted from the written consent requirement "calls to wireless cell numbers if the call 'delivers a 'health care' message made by, or on behalf of, a 'covered entity' or its 'business associate,' as those are defined in the HIPPA Privacy Rule. . . . HIPPA defines health care to include 'care, services, or supplies related to the health of an individual . . . [and] exempts from its definition of marketing all communications made '[f]or treatment of an individual by a health care provider . . . or to direct or recommend alternative treatments' to the individual." The Court then reasoned that although the trial court held that "the text message qualified for the FCC's Healthcare Exception[,]" its "analysis was incomplete." This was because the trial court found that the text message delivered a "health care" message under the HIPPA Privacy Rule, but "it did not then go on to determine whether [plaintiff] provided his prior express consent to receive the text message." The Second Circuit nevertheless affirmed the trial court's judgment because after "considering 'the facts of the situation,'" the Court determined that the plaintiff had given his prior express consent to be called and texted when he provided his cell phone number when he first visited the clinic in 2003. Accordingly, the trial court's judgment was affirmed. [GN] NEW KANG SUH: "Lee" Suit Seeks Unpaid Minimum & OT Wages -------------------------------------------------------- YOUNG MIN LEE, individually and on behalf of all employees similarly situated, the Plaintiff, v. NEW KANG SUH INC. d/b/a Korea Garden and MYUNG SOOK CHOI, the Defendants, Case No. 7:17- cv-09502-NSR (S.D.N.Y., Dec. 4, 2017), seeks to recover unpaid minimum wages, unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest; and attorneys' fees and costs under the New York Labor Law and the Fair Labor Standards Act. According to the complaint, from 2001 until 2015 Plaintiff was paid at a flat daily rate of $55 regardless of the actual hours she worked. From 2015 until June 15, 2017, Plaintiff was paid at a flat rate of $60 regardless of the actual hours she worked. The Defendants did not compensate Plaintiff for overtime compensation according to state and federal laws. The Plaintiff was not compensated for New York's "spread of hours" premium for shifts that lasted longer than 10 hours. The Defendants did not provide Plaintiff with a wage notices at the time of her hiring. The Defendants committed the following alleged acts knowingly, intentionally and willfully. The Defendants knew that the nonpayment of overtime and the "spread of hours" premium would economically injure Plaintiff and the Class Members by their violation of federal and state laws. The Defendants knew that the nonpayment of overtime pay, spread of hours pay, and failure to provide the required wage notice at the time of hiring would financially injure Plaintiff and similarly situated employees and violate state and federal laws. The Defendant is a longtime Korean BBQ stop offering grill-at- the-table meats 24/7 in a dinerlike space.[BN] The Plaintiff is represented by: Phillip H. Kim, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Avenue, Suite 10G Flushing, NY, 11354 Telephone: (718) 353 8588 E-mail: pkim@hanglaw.com NEW JERSEY: "Cloud" Suit Alleging Harassment Underway ----------------------------------------------------- Nakinya Cloud, the Plaintiff, v. State of New Jersey and John Does 1 to 10, the Defendants, Case No. MER-L-002185-17, (N.J. Super. Ct., October 6, 2017), remains pending. Plaintiff alleges in her complaint that she began working for Mercer Airport on December 15, 2015 as a shuttle driver/parking attendant and she was subjected to sexual harassment during the course of her employment. Plaintiff avers that the harassment was regular, ongoing and continuous such that the entirety of the harassment is actionable under the continuing violation doctrine. Immediately after she began her employment, plaintiff was subjected to sexually harassing comments from her Supervisor, Stanley Patterson. Plaintiff alleges violations of the defendant that includes sexual harassment and retaliation under the New Jersey Law Against Discrimination. The Plaintiff seeks the court for an equitable relief that includes the Defendants to cease and desist all conduct inconsistent with the claims made herein going forward.[BN] Plaintiff is represented by: Kevin M. Costello, Esq. COSTELLO & MAINS, LLC 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 Telephone: (856) 727-9700 NEW JERSEY: "Miller" Suit over Discrimination Underway ------------------------------------------------------ The case, Clifton Miller, the Plaintiff, v. State of New Jersey and John Does 1 to 10, the Defendant, Case No. MER-L-002183-17, (N.J. Super. Ct., October 6, 2017), remains pending. The Plaintiff alleges that he has been the victim of unlawful harassment in violation of the New Jersey Law Against Discrimination ("LAD") and that he has been subjected to harassment based upon race, disability, perception of disability and/or retaliation, singly or taken as a continuum. Plaintiff is an African American and he began employment with the State of New Jersey on or about May 15, 2015, as an Investigator and has been subjected to harassment based upon his race since his employment. Plaintiff was subjected to harassment that exceeds two years preceding the filing of his complaint. All harassment suffered by the Plaintiff was severe and pervasive. Plaintiff was subjected to intentional, egregious, malicious and/or engaged in with a willful and wanton disregard for the rights of the Plaintiff. The harassment was participated in and/or willfully ignored by upper management and punitive damages are warranted.[BN] Plaintiff is represented by: Kevin M. Costello, Esq. COSTELLO & MAINS, LLC 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 Telephone: (856) 727-9700 NEW JERSEY TURNPIKE: "Reynoso" Class Suit Shelved ------------------------------------------------- The case captioned as YUDELKA REYNOSO, ROMAN WACH, and JENNIFER AHMAD, on behalf of herself and all other Class Members similarly situated, the Plaintiff, v. NEW JERSEY TURNPIKE AUTHORITY, a New Jersey Body Corporate and Politic; NJ E-ZPASS, as agent in the state of New Jersey on behalf of the Electronic Toll Collection Consortium which includes the New Jersey Turnpike Authority, the South Jersey Turnpike Authority, the Delaware River Port Authority, the Delaware River and Bay Authority, etc.; JOSEPH W. MROZEK, in his capacity as an individual and in his capacity as the Executive Director of the New Jersey Turnpike Authority; VERONIQUE HAKIM, in her individual capacity and in her former capacity as the Executive Director of the New Jersey Turnpike Authority; DONNA MANUELLI, in her individual capacity and in her capacity as Chief Financial Officer (formerly as Comptroller) of the New Jersey Turnpike Authority; ABC CORPORATIONS 1-50, JANE AND JOHN DOES 1-50, the Defendants, Case No. 2:17-cv-12356-JMV- JBC (D.N.J., Dec. 1, 2017), has been administratively terminated. In a January 17 Stipulation and Order, Judge John Michael Vazquez said the action is stayed pending a decision in the case, James Long and Homer Walker v. New Jersey Turnpike Authority, Case No A-001557-17T4 (N.J. Super. App. Div.). Within 14 days of the Termination Date, Counsel for Plaintiffs and Defendants in this action shall meet and confer regarding a schedule for this action and shall submit a joint status report with the Court that includes a proposed schedule and formal request to re-open the matter. The Clerk is directed to administratively terminate this matter without prejudice. The New Jersey Turnpike Authority is a state agency responsible for maintaining the New Jersey Turnpike and the Garden State Parkway. The agency is headquartered in Woodbridge Township, New Jersey.[BN] The Plaintiffs are represented by: Matthew Peter Faranda-Diedrich, Esq. ROYER COOPER COHEN BRAUNFELD Two Logan Square 100 N 18th St., Suite 710 Philadelphia, PA 19103 Telephone: (267) 546 0275 E-mail: mfd@rccblaw.com NFL: 3d Cir. Reverses Dismissal of "Finkelman" Suit --------------------------------------------------- Judge Julio M. Fuentes of the U.S. Court of Appeals for the Third Circuit reversed the District Court's dismissal of the case, JOSH FINKELMAN, on behalf of himself and the Putative class, Appellant, v. NATIONAL FOOTBALL LEAGUE; NFL VENTURES, L.P.; NFL PROPERTIES, L.L.C.; NFL VENTURES, INC.; NFL ENTERPRISES, L.L.C., Case No. 16-4087 (3d Cir.). Finkelman had the once-in-a-lifetime opportunity to buy tickets to Super Bowl XLVIII held in his home state of New Jersey in February 2014. However, the NFL withheld almost all of these tickets -- 99% -- from the general public for league insiders, offering the remaining 1% to lucky winners of a lottery that all could enter. To get his tickets, Finkelman turned to the secondary market, purchasing two tickets with a face value of $800 each for $2,000 each. In January 2014, one month before the Super Bowl, Finkelman filed a putative class action in the District of New Jersey against the NFL and various affiliated entities, alleging that the Defendants violated New Jersey's Ticket Law, N.J. Stat. Ann. Section 56:8- 35.1, by withholding more than 5% of tickets to the Super Bowl. In the first round of the case, the Defendants moved to dismiss Finkelman's first amended complaint under Rule 12(b)(6) and the District Court granted the motion. Without addressing Article III standing, the District Court reasoned that the Defendants never "withheld" tickets within the meaning of the Ticket Law because they did not keep tickets in their custody. The District Court also concluded that Finkelman failed to plead causation under the CFA because he never entered the ticket lottery. On appeal, the Appellate Court concluded that Finkelman did not establish Article III standing. It remanded to allow the District Court to exercise its discretion as to whether Finkelman should be granted leave to amend. The District Court granted Finkelman's motion to amend the complaint, and Finkelman filed a Second Amended Complaint. In it, Finkelman pursued only the second theory of standing, mapped out in the Appellate Court's first opinion. To do so, Finkelman added facts alleged by Daniel Rascher, an economist who specializes in sports and ticketing on the workings of secondary ticket markets in events like the Super Bowl. Rascher concludes that the NFL's withholding resulted in fewer tickets being available on the secondary market and higher prices for those tickets that were available. The Defendants again moved to dismiss, and the District Court granted the motion. Finkelman appeals the District Court's judgment which followed the Appellate Court's remand, arguing that he has properly pleaded Article III standing and has properly pleaded a claim under the Ticket Law to overcome the Defendants' Rule 12(b)(6) motion to dismiss. In finding that Finkelman had not properly alleged standing in our initial opinion, Judge Fuentes compared the case to Dominguez v. UAL Corp., in which the D.C. Circuit reversed the district court's grant of summary judgment in favor of the defendant and found that the plaintiff lacked standing to sue. Like Finkelman in his earlier complaint, the plaintiff could only speculate as to whether an end to United's prohibition would have led to lower ticket prices. Here, however, in his amended complaint, the Judge finds that Finkelman has offered specific factual allegations above and beyond those described in Dominguez. Finkelman did not just allege that prices would be lower on the secondary market were it not for the NFL's withholding. Instead, Finkelman alleged a causal chain justifying why the NFL's withholding set into motion a series of events that ultimately raised prices on the secondary market. Given his additional factual allegations, Finkelman has offered economic facts that are specific, plausible, and susceptible to proof at trial. The Defendants may be correct that Finkelman will not be able to prove that the 2014 Superbowl secondary ticket market worked as he claims. They remain free to bring a factual challenge to jurisdiction disputing just that. But Finkelman is not required to prove his economic theory in his complaint, and, at this stage in the litigation, he has alleged sufficient factual allegations to show that the Defendants' withholding raised the price that he paid for tickets on the secondary market. Thus, Finkelman has Article III standing. For these reasons, Judge Fuentes reversed the District Court and finds that the Appellate Court has subject matter jurisdiction over the matter. He deferred action on the merits of the appeal pending a decision by the Supreme Court of New Jersey on a petition for certification of questions of state law. The Court will retain jurisdiction over the appeal pending resolution of the certification. A full-text copy of the Court's Dec. 22, 2017 Opinion is available at https://is.gd/ToVvpD from Leagle.com. Greg M. Kohn, Esq. -- gkohn@nagelrice.com -- Bruce H. Nagel, Esq. -- bnagel@nagelrice.com -- [ARGUED], Andrew Pepper, Esq. -- apepper@nagelrice.com -- Robert H. Solomon, Esq. Nagel Rice, 103, Eisenhower Parkway, Roseland, NJ 07068, Counsel for Appellant. Karen A. Confoy, Esq. -- kconfoy@foxrothschild.com -- Fox Rothschild, 997, Lenox Drive, Princeton Pike Corporate Center, Building 3, Lawrenceville, NJ 08648, William Feldman, Esq., Jonathan D. Pressment, Esq. -- jonathan.pressment@haynesboone.com -- [ARGUED], Haynes & Boone, 30, Rockefeller Center, 26th Floor, New York, NY 10112, Counsel for Appellees. NIAGARA BOTTLING: Frompovicz Files Suit Over False Ad ----------------------------------------------------- Stanley F. Frompovicz dba Far Away Springs, on behalf of himself and all others similarly situated v. Niagara Bottling, LLC, Ice River Springs Water Co., Inc., Crossroads Beverage Group, and James J. Land, Jr. dba MC Resource Development aka Pine Valley Farms Springs, Case No. 2:18-cv-00054 (E.D. Pa., January 8, 2018), seeks monetary damages and other relief under the Lanham Act and Pennsylvania law, in connection with the advertising and sale of bottled water that is falsely, deceptively, and misleadingly marketed, labeled and sold as "spring water" by Defendants. Plaintiff, Stanley F. Frompovicz is a resident and citizen of Pennsylvania. Mr. Frompovicz does business as Far Away Springs, a fictitious trade name registered in Pennsylvania. Far Away Springs has its principal place of business in Auburn, Pennsylvania. Defendants Niagara, Ice River, and Crossroads are bottlers. They operate water bottling facilities in which extracted raw water is processed, potentially treated in some fashion depending on the water classification, and placed in containers and distributed to retail and other outlets for sale and human consumption. All three bottling Defendants source raw water from Defendant Land dba MC Resource Development aka Pine Valley Farms Springs. Bottling Defendants then bottle, market, and sell this water as "spring water." [BN] The Plaintiff is represented by: Richard M. Golomb, Esq. Ruben Honik, Esq. Kenneth J. Grunfeld, Esq. David J. Stanoch, Esq. GOLOMB & HONIK, P.C. 1515 Market Street, Suite 1100 Philadelphia, PA 19102 Tel: (215) 985-9177 Fax: (215) 985-4169 E-mail: rgolomb@golombhonik.com rhonik@golombhonik.com kgrunfeld@golombhonik.com dstanoch@golombhonik.com NORTH ALABAMA FAMILY: Sued for Denying Health Care Staff OT Pay --------------------------------------------------------------- Tammy Maples, Kenya Henson, Angela Watkins, Olive Turner, Jessica Watts, Carleb Delices, Ricky Gray, Chequitia Griggs individually and on behalf of all others similarly situated, Plaintiffs, v. North Alabama Family Services, Inc., North Alabama Professional and Residential Services, Inc., Ficticious Defendants A-D and Deanna Wilks, an individual Defendants, Case No. 17-cv-02196 (N.D. Ala., December 29, 2017), seeks to recover unpaid compensation and benefits, plus an equal amount of liquidated damages, prejudgment interest, reasonable attorneys' fees, including the costs and expenses of this action and such other legal and equitable relief pursuant to the Fair Labor Standards Act. North Alabama Family Services provides health care services to adults in need of care structured as a group home with four adult group home locations. Plaintiffs were employed as non- professional health care providers. They claim to have been inaccurately compensated for overtime hours. [BN] Plaintiff is represented by: J. Allen Schreiber, Esq. Lauren E. Miles, Esq. SCHREIBER LAW FIRM, P.C. 6 Office Park Circle, Suite 209 Birmingham, AL 35223 Phone: (205) 971-9140 Tel: allen@schreiber.law lauren@schreiber.law NORTHBAY HEALTHCARE: Cal. App. Refuses to Certify "Caudle" Class ---------------------------------------------------------------- In the case styled JOSEPH CAUDLE, Plaintiff and Appellant, v. NORTHBAY HEALTHCARE GROUP, Defendant and Respondent, Case No. A148912 (Cal. App.), Judge James A. Richman of the U.S. Court of Appeals of California for the First District, Division Two, affirmed the trial court's order denying Caudle's motion for class certification. On Oct. 16, 2013, Caudle received treatment at one of NorthBay's emergency rooms for injuries he suffered in an automobile accident. He did not have health insurance, nor was he covered by a governmental health program. He was given a copy of NorthBay's Hospital and Outpatient Service Agreement, on which his wife signed his name. The agreement provided that he would pay NorthBay its regular rates and terms for the services provided. He did not read the agreement, nor did he ask what the services would cost. NorthBay billed Caudle $39,534.34 for his emergency room visit. No portion of the bill was ever paid. Caudle believed the reasonable cost for the services he received was $800. On Jan. 23, 2015, Caudle filed a putative class action against NorthBay, challenging its unreasonable, unfair and unlawful practice of billing emergency room patients its chargemaster rates. He alleged that NorthBay's financial agreement was vague and ambiguous as to pricing and payment terms, in that it fails to describe, specify, explain, or identify any price or pricing schedule for NorthBay's services and treatment rendered or to be rendered to an emergency care patient. As such, he contended, the agreement contains an "open" pricing term, prohibiting NorthBay from charging self-pay patients its "grossly excessive" chargemaster rates and obligating self-pay patients to pay no more than the reasonable value for emergency care provided in NorthBay's hospitals. The complaint asserted one cause of action for declaratory judgment, seeking a determination as to whether NorthBay's financial agreement allows it to bill self-pay patients its full chargemaster rates or contains an open term that limits it to the reasonable value of services rendered. In addition to declaratory relief, Caudle alleged that he and the members of the Class are further entitled to injunctive relief and to restitution, in an amount to be proven at trial. The prayer for relief additionally sought attorney fees, expert fees, and costs. On March 10, 2016, Caudle filed a motion for class certification. He sought certification of the class of all individuals who, between March 1, 2011 and the date of class certification, had one or more eligible patient hospital visits to a Defendant Hospital's Emergency Department. NorthBay opposed Caudle's class certification motion. Caudle's motion came on for hearing on July 6, 2016. After taking the matter under submission, the trial court denied certification, finding Caudle had not demonstrated that the class was ascertainable and that common issues predominated over individual issues. Caudle appeals, contending the trial court erred in requiring ascertainability and predominance because his putative class was a Federal Rules of Civil Procedure, rule 23(b)(1) and/or (b)(2) (Rule 23) "equivalent" class, neither of which requires ascertainability or predominance. Alternatively, he argues he established both ascertainability and predominance. As the trial court rightly observed, Judge Richman finds that the gravamen of Caudle's claims is the reasonableness of NorthBay's chargemaster rates. In order to declare that NorthBay's practice of billing chargemaster rates is unfair, unreasonable, and illegal, as Caudle requests, the court would be required to make individualized determinations as to whether each chargemaster rate billed to each class member was reasonable given the unique circumstances of each patient. Caudle vigorously disputes this fact, labeling it a mischaracterization of his claims and repeatedly insisting he only seeks a determination that NorthBay's practice of billing from its chargemaster rate schedule violates the financial agreement, a determination that does not require an evaluation of the reasonableness of the chargemaster rates themselves. As he explains his theory in his reply brief that the trial court failed to realize is that the practice of billing Chargemaster rates to Class members would be improper and unauthorized by Hospital's Contract, regardless of whether the amounts billed were reasonable or unreasonable. Caudle says it is the propriety of billing in accordance with a rate schedule that was never agreed to which is in dispute, and the propriety of such billing practice is not dependent on whether the actual amount billed to each individual under such practice was reasonable or unreasonable. Judge Richman finds this quite simply wrong: if NorthBay's chargemaster rates are in fact reasonable, a declaration that its billing practices are unfair, unreasonable, and illegal merely because the rates are derived from a schedule would be unwarranted. In other words, the Judge says, there would be no basis for enjoining NorthBay from billing its chargemaster rates if those rates were reasonable. Caudle's refusal to recognize this fact is at the heart of his disagreement with the trial court's order. This fact is fatal to his appeal. Judge Richman concludes the trial court properly required ascertainability and predominance, and substantial evidence supports the court's findings that Caudle failed to establish these two requirements. He also rejects Caudle's argument that the trial court should have at least certified an "issue" class under California Rules of Court, rule 3.765(b), and he denies his request that he remands the case with instructions that he be permitted to file a renewed motion for class certification based on a claim of unconscionability. Accordingly, Judge Richman affirmed. A full-text copy of the Court's Dec. 6, 2017 Opinion is available at https://is.gd/CRSJey from Leagle.com. O'REILLY AUTO: Davidson Appeals C.D. Calif. Decision to 9th Cir. ---------------------------------------------------------------- Plaintiff Kia Davidson filed an appeal from a court ruling in the lawsuit titled Kia Davidson v. O'Reilly Auto Enterprises, LLC, Case No. 5:17-cv-00603-RGK-AJW, in the U.S. District Court for the Central District of California, Riverside. As reported in the Class Action Reporter on Dec. 29, 2017, the District Court denied Davidson's motion for class certification of: Wage Statement Class: "[a]ll persons who worked for [O'Reilly] as a non-exempt, hourly paid employee in California (excluding Assistant Store Managers and Store Managers) at any time from March 29, 2016 until April 2017"; and Rest Period Policy Class: "[a]ll person who worked for [O'Reilly] as a non-exempt, hourly paid employee in California (excluding Assistant Store Managers and Store Managers) at any time from March 29, 2013 until the date of certification." The District Court held that, "While Davidson does provide evidence that, for some period of time, O'Reilly had a written rest break policy that violated California law, she provides limited evidence showing how, or even if, that policy was consistently applied to all 21,000 proposed class members. Specifically, Davidson provided the Court with her own declaration stating that she was not aware of receiving any rest period premiums for working shifts between six and eight hours in length; a copy of the written policy at issue; and deposition testimony from O'Reilly's Rule 30(b)(6) designee stating that the policy was provided to managers and that managers are charged with implementing the policy. Although Davidson asserts in her Reply that this constitutes "significant proof," the Court finds that on balance, her evidence fails to implicate any illegal practices. In fact, Davidson's own declaration does not even state that she was ever denied proper rest breaks. Thus, Davison failed to meet her burden. O'Reilly not only maintained a facially defective policy, but also implemented unlawful practices pursuant to the policy." The appellate case is captioned as Kia Davidson v. O'Reilly Auto Enterprises, LLC, Case No. 17-80260, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Petitioner KIA DAVIDSON, individually, and on behalf of other members of the general public similarly situated, is represented by: Liana Carter, Esq. Glenn A. Danas, Esq. Robert Drexler, Jr., Esq. Matthew Thomas Theriault, Esq. CAPSTONE LAW APC 1875 Century Park East Los Angeles, CA 90067 Telephone: (310) 556-4811 E-mail: Liana.Carter@CapstoneLawyers.com Glenn.Danas@CapstoneLawyers.com Robert.Drexler@capstonelawyers.com Matthew.Theriault@capstonelawyers.com Defendant-Respondent O'REILLY AUTO ENTERPRISES, LLC, is represented by: James M. Peterson, Esq. Jason Conroy Ross, Esq. HIGGS FLETCHER & MACK LLP 401 West A Street San Diego, CA 92101 Telephone: (619) 236-1551 Facsimile: (619) 696-1410 E-mail: peterson@higgslaw.com rossj@higgslaw.com PALO ALTO NETWORKS: Fifth Circuit Appeal Filed in "Godert" Suit --------------------------------------------------------------- Plaintiff Kevin Godert filed an appeal from a court ruling in the lawsuit titled Kevin Godert v. Palo Alto Networks, Inc., Case No. 3:16-CV-2079, in the U.S. District Court for the Northern District of Texas, Dallas. The lawsuit arises from alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Kevin Godert v. Palo Alto Networks, Inc., Case No. 17-11544, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiff-Appellant KEVIN GODERT, And all similarly situated employees, is represented by: Mark D. Johnson, Esq. FLANNIGAN & JOHNSON, P.L.L.C. 5600 Tennyson Parkway Plano, TX 75024 Telephone: (972) 383-9377 Facsimile: (214) 593-1441 E-mail: mark@flanniganlawfirm.com Defendant-Appellee PALO ALTO NETWORKS, INCORPORATED, is represented by: John Bridges Brown, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 8117 Preston Road Preston Commons, W. Dallas, TX 75225 Telephone: (214) 987-3800 E-mail: john.brown@ogletreedeakins.com PARK COUNTY, CO: Inmates File Class Action v. Corrections Dept. --------------------------------------------------------------- Sal Christ, writing for Canyon Courier, reports that more than two dozen inmates at the Park County jail in Fairplay have filed a class action lawsuit against the jail, the Park County Sheriff's Office, the Colorado Department of Corrections, and two U.S. corrections industry contractors -- Trinity Serve Group Inc. and Securus Technologies -- alleging the denial of privileges they claim are afforded to them as Department of Corrections inmates. [GN] PHARMAVITE LLC: Ference Appeals Order in "Barrera" to 9th Circuit ----------------------------------------------------------------- Objector Justin Ference filed an appeal from a court ruling entered in the lawsuit entitled Lorean Barrera, et al. v. Pharmavite LLC, Case No. 2:11-cv-04153-CAS-AGR, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter on Jan. 3, 2018, the District Court issued an order granting the Plaintiff's Unopposed Motion for Approval of Settlement in the case. For settlement purposes only, the District Court certified the following Settlement Class: All residents of the United States who purchased for personal use, and not resale or distribution, a Covered Product between May 1, 2007 and June 6, 2017. The District Court also made the following awards to the Plaintiff and Settlement Class Counsel: -- $3,475,000 as attorneys' fees collectively to Bonnett, Fairbourn, Friedman & Balint, P.C., Siprut, PC, Boodell & Domanskis, LLC, Levin Sedran & Berman, and Westerman Law Corp.; -- $600,000 as costs collectively to Bonnett, Fairbourn, Friedman & Balint, P.C., Siprut, PC, Boodell & Domanskis, LLC, Levin Sedran & Berman, and Westerman Law Corp.; and -- $10,000 as an incentive award to the Class Representative. The appellate case is captioned as Lorean Barrera, et al. v. Pharmavite LLC, Case No. 17-56959, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Justin Ference's opening brief is due on February 26, 2018; -- Appellees Lorean Barrera and Pharmavite LLC's answering brief is due on March 28, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Objector-Appellant JUSTIN FERENCE is represented by: Caroline V. Tucker, Esq. TUCKER POLLARD ATTORNEYS AT LAW 2102 Business Center Drive Irvine, CA 92612 Telephone: (949) 253-5710 E-mail: ctucker@tuckerpollard.com Plaintiff-Appellee LOREAN BARRERA, On Behalf of Herself and All Others Similarly Situated, is represented by: Nada Djordjevic, Esq. Max A. Stein, Esq. BOODELL & DOMANSKIS, LLC 1 N. Franklin Street, Suite 1200 Chicago, IL 60606 Telephone: (312) 938-1003 E-mail: ndjordjevic@boodlaw.com mstein@boodlaw.com - and - Manfred P. Muecke, Esq. Patricia N. Syverson, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 756-6978 E-mail: mmuecke@bffb.com psyverson@bffb.com - and - Elaine A. Ryan, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 E-mail: eryan@bffb.com - and - Howard Sedran, Esq. LEVIN, FISHBEIN, SEDRAN & BERMAN 510 Walnut Street Philadelphia, PA 19106-3697 Telephone: (215) 592-1500 E-mail: hsedran@lfsblaw.com - and - Stewart M. Weltman, Esq. SIPRUT, PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: sweltman@siprut.com - and - Jeff S. Westerman, Esq. WESTERMAN LAW CORP 1875 Century Park East, Suite 2200 Los Angeles, CA 90067 Telephone: (310) 698-7450 E-mail: jwesterman@jswlegal.com Defendant-Appellee PHARMAVITE LLC, a California limited liability company, is represented by: Bridget Ahmann, Esq. Joseph Michael Price, Esq. FAEGRE BAKER DANIELS LLP 90 South Seventh Street, Suite 2200 Minneapolis, MN 55402 Telephone: (612) 766-8055 Facsimile: (612) 766-1600 E-mail: bridget.ahmann@FaegreBD.com joseph.price@FaegreBD.com - and - Juliet Arlene Markowitz, Esq. Rene P. Tatro, Esq. Steven R. Tekosky, Esq. TATRO TEKOSKY SADWICK LLP 333 S. Grand Avenue Los Angeles, CA 90071 Telephone: (213) 225-7171 Facsimile: (213) 225-7151 E-mail: jmarkowitz@ttsmlaw.com renetatro@ttsmlaw.com steventekosky@ttsmlaw.com PHILIPPINE AIRLINES: Settles Price-Fixing Class Action ------------------------------------------------------ Melissa Lipman, writing for Law360, reports that three airlines accused of fixing the price of long-haul flights to Pacific destinations have agreed to pay a total of $29.4 million to settle a proposed class action, passengers told a California federal court on Jan. 10. The plaintiffs moved for preliminary approval in the Northern District of California of the agreements with Philippine Airlines Inc., Air New Zealand Ltd. and China Airlines Ltd. The deals would leave just two carriers left fighting the suit -- All Nippon Airways Co. Ltd. and EVA Airways Corp. The case is In re TRANSPACIFIC PASSENGER AIR TRANSPORTATION ANTITRUST LITIGATION, Case No. 3:07-cv-05634 (N.D. Calif.). The case is assigned to Judge Charles R. Breyer. The case was filed November 6, 2007. [GN] PRICEWATERHOUSECOOPERS: Compelled to Reply to "Adamov" RFPs ----------------------------------------------------------- Judge Allison Claire of the U.S. District Court for the Eastern District of California granted in part and denied in part the Plaintiff's motion for discovery in the case, YURY ADAMOV, Plaintiff, v. PRICEWATERHOUSE COOPERS LLP, Defendant, Case No. 2:13-cv-01222-TLN-AC (E.D. Cal.). On June 19, 2013, Adamov filed a wage-and-hour putative class action against his former employer, PwC. The Plaintiff alleged that PwC misclassified him and other California employees working as "Attest Associates" at PwC after June 19, 2009. The Attest Associates were not licensed as certified public accountants ("CPAs") by the State of California. He alleges that PwC misclassified these employees as "exempt" and therefore improperly failed to pay them overtime wages required under California law. The case is in phased discovery. The Plaintiff's motion for class certification is due on March 9, 2018, and discovery going to class certification must be completed by Jan. 19, 2018. A motion for summary judgment is pending before the District Judge. According to the parties' joint discovery statement, the factual disputes at issue in the case include: a. Whether the Plaintiff worked any overtime hours as a first-year Attest Associate during the relevant class period. The Plaintiff contends that the relevant class period for Mr. Adamov's individual claim runs from June 19, 2009 through Nov. 9, 2009; PwC contends that the relevant class period for Mr. Adamov's individual claim runs from June 19, 2009 through Aug. 31, 2009. b. Whether the claims of Mr. Adamov are typical of the claims of the putative class. c. Whether the defenses of PwC to Mr. Adamov's claims are similar to or different from its defenses to the claims of the putative class. d. Whether accounting is a learned profession. e. Whether the work of first-year Attest Associates requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. f. Whether first-year Attest Associates customarily and regularly exercise discretion and independent judgment in the performance of duties. g. Whether first-year Attest Associates work under only general supervision. h. Whether the duties and responsibilities of first-year Attest Associates involve the performance of office or non-manual work directly related to management policies or general business operations of their employer or their employer's customers. The Plaintiff asks the Court to compel responses to multiple requests for production ("RFPs"), including RFP 1, 3-9, 17, 27, 32, 36, 37, 50-51, 55, 57, 58, 62, and 74. a. RFP 1 seeks the name and last known contact information for each Attest Associate. b. RFPs 3-9 seek information regarding PwC's arbitration program, including information on Attest employees who agreed and/or declined to participate in the arbitration program, information on employees that are subject to the arbitration program, and communications between PwC and Attest employees about the arbitration program. c. RFP 17 seeks any and all transcripts related to auditor malpractice that were commenced or pending from June 19, 2009 to present in which issues were raised regarding the supervision of unlicensed audit staff, their qualifications or competence, their quality of work, their lack of CPA licensure, or the independence between PwC and an audit client. d. RFP 27 requests any and all documents, including email, related to communications between any PwC partner, human resources employee, and/or manager or supervisor related to the development of any job descriptions for Attest Associates. e. RFP 32 seeks all affidavits, declarations, or witness statements, including all drafts, obtained by PwC or its counsel that relate in any way to this case or the job duties and work responsibilities of Attest Associates. f. RFP 36 requests any and all documents relating to the Plaintiff. g. RFP 37 requests the complete audit work papers, including complete "MyClient" and "Aura" files, for each PwC audit engagement to which the Plaintiff was assigned work during the class period. h. RFPs 50-51 seek documents related to educational requirements established by PwC, and documents related to changes in those requirements, for the position of Attest Associates of the "Assurance" Line of Service. i. RFP 55 seeks all documents relating to or describing PwC's rationale or reasons for requiring passage of the PA Exam as a prerequisite for advancement to the audit senior associate level. j. RFP 57 seeks all documents relating to the Defendant's policy and/or practice of staffing audit engagements with associates from other divisions and/or lines of service, including Systems Process Assurance ("SPA") Associates. k. RFP 58 seeks all documents relating to speeches or statements by former PwC Chairman Bob Moritz that refer to or discuss the job duties and work responsivities of Attest Associates. l. RFP 62 seeks all documents describing accounting as an apprenticeship profession, and refers as an example to PwC's 2014 Audit Quality Report at p. 11. m. RPF 74 seeks all documents relating to the promotion of unlicensed audit personnel, who have not taken or have failed any section of the Uniform CPA Examination, to the Senior Associate position. The parties filed a joint discovery statement on Nov. 15, 2017. A hearing was held before the undersigned on Dec. 20, 2017. Having considered the arguments of the parties presented in the joint statement and at the hearing, Judge Claire granted in part and denied in part the Plaintiff's motion. The motion is granted with respect to RFP Nos. 1, 3-9, 17, 32, AND 37; and is denied with respect to RFP Nos. 27, 36, 50-51, 55, 57, 58, 62 and 74. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/WKLAcV from Leagle.com. Yury Adamov, Plaintiff, represented by Jean Evelyn Lewis -- jlewis@kg-law.com -- Kramon & Graham, P.A., James P. Ulwick -- julwick@kg-law.com -- Kramon & Graham, P.A., pro hac vice, Lyle W. Cook, Kershaw, Cutter & Ratinoff, LLP, Stuart C. Talley, Kershaw, Cook & Talley PC & William A. Kershaw, Kershaw, Cook & Talley PC. PricewaterhouseCoopers LLP, Defendant, represented by Joseph M. Ortega -- jortega@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Julie A. Totten, Orrick, Herrington & Sutcliffe LLP, Norman C. Hile -- nhile@orrick.com -- Orrick Herrington and Sutcliffe LLP, Daniel J. Thomasch -- dthomasch@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice & Lauren J. Elliot -- lelliot@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice. PRINCETON UNIVERSITY: ERISA Suit Stayed Pending "Sweda" Ruling -------------------------------------------------------------- The United States District Court for the District of New Jersey issued an Opinion denying Defendant's Motion for Reconsideration in the case captioned ELYSEE NICOLAS, individually and as representative of a class of participants and beneficiaries on behalf of the Princeton University 403(b) Plan, Plaintiff, v. THE TRUSTEES OF PRINCETON UNIVERSITY, Defendant, Civ. No. 17- 3695.(D.N.J.), and granting the Motion to Stay the case. Plaintiff brings this putative class action alleging breaches of fiduciary duties under the Employee Retirement Income Security Act (ERISA). Plaintiff, like other faculty and staff at Princeton University, is a participant in the Princeton University Retirement Plan and the Princeton University Savings Plan (Plans). Defendant is the governing body of Princeton University, a private, non-profit institution of higher learning and administrator of the Plans. Plaintiff alleges that Defendant's actions caused participants in the Plans to pay excessive administrative and recordkeeping fees. In particular, Plaintiff cites Defendant's failure to use its bargaining power to negotiate lower fees or conduct competitive bidding for record-keepers; contracting with two recordkeepers instead of one and using an asset-based model instead of a fixed dollar amount per participant. Defendant has brought to the Court's attention an appeal pending before the Third Circuit Court of Appeals in Sweda v. University of Pennsylvania, 2017 WL 4179752 (E.D. Pa. Sept. 21, 2017), appeal filed, No. 17-3244 (3d Cir. Oct. 13, 2017). In that case, a plaintiff brought a putative class action claiming fiduciary breaches of ERISA by the University of Pennsylvania, on the basis of substantially overlapping factual allegations as those alleged by Plaintiff here. Plaintiff opposes Defendant's Motion to Stay, arguing such an indefinite stay is exceedingly rarely granted, prejudicial to Plaintiff, and needlessly delays necessary discovery. Plaintiff also notes that, while the Eastern District of Pennsylvania dismissed the complaint in its entirety in Sweda, many other courts including this Court have allowed similar claims to proceed beyond the motion to dismiss stage. The Court turns to the anticipated length of the stay. It is undisputed that a stay awaiting a decision in Sweda would be for an uncertain and significant period of time, lasting potentially a year or more. Regarding the advisability of a stay given its potential length, the Court notes that the parties in this action have repeatedly stipulated to extended briefing schedules. Overall, the Court determines that any anticipated delay is not excessive considering the likelihood that the Third Circuit's decision will resolve the dispositive issues presently in dispute. Therefore, Defendant's Motion to Stay is granted. Defendant argues that the Court committed clear errors of law in its prior opinion. In particular, Defendant asserts that the' Court misconstrued controlling Third Circuit law, namely Renfro v. Unisys Corp., 671 F.3d 314 (3d Cir. 2011) and In re Unisys Savings Plan Litigation, 173 F.3d 145 (3d. Cir. 1999). Defendant also asserts the Court misconstrued evidence presented regarding material facts necessary for the Court's disposition of Defendant's alternative motion for summary judgment. Having concluded that a stay is appropriate, the Court need not address at length the motion for reconsideration. In view of the impending Third Circuit consideration of Sweda, further changes in controlling law are currently anticipated. It would be unwise for the Court to disturb its previous ruling, given that the Third Circuit will soon resolve many of the precise issues that Defendant requests this Court to reconsider. Defendant's Motion for Reconsideration is denied. A full-text copy of the District Court's December 20, 2017 Opinion is available at https://tinyurl.com/y9hgpx4x from Leagle.com. ELYSEE NICOLAS, Individually and as representative of a class of participants and beneficiaries on behalf of the Princeton University 403(b) Plan, Plaintiff, represented by JOSEPH J. DEPALMA -- jdepalma@litedepalma.com -- LITE, DEPALMA, GREENBERG, LLC. THE TRUSTEES OF PRINCETON UNIVERSITY, Defendant, represented by NEIL V. SHAH -- nshah@proskauer.com -- Proskauer Rose LLP. PROCTER & GAMBLE: Stewart Files Suit Over Deceptive Ads ------------------------------------------------------- Elise Stewart, individually and on behalf of all other similarly situated v. Procter & Gamble Co., Case No. 2:18-cv-00143 (C.D. Calif., January 8, 2018), is a class action complaint for unfair and unlawful business acts and practices, deceptive advertising practices and violations of the Consumer Legal Remedies Act. This case arises out of Defendant's unlawful merchandising practices with respect to its Pampers Natural Clean wipes. Defendant falsely and deceptively labels, markets and advertises the Product as being natural, both by the prominent representation "Natural Clean" on the packaging, and by the Product's other packaging design features, which include green coloring and nature-related images, such as flowers, trees and leaves. Plaintiff Elise Stewart is a resident of San Pedro, California. Ms. Stewart purchased Pampers "Natural Clean" wipes numerous times during the class period. Defendant P&G manufactures, markets, promotes, advertises, and sells baby-care products, including the Product at issue. Defendant is an Ohio corporation with its principal place of business at One Procter & Gamble Plaza, Cincinnati, Ohio 45202. [BN] The Plaintiff is represented by: Naomi Spector, Esq. Christopher D. Moon, Esq. KAMBERLAW, LLP 9404 Genesee Avenue, Suite 340 La Jolla, CA 92037 Tel: (310) 400-1051 Fax: (858) 800-4277 E-mail: nspector@kamberlaw.com cmoon@kamberlaw.com PROGRESSIVE GARDEN: Alpizar-Fallas Appeals Ruling to 3rd Circuit ---------------------------------------------------------------- Plaintiff Ana Lidia Alpizar-Fallas filed an appeal from a court ruling in the lawsuit entitled Ana Alpizar-Fallas v. Frank Favero, et al., Case No. 3-17-cv-02768, in the U.S. District Court for the District of New Jersey. The lawsuit arises from insurance-related issues. The appellate case is captioned as Ana Alpizar-Fallas v. Frank Favero, et al., Case No. 17-3837, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant ANA LIDIA ALPIZAR-FALLAS, Individually and on behalf of all others similarly situated, is represented by: Charles X. Gormally, Esq. Thomas Kamvosoulis, Esq. BRACH EICHLER LLC 101 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-5700 E-mail: cgormally@bracheichler.com tkamvosoulis@bracheichler.com Defendants-Appellees FRANK E. FAVERO, BRIAN BARBOSA and PROGRESSIVE GARDEN STATE INSURANCE CO. are represented by: Francis X. Nolan, IV, Esq. EVERSHEDS SUTHERLAND (US) LLP 1114 Avenue of the Americas The Grace Building, 40th Floor New York, NY 10036 Telephone: (212) 389-5083 Facsimile: (212) 389-5099 E-mail: FrankNolan@eversheds-sutherland.com QUALITY CABLE: Helpers Not Included in Class of Foremen ------------------------------------------------------- In the case captioned Jeremy Ryan Card, on behalf of himself and on Behalf of All Others similarly Situated, Plaintiff, v. Quality Cable Partners, LLC, Defendant, Civil Action No. 4:17-CV-00524 (S.D. Tex.), Judge Stephen WM Smith of the U.S. District Court for the Southern District of Texas, Houston Division, granted in part and denied in part the Plaintiff's opposed motion for conditional certification. Card was employed by QCI as a foreman from Jan. 19, 2015 to July 22, 2016. Prior to January 2015, QCI did not directly employ any installers. Instead, QCI outsourced the installation services to several businesses, including Needham Communications. This changed in January 2015, when QCI directly hired several Needham workers, including the Plaintiff, who was then a foreman. As a foreman, the Plaintiff was primarily paid a commission for each project, calculated on a piece rate basis for the service performed, such as $20 per cable installed, $5 per cable terminated. Unlike foremen, the helpers who worked on the projects under a foreman' direction were paid by the hour. The Plaintiff has requested conditional certification of a proposed class of similarly situated foremen and helpers who worked for QCI during the relevant time period. The evidence accompanying his motion leaves little doubt that other QCI foremen were similarly situated to the Plaintiff, given that they performed the same duties and were paid on the same piece-rate commission basis (at least after January 2015). In addition, a foreman's pay was subject to certain deductions, including the hourly pay of the helpers on the job. Thus, while the foremen might work at different job sites, they were all subject to a single pay policy. The helpers are a different story, however. Their job duties were obviously not the same as the foremen who oversaw their work. Nor were they paid on the same basis as the foremen. Instead of a piece rate commission, helpers were paid by the hour. In other words, the helpers were paid based upon the actual time spent on the job, while the foremen were paid under a completely different system. Moreover, the material factual differences between the two job classes might also give rise to different legal defenses at trial. Based on this record the only thing the foremen and helpers have in common is the complaint that QCI failed to pay them overtime. This is insufficient to establish that they were all the victims of a single decision, policy or plan. Otherwise, the similarly situated limitation on FLSA collective actions would be rendered meaningless. Judge Smith finds that the fact that the Plaintiff previously worked as a helper for Needham Communications for two months in - - does not alter the analysis. The Plaintiff's declaration makes clear that he was a foreman, not a helper, when he transferred over as an employee of QCI in January 2015. Nor does it appear that QCI itself employed any helpers prior to that time. For these reasons, the Judge concludes that QCI helpers were not similarly situated to the Plaintiff and other QCI foremen, and should not be included in the conditional class. Accordingly, the Plaintiff's opposed motion for conditional certification is granted in part and denied in part. A separate order granting the motion consistent with his opinion will be entered. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/tlOOd8 from Leagle.com. Jeremy Ryan Card, Plaintiff, represented by Gregg M. Rosenberg -- info@rosenberglaw.com -- Rosenberg Sprovach. Quality Cable Installers, LLC, Defendant, represented by William J. Wisdom -- wisdom@mdhjwlaw.com -- Martin Disiere et al. QUINCY BIOSCIENCE: Seeks 9th Circuit Review of Ruling in "Racies" ----------------------------------------------------------------- Quincy Bioscience, LLC, filed an appeal from a court ruling in the lawsuit styled Phillip Racies v. Quincy Bioscience, LLC, Case No. 4:15-cv-00292-HSG, in the U.S. District Court for the Northern District of California, Oakland. As reported in the Class Action Reporter on Dec. 29, 2017, the Hon. Haywood S. Gilliam, Jr., entered an order: 1. granting Plaintiff's motion for class certification and certifies the following class for both Plaintiff's UCL and CLRA claims: "all California consumers who, within the applicable statute of limitations period, purchased Prevagen Regular Strength, Prevagen Extra Strength, or Prevagen Mixed Berry Chewable"; and 2. appointing Phillip Racies as Class representative and the law firms of Bonnett, Fairbourn, Friedman & Balint, P.C., and Siprut, PC as Class Counsel. The Court had set a case management conference for January 16, 2018, at 2:00 p.m. The appellate case is captioned as Phillip Racies v. Quincy Bioscience, LLC, Case No. 17-80259, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent PHILLIP RACIES, On Behalf of Himself and All Others Similarly Situated, is represented by: Manfred P. Muecke, Esq. Patricia N. Syverson, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 756-6978 E-mail: mmuecke@bffb.com psyverson@bffb.com - and - Elaine A. Ryan, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 Facsimile: (602) 274-1199 E-mail: eryan@bffb.com - and - Stewart M. Weltman, Esq. SIPRUT, PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: sweltman@siprut.com Defendant-Petitioner QUINCY BIOSCIENCE, LLC, a Wisconsin limited liability company, is represented by: William P. Cole, Esq. Matthew R. Orr, Esq. Joshua G. Simon, Esq. CALL & JENSEN, APC 610 Newport Center Drive Newport Beach, CA 92660 Telephone: (949) 717-3000 Facsimile: (949) 717-3100 E-mail: wcole@calljensen.com moor@calljensen.com jsimon@calljensen.com REINS INT'L: Cal. App. Affirms Dismissal of "Kim" Labor Suit ------------------------------------------------------------ Judge Audrey B. Collins of the U.S. Court of Appeals of California for the Second District, Division Fourth, affirmed the trial court's dismissal of the case, JUSTIN KIM, Plaintiff and Appellant, v. REINS INTERNATIONAL CALIFORNIA, INC., Defendant and Respondent, Case No. B278642 (Cal. App.). Kim was employed by Reins as a "training manager," a position Reins classified as exempt from overtime requirements. Kim sued Reins in a putative class action, alleging that training managers were salaried employees who worked between 50 and 70 hours per week, and should not have been classified as managers because they never performed any managerial tasks. In his first amended complaint (the operative complaint for purposes of appeal), Kim alleged causes of action for failure to pay wages and overtime; failure to allow meal and rest periods; failure to provide adequate wage statements pursuant to section 226, subdivision (a); waiting time penalties under section 203; unfair competition under Business and Professions Code, section 17200 et seq. (section 17200); and civil penalties under the PAGA pursuant to section 2699. Kim signed an arbitration agreement when he began working for Reins in 2013. Based on this agreement, Reins moved to compel arbitration of Kim's individual claims, dismiss the class claims, and stay the Labor Code Private Attorneys General Act of 2004 ("PAGA") cause of action until arbitration was complete. The trial court granted the motion to compel arbitration, reserved the issue of class arbitrability for the arbitrator, and stayed litigation on the PAGA claim and the claim for injunctive relief under section 17200. While arbitration was pending, Reins served Kim with an offer to compromise under Code of Civil Procedure section 998. Kim accepted the offer. Pursuant to the parties' agreement, Kim dismissed his individual claims with prejudice and dismissed the class claims without prejudice, leaving only the PAGA cause of action intact. The court lifted the stay on the PAGA cause of action and set a date for trial. Reins filed a motion for summary adjudication of Kim's PAGA cause of action. It argued that because Kim had dismissed his individual causes of action against Reins, he was no longer an "aggrieved employee" under the PAGA and therefore could not maintain the PAGA cause of action. Kim opposed the motion, asserting that he did not lose PAGA standing by settling his individual claims against Reins. The court granted the motion for summary adjudication, and then granted Reins' oral motion to dismiss the case. At the hearing, as the court dismissed the case, it encouraged the parties to appeal. The court entered judgment in favor of Reins. Kim timely appealed. It entered judgment in favor of Reins. Kim timely appealed. Kim asserts that the court essentially allowed Kim's arbitration agreement to waive his right to pursue a PAGA claim by keeping Kim's claim stayed during the compelled arbitration and then using Kim's settlement in arbitration as a bar to his right to continue with his PAGA claim. Judge Collins disagrees and concludes that Kim's lack of PAGA standing is unrelated to the court's order to arbitrate the individual claims. Moreover, no findings were made by an arbitrator. Had Kim chosen to dismiss his individual claims with prejudice in the absence of any arbitration agreement, the Judge would reach the same conclusion. Kim's acknowledgement that he no longer has any viable Labor Code claims against Reins -- not the order relating to arbitration -- is the fact that undermines Kim's standing. The effect of arbitration on PAGA standing is not presented in the case, and the Judge does not decide any such issue here. Accordingly, the Judge affirmed the judgment. Reins is entitled to costs on appeal. A full-text copy of the Court's Dec. 29, 2017 Order is available at https://is.gd/SkCh6F from Leagle.com. Kingsley & Kingsley, Eric B. Kingsley -- eric@kingsleykingsley.com -- Ari J. Stiller -- ari@kingsleykingsley.com -- and Lyubov Lerner -- luba@kingsleykingsley.com -- for Plaintiff and Appellant. Ogletree, Deakins, Nash, Smoak & Stewart, Spencer C. Skeen -- spencer.skeen@ogletree.com -- Tim L. Johnson -- tim.johnson@ogletree.com -- Jesse C. Ferrantella -- jesse.ferrantella@ogletree.com -- and Jonathan H. Liu -- jonathan.liu@ogletree.com -- for Defendant and Respondent. REPROS THERAPEUTICS: Neuterman Seeks to Block Allergan Deal ----------------------------------------------------------- Mark Neuterman, individually and on behalf of all others similarly situated, Plaintiff, v. Repros Therapeutics Inc., Patrick Fourteau, Katherine A. Anderson, C.P.A., Daniel F. Cain, Larry Dillaha, M.D., Nola E. Masterson, Saira Ramasastry and Michael G. Wyllie, Ph.D., DSC, Defendants, Case No. 17-cv-03918 (S.D. Tex., December 29, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Repros by Allergan PLC, and rescinding it in the event defendants consummate the merger. The Plaintiff further seeks rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Allergan will commence a cash tender offer to acquire all of the issued outstanding shares of Repros common stock for $0.67 per share. The complaint says the merger documents omitted material information regarding Repros' financial projections as well as projected free cash flows and the valuation analyses performed by Stifel, Nicolaus & Company, Inc. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion, it adds. Repros is a biopharmaceutical company focused on the development of new drugs to treat hormonal and reproductive system disorders. [BN] Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Tel: (713) 227-7720 - and - Juan E. Monteverde, Esq. Miles D. Schreiner, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com mschreiner@monteverdelaw.com RICHMOND HOMES: All Claims in Homeowners' Suit Dismissed -------------------------------------------------------- Judge James C. Mahan of the U.S. District Court for the District of Nevada dismissed with prejudice all claims asserted in the case, The SEASONS HOMEOWNERS ASSOCIATION, INC., a Nevada nonprofit corporation; and DOE HOMEOWNERS 1 through 1000, Plaintiffs, v. RICHMOND HOMES OF NEVADA, INC., a foreign corporation doing business in Nevada; RED ROCK MECHANICAL, LLC, a Nevada company; ASPEN MANUFACTURING HOLDINGS, INC. fka ASPEN MANUFACTURING, INC., a foreign corporation doing business in Nevada; DOE INDIVIDUALS 1-200; and ROE BUSINESS or GOVERNMENTAL ENTITIES 1-200, Defendants. AND ALL RELATED CLAIMS, Case No. 2:16-cv-01816-JCM-CWH (D. Nev.). On July 30, 2016, Aspen filed its Petition for Removal to the U.S. District Court for the District of Nevada, which was joined by Richmond American and Third-Party Defendant Red Rock on Aug. 15, 2016. On Aug. 29, 2016, the Plaintiff filed its Motion to Remand which the Court denied on Dec. 7, 2016. In May 2017, the Plaintiff entered into a settlement agreement with Richmond American, Red Rock, and Third-Party Defendant NSI Supply, Inc. requiring payment of $2,000,000 to resolve the Plaintiff's claims against these settling parties, which is contingent upon (i) this Court finding the Initial Settlement to have been reached in good faith as contemplated by NRS 17.245; (ii) dismissal of Aspen's claims against Richmond American, Red Rock, and NSI; and (ii) entry of an order barring future claims by the individual homeowners in the Seasons development. The Initial Settlement has no connection with or impact on NSI's third-party claims against Aspen's insurers only. Prior to removal of the action, NSI filed a cross-claim against, among others, Aspen and Red Rock for implied indemnity, contribution, declaratory relief, and apportionment. It also filed third-party complaint against, among others, Aspen, Red Rock and several of Aspen's insurers for breach of contract based on certain additional insured obligations. On June 28, 2017, Richmond American, Red Rock, and NSI filed their Joint Motion for Determination of Good Faith Settlement, which seeks (i) a judicial finding the Initial Settlement to have been reached in good faith pursuant to NRS 17.245; (ii) dismissal of Aspen's claims against Richmond American, Red Rock, and NSI; and (iii) an order barring all current and/or future claims for contribution and equitable or implied indemnity as against Richmond American, Red Rock, and NSI. On June 28, 2017, the Plaintiff, Richmond American, Red Rock, and NSI filed a Stipulation and Order Barring Settled Claims Involving Separate Interest Property. On June 29, 2017, Red Rock filed its Motion to Deem Settlement Agreement Signed and an Errata thereto. On July 17, 2017, Richmond American filed its Notice of Non-Opposition related to the Joint Motion. On July 20, 2017, Red Rock filed its Notice of Non-Opposition related to the Motion to Deem. In July 2017, the Plaintiff entered into a settlement agreement with Aspen requiring payment of $500,000 to resolve the Plaintiff's claims against Aspen, which is contingent upon (i) the Court finding the Aspen Settlement to have been reached in good faith as contemplated by NRS 17.245; (ii) a similar good- faith finding of a settlement reached in a related matter styled as Skypointe Unit Owners' Association v. Aspen Manufacturing Holdings, Inc. fka Aspen Manufacturing, Inc., which is pending in Department 30 of the Eighth Judicial District Court of the State of Nevada; and (iii) final court approval, pursuant to NRCP 23(e), of a class action settlement in a related matter styled as In re: Aspen Series BB Evaporator Coil Litigation, Case No. A-14- 710463-D, which is pending in Department 16 of the Eighth Judicial District Court of the State of Nevada. On Sept. 22, 2017, Aspen filed its Motion for Determination of Good Faith Settlement, which seeks (i) a judicial finding the Aspen Settlement to have been reached in good faith pursuant to NRS 17.245; and (ii) an order barring all current and/or future claims for contribution and equitable or implied indemnity as against Aspen. On Sept. 26, 2017, Richmond American filed its Limited Opposition to the Aspen Motion, which does not oppose the substance of the Aspen Motion and requests entry of orders granting the Joint Motion, the Stipulation Barring Claims, and the Motion to Deem in conjunction with an order granting the Aspen Motion. At a hearing on Oct. 9, 2017, the Hon. Jerry Wiese granted Aspen's motion seeking a good-faith finding pursuant to NRS 17.245 related to the settlement reached in the matter styled as Skypointe Unit Owners' Association v. Aspen Manufacturing Holdings, Inc. fka Aspen Manufacturing, Inc.. At a final fairness hearing on Nov. 1, 2017, the Hon. Timothy Williams granted final approval of the class action settlement reached in the matter styled as In re: Aspen Series BB Evaporator Coil Litigation. Richmond American, Red Rock, NSI, and Aspen have not yet tendered their respective settlement payments to the Plaintiff. They and NSI and/or their insurers will fund their respective shares of the settlement with the Plaintiff only after the Court enters orders granting the pending motions. The settling parties having obtained the orders in the In re: Aspen and Skypointe matters, Aspen and/or its insurers will fund the settlement reached with the Plaintiff in the matter only after entry of orders granting its pending motion in the Seasons action. NSI has resolved its cross-claims and third-party claims against all parties. The parties have stipulated and agreed that the Court may grant the Joint Motion, the Stipulation Barring Claims, the Motion to Deem and the Aspen Motion. Upon entry of orders granting the foregoing motions and stipulation, all claims asserted in the action, including, but not limited to, NSI's cross-claims and third-party claims against Aspen, Red Rock, and Aspen's insurers, as alleged in NSI's Third Party Complaint -- will be dismissed with prejudice with each party to bear its own attorney's fees and costs. Based upon the stipulation, Judge Mahan dismissed with prejudice all claims asserted in the action with each party to bear its own attorney's fees and costs. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/gfkr8D from Leagle.com Seasons Homeowners Association Inc., Plaintiff, represented by Michael C. Rubino, Canepa Riedy & Rubino, Nathanael R. Rulis -- n.rulis@kempjones.com -- Kemp, Jones & Coulthard, LLP, Scott K. Canepa, Canepa Riedy Abele & Costello, Terry W. Riedy, Canepa Riedy Abele, J. Randall Jones -- r.jones@kempjones.com -- Harrison, Kemp & Jones, LLP & Michael J. Gayan -- m.gayan@kempjones.com -- Kemp, Jones & Coulthard, LLP. Richmond American Homes of Nevada, Inc., Defendant, represented by Janice M. Michaels -- jmichaels@wshblaw.com -- Wood Smith Henning & Berman, Robin Marie Holseth, Wood Smith Henning & Berman LLP, Stephen N. Rosen, Wood Smith Henning & Berman LLP & Cassidy Roy Ellis -- cellis@wshblaw.com -- Wood Smith Henning & Berman. Aspen Manufacturing Holdings, Inc., formerly known as Aspen Manufacturing, Inc., Defendant, represented by Christopher J. Curtis, Thorndal Armstrong Delk Balkenbush Eisinger, Philip Goodhart -- png@thorndal.com -- Thorndal, Armstrong, Delk, Balenbush & Eisinger & Sean D. Cooney -- sdc@thorndal.com -- Thorndal Armstrong Delk Balkenbush & Eisinger. Red Rock Mechanical LLC, Defendant, represented by Kenneth Michael Marias -- kenneth.marias@zurichna.com -- Cisneros & Marias. Middlesex Insurance Company, ThirdParty Defendant, represented by Priscilla Louise O'Briant -- Priscilla.O'Briant@lewisbrisbois.com -- Lewis Brisbois Bigaard & Smith, LLB. SANTA CRUZ COUNTY BANK: Cal. App. Affirms Dismissal of "Bridges" ---------------------------------------------------------------- The Court of Appeals of California for the Sixth District affirmed the superior court's judgment of dismissal of the case, LYNN BRIDGES, et al., Plaintiffs and Appellants, v. SANTA CRUZ COUNTY BANK, Defendant and Respondent, Case No. H043538 (Cal. App.). The Plaintiffs are 21 individuals who were among more than 150 investors in the GLR Growth Fund formed in 2003 by John Arnold Geringer, Christopher Anthony Luck, and Keith Everts Rode. On June 5, 2015, the Plaintiffs filed a complaint in superior court against those Individual Defendants and the Bank. All four Defendants were accused of conspiracy to commit fraud and breach of fiduciary duty; the Bank was additionally charged with aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and negligent misrepresentation. The Plaintiffs had sued these Defendants two years earlier, in federal court. Their complaint in Bridges v. Geringer contained the same causes of action except for breach of fiduciary duty against all the Defendants, but it added a fifth cause of action for violating section 12, subdivision (a)(2), of the Securities Act of 1933, 15 U.S.C. Section 77l, subdivision (a)(2). More than 50 other investors also sued the Defendants in superior court between February and May of 2015, in Strudley v. Santa Cruz County Bank, et al.; Paetau v. Santa Cruz County Bank et al.; and Panushka v. Santa Cruz County Bank, et al. The Plaintiffs' federal lawsuit was dismissed upon the Bank's motion because the only federal claim asserted, the violation of section 12 (a)(2) of the Securities Act of 1933, was deficiently pleaded. The district court granted leave to amend the complaint but declined to address the state law claims, citing lack of jurisdiction. When the Plaintiffs did not amend their complaint by the June 5, 2015 deadline, the court entered judgment dismissing the federal claim with prejudice and dismissing the remaining claims without prejudice to the Plaintiffs' reasserting those claims in a competent court. The four civil actions in superior court were consolidated on July 9, 2015, by stipulation of the parties. On July 27, 2015, the Bank demurred to the Bridges complaint. On Oct. 26, 2015, the court granted leave to amend in Strudley, Paetau, and Panushka, and one week later those plaintiffs voluntarily dismissed their cases so as to enable them to file in federal court. On April 19, 2016, after extensive written and oral argument encompassing the issue of whether the Plaintiffs should be granted leave to amend, the superior court sustained the Bank's demurrer to the Bridges complaint without leave to amend on the ground that plaintiffs' action was precluded by the Securities Litigation Uniform Standards Act of 1998 ("SLUSA"), and ordered that complaint dismissed with prejudice. The Plaintiffs then filed the timely appeal. The Plaintiffs maintain that SLUSA is inapplicable. The Appellate Court agrees with the superior court that the misrepresentations and omissions allegedly made by the Bank in marketing the Fund call into play the preclusion provisions of SLUSA. Unquestionably, the Fund itself was not a covered security. However, in purchasing shares in the Fund, the Plaintiffs relied on Maffia's representation that the investment was safe because the Fund invested primarily in conservative U.S. stocks and S&P 500 stocks. The marketing materials themselves represented that 75% of the Fund assets were invested in the S&P 100 (20%), the S&P 500 (20%), the NASDAQ (20%), and the Dow Jones 30 (15%). Consequently, the Plaintiffs purchased shares in the Fund intending and expecting that 75% of the Fund's assets would be invested in covered securities. By affirmatively recommending and actively promoting the Fund as a "safe, conservative" investment while knowing that the Fund was actually based on a Ponzi scheme, the Bank, through Maffia, misrepresented this "improper investment vehicle" and thus contributed to Plaintiffs' losses. These alleged facts bring the lawsuit within the scope of SLUSA. The Appellate Court's review of the complaint convinces it that preclusion is applicable to the second and fourth causes of action as well as those based on fraud and negligent misrepresentation. Following the Kingate analysis, it cannot overlook the allegation in the second cause of action that Maffia, representing the Bank, made material misrepresentations to the Plaintiffs to induce them to purchase interests in the Fund. And in the fourth cause of action, the Plaintiffs alleged that the Bank knew that Geringer, Luck, and Rode were breaching their fiduciary duty, knew that the returns claimed by Geringer were false, knew that the Fund was consistently losing money, and knew that the Fund was an "improper investment vehicle." Accordingly, the Court concludes that all of the Plaintiffs' causes of action were precluded by the Act. Finnaly, the Appellate Court agrees with the trial court that demurrer was properly sustained without leave to amend because SLUSA precludes the Plaintiffs' state-law action. The Plaintiffs suggest no other amendment to the complaint that would take their action outside the purview of SLUSA. Their remaining argument seeks only to plead, "with precision," that SLUSA does not apply because the interests the Plaintiffs purchased in the Fund were not "covered securities" within the meaning of the Act. The Appellate Court has already addressed this contention and concluded otherwise, and the Plaintiffs do not propose to dispense with their allegations of misrepresentation. For these reasons, the Appellate Court affirmed. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/7xOa9H from Leagle.com. SCANA CORP: Consumers' Class Action Ongoing ------------------------------------------- According to The Post and Courier's Brian Hicks, you have to admire those chaps at SCANA -- they've got guts. Or something. In the past few months, we've learned that the poor, beleaguered parent company of South Carolina Electric & Gas: -- Bilked customers out of nearly $2 billion to pay for nuclear plants they couldn't build. -- Paid executives millions in bonuses for not doing their jobs. -- And wined and dined the Public Service Commission so they could keep raising electric rates while frittering away our money on a project they planned to shut down. Mere mortals would shrivel in shame over such a scandal. But not SCANA. Even in the face of utter humiliation, they can still muster the energy to be condescending. On Jan. 9, an attorney for the power company told Circuit Judge John Hayes III that he and other state jurists "lack the expertise" to hear complaints against SCANA. The attorney has a point. After all, the state's utility companies didn't take any judges kayaking or biking in the California mountains, or treat them to a fun day at Sea World San Diego. And, so far as we know, not one judge has ever played a round of golf in Florida on SCANA's dime. Or stayed in a Holiday Inn Express. That's obviously the sort of expertise SCANA is talking about. Roughing the rate-passer The occasion for this snubbing of the judiciary was a hearing on one of the five class-action lawsuits filed by SCE&G customers. Who are, you know, kinda mad that SCANA forced them to finance a project that they then failed to build. And want us to keep paying off for the next 60 years. But SCE&G said this lawsuit did not belong in a piddly little state court, where such charges might be tainted by an ugly, highly technical, legal term. Such as "fraud." "Let this play out in front of the Public Service Commission," SCE&G attorney James Becker told the judge. He meant no disrespect, surely. He was simply pointing out the Public Service Commission understands these issues so well. Those seven commissioners, who make $100,000 each, are highly skilled individuals with the technical knowledge required to understand the plight of a poor, multi-billion dollar utility company. After all, our Public Service Commissioners have impressive backgrounds in trucking, the dramatic arts, local politics, selling insurance and high school sports officiating. That kind of real-world experience, and the calculators on their iPhones, allow them to study complicated requests for a 7 percent increase in electric rates and rule that, instead, the company can only raise rates . . . let's see . . . 3.5 percent. Public Service Commissioners no doubt learned that at one of the 80 conferences they attended on some utility's dime in the past five years, as Post and Courier reporter Andrew Brown documented. Unfortunately, none of those conferences included a plenary session entitled "How to file an ethics report." Limited time offer? Obviously, as SCANA points out, these frivolous class-action suits don't belong in a state court of law. They should totally be judged by SCANA's friends. Come to think of it, those pesky plaintiffs' attorneys need not be involved, either. Daniel Haltiwanger, one of the lawyers for SCE&G ratepayers, had the audacity to suggest that the utility's customers should get their money back. As if. Clearly, he doesn't understand how modern capitalism works. A company, even a monopoly, must be guaranteed quarterly dividends for stockholders or it just simply isn't fair. It doesn't matter how inept they are at their jobs, or that they were the secret authors of legislation that allowed a company -- say, SCE&G -- to charge all their bills to customers. They must turn a profit to keep investors fat and happy . . . and pay those exorbitant room rates at the Ritz Carlton Lake Oconee. Basically, SCANA is arguing that the utility's well-being matters far more than a mere 700,000 customers who've been fleeced for a few thousand dollars. Each. Why, that's barely enough for a board of directors meeting at Ruth's Chris. Judge Hayes politely took SCANA's argument under advisement, and surely he will ultimately rule in their favor. But he'd better hurry. The General Assembly reconvened on Jan. 9, and some lawmakers actually want to fire all those experts at the Public Service Commission. Something about failure to disclose legalized bribes . . . You know what that means? SCANA's gonna need some new friends. [GN] SEATIDE GOURMET: "Gonzalez" Suit Seeks to Recover Unpaid Wages -------------------------------------------------------------- Angel Gonzalez, on behalf of himself and all others similarly situated v. Seatide Gourmet, Inc. dba Seatide Gourmet Fish Market, and Paul Oliver, Case No. 1:18-cv-00111 (E.D. N.Y., January 8, 2018), seeks to recover unpaid wages for overtime work and liquidated damages pursuant to the Fair Labor Standards Act. Plaintiff Angel Gonzalez was employed by Defendants as prep cook from June 2004 to September 2017. Defendants owned and operated a fish restaurant in New York. [BN] The Plaintiff is represented by: Michael Samuel, Esq. SAMUEL & STEIN 38 West 32nd St., Suite 1110 New York, NY 10001 Tel: (212) 563-9884 E-mail: michael@samuelandstein.com SIX FLAGS: Littler Mendelson Attorneys Discuss BIPA Case Ruling --------------------------------------------------------------- Kwabena A. Appenteng, Esq. -- kappenteng@littler.com -- and Philip L. Gordon, Esq. -- pgordon@littler.com -- of Littler Mendelson PC, in an article for Lexology, wrote that since mid- September 2017, more than 50 employers that use "biometric timeclocks" in Illinois have been targeted with class action lawsuits alleging violations of the state's Biometric Information Privacy Act ("BIPA"). A unanimous ruling issued on December 21, 2017, by the Illinois Appellate Court, could reduce the flood to a trickle. The case holds that to state a claim under BIPA, a plaintiff must allege more than a mere failure to comply with BIPA's requirements to provide notice and obtain consent before collecting biometric data. The Illinois Appellate Court's ruling follows the Second Circuit's recent decision affirming the dismissal of a BIPA class action lawsuit for lack of standing to sue in federal court because the plaintiff alleged only technical violations of BIPA's notice and consent provisions without any attendant harm. The Illinois Appellate Court's decision is even more momentous for employers because it provides a substantive defense that has the potential for defeating BIPA class actions whether filed in federal or state court. Key Facts The allegations asserted by the lead plaintiff in Six Flags mirrored those being alleged against employers that have implemented biometric timeclocks. Specifically, the plaintiff alleged: -- Six Flags scanned his thumbprint for security purposes using a biometric scanner. -- Before scanning his thumbprint, Six Flags did not provide the plaintiff with a written disclosure that stated the purpose of the collection and provided a destruction schedule. -- Before his thumbprint was scanned, Six Flags did not ask him to sign a written release authorizing the collection and disclosure of his biometric information. Notably, the plaintiff in Six Flags was a minor who bought a season pass to the amusement park while unaccompanied by a parent and, therefore, arguably is a type of plaintiff who is even more worthy of protection than an employee. Six Flags responded to these allegations by moving to dismiss the plaintiff's BIPA claims. In its motion, Six Flags argued that the plaintiff was not an "aggrieved" person--a requirement for recovering actual or liquidated damages under BIPA's remedy provision. The lower court denied the company's motion and certified an interlocutory appeal. Issues Certified for Appeal On appeal, the court addressed whether a plaintiff is "aggrieved" under BIPA "when the only injury he or she alleges is a . . . private entity collected his or her biometric identifiers and/or biometric information without providing him or her the disclosures and obtaining written consent . . ." The Court Defines "Aggrieved" Under BIPA The Appellate Court's ruling centered on the definition of the term "aggrieved" as used in Section 20 (the remedy section) of BIPA. Because BIPA itself provides no definition, the court looked to the plain meaning of the term "aggrieved." The court held that, by its plain language, "aggrieved" requires "an actual injury, adverse effect, or harm in order for the person to be aggrieved." That a plaintiff does not receive notice or provide consent before the collection of his or her biometric data, standing alone, is insufficient to meet this standard. The court supported this interpretation of the Act by highlighting decisions by two other courts in comparable cases. First, the court cited the decision of the Northern District of Illinois federal court in McCollough v. Smarte Carte, Inc. In McCollough, the court dismissed a BIPA class action filed against the owner/operator of electronic storage lockers that used fingerprint entry. The plaintiff in McCollough alleged the same "technical violations" of BIPA's notice and consent provisions as did the plaintiff in Six Flags. The McCollough court held the plaintiff did not meet the dictionary definition of an "aggrieved" party because she had not alleged any facts to show that her pecuniary or other interests had been adversely affected by the defendant's alleged violation of BIPA. Second, the Illinois court cited a Wisconsin Appeals Court decision involving an interpretation of the term "aggrieved" person in the context of a Wisconsin statute that requires mortgage brokers to provide a disclosure statement to consumers before they enter into a mortgage broker agreement. The Wisconsin court ruled that a plaintiff who merely alleged a defendant had failed to provide the statutorily required disclosure form, without a showing of some actual injury or harm, was not an "aggrieved party" under the Wisconsin Act. Based on these decisions and the plain meaning of the term "aggrieved," the Illinois Appellate Court concluded: if the Illinois legislature intended to allow for a private cause of action for every technical violation of the Act, it could have omitted the word "aggrieved" and stated that every violation was actionable . . . Therefore, a plaintiff who alleges only a technical violation of the statute without alleging some injury or adverse effect is not an aggrieved person under section 20 of the Act.7 Conclusion The Illinois Appellate Court's decision provides much-needed clarity on a gray area in BIPA that the plaintiffs' class action bar has sought to exploit; namely, whether the mere "technical violation" of failing to comply with the Act's notice and consent provisions can serve as the basis for recovering, per employee, liquidated damages of $1,000 for negligent violations and $5,000 for intentional or reckless violations. The court's holding that in order to have a right of action under BIPA a person must allege an "injury, adverse effect, or harm" that stems from the allegedly improper collection or storage of their biometric data under the Act resolves that issue, and provides employers with a basis to dismiss a BIPA claim that does not allege a cognizable injury. Because employers likely will see plaintiffs' class action counsel attempt to "plead around" this holding with "creative" allegations of a cognizable injury, they should continue to obtain informed consent from employees in Illinois before collecting their biometric data. [GN] SMITHKLINE BEECHAM: 3d Cir. Won't Enforce Settlement vs. La. AG --------------------------------------------------------------- In the case, IN RE: FLONASE ANTITRUST LITIGATION. Smithkline Beecham Corporation, d/b/a GlaxoSmithKline; n/k/a GlaxoSmithKline LLC, including GlaxoSmithKline, PLC, Appellant, Case Nos. 16- 1124, 16-3019 (3d Cir.), Judge Joseph A. Greenaway Jr. of the U.S. Court of Appeals for the Third Circuit affirmed the District Court's orders denying GSK's motion to enforce the settlement agreement against the Louisiana Attorney General, and GSK's motion for Relief from a Judgment or Order. On July 14, 2008, private indirect purchasers of Flonase, a brand-name prescription drug, sued GSK in the U.S District Court for the Eastern District of Pennsylvania. They alleged that: (i) GSK had filed sham citizen petitions with the Food and Drug Administration to delay the introduction of a generic version of Flonase; and (ii) this delay forced the private indirect purchasers to pay more for Flonase than they would have if the generic version were available. The private indirect purchasers sued on behalf of themselves and a class of other indirect purchasers. For the purpose of the case at bar, two motions matter. First, in the primary suit, the private indirect purchasers moved for final approval of settlement on April 1, 2013, after the District Court had certified the class, and had approved of the notice to settlement class members. The requested court order "permanently enjoined" all members of the settlement class, including Louisiana, from bringing released claims against GSK, even in Louisiana's state court. The proposed settlement agreement, among other things, provided compensation to the Plaintiffs and the class members, released the Plaintiffs' and the class members' claims, reserved exclusive and continuing jurisdiction over the Settlement and the Settlement Agreement for the District Court, and gave GSK the power to enforce the settlement. On June 19, 2013, the District Court approved the final settlement. Second, in the ancillary suit, GSK filed a motion to enforce the settlement agreement against the Louisiana Attorney General because, according to GSK, Louisiana violated the settlement agreement. On Dec. 21, 2015, the District Court for the Eastern District of Pennsylvania denied the request and dismissed the case. It then held that Louisiana's receipt of the CAFA Notice is insufficient to unequivocally demonstrate that the State was aware that it was a class member and voluntarily chose to have its claims resolved by the Settlement Agreement. Shortly before the District Court decided GSK's motion to enjoin Louisiana's state court action, GSK moved pursuant to Rule 60(b)(2) for Relief from a Judgment or Order because of newly discovered evidence that a third party had allegedly submitted a settlement claim on behalf of Louisiana. On May 31, 2016, the District Court denied this motion. GSK appealed the December 21 and May 31 orders. Judge Greenaway holds that the Eleventh Amendment applies to the primary suit. In Missouri v. Fiske, the Supreme Court found that the Eleventh Amendment applied to a motion to enjoin a state from suing in its own court. The Supreme Court came to this conclusion because the Eleventh Amendment covers claims that seek equitable remedies and because the private party's motion to enjoin the State from suing in its own court qualified as a suit that sought an equitable remedy. Like the private parties in Fiske, the private parties here sought an equitable remedy against a State. Second, the private parties sought equitable relief in different types of motions. Another court of appeals has come to a similar conclusion, albeit in a slightly different situation. In Thomas v. FAG Bearings Corp., the Eighth Circuit found that the Eleventh Amendment bars involuntary joinder of a state because involuntary joinder will compel the state to act by forcing it to prosecute a private party at a time and place dictated by the federal courts. These same concerns motivate Judge Greenaway's decision. The Judge distinguishes these Supreme Court and sister circuit cases from the case at bar because none of the private parties in the cases cited by GSK sought legal or equitable remedies against the State. Indeed they sought a writ of jurisdiction that acts only on the record, a removal notice that was not "dissimilar" from a writ of jurisdiction, a transfer motion that does not involve any claim or counterclaim against the State, an in rem admiralty action where the possession of the sovereign was not invaded under process of the Court, and an in rem bankruptcy determination not seeking to recover property in the State's hands. As a result, he concludes that the Eleventh Amendment applies here. Judge Greeaway also holds that the Eleventh Amendment prevented the District Court from issuing an injunction against Louisiana because Louisiana did not waive its sovereign immunity by receiving a CAFA notice and by failing to oppose the settlement based on that notice. The Constitution requires more protections for States than for ordinary litigants not because of their sophistication but because of their status as sovereigns. Analogizing states to private parties and comparing their respective sophistication ignores this justification. As a result, he finds that Louisiana did not waive its sovereign immunity when it received a CAFA notice and failed to act. The Judge further holds that the District Court did not abuse its discretion in denying GSK's Rule 60(b) motion. It came to this conclusion because GSK did not draw on the Court's power to recover the discovered information and because GSK did not show that it could not have received this information with a court order. GSK has not cited a case to support its position that reasonable diligence requires less than a court order. As a result, the District Court did not abuse its discretion in denying the motion. For these reasons, Judge Greeaway concludes that the Eleventh Amendment applies to the settlement agreement and the instant enforcement action. GSK may not avoid the Eleventh Amendment's prohibition. Additionally, the District Court did not abuse its discretion in denying GSK's Rule 60(b) Motion. Accordingly, the Judge affirmed the District Court's orders. A full-text copy of the Court's Dec. 22, 2017 Opinion is available at https://is.gd/C7qlYI from Leagle.com. Lisa S. Blatt -- lisa.blatt@apks.com -- [ARGUED], R. Stanton Jones -- stanton.jones@apks.com -- Sarah M. Harris -- sarahm81@gmail.com -- Robert Leider -- robert.leider@apks.com -- Sally L. Pei -- sally.pei@apks.com -- Arnold & Porter LLP, 601 Massachusetts Ave., NW, Washington, DC 20001, Stephen J. Kastenberg -- kastenberg@ballardspahr.com -- Burt M. Rublin -- rublin@ballardspahr.com -- Jessica M. Anthony -- anthonyj@ballardspahr.com -- Ballard Spahr LLP, 1735 Market St., 51st Fl., Philadelphia, PA 19103, Counsel for Appellant. Richard A. Samp, Mark S. Chenoweth, Washington Legal Foundation, 2009 Massachusetts Ave., NW, Washington, DC 20036, Counsel for Amicus Appellants National, Association of Manufacturers and Washington, Legal Foundation. William S. Consovoy -- will@consovoymccarthy.com -- Thomas R. McCarthy -- tom@consovoymccarthy.com -- Carmeron T. Norris, Consovoy McCarthy Park, 3033 Wilson Blvd, Suite 700, Arlington, VA 22201, Kate Comerford Todd, Steven P. Lehotsky, Janet Galeria, U.S. Chamber Litigation Center, 1615 H Street, NW, Washington, DC 20062, Counsel for Amicus Appellant Chamber of, Commerce of the United States of America. Cary Silverman -- csilverman@shb.com -- Shook Hardy & Bacon, 1155 F Street, NW, Suite 200, Washington, DC 20004. H. Sherman Joyce, Lauren Sheets Jarrell, American Tort Reform Association, 1101 Connecticut Ave., NW Suite 400, Washington, DC 20036, Counsel for Amicus Appellant American Tort, Reform Association. Bart D. Cohen -- bcohen@nussbaumpc.com -- Nussbaum Law Group PC, 570 Lexington Ave., 19th Floor, New York, NY 10022, John Alden Meade [ARGUED], Young Cotter & Meade, 909 Poydras St., Suite 1600, New Orleans, LA 70112, Counsel for Appellee. SOUTHERN CALIFORNIA EDISON: Sued Over Los Angeles-Area Wildfires ---------------------------------------------------------------- Robert Burnson and Mark Chediak, writing for Bloomberg News, report that Edison International's Southern California Edison was blamed in a lawsuit for three wildfires that destroyed more than 1,000 buildings and killed a firefighter last month in the Los Angeles area. While no official findings about the cause of the fires in Los Angeles, Santa Barbara and Ventura counties have been announced, six people who suffered property losses amid hundreds of thousands of acres that were scorched claim the blazes were ignited by sparks from the utility's power lines or electrical infrastructure. "The fires were not an 'Act of God' but were caused by the intentional, negligent and wrongful conduct of SCE and other defendants," according to the class-action complaint filed in state court in Los Angeles. Among the claims in the suit is one under the California law of inverse condemnation that could hold the company responsible for damages, even if it isn't found negligent. PG&E Corp. is fighting similar claims in more than 100 suits filed by property owners and others affected by fires in Northern California's wine country that burned more than 245,000 acres in October. "Southern California Edison is unable to comment on pending lawsuits due to the Cal Fire investigation now underway," the company said in a statement. After a $6 Billion Wipeout, Wildfires Still Imperil PG&E Edison International fell as much as 1.5 percent on Jan. 9, the most since Dec. 28. The company's shares have dropped 21 percent since the outbreak of the Thomas fire in Southern California amid investor concerns that the utility-owner may be liable for damages tied to the blaze. Last month, Edison said it believed its power equipment is being probed as a possible cause of the Thomas fire. The case is Vitullo v. Southern California Edison, B688977, California Superior Court, Los Angeles County. [GN] SPRINT/UNITED MANAGEMENT: Fails to Pay Wages, "Caudle" Suit Says ---------------------------------------------------------------- JOSHUA CAUDLE and KRYSTLE WHITE, as individuals and on behalf of all others similarly situated, the Plaintiffs, v. SPRINT/UNITED MANAGEMENT COMPANY, a Kansas corporation; and DOES 1 through 100, the Defendants, Case No. 4:17-cv-06874-KAW (N.D. Cal. Nov. 30, 2017), seeks to recover unpaid wages and penalties under the California Business & Professions Code, Labor Code, and the Industrial Welfare Commission Wage Order. According to the complaint, Joshua Caudle was employed by Defendants from October 2014 until July 2017. Caudle first worked at Defendants' Pittsburg, California retail store location as an Assistant Store Manager from October 2014 until September 2015. In approximately September 2015, Caudle was transferred to Defendants' Novato, California retail store location, and in approximately December 2015, he was promoted to Store Manager of the Novato retail store location. In November 2016, Plaintiff was transferred to Defendants' Pleasant Hill, California retail store location, where he worked as Store Manager until the end of his employment. The Plaintiff Krystle White was employed by Defendants from 2013 until May 2017 as a Lead Retail Consultant. White initially worked at Defendants' Pittsburg, California retail store location, and transferred to Defendants' Pleasant Hill, California retail store location in November 2016. As retail employees of Defendants, Plaintiffs' compensation was based partially on commission payments that they earned based on Sprint service plans, cell phones, phone accessories, and other products and services sold to customers. Plaintiffs' commissions were generally calculated on a monthly basis, with their earned commissions generally ascertained, calculated and paid out by the last day of the following month. For example, Caudle was provided a "Compensation Statement" reflecting his earned commissions for August 2016 on September 21, 2016, to pay out on September 30, 2016. From August 2016 through March 2017, Defendants instituted a modification to retail store employees' commissions' structure, called the "Sprint Promoter Score Adjustment." A Sprint Promoter Score, or SPS, was calculated for each retail store location based on the results of customer surveys, conducted by a third- party company, that customers were given the option of completing after their interaction with the store. As a result of Defendants' unlawful deductions from wages, and Defendants' resultant failure to pay all earned wages, Defendants failed to provide Plaintiffs with accurate itemized wage statements and also failed to pay all wages owed to Plaintiffs upon their separation of employment from Defendants.[BN] Attorneys for Plaintiffs: Paul K. Haines, Esq. Tuvia Korobkin, Esq. HAINES LAW GROUP, APC 2274 East Maple Avenue El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com STEAK N SHAKE: Court Certifies Class of Missouri Managers --------------------------------------------------------- In the case, SANDRA DRAKE and RANDY SMITH, on behalf of themselves and others similarly situated, Plaintiffs, v. STEAK N SHAKE OPERATIONS, INC., Defendant, Case No. 4:14-cv-01535-JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, (i) granted the Plaintiff's Motion for Rule 23 Certification and (ii) denied the Defendant's Motion for Decertification of the Conditionally Certified FLSA Collective. The Plaintiffs are 46 current and former salaried managers at Steak-N-Shake ("SnS"). They filed a class action under Federal Rule of Civil Procedure 23, alleging that SnS failed to properly pay them overtime wages in violation of the Fair Labor Standards Act ("FLSA") and the Missouri law. SnS maintains that the Plaintiffs are exempt from overtime protection because their primary job duties are executive or administrative. On Dec. 17, 2015, the Court granted the parties' joint stipulation of conditional certification of a putative class of the Plaintiffs. The parties conducted limited discovery on the issue of certification. On May 30, 2017, the Plaintiffs moved to formally certify a class of all persons who worked as SnS Managers at all corporate owned retail restaurants located in the State of Missouri at any time from Sept. 8, 2012 to the present. The same day, the Defendant moved to decertify the conditional FLSA class. SnS argues that the Plaintiffs are not similarly situated with respect to the key issues underlying their claims, the experiences of one Plaintiff is not representative of any other and, as such, the claims of the group cannot be adjudicated without inquiring into each individual's particular circumstances. Judge Ross will deny SnS's Motion to Decertify the FLSA Collective Action. He says the case is about whether the Plaintiffs qualify as exempt executive or administrative employees. To be sure, the answer to that question turns on the individual employment experiences of each Plaintiff, but the Plaintiffs' deposition testimony makes clear that those experiences are substantially similar in the most important ways: how the Plaintiffs spend the majority of their time at work; whether and to what extent they exercise management responsibilities; the amount of independence in their day-to-day job performance; and their participation in executive and administrative processes. The Judge concludes that to the extent there are differences in the Plaintiffs' individual employment experiences, those differences are outweighed by the common questions of law and fact regarding SnS Managers' classification as exempt employees. The claim turns almost entirely on a single legal question that may be adequately tested by representative testimony. He will therefore grant the Plaintiffs' motion for Rule 23 certification. Accordingly, Judge Ross granted the Plaintiff's Motion for Rule 23 Certification and denied the Defendant's Motion for Certification of the Conditionally Certified FLSA Collective. Within 30 days of the date of the Memorandum and Order, the parties will file a joint proposed schedule for the remainder of the litigation, including a proposed trial date. A full-text copy of the Court's Dec. 22, 2017 Memorandum and Order is available at https://is.gd/azxPpC from Leagle.com. Sandra Drake & Randy Smith, on behalf of themselves and others similarly situated,, Plaintiffs, represented by Brendan J. Donelon -- brendan@donelonpc.com -- DONELON, P.C. & Daniel W. Craig -- dan@donelonpc.com -- DONELON, P.C.. Steak N. Shake Operations, Inc., an Indiana Corporation, Defendant, represented by Andrew Cahill Johnson -- anjohnson@littler.com -- LITTLER MENDELSON, P.C., Michael A. Moffatt -- mmoffatt@littler.com -- LITTLER MENDELSON, P.C. & Patricia J. Martin -- pmartin@littler.com -- LITTLER MENDELSON, P.C.. SUGAR TRANSPORT: Court Denies Certification of Truck Drivers ------------------------------------------------------------ The United States District Court for the Eastern District of California issued a Memorandum and Order denying Plaintiff's Motion for Proceeding as a Collective Action under the FLSA and for Class Certification in the case captioned RYAN GUINN, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiffs, v. SUGAR TRANSPORT OF THE NORTHWEST, INC., a California Corporation, et al., Defendants, CIV. No. 2:16-325 WBS EFB (E.D. Cal.). Plaintiff was employed by Sugar Transport as a truck driver. Sugar Transport contracted with Bronco and Classic to provide hiring, training, supervising and disciplining of all drivers. Approximately 40 Sugar Transport drivers were assigned to the Bronco contract at a given time. Over the course of the proposed class period, Sugar Transport employed approximately 55 drivers. Plaintiff filed a putative class and collective action specifically alleging that Sugar Transport had (1) failed to pay overtime wages in violation of the FLSA; (2) failed to timely pay wages in violation of California Labor Code Section 204; (3) failed to timely pay wages due at termination in violation of California Labor Code Sections 201 and 203; (4) failed to provide meal and rest periods in violation of California Labor Code Section 512; (5) and engaged in unlawful and unfair business practices in violation of Business and Professions Code Section 17200. The Court held that Plaintiff has failed to satisfy the similarly situated requirement and his Motion to Proceed as a FLSA Collective Action must therefore be denied with regard to all defendants. Plaintiff seeks to certify two different classes related to his state law claims. First, plaintiff requests certification of a class for his overtime claims (overtime class) consisting of: All persons employed by SUGAR TRANSPORT OF THE NORTHWEST, and jointly employed by BRONCO WINE COMPANY and CLASSIC WINES OF CALIFORNIA, as a driver, or any other job title the principal job functions of which are the same as those performed by its drivers, in California, and who worked more than forty hours during at least one workweek at any time on and after October 23, 2011. Plaintiff also seeks certification of a class for his meal and rest break claims (the meal and rest period class) consisting of: All persons employed by SUGAR TRANSPORT OF THE NORTHWEST, and jointly employed by BRONCO WINE COMPANY and CLASSIC WINES OF CALIFORNIA as a driver, or any other job title the principal job functions of which are the same as those performed by its drivers, in California, at any time on and after October 23, 2011. Rule 23(a) Numerosity Rule 23(a)(1) requires the proposed class to be so numerous that joinder of all of the class members would be impracticable. Numerosity is presumed where the plaintiff class contains forty or more members. Plaintiff's proposed class includes 55 individuals. Accordingly, plaintiff has satisfied the numerosity requirement. Commonality Plaintiff contends that common questions of law and fact exist with regard to whether defendants failed to provide meal breaks and rest periods for the drivers, failed to provide them with overtime pay, and whether these practices are unlawful under California law and constitute violations of California's Labor Code and the UCL. Plaintiff's claims, as pled, share a common question of law whether any of the practices defendants are alleged to have engaged in constitute violations of California law and at least some of the facts to be analyzed with respect to this question are the same. The court can resolve this central question once for all class members, and thus plaintiff has met the commonality requirement. Typicality The typicality requirement of Rule 23(a)(3) requires that plaintiff have claims reasonably coextensive with those of proposed class members. Plaintiff alleges that defendants did not provide him and the proposed class with the requisite overtime pay or sufficient breaks during their shifts. Even if plaintiff and members of the class did not suffer the same damages from the alleged violations, they, according to plaintiff, suffered the same injuries. Because plaintiff has demonstrated that he possesses the same interests and suffers the same injury as the class members, he has satisfied the typicality requirement. Adequacy Rule 23(a)(4) requires that the class representative will fairly and adequately protect the interests of the class. Plaintiff's counsel are experienced attorneys who have knowledge of class actions and of wage and hour and employment-related claims. The court finds no reason to doubt that plaintiff's counsel are qualified to conduct this litigation and will vigorously prosecute the action on behalf of class members. The court finds that plaintiff and plaintiff's counsel are adequate representatives of the class, and therefore that plaintiff has satisfied all of the requirements set forth in Rule 23(a). Rule 23(b) Plaintiff seeks to certify a class pursuant to Rule 23(b)(3), which requires that questions of law or fact common to class members predominate over questions affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Predominance The predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. The Meal and Rest Period Class Plaintiff must do more than show that a meal break was not taken to establish a violation. Instead, he must show that defendants impeded, discouraged, or prohibited drivers from taking a proper break. Although plaintiff argues that Sugar Transport's delivery schedules impeded the ability of drivers to take meal and rest breaks, the evidence indicates that in fact the drivers themselves had discretion to decide when and if to take such a break. In order for plaintiff to establish otherwise, the court would need to analyze each particular driver and determine whether or not, and why, he missed breaks. With regard to plaintiff's meal and rest claims, plaintiff has not satisfied the predominance component and therefore cannot comply with Rule 23(b). The Wage Class Plaintiff's wage claim, which he brings under both the FLSA--as discussed above in reference to the collective action--and the Business and Professions Code Section 17200, centers around whether the drivers were exempt from overtime pay. Plaintiff borrows from the provisions of the FLSA to bring a state claim under Section 17200. Thus, plaintiff is essentially attempting to certify two separate actions based on the FLSA: (1) a collective action based on allegations that Sugar Transport failed to pay the drivers overtime, and (2) a Rule 23 class action based upon the same alleged violations. Determining whether the drivers were exempt from the FLSA overtime requirement would entail an individualized analysis and determination as to which of the drivers, if any, engaged in interstate transportation. Therefore, for the same reason that plaintiff did not satisfy the similarly situated requirement necessary to maintain a FLSA collective action, he has also failed to demonstrate that common issues would predominate over individual questions with regard to his state law overtime claim as well. Plaintiff's Motion for Proceeding as a Collective Action under the FLSA and for Class Certification pursuant to Federal Rule of Civil Procedure 23 be, and the same is, denied. A full-text copy of the District Court's December 20, 2017 Memorandum and Order is available at https://tinyurl.com/ybvdyf7p from Leagle.com.. Ryan Guinn, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiff, represented by Ian A. Kass, Pagano & Kass APC, 96 North Third Street, Suite 525. San Jose, California 95112 Ryan Guinn, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiff, represented by James L. Pagano, Pagano & Kass APC, 96 North Third Street, Suite 525. San Jose, California 95112 Sugar Transport of the Northwest, Inc., a California corporation, Defendant, represented by Cassandra M. Ferrannini -- cferrannini@downeybrand.com -- Downey Brand LLP & Alexandra K. LaFountain -- alafountain@downeybrand.com -- Downey Brand LLP. Bronco Wine Company, a California corporation, Defendant, represented by Eric J. Sousa, Rodarakis & Sousa, APC & Brandy Barnes, Rodarakis & Sousa, APC, 100 Sycamore Ave Ste 101. Modesto, CA95354-0577. Classic Wines of California, a California corporation, Defendant, represented by Eric J. Sousa, Rodarakis & Sousa, APC & Brandy Barnes, Rodarakis & Sousa, APC. SUNRISE CREDIT: Liberato Sues over Debt Collection -------------------------------------------------- MANUEL P. LIBERATO, on behalf of himself and those similarly situated, the Plaintiff, v. SUNRISE CREDIT SERVICES, INC., and JOHN DOES 1 to 10, the Defendants, Case No. 2:17-cv-12294-ES-MAH (D.N.J., Nov. 30, 2017), seeks to recover damages arises from Defendant's violations of the Fair Debt Collection Practices Act. According to the complaint, the Defendant is not in the business of extending credit, selling goods or services to consumers. Defendant regularly collects or attempts to collect past-due and defaulted debts of natural persons allegedly owed to others which were incurred primarily for personal, family or household purposes. When attempting to collect debts, Defendant uses the mails, telephone, the internet and other instruments of interstate commerce. SCS is a collection agency. The Defendant has asserted that Plaintiff incurred or owed a certain financial obligation to AT&T Mobility. The Debt is alleged to arise from one or more transactions which were primarily for Plaintiff's personal, family, or household purposes. The debts alleged to be owed by Plaintiff and those similarly situated were incurred for personal, family or household purposes. Defendant contends that the Account was past-due and in default. The Account was past due and in default at the time it was placed with or assigned to SCS for collection. In an attempt to collect the debt, SCS mailed collection letters to Plaintiff on December 1, 2016. Plaintiff received and reviewed the SCS Letter. The SCS Letter was sent in attempt to collect the Debt. The SCS Letter is a mass-produced, computer-generated, form letter that is prepared by the Defendant and mailed to consumers in the State of New Jersey, such as Plaintiff, from whom they are attempting to collect a debt. The SCS Letter threatens "Our client has now asked us to report this debt to your personal credit report with a national credit bureau." The SCS Letter further threatens "We will be reporting this debt to one or more of the national credit bureaus on or about 12-11- 16. This process can be stopped if you act promptly." Contrary to the statement contained in the SCS Letter, at no time did Defendant report the Debt to a credit reporting agency.[BN] Attorneys for Plaintiff, on behalf of himself and those similarly situated: Yongmoon Kim, Esq. KIM LAW FIRM LLC 411 Hackensack Avenue 2nd Floor Hackensack, NJ 07601 Telepgone & Facsimile: (201) 273 7117 E-mail: ykim@kimlf.com SYNEOS HEALTH: Jan. 30 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- The Law Offices of Vincent Wong on Jan. 10 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 Syneos Health, Inc. (formerly INC Research Holdings, Inc. (NASDAQ:INCR) 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. [GN] TDS TELECOM: Court Denies Bid to Dismiss "Carroll" Suit ------------------------------------------------------- Judge S. Thomas Anderson of the U.S. District Court for the Western District of Tennessee, Eastern Division, denied the Defendants' Motion to Dismiss the case, MARTHA CARROLL, individually, and also on behalf of all similarly situated persons, Plaintiff, v. TDS TELECOMMUNICATIONS CORPORATION, TDS TELECOM SERVICE CORPORATION, and TENNESSEE TELEPHONE COMPANY, Defendants, Case No. 1:17-cv-01127-STA-egb (W.D. Tenn.). The Plaintiff filed her original Complaint for Monetary Damages and Injunctive Relief against TDS Telecommunications Corp. and TDS Telecom Service, LLC on Dec. 14, 2015 in the Circuit Court of Perry County, Tennessee. On Feb. 8, 2016, the Plaintiff amended her Complaint to include Tennessee Telephone Co. as a Defendant. The Defendants moved to dismiss the Plaintiff's Amended Complaint on March 31, 2016. The Plaintiff then moved to amend her Amended Complaint on April 3, 2017. The parties consented to granting the Plaintiff's Motion to Amend and denying the Defendant's Motion to Dismiss without prejudice. The Plaintiff filed her Second Amended Complaint on June 9, 2017. The Plaintiff claims that the quality of internet service she received could not be called high speed under the nature of the parties' agreement or any meaning of the phrase. Her SAC brings claims of breach of contract, violations of the Wisconsin Deceptive Trade Practices Act ("WDTPA"), fraud, unjust enrichment, civil conspiracy, injunctive relief, and punitive damages. Her claims center around what is essentially an accusation of false advertising regarding the Defendants' provision of "High-Speed Internet." The Plaintiff signed up for the Turbo Internet plan and paid between $120 and $150 per month for TDS' internet and telephone package, which is a rate commensurate with the cost of a joint package containing high-speed internet service. But TDS has not provided Plaintiff with the high speed internet as advertised. TDS representatives admitted to the Plaintiff or her family that infrastructure and other problems prevented TDS from ever being able to actually provide the high-speed internet that TDS advertised and for which the Plaintiff had paid. The Defendants filed their Notice of Removal on June 29, 2017. They then filed the Motion to Dismiss Plaintiff's Second Amended Complaint on July 27, 2017. They maintain that the Plaintiff has failed to state any claim for which relief may be granted. The Plaintiff filed her Response on Aug. 24, 2017, to which Defendants filed their Reply on Sept. 7, 2017. Judge Anderson finds that the Plaintiff has stated a claim for breach of contract and dismissal under Rule 12(b)(6) is inappropriate. But, he says, nothing prevents the Defendants from raising their argument that the Plaintiff cannot show that they failed to perform at another stage of the litigation. The Judge agrees with the Plaintiff that she has met the heightened pleading standard of Rule 9(b) which requires that a party alleging a claim sounding in fraud plead the elements of the fraud with particularity. He finds that the Plaintiff has alleged, among other things, the advertised ranges for each high- speed internet plan and then went into further details about the advertisements for the Turbo Internet plan that she purchased, specifically quoting websites it held up as accessible through use of the Turbo Internet plan; and these advertisements were ongoing for a period of time after the Defendants knew that they could not support the infrastructure needed to comply with the claims made in the advertisements since 2013. While the allegations would be stronger with the exact dates that the Plaintiff read these statements and then relied on them to enter into a contract with Defendants, the Judge finds that these allegations are sufficient to put the Defendant on notice of the particular statements she refers to. Judge Anderson also finds that common law fraud requires no allegations that were not required to support the Plaintiff's WDTPA claim. Therefore, he comes to the same conclusion: the Plaintiff states a claim for fraud even under the higher standard of Rule 9(b). For the unjust enrichment claim, the Judge finds it premature to dismiss the claim at this stage. The Court has not yet concluded that a contract exists. And even if the parties agree that the contract exists, they disagree on the exact nature of the terms and, as such, the contract may or may not encompass the Plaintiff's claim for unjust enrichment. For the civil conspiracy claim, the Judge will not apply a doctrine of Tennessee law in a manner that the Tennessee courts have not yet applied it in order to dismiss a claim. He concludes that the Plaintiff has carried her burden at this stage of the litigation. Finding no merit in the Defendants' arguments, he concludes that dismissal of the Plaintiff's civil conspiracy claim under Rule 12(b)(6) is improper. Finally, for injunctive relief and punitive damages claims, Judge Anderson finds that while the Plaintiff captions each demand as a "Count" of her Second Amended Complaint, he does not believe she intended to pursue either injunctive relief or punitive damages as separate claims but as remedies for the other claims. As such, he will not preclude the Plaintiff from pursuing either remedy at this stage of the litigation. For the reasons he stated, Judge Anderson has found that the Defendant's arguments are without merit at this stage of the litigation. Accordingly, he denied the instant Motion. A full-text copy of the Court's Dec. 29, 2017 Order is available at https://is.gd/c5S15q from Leagle.com. Martha Carroll, Plaintiff, represented by Malcolm Brown Futhey, III -- malcolm@futheylawfirm.com -- THE FUTHEY LAW FIRM PLC. TDS Telecommunications Corporation, TDS Telecom Service Corporation & Tennessee Telephone Company, Defendants, represented by Eric S. Mattson -- EMATTSON@SIDLEY.COM -- SIDLEY & AUSTIN, pro hac vice, Lisa Erin Schwartz -- LSCHWARTZ@SIDLEY.COM -- SIDLEY AUSTIN LLP, pro hac vice & Robert Dale Grimes -- dgrimes@bassberry.com -- BASS BERRY & SIMS PLC. TRANSAMERICA LIFE: Seeks 9th Cir. Review of Ruling in "Feller" -------------------------------------------------------------- Defendant Transamerica Life Insurance Company filed a sealed appeal from a court ruling in the lawsuit titled Gordon Feller, et al. v. Transamerica Life Insurance Co., Case No. 2:16-cv- 01378-CAS-AJW, in the U.S. District Court for the Central District of California, Los Angeles. As reported in the Class Action Reporter on Dec. 15, 2017, the Hon. Christina A. Snyder has taken under submission these motions: -- Defendant's motion to dismiss for lack of jurisdiction; -- Plaintiff's motion for provisional class certification, appointment of class representative, appointment of class counsel, and issuance of class notice; and -- Plaintiff's motion for class certification, appointment of class representatives, and appointment of class counsel. The appellate case is captioned as Gordon Feller, et al. v. Transamerica Life Insurance Co., Case No. 17-80257, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents GORDON FELLER, on behalf of himself and all others similarly situated; MARY FELLER, on behalf of herself and all others similarly situated; ERIC SCHNECK, as trustee for the Burton I. Schneck Irrevocable Life Insurance Trust dated 2/24/1997, on behalf of himself and all others similarly situated; ANDREW KRIEGMAN, as trustee for the Adrienne L. Hendler Revocable Trust dated 6/4/1993, the Elizabeth Kriegman Revocable Trust dated 6/8/1993, and the Patricia Sokolow Revocable Trust dated 6/4/1993; GERALD R. LYONS, on behalf of himself and all others similarly situated; DONNA M. WHITE, on behalf of herself and all others similarly situated; CLARENCE E. WHITE, on behalf of himself and all others similarly situated; and GAIL THOMPSON, individually and as Power of Attorney for Lois Thompson, on behalf of herself and all others similarly situated, are represented by: Stephen R. Basser, Esq. Samuel M. Ward, Esq. BARRACK, RODOS & BACINE 600 West Broadway San Diego, CA 92101 Telephone: (619) 230-0800 Facsimile: (619) 230-1874 E-mail: sbasser@barrack.com sward@barrack.com - and - Travis Murray Corby, I, Esq. SHERNOFF BIDART ECHEVERRIA, LLP 3101 N Canon Drive Beverly Hills, CA 90210 Telephone: (310) 246-0503 E-mail: tcorby@shernoff.com - and - William M. Shernoff, Esq. SHERNOFF BIDART ECHEVERRIA, LLP 600 S. Indian Hill Blvd. Claremont, CA 91711-5498 Telephone: (909) 621-4935 Facsimile: (909) 447-2043 E-mail: wshernoff@shernoff.com - and - Allison Hughes Goddard, Esq. James Richard Patterson, Esq. PATTERSON LAW GROUP, APC 402 West Broadway San Diego, CA 92101 Telephone: (619) 398-4762 Facsimile: (619) 756-6991 E-mail: ali@pattersonlawgroup.com jim@pattersonlawgroup.com - and - Harvey Rosenfield, Esq. CONSUMER WATCHDOG 2701 Ocean Park Blvd. Santa Monica, CA 90405 Telephone: (310) 392-0522 Facsimile: (310) 392-8874 E-mail: harvey@consumerwatchdog.org Defendant-Petitioner TRANSAMERICA LIFE INSURANCE COMPANY is represented by: Dan Marmalefsky, Esq. Nancy R. Thomas, Esq. MORRISON & FOERSTER, LLP 707 Wilshire Boulevard, Suite 6000 Los Angeles, CA 90017-3543 Telephone: (213) 892-5809 Facsimile: (213) 892-5454 E-mail: dmarmalefsky@mofo.com nthomas@mofo.com - and - James Sigel, Esq. MORRISON & FOERSTER, LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (202) 887-6948 E-mail: jsigel@mofo.com - and - Joseph R. Palmore, Esq. MORRISON & FOERSTER, LLP 2000 Pennsylvania Avenue, NW Washington, DC 20006 Telephone: (202) 887-1500 E-mail: jpalmore@mofo.com UNITED STATES: Prelim Injunction in Detainees' Suit Affirmed ------------------------------------------------------------ Judge Consuelo Maria Callahan of the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's preliminary injunction requiring that the Defendants provide detainees with mats and blankets after 12 hours in the case, JANE DOE, # 1; JANE DOE, # 2; NORLAN FLORES, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees, v. JOHN F. KELLY, Secretary, United States Department of Homeland Security; KEVIN K. MCALEENAN, Acting Commissioner, United States Customs and Border Protection; RONALD VITIELLO, Chief, United States Border Patrol; JEFFREY SELF, Commander, Arizona Joint Field Command; PAUL BEESON, Chief Patrol Agent-Tucson Sector, Defendants-Appellees/Cross-Appellants, Case Nos. 17-15381, 17- 15383 (9th Cir.). The Plaintiffs filed the action in the U.S. District Court for Arizona on behalf of detainees confined in U.S. Customs and Border Protection Facilities within the Tucson Sector of the U.S. Border Patrol. When a Border Patrol agent apprehends an individual, the person is taken to one of eight stations in the Tucson Sector. At the station, the Border Patrol processes the detainee, ascertaining the individual's identity and immigration and criminal history. The individual is then repatriated, transferred into the custody of another agency, referred for prosecution in accordance with the law or, in rare circumstances, released. The Plaintiffs alleged that the conditions in the stations were deplorable and that it took up to three days for individuals to be processed before transfer. They alleged that the detainees are packed into overcrowded and filthy holding cells, stripped of outer layers of clothing, and forced to endure brutally cold temperatures. They are denied beds, bedding, and sleep. They are deprived of basic sanitation and hygiene items like soap, sufficient toilet paper, sanitary napkins, diapers, and showers. And they are forced to go without adequate food, water, medicine, and medical care. In the fall of 2016, the district court certified the case as a class action. The Plaintiffs then sought a preliminary injunction. The district court accepted for purposes of the preliminary injunction that the Border Patrol's 2008 Hold Rooms and Short Term Custody Policy and the National Standards on Transport, Escort, Detention and Search ("TEDS standards") provided for constitutional conditions of confinement. Although the Defendants assert that these guidelines establish the status quo, the district court found that the Plaintiffs had presented persuasive evidence that the basic human needs of detainees were not being met by the Defendants' current practices. The district court ordered that (i) the clean bedding, which the Defendants assert they are providing to all detainees, must include a mat and a Mylar blanket for all detainees being held longer than 12 hours; (ii) the personal hygiene needs of detainees held longer than 12 hours include the need to wash or clean themselves; and (iv) the Defendants will implement the universal use of their Medical Screening Form at all stations and ensure that the form questions reflect the TEDS requirements for delivery of medical care to detainees. The Defendants sought reconsideration and modification of the preliminary injunction which the district court denied on Jan. 3, 2017. The district court did clarify its order. It explained that: (i) for detainees held more than 12 hours, the Defendants must provide bedding, including mats and Mylar blankets and some means to maintain personal hygiene; (ii) it did not order the Defendants to provide showers; and (iii) the 12-hours begins to run from when the detainee arrives at the station. The Defendants appeal alleging that the district court misapprehended the standard set forth in Bell v. Wolfish, and that the order was too rigid and burdensome. The Plaintiffs also appeal, alleging that the district court should have ordered the Defendants to provide the detainees with beds and mattresses, allow them access to showers, and deliver adequate medical care through medical professionals. Judge Callahan finds that the litigation arises out of the influx of detainees in the Tucson Sector of the U.S. Border Patrol in 2015. He holds that the district court carefully considered the Plaintiffs' allegations of constitutional violations, recognized the guidance provided by the Supreme Court in Bell, 441 U.S. 520, and issued a limited preliminary injunction requiring the Defendants to provide detainees with mats and blankets after 12 hours. The Defendants have failed to show that, in doing so, the district court misapprehended Bell or that the preliminary injunction is overly rigid or burdensome. The Judge also finds unpersuasive the Plaintiffs' assertions that the district court should have required the Defendants to provide detainees with beds, showers, and medical treatment provided by medical professionals. The Plaintiffs have not shown that the district court's determinations were illogical, implausible, or without support in inferences that may be drawn from the record. The district court recognized the unique mission of the Border Patrol and, at least for the purposes of a preliminary injunction, reasonably balanced the government's interests and the detainees' constitutional rights. Accordingly, Judge Callahan affirmed the district court's orders. A full-text copy of the Court's Dec. 22, 2017 Opinion is available at https://is.gd/IwwDVe from Leagle.com. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/Fcy6zU from Leagle.com. James R. Sigel -- jsigel@mofo.com -- (argued), Robert J. Esposito -- resposito@mofo.com -- and Elizabeth G. Balassone -- ebalassone@mofo.com -- Morrison & Foerster LLP, San Francisco, California; Deanne E. Maynard -- dmaynard@mofo.com -- Sophia M. Brill -- sbrill@mofo.com -- Bryan J. Leitch -- bleitch@mofo.com - - and Lena H. Hughes, Morrison & Foerster LLP, Washington, D.C.; Louise C. Stoupe -- lstoupe@mofo.com -- and Pieter S. de Ganon -- deganon@mofo.com -- Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer Mayer -- crmayer@mofo.com -- Morrison & Foerster LLP, Palo Alto, California; Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado, National Immigration Law Center, Los Angeles, California; Kathleen E. Brody Daniel J. Pochoda, and Brenda Munoz Furnish, ACLU Foundation of Arizona, Phoenix, Arizona; James J. Cekola, Morrison & Foerster LLP, San Diego, California; Mary A. Kenney, Melissa E. Crow, and Aaron Reichlin-Melnick, American Immigration Council, Washington, D.C.; Elisa Della-Piana and Megan Sallomi, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; Abigail L. Colella, Morrison & Foerster LLP, New York, New York; for Plaintiffs-Appellants/Cross-Appellees. Christina Parascandola (argued), Trial Attorney; Sarah B. Fabia , Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General, Civil Division; Office of Immigration Litigation, District Court Section, United States Department of Justice, Washington, D.C.; for Defendants- Appellees/Cross-Appellants. UNITED STATES: Prelim Injunction in Hawai'i Suit Partly Affirmed ---------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit affirmed in part and vacated in part the district court's preliminary injunction order in the case captioned STATE OF HAWAII; ISMAIL ELSHIKH; JOHN DOES, 1 & 2; MUSLIM ASSOCIATION OF HAWAII, INC., Plaintiffs- Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN M. NIELSEN, in her official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants, Case No. 17-17168 (9th Cir.). On Jan. 27, 2017, one week after his inauguration, Pres. Donald J. Trump signed an Executive Order entitled "Protecting the Nation From Foreign Terrorist Entry into the United States." EO- 1 took effect immediately and was challenged in several venues shortly after it was issued. On Feb. 3, 2017, a federal district court in the State of Washington enjoined the enforcement of EO- 1. The Government filed an emergency motion seeking a stay of the injunction, which the Appellate Court denied. The Government later voluntarily dismissed its appeal of the EO-1 injunction. On March 6, 2017, the President issued Executive Order 13,780 ("EO-2"), which was given the same title as EO-1 and was set to take effect on March 16, 2017. EO-2 directed the Secretary of Homeland Security to conduct a global review to determine whether foreign governments were providing adequate information about their nationals seeking entry into the United States. During this global review, EO-2 imposed a 90-day suspension on the entry of certain foreign nationals from six Muslim-majority countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. That 90-day suspension was challenged in multiple courts and was preliminarily enjoined by federal district courts in Hawai'i and Maryland. Those injunctions were affirmed by the Ninth and Fourth Circuits, respectively. The Supreme Court granted a writ of certiorari in both cases and left the injunctions in place pending its review, except as to foreign nationals who lacked a credible claim of a bona fide relationship with a person or entity in the United States. On Sept. 24, 2017, the President issued the Proclamation, which indefinitely suspends immigration by nationals of seven countries and imposes restrictions on the issuance of certain nonimmigrant visas for nationals of eight countries. The entry restrictions were immediately effective for foreign nationals who (i) were subject to EO-2's restrictions, and (ii) lack a credible claim of a bona fide relationship with a person or entity in the United States. On Oct. 10, 2017, the Supreme Court vacated the Fourth Circuit's opinion in IRAP v. Trump as moot. On Oct. 24, 2017, it vacated the Appellate Court's opinion in Hawai'i I on the same grounds. In vacating the Appellate Court's prior decision as moot, the Supreme Court explicitly noted that it expressed no view on the merits of the case. On Oct. 10, 2017, the Plaintiffs sought to amend their complaint to include allegations related to the Proclamation. The third amended complaint includes statutory claims for violations of the INA, the Religious Freedom Restoration Act, and the Administrative Procedure Act, as well as constitutional claims for violations of the Establishment and Free Exercise Clauses of the First Amendment and the equal protection guarantees of the Fifth Amendment's Due Process Clause. The Plaintiffs also moved for a temporary restraining order; after expedited briefing, the district court granted the motion on October 17, 2017. Relying on the Appellate Court's now- vacated opinion in Hawai'i I, the district court found that the Proclamation suffered from the same deficiencies as EO-2. At the parties' request, the district court converted the temporary restraining order into a preliminary injunction on Oct. 20, 2017, rendering it an appealable order. The Government timely appealed. During the pendency of this appeal, the Appellate Court partially stayed the district court's preliminary injunction except as to foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. On Dec. 4, 2017, the Supreme Court granted the Government's request for a complete stay pending review of the district court's preliminary injunction. Now, for the third time, the Appellate Court is called upon to assess the legality of the President's efforts to bar over 150 million nationals of six Muslim-majority countries from entering the United States or being issued immigrant visas that they would ordinarily be qualified to receive. To do so, it must consider the statutory and constitutional limits of the President's power to curtail entry of foreign nationals in this appeal of the district court's order preliminarily enjoining portions of Section 2 of Proclamation 9645 entitled "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats" ("Proclamation"). The Court explains that the Proclamation, like its predecessor executive orders, relies on the premise that the Immigration and Nationality Act ("INA") vested the President with broad powers to regulate the entry of aliens. Those powers, however, are not without limit. It concludes that the President's issuance of the Proclamation once again exceeds the scope of his delegated authority. The Government's interpretation of 8 U.S.C. Section 1182(f) not only upends the carefully crafted immigration scheme Congress has embodied in the INA, but it deviates from the text of the statute, legislative history, and prior executive practice as well. Further, the Appellate Court says the President did not satisfy the critical prerequisite Congress attached to his suspension authority: Before blocking entry, he must first make a legally sufficient finding that the entry of the specified individuals would be detrimental to the interests of the United States. The Proclamation once again conflicts with the INA's prohibition on nationality-based discrimination in the issuance of immigrant visas. Lastly, the President is without a separate source of constitutional authority to issue the Proclamation. On these statutory bases, the Appellate Court affirmed the district court's order enjoining enforcement of the Proclamation's Sections 2(a), (b), (c), (e), (g), and (h). It limited the scope of the preliminary injunction, however, to foreign nationals who have a bona fide relationship with a person or entity in the United States. The Court narrowed the scope of the injunction to give relief only to those with a credible bona fide relationship with the United States, pursuant to the Supreme Court's decision in Int'l Refugee Assistance Project v. Trump. In light of the Supreme Court's order staying this injunction pending disposition of the Government's petition for a writ of certiorari, if such writ is sought, it stayed its decision today pending Supreme Court review. Because it concludes that the Plaintiffs have shown a likelihood of success on their statutory claims, the Appellate Court needs not reach their constitutional claims. The opinion disposition filed on Dec. 22, 2017, is withdrawn and a new opinion disposition is filed concurrently with the Order. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/DGyu3Y from Leagle.com. Hashim M. Mooppan (argued), Deputy Assistant Attorney General; Sharon Swingle, H. Thomas Byron III, and Lowell V. Sturgill Jr., Appellate Staff; Chad A. Readler, Acting Assistant Attorney General; Jeffrey B. Wall and Edwin S. Kneedler, Deputy Solicitors General; Noel J. Francisco, Solicitor General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants. Mitchell P. Reich -- mitchell.reich@hoganlovells.com -- (argued), Neal Kumar Katyal -- neal.katyal@hoganlovells.com -- (argued), Colleen Roh Sinzdak -- colleen.sinzdak@hoganlovells.com -- Elizabeth Hagerty -- elizabeth.hagerty@hoganlovells.com -- Yuri S. Fuchs -- yuri.fuchs@hoganlovells.com -- Sundeep Iyer, and Reedy C. Swanson, Hogan Lovells US LLP, Washington, D.C.; Thomas P. Schmidt -- thomas.schmidt@hoganlovells.com -- Hogan Lovells US LLP, New York, New York; Sara Solow -- sara.solow@hoganlovells.com -- and Alexander B. Bowerman -- alexander.bowerman@hoganlovells.com -- Hogan Lovells US LLP, Philadelphia, Pennsylvania; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko Onalani D. Fernandes, and Kevin M. Richardson, Deputy Attorneys General; Clyde J. Wadsworth, Solicitor General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Plaintiffs-Appellees. Eric T. Schneiderman, Attorney General; Barbara D. Underwood, Solicitor General; Anisha S. Dasgupta, Deputy Solicitor General; Zainab A. Chaudhry, Assistant Solicitor General of Counsel; Office of the Attorney General, New York, New York; Lisa Madigan, Attorney General; David L. Franklin, Solicitor General; Office of the Attorney General, Chicago, Illinois; Xavier Becerra, Attorney General, Office of the Attorney General, Sacramento, California; George Jepsen, Attorney General, Office of the Attorney General, Hartford, Connecticut; Matthew P. Denn, Attorney General, Delaware Department of Justice, Wilmington, Delaware; Thomas J. Miller, Attorney General, Office of the Attorney General, Des Moines, Iowa; Janet T. Mills, Attorney General, Office of the Attorney General, Augusta, Maine; Brian E. Frosh, Attorney General, Attorney General's Office, Baltimore, Maryland; Maura Healey, Attorney General, Attorney General's Office, Boston, Massachusetts; Hector Balderas, Attorney General, Office of the Attorney General, Santa Fe, New Mexico; Ellen F. Rosenblum, Attorney General, Office of the Attorney General, Salem, Oregon; Peter F. Kilmartin, Attorney General, Office of the Attorney General, Providence, Rhode Island; Thomas J. Donovan Jr., Attorney General, Office of the Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Office of the Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Office of the Attorney General, Seattle, Washington; Karl A. Racine, Attorney General, Office of the Attorney General, Washington, D.C.; for Amici Curiae States of New York, Illinois, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealth of Virginia, and the District of Columbia. Scott A. Keller, Solicitor General; J. Campbell Barker, Deputy Solicitor General; Ari Cuenin, Assistant Solicitor General; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, and West Virginia. Richard D. Bernstein -- rbernstein@willkie.com -- Willkie Farr & Gallagher LLP, Washington, D.C., for Amicus Curiae T.A., a U.S. Resident of Yemeni Descent. Amir H. Ali, Washington, D.C., as and for Amicus Curiae Roderick & Solange MacArthur Justice Center. Nicole G. Berner, Deborah L. Smith, and Leo Gertner, Service Employees International Union, Washington, D.C.; Judith Rivlin, American Federation of State, County and Municipal Employees, Washington, D.C.; David J. Strom , American Federation of Teachers, AFL-CIO, Washington, D.C.; Jody Calemine, Communications Workers of America, Washington, D.C.; Niraj R. Ganatra and Ava Barbour; International Union, United Automobile, Aerospace and Agricultural. Implement Workers of America; Detroit, Michigan; Mario Mart°nez, Mart°nez Aguilasocho & Lynch APLC, Bakersfield, California; Nicholas Clark, United Food and Commercial Workers, Washington, D.C.; for Amici Curiae International Labor Organizations. Lynne Bernabei and Alan R. Kabat, Bernabei & Kabat PLLC, Washington, D.C., for Amici Curiae Civil Rights Organizations. Aaron X. Fellmeth, Sandra Day O'Connor College of Law, Arizona State University, Phoenix, Arizona; Joseph M. McMillan -- JMcMillan@perkinscoie.com -- and Michelle L. Maley -- MMaley@perkinscoie.com -- Perkins Coie LLP, Seattle, Washington; for Amici Curiae International Law Scholars and Nongovernmental Organizations. Benjamin G. Schatz, Amy Briggs -- abriggs@manatt.com -- John W. McGuinness -- jmcguinness@manatt.com -- Sirena Castillo -- scastillo@manatt.com -- Matthew Bottomly -- mbottomly@manatt.com -- Olufunmilayo Showole -- oshowole@manatt.com -- Ketakee Kane -- kkane@manatt.com -- and Eve Torres -- eltorres@manatt.com -- Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Muslim Justice League, Muslim Public Affairs Council, and Council of American-Islamic Relations California. Marc A. Hearron -- mhearron@mofo.com -- Sophia M. Brill -- sbrill@mofo.com -- and Sandeep N. Nandivada -- snandivada@mofo.com -- Morrison & Foerster LLP, Washington, D.C.; Jennifer K. Brown -- own@mofo.com -- and Amanda Aikman -- ikman@mofo.com -- Morrison & Foerster LLP, New York, New York; Purvi G. Patel -- ppatel@mofo.com -- Morrison & Foerster LLP, Los Angeles, California; for Amici Curiae Interfaith Group of Religious and Interreligious Organizations and Clergy Members. Fatma Marouf, Fort Worth, Texas; Sabrineh Ardalan -- sardalan@law.harvard.edu -- Philip L. Torrey -- ptorrey@law.harvard.edu -- Nathan MacKenzie, Dalia Deak, Niku Jafarnia, and Rachel Kroll, Cambridge, Massachusetts; Geoffrey Hoffman, Houston, Texas; Karla McKanders, Nashville, Tennessee; for Amici Curiae Immigration Law Scholars on Statutory Claims. US STEEL CORP: Athan Files Suit to Recover Wages, Benefits ---------------------------------------------------------- David Athan, Daryl Jackson, Corey Parker and Robert Flannery, on behalf of themselves and all other persons similarly situated, known and unknown, Plaintiffs, v. United States Steel Corp., a foreign profit corporation, Defendant, Case No. 17-cv-14220, (E.D. Mich., December 29, 2017), seeks to recover benefits owed, minimum and overtime wages, redress for failure to maintain accurate records, liquidated damages equal to the total amount of delayed compensation over the past three years, reasonable attorneys' fees and costs under the Fair Labor Standards Act. Athan, Jackson, Parker and Flannery were employed as a maintenance millwright mechanic, stove tender, operating technician and mill-right at US Steel's Great Lakes Works facility in Ecorse. They claim that their hours where shaved off as Defendants allegedly do not maintain time-keeping facilities and do not issue wage statements. US Steel is a major steel producer with an electrogalvanizing plant at 3000 Miller Road, Dearborn, MI 48120. [BN] Plaintiff is represented by: Bryan Yaldou, Esq. Leah Seliger, Esq. Omar Badr, Esq. THE LAW OFFICES OF BRYAN YALDOU, PLLC 23000 Telegraph, Suite 5 Brownstown, MI 48134 Phone: (734) 692-9200 Fax: (734) 692-9201 E-mail: Bryan@yaldoulaw.com USAA GENERAL: 2 Suits over Medical Reimbursements Consolidated -------------------------------------------------------------- Lawsuits against USAA Casualty Insurance Company and USAA General Indemnity Company have been consolidated. The cases are: -- Gregory Haskin Chiropractic Clinics, Inc., a/a/o Jeffrey Rabin, on behalf of itself and all others similarly situated, the Plaintiffs, v. USAA Casualty Insurance Company, the Defendant, Case No. 0:17-cv-61979-KMW, (S.D. Fla., October 6, 2017); and -- Gregory Haskin Chiropractic Clinics, Inc., a/a/o Delmar Melton, on behalf of itself and all others similarly situated, the Plaintiff, v. USAA General Indemnity Company, the Defendant, Case No. 0:17-cv-61980-DPG, (S.D. Fla., October 7, 2017) Judge William P. Dimitrouleas on Jan. 5, 2018, held that the two cases 0:17-cv-61979-WPD and 0:17-cv-61980-WPD (kpe) are associated. Judge Dimitrouleas entered an order consolidating the cases and granted an unopposed motion to extend joint scheduling report deadline, and the time to respond to the complaint. In the suit against USAA General, Plaintiff cites the Defendant's failure to pay the proper amount of reimbursements to the Plaintiff and to all similarly situated persons for certain medical services provided to the Defendant's insureds. Plaintiff Delmar Melton states that he was involved in a motor vehicle accident, and as a result, sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle. As a consequence, Plaintiff Delmar Melton was a contracting party and/or a named insured and/or an omnibus insured under an automobile insurance policy issued by USAA Indemnity, which policy was in full force and effect and provided Personal Injury Protection ("PIP") benefits coverage as required by Florida law. Plaintiff Delmar Melton, as a result of the injuries sustained, he sought and received reasonable, related, and necessary medical services from Haskin Chiropractic. Haskin Chiropractic as the assignee of Melton's PIP benefits, billed USAA Indemnity for medical services provided. However, the subject payments were improperly reduced. Thus, the plaintiff on behalf for himself and all others similarly situated seeks the determination that the Defendant engaged in an improper uniform business practice of reducing by two percent (2%) its payments of all claims submitted by Plaintiff and other similarly situated persons medical services provided and billed under CPT codes 98940, 98941 and 98942, in violation of the Defendant's insurance policies and the Florida Motor Vehicle No-Fault Law. USAA Indemnity sold automobile insurance coverage subject to the "Florida Motor Vehicle No-Fault Law" or the "PIP Statute".[BN] In the case against USAA Casualty Insurance Company, the Defendant, Case No. 0:17-cv-61979-KMW, (S.D. Fla., October 6, 2017), Plaintiff Jeffrey Rabin was a patient at Haskin Chiropractic, who is and/or was an insured under an automobile insurance policy providing personal injury protection ("PIP") benefits issued by the Defendant, USAA Casualty, and who assigned his rights and benefits of said automobile insurance policy to Haskin Chiropractic. On or about December 12, 2012, the Plaintiff Rabin was involved in a motor vehicle accident, and as a result, sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle. The Plaintiff as a result of the injuries sustained, sought and received reasonable, related, and necessary medical services from Haskin Chiropractic. The Defendant made payments pursuant to the allowable rates prescribed and consisted with its insurance policy and Florida Statute Section 627.736. However, the subject payments were improperly reduced payments in direct violation of Defendant's insurance policy and Florida Statute Section 627.736. Thus, the Plaintiff for himself and all others similarly situated persons, seeks the court for an award of damages representing full payment of their PIP benefits as required under Sec. 627.736, including prejudgment interest and interest on all benefits that were not timely paid.[BN] Plaintiffs are represented by: Tod Aronovitz, Esq. Barbara Perez, Esq. ARONOVITZ LAW 2 South Biscayne Boulevard One Biscayne Tower, Suite 3700 Miami, FL 33131 Telephone: 305-372-2772 Facsimile: 305-397-1886 Email: ta@aronovitzlaw.com Email: bp@aronovitzlaw.com - and - Theophilos Poulopoulos, Esq. SCHILLER, KESSLER & GOMEZ, PLC 7501 W. Oakland Park Boulevard, Suite 201 Ft. Lauderdale, FL 33319 Telephone: 954-933-3000 Facsimile: 954-667-5805 Email: theo@injuredinflorida.com WATERSTONE MORTGAGE: $7.3MM Arbitration Award Confirmed ------------------------------------------------------- In the case, PAMELA HERRINGTON, individually and on behalf of all other similarly situated persons, Plaintiff, v. WATERSTONE MORTGAGE CORPORATION, Defendant, Case No. 11-cv-779-bbc (W.D. Wis.), Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin (i) granted in part and denied in part Herrington's motion to enforce judgment of the arbitration award, and Waterstone's motion to vacate arbitration award or, in the alternative, to modify the award; (ii) denied the Defendant's motion to stay; and (iii) denied the Plaintiff's motion for sanctions. Herrington filed the proposed class action under the Fair Labor Standards Act ("FLSA") and state law, alleging that the Defendant failed to pay its loan officers for overtime work. Shortly thereafter, the Defendant moved to dismiss or stay the action on the ground that the Plaintiff's claims were subject to arbitration. In an order dated March 16, 2012, Judge Crabb concluded that the Plaintiff's claims would have to be resolved through arbitration under an agreement between the parties, but that the National Labor Relations Act ("NLRA") gave the Plaintiff the right to join other employees in her case. She closed the case administratively to allow the parties to proceed with arbitration. The Plaintiff commenced arbitration on March 23, 2012. George Pratt, a former judge for the Court of Appeals for the Second Circuit, was chosen as arbitrator. Arbitrator Pratt issued an order determining that the arbitration could proceed as a collective action. Ultimately, 174 class members opted into the arbitration. While arbitration was pending, Judge Crabb denied several motions by the Defendant seeking review of the arbitrator's decisions and of the Court's initial order regarding arbitration. The arbitrator issued several interim orders relating to liability and held a hearing in two parts on Oct. 17, 19-21, 2016, and Dec. 20-21, 2016. On July 5, 2017, the arbitrator issued a final decision, holding that the Defendant was liable under the FLSA for unpaid minimum wages and overtime and attorney fees and costs, but not liable under Wisconsin statutory or contract law. Arbitrator Pratt ordered that defendant owed $7,267,919 in damages, $3,318,851 in attorney fees and costs and an incentive fee in the sum of $20,000 to be paid to named Plaintiff Herrington. Now before the Court are several motions relating to the arbitrator's final award. The Plaintiff has moved for confirmation of the award under 9 U.S.C. Section 9, while the Defendant has moved to vacate or modify the award. The Plaintiff has moved for sanctions against the Defendant, arguing that the Defendant's objections to confirmation of the award are frivolous. Finally, the Defendant has moved to stay any action relating to the award until the U.S. Supreme Court reaches a decision in the consolidated cases of Ernst & Young, LLP v. Morris; Epic Systems Corp. v. Lewis; and National Labor Relations Board v. Murphy Oil USA ("Morris"), in which the Court is considering whether class and collective action waivers in arbitration agreements violate the NLRA. As an initial matter, the parties agree that the final award contains a mathematical error relating to the $20,000 incentive fee for named plaintiff Herrington. In particular, on page 2 of the final award, the arbitrator awarded plaintiff $3,318,851 in attorney fees, costs and incentive fees against defendant. However, on the next page, the arbitrator stated that plaintiff was entitled to $3,318,851 in attorney fees and costs, plus an additional $20,000 in incentive fees. Both parties agree that page 3 contains a mathematical error and that the total amount of attorney fees, costs and incentive fees owed plaintiff is $3,318,851. Therefore, Judge Crabb will modify the final award accordingly. The Plaintiff contends that the remainder of the final award should be confirmed, as there is no valid reason to vacate the award under 9 U.S.C. Section 10(a)(1)-(4). For its part, Defendant argues that the award should be vacated for two reasons: (i) Arbitrator Pratt was biased against the Defendant; and (ii) Arbitrator Pratt committed misconduct by sleeping during portions of the hearing. The Judge finds that neither of the Defendant's arguments is persuasive. Nothing about these alleged stray comments demonstrates bias against the Defendant. Rather, they suggest simply that the arbitrator was interested in this case and enjoyed arbitrating it. Such comments are not a basis for vacating an arbitration award. In addition, the Defendant has identified no basis for vacating the arbitration award, with the exception of the mathematical error discussed. Accordingly, the Judge will confirm the award with modification of the amount owed in attorneys' fees. Finally, Judge Crabb will deny the Plaintiff's move for sanctions against the Defendant, arguing that it should be sanctioned because all of its arguments against confirmation of the award were frivolous. The Judge agrees with the Plaintiff that the Defendant appears to have delayed this litigation far longer than necessary and continues to do so. However, his arguments opposing confirmation of the award were not wholly frivolous, although they were not persuasive. Accordingly, she will decline to issue sanctions against the Defendant for seeking to vacate the award. For these reasons, Judge Crabb granted in part and denied in part both Herrington's motion to enforce judgment of the arbitration award, and the Defendant's motion to vacate arbitration award or, in the alternative, to modify the award. She confirmed the July 5, 2017 arbitration award, with a single modification to the amount of attorney fees, costs and incentive fees as follows: The Defendant must pay the Plaintiff $3,298,851 in attorney fees and costs, and a $20,000 incentive fee to Plaintiff Herrington. The Plaintiff is entitled to post-award interest at the rate set under 28 U.S.C. Section 1961(a). The Judge denied both the Defendant's motion to stay and the Plaintiff's motion for sanctions. The Judge entered judgment in favor of Herrington against the Defendant confirming the arbitration award in the amount of $7,267,919 in damages, $3,298,851 in attorney fees and costs, and a $20,000 incentive fee together with post-award interest rate set at 28 U.S.C. Section 1961 (a). A full-text copy of the Court's Dec. 22, 2017 Opinion and Order is available at https://is.gd/6e4Ofr from Leagle.com. Pamela Herrington, individually and behalf of all others similarly situated, Plaintiff, represented by Dan Getman, Getman & Sweeney, PLLC & Matthew Dunn , Getman & Sweeney, PLLC. Waterstone Mortgage Corporation, Defendant, represented by Jesse Ferrantella -- jesse.ferrantella@ogletree.com -- Ogletree Deakins, Timothy Johnson -- tim.johnson@ogletree.com -- Ogletree Deakins & Spencer Skeen -- spencer.skeen@ogletree.com -- Ogletree Deakins. WILLOWICK, OH: Denial of Judgment Bid in "Abramezyk" Affirmed ------------------------------------------------------------- In the case captioned RONALD ABRAMEZYK, et al., Plaintiffs- Appellees, v. THE CITY OF WILLOWICK, Defendant-Appellant, Case No. 2017-L-060 (Ohio App.), Judge Cynthia WestCottt Rice of the Court of Appeals of Ohio for the Eleventh District, Lake County, affirmed the trial court judgment denying the city's motion for judgment on the pleadings on the Appellees' negligence claims. On July 14, 2015, the Appellees, who are 148 homeowners and/or residents of Willowick, filed a complaint against the city asserting, as pertinent to the appeal, claims of negligence. The city owns, operates, and maintains a sanitary sewer system that provides sewer services to its residents. On July 20, 2013, the city's sewer system backed up into hundreds of homes in Willowick, including the Appellees' homes, causing them to be flooded with raw sewage, bacteria-tainted water, feces, urine, dirt, debris, and noxious odors. In the past several years prior to the July 20, 2013 sewer system backup, the city's residents experienced a number of such backups. The Appellees alleged in their complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. The Appellees alleged that, as a result of the city's failure to maintain and repair the sewer system, the system backed up into their homes on July 20, 2013. They alleged the city had a duty to maintain and repair its sewer system, and that the city's breach of that duty resulted in damage to their homes and personal property and personal injury, for which the city is liable in negligence. The city filed an answer, denying the material allegations of the complaint and asserting various affirmative defenses, including that the Appellees' complaint was barred by political subdivision immunity, pursuant to R.C. Chapter 2744. Two weeks later, the city filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that the Appellees' claims were barred by subdivision immunity. In their brief in opposition, the Appellees argued that maintenance and repair of a sewer system is a "proprietary" function, which is an exception to the city's immunity. The trial court designated the case to be "complex litigation" due to, in part, the extent of the discovery necessary to prepare the case for trial. The trial court entered a six-page, highly- detailed judgment denying the city's motion. The city appeals the trial court's judgment, asserting that the trial court improperly denied it immunity under R.C. Chapter 2744 and judgment on the pleadings. Judge Rice finds that it is undisputed that the city of Willowick is a political subdivision pursuant to R.C. 2744.01(F). Thus, under the first tier of the analysis, the city is entitled to general immunity pursuant to R.C. 2744.02(A)(1). Under the second tier, the exception to subdivision immunity for the negligent performance of a proprietary function under R.C. 2744.02(B), the Judge finds that the Appellees alleged sufficient facts to support their claims and to defeat the city's immunity defense. The city ignores the Appellees' allegations that city officials remained concerned about the condition and maintenance of the sewer lines throughout 2011 and that, despite these ongoing concerns, the city failed to repair the sewers, resulting in the 2013 backup. Finally, under the third tier of the immunity analysis, the restoration of discretionary immunity under R.C. 2744.02(B)(2), Judge Rice finds that since the case involves the maintenance and repair of sewers, which, per R.C. 2744.01(G)(2)(d), is a proprietary function, R.C. 2744.03(A)(5) does not apply to restore immunity to the city. The Judge therefore holds the trial court did not err in denying the city's motion for judgment on the pleadings and in finding that the city was not entitled to political subdivision immunity on the Appellees' negligence claims. Accordingly, the assignment of error is overruled. Judge Rice affirmed the judgment of the Lake County Court of Common Pleas. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/Bhv0Bk from Leagle.com. Phillip A. Ciano -- pac@c-g-law.com -- and Andrew S. Goldwasser - - asg@c-g-law.com -- Ciano & Goldwasser, LLP, 1610 Midland Building, 101 West Prospect Avenue, Cleveland, OH 44115; Daniel P. Goetz and Robert E. Kennedy, Weisman, Kennedy & Berris Co., L.P.A., 1600 Midland Building, 101 Prospect Avenue, Cleveland, OH 44115; and Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113 (For Plaintiff-Appellee). John T. McLandrich -- jtm@mrrlaw.com -- and Robert F. Cathcart -- rcathcart@mrrlaw.com -- Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139; and Michael C. Lucas , Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellant). WILLOWICK, OH: Denial of Judgment Bid in "Ragazzo" Affirmed ----------------------------------------------------------- In the case, KIMBERLEY RAGAZZO, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellee, v. THE CITY OF WILLOWICK, Defendant-Appellant, Case No. 2017-L-061 (Ohio App.), Judge Cynthia WestCottt Rice of the Court of Appeals of Ohio for the Eleventh District, Lake County, affirmed the judgment of the Lake County Court of Common Pleas denying the city's motion for judgment on the pleadings on Ms. Ragazzo's negligence claim. On July 14, 2015, Ms. Ragazzo, who is a resident of Willowick, on behalf of herself and all others similarly situated, filed a class-action complaint against the city asserting, as pertinent to the appeal, a claim for negligence. On the same date, the complaint in Abramezyk was filed. Ms. Ragazzo states on appeal that Abramezyk was filed out of concern that class action status could be denied in the instant Ragazzo proceeding. Ms. Ragazzo subsequently filed an amended complaint that did not make any substantive changes to the original. The city owns, operates, and maintains a sanitary sewer system that provides sewer services to its residents. On July 20, 2013, the city's sewer system backed up into hundreds of homes in Willowick, including Ms. Ragazzo's home, causing them to be flooded with raw sewage, bacteria-tainted water, feces, urine, dirt, debris, and noxious odors. In the past several years prior to the July 20, 2013 sewer system backup, the city's residents experienced a number of such backups. Ms. Ragazzo alleged in her complaint that, throughout 2011, city representatives continued to note concerns regarding the condition and maintenance of the city's sanitary sewer lines. She alleged the city had a duty to maintain and repair its sewer system, and that the city's breach of that duty resulted in damage to her home and to the homes of others similarly situated, for which the city is liable in negligence. The city filed an answer, denying the material allegations of the complaint and asserting various affirmative defenses, including that the complaint was barred by political subdivision immunity, pursuant to R.C. Chapter 2744. Two weeks later, the city filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), arguing that Ms. Ragazzo's claim was barred by subdivision immunity. In her brief in opposition, Ms. Ragazzo argued that maintenance and repair of a sewer system is a "proprietary" function, which is an exception to the city's immunity. The trial court designated this case to be "complex litigation" due to, in part, the extent of the discovery necessary to prepare the case for trial. The trial court entered a seven-page, highly-detailed judgment denying the city's motion. The city appeals the trial court's judgment, asserting that the trial court improperly denied its immunity under R.C. Chapter 2744 and judgment on the pleadings. At issue is whether the trial court erred in finding the city was not entitled to political subdivision immunity. The city's appeal of a judgment in a related action, which asserted the same allegations against the city, but without class action allegations, is also pending before the Court in Abramezyk v. Willowick, 11th Dist. Lake No. 2017-L-060. Judge Rice finds that it is undisputed that the city of Willowick is a political subdivision pursuant to R.C. 2744.01(F). Thus, under the first tier of the analysis, the city is entitled to general immunity pursuant to R.C. 2744.02(A)(1). Under the second tier of the analysis, the exception to subdivision immunity for the negligent performance function under R.C. 2744.02(B), the Judge finds that Ms. Ragazzo alleged sufficient facts to support her claim and to defeat the city's immunity defense. The city ignores Ms. Ragazzo's allegations that city officials remained concerned about the condition and maintenance of the sewer lines throughout 2011 and that, despite these ongoing concerns, the city failed to repair the sewers, resulting in the 2013 backup. Finally, under the third tier of the immunity analysis, the restoration of discretionary immunity under R.C. 2744.02(B)(2), Judge Rice finds that since the case involves the maintenance and repair of sewers, which, per R.C. 2744.01(G)(2)(d), is a proprietary function, R.C. 2744.03(A)(5) does not apply to restore immunity to the city. The Judge therefore holds the trial court did not err in denying the city's motion for judgment on the pleadings and in finding that the city was not entitled to political subdivision immunity on Ms. Ragazzo's negligence claim. Accordingly, the assignment of error is overruled. Judge Rice affirmed the judgment of the Lake County Court of Common Pleas. A full-text copy of the Court's Dec. 29, 2017 Opinion is available at https://is.gd/x9w5j8 from Leagle.com. Phillip A. Ciano -- pac@c-g-law.com -- and Andrew S. Goldwasser - - asg@c-g-law.com -- Ciano & Goldwasser, LLP, 1610 Midland Building, 101 West Prospect Avenue, Cleveland, OH 44115; Daniel P. Goetz and Robert E. Kennedy, Weisman, Kennedy & Berris Co., L.P.A., 1600 Midland Building, 101 Prospect Avenue, Cleveland, OH 44115; and Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, Suite 1910, 50 Public Square, Cleveland, OH 44113 (For Plaintiff-Appellee). John T. McLandrich -- jtm@mrrlaw.com -- and Robert F. Cathcart -- rcathcart@mrrlaw.com -- Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin's Row, 34305 Solon Road, Solon, OH 44139; and Michael C. Lucas , Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094 (For Defendant-Appellant). WYNDHAM HOTELS: Macias Sues over Sexual & Disability Bias --------------------------------------------------------- HUMBERTO MACIAS, and other similarly situated individuals, Plaintiff(s), v. WYNDHAM HOTELS AND RESORTS, LLC, a Foreign Limited Liability Company, the Defendant, Case No. 64706684 (Fla. Cir., 11th Judicial, Miami Dade County, Nov. 29, 2017), seeks damages in excess of $15,000.00, independent of attorney's fees, costs, and interest, as a result of Defendant's sexual origin and disability discrimination against Plaintiff' in violation of the Florida Civil Rights Act. Additionally this is an action by the Plaintiff and other similarly situated individuals to recover unpaid overtime compensation, and all additional equal amount as liquidated damages, obtain declaratory relief, and reasonable attorneys' fees and costs, pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff performed work for Defendants as a non-exempt employee from January 2013 to October 16, 2015, as an Assistant General Manager. Since Plaintiff started working in January 2013, it was agreed that he would do a background check and also a drug test. H.R (Vanessa) Stated no drug testing will be done because everybody does drugs. Even though the policy states a drug-test is mandatory. The Plaintiff did a background check on 2014. The Plaintiff was discriminated against due to his sexual orientation, throughout Plaintiffs employment with Defendants, owner would treat Plaintiff differently from the female employees; she would talk down to him; she would always talk about men in a derogatory way saying that men were good for nothing and that she did not have children because that would mean that she would have to share the children with their father, and she did not want that. On October 1, 2015, Plaintiffs position was changed to Banquet Manager and on October 16, 2015 Plaintiff was brought into the General Managers office and was terminated due to his background, and also for his medical condition (HIV). Immediately after his termination Plaintiff requested that his confidential medical records and background would not be released to anyone, however all of Plaintiffs confidential information was released to employees at the hotel.[BN] Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Telephone: 305 416 5000 Facsimile: 305 416 5005 E-mail: agp@rgpattorneys.com rregueiro@rgpattorneys.com pn@rgpattorneys.com ZTO EXPRESS: "Guo" Suit Remanded to Superior Court -------------------------------------------------- In the case, JIAN GUO, Plaintiff, v. ZTO EXPRESS (CAYMAN) INC., et al., Defendants, Case No. 17-cv-05357-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California (i) granted the Plaintiff's motion to remand, (ii) denied as moot the Defendants' joint motion for transfer, and (iii) denied the Defendants' alternative request for a stay. The securities class action was commenced in the Superior Court of the State of California, County of San Mateo, on Aug. 11, 2017. The Plaintiff brings this claim on behalf of all persons who purchased or otherwise acquired the common stock of ZTO pursuant or traceable to the registration statement and prospectus issued in connection with the Company's initial public offering commenced in October 2016 ("Offering"). The action asserts claims solely under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 against the Company, certain Company officers and directors, certain venture capital firms subject to liability as control persons, and the underwriters of the Offering. The Defendants removed the action to federal court pursuant to 28 U.S.C. Section 1441(a), which authorizes removal of federal claims except as otherwise expressly provided by Act of Congress. They filed their motion to transfer on Sept. 15, 2017. The Plaintiff filed his opposition to the motion to transfer on Sept. 29, 2017. The Defendants filed their reply on Oct. 6, 2017. The Plaintiff filed his motion to remand on Sept. 25, 2017. The Defendants filed their opposition to the motion to remand on Oct. 10, 2017. The Plaintiff filed their reply on Oct. 17, 2017. The parties disagree regarding whether Section 77v(a) prohibits removal of securities fraud class actions that only raise federal law claims. Joining many other district courts in the Ninth Circuit, Judge Tigar concludes that the plain language of the statute supports the Plaintiff's interpretation of the statute that the provisions prohibit removal. The Judge reasons that the Plaintiff only brings claims under the federal Securities Act and the complaint lacks any claims under state law. Thus, the exception does not apply and the plain language of the statute prevents the Defendant from removing to federal court. He will thus grant the Plaintiff's motion to remand. In the alternative, the Defendants ask the Court to stay the case pending the Supreme Court's resolution of certiorari petition in Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, which they state will resolve the division among federal courts as to whether state courts lack subject matter jurisdiction over covered class actions that allege only Securities Act claims -- the very issue presented on removal in the case. The Judge is not persuaded by this suggestion. First, he says, granting a stay will likely prejudice the Plaintiff because the Supreme Court has not yet decided Cyan and it is not presently known when the Supreme Court will issue a decision. Second, the Defendants have not clearly established that they would face hardship or inequity if required to move forward. Third, a stay will not simplify the legal issues. Cyan will not resolve any of the underlying legal issues related to the securities claims other than jurisdiction. Accordingly, the Judge will deny the Defendant's request to stay proceedings. Judge Tigar will also deny as moot the Defendants' alternative request to transfer the case to the Southern District of New York, in light of the Court's conclusion that it lacks subject matter jurisdiction. The answer to the jurisdiction question is plain. There is no reason for the Court to avoid deciding jurisdiction now. For these reasons, Judge Tigar granted the Plaintiff's motion to remand. The action is remanded to the San Mateo Superior Court. He denied the Defendants' request for stay and denied as moot their motion to transfer. A full-text copy of the Court's Dec. 22, 2017 Order is available at https://is.gd/Wy5CFU from Leagle.com. Jian Guo, individually and on behalf of all others similarly situated, Plaintiff, represented by James Ian Jaconette -- jamesj@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP, David William Hall -- dhall@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Eric M. Carrino -- ecarrino@robbinsarroyo.com -- Robbins Arroyo LLP, Nichole T. Browning -- nbrowning@robbinsarroyo.com -- Robbins Arroyo LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Stephen J. Oddo -- soddo@robbinsarroyo.com -- Robbins Arroyo LLP. ZTO Express (Cayman) Inc., Defendant, represented by Virginia Faye Milstead -- virginia.milstead@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Peter Bradley Morrison -- peter.morrison@skadden.com -- Skadden Arps Slate Meagher and Flom LLP, Robert A. Fumerton -- robert.fumerton@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Scott D. Musoff -- scott.musoff@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. Morgan Stanley & Co. International plc, China Renaissance Securities (Hong Kong) Limited, Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC, J.P. Morgan Securities LLC & Goldman Sachs (Asia) L.L.C., Defendants, represented by Daniel Hector Rees Laguardia -- daniel.laguardia@shearman.com -- Shearman Sterling LLP, Adam S. Hakki -- ahakki@shearman.com -- Shearman & Sterling, Daniel Craig Lewis -- daniel.lewis@shearman.com -- Shearman and Sterling LLP, pro hac vice & K. Mallory Brennan -- mallory.brennan@shearman.com -- Shearman & Sterling LLP. * Class Action Settlements Hit Record High, Seyfarth Report Shows ----------------------------------------------------------------- Erin Mulvaney, writing for Law.com, reports that the rise in class action settlements and federal government workplace litigation last year may not have been what business leaders expected the first year of a Republican White House. Seyfarth Shaw's annual report, Workplace Class Action Litigation Report, published on Jan. 10, found the top class action settlements shot up by $1 billion year over year to reach an all- time record high -- $2.72 billion. Government enforcement in the transition year ballooned, according to the report. Many Obama-era cases and enforcement methods were a spillover from the Democratic administration, according to the report. "There were counterintuitive results of government enforcement litigation at the federal level," said Gerald Maatman Jr., a Seyfarth Shaw partner in the Chicago and New York offices and author of the report. "A lot of business folks thought with the new Republican White House, enforcement agencies would be business friendly. It took until the late fall in terms of changes in policies and outreach to the business community." Mr. Maatman predicted 2018 will be a year of a dramatic shift and agencies are not expected to be pursue with the same vigor the number of suits they did in previous years. He noted that Trump administration appointees and nominees for various agencies have signaled a change in direction. The Seyfarth Shaw report showed the monetary value of the top workplace class action settlements rose by more than $970 million to reach a new high of $2.72 billion in 2017. The report notes the rise in employment discrimination actions, statutory workplace class actions and a jump in government enforcement cases. The largest increase was in government enforcement. The report also found there were better statistical outcomes for employers opposing class certification requests for the second year in a row. In wage-and-hour litigation, for instance, employers won 63 percent of decertification rulings, which represented a 20 percent increase from 2016. The enforcement litigation sparked from the federal government appeared to spill over from the Obama administration, the report said. Filings from the U.S. Equal Employment Opportunity Commission more than doubled -- 184 lawsuits compared to 86 the previous year. According to the EEOC, 124 of those suits were filed on behalf of individuals, 30 were non-systemic suits with more than one victims, and 30 were systemic suits. The top government settlements also increased from $52.3 million in 2016 to $485 million last year. Mr. Maatman said the Trump administration, as it settles and implements new approaches, would slow the rise in settlements. Still, he said he expects plaintiffs attorneys to step in. Seyfarth Shaw's report also notes that employers are awaiting the outcome of a U.S. Supreme Court case that considers the legality of class action waivers in arbitration agreements. The court heard arguments in the case in October. "The wild card is what is before the Supreme Court right now," Mr. Maatman said. "[The case] will have such a major cause and effect on workplace litigation." [GN] * Courts Let Companies Keep Sexual Misconduct Under Cover --------------------------------------------------------- Dan Levine, Benjamin Lesser and Renee Dudley, writing for Reuters, report that Cristina Chen-Oster, a senior salesperson in Goldman Sachs's convertible bonds department, was a few years out of MIT when a male colleague pinned her against a wall, kissed her, groped her and tried to engage in a sexual act, she said in a lawsuit in federal court. After reporting the incident to her boss, the lawsuit alleged, she missed out on pay and promotions while her accused attacker steadily rose through the ranks. Cathy Sellars, a 59-year-old mother of two adult children, was training to become a truck driver for freight hauler CRST when she complained to her bosses about repeated sexual harassment by male colleagues, according to a class action lawsuit against the company. Her complaints ignored, she says in court records, she eventually found herself in a truck cab with a male driver who pulled a knife on her after she rebuffed his sexual advances. He then refused to allow her to exit the truck during a trip through the southwest and held her for several hours, she said. And Sebastian Kelly, a gay driver for an ambulance company in Alabama, said in a lawsuit that he worked in a sexually charged atmosphere, where two male co-workers routinely exposed their genitalia. News headlines of late have focused on sexual harassment accusations against movie mogul Harvey Weinstein, former Today show anchor Matt Lauer, former U.S. Senator Al Franken and other media figures, entertainers and politicians. In each case, the accusers say they waited years to confront the men who accosted them, most of them too ashamed or fearful to complain publicly or persuaded to keep quiet by tactics meant to suppress the truth. But these three plaintiffs, and many like them, chose to confront their alleged abusers and hold the companies they work for accountable in public court. Rather than opening the incidents to full public scrutiny, however, judges let companies push the legal boundaries of what should be considered confidential and to keep details of abusive behavior secret. A Reuters review of federal court cases filed between 2006 and 2016 revealed hundreds containing sexual harassment allegations where companies used common civil litigation tactics to keep potentially damning information under wraps. Plaintiffs in some cases say companies sought to conceal internal documents that reveal similar harassment claims, as well as corporate policies that favored abusers over victims. In one case, plaintiff lawyers collected secret evidence about alleged criminal behavior, including details of a pharmaceutical saleswoman who alleged a doctor sexually assaulted her at a work- related event. Her supervisor admitted to giving a sheriff's detective false information about the allegations, court records show. The true number of such cases is likely much greater than the hundreds identified by Reuters. Federal courts categorize sexual harassment within a larger group of gender discrimination claims, which makes a full accounting difficult. In addition, many sexual harassment cases are filed in state courts. Reuters focused its review on the federal courts because records are more accessible and consistent. As a result of the sealed documents, cases that could shine light on specific abusers, or on toxic corporate cultures, do the opposite: They enable the very secrecy and corporate complicity that allow sexual harassment to persist in the workplace. Shira Scheindlin, a former Manhattan federal judge, said judges should make public human-resources complaints that result in employee discipline. "Otherwise, you get the serial abuser just doing it at the next job," said Scheindlin, who currently heads the American Bar Association's federal courts subcommittee and whose private practice includes advising companies on handling sexual harassment complaints. "If that record had been available, there would have been no next job." U.S. District Judge Charles Breyer said courts are going too far in routinely sealing such cases. Documents filed in federal court are presumed to be public, he said, so people can understand how the judiciary works. Companies should not be allowed to cloak evidence just because it is damaging, said the judge, based in San Francisco. That goes not only for sexual harassment but also for broader corporate governance issues. "It's hard to see why their private interests to avoid embarrassment trumps the public's right to have access to litigation," Breyer said. Companies say they have good reason to seek broad protective orders. They frequently argue that their internal documents contain unproven allegations that shouldn't be public, or sensitive business information that could aid a competitor. Plaintiff attorneys say they often agree to protective orders and motions to seal information from public disclosure because fighting over public access can increase the length and cost of a lawsuit. Many judges, meanwhile, are reluctant to enforce transparency when neither side has requested it, according to several current and former federal judges. "I don't think any judge is presumptively hostile to the idea of disclosure," Breyer said. "We may be presumptively hostile to doing more work. I'm speaking for myself." Most civil cases settle before they can be publicly aired before a jury. That means the pre-trial secrecy allows companies to permanently conceal information about their sexual harassment policies and how they respond to specific complaints of abuse. A broad protective order in the ongoing lawsuit by Chen-Oster and three other women against Goldman has allowed the Wall Street giant to keep hundreds of documents under wraps for three years. Asked about the secrecy, a Goldman spokesperson told Reuters the firm keeps details private because it promises employees confidentiality when they report concerns. The spokesperson would not discuss the specific allegations raised by Chen-Oster and the other plaintiffs. In court documents, the company acknowledges that Chen-Oster told her boss about the contact with her co-worker and that the supervisor contacted Goldman's human resources department about it. Chen-Oster, the company says in court filings, did not want to pursue a human resources complaint. The protective order permitted lawyers on either side to mark any document exchanged in discovery as confidential, thus barring anyone from disclosing it outside the case. Such orders have become standard to ensure secrecy during the pre-trial evidence discovery phase in U.S. civil litigation. There are no nationwide standards on what information should be sealed when discovery documents are later filed in court. Several federal appeals courts recognize that trade secrets, sensitive financial data, or personal information like Social Security Numbers can remain secret. When it comes to allegations of misconduct, some case law allows information that would intrude on an individual's privacy to be kept secret. But it is left to judges to decide if someone's privacy outweighs the public's interest in disclosure. Initially, Chen-Oster's lawyers agreed to the protective order, but later, when they sought to broaden the case, they took the rare step of arguing that many documents filed in court should be made public. Adam Klein, one of her lawyers, said plaintiff attorneys usually agree to protective orders to gain access to company documents in the first place. "It's balancing the interest of the client to get information with the public's right to know," Klein said. In Chen-Oster's case, Klein said, they later pushed to unseal documents in part so that more women working at Goldman who could join the lawsuit would know the details. The lawyers asked then-U.S. Magistrate Judge James Francis IV in Manhattan to certify the lawsuit as a class action to address pay and promotions lost to gender discrimination at Goldman. To support their request, they filed, under seal, nearly 300 internal Goldman documents the company had given them during discovery. Some of those documents, the lawyers alleged, showed that Goldman rewarded men who engaged in sexual misconduct. Because Goldman had asserted confidentiality during discovery, Chen-Oster's lawyers had to file those documents in secret. The plaintiffs also secretly filed a chart that logged gender discrimination complaints Goldman female employees made to the U.S. Equal Employment Opportunity Commission. The plaintiffs' first request in 2014 to unseal is itself not public, nor is Goldman's response. Francis sided with Goldman -- though his reasoning is unknown because he also sealed the ruling from disclosure on the public court docket. In a subsequent filing, Chen-Oster's lawyers argued that details about Goldman HR investigations should be made public, at least without revealing employee names, because they did not contain the type of trade secrets that legal precedent allows companies to keep confidential. In response, Goldman attorneys argued the documents should remain secret, arguing many contained hearsay and violated the privacy of people who aren't parties to the suit. The material had been "selectively culled" from Goldman's internal personnel files to "sensationalize this proceeding," Goldman's lawyers said. U.S. District Judge Analisa Torres in Manhattan reaffirmed Francis's ruling in 2017, saying the sealed materials "include sensitive content about identifiable non-parties." Because of that, Torres ruled, the plaintiffs' request to make the material public should wait until after a judge decides whether to let the case proceed as a class action. That legal question has now been pending for more than three years. Torres declined to comment. Francis, who recently left the bench, also declined to comment on the Goldman case. But in general, he said, judges often wait to wade into secrecy issues until after they know what evidence will be important in their rulings. That way they have a roadmap to decide which secret court filings are most relevant to the public, he said. "Making a decision later with more information may be better," Francis said. "But later may be much later, and that's problematic." Goldman says in court filings that it takes harassment seriously. Out of 12 human-resources cases highlighted by Chen-Oster's lawyers, Goldman said it had fired five subjects of those complaints and disciplined five. The identities of those employees, however, are not public, leaving other companies unaware of the abusers' histories. Chen-Oster and one other plaintiff declined to talk for this article, and the others did not respond to Reuters' efforts to reach them. IDENTITY BLACKOUT In some cases, companies have persuaded judges to require plaintiffs to keep secret the alleged abusers named in lawsuits, before discovery even begins. The 2011 claim filed by Sebastian Kelly against his former employer, Regional Paramedical Services Inc. of Jasper, Alabama, described a hyper-sexualized environment in which his colleagues allegedly exposed their genitalia regularly and discussed sex in graphic terms. He described one instance in which a colleague told Kelly that he "can't be gay, you like titties too much." That employee's name, and several others, were blacked out in Kelly's complaint on the order of Judge James Hancock of the Northern District of Alabama. Hancock ruled that all names of employees who weren't in supervisory roles, including the human resources director, must be kept secret. Hancock wrote that allegations against non-supervisory employees are "embarrassing" and that the public's right to access court records was outweighed by the privacy interests of the employees. In July 2012, both parties asked the judge to dismiss the case after reaching an out-of-court settlement; the terms weren't disclosed. A company spokesperson did not respond to requests for comment. The company denies Kelly's allegations in court documents. Kelly would not disclose the terms of the settlement. Because the case did not go to trial, the identities of the accused remain blacked out in Kelly's lawsuit. The accused are named openly, however, in a complaint Kelly filed with the Equal Employment Opportunity Commission. Kelly's lawyers filed the document after Hancock ordered them to submit the EEOC records. Anyone reviewing the filing would find the names of the accused men. Hancock, who has retired, could not be reached to explain why he did not order the names to be blacked out when the lawyers filed the EEOC complaint. CLASS SECRETS In the case against CRST Expedited Inc., a large trucking company, secret court filings were compelling enough to persuade Judge Leonard Strand that plaintiffs had grounds to mount a class action alleging widespread systemic abuse against female employees. Yet even with the class certification, the judge continues to keep important details under wraps. The case, filed in U.S. District Court in Cedar Rapids, Iowa, centers on the complaints of three women, including Cathy Sellars, the 59-year-old who says she was held at knifepoint after rejecting a coworker's sexual advances. She said she complained about harassment to her superiors and the human resources department. When she contacted human resources to check on the status of her complaints, she says in her lawsuit, she was told that information was "none of my business." After Sellars and the other plaintiffs took CRST to court, their attorneys sought information from the company about how it handled sexual harassment complaints, and how many had been filed. The plaintiffs eventually obtained much of that information. However, the broad protective order adopted at the beginning of the case -- agreed to by both the plaintiffs and the defendants - - barred anyone from disclosing that information. The order also forced the plaintiffs to file secretly their motion asking the court for class certification. As a result, all of their allegations of widespread abuse at CRST remained confidential. Judge Strand granted the plaintiffs' bid for a class action. In that March order, Strand disclosed some of the sealed material, including the number of female employees -- 106 -- filing sexual harassment complaints with CRST between October 2013 and February 2016. But the documents he cited -- along with the entire motion he ruled on -- still remain under seal. "The public has a right to know about the gravity of harm in cases like this," said Giselle Schuetz -- giselle@friedmanhouldingllp.com -- an attorney for Sellars. She said she agreed to the sealing, however, because she couldn't afford to delay the case. The litigation is pending, and CRST attorney Kevin Visser said he could not discuss the case or any of the specific allegations as a result. The company denied Sellars' allegations in court documents. Strand did not respond to requests for comment. CONCEALED EVIDENCE Plaintiff attorneys say secrecy orders tie their hands even when apparent criminal acts are uncovered during the pre-trial exchange of information, such as evidence that women were sexually assaulted while doing their jobs. In one gender discrimination claim that went to trial eight years ago, Swiss pharmaceutical giant Novartis attempted to keep secret evidence that one of its managers had given false information to a sheriff's detective investigating a sexual assault complaint, court records show. REUTERS INVESTIGATES That attempt came to light when the manager testified during a deposition with the plaintiff's attorneys before the trial. The attorneys could not disclose the revelation to law enforcement authorities without seeking permission from the company or the judge because the deposition was required to be kept secret under the terms of the protective order. Novartis tried to keep the details under wraps as the case went to trial. The company's lawyers argued that the alleged sexual assault and the criminal investigation were irrelevant and would prejudice the jury because the details were "unusually graphic and offensive to any reasonable person." The judge rejected that argument, so in April 2010, Novartis sales rep Marjorie Salame told the jury that she was sexually assaulted by a doctor at a work-related golf event. Salame testified that she had considered herself on a management track and enjoyed a good relationship with her boss when she headed to a country club near Tampa, Florida, in May 2002. At the end of the night, Salame said at an earlier deposition, Dr. Edwin Colon got her alone, lifted her skirt and penetrated her with his fingers. The next day, Salame told her manager, Joseph Simmons, what had happened. Simmons told the jury he also received a phone call from Colon, who was apologetic but denied culpability, saying he had been drinking. The doctor said the sexual contact with Salame had been consensual, Simmons testified. Colon declined to discuss the case with Reuters. Simmons also declined to comment. Salame reported the incident to the sheriff's office, and investigators interviewed Simmons. The Novartis manager told a detective that the doctor had not said he had been drinking and that Novartis was not investigating the matter, court records state. In fact, Simmons later testified, a human resources employee at Novartis was looking into the complaint, a fact he knew when he talked with the detective. Salame's ex-manager testified both in the pre-trial deposition and during the jury trial that he had misinformed the detective about what Colon told him and about Novartis investigating the complaint, though he told the jury he had not deliberately lied. The doctor was not charged with a crime. Had Salame's lawyers wanted to tell law enforcement authorities about Simmons' pre-trial revelation, they would have had to go through an elaborate process with Novartis and the judge. Nothing on the court docket shows they did so. Katherine Kimpel, who represented Salame and other women against Novartis, declined to comment. U.S. Senator Richard Blumenthal, a Democrat, co-sponsored legislation in 2014 that would have allowed victims to disclose evidence obtained in civil litigation to law enforcement, if it impacts public health or safety. The bill died in committee. Broad protective orders and motions to seal, Blumenthal said, can often conceal evidence of criminal behavior, allowing abusers to prey on unsuspecting women. "The present practice sends her on a trail where all of the warning signs about the dangers have been removed, and she's there vulnerable and alone," he said. Salame told Reuters she was too overwhelmed to pursue the matter involving her supervisor after learning he had misled investigators. She did file a civil lawsuit against the doctor, who denied her allegations. Three years ago, both sides agreed to a settlement. The manager's testimony was the first time Salame learned what he had done. "It took eight years for it to come out and vindicate me," Salame said in an interview. Few sexual harassment cases reach trial, making the Novartis case -- and the details disclosed during public testimony -- unusual. The 2010 trial generated weeks of testimony -- and headlines -- about how the company treated women. The jury eventually ordered Novartis to pay $250 million in punitive damages in the class action. The company later decided to settle the case and pay about $153 million to class members, rather than appeal the jury verdict. A Novartis spokesman declined to discuss the case with Reuters. As part of the resolution of the case, the company agreed to internal reforms, including annual training on a new sexual harassment policy and new measures for tracking and investigating complaints. On pay, it agreed to analyze gender discrepancies and to share the results of that analysis with the plaintiffs' attorneys. More than three years later, U.S. District Judge Colleen McMahon congratulated Novartis for successfully complying with the reforms. Yet even in a case with such transparency, the openness had its limits. The details of Novartis's compliance efforts were not filed on the court docket and remain secret. ********* 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. 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