/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180410.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 10, 2018, Vol. 20, No. 72 Headlines 24 HOUR: NLRB Case Over Employee Arbitration Agreements Pending 1750 ASIAN BUFFET: Castillo, et al. Seek to Certify Drivers Class 7-ELEVEN INC: Wins Bid for Judgment; Haitayan's Case Dismissed 8POINT3 ENERGY: Violates Securities Exchange Act, Taylor Says A.J. BOGGS: Faces "Doe" Suit in California Superior Court A'GACI LLC: Villarreal Sues over Marketing Text Messages AAC HOLDINGS: June 8 Hearing on $25MM Securities Suit Settlement ACCENTCARE HOME: Faces "Lanuza" Suit in California Superior Ct. AFRICAN RAINBOW: Silicosis Class Action Nears Settlement ALL AMERICAN WATER: Faces "Fernandez" Suit in S.D. New York ALLIANCE MMA: Settles Stockholder Class Action Over 2016 IPO ALLIANZ TRANSPORTATION: Ryoo Dental Sues over Unsolicited Ads ALLIED INTERSTATE: Class Cert. Proceedings in "Dombrowksi" Stayed ALLIQUA BIOMEDICAL: Monteverde & Associates PC Files Class Action AMERICAN HONDA: "Preston" Suit Seeks to Certify Class AMERIGAS PROPANE: "Jarrell" Case Settlement Wins Final Approval ANDY MOHR: Sent Unsolicited Text Messages, "Thomas" Suit Claims ARKEMA INC: Court Certifies Two Subclasses in "Carter" Suit ARS NATIONAL: Brown Alleges Wrongful Debt Collection Practices BANK OF THE WEST: "Meller" Suit Seeks OT Compensation under FLSA BASF CATALYSTS: Faces "Williams" Suit in N.D. Ohio BLUE BUFFALO: Shumaker Balks at Merger Deal with General Mills BRIJON MANAGEMENT: Faces ERISA Class Action BUFFALO WILD: "Meeks" Suit Transferred to C.D. California BUFFALO WILD: Judge Dismisses Vegetarian Customers' Class Action BULLDOG SQUARE: Orozco Seeks Minimum Wages, OT under Labor Code CALIFORNIA: Oroville Dam Class Action Transferred to Sacramento CAMDEN PROPERTY: Suarez Seeks to Certify 2 Classes CAMPBELL SOUP: Deceptively Packaged Products, Sims Claims CAPGEMINI NORTH: Two Subclasses Certified in "Bhattacharya" Suit CAPEX OILFIELD: "Adams" Suit Seeks Overtime Wages under FLSA CAPITAL MANAGEMENT: Faces "Clemons" Suit in S.D. Texas CELLULAR SALES: Prall Sues over Autodialed Telemarketing Calls CLEVELAND MEDICAL: Pennimans Sue over Damaged Frozen Embryos COMMERCIAL INDUSTRIAL: Faces Sage Apts Suit in N.D. California CONTEGO SERVICES: Fails to Pay Wages & Overtime, Orlow Says COCONINO, AZ: "Tenorio-Serrano" Suit Moved to Fed. District Court CADILLAC LOUNGE: "Pizzarelli" Suit Wins Class Certification CIGNA CORP: Judge Allows Drug Pricing Class Action to Proceed COACH INC: Vaughn Seeks to Certify Store Manager Class COLLEGIATE HOUSING: "Dearman" Suit Has Conditional Class Cert. CONCENTRIX CORP: Armstrong Moves to Certify Class of AHCSRs CONN APPLIANCES: "Gerlach" Suit Seeks to Certify Class CREDIT MANAGEMENT: Class Certification Sought in "Bartz" Suit CVS PHARMACY: Class Certification Bid in "Lowe" Suit Underway DAN LEPKE TRUCKING: Court Denies Certification of Three Classes DRW HOLDINGS: Manipulated VIX-Linked Investment Prices, Suit Says DST SYSTEMS: Faces Securities Class Action in Delaware DUKE ENERGY: Court Conditionally Certifies Hourly Workers Class DURHAM SCHOOL: Romo Seeks to Certify Settlement Class E.N.T. ASSOCIATES: "O'Keefe" Suit Seeks Unpaid Wages EKSO BIONICS: Shareholders File Securities Class Action EL TAQUITOS: Faces "Galeana" Suit in S.D. New York ELTMAN LAW: "Alejandro" Suit Moved to Eastern Dist. of New York EMERALD COAST: Settles Class Action Over VirnetX Patent Troll EMERALD LAWNS: Court Certifies Class of Spray Technician ENAGIC USA: Faces "Makaron" Suit in C.D. California ENERGEN RESOURCES: Ulibarri Seeks Royalty Payments over Gas Sales EOG RESOURCES: "Qualls" Class Suit Transferred to S.D. Texas EVA AIRWAYS: Settles Long-Haul Flight Price-Fixing Class Action FEDEX FREIGHT: Bid to Certify Operations Supervisor Class Denied FIFTH THIRD BANK: Smith Sues over Out-of-Network ATM Fee FLAGSHIP RESORT: Colosimo Seeks Collective Action Certification FOOT LOCKER: Bronstein Gewirtz Files Securities Class Suit FOUR POINT CONSTRUCTION: Sandoval Suit Overtime Wages under FLSA FSB: Telegram Users File Privacy Class Action in Moscow FYRE MEDIA: Judge Consolidates Five Fyre Festival Suits G. WELDING CONTRACTOR: Sanchez Seeks Unpaid Wages & OT under FLSA G&R COLLECTIONS: Court Certifies Settlement Class in "Tiernan" GLYNN COUNTY, GA: Faces Class Action Over Wealth Discrimination GOTHAM HALL: Settecasi Seeks OT Compensation under Labor Law GOOGLE INC: CEI's Ted Frank Responds to Cy Pres Argument GOOGLE INC: Defends $8.5-Mil. Class Action Settlement GOOGLE INC: Says $8.5MM Class Action Settlement Not Unfair GRAPHIC COMMUNICATIONS: Faces ERISA Suit by Bator et al. GUARDIAN CREDIT: Class Certification Sought in "Starkey" Suit GULLIVER'S TAVERN: Court Grants Class Certification in "Levi" HARLEY-DAVIDSON: Faces Class Action in Tenn. Over TCPA Violation HEALTH & HUMAN SERVICES: "Garza" Suit Wins Class Certification HEALTHCARE NATIONAL: Picha Sues over Unsolicited Telephone Calls HENRY SCHEIN: Faces Class Action, May 7 Lead Plaintiff Deadline HLADIK ONORATO: Accused of Wrongful Conduct Over Debt Collection HOME DEPOT: Court Certifies Lock-In and Hourly Employee Classes HOME DEPOT: Averts 4x4 Wood Board Labeling Class Action HOME DEPOT: Plaintiff Can Still Refile 4x4 Lumber Class Action IMPACT HOME: Court Certifies Healthcare Workers Class in "Clark" INTEL CORPORATION: Faces "Phillips" Suit Over Defective CPU's INTERSTATE HOTELS: Sheraton Workers Win Wage Class Action IYOGI INC: Kobialko Sues over Unsolicited Phone Calls JUST BORN: White Seeks to Certify 3 Classes KAYAFAS CONTRACTING: Jaigua Seeks Unpaid Overtime & Wages KEEFE COMMISSARY: Micko Seeks Certification of Class Action KISWANI TRUCKING: Permitted to Notify Plaintiff Class LAKEMOOR, IL: Knutson Files Prelim. Bid for Class Certification LJM FUNDS: Faces "Nosewicz" Suit Over Misleading Fin'l Reports LOBLAW: Judge Awards Carriage of Bread Price-Fixing Class Action LOOK INTERNATIONAL: Saleh Sues over Marketing Text Messages MAZUMA CREDIT: Initial Approval of "Bowens" Settlement Sought MDL 2818: "Pitre" Suit vs. General Motors Moved to E.D. Mich. MENARD'S: Faces Class Actions Over FLSA Violations MICROSOFT CORP: Faces Gender Bias, Sexual Harassment Complaints MICROSOFT CORP: Documents Unsealed in Gender Bias Class Action MISSOURI: Brown, et al. Seek to Certify Prisoners Class MONAT: Class Actions Pile Up Over Hair Care Products MONAT: Accused of Using Legal Tactics to Silence Critics MOUNT KISCO BAGEL: "Tapia" Suit Seeks Unpaid Overtime under FLSA MYER: Has Until May 18 to Settle Shareholder Class Action NATIONSTAR MORRTGAGE: 4 Classes Certified in "McNamer" Suit NEIGHBORHOOD GARAGE: Blumenthal Nordrehaug Files Class Action NEW ORLEANS MILLWORKS: FLSA Class Certified in "Maldonado" Suit NRA GROUP: Class Certification Under Damasco Sought in "Bartz" OHIO: Class Certification Bid in "Ball" Suit Granted in Part OPAL AGED: Shine Lawyers File Class Action Over Care Home Fire ORACLE AMERICA: Fails to Pay Wages, Williams Says OWL INC: Court Denies Motion for Issuance of Notice in "Perez" PGA INC: Class of Workers Certified Under FLSA in "Schilling" PINNACLE ENTERTAINMENT: Faces "Ohigashi" Suit Over Penn Merger PIONEER CREDIT: Toney-Adkins Withdraws Bid to Certify Class PNC: Wants Suit Over Job Applicants' Arrest Records Dismissed PRESTIGE AUTO: Lopez Seeks Unpaid Overtime Wages under FLSA PODS ENTERPRISES: Faces "Ellenburg" Suit in Cal. Super. Court PURDUE PHARMA: New Castle Class Suit Removed to E.D. Philadelphia RETRIEVAL-MASTERS: Rafferty Seeks to Certify Florida Consumers REVENUE GROUP: Illegally Collects Debt, "Mormon" Suit Claims ROSELAND RESIDENTIAL: "Conley" Suit Moved to Fed. District Court RUSHMORE LOAN: Bid to Certify Class Denied Without Prejudice S.A.S. SERVICES: Fails to Pay OT & Minimum Wages, Elkhouly Says SAFE HAVEN: Response to Class Certification Motion due by May 3 SAFEMARK SYSTEMS: Court Denies Class Certification in Gorss Suit SE INDEPENDENT: Colon Seeks Class Certification SEALY INC: Fails to Pay Overtime Wages, "Sarmiento" Suit Says SHORE CONSTRUCTION: Court Refuses to Certify Class in "Magana" SOUTH CAROLINA: Class Action Seeks Hep C Testing for Inmates SPARCO LLC: Faces "Rudisel" Suit in South Carolina STUCKY LAUER: Maloy Seeks to Certify Settlement Class SUPERVALU INC: Faegre Baker Attorney Discusses Court Ruling SYNGENTA: $1.51BB GMO Cor Settlement Obtains Preliminary Court OK TELECHECK SERVICES: Bid for Class Certification Denied as Moot TIGER BRANDS: 50 Families of Listeriosis Victims to Join Suit TIGER BRANDS: Suits Expected to Pile Up Over Listeriosis Outbreak TIGER BRANDS: To Contest Listeriosis Class Action Aggressively TIGER BRANDS: Spoor Optimistic on Success of Listeriosis Case TONE HOUSE: Faces "Martinez" Suit in E.D. New York TRUECAR INC: Milbeck Sues over Securities Fraud TWITTER INC: Two Men Want to Lead Stock Fraud Class Action U.S. GEOTHERMAL: Young Balks at Merger Deal with Ormat Tech UBIQUITI NETWORKS: Robbins Geller Files Securities Class Action UNITED COLLECTION: Faces "Taubenfliegel" Suit in E.D. New York UNITED STATES: Ramos et al Sue Homeland Security over TPS Rule UNITED STATES: Opposes Class Action in Guam Over H-2B Visas UNITED STATES: Aguilar's Bid to Certify Taken Under Advisement UNIVERSITY HOSPITALS: Sauder Schelkopf Files Suit Over Lost Eggs UNIVERSITY HOSPITALS: Clinic Malfunction Case May Face Challenges UPMC: Cole's Wexford Moves to Certify Class of Highmark Insureds USA GATEWAY: Faces "Argamaso" Suit in California Superior Court USF REDDAWAY: "Gomez" Seeks to Certify Class & Subclass WAL-MART STORES: "Phipps" Suit Seeks to Certify Employees Class WALGREENS BOOTS: "Polsky Suit Moved to S.D. Texas WARREN COUNTY, OH: Certification of Adoptive Parents Class Sought WELLS FARGO: "Hernandez" Suit Seeks Overtime Pay under Labor Code WINES TIL SOLD: DOJ's Move to Oppose Settlement Challenged WOOD GROUP: Pipeline Inspectors Class Certified in "Fenley" Suit YAHOO INC: Must Face Class Action Over Data Breaches YOUNG ADULT INSTITUTE: Khan Seeks Minimum & OT Wages under FLSA ZAPPOS.COM: 9th Cir. Revives Data Breach Class Action * Cohen Milstein Files Class Action Over VIX Index Manipulation * Cyber-Related Securities Fraud Class Action on the Rise * Locke Lord Attorney Discusses Independent Contractor Cases * Schwarzenegger Mulls Class Action Against Oil Industry * SCOTUS Ruling on Class-Action Waivers Expected ********* 24 HOUR: NLRB Case Over Employee Arbitration Agreements Pending --------------------------------------------------------------- Jessica Goodheart, and Roxane Auer, writing for Fast Company, report that Capital & Main is an award-winning publication that reports from California on economic, political, and social issues. On its website, 24 Hour Fitness says it has thousands of job openings. That's great news for fitness buffs hunting for work. Or is it? Disgruntled former employees of the San Ramon, California-based company have filed hundreds of cases over almost two decades, some resulting in settlements in the millions of dollars. And the large payouts appear to have made 24 Hour Fitness one of the nation's more aggressive advocates for curtailing workers' ability to defend their rights in court, labor lawyers say. That advocacy has also put the almost four-million-member-strong fitness chain in the crosshairs of the National Labor Relations Board, which has said the firm's employee arbitration agreements violate federal labor law. The company's dispute with the NLRB may make it to the U.S. Supreme Court, which could hear oral arguments next term as to whether the contracts the firm asks workers to sign when they are hired violate historic worker protections put in place as part of New Deal legislation adopted in the 1930s. Those contracts ask employees to waive their right to come together to file class action lawsuits. Some workers say the company's single-minded focus on selling memberships caused it to run afoul of wage and hour law. "We worked basically 8 to 8 every day no matter what, and if you got a lunch break it was usually at the club, or you went out and came right back," said Gabe Beauperthuy, a former general manager, who worked in fitness centers in Colorado before leaving the company in 2006. At first, Mr. Beauperthuy said, he loved the work and embraced the company's philosophy of personal transformation. But the long days and relentless pressure to sign up new members made him question the company's commitment to changing people's lives, and even his own priorities. He developed a single-minded focus on bringing in the "almighty dollar" for the company because, he explained, "you're a product of your environment." "I'm thankful that I realized that, and I'm thankful that I'm no longer there," said Mr. Beauperthuy, now a competitive amateur wrestler and coach. 24 Hour Fitness declined to comment for this story. Mr. Beauperthuy was one of more than 900 managers, sales counselors, and trainers to bring a collective action lawsuit under the Fair Labor Standards Act, alleging the company had misclassified them and denied them overtime pay. After the class was decertified and following seven years of litigation, the group settled for $17.5 million in 2013, according to published reports. The company settled another lawsuit involving thousands of California employees for $38 million, the nation's sixth largest wage and hour class action settlement of 2006. Those cases may have made 24 Hour Fitness more steadfast in defending their employee arbitration agreement that asks employees to waive their right to bring class action lawsuits in NLRB v. 24 Hour Fitness, which the U.S. Supreme Court may review next year, depending on the outcome of a related case. The fact that 24 Hour Fitness has an employee arbitration agreement with a "class action waiver" does not make it unusual. But the company has been especially aggressive in defending its arbitration agreement in the courts, labor advocates say. "Historically, there have been a few companies who went out of their way to fight and defend arbitration," says Cliff Palefsky, a San Francisco attorney who filed the unfair labor practice case resulting in the NLRB's finding that 24 Hour Fitness had violated the law. "They've been pretty aggressive in stripping workers of their rights." About 60 million people -- more than half of the non-union private sector workforce -- are covered by mandatory arbitration agreements, according to an Economic Policy Institute study. These agreements require employees to resolve disputes through private arbitrators chosen by employers, rather than go through the courts. An estimated 25 million of these arbitration agreements also include class action waivers, like those used by 24 Hour Fitness, in which employees give up their rights to band together to bring class action suits to address workplace disputes in the courts. The contract language has received attention in recent months as the "Me Too" campaign has gained steam, and advocates pointed to the difficulty of raising workplace concerns individually in confidential arbitration proceedings that are crafted by the employer. Last year, U.S. Rep. Cheri Bustos (D-IL) introduced a bipartisan bill that would prevent companies from keeping sexual harassment and sex discrimination claims from going to court, where the proceedings are typically in the public record. A landmark case expected to be decided by the U.S. Supreme Court this term, National Labor Relations Board v. Murphy Oil USA, will determine whether class action waivers will be a continuing feature of employment contracts. It will also decide the fate of NLRB's dispute with 24 Hour Fitness. "If the NLRB loses Murphy Oil, then our case would suffer the same fate, essentially," says Mr. Palefsky. In its Supreme Court brief, 24 Hour Fitness distinguishes its employment agreements from those at issue in the Murphy Oil case because the fitness employees are given 30 days to opt out of the class action ban. But Mr. Palefsky counters that the rarely used "opt out" provision is irrelevant because a worker's right to act collectively is one that cannot be signed away. FAR MORE EMPLOYMENT CASES THAN ITS COMPETITORS The argument about class action waivers might seem an academic one to job seekers if 24 Hour Fitness is now complying with the law. There have been 621 employment cases filed in the federal courts against 24 Hour Fitness since 2000. On a per-establishment basis, that's more than eight times as many as have been filed against its competitor, Gold's Gym, during the same time period, according to a Capital & Main review of federal court records. The disproportionately large number of cases is likely linked to the battle that took place between 24 Hour Fitness and Beauperthuy's attorney, Richard Donahoo, who continued to fight for his 900 or so clients even after a federal judge in San Francisco granted a 24 Hour Fitness motion in 2011 to decertify the class. (The judge's ruling that the plaintiffs' claims were not sufficiently similar prevented the case from moving forward as a collective action -- not the class action decertification language -- but the effect was similar.) "Many times that means it's the death of the case because people don't want to proceed individually," said Mr. Donahoo, who is based in Orange County. "Attorneys can't do it economically." Nevertheless, Mr. Donahoo and his colleagues decided to "swallow hard" and fight for each plaintiff individually. They filed hundreds of individual petitions in federal court to compel the company to arbitrate claims in Northern California, where 24 Hour Fitness is headquartered, and successfully fended off 24 Hour Fitness's efforts in 21 federal courts across the country to force the arbitration proceedings to take place near the clubs where each of the former employees had worked. "Our case became a 'careful what you wish for' scenario for the company," Mr. Donahoo said. The company ultimately agreed to a settlement that resolved the individual claims at once. Since then, 24 Hour Fitness has changed ownership. AEA Investors LP, a New York-based private equity firm, Fitness Capital Partners of Palm Beach, Florida, and the Toronto-based Ontario Teachers' Pension Plan purchased the firm in 2014 in a leveraged buyout. But reasons remain to be concerned about the practice of the fitness company, which employs about 20,000 workers and operates in a highly competitive industry. In November, the company agreed to pay restitution and settled a lawsuit for $1.3 million filed by Orange County prosecutors, stemming from allegations the company increased annual renewal rates on prepaid memberships beginning in 2015 in violation of its contracts with customers. Customers were sold prepaid memberships and charged upfront fees with the guarantee of a low life-time renewal rate in 2006 but saw their rates rise as much as 300 percent nine years later, according to The Orange County Register. The company admitted no wrongdoing in the settlement agreement. Last May, the ratings agency Moody's changed 24 Hour Fitness' investment outlook from "stable" to "negative." In justifying the downgrade, the report pointed to the growing number of fitness centers and the fact that the company is highly leveraged. The purchase of the company in 2014 was financed with $1.35 billion in debt, about 75 percent of the total cost, according to the Moody's report. Moody's also singled out rising labor costs due to increases in the minimum wage in many of the regions where 24 Hour Fitness operates, suggesting the company employs a large number of low wage workers. Most of the clubs are concentrated in three states -- California, Texas and Colorado. "The company should be able to offset some of the pressure from minimum wage increases by using labor optimization, and reallocating the labor force within clubs based upon their age and member profile," according to Moody's report. The economic pressures 24 Hour Fitness faces may explain the experience of one Ms. Randle, a former Kids' Club attendant, who asked that her first name not be used. She worked at a 24 Hour Fitness in Orange County from 2014 to 2016. She said managers told her not to leave her post to take a break or use the rest room during her four-hour shift because the other staff on duty lacked the necessary clearance to work with children. She complained to managers and eventually to the human resources department, but had to file a complaint with the California Labor Commissioner's Office to resolve the issue and secure back pay for missed rest breaks, she said. Ms. Randle thought that one of her co-workers endured repeated urinary tract infections that could have been caused by not being able to take bathroom breaks. Ms. Randle felt the managers lacked proper training. "They were always focused on selling memberships," she said. "They didn't care too much about their employees." [GN] 1750 ASIAN BUFFET: Castillo, et al. Seek to Certify Drivers Class ----------------------------------------------------------------- In the lawsuit styled EDUARDO CARBALLO CASTILLO, et al., the Plaintiffs, v. 1750 ASIAN BUFFET INC., et al., the Defendants, Case No. 1:17-cv-00137-PLM-ESC (W.D. Mich.), the Plaintiffs ask the Court for an Order: a. conditionally certifying a collective action for unpaid wages pursuant to 29 U.S.C section 216(b) defined as: "all current or former drivers or drivers' assistants and/or helpers who worked for Defendant at any time in the three years prior to the filing of this action"; b. compelling Defendants to provide Plaintiffs with the names, all known addresses, e-mail addresses and cell phone numbers of the potential Collective members; c. authorizing notice to the Collective members with a 120 day opt-in period; and d. appointing Avanti Law Group, PLLC as interim class counsel. Counsel for the Defendants indicated they oppose Plaintiffs' motion for conditional class certification. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=1qZaNGF7 The Plaintiff is represented by: Robert Anthony Alvarez, Esq. Agustin Henriquez, Esq. AVANTI LAW GROUP, PLLC 600 28th Street SW Grand Rapids, MH 49509 Telephone: (616) 257 6808 Facsimile: (616) 257 8501 E-mail: ralvarez@avantilaw.com ksage@avantilaw.com 7-ELEVEN INC: Wins Bid for Judgment; Haitayan's Case Dismissed -------------------------------------------------------------- The Hon. John F. Walter grants a motion for judgment on the pleadings filed by the Defendant/Counterclaimant of the lawsuit styled Serge Haitayan, et al. v. 7-Eleven, Inc., Case No. 2:17- cv-07454-JFW-JPR (C.D. Cal.). 7-Eleven owns, operates, and franchises convenience stores under the trademarked name "7-Eleven," according to the Order. 7- Eleven is one of the largest, well-known, and most-successful franchise systems in the world. Currently, there are more than 7,800 7-Eleven stores operating in the United States, approximately 1,500 of which are franchised to independent business owners in California. Each of the franchised 7-Eleven locations are governed by a written franchise agreement. Plaintiffs Serge Haitayan, Jaspreet Dhillon, Robert Elkins and Maninder Paul Lobana have for many years operated 7-Eleven stores in various locations in California pursuant to franchise agreements and in accordance with policies and procedures contained in 7-Eleven's Operations Manual. On October 12, 2017, the Plaintiffs filed this action against 7- Eleven and on November 1, 2017, they filed a First Amended Complaint alleging six claims against 7-Eleven, including failure to pay overtime compensation in violation of the Federal Labor Standards Act and the California Labor Code. 7-Eleven moves for judgment on the pleadings as to all of Plaintiffs' claims on the grounds that 7-Eleven is not Plaintiffs' employer. In the order, the Court concludes that the Plaintiffs have not demonstrated that 7-Eleven exercises control over their wages, hours, or working conditions and, therefore, they cannot show that an employment relationship exists. Accordingly, Judge Walter grants 7-Eleven's Motion for Judgment, and dismisses with prejudice the Plaintiffs' FAC. The parties are ordered to meet and confer and agree on a joint proposed Judgment, which is consistent with this Order and which disposes of the counterclaim filed on November 30, 2017. In light of the Court's ruling, the Plaintiffs' Motion for Conditional Class Certification and Plaintiffs' Motion for Class Certification, both of which were filed on February 7, 2018, are denied as moot. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eGlhV3mP 8POINT3 ENERGY: Violates Securities Exchange Act, Taylor Says ------------------------------------------------------------- JOHN TAYLOR, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. 8POINT3 ENERGY PARTNERS LP, CHARLES D. BOYNTON, MARK R. WIDMAR, NATALIE F JACKSON, ALEX BRADLEY, THOMAS C. O'CONNOR, NORMAN J. SZYDLOWSKI, and MICHAEL W. YACKIRA, the Defendants, Case No. 3:18-cv-01989-SI (N.D. Cal., March 31, 2018), seeks to enjoin the Defendants from holding a shareholder vote on a proposed merger transaction and taking any steps to consummate the proposed transaction unless and until material information is disclosed to 8point3 Energy's shareholders sufficiently in advance of the vote on the proposed transaction or, in the event the proposed transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. This action is brought as a class action by Plaintiff on behalf of himself and the other public holders of the Class A common shares of 8point3 Energy Partners LP against 8point3 Energy and the members of the Partnership's board of directors and together with 8point3 Energy for their violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, in connection with the proposed acquisition of 8point3 Energy, and its affiliates, by Capital Dynamics, Inc., through its affiliates and certain other co-investors. On February 5, 2018, the Board caused the Partnership to enter into an Agreement and Plan of Merger pursuant to which each common share of 8point3 Energy will be converted into the right to receive $12.35 per share. On March 19, 2018, in order to convince 8point3 Energy's shareholders to vote in favor of the Proposed Transaction, Defendants authorized the filing of a materially incomplete and misleading proxy statement with the Securities and Exchange Commission, in violation of Sections 14(a) and 20(a) of the Exchange Act. In particular, the Proxy contains materially incomplete and misleading information concerning: (i) financial projections for 8point3 Energy; (ii) the valuation analyses performed by 8point3 Energy's financial advisor, Evercore Group L.L.C., in support of its fairness opinion; (iii) information relating to the Background of the Merger; and (iv) potential conflicts of interest faced by the financial advisors. The special meeting of 8point3 Energy shareholders to vote on the Proposed Transaction is forthcoming. It is imperative that the material information that has been omitted from the Proxy is disclosed to the Partnership's shareholders prior to the shareholder vote so that they can properly exercise their corporate suffrage rights. 8point3 Energy is a growth-oriented limited partnership formed by First Solar and SunPower to own, operate and acquire solar energy generation projects.[BN] Counsel for Plaintiff: David E. Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Telephone: (213) 446 6652 Facsimile: (212) 202 7880 A.J. BOGGS: Faces "Doe" Suit in California Superior Court --------------------------------------------------------- A class action lawsuit has been filed against A.J. Boggs & Company. The case is styled as A Doe, individually and on behalf of all others similarly situated, Plaintiff v. A.J. Boggs & Company, Defendant, Case No. CGC18565456 (Cal. Super. Ct., April 3, 2018). A.J. Boggs & Company is a software company in Meridian Charter Township, Michigan.[BN] The Plaintiff appears PRO SE. A'GACI LLC: Villarreal Sues over Marketing Text Messages -------------------------------------------------------- Nilka Villarreal, individually and on behalf of all others similarly situated, the Plaintiff, v. A'GACI, LLC, the Defendant, Case No. 0:18-cv-60695-CMA (S.D. Fla., Apr. 1, 2018), seeks injunctive relief and statutory damages to halt Defendant's illegal conduct. The case is an action under the Telephone Consumer Protection Act. The Defendant is a national women's clothing and apparel retailer with 78 store-fronts in the United States. As Defendant states, "A'GACI is a lifestyle brand created for young fashion lovers who rock it well and march to their own beat." In efforts to increase the sales of its clothing and accessories from the public at large, Defendant made consumers' cellular phones constantly ring to Defendant's own beat by sending tens of thousands of illegal marketing text messages which solicited several types of discounts and promotions for future purchases of "minutes" without first obtaining express written consent to send such marketing text messages as required to do so under the TCPA. These messages were sent using mass-automated technology either directly or through a third-party company hired by Defendant to send marketing text messages on Defendant's behalf en masse. In sum, Defendant knowingly and willfully violated the TCPA, causing injuries to Plaintiff, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907 1136 Facsimile: (855) 529 9540 E-mail: jibrael@jibraellaw.com AAC HOLDINGS: June 8 Hearing on $25MM Securities Suit Settlement ---------------------------------------------------------------- UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION DR. JOSEPH F. KASPER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, AAC HOLDINGS, INC., JERROD N. MENZ, MICHAEL T. CARTWRIGHT, ANDREW W. MCWILLIAMS, and KIRK R. MANZ, Defendants. Case No. 3:15-CV-00923-JPM (Consolidated) SUMMARY NOTICE OF (I) PROPOSED SETTLEMENT AND PLAN OF ALLOCATION; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED AAC HOLDINGS, INC. ("AAC") SECURITIES BETWEEN OCTOBER 2, 2014, AND AUGUST 4, 2015 AT 9:40 A.M. (EDT) (the "Class"). YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Middle District of Tennessee, that a hearing will be held on June 8, 2018, at 9:30 a.m., before the Honorable Jon P. McCalla, United States District Judge, at the United States District Court for the Middle District of Tennessee, Nashville Division, 801 Broadway, Room 783, Nashville, TN 37203, for the purpose of determining: a) whether the proposed Settlement of the claims alleged in the above captioned securities class action ("Action") for Twenty-Five Million Dollars ($25,000,000) is fair, reasonable, and adequate and should be approved by the Court; b) whether the Action should be dismissed with prejudice against the Defendants as set forth in the Stipulation of Settlement dated February 15, 2018; c) whether the proposed Plan of Allocation is fair and reasonable and should be approved by the Court; d) whether Co-Lead Counsel's request for an award of attorneys' fees and reimbursement of litigation expenses should be approved by the Court; and e) any other relief the Court deems necessary to effectuate the terms of the Settlement. IF YOU PURCHASED AAC SECURITIES BETWEEN OCTOBER 2, 2014 AND AUGUST 4, 2015 AT 9:40 A.M. (EDT), YOUR RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION. If you have not received a detailed Notice of (I) Proposed Settlement and Plan of Allocation; (II) Settlement Hearing; and (III) Motion for Award of Attorneys' Fees and Reimbursement of Litigation Expenses ("Notice"), you may obtain copies by writing to Kasper v. AAC Holdings, Claims Administrator, c/o A.B. Data, Ltd., P.O. Box 170500, Milwaukee, WI 53217 or at www.aacsecuritiesclassaction.com. If you are a Class Member, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release by mail (postmarked no later than July 19, 2018) or submitted electronically no later than July 19, 2018, establishing that you are entitled to recovery. If you are a Class Member, you have the right to object to the Settlement, the Plan of Allocation, or the fee and expense applications, or otherwise request to be heard. To object, you may submit a written objection in accordance with the procedures described in the more detailed Notice, referred to above, and/or you may appear at the hearing described above. Any written objection must be delivered to the following postmarked no later than May 18, 2018: (a) the Clerk of the Court, United States District Court, Middle District of Tennessee, Nashville Clerk's Office, 801 Broadway, Room 800, Nashville, TN 37203; (b) Donald R. Hall, Kaplan Fox & Kilsheimer LLP, 850 Third Avenue, 14th Floor, New York, NY 10022; (c) Ramzi Abadou, Kahn Swick & Foti LLC, 206 Covington Street, Madisonville, LA 70447; and (d) Lisa R. Bugni, King & Spalding LLP, 1180 Peachtree Street NE, Atlanta, GA 30309. Note that the Court can only approve or deny the Settlement, not change the terms of the Settlement. PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR AAC REGARDING THIS NOTICE. If you have any questions about the Settlement, you may contact Co-Lead Counsel at the addresses listed below: Frederic S. Fox Donald R. Hall Jeffrey P. Campisi KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue; 14th Floor New York, NY 10022 (212) 687-1980 www.kaplanfox.com Lewis S. Kahn Ramzi Abadou KAHN SWICK & FOTI, LLC 206 Covington Street Madisonville, LA 70447 (504) 455-1400 www.ksfcounsel.com Dated: April 4,2018 By Order of the Clerk of Court United States District Court Middle District of Tennessee ACCENTCARE HOME: Faces "Lanuza" Suit in California Superior Ct. --------------------------------------------------------------- A class action lawsuit has been filed against Accentcare Home Health of California Inc. The case is styled as Magdalena Lanuza, an individual, on behalf of herself and on behalf of all persons similarly situated, Plaintiff v. Accentcare Home Health of California Inc. a California Corporation, Accentcare Inc. a Corporation and Does 1 to 50, Inclusive, Defendants, Case No. CGC18565521 (Cal. Super. Ct., April 4, 2018). AccentCare Home Health, Inc. offers home healthcare services.[BN] The Plaintiff is represented by: Norman B. Blumenthal, Esq. Blumenthal, Nordrehaug & Bhowmik 255 Calle Clara La Jolla, CA 92037-3107 Tel: (858) 551-1223 Fax: (858) 551-1232 Email: norm@bamlawca.com AFRICAN RAINBOW: Silicosis Class Action Nears Settlement -------------------------------------------------------- Miningmx reports that South African gold producers could reach a settlement regarding a lawsuit over the fatal lung disease silicosis within six weeks, according to a report by Reuters. Richard Spoor, a prominent human rights attorney who helped bring a class action on behalf of former gold mine employees suffering from the disease, said he was: ". . . confident we will finalise the settlement within six weeks". A spokesman for the working group formed by gold mining companies, the Occupational Lung Disease (OLD), concurred with Spoor, said Reuters. The settlement would need to be approved by the High Court before it was implemented. The matter had been contested in courts but the parties decided to settle outside of a formal court process. South African gold mining companies, as well as African Rainbow Minerals and Anglo American, have set aside a combined R5bn to settle the matter. On top of the R5bn that companies have made in provisions, there is R4bn available from a compensation fund to which the industry has been contributing for years, said Reuters. [GN] ALL AMERICAN WATER: Faces "Fernandez" Suit in S.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against All American Water Street Deli, Inc. The case is styled as Ilvin Omar Fernandez, individually and on behalf of others similarly situated, Plaintiff v. All American Water Street Deli, Inc. doing business as: All American Deli, Jimmy Sadonny, Nagi Nassar, Said Mohamad and Amr Saadany also known as: Amir, Defendants, Case No. 1:18- cv-02988 (S.D. N.Y., April 4, 2018). All American Water Street Deli Inc. is in the Delicatessen Stores business.[BN] The Plaintiff appears PRO SE. ALLIANCE MMA: Settles Stockholder Class Action Over 2016 IPO ------------------------------------------------------------ Alliance MMA, Inc. (Nasdaq: AMMA) on March 13 disclosed that it has agreed to settle and resolve a stockholder class action lawsuit initially filed in April 2017 against Alliance, certain of its current and former officers and directors, and the underwriter in Alliance's initial public offering completed in October 2016. The class action settlement is subject to District Court approval. If approved by the District Court, the settlement will lead to a dismissal of all claims against the defendants in the litigation. Under the terms of the settlement, the settlement amount attributable to Alliance will be covered in full by its D&O insurer. Alliance's sole financial responsibility with respect to the settlement will be to pay costs and expenses up to the policy deductible amount of $250,000, of which it has already paid $137,761 in the form of legal fees. "Given the circumstances in which Alliance found itself, we couldn't be more pleased with the outcome," said Bob Mazzeo, CEO of Alliance. "While it remains our view that Alliance did not violate any laws in conducting its initial public offering, settling this case on the terms agreed by the parties is clearly in the best interests of our stockholders." "This settlement represents a fresh start for Alliance and provides the new management team with a renewed opportunity to leverage our relationships and build strategic partnerships that we believe will help drive revenues for years to come. At the same time, we will continue implementing our plan to streamline the operation of the business and reduce our expenses as we advance toward profitability." About Alliance MMA, Inc. Alliance MMA -- http://www.alliancemma.com-- is a sports and media company that combines premier regional mixed martial arts (MMA) promotions with event ticketing, media production and talent management services. Its common stock is listed on the NASDAQ stock exchange and is the only MMA promotion company in the U.S. whose stock is publicly-traded. MMA is the world's fastest-growing sport with approximately 300 million fans worldwide, according to sports marketing research firm Repucom. Professional MMA fights are legal and regulated by state athletic commissions in all 50 states. [GN] ALLIANZ TRANSPORTATION: Ryoo Dental Sues over Unsolicited Ads ------------------------------------------------------------- RYOO DENTAL, INC. d/b/a RYOO DENTAL, individually and on behalf of all others similarly situated, the Plaintiff, v. ALLIANZ TRANSPORTATION, INC. d/b/a ATI MEDICAL WASTE and VAHRAM POLADYAN d/b/a ATI MEDICAL WASTE, the Defendants, Case No. 8:18-cv-00548 (C.D. Cal., March 31, 2018), seeks to recover damages caused by Defendant's violations of the Telephone Consumer Protection Act. On June 26, 2017, Defendants, or someone acting on their behalf, used a telephone facsimile machine, computer, or other device to send to Plaintiff's telephone facsimile machine at (714) 333-1840 an unsolicited advertisement. The Plaintiff received the Fax through Plaintiff's facsimile machine. The Fax constitutes material advertising the quality or commercial availability of any property, goods, or services. The Defendants have sent other facsimile transmissions of material advertising the quality or commercial availability of property, goods, or services to Plaintiff and to at least 40 other persons as part of a plan to broadcast fax advertisements. The transmissions of facsimile advertisements, including the Fax, to Plaintiff, lacked a notice that complied with 47 U.S.C. section. The Defendants violated the TCPA by transmitting the Fax to Plaintiff and to the Class members without obtaining their prior express invitation or permission and by not displaying the proper opt-out notice required by 47 C.F.R. section 64.1200(a)(4). The Defendants knew or should have known that (a) facsimile advertisements, including the Fax, were advertisements, (b) Plaintiff and the other Class members had not given their express invitation or permission to receive facsimile advertisements, (c) no established business relationship existed with Plaintiff and the other Class members, and (d) Defendants' facsimile advertisements did not display a proper opt-out notice.[BN] Attorneys for Ryoo Dental, Inc.: Seth M. Lehrman, Esq. EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524 2820 Facsimile: (954) 524 2822 E-mail: seth@epllc.com ALLIED INTERSTATE: Class Cert. Proceedings in "Dombrowksi" Stayed ----------------------------------------------------------------- In the lawsuit styled STEVE DOMBROWSKI, the Plaintiff, v. ALLIED INTERSTATE LLC, the Defendant, Case No. 2:18-cv-00348-WED (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order April 5, 2018 granting plaintiff's motion to stay further class certification proceedings. The Court said, "Parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class-action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=kaKpfUVx ALLIQUA BIOMEDICAL: Monteverde & Associates PC Files Class Action ----------------------------------------------------------------- Monteverde & Associates PC on March 13 disclosed that it has filed a class action lawsuit in the United States District Court for The District of Delaware, Case No. 1:18-cv-00301, on behalf of shareholders of Alliqua BioMedical, Inc., ("Alliqua" or the "Company") (NASDAQ: ALQA) who held Alliqua securities and have been harmed by Alliqua 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 sale of all or substantially all of the Company's assets, including certain assets comprising its MIST, Biovance, and Interfyl product lines (the "Purchased Assets"), to Celularity Inc. ("Celularity"). Under the terms of the asset purchase agreement (the "Agreement"), Alliqua will receive $29 million in cash for the Purchased Assets (the "Asset Consideration"). The complaint alleges that this offer is inadequate and that the Preliminary Proxy Statement on a Schedule 14A (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Proxy contains materially incomplete and misleading information concerning: (i) the valuation analyses conducted by the Company's financial advisor, Cowen and Company, LLC ("Cowen"), in support of its fairness opinion; and (ii) the background process leading up to the Agreement. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from March 13, 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 -- http://www.monteverdelaw.com-- is a boutique class action securities and consumer litigation law firm. [GN] AMERICAN HONDA: "Preston" Suit Seeks to Certify Class ----------------------------------------------------- In the lawsuit styled MICHAEL PRESTON and PENELOPE TURGEON, individually and on behalf of all others similarly situated, the Plaintiffs, v. AMERICAN HONDA MOTOR COMPANY, INC., the Defendant, Case No. 2:18-cv-00038-R-JC (C.D. Cal.), the Plaintiffs move for certification of a class of: "all persons in the State of Illinois who, (a) between May 2014 and May 2017, (b) purchased or leased a new Honda vehicle at a Honda authorized dealership in Illinois and not for purposes of resale, (c) which Honda vehicle is equipped with a P.S. Gear Box (EPS), (d) which Honda vehicle experienced a power steering malfunction attributed to rodent damage to one of the parts contained within the P.S. Gear Box (EPS) during the applicable new vehicle warranty period, and (e) Honda denied warranty coverage for the service, repairs, and/or replacement parts needed to fix the power steering malfunction." A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=sXBaZ04R The Plaintiffs are represented by: Stephanie R. Tatar, Esq. TATAR LAW FIRM, APC 3500 West Olive Avenue, Suite 300 Burbank, CA 91505 Telephone: (323) 744 1146 Facsimile: (888) 778 5695 E-mail: stephanie@thetatarlawfirm.com - and - Larry P. Smith, Esq. SMITHMARCO, P.C. 55 West Monroe St., Suite 1200 Chicago, IL 60603 Telephone: (312) 324 3532 Facsimile: (888) 418 1277 E-mail: lsmith@smithmarco.com - and - Stacy M. Bardo, Esq. BARDO LAW, P.C. 22 West Washington St., Suite 1500 Chicago, IL 60602 Telephone: (312) 219 6980 Facsimile: (312) 219 6981 E-mail: stacy@bardolawpc.com AMERIGAS PROPANE: "Jarrell" Case Settlement Wins Final Approval --------------------------------------------------------------- In the lawsuit styled JIMMIE JARRELL, the Plaintiff, v. AMERIGAS PROPANE, INC., the Defendant, Case No. 3:16-cv-01481-JST (N.D. Cal.), the Hon. Judge Jon S. Tigar entered an order on April 5, 2018, granting final approval of a proposed settlement and granting in part and denying part Plaintiff's motion for attorneys' fees, costs, and incentive award. The Plaintiff brings this wage and hour class action against the Defendant on behalf of himself and other individuals who are or have been employed by AmeriGas as service technicians. The alleged violations concern meal and rest periods, payment for on- call time and travel time, vacation pay, and accuracy of wage statements. The settlement provides for a common fund of $800,000, including: (1) payouts to class members; (2) attorneys' fees of not more than $266,640 (33.33% of the common fund); (3) litigation costs and expenses not to exceed $35,000; (4) settlement administration costs, estimated to be $20,000; (5) an incentive award to Jarrell, not to exceed $10,000; (6) a $30,000 payment to the California Labor Workforce Development Agency; and (7) payroll taxes. Class member payouts will vary based on the number of weeks each class member worked during the class period. Current employees who do not opt out will automatically receive a payout, whereas former employees must submit a claim form. The Court, however, enter a modified version of the parties' proposed judgment. The Court said the Class Representative Jimmie Jarrell is not eligible for a $10,000 incentive award. According to the Court, the Class Representative estimates that he spent "well over 40 hours" on this litigation, including "traveling to the mediation in this matter, working with attorneys, and completing tasks given to me by my lawyers." His contributions include communicating with counsel, reviewing documents, identifying potential witnesses, and "bringing certain issues that are involved in this matter to my counsel's attention, and explaining the factual background that was used to prosecute the claims in this case." Jarrell was not deposed, and he did not sign a release that was broader than those of other class members. Neither the tasks Jarrell performed nor the time he spent doing them go beyond what would be expected of any class representative. In addition, he was not a current employee during the pendency of this lawsuit and therefore did not risk retaliation by AmeriGas. An incentive award is warranted based on Jarrell's contributions to the case, but the presumptively reasonable $5,000 award is sufficient. This award is more than the average class recovery before fees, and more than double the average class recovery after fees. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=rcPtwEUJ ANDY MOHR: Sent Unsolicited Text Messages, "Thomas" Suit Claims --------------------------------------------------------------- Colin Thomas, individually and on behalf of all others similarly situated v. Andy Mohr Motors, Inc. d/b/a Andy Mohr Kia, Case No. 1:18-cv-01624 (N.D. Ill., March 5, 2018), seeks to stop Defendant's practice of sending unsolicited text messages to cellular telephones without the recipient's prior express written consent and to obtain redress for all persons injured by its conduct, including injunctive relief. Andy Mohr Motors, Inc. owns and operates an automobile dealership company located at 8789 E. US Highway 36, Avon, Indiana 46123. [BN] The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8248 E-mail: Law@StefanColeman.com ARKEMA INC: Court Certifies Two Subclasses in "Carter" Suit ----------------------------------------------------------- In the lawsuit styled ROGER D. CARTER, EDDIE DEAN HEWITT, DAVID WAYNE WARREN, RICKY LYNN WOODS, and a class others similarly situated, the PLAINTIFFS, v. ARKEMA, INC., and ARKEMA INC. RETIREMENT BENEFITS PLAN, the DEFENDANTS, Case No. 3:13-cv-01241- JHM-CHL (W.D. Ken.), the Hon. Judge Joseph H. McKinley entered an order granting certification of two subclasses: "[1] all participants in the Arkema, Inc. Retirement Benefits Plan, at any time from January 1, 1988 to the present, who were employed by Arkema, Inc. or its predecessors at Arkema's Carrollton, Kentucky plant, and whose initial service dates were "adjusted" to the first day of the month next following their attainment of 25 years of age"; and "[2] all participants in the Arkema, Inc. Retirement Benefits Plan, at any time from January 1, 1988 to the present, who were employed by Arkema, Inc. or its predecessors at Arkema's Carrollton, Kentucky plant, and who are eligible (or may become eligible) for the Rule of 85 due to termination of employment after reaching the age of 55 and 30 years of service". The Court said, "Subclass 1 is certified as to Count I of the amended complaint, and Subclass 2 is certified as to Count II of the amended complaint. Rule 23(c)(2)(A) states that the Court may direct appropriate notice to a class but is not required to do so. Neither party has asked the Court to direct notice to the subclass members. Therefore, the Court will not direct notice to the subclasses at this time. Rule 23(g)(1) requires the Court to appoint class counsel. The Court must consider the work counsel has done in identifying or investigating potential claims in the action, counsel's experience in handling class actions, counsel's knowledge of the applicable law, and the resources counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A). The Court may also consider counsel's ability to fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(g)(1)(B). David Leightty, counsel for the plaintiffs has provided his resume to the Court, and the Court is satisfied that he, along with Alison Messex, meet the requirements of Rule 23(g)(1). Therefore, the Court appoints them as counsel for the class." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=IHclJviv ARS NATIONAL: Brown Alleges Wrongful Debt Collection Practices -------------------------------------------------------------- DAYO BROWN, on behalf of himself and all other similarly situated consumers, the Plaintiff, v. ARS NATIONAL SERVICES, INC., the Defendant, Case No. 2:18-cv-01058-CDJ (E.D. Pa., March 12, 2018), seeks to recover damages arising from Defendant's violations of the Fair Debt Collection Practices Act. According to the complaint, on a date better known by Defendant, Plaintiff incurred a debt through the use of a credit card for personal, familial, and household use. On or around April 25, 2017, Defendant, in an attempt to collect on the debt, sent Plaintiff a letter. The letter provides a 30-day notice language required by the FDCPA in the second paragraph. The third paragraph of the letter describes in detail a settlement offer. The fourth paragraph states, "There are other payment options available." It then proceeds to list the options for payment, including online, by phone, Western Union, Moneygram, and regular mail. The final paragraph states, "Please call us at (800) 976- 0960 with any questions or to discuss all your payment options." The letter is confusing and misleading because it suggests multiple options for the consumer to communicate with the debt collector in order to dispute the debt. Specifically, by supplying the phone number and asking the consumer to call "with any questions" the least sophisticated consumer would not know that a dispute must be in writing and may take the easier option of disputing the claim by phone. ARS offers accounts receivable management services. It caters to financial services organizations; banks; and credit card companies. The company is based in Escondido, California.[BN] The Plaintiffs are represented by: Nichlolas Linker, Esq. ZEMEL LAW LLC 78 John Miller Way, Suite 430 Kearny, NJ 07032 Telephone: (862) 227 3106 E-mail: nl@zemellawllc.com BANK OF THE WEST: "Meller" Suit Seeks OT Compensation under FLSA ---------------------------------------------------------------- MARIA MELLER, DEBRA ANDERSON, CYNTHIA PASH, and EDDIE CAPOVILLA, on behalf of themselves and classes of those similarly situated, the Plaintiffs, v. BANK OF THE WEST, the Defendant, Case No. 3:18-cv-00033-JAJ-RAW (S.D. Iowa, March 29, 2018), seeks to recover overtime compensation for Plaintiffs and their similarly situated co-workers who worked as Customer Service Managers at Bank of the West branch locations in the United States, under Fair Labor Standards Act. The Defendant has more than $600 billion in assets and more than 600 bank branch locations in 19 different states. The Defendant employed CSMs, such as Plaintiffs and others similarly situated, at Bank of the West branch locations nationwide. All of the work that Plaintiffs and the FLSA Collective have performed has been assigned by Defendant, and/or Defendant has been aware of all of the work that Plaintiffs and the FLSA Collective have performed. As part of its regular business practice, Defendant has intentionally, willfully, and repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to Plaintiffs and the FLSA Collective. This policy and pattern or practice includes, but is not limited to willfully failing to pay Plaintiffs and the members of the FLSA Collective overtime wages for hours that they worked in excess of 40 hours per workweek Defendant is aware or should have been aware that federal law. The Plaintiffs and the FLSA Collective all performed the same primary duty. Defendant's unlawful conduct has been widespread, repeated, and consistent.[BN] Attorneys for Plaintiffs and proposed Collective and Class Members: Dorothy A. O'Brien, Esq. O'BRIEN & MARQUARD, P.L.C. 2322 E. Kimberly Road Ste. 100E Davenport, IA 52807 Telephone: (563) 355 6060 Facsimile: (563) 355 6666 E-mail: dao@emprights.com - and - Justin M. Swartz, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245 1000 Facsimile: (212) 977 4005 E-Mail: jms@outtengolden.com - and - Gregg I. Shavitz, Esq. Paolo Meireles, Esq. SHAVITZ LAW GROUP, P.A. 1515 South Federal Highway, Suite 404 Boca Raton, FL 33432 Telephone: (561) 447 8888 Facsimile: (561) 447 8831 E-mail: gshavitz@shavitzlaw.com pmeireles@shavitzlaw.com BASF CATALYSTS: Faces "Williams" Suit in N.D. Ohio -------------------------------------------------- A class action lawsuit has been filed against BASF Catalysts LLC. The case is styled as Kimberlee Williams, Nancy Pease, Marilyn L. Holley, Donna Ware, Donnette Wengerd and Rosanne Chernick, individually and on behalf of all other persons similarly situated, Plaintiffs v. BASF Catalysts LLC, Cahill Gordon & Reindel LLP, Cahill Gordon & Reindel, Thomas D. Halket, Arthur A. Dornbusch, II, Glenn Hemstock, Howard G. Sloane also known as: Peter Sloane, Ira J. Dembrow, Scott A. Martin, John Doe Business Entities 1-200, John Doe Lawyers 1-500 and John Doe 1-500, Defendants, Russ Smith Law, Robert E. Sweeney Company and LPA, Defendants/Movants, Case No. 1:18-mc-00033-DCN (N.D. Ohio, April 3, 2018). BASF Catalysts LLC develops and produces environmental and process catalysts for customers worldwide.[BN] The Plaintiffs is represented by: Christopher M. Placitella, Esq, Cohen, Placitella & Roth - Red Bank 127 Maple Avenue Red Bank, NJ 07701 Tel: (732) 747-9003 Fax: (732) 747-9004 Email: cplacitella@cprlaw.com - and - Harry Roth, Esq. Cohen, Placitella & Roth 127 Maple Avenue Red Bank, NY 07701 Tel: (732) 747-9003 - and - Jared M. Placitella, Esq. Cohen, Placitella & Roth 127 Maple Avenue Red Bank, NJ 07701 Tel: (732) 747-9003 Email: jmplacitella@cprlaw.com - and - Michael Coren, Esq. Cohen, Placitella & Roth-Philadelphia 2001 Market Street, Ste. 2900 Philadelphia, PA 19103 Tel: (215) 567-3500 Fax: (215) 567-0619 Email: mcoren@cprlaw.com The Defendants are represented by: John R. Mitchell, Esq. Thompson Hine - Cleveland 3900 Key Tower 127 Public Square Cleveland, OH 44114 Tel: (216) 566-5847 Fax: (216) 566-5800 Email: john.mitchell@thompsonhine.com - and - Angelo A. Stio , III, Esq. Pepper Hamilton LLP 301 Carnegie Center, Suite 400 Princeton, NJ 08543 - and - Barry Boise, Esq. Pepper Hamilton - Philadelphia 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103 Tel: (215) 981-4000 - and - Nina M. Gussack, Esq. Pepper Hamilton - Philadelphia 3000 Two Logan Square Eighteenth & Arch Streets Philadelphia, PA 19103 Tel: (215) 981-4000 Fax: (215) 981-4756 Email: gussackn@pepperlaw.com - and - Eric Tunis, Esq. Greenbaum, Rowe, Smith & Davis 99 Wood Avenue South Iselin, NJ 08830 Tel: (732) 476-2676 Fax: (732) 475-2677 - and - John A. Boyle, Esq. Marino Tortorella & Boyle 437 Southern Blvd. Chatham, NJ 07928 - and - Kevin Marino, Esq. Marino Tortorella & Boyle 437 Southern Blvd. Chatham, NJ 07928 The Movants are represented by: Anthony Gallucci, Esq. Kelley & Ferraro 1300 Ernst & Young Bldg. 950 Main Avenue Cleveland, OH 44113 Tel: (216) 575-0777 Fax: (216) 575-0799 Email: agallucci@kelley-ferraro.com - and - Kevin E. McDermott, Esq. McDermott & Hickey 2639 Wooster Road, Ste. 203 Rocky River, OH 44116 Tel: (216) 712-7452 Fax: (440) 356-2873 Email: kevin.mcdermott@kmcdermottlaw.com BLUE BUFFALO: Shumaker Balks at Merger Deal with General Mills -------------------------------------------------------------- WILLIAM SHUMAKER, individually and on behalf of all others similarly situated, the Plaintiff, v. BLUE BUFFALO PET PRODUCTS, INC., WILLIAM BISHOP, BILLY BISHOP, PHILIPPE AMOUYAL, EVREN BILIMER, RAYMOND DEBBANE, MICHAEL A. ECK, FRANCES FREI, AFLALO GUIMARAES, AMY SCHULMAN, GENERAL MILLS, INC., and BRAVO MERGER CORP., the Defendants, Case No. 3:18-cv-00535-MPS (D. Conn., March 29, 2018), contends that the merger deal between Blue Buffalo Pet Products, Inc., and General Mills, Inc. and Bravo Merger Corp. is the result of an unfair process for an unfair price. The lawsuit seeks to enjoin the consummation of the proposed all-cash transaction, which is valued at approximately $8.0 billion. The terms of the Proposed Transaction were memorialized in a February 23, 2018 filing with the Securities and Exchange Commission on Form 8-K attaching the definitive Agreement and Plan of Merger. Under the terms of the Merger Agreement, Blue Buffalo will become an indirect wholly-owned subsidiary of General Mills, and Blue Buffalo stockholders will receive $40.00 per share in cash for each share of Blue Buffalo common stock they own. Thereafter, on March 19, 2018, Blue Buffalo filed a Preliminary Information Statement on Schedule Prem14C with the United States Securities and Exchange Commission in support of the Proposed Transaction. Blue Buffalo is, by its own admission, a controlled company, with approximately 55% of its outstanding stock owned by either equity funds associated with Invus, L.P., a longtime financial investor in the Company, or by members of the Bishop family, the founders of the Company. According to the complaint, this clear conflict of interest between the Majority Stockholders who control the Company and Plaintiff and other minority holders has most definitely played a role in the failure to ensure an adequate process and has trampled on the rights of Plaintiff and other Company stockholders. The Proposed Transaction is unfair and undervalued for a number of reasons. Significantly, the Majority Stockholders have pledged all such shares in a support agreement to vote in favor of the Proposed Transaction; no vote of any minority shareholders is required to consummate the Proposed Transaction. Furthermore, as is made clear in the Preliminary Information Statement, the Company does not intend for any such vote to take place. Rather, the Proposed Transaction can be consummated at any moment. Despite engaging in a several month sales process, the Board did not engage in any effort whatsoever to perform any type of market check for potentially interested third parties, at any point in the process. Moreover, the Board did not even require a go-shop period, accepting, instead, a weak "window shop" period of 30 days. Instead, the Board has entered into the Proposed Transaction to procure for themselves and senior management of the Company significant and immediate benefits with no thought to the Company's public stockholders. For instance, pursuant to the terms of the Merger Agreement, upon the consummation of the Proposed Transaction, Company Board Members and executive officers will be able to exchange all Company equity awards for the merger consideration. Moreover, certain Directors and other insiders will also be the recipients of lucrative change-in-control agreements, triggered upon the termination of their employment as a consequence of the consummation of the Proposed Transaction. The lawsuit also notes Defendant Billy Bishop, CEO of Blue Buffalo, negotiated not only retention of employment with the surviving entity, but a substantial pay raise as well, all while negotiations to achieve the best possible deal for the stockholders of the Company should have been happening. Defendants breached their fiduciary duties to the Company's stockholders by agreeing to the Proposed Transaction which undervalues Blue Buffalo and is the result of a flawed sales process. As part of such a process, the Board and Company agreed to an onerous and preclusive no solicitation clause, that, after a short 30-day "window shop period", the Company cannot terminate the Proposed Transaction should a third party offer a deal that the Board considers to be a superior offer. This is particularly prejudicial given the lack of any actual market check prior to the Merger Agreement being signed. In violation of sections 14(a) and 20(a) of the Securities and Exchange Act of 1934, and in violation of their fiduciary duties, Defendants caused to be filed the materially deficient Preliminary Information Statement on March 19, 2018 with the SEC. The Preliminary Information Statement is materially deficient and deprives Blue Buffalo stockholders of the information they need to make an intelligent, informed and rational decision of whether to seek appraisal of their shares in lieu of the consideration offered under the terms of the Proposed Transaction. The Preliminary Information Statement omits and/or misrepresents material information concerning, among other things: (a) the sales process leading up to the Proposed Transaction; (b) the financial projections for Blue Buffalo, provided by Blue Buffalo's management to the Company's financial advisors J.P. Morgan Securities LLC and Centerview Partners LLC for use in its financial analyses; and (c) the data and inputs underlying the financial valuation analyses that purport to support the fairness opinions provided by the Company's financial advisors, J.P. Morgan and Centerview. Blue Buffalo Pet Products, Inc., through its subsidiary, Blue Buffalo Company, Ltd., operates as a pet food company in the United States, Canada, Japan, and Mexico.[BN] Attorneys for Plaintiff: Nicole A. Veno, Esq. LAW OFFICE OF NICOLE A. VENO, LLC 573 Hopmeadow Street Simsbury, CT 06070 Telephone: (860) 474 4024 Facsimile: (860) 717 3207 E-mail: nveno@venolaw.com - and - Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Ste. 510 Bala Cynwyd, PA 19004 Telephone: (610) 667 6200 Facsimile: (610) 667 9029 E-mail: esmith@brodskysmith.com mackerman@brodskysmith.com BRIJON MANAGEMENT: Faces ERISA Class Action ------------------------------------------- Todd D. Wozniak, Esq. -- wozniakt@gtlaw.com -- of Greenberg Traurig LLP, in an article for Lexology, reports that in Wema Hoover v. Brijon Management & Employee Leasing Services, et al., Case No. 3:14-cv-05786-MAS-DEA (D. N.J.), a former employee of Brijon Management & Employee Leasing Services, Inc. (Brijon) and a participant in the Employee Stock Ownership Plan (ESOP) sponsored by Brijon filed a class action complaint alleging that Brijon, its former Chief Executive Officer (CEO), and others violated ERISA when they approved the ESOP's sale of 100 percent of Brijon's stock to Defendant CarolBri, LLC (CarolBri), an entity partially owned by Brijon's former CEO, for an amount that plaintiff alleged was less than the fair market value of the stock. The plaintiff's stock valuation expert claimed that the fair market value of Brijon's stock at the time of the sale was $5.93 million. Defendants' expert opined that the amount the ESOP received for the stock actually exceeded the fair market value of Brijon's stock. Given that any liability rested, if at all, on the valuation of Brijon's stock, the parties agreed to a settlement in which the class and the parties would be bound by the findings of a neutral valuation expert who would be appointed as a Special Master by the court. The case would then be certified as a no opt-out class action under Rule 23(b)(1) and all clams of all class members would be extinguished. After reviewing the submissions of the parties and their experts, the Special Master determined that the ESOP received at least fair market value for Brijon's stock. Those findings resulted in the release and dismissal of all individual and class claims asserted in the case with Defendants paying nothing to either the class members or to Plaintiff's counsel. The motion to approve the class action settlement, to certify the case as a no opt-out class action, and to dismiss with prejudice all claims was approved by the court in October 2017, after it found that the settlement was fair, reasonable, and adequate under the circumstances. Although this approach may not be suitable in all ESOP class action cases, ESOP class action cases often turn on the valuations performed of the plan sponsor or its stock and the parties may only dispute a couple of key valuation issues. In those circumstances, having a neutral stock valuation expert determine the fate of the case should be considered, as opposed to a federal judge who may have very limited experience with valuation issues and the complexities involved. Greenberg Traurig represented the main defendants in the Hoover case. GT Shareholders Kristine Feher, Todd Wozniak, and Practice Group Attorney Lindsey Reagan Camp led the defense. [GN] BUFFALO WILD: "Meeks" Suit Transferred to C.D. California --------------------------------------------------------- The class action lawsuit titled Marche Meeks, on behalf of himself and others similarly situated, the Plaintiff, v. Buffalo Wild Wings Inc., a Minnesota corporation; Blazin Wings, Inc., a Minnesota corporation; Yelp Inc., a Delaware corporation; and Nowait, Inc., a Delaware corporation, the Defendants, and Wingmen V, LLC, a Washington limited liability company, the Respondent, Case No. 4:17-cv-07129, was transferred from the U.S. District Court for the Northern District of California, to the U.S. District Court for the Central District of California (Western Division - Los Angeles) on April 4, 2018. The Central District Court Clerk assigned Case No. 2:18-cv-02673-PA-AS to the proceeding. The case is assigned to the Hon. Judge Percy Anderson. Buffalo Wild Wings is an American casual dining restaurant and sports bar franchise in the United States, Canada, Mexico, the Philippines, the United Arab Emirates, Saudi Arabia, Oman, and India which specializes in Buffalo wings and sauces.[BN] Attorneys for Marche Meeks on behalf of himself and others similarly situated: Justin Kachadoorian, Esq. Alexandria Rose Kachadoorian, Esq. Anthony J Orshansky, Esq. COUNSELONE, PC 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277 9945 Facsimile: (424) 277 3727 E-mail: justin@counselonegroup.com alexandria@counselonegroup.com anthony@counselonegroup.com Attorneys for Buffalo Wild Wings Inc. and Blazin Wings, Inc.: Anahit Tagvoryan, Esq. Harrison Maxwell Brown, Esq. Safia G. Hussain, Esq. BLANK ROME LLP 2029 Century Park East 6th Floor Los Angeles, CA 90067 Telephone: (424) 239 3400 Facsimile: (424) 239 3434 E-mail: atagvoryan@blankrome.com hbrown@blankrome.com shussain@blankrome.com Attorneys for Yelp Inc. and Nowait, Inc.: Brian Adair Sutherland, Esq. Ashley Lynn Shively, Esq. REED SMITH LLP 101 Second Street, Suite 1800 San Francisco, CA 94105 Telephone: (415) 543 8700 Facsimile: (415) 391 8269 E-mail: bsutherland@reedsmith.com ashively@reedsmith.com Attorneys for Wingmen V, LLC: Christine Marie Reilly, Esq. Kristin Emily Haule, Esq. MANATT PHELPS & PHILLIPS LLP 11355 W Olympic Blvd Los Angeles, CA 90064-1656 Telephone: (310) 312 4237 E-mail: creilly@manatt.com khaule@manatt.com BUFFALO WILD: Judge Dismisses Vegetarian Customers' Class Action ---------------------------------------------------------------- Lawrence I. Weinstein, Esq. and Tiffany Woo, Esq., of Proskauer Rose LLP, in an article for The National Law Review, wrote that recently, a federal district court judge in the Southern District of New York dismissed claims asserted under New York General Business Law Sec. 349 on behalf of a putative class of vegetarian customers of Buffalo Wild Wings. The court's decision found that although the plaintiff had standing to bring her claims, her allegations did not point to an "actual injury" sufficient to state a claim under section 349. Plaintiff has appealed. The complaint in Borenkoff v. Buffalo Wild Wings, 2018 WL 502680 (S.D.N.Y. Jan. 19, 2018) alleged that defendant uses beef tallow to fry non-meat food items like mozzarella sticks and french fries, whereas the "industry standard" is to use non-beef cooking oil to fry such items. According to plaintiff, a reasonable consumer would not expect non-meat items to be fried in beef tallow. Buffalo Wild Wings' failure to include beef tallow among the listed menu ingredients for its non-meat food items therefore allegedly constituted a "material misrepresentation and omission" under section 349. Plaintiff claimed she would not have ordered or consumed the mozzarella sticks and fries had she known they were prepared using beef tallow. In evaluating defendant's motion to dismiss, Judge Katherine Forrest found that injury had been adequately pled for Article III standing purposes, but not for the purpose of stating a claim under section 349. The key to the court's decision was Second Circuit authority holding that an alleged injury sufficient for Article III standing "need not be capable of sustaining a valid cause of action." As for Article III standing, the court held that a plaintiff must allege a "concrete and particularized" "injury in fact." The court found that the injury in fact plaintiff pled--that plaintiff would not have purchased the food if she had known it was fried using beef tallow--was a "pure economic injury" in which her claimed damages were the amount of money she paid for the food. The court noted that numerous courts, including the Third and Fifth Circuits, have found similar allegations insufficient to confer standing without any further allegation that the food items received were defective in some way, or objectively worth less than the amount plaintiff paid. As the court put it, "Borenkoff paid for french fries and mozzarella sticks, and that is ultimately what she received." But in light of Second Circuit authority, and despite expressing "serious reservations," the court found plaintiff's alleged injury in fact sufficiently "concrete and particularized" to confer standing. Nonetheless, the court found plaintiff's alleged injury insufficient to state a claim under section 349. Judge Forrest noted that under New York law, "the loss of the purchase price of an item," standing alone, does not satisfy the "actual injury" element of a section 349 claim. See, e.g., Small v. Lorillard Tobacco, 94 N.Y.2d 43, 55-56 (N.Y. 1999). The court found that plaintiff needed to show more to state a section 349 claim--e.g., that the food she received harmed her, that the food was defective in some way, or that the price of the food was inflated as a result of using beef tallow. As plaintiff had not made such further allegations, the court dismissed the section 349 claim. In addition, the court also dismissed plaintiff's unjust enrichment claim as merely "duplicative" of the section 349 claim. [GN] BULLDOG SQUARE: Orozco Seeks Minimum Wages, OT under Labor Code --------------------------------------------------------------- FERNANDO OROZCO, an individual, individually 0n behalf of himself and all others similarly situated under the Private Attorney General Act (PAGA) pursuant to Labor Code section 2698, et seq., the Plaintiff, v. BULLDOG SQUARE, INC, a California Corporation, dba BULLDOG TOWING SERVICE; RICHARD MCCRACKEN, an individual, dba 76 TOWING; KEVIN MCCRACKEN, an individual; and DOES 1-50, the Defendant, Case No. 18CECG01105 (Cal. Super. Ct., April 4, 2018), seeks to recover full restitution and compensation for unpaid wages including minimum wages and overtime premiums, pena1ties, liquidated damages, and interest under the California Labor Code. According to the complaint, the Defendants operate two coordinated towing businesses, located in Fresno, California (Fresno County), which are most commonly known as "Bulldog Towing" and "76 Towing". The Plaintiff was "on call" for both Bulldog and 76 Towing for several 24-hour shifts, and making himself available to respond at a moment's notice to emergency calls throughout Fresno County, California. Plaintiff carried two cell phones, reported to accidents, carried two uniforms, etc., and was required to be ready for either entity, to be able t0 respond to a call within 25 minutes of dispatch in the appropriate truck and uniform. He was not paid for this on-call time. During this on-call time, he was under the control of the employer(s), including being suffered and permitted t0 work, which should be treated as hours worked. As a result of being on-call, Plaintiff was required to work in excess eight hours in a work day or 40 hours in workweek, but was not paid for overtime, double time, or minimum wages. Defendants' piece rate compensation system did not properly compensate Plaintiff for all hours worked, nor did Defendants treat this "on-call" time as hours worked. As a result, Plaintiff also never received a complete or accurate paystub, in violation of Labor Code section 226, and the applicable IWC Wage Order. The Plaintiff's wages were tied to commissions (i.e. a piece rate), but Defendants failed t0 account for all hours worked during authorized rest breaks and non-productive time, nor was Plaintiff paid for this time. Plaintiff s non-productive time included, but is not limited to: pre- and post- trip inspections of the tow truck; maintaining and cleaning the company tow trucks; gassing up the tow trucks; training new hires on company procedure; filling out paperwork on behalf of Defendants; and other tasks not directly tied to the piece rate. The Defendants did not have a piece-rate compensation system that pays for non-productive time, nor did Defendants track this time.[BN] The Plaintiff is represented by: Michael J.F. Smith, Esq. John L. Migliazzo, Esq. MICHAEL J.F. SMITH, A PROFESSIONAL CORPORATION 1391 West Shaw Avenue, Suite D Fresno, CA 93711 Telephone: (559) 229 3900 Facsimile: (559) 229 3903 CALIFORNIA: Oroville Dam Class Action Transferred to Sacramento --------------------------------------------------------------- Risa Johnson, writing for OrovilleMR News, reports that a change of venue request from Butte County to Sacramento County has been granted for plaintiffs in the first class action lawsuit filed against DWR for the Oroville Dam crisis. Attorneys, on behalf of plaintiffs in a class action lawsuit filed in August against the state Department of Water Resources, asked for the change in September and got final approval on March 7. McNicholas & McNicholas, a Los Angeles-based trial firm, along with Frantz Law Group are representing Butte County residents Francis Bechtel, Jacob Klein, Denise Johnson, Chantel Ramirez and the proposed group of 188,000 residents downstream ordered to evacuate their homes on Feb. 12, 2017. The stipulation to transfer was originally approved by Judge Michael Candela in January but held up because the Sacramento County Superior Court did not receive the small processing fee required from McNicholas & McNicholas. The lawsuit, filed before the release of the forensic report in January, alleged insufficient maintenance and repairs and faulty design led to the crisis. The forensic investigation corroborated that these were factors. The complaint also cast blame on the department's decision to not armor the emergency spillway, although environmental groups including Friends of the River pointed out in 2005 the danger of leaving it as is. The groups continue to advocate for fully lining the emergency spillway, which DWR has yet to commit to. However, the department is installing an underground erosion cutoff wall and a concrete splash pad, to deter erosion if the spillway were to be used again. No estimation of damages was listed in the lawsuit. Plaintiffs named in the suit claim decreases in property value, fear about the potential for future dam failures and stigma now associated with the city. Lawyers have demanded a jury trial. A separate class action complaint was filed Feb. 8 against DWR on behalf of several local business owners and a couple of property owners claiming losses in property value following the spillway crisis. Alleged damages ranged from $3,000 to $500,000. The proposed classes include a diminution class to represent property owners who saw property values decrease, a property loss class for those who suffered real or personal property damage of $100,000 or less and also a business loss class. [GN] CAMDEN PROPERTY: Suarez Seeks to Certify 2 Classes -------------------------------------------------- In the lawsuit styled JORGE SUAREZ, the Plaintiff, v. CAMDEN PROPERTY TRUST, CAMDEN DEVELOPMENT, INC. and CSP COMMUNITY OWNER, LP f/k//a CSP COMMUNITY OWNER, LLC, d/b/a CAMDEN WESTWOOD, the Defendants, Case No. 5:17-cv-00124-D (E.D.N.C.), the Plaintiff moves the Court for an order to certify Classes: The Initial Collection Letter Class: "all natural persons who (a) at any point within the four (4) year period preceding the filing of Plaintiff's Complaint and during its pendency (b) resided in any of the properties in North Carolina owned and operated by Defendants and (c) were sent an Initial Collection Letter that (d) threatens to charge Filing & Service Fees and Attorneys' Fees if such persons do not make a complete rental payment after the 15th of the month." The Fee Class: "all natural persons who (a) at any point within the four (4) year period preceding the filing of Plaintiff's Complaint and during its pendency (b) resided in any of the properties in North Carolina owned and operated by Defendants and (c) were charged and (d) actually paid Filing & Service Fees and Attorneys' Fees without a North Carolina court awarding such Filing & Service Fees and Attorneys' Fees to Defendants." Excluded from the classes are: (a) any Judge or Magistrate presiding over this action and members of their families; (b) Camden and any entity which Camden has a controlling interest or which has a controlling interest in Camden and all legal representatives; (c) all persons who properly execute and file a timely request for exclusion from the classes. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=toVX3bPI Attorneys for Jorge Suarez: Scott C. Harris, Esq. Patrick M. Wallace, Esq. WHITFIELD BRYSON & MASON LLP 900 W. Morgan Street Raleigh, NC 27603 Telephone: (919) 600 5000 Facsimile: (919) 600 5035 E-mail: scott@wbmllp.com pat@wbmllp.com - and - Edward H. Maginnis, Esq. Karl S. Gwaltney, Esq. MAGINNIS LAW, PLLC 4801 Glenwood Avenue, Suite 310 Raleigh, NC 27612 Telephone: (919) 526 0450 Facsimile: (919) 882 8763 E-mail: emaginnis@maginnislaw.com kgwaltney@maginnislaw.com CAMPBELL SOUP: Deceptively Packaged Products, Sims Claims --------------------------------------------------------- HORTENSE SIMS, on behalf of herself and all others similarly situated, the Plaintiff, v. CAMPBELL SOUP COMPANY, a New Jersey Corporation; and Y&R, a New York Corporation, the Defendants, Case No. 5:18-cv-00668 (C.D. Cal., April 4, 2018), seeks an order compelling Defendants to, inter alia: (1) cease packaging, distributing, advertising and selling the Products in violation of California law; (2) re-label or recall all existing deceptively packaged Products; (3) conduct a corrective advertising campaign to fully inform California consumers; (4) award Plaintiff and other Class-members restitution, actual damages, and punitive damages; and (5) pay all costs of suit, expenses, and attorney fees. According to the complaint, the Defendants manufacture, package, distribute, advertise, market, and sell fruit-flavored beverage products under the trade name "V8 Splash (TM)". These Products are all falsely advertised in California. First, the Products' labels convey to the consumer that these are healthy, natural beverages, brimming with healthful fruit and vegetable juices. This is simply false. The Products consist of water and corn syrup with minimal amounts of reconstituted carrot juice and 2% or less of the juice of all the fruits and berries the Products are named for combined. The Defendant's "Berry Blend" Product, for example, contains less than 2% of the juice of all of the berries shown on its label, combined. The Defendant's "Strawberry Kiwi" Product contains less than 2% of the juices of kiwi fruit and strawberries combined. The Defendants cover up the near-absence of actual fruit juice in the Products by instead adding artificial flavoring but conceal this fact from consumers. The Products are labeled as if they are flavored only with natural ingredients when in fact the Products are artificially flavored. Defendants' packaging, labeling, and advertising scheme is intended to give consumers the impression that they are buying a premium, 'all natural' product with natural flavoring ingredients instead of a product that is artificially flavored. The Plaintiff, who was deceived by Defendants' unlawful conduct and purchased one or more of the Products multiple times in California during the proposed Class Period, brings this action, on her own behalf and on behalf of California consumers similarly situated, to remedy Defendant's unlawful acts.[BN] Attorneys for Plaintiff and the Proposed Class: Ronald A. Marron, Esq. Michael T. Houchin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696 9006 Facsimile: (619) 564 6665 E-mail: ron@consumersadvocates.com mike@consumersadvocates.com CAPGEMINI NORTH: Two Subclasses Certified in "Bhattacharya" Suit ---------------------------------------------------------------- The Hon. Matthew F. Kennelly denies the Plaintiffs' motion for class certification without prejudice in part (with respect to count 1) and grants it in part (with respect to counts 2 through 4) in the lawsuit titled PRANAV BHATTACHARYA and NAVANEETHA KOOTHAPILLAI, individually and for all others similarly situated v. CAPGEMINI NORTH AMERICA, INC., CAPGEMINI FINANCIAL SERVICES USA, INC., and PETER KORNOWSKE, Case No. 1:16-cv-07950 (N.D. Ill.). The Court certifies these subclasses: Subclass one: All current and former Indian national employees who elected coverage under defendants' group health plan, together with their spouses, from August 8, 2014 to the date of judgment in this action, who were not provided written notice of their COBRA rights at the time of commencement of coverage under the plan; and Subclass two: All current and former Indian national employees who elected coverage under defendants' group health plan, together with their spouses and other covered dependents and who were not provided notice of COBRA continuation coverage upon loss of coverage under Capgemini FS's group health plan as a result of a "transfer" from Capgemini FS to Capgemini India from August 8, 2014 to the date of judgment in this action. Pranav Bhattacharya and Navaneetha Koothapillai have filed suit against Capgemini Financial Services USA, Inc. (now known as Capgemini America, Inc.), its parent company Capgemini North America, Inc., and Peter Kornowske, a former Capgemini Financial Services USA employee, for alleged violations of the Employee Retirement Income Security Act, as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985. The Plaintiffs, who were employed by Capgemini Financial Services USA, have asserted four claims arising from the Defendants' alleged failure to comply with a number of ERISA and COBRA requirements related to group health plans and continuation coverage. Bhattacharya and Koothapillai are appointed as class representatives, and their current counsel are appointed as class counsel. The Court defers ruling on the parties' pending cross- motions for summary judgment to allow time for class members to receive notice of the action and to avoid running afoul of the rule against one-way intervention. The case was set for an in-person status hearing last March 28, 2018, at 9:30 a.m. The Court expected the parties, before that date, to discuss and attempt to agree upon a proposed class notice or notices and to work on compiling a list of appropriate notice recipients. A copy of the Memorandum Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=CO3VNio5 CAPEX OILFIELD: "Adams" Suit Seeks Overtime Wages under FLSA ------------------------------------------------------------ ZACH ADAMS, individually and on behalf of all others similarly situated, the Plaintiff, v. CAPEX OILFIELD SERVICES, INC., the Defendant, Case No. 2:18-cv-00323 (W.D. Pa., March 12, 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. Capex provides oilfield services and rental equipment to the energy industry. Capex operates throughout the United States, including in Pennsylvania and Ohio. To carry out its work, Capex employed Plaintiff and other workers like him and typically scheduled them for 12-hour shifts, seven days a week, for weeks at a time. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. The Defendant paid these workers a daily rate with no overtime pay and classified them as independent contractors.[BN] The Plaintiff is represented by: Andrew W. Dunlap, Esq. Michael A. Josephson, Esq. Jennifer M. Solak, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352 1100 Facsimile: (713) 352 3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com jsolak@mybackwages.com - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Telephone: (412) 766 1455 Facsimile: (412) 766 0300 E-mail: josh@goodrichandgeist.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877 8788 Facsimile: (713) 877 8065 E-mail: rburch@brucknerburch.com CAPITAL MANAGEMENT: Faces "Clemons" Suit in S.D. Texas ------------------------------------------------------ A class action lawsuit has been filed against Capital Management Services. The case is styled as Brasher Clemons, individually and on behalf of all others similarly situated, Plaintiff v. Capital Management Services and John Does 1-25, Defendants, Case No. 4:18-cv-01073 (S.D. Tex, April 4, 2018). Capital Management Services L.P., a collections agency, provides delinquent receivables resolutions. It monitors and tracks debt collection laws, state licensing, company profile, and client contractual expectations.[BN] The Plaintiff is represented by: Jonathan David Kandelshein, Esq. The Law Office of Jonathan Kandelshein 18208 Preston Rd, Ste D-9 No. 256 Dallas, TX 75252 Tel: (646) 753-0149 Email: Jonathan.kandelshein@gmail.com CELLULAR SALES: Prall Sues over Autodialed Telemarketing Calls -------------------------------------------------------------- TRAVIS PRALL, on behalf of himself and all others similarly situated, the Plaintiffs, v. CELLULAR SALES OF KNOXVILLE, INC., the Defendant, Case No. 3:18-cv-00136 (E.D. Tenn., March 29, 2018), seeks award of statutory damages resulting from Defendant's practice of placing autodialed telemarketing calls to individuals in the absence of prior express written consent, and in the absence of any "do not call" policy or training, in violation of two separate provisions Telephone Consumer Protection Act. According to the complaint, despite not having such a policy or conducting this training, as required by law prior to making telemarketing calls, Defendant has placed numerous autodialed calls to Plaintiff's cellular telephone. The Plaintiff has had no contact with Defendant, done no business with Defendant, and has never provided Defendant prior express written consent to place calls to his cellular telephone. Cellular Sales Of Knoxville, Inc. operates a network of Verizon Wireless retail stores in the United States. It offers various phones and devices, including basic phones, smartphones, tablets, and mobile hotspot Internet devices; and accessories, such as cases and protections, batteries and chargers.[BN] The Plaintiff is represented by: Jeremy M. Glapion, Esq. THE GLAPION LAW FIRM, LLC 1704 Maxwell Drive Wall, New Jersey 07719 Telephone: (732) 455 9737 Facsimile: (732) 709 5150 E-mail: jmg@glapionlaw.com CLEVELAND MEDICAL: Pennimans Sue over Damaged Frozen Embryos ------------------------------------------------------------ WENDY AND RICK PENNIMAN, individually and on the behalf of all others similarly situated, the Plaintiffs, v. UNIVERSITY HOSPITALS HEALTH SYSTEM, INC.; UNIVERSITY HOSPITALS CLEVELAND MEDICAL CENTER d/b/a as, inter alia, University Hospitals Rainbow Babies & Children's Hospital And University Hospitals MacDonald Women's Hospital; UNIVERSITY HOSPITALS AHUJA MEDICAL CENTER, INC.; JOHN DOE PROFESSIONAL CORP.; JOHN DOE MECHANIC; JOHN DOES I-X; JOHN DOE MANUFACTURER; JOHN DOE MONITOR; and JOHN DOE SECURITY COMPANY, the Defendants, Case No. CV 18 894396 (Ohio Court Of Common Pleas, Cuyahoga County, March 12, 2018), seeks to recover damages, equitable relief, and other remedies from Defendants as a result of their misconduct which caused irreparable and permanent damage to their frozen eggs and embryos. The Defendants are in the business of protecting, preserving, extracting and storing Plaintiff's and other Class members' eggs and embryos at a University Hospital Fertility Center located at the Ahuja Medical Center located at 3999 Richmond Road, Beachwood, Ohio 44122. The damage and harm occurred when the temperature in the storage tank which the Defendants were using to store, preserve and maintain the viability of embryos and eggs rose. The temperature increase impacted more than 2,000 vials of eggs and embryos, affecting the Plaintiffs and other Class members. The Defendants' gross and inexcusable conduct was a breach of trust, confidence, decency, stewardship and professionalism, Defendants' actions or lack thereof have ruined and destroyed the hopes, aspirations and dreams of countless prospective parents and families. Defendants' actions have ruined the last chance for the Plaintiffs, as well as other Class members, to have children or additional children. Defendants have not reached out to the Plaintiffs and other Class members properly for their misconduct and negligence, advising them of the extent of damage done to their eggs and embryos, and not offering them proper compensation and psychological counseling. University Hospitals Health System, Inc. provides health care services. The Company manages a network of hospitals, clinics, and physicians for the provision of emergency care, women's services, cancer care, and pediatric services. Fairview Health Services serves customers in State of Ohio.[BN] * * * Another lawsuit was filed by the Plaintiffs on March 30. The case is captioned, WENDY AND RICK PENNIMAN, individually and on the behalf of all others similarly situated, the Plaintiff, v. UNIVERSITY HOSPITALS HEALTH SYSTEM, INC.; UNIVERSITY HOSPITALS CLEVELAND MEDICAL CENTER d/b/a as, inter alia, University' Hospitals Rainbow Babies & Children's Hospital And University Hospitals MacDonald Women's Hospital; and UNIVERSITY HOSPITALS AHUJA MEDICAL CENTER, INC.; JOHN DOE PROFESSIONAL CORP.; JOHN DOE MECHANIC; JOHN DOES I-X; JOHN DOE MANUFACTURER; JOHN DOE MONITOR; and JOHN DOE SECURITY COMPANY, Case No. CV 18 895503 (Ohio Court of Common Pleas, Cuyahoga Cty., March 30, 2018), and seeks judgment declaring that life begins at the moment of conception; therefore declaring the legal status of embryos is that of a person. According to the complaint, the Plaintiffs, began going to the Defendant's fertility clinic in May 2013 to address their unexplained recurrent miscarriages. In April 2014, the Plaintiffs decided to undergo IVF treatment in an effort to have a child at a later date when the underlying cause of her prior eleven miscarriages could be determined. In April 2014, Plaintiff Wendy Penniman went through IVF treatment and had three high graded viable embryos frozen. After discovering the underlying cause of their miscarriages, the Plaintiffs were able to have two successful pregnancies and planned to use the frozen viable embryos to have a third child. The Plaintiffs' frozen embryos were under the Defendant's care and protection being stored in a storage tank at the fertility clinic at Ahuja Medical Center. On or about March 3, 2018, the storage tank housing the Plaintiffs embryos had a significant temperature increase, going from -160/-170 degrees to around -40 degrees, thereby destroying the viability of the embryos. The Defendant did not become aware of the temperature change until March 4. While the Defendant has publicly taken responsibility for the loss of the embryos, the Defendant is treating the embryos as chattel and simply offering to reimburse the Plaintiffs for the production of the embryos. The Plaintiffs view the embryos as patients of the Defendant, who should have been protected as such. The Defendant knew weeks prior to the incident that the storage tanks were malfunctioning and ran the risk of losing embryos due to the malfunctioning tanks. Had the Defendant treated these embryos as patients, and as persons, immediate steps would have been taken to prevent their loss. The Defendant, however, did not take these immediate steps therefore showing that the Defendant regards the embryos as chattel.[BN] The Plaintiffs are represented by: Bruce D. Taubman, Esq. Brian M. Taubman, Esq. TAUBMAN LAW 1826 West 25th Street Cleveland, OH 44113 Telephone: (216) 621 0794 Facsimile: (216) 621 8886 E-mail: brucetaubman@taubmanlaw.net briantaubman@taubmanlaw.net COMMERCIAL INDUSTRIAL: Faces Sage Apts Suit in N.D. California -------------------------------------------------------------- A class action lawsuit has been filed against Commercial Industrial Building Owner's Alliance, Inc. The case is styled as Sage Apts, LLC, a Wyoming limited liability company, on behalf of itself and all others similarly situated, Plaintiff v. Commercial Industrial Building Owner's Alliance, Inc., a California corporation dba CIBA Insurance Services and Great Lakes Insurance SE fka Great Lakes Reinsurance (UK) SE, a German corporation, Defendants, Case No. 3:18-cv-02045 (N.D. Cal., April 4, 2018). Commercial Industrial Building Owner's Alliance, Inc. is in the Surety Insurance business.[BN] The Plaintiff is represented by: William A. Levin, Esq. Levin Simes LLP 353 Sacramento Street, 20th Floor San Francisco, CA 94111 Tel: (415) 426-3000 Fax: (415) 426-3001 Email: wlevin@levinsimes.com CONTEGO SERVICES: Fails to Pay Wages & Overtime, Orlow Says ----------------------------------------------------------- ERIC ORLOW, an individual, on behalf of himself and others similarly situated, the Plaintiff, v. CONTEGO SERVICES GROUP, LLC; and DOES 1 thru 50, inclusive, the Defendants, Case No. BC700446 (Cal. Super. Ct., April 4, 2018), seeks to recover wages and/or overtime under the California Labor Code. According to the complaint, from at least four years prior to the filing of this action continuing to the present, Defendant has had a consistent policy of failing to pay wages and/or overtime to all Proposed Class Members when they work more than eight hours in a day or 40 hours in a week. The Plaintiff and other Proposed Class Members were not properly compensated for overtime at the appropriate rate of pay. Contego Services provides insurance and cost containment solutions.[BN] The Plaintiff is represented by: Eric B. Kingsley, Esq. Liane Katzenstein Ly, Esq. Ari J. Stiller, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd, Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: eric@kingsleykingsley.com liane@kingsleykingsley.com ari@kingsleykingsley.com COCONINO, AZ: "Tenorio-Serrano" Suit Moved to Fed. District Court ----------------------------------------------------------------- The class action lawsuit titled Guillermo Tenorio-Serrano, as an individual, and on behalf of all others similarly situated, the Petitioner, v. James Driscoll, Coconino County Sheriff; Matt Figueroa, Jail Commander of the Coconino County Jail; and Matt Ryan, Lena Fowler, Jim Parks, Elizabeth Archuleta, and Art Babbott, member of the Board of Directors of the Coconino County Jail District, the Respondents, Case No. CV201800144, was removed from the Coconino County Superior Court, to the U.S. District Court for the District of Arizona (Prescott Division) on April 4, 2018. The District Court Clerk assigned Case No. 3:18-cv-08075- DGC-BSB to the proceeding. The case is assigned to the Hon. Judge David G Campbell.[BN] The Petitioner is represented by: Kathryn Grace Mahady, Esq. ASPEY WATKINS & DIESEL PLLC 123 N San Francisco St., Ste. 300 Flagstaff, AZ 86001 Telephone: (928) 774 1478 Facsimile: (928) 774 8404 E-mail: kmahady@awdlaw.com Attorneys for James Driscoll and Matt Figueroa: John T Masterson, Esq. Justin Michael Ackerman, Esq. Michele Molinario, Esq. JONES SKELTON & HOCHULI PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 Telephone: (602) 263 1700 Facsimile: (602) 200 7846 E-mail: jmasterson@jshfirm.com jackerman@jshfirm.com mmolinario@jshfirm.com CADILLAC LOUNGE: "Pizzarelli" Suit Wins Class Certification ----------------------------------------------------------- In the lawsuit styled MARISA PIZZARELLI, on behalf of herself and all others similarly situated, the Plaintiff, v. THE CADILLAC LOUNGE, L.L.C.; NANCY SHAPPY; and RICHARD SHAPPY; all d/b/a/ THE CADILLAC LOUNGE, the Defendant, Case No. 1:15-cv-00254-WES-PAS (D.R.I.), the Hon. Judge William E. Smith entered an order on March 30, 2018: 1. denying the Defendant's motion for summary judgment; and 2. granting the Plaintiff's motion for partial summary judgment and motion for class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=1qZaNGF7 CIGNA CORP: Judge Allows Drug Pricing Class Action to Proceed ------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that Cigna Corp. suffered a big setback in a proposed class action accusing it of overcharging for prescription drugs when a federal judge refused to dismiss most of a 10-count complaint against the insurer. The proposed class of "thousands" of people in health plans insured and administered by Cigna is moving forward with most of their claims under federal employee benefits and racketeering law, according to a March 12 decision by a federal judge in Connecticut. [GN] COACH INC: Vaughn Seeks to Certify Store Manager Class ------------------------------------------------------ In the lawsuit styled MARTHA VAUGHN, on behalf of herself, all others similarly situated, the Plaintiff, v. COACH, INC, DBA COACH LEATHERWARE CALIFORNIA INC., a Maryland corporation; and DOES 1-50 inclusive, the Defendants, Case No. 3:16-cv-04633-VC (N.D. Cal.), the Plaintiff will move the Court for an order: 1. certifying Store Manager Class: "all individuals employed by Coach in the position of Store Manger in California at any time since June 29, 2012. Excluded from the Store Manager Class are those periods of time where an individual was employed as a Store Manager in a Coach store overseen by a General Manager"; 2. appointing Martha Vaughn as representative of the proposed classes or later proposed and approved by the Court and any other sub-class the Court may devise; 3. appointing Shaun Setareh and H. Scott Leviant of Setareh Law Group as Class Counsel pursuant to Fed. R. Civ. P. 23(g); and, 4. issuing such other Orders as necessary to effectuate the Court's certification Order. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=3joQvB52 Attorneys for Plaintiff: Shaun Setareh, Esq. H. Scott Leviant, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone: (310) 888 7771 Facsimile: (310) 888 0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com COLLEGIATE HOUSING: "Dearman" Suit Has Conditional Class Cert. -------------------------------------------------------------- In the lawsuit styled GREG DEARMAN on behalf of himself and all others similarly situated, the Plaintiffs, v. COLLEGIATE HOUSING SERVICES, INC., the Defendant, Case No. 5:17-cv-00057-RJC-DCK (W.D.N.C.), the Hon. Judge Robert J. Conrad entered an order on March 29, 2018, granting the Plaintiff's motion to certify class conditionally as a collective action and facilitate notice under 29 U.S.C. section 216(b). The Court said, "While Defendant raises valid concerns regarding the certification of Plaintiff's purported class, those concerns are better addressed in the later stages of this litigation under a more fact-intensive inquiry. For now, Plaintiffs have met the lenient standard of providing minimal evidence to prove that potential plaintiffs are similarly situated." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=kUUw5Ibc CONCENTRIX CORP: Armstrong Moves to Certify Class of AHCSRs ----------------------------------------------------------- The Plaintiff in the lawsuit styled as ASHLEY ARMSTRONG, individually and on behalf of all other similarly situated v. CONCENTRIX CORPORATION, a New York corporation, Case No. 3:16-cv- 05363-WHO (N.D. Cal.), asks the Court to certify a class pursuant to the Fair Labor Standards Act: All current and former hourly At-Home Customer Service Representatives who work or have worked for Concentrix Corporation any time from December 14, 2015 through the date of judgment. According to the Plaintiff's Memorandum of Points and Authorities in support of the Motion, the gravamen of the complaint is that the Defendant maintained a company-wide compensation policy pursuant to which it failed to pay its AHCSRs for integral and indispensable work performed "off-the-clock" before, during, and after their shifts. The Court will commence a hearing on May 2, 2018, at 2:00 p.m., to consider the Motion. A copy of the Notice of Motion and Memorandum of Points is available at no charge at: http://d.classactionreporternewsletter.com/u?f=n9wfXZ62 The Plaintiff is represented by: Kevin J. Stoops, Esq. Charles R. Ash, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355-0300 Facsimile: (248) 436-8453 E-mail: kstoops@sommerspc.com crash@sommerspc.com - and - Jahan C. Sagafi, Esq. OUTTEN & GOLDEN LLP One Embarcadero Center, 38th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-mail: jsagafi@outtengolden.com CONN APPLIANCES: "Gerlach" Suit Seeks to Certify Class ------------------------------------------------------ In the lawsuit styled JASON GERLACH AND MANUEL MAYORAL, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED, the Plaintiffs, v. CONN APPLIANCES, INC., CONN'S INC., AND CONN CREDIT CORP., INC., the Defendants, Case No. 1:16-cv-00860-LY (W.D. Tex.), the Plaintiffs ask the Court to certify a class of: "all persons within the United States who, on or after July 12, 2012, received a non-emergency telephone call from CONNS to a cellular telephone through the use of an automatic telephone dialing system who did not provide prior express consent for such calls during the transaction that resulted in the debt owed and where defendant's records do not show that the person was customer of CONNS". A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=TOtDb3ao The Plaintiffs are represented by: Brian J. Trenz, Esq. David P. Schafer, Esq. LAW OFFICES OF DAVID SCHAFER, PLLC 2139 N.W. Military Hwy, Suite 200 San Antonio, TX 78213 Telephone: (210) 348 0500 Facsimile: (210) 348 0520 E-mail: brian@helpingtexas.com david@helpingtexas.com - and - Samuel Meyler, Esq. Samuel W. Eastman, Esq. EASTMAN MEYLER, PC 2301 E. Riverside Dr. Bldg. A, Suite 50 Austin, TX 78741 Telephone: (844) 466 7326 Facsimile: (512) 879 1861 E-mail: sam.meyler@emfirm.com sam.eastman@emfirm.com CREDIT MANAGEMENT: Class Certification Sought in "Bartz" Suit ------------------------------------------------------------- Crystal Bartz moves the Court to certify the class described in the complaint of the lawsuit styled CRYSTAL BARTZ, Individually and on Behalf of All Others Similarly Situated v. CREDIT MANAGEMENT, LP, Case No. 2:18-cv-00412 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tjohsIY6 The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com CVS PHARMACY: Class Certification Bid in "Lowe" Suit Underway ------------------------------------------------------------- In the lawsuit styled Carl Lowe, et al., the Plaintiff, v. CVS Pharmacy, Inc., et al., the Defendant, Case No. 1:14-cv-03687 (N.D. Ill.), the Court will send out an agenda and contact the parties with proposed dates shortly relating to motion for class certification. According to the docket entry made by the Clerk on March 30, 2018, after considering the parties' submissions related to the Plaintiffs' motion for class certification, the Court believes that oral argument would be helpful with respect to certain issues that have not been fully addressed in the parties' briefs. The Court will send out an agenda and contact the parties with proposed dates shortly. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=eKbmTsXJ DAN LEPKE TRUCKING: Court Denies Certification of Three Classes --------------------------------------------------------------- In the lawsuit styled TIMOTHY CONNELLY, DAVID WINCHELL, RAYMOND SCHLICHT, and RODNEY SCHLICHT, the Plaintiffs, v. DAN LEPKE TRUCKING LLC and LEPKE TRUCKING & EXCAVATING LLC, the Defendants, Case No. 3:15-cv-00308-jdp (W.D. Wisc.), the Hon. Judge James D. Peterson entered an order: 1. denying three classes of: "drivers who did not receive separate hourly pay for all hours worked before their trucks were loaded for the first time and after their trucks were unloaded for the final time; "employees who worked more than 40 hours in a workweek and did not work across state lines during the four months preceding that workweek; and "drivers who worked more than 40 hours in a workweek regardless whether they worked across state lines during the four months preceding that workweek; and 2. directing Plaintiffs to inform the court whether they want an opportunity to join more plaintiffs until April 6, 2018, until then, briefing on plaintiffs' motion for summary judgment is stayed. The Court said, "plaintiffs have failed to show that the proposed class is so numerous that joinder is impracticable. It follows from this conclusion that plaintiffs should have an opportunity to join other interested employees under Rule 20 of the Federal Rules of Civil Procedure. The only wrinkle is that plaintiffs recently filed a motion for summary judgment, even though the deadline for doing so is not until May 7. Obviously, if plaintiffs add more employees to the case, it could affect the scope of their summary judgment motion. Accordingly, the court will give plaintiffs an opportunity to inform the court whether they want an opportunity to join more plaintiffs. If they do, the court will set a deadline for filing an amended complaint and deny their summary judgment motion without prejudice to their renewing it after they file an amended complaint." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=JUDiqXSo DRW HOLDINGS: Manipulated VIX-Linked Investment Prices, Suit Says ----------------------------------------------------------------- David Quint, on behalf himself, and a class consisting of similarly situated persons v. DRW Holdings, LLC and John Does, Case No. 1:18-cv-01980 (S.D.N.Y., March 5, 2018), arises from the Defendants' and others' alleged unlawful combination, agreement and conspiracy to manipulate markets to restrain trade of the prices of VIX-Linked Investments. The Defendants own and operate a trading company that trades different financial instruments and asset classes. [BN] The Plaintiff is represented by: Aaron L. Brody, Esq. Michael J. Klein, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: abrody@ssbny.com mklein@ssbny.com DST SYSTEMS: Faces Securities Class Action in Delaware ------------------------------------------------------ Faruqi & Faruqi, LLP, on March 12 disclosed that it has filed a class action lawsuit in the United States District Court for the District of Delaware, case No. 1:18-cv-00286, on behalf of shareholders of DST Systems, Inc. ("DST Systems" or the "Company") (NYSE: DST) who have been harmed by DST Systems' and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed merger of the Company with certain affiliates of SS&C Technologies, Inc. On January 11, 2018, the Board caused the Company to enter into an Agreement and Plan of Merger ("Proposed Transaction"), pursuant to which the Company's shareholders stand to receive $84.00 in cash for each share of DST Systems stock they own. The shareholder vote on the Proposed Transaction is expected to occur on March 28, 2018. The complaint alleges that the preliminary proxy statement (the "Proxy") filed with the Securities and Exchange Commission ("SEC") on February 7, 2018, violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to DST Systems shareholders. If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/DSTnotice. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from March 12, 2018, the date of this notice. 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: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com [GN] DUKE ENERGY: Court Conditionally Certifies Hourly Workers Class --------------------------------------------------------------- In the lawsuit styled JOHN BOWSER on behalf of himself and others similarly situated, the Plaintiff, v. DUKE ENERGY, THE EMPYREAN GROUP, LLC, and GUIDANT GROUP, INC., the Defendants, Case No. 2:16-cv-00482-DSC (W.D. Pa.), the Hon. District Judge David Stewart Cercone entered an order on March 30, 2018: 1. granting Plaintiff's motion for conditional certification; 2. conditionally certifying case as collective action to: "all hourly workers assigned to Duke through Guidant's network of staffing companies who did not receive at least time and one-half of their regular hourly rate for hours worked in excess of forty in any workweek -- from April 21, 2013, to date -- for the purposes of notice and pretrial discovery." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=2CPPsUhm DURHAM SCHOOL: Romo Seeks to Certify Settlement Class ----------------------------------------------------- In the lawsuit styled YUDINA ROMO, as an individual and on behalf of all similarly situated employees, the Plaintiff, v. DURHAM SCHOOL SERVICES, L.P.; and DOES 1 through 10, inclusive, the Defendant Case No. 1:17-cv-01929 (N.D. Ill.), Plaintiffs will move the Court for an Order: 1. granting preliminary approval of a proposed class action settlement; 2. certifying for settlement purposes a Class pursuant to Federal Rules of Civil Procedure 23(b)(1) and/or 23(b)(2) defined as: "all persons employed by Durham in California as either a bus driver or bus attendant (who are also sometimes known as a "bus monitor") in any workweek from May 12, 2012 to December 31, 2017"; 3. appointing Plaintiffs Shemuel Chavez, Yudina Romo, Terrilyn Russell and Donisha Shann; 4. appointing Plaintiffs' Counsel Kevin Allen and Treana L. Allen of ALLEN LAW GROUP, APC, as Class Counsel for settlement purposes; 5. approving the proposed notice of class action settlement to be mailed to class members; 6. approving the opt out and objection procedures provided in the Settlement Agreement and set forth in the Notice; 7. directing Defendant Durham to furnish the Settlement Administrator within 15 calendar days after the Court grants preliminary approval of the Settlement a database containing the following information for each Class Member including name, last known address, and social security number; and 8. setting a final fairness approval hearing. The proposed Settlement delivers immediate and substantial benefits to the settlement class. Specifically, the proposed Settlement calls for Defendant to pay $3,875,000.00 to approximately 4,888 current and former Class Members. The proposed Settlement requires Defendant to pay the entire gross settlement amount, with no monies reverting back to Defendant. The proposed Settlement will provide average net distributions to individual employees in the range of $500. This Settlement will bring real money to class members. Prior to reaching this proposed settlement, Plaintiffs estimated Defendant's total maximum exposure at approximately $14,900,000. This included Defendant's potential exposure for Plaintiffs' Wage Statement Claim as well as waiting time penalties pursuant to Cal. Labor Code section 203. While Plaintiffs are confident in their ability to certify the proposed classes, the risk, expense, and complexity of continued litigation all support preliminary approval of the proposed Settlement. There are many unresolved legal and procedural issues and Defendant strongly and consistently maintains that class certification in this matter is not appropriate. In addition, if Plaintiffs were to certify the proposed classes, litigation would continue for possible years on merits and damage issues. Although Plaintiffs are confident that any trial would be meritorious and successful, they are not blind to the significant risk of losing at trial, including the enormous costs, and the potential to overcome a high standard on any appeal. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=mI0ikSA6 The Plaintiff is represented by: Kevin Allen, Esq. Treana L. Allen, Esq. ALLEN LAW GROUP, APC 249 East Ocean Blvd., Suite 814 Long Beach, CA 90802 Telephone: (562) 590 5550 Facsimile: (562) 590 8400 E-mail: kAllen@Allen-law.net tallen@Allen-law.net - and - Lisa L. Clay, Esq. 345 North Canal Street Suite C202 Chicago, IL 60606 Telephone: (312) 753 5302 Facsimile: (312) 544 4415 E-mail: lclayaal@gmail.com E.N.T. ASSOCIATES: "O'Keefe" Suit Seeks Unpaid Wages ---------------------------------------------------- Brittany O'Keefe, Individually, and on behalf of all others similarly situated, the Plaintiff, v. E.N.T. Associates of Greater New York, PLLC, the Defendants, Case No. 704857/2018 (N.Y. Sup. Ct., March 30, 2018), seeks to recover all unpaid wages including her unpaid overtime wages, unlawful wage deductions, maximum compensation for not receiving notices and statements, maximum liquidated damages, interest, and attorneys' fees pursuant to the New York Labor Law. According to the complaint, the Defendant employed dozens of employees at any given time and over 80 medical assistants during the class period across several locations. The Plaintiff was employed by Defendant from on or about August 3, 2015 to on or about June 21, 2017 as a medical assistant performing all manual, physical and repetitive tasks, including handling patients, cleaning instruments, moving equipment, filing etc. throughout her workday. The Plaintiff was paid at a regular rate of about $13 an hour. The Plaintiff and the putative class members were paid on a biweekly basis in violation of NYLL. The Defendant failed to pay Plaintiff for each and all hours worked in each week during her employment with Defendant. The Plaintiff was also not paid any wages for work performed during the last three days of her employment with Defendant. The Defendant did not provide Plaintiff with the notice(s) required by NYLL.[BN] The Plaintiff is represented by: Abdul K. Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740 1000 Facsimile: (718) 740 2000 EKSO BIONICS: Shareholders File Securities Class Action ------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on March 13 disclosed that purchasers of Ekso Bionics Holdings, Inc. (NasdaqCM: EKSO) have filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between March 15, 2017 and December 27, 2017. Ekso designs, develops, and sells exoskeletons for use in the healthcare, industrial, military, and consumer markets in North America, Europe, the Middle East, and Africa. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/ekso-bionics-holdings-inc Ekso Accused of Implementing Unreliable Internal Controls According to the complaint, Ekso repeatedly attested to the accuracy of the company's financial reporting, the disclosure of any material changes to its internal controls over financial reporting, and the disclosure of all fraud in its public filings. It therefore came as a surprise to investors when Ekso disclosed on December 14, 2017, that its internal control over financial reporting as of December 31, 2016 should not be relied upon. Ekso cited a reevaluation of the company's information technology controls by the company's auditor. On December 27, 2017, Ekso filed its amended annual report for 2016 and amended quarterly reports for the first three quarters of 2017. Since news of Ekso's financial troubles became public, the company's stock declined over 24%, closing at $1.83 per share on March 9, 2018. Ekso Shareholders Have Legal Options If you would like more information about your rights and potential remedies, contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] EL TAQUITOS: Faces "Galeana" Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against El Taquitos Corp. The case is styled as Gabriela Galeana and N.G., a minor by his parent and natural guardian Nicolas Galeana, on behalf of themselves and all other persons similarly situated, Plaintiffs v. El Taquitos Corp., Ricardo Rodriguez and Rocio Nava, Defendants, Case No. 1:18-cv-02950 (S.D. N.Y., April 3, 2018). The Defendants are engaged in the restaurant industry.[BN] The Plaintiffs appear PRO SE. ELTMAN LAW: "Alejandro" Suit Moved to Eastern Dist. of New York --------------------------------------------------------------- The class action lawsuit titled Jonathan Alejandro, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, v. Eltman Law, P.C.; Navient Solutions, LLC, formerly known as: Navient Solutions, Inc.; and VL Funding, LLC, the Defendants, Case No. 604471/2018, was removed from the Supreme Court of the State of New York, Suffolk County, to the U.S. District Court for the Eastern District of New York (Central Islip) on March 29, 2018. The District Court Clerk assigned Case No. 2:18-cv-01914 to the proceeding. Eltman Law is a national law firm with direct practices in New York, California, Florida, Texas, Georgia, Michigan, Ohio, New Jersey, Illinois, Pennsylvania, Tennessee, Missouri, and Kentucky.[BN] The Plaintiff is represented by: Jared Hale Louzon, Esq. LAW OFFICE OF SIMON GOLDENBERG, PLLC 818 East 16th Street Brooklyn, NY 11230 Telephone: (347) 640 4357 Facsimile: (347) 472 0347 E-mail: jlouzon@goldenbergfirm.com Attorneys for Navient Solutions, LLC: Ashley Bryne Huddleston, Esq. VEDDER PRICE P.C. 1633 Broadway New York, NY 10019 Telephone: (212) 407 7700 Facsimile: (212) 407 7799 E-mail: ahuddleston@vedderprice.com EMERALD COAST: Settles Class Action Over VirnetX Patent Troll ------------------------------------------------------------- Jacklyn Wille, writing for Bloomberg Law, reports that a Florida optometry practice agreed to pay $180,000 to settle a class action challenging its decision to over-invest 401(k) assets in alleged "patent troll" VirnetX. The deal resolves a lawsuit claiming Emerald Coast Eye Institute and its founder, Dr. Samuel Poppell, directed a significant portion of the 401(k) plan's assets into the stock of VirnetX, a company that allegedly specialized in acquiring patents and attempting to bring litigation against violators of those patents. Poppell, who allegedly had no background in investment management, learned of VirnetX through "online message boards and unqualified or speculative investment blog-type websites," according to the lawsuit. The $180,000 settlement is in addition to a deal between Emerald Eye and the Labor Department in which the company agreed to reimburse workers' out-of-pocket losses plus some interest, settlement papers indicate. VirnetX's poor performance -- it allegedly lost 50 percent of its value in a single day in 2014 and declined more than 90 percent since June 2012 -- caused the plan to suffer actual losses of more than $600,000 and "underperformance damages" of more than $500,000, according to the complaint. The lawsuit is noteworthy for being one of a growing number of class actions to challenge modestly sized 401(k) plans. Emerald Eye's plan had 25 participants and less than $500,000 in assets during the period covered by this lawsuit, according to government filings. Most 401(k) class actions have been filed against plans with billions or hundreds of millions of dollars in assets, although recent cases have targeted auto body repair provider LaMettry's Collision Inc. and Checksmart Financial LLC, both of which had less than $30 million in 401(k) assets. The case against LaMettry's was voluntarily dismissed in 2016. The Emerald Coast workers are represented by Levin Papantonio Thomas Mitchell Rafferty & Proctor PA, which stands to receive $36,000 in attorneys' fees -- 20 percent of the settlement -- if the deal is approved. The defendants are represented by Clark Partington Hart Larry Bond & Stackhouse. The case is McLain v. Poppell, N.D. Fla., No. 3:16-cv-00502-MCR- CJK, motion for settlement approval 3/12/18. It's pending before Chief Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida. [GN] EMERALD LAWNS: Court Certifies Class of Spray Technician -------------------------------------------------------- In the lawsuit styled AMONDO ARCE AND BERNARD WILLIAMS, on behalf of themselves and a class of those similarly situated, the Plaintiffs, v. EMERALD LAWNS, LLC, the Defendant, Case No. 1:17- cv-00900-SS (W.D. Tex.), the Court entered an order: 1. conditionally certifying as a collective action under 29 U.S.C. section 2 16(b), and will proceed as such until further order of the Court, on behalf of class members which shall include: "all persons who held the position of Spray Technician at any time during the period from September 13, 2014, through to the present and were not paid overtime for hours worked in excess of 40 in a workweek"; 2. authorizing expedited issuance of proposed notice in support of their motion, to be delivered or otherwise disseminated by delivery service (including, but not limited to United States mail, DHL, FedEx, United Parcel Service or other similar private delivery service), or email to all current and former employees who worked as Spray Technicians for Defendant for the past three years who were not paid at the rate of at least one-and-one-half of their regular rates of pay for all hours worked in excess of 40 hours in a workweek; 3. directing Defendant to provide Plaintiffs' counsel a computer readable data file containing the names, all addresses, all email addresses, and all telephone numbers of all the potential opt-in Plaintiffs as defined in the previous paragraph within 14 days of this Order; 4. Upon the production of such contact information, permitting Plaintiffs' counsel to send notices by mail and email within a period of 45 days from the date of production; 5. directing Plaintiffs' counsel to file an advisory of the sending of such notices with this Court within three business days of doing so; in those advisories, Plaintiffs' counsel shall specify the date and manner by which they sent those notices; 6. directing that the notice shall inform all potential opt-in Plaintiffs that they shall have until the date that is 60 days from the date such notices are first sent as indicated in the Plaintiffs' counsel's first advisory contemplated in the previous paragraph to deposit in the mail, or return by email or fax, their Consents to Join to counsel for Plaintiffs; and 7. authorizing Plaintiffs to offer potential opt-in Plaintiffs the option to consent to join this collective action through the use of electronic signatures, where Plaintiffs may use Adobe Document Cloud E-Sign Services, or a similar electronic signature program. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=UxtbBRg6 ENAGIC USA: Faces "Makaron" Suit in C.D. California --------------------------------------------------- A class action lawsuit has been filed against Enagic USA, Inc. The case is styled as Edward Makaron, on behalf of himself and all others similarly situated, Plaintiff v. Enagic USA, Inc., Defendant, Case No. 2:18-mc-00048-SJO-E (C.D. Cal., April 3, 2018). Enagic USA, Inc. distributes water filtration systems and ionizers to hospitals, restaurants, and homes in the United States.[BN] The Plaintiff is represented by: David B. Levin, Esq. Todd M. Friedman, P.C. 333 Skokie Boulevard, Suite 103 Northbrook, IL 60062 Tel: (888) 595-9111 Fax: (866) 633-0228 Email: dlevin@toddflaw.com ENERGEN RESOURCES: Ulibarri Seeks Royalty Payments over Gas Sales ----------------------------------------------------------------- GERALD ULIBARRI, on behalf of himself and a class of similarly situated persons, the Plaintiff, v. ENERGEN RESOURCES CORPORATION, the Defendant Case No. 1:18-cv-00294 (D.N.M., March 29, 2018), seeks judgment in favor of Plaintiff and the Class members on their claim for Energen's breach of Royalty Agreements, in an amount which equals the full amount of Energen's royalty underpayments through May 31, 2015, plus applicable prejudgment interest through the date of final judgment. According to the complaint, the Plaintiff is a resident and citizen of New Mexico, and has been paid royalties by Energen. Energen did not pay royalties to Plaintiff or the Class on the sale proceeds received on the sale of gas and/or the prevailing market prices, including proceeds received on the sale of residue gas, natural gas liquids, and condensate, to third party purchasers. The proceeds received on the sale of gas, natural gas liquids and condensate which came from Plaintiff's and the Class members' wells are essentially equivalent to the prevailing market price for such natural gas products. Under the proceeds royalty provision, the gross proceeds royalty provision, and the gross proceeds at the prevailing market rate royalty provision, Energen was contractually obligated to pay royalties based upon a specified percentage of the sales proceeds received on the sale of the gas, including residue gas, individual natural gas liquid products, and condensate, which Energen produced from Plaintiff's and the Class members' Energen Wells. Energen breached the applicable Royalty Agreements by engaging in a common method of royalty accounting which: (1) calculated a value for the royalties which were paid to Plaintiff and the Class members that was substantially less than the sale proceeds received on the sale of gas, including residue gas, natural gas liquid products, and condensate, which came from Plaintiff's and the Class members' Energen Wells; and (2) improperly deducted costs for gathering, compression, processing, NGPT, natural gas liquids transportation and fractionation, and other costs and expenses. As a direct result of Energen's breaches of the Class members' Royalty Agreements, the royalties owed to Plaintiff and the members of the Class were consistently and substantially underpaid. Energen Resources Corporation is the subsidiary of Energen Corporation, an oil and gas exploration and production company with headquarters in Birmingham, Alabama.[BN] Attorneys for Plaintiff and the Proposed Class: George A. Barton, Esq. Robert G. Harken LAW OFFICES OF GEORGE A. BARTON, P.C. 7227 Metcalf Avenue, Suite 301 Overland Park, KS 66204 Telephone: (913) 563 6250 E-mail: gab@georgebartonlaw.com rob@georgebartonlaw.com - and - Michael Chapman, Esq. NEWBOLD CHAPMAN & GEYER PC 150 East Ninth Street, Suite 400 Durango, CO 81302 Telephone: (970) 247 3091 E-mail: mchapman@ncg-law.com EOG RESOURCES: "Qualls" Class Suit Transferred to S.D. Texas ------------------------------------------------------------ The class action lawsuit filed on September 7, 2017 captioned Marcus Qualls, on behalf of himself and all others similarly situated v. EOG Resources, Inc., Bedrock Petroleum Consultants, LLC and Jonathan Falcon, Case No. 1:17-cv-00916 was transferred on March 2, 2018 from the U.S. District Court for the District of New Mexico to the U.S. District Court for the Southern District of Texas. The District Court Clerk assigned Case No. 4:18-cv- 00666 to the proceeding. The case asserts labor-related claims. The Defendants own and operate an international energy company engaged in exploration and production of oil and gas. [BN] The Plaintiff is represented by: Joshua Charles Borsellino, Esq. BORSELLINO, P.C. 1020 Macon St., Suite 15 Fort Worth, TX 76102 Telephone: (817) 908-9861 Facsimile: (817) 394-2412 E-mail: josh@dfwcounsel.com The Defendant is represented by: Carter Crow, Esq. Jesika Blanco, Esq. Kimberly Frances Cheeseman, Esq. NORTON ROSE FULBRIGHT US LLP 1301 McKinney Street, Suite 5100 Houston, TX 77010-3095 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 E-mail: carter.crow@nortonrosefulbright.com jesika.blanco@nortonrosefulbright.com kimberly.cheeseman@nortonrosefulbright.com - and - John Karl Ziegler, Esq. Robert C. Conklin, Esq. CONKLIN WOODCOCK ZIEGLER PC 320 Gold Ave, SW, Ste 1111 Albuquerque, NM 87102 Telephone: (505) 224-9160 E-mail: jkz@conklinfirm.com rcc@conklinfirm.com EVA AIRWAYS: Settles Long-Haul Flight Price-Fixing Class Action --------------------------------------------------------------- RJ Vogt, writing for Law360, reports that airline passengers accusing a slew of airlines of fixing the price of long-haul flights to Pacific destinations told a California federal judge on March 13 they have agreed to settle with EVA Airways Corp. for $21 million, marking the latest airline to settle out of the sprawling multidistrict litigation. In January, Philippine Airlines Inc., Air New Zealand Ltd. and China Airlines Ltd. agreed to pay a total of $29.4 million to settle the allegations. Now EVA has followed suit, agreeing to pay $21 million. 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. EVA Airways is represented by Jonathan Jeffrey Faria, Esq., Kirkland & Ellis LLP, Jason Yuegin Kelly, Esq., Katten Muchin Rosenman LLP, James Mutchnik, Esq., and Tammy Ann Tsoumas, Esq., Kirkland and Ellis LLP. [GN] FEDEX FREIGHT: Bid to Certify Operations Supervisor Class Denied ---------------------------------------------------------------- In the lawsuit styled GUILLERM O. PINA, on behalf of himself and all others similarly situated, the Plaintiff, v. FEDEX FREIGHT, INC., the Defendant, Case No. 1:17-cv-24274-FAM (S.D. Fla.), the Hon. Judge Federico A. Mureno entered an order on April 5, 2018 denying Pina's motion for conditional certification on behalf of: "anyone who, like himself, worked as an Operations Supervisor for FedEx Freight during the three years prior to the initiation of this action. However, FedEx Freight contends that Pina's allegations are deficient and do not merit conditional certification." The Court concludes that Pina has failed to meet his burden as to the requirements provided in the case, Dybach v. State of Fla. Dep't of Corr., 942 F.2d 1562, 1 567-68 (11th Cir. 1991). In Dybach, the court must first "satisfy itself that there are other employees . . . who desire to 'opt-in' and who are 'similarly situated' with respect to their job requirements and with regard to their pay provisions." Pina asserts that the proposed class consists of Operations Supervisor who were similarly situated in that they performed similar duties, were Operations Supervisors who were misclassified as exempt and were paid one and half time' for a11 hours worked between 40 and 65 each week. Pina has failed to show that the purported class consists of similarly situated employees who desire to join the suit, the Court says. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=PvQ8Klib FIFTH THIRD BANK: Smith Sues over Out-of-Network ATM Fee -------------------------------------------------------- CARNELL SMITH, on behalf of himself and all others similarly situated, the Plaintiff, v. FIFTH THIRD BANK, the Defendant, Case No. 6:18-cv-00476-CEM-KRS (M.D. Fla., March 29, 2018), seeks to recover damages arising from Defendant's unfair and unconscionable assessment of two out-of-network ATM fee on out of network ATM withdrawals preceded by a balance inquiry, and its assessment of a 3% foreign transaction fee on amounts greater than the transaction amount for which FTF should apply -- specifically, on the third party ATM cover fee for use of a foreign ATM. Such fee -- which are not disclosed to consumers at any point during the ATM transaction and violate the agreement governing the contractual relationship between Defendant and its customers -- constitute a breach of contract and a breach of the covenant of fair dealing with thousands of consumers and serves to enrich Defendant to the tune of millions of dollars at the expense of consumers. Fifth Third Bank provides personal, small business, and commercial banking and lending solutions.[BN] The Plaintiff is represented by: Edmund A. Normand, Esq. Jake Philips, Esq. NORMAND PLLC 62 W. Colonial Drive, Suite 209 Orlando, FL 32801 Telephone: (407) 603 6031 Facsimile: (888) 974 2174 E-mail: ed@ednormand.com jacob@ednormand.com FLAGSHIP RESORT: Colosimo Seeks Collective Action Certification --------------------------------------------------------------- In the lawsuit styled CRISTINA COLOSIMO, individually and on behalf of herself and all others similarly situated, the Plaintiff(s), v. FLAGSHIP RESORT DEVELOPMENT CORPORATION and JOHN DOES 1-5 AND 6-10, the Defendant(s), Case No. 1:17-cv-03969-JHR- JS (D.N.J.), the Plaintiff will move the Court for an order granting: 1. conditional collective action certification pursuant to 29 U.S.C. Sec. 216(b); 2. issuance of notice to all members of the putative collective class in accordance with Hoffman-LaRoche v. Sperling, 493 U.S. 165 (1989); 3. production to Plaintiff of all names, addresses and phone number of members of the putative collective class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=rsTMrpe1 The Plaintiff is represented by: Deborah L. Mains, Esq. COSTELLO & MAINS, LLC 18000 Horizon Way, Suite 800 Mount Laurel, NJ 08054 Telephone: (856) 727 9700 FOOT LOCKER: Bronstein Gewirtz Files Securities Class Suit ---------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC on March 12 notified investors that a class action lawsuit has been filed against Foot Locker, Inc. ("Foot Locker") (NYSE: FL) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Foot Locker securities between August 19, 2016 and August 17, 2017, both dates inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: http://www.bgandg.com/fl. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The complaint alleges that throughout the class period, defendants made false and misleading statements and/or failed to disclose to investors that: (1) Foot Locker's vendors were transitioning to selling through various online retailers, diminishing the utility of Foot Locker's large number of brick and mortar stores and the once-high value of its exclusivity relationships with those vendors; (2) competition with online retailers had increased the pricing competition Foot Locker faced while also materially lowering the demand at Foot Locker stores; and (3) as a result of defendants' failure to disclose this information, Foot Locker stock was artificially inflated to a high of $79.20 per share during the Class Period, while executives were able to sell over 192,000 shares of their personally held Foot Locker stock at artificially inflated prices for gross proceeds of $13.3 million. On August 18, 2017, Foot Locker revealed poor second quarter 2017 financial results, and a 6% drop in quarterly same-store sales year-over-year, causing the substantial revenue miss. Foot Locker announced that it would close roughly 130 stores, more than the 100 stores it had previously announced it would close and on a conference call with investors and analysts that morning, Foot Locker said it expected weaker sales for the remainder of fiscal 2017. Following this news, Foot Locker stock dropped roughly 28% to close at $34.38 per share on August 18, 2017, on unusually high trading volume of more than 36.2 million shares traded. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: http://www.bgandg.com/flor you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Foot Locker you have until May 8, 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. Bronstein, Gewirtz & Grossman, LLC -- https://www.bgandg.com -- is a corporate litigation boutique. Our primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] FOUR POINT CONSTRUCTION: Sandoval Suit Overtime Wages under FLSA ---------------------------------------------------------------- RONY SANDOVAL, on behalf of himself and other similarly situated individuals, the Plaintiff, v. FOUR POINT CONSTRUCTION SOLUTIONS, LLC and JASON BLAYDES, the Defendants, Case No. 3:18-cv-00365- SDD-RLB (M.D. La., April 4, 2018), seeks to recover overtime wages pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff was always paid $19.00 per hour, irrespective of the number of hours he worked. His actual regular rate of pay was therefore $19.00 per hour. The Plaintiff's co-workers, largely Hispanic, non-English speaking laborers, were also paid in accordance with this payroll scheme in order to make it look as though they were paid overtime for hours worked in excess of 40 hours per week (plus a "bonus" to ensure that their gross pay reflected their promised rate of pay). Four Point Construction provides skilled drywall sub-contracting services.[BN] Attorneys for Plaintiff: Randall E. Estes, Esq. Daniel B. Davis, Esq. James R. Bullman, Esq. ESTES DAVIS LAW, LLC 850 North Boulevard Baton Rouge, LA 70802 Telephone: (225) 336 3394 Facsimile: (225) 384 5419 E-mail: james@estesdavislaw.com FSB: Telegram Users File Privacy Class Action in Moscow ------------------------------------------------------- Crime Russia reports that Telegram users asked the court to declare the FSB actions, which requires the management of the service to provide decryption keys to messages, illegal. The claim on behalf of 35 users of Telegram was filed with the Meshchansky court of Moscow by lawyers of the Roskomvoboda public organization, TASS quotes its representative Sargis Darbinyan. As noted in the statement of the claim, actions of the FSB violate the rights of plaintiffs to privacy and secrecy of correspondence. Also, according to the plaintiffs, it could lead to access to confidential information of all Telegram users. The FSB approved the procedure for collecting encryption keys shortly after the adoption of the anti-terror Yarovaya package. In 2017, Telegram was included in the register of information disseminators after threats of blocking by Roskomnadzor. The FSB required the service to provide data for decoding messages from all users of the messenger. After the refusal of the Telegram management to cooperate with the FSB, the court fined the service for 800 thousand rubles ($14.050). The messenger filed a lawsuit with the Supreme Court with a request to cancel the order on decryption of messages. The lawsuit will be considered on March 20. In December 2017 Roskomvoboda organization announced the launch of the Battle for Telegram public campaign, inviting all users of the service to join a collective lawsuit against the FSB. [GN] FYRE MEDIA: Judge Consolidates Five Fyre Festival Suits ------------------------------------------------------- Jack Newsham, writing for Law360, reports that U.S. District Judge P. Kevin Castel, who is overseeing five suits against the backers of Fyre Festival, a proposed music festival in the Bahamas that was cancelled at the last minute, consolidated the cases on March 13 and appointed Geragos & Geragos APC to lead the class action. Lawyers for Jeffrey Atkins, the rapper better known as Ja Rule who allegedly co-owned festival promoter Fyre Media Inc., said they were nearing a settlement with two individual plaintiffs and were in talks with others. The case is IN RE Fyre Festival Litigation, Case No. 1:17-cv-03296 (S.D.N.Y.). The case is assigned to Judge P. Kevin Castel. The case was filed May 3, 2017. [GN] G. WELDING CONTRACTOR: Sanchez Seeks Unpaid Wages & OT under FLSA ----------------------------------------------------------------- MARCELINO SANCHEZ, on behalf of himself and others similarly situated, the Plaintiff, v. G. WELDING CONTRACTOR, CORP., a Florida Corporation, and ROBERLAY ROMERO, individually, the Defendants, Case No. 1:18-cv-21179-FAM (S.D. Fla., March 29, 2018), seeks to recover unpaid wages and overtime compensation, liquidated damages, and the costs and reasonable attorneys' fees under the provisions of the Fair Labor Standards Act. According to the complaint, numerous work weeks between approximately March 2015 and the present, Defendants have willfully failed to comply with the requirements of the FLSA by, inter alia: (a) failing to maintain contemporaneous records of the actual start times, stop times, and total hours worked each week by Plaintiff and Defendants' other non-exempt Welders and/or Installers, however variously titled; and (b) failing to pay overtime compensation for all of the actual overtime hours worked by Plaintiff and those employees similarly situated to him as a result of work being performed which Defendants willfully refused to credit as compensable work time during -- including but not necessarily limited to -- the following periods: (i) pick up or drop off materials from Defendant's warehouse; and (ii) hours worked on Defendants' job sites for which Defendants did not credit Plaintiff's time and the other similarly situated to him. The Defendants had knowledge of the actual hours worked by Plaintiff and other similarly situated non-exempt employees in multiple work weeks between March 2015 and the present, all of which work was for the benefit of Defendants. Nonetheless, Defendants knowingly and willfully failed to compensate Plaintiff and the other similarly situated employees with time and one-half wages for all of their actual overtime hours worked, instead accepting the benefits of the work performed by Plaintiff and the others similarly situated to him without paying the overtime compensation required by the FLSA. G. Welding Contractor is a full service metal and aluminum fabricator providing welding and installation services of fences, doors, decks, stairs, and railings, for residential and commercial customers throughout the State of Florida, including but not necessarily limited to in Miami-Dade and Broward County, Florida.[BN] The Plaintiff is represented by: Keith M. Stern, Esq. Hazel Solis Rojas, Esq. LAW OFFICE OF KEITH M. STERN, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Telephone: (305) 901 1379 Facsimile: (561) 288 9031 E-mail: employlaw@keithstern.com hsolis@workingforyou.com G&R COLLECTIONS: Court Certifies Settlement Class in "Tiernan" -------------------------------------------------------------- In the lawsuit styled SHAWNDA TIERNAN, individually and on behalf of all others similarly situated Plaintiff, v. G&R COLLECTIONS and MBG, INC., the Defendant, Case No. 3:16-cv-02602 (M.D. Tenn.), the Hon. Judge Aleta A. Trauger entered an order: 1. certifying a Settlement Class of: "all Tennessee consumers who were sent an initial collection letter from G&R, during the time period of September 27, 2015 to present, attempting to collect a debt or alleged debt for A-1 Cash Advance that contains the language "Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification"; 2. appointing Plaintiff as Class Representative; and 3. appointing Plaintiff's counsel, Ari Marcus and William Kaludis, as Class Counsel. The Court approves the Parties' proposed Class Notice and directs that it be mailed to the last known address of the Settlement Class Members as shown in MBG's business records. The Class Administrator will cause the Class Notice to be mailed to Settlement Class members on or before April 23, 2018. The Class Administrator will have the notice sent by any form of U.S. Mail providing forwarding addresses. The Court finds that mailing of the Class Notice is the only notice required and that such notice satisfies the requirements of due process pursuant to the Federal Rules of Civil Procedure, including Rule 23, the United States Constitution, and any other applicable law. Settlement Class members have until June 13, 2018, to exclude themselves from or object to the proposed settlement. Any Settlement Class members desiring to exclude themselves from the action must serve copies of the request on counsel for both Plaintiff and G&R and MBG by that date. Any Settlement Class members who wish to object to the settlement must submit an objection in writing to the Clerk of the United States District Court for the Middle District of Tennessee, and serve copies of the objection on counsel for both Plaintiff and Defendants by that date. Any objection must include the name and number of the case and a statement of the reason why the objector believes that the Court should find that proposed settlement is not in the best interests of the class. Objectors who have filed written objections to the settlement may also appear at the hearing and be heard on the fairness of the settlement. To be effective, the request for exclusion or objection must be postmarked by June 13, 2018. If not already filed, Defendants shall file with the Court proof of compliance with the notice requirements of the Class Action Fairness Act of 2005, 28 U.S.C. section 1715(b). A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Dy8YwANi GLYNN COUNTY, GA: Faces Class Action Over Wealth Discrimination --------------------------------------------------------------- Michael King, writing for 11alive.com, reports that the ACLU of Georgia has filed a federal class-action lawsuit against Glynn County, Georgia, for violating the constitutional rights of persons arrested for misdemeanors. The suit names the county itself, along with the county's sheriff, E. Neal Jump, the county's chief magistrate judge, Alex Atwood, and court-appointed public defender, Stephen E. Tillman. The lawsuit seeks an immediate change to the county's cash bail system which it says discriminates against persons who are "financially strapped" and cannot afford to pay bail amounts determined by the county's bail schedule. Anyone who cannot afford those amounts are immediately detained indefinitely, while those who can are released until trial. According to the lawsuit, this means low-income individuals are denied effective and meaningful representation at bail hearings where an attorney would be able to argue for their release. "People who cannot afford to pay bail or hire a private attorney face an impossible choice -- plead guilty or face loss of their families, jobs, and homes as they wait for their cases to move through the system," said Andrea Woods, Equal Justice Works Fellowship attorney with the ACLU's Criminal Law Reform Project. "A person's wealth should never decide their freedom, but that's exactly what's happening in Georgia and across the country. In Glynn County, the contract public defender and prosecutors alike refuse to grant people the presumption of innocence and ignore the government's due process obligation to ensure that release upon arrest is the norm." According to the lawsuit, the Glynn County system of money bail violates the US Constitution because it keeps people in jail if they cannot afford to pay bail while allowing those who can to go home. The suit was filed on behalf of two plaintiffs representing a class in the US District Court for the Southern District of Georgia, accusing county officials of operating a two-tiered justice system based on wealth, in violation of the Right-to-Counsel and Due Process clauses of the 6th and 14th Amendments and the Equal Protection clause of the 14th Amendment of the US Constitution. [GN] GOTHAM HALL: Settecasi Seeks OT Compensation under Labor Law ------------------------------------------------------------ VINCENT SETTECASI, on behalf of himself and others similarly situated, the Plaintiffs, v. GOTHAM HALL, LLC; GOTHAM HALL OPERATING ENTITY, LLC; CORE ZIEGFELD, LLC d/b/a ZIEGFELD BALROOM; SIMON AUERBACHER; BRUCE A. KURTZ; and any other related entities, the Defendants, Case No. 152791/2018 (N.Y. Sup. Ct., March 29, 2018), seeks to recover retained gratuities and overtime compensation pursuant to New York Labor Law. According, to the complaint, beginning in approximately March 2012 and continuing through the present, Defendants have engaged in a policy and practice of unlawfully retaining employees' gratuities at their catering facility in New York. A reasonable customer would believe that the Service Charge was in fact a gratuity for Plaintiff and similarly situated employees. Defendants have engaged in a policy and practice of failing to pay the Service Charge to Plaintiff and similarly situated employees and instead retained the money for their own benefit in violation of Labor Law Article.[BN] Attorneys for Plaintiffs and the Putative Class: Jeffrey K. Brown, Esq. Suzanne Leeds Klein, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 GOOGLE INC: CEI's Ted Frank Responds to Cy Pres Argument -------------------------------------------------------- Alison Frankel, writing for Reuters, reports that Ted Frank of the Competitive Enterprise Institute's Center for Class Action Fairness believes cy pres -- the practice of distributing class action settlement money to court-approved charities instead of class members -- perverts the intention of the federal rules enabling class actions. In a petition for U.S. Supreme Court review of a case in which Mr. Frank is, himself, an objecting class member, his lawyers at Baker & Hostetler argued that cy pres provisions in class action settlements highlight the "pathologies of the class action procedure by facilitating settlements that provide substantial benefits to defendants and class counsel, at the expense of class members." According to Mr. Frank's brief, class action lawyers like to use cy pres because they can claim a portion of the funds as fees without going to the work and expense of finding class members. Defendants can steer money to favored nonprofits. Judges may like doling out money to worthy causes. Everyone is happy, according to the Frank brief, except for the class members who should be getting settlement proceeds. So it would seem to be little wonder, according to the Frank petition, that cy pres is an increasingly common tactic in class action settlements. The petition cited a 2017 Law360 analysis that found more settlements included cy pres provisions in 2015 and 2016 than in any previous year. As you may recall, Chief Justice John Roberts also has serious questions about the use of cy pres in class actions. In 2013, the Supreme Court denied review in Marek v. Lane, but the chief justice suggested in a statement accompanying the denial that the justices might need to clarify "when, if ever," cy pres payments are warranted, citing "fundamental concerns surrounding the use of such remedies in class action litigation." The chief justice's statement in Marek (in which, Ms. Frankel should note, Ted Frank represented the class action objector seeking Supreme Court review) might seem to bode well for Frank's new petition, which stems from Google's agreement to pay $8.5 million to resolve a class action claiming it violated users' privacy by sharing search data with other websites. The settlement called for all of the money, aside from a $2.25 million fee award for class counsel and token payments to class representatives, to be disbursed to six groups that study or advocate for internet privacy. But in Google's brief opposing Supreme Court review, filed on March 9, the company's lawyers at Mayer Brown and O'Melveny & Myers contend that Frank has picked the wrong case for a policy argument over the appropriate use of cy pres. According to the company, Mr. Frank and his lawyers failed to acknowledge adequately that there are different kinds of cy pres provisions -- those that distribute whatever remains in a settlement fund after class members have made claims and those in which charities get all of the money because it's not feasible to distribute tiny amounts to class members. The Google settlement falls into the second category: If the money had been meted out to all 129 million Google users in the class, each would have been entitled to four cents. Google said there's no need for the Supreme Court to review settlements comprised entirely of cy pres funds because they've dried up after the chief justice's statement in Marek. "There is a complete mismatch between petitioners' assertion that 'cy pres settlements are increasingly prevalent' and the question presented, which asks this court to review cy pres-only settlements," the Google brief said. Citing the same Law360 analysis as the Frank brief, Google argued that between Roberts' comments in Marek and 2016, 97 percent of the cy pres provisions in class action settlements address leftover money. Only 3 percent direct all settlement money to charities. Google posited that these all-cy pres settlements are likely to become ever rarer because the Supreme Court's ruling in Spokeo v. Robins will restrict class actions alleging only statutory damages. "Spokeo clarifies that Article III requires lower federal courts to weed out putative class actions seeking statutory damages in the absence of actual harm," the Google brief said. "These are the cases that are most likely to result in proposed cy pres-only settlements if they make it past the pleadings stage; settlements are naturally smaller when the presence of any injury is unlikely." (Google's faith in the power of Spokeo may stem from the law firm affiliation of its counsel of record: Donald Falk is a partner at Mayer Brown, which represented Spokeo at the Supreme Court.) Since all-cy pres settlements are going extinct -- and since the federal circuits agree that cy pres can be an appropriate way to mop up what remains of settlement funds after class members' claims -- the Supreme Court need not get involved. For what it's worth, Ms. Frankel did a Westlaw search for decisions approving settlements with cy pres provisions and quickly reviewed the most recent 80 cases, dating back to June 2017. None involved an all- cy pres settlement, though I did find a January 2017 decision from the 9th Circuit in an all-cy pres case. In Koby v. ARS National, the appeals court overturned approval of a $35,000 settlement in a class action against a small debt collector, holding that the cy pres award provided no benefit to 4 million class members. Ms. Frankel asked Mr. Frank to respond to Google's argument. In an email, he agreed that Chief Justice Roberts' 2013 statement did put a damper on cy pres settlements, but said the 9th U.S. Circuit Court of Appeals' approval of the Google settlement could revive all-cy pres deals because it enables defendants and class counsel to claim even large settlements are non-disbursable to classes containing millions of people. (Data breach cases are a prime example.) Mr. Frank said he's already seen the 9th Circuit's Google ruling cited in two cases directing all or most of the settlement money to charity. He also said he doubts Spokeo will have much impact. "If cert is denied, we will see a lot of forum shopping of cy pres settlements to the 9th Circuit, because class counsel will always prefer the glory of a big charitable contribution to a million anonymous small-dollar checks to ungrateful class members," Mr. Frank said. The Supreme Court has not yet scheduled a conference date in the Google case. Google counsel Falk did not respond to Ms. Frankel's email requesting comment. [GN] GOOGLE INC: Defends $8.5-Mil. Class Action Settlement ----------------------------------------------------- The National Law Journal reports that Google Inc. has told the U.S. Supreme Court there was nothing unfair or unreasonable about the tech company's $8.5 million settlement of a class action in which $5.3 million of the funds go to third parties and none to members of the class. In urging the justices to deny review in Frank v. Gaos, Mayer Brown partner Donald Falk, representing Google, argued the cy pres-only settlement "will benefit the class as a whole by funding closely targeted projects that are directly connected to the internet privacy issues raised by plaintiffs' claims." Mr. Falk, a partner in the firm's Palo Alto, California, office, said the "recipient institutions are of the highest quality and specialize in internet consumer issues." Google is not the only party in the high court defending a cy pres settlement provision. The Trump administration's Justice Department recently found itself in the awkward position of urging the justices to deny review of challenges to $380 million that third parties are set to receive as part of a larger U.S. government settlement with Native American farmers and ranchers. The Justice Department's position was awkward because it had called the cy pres provision "regrettable" in the lower court. U.S. Attorney General Jeff Sessions in June announced a new policy that prohibits, with a few exceptions, government attorneys from entering into settlement agreements that require so-called "cy pres" payments--funds that are given to persons or entities that are not direct parties to the dispute. The Google case in the Supreme Court stems from a class action claiming that Google illegally shared the search queries of its users. The U.S. Court of Appeals for the Ninth Circuit in August affirmed the district court's approval of the settlement and the trial judge's finding that the settlement fund was not distributable to a class of an estimated 129 million Google users. Distributing the fund would result in each class member receiving about 4 cents, according to the appellate court -- "a de minimis amount if ever there was one," the panel remarked. Instead, the Google settlement directs the funds to be distributed proportionally to six recipients that are devoted to web privacy: Carnegie Mellon University; World Privacy Forum; Chicago-Kent College of Law Center for Information, Society and Policy; Stanford Law School Center for Internet and Society; Berkman Klein Center for Internet & Society at Harvard University; and AARP Foundation. Ted Frank, director of litigation and the Center for Class Action Fairness at the Competitive Enterprise Institute, and Melissa Ann Holyoak were objectors to the settlement in the district court and in the Ninth Circuit. In their Supreme Court petition, they argued: "An $8.5 million class action settlement that awards absent class members no relief at all in exchange for their claims -- no money, no alteration of the defendant's allegedly injurious conduct, not even coupons -- is not 'fair, reasonable, and adequate' by any measure." Their high court counsel, Andrew Grossman, partner at Baker & Hostetler, noted in the petition that Chief Justice John Roberts Jr., writing in a 2013 case, said cy pres relief raised "fundamental concerns." The justices, Judge Roberts suggested then, may need in a suitable case "to clarify the limits" on use of those remedies. Grossman contends: "This is that case, and the need for clarification is acute." Mayer Brown's Falk disagrees. All of the circuits agree with the Ninth, he told the Supreme Court, that "a cy pres-only settlement is appropriate in the rare circumstance where direct distribution to class members is infeasible, and all insist on a close nexus between the cy pres remedy and the interests of settling class members." The number of cy pres-only settlements has dropped dramatically, said Falk, who was once described as "California's class action killer." The Google case, he said, is "especially well-suited" to a cy pres remedy because class members have not alleged any actual harm from the alleged anti-consumer practices. "At bottom, then, the petition presents a case-specific disagreement with the findings below that distribution was infeasible in this case, with its class estimated at 129 million members," Mr. Falk wrote. O'Melveny & Myers partner Randall Edwards in San Francisco also represents Google in the Supreme Court. The three named plaintiffs in the class action against Google also have urged the justices to deny review. Like Mr. Falk, their counsel, Kassra Nassiri of San Francisco's Nassiri & Jung, argued there is no circuit conflict on the legal standards for determining the fairness and reasonableness of cy pres provisions. He also said the petition challenging the deal presents a "fact-bound question" that has no significance beyond the Google settlement itself. [GN] GOOGLE INC: Says $8.5MM Class Action Settlement Not Unfair ---------------------------------------------------------- Edith Roberts, writing for SCOTUS blog, reports that at The National Law Journal, Marcia Coyle reports that, in a brief opposing cert in Frank v. Gaos, "Google Inc. has told the U.S. Supreme Court there was nothing unfair or unreasonable about the tech company's $8.5 million settlement of a class action in which $5.3 million of the funds go to third parties and none to members of the class." At Reuters, Alison Frankel looks at both sides' arguments in the case, which asks whether "cy pres -- the practice of distributing class action settlement money to court- approved charities instead of class members -- perverts the intention of the federal rules enabling class actions." Briefly: At the Constitutional Accountability Center, Ashwin Phatak looks at Parker v. Montgomery County Correctional Facility, a cert petition that "raises a critically important question about prisoners' ability to access the court system." At the Whistleblowers Protection Blog, Aaron Jordan highlights an amicus brief supporting "FBI whistleblower John Parkinson's [cert petition] seeking review of the Federal Circuit's decision denying veterans' preference-eligible FBI employees the right to raise whistleblowing as an affirmative defense in an appeal to the Merit Systems Protection Board." At ThinkProgress, Kyla Mandell weighs in on a cert petition in which "[m]ining groups [have asked] the U.S. Supreme Court to overturn an Obama-era rule banning uranium mining near Grand Canyon National Park in the latest push to open up public lands to industry." Also at ThinkProgress, Ian Millhiser calls National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family- planning services, including contraception and abortion, "a different kind of abortion case -- one that forces the Court to untangle a difficult First Amendment web woven by its own decisions." At Vinson & Elkins' Lincoln's Law Blog, Ralph Mayrell and John Elwood monitor the 10 False Claims Act cases currently on the Supreme Court's docket. Subscript offers a graphic explainer for Upper Skagit Indian Tribe v. Lundgren, in which the justices will consider tribal immunity from state-court actions to adjudicate title to land. At The World and Everything In It, Mary Reichard analyzes the oral arguments in Ohio v. American Express Co., which involves the application of antitrust law to credit-card-network anti- steering rules, and Rosales-Mireles v. United States, which asks when erroneous applications of the U.S. Sentencing Guidelines should be corrected on plain-error review. At his eponymous blog, Lyle Denniston reports that the government has told the lower court that it "wants the controversy over the 'DACA' program for younger undocumented immigrants to be back at the Supreme Court in time for initial action before the Justices' summer recess." [GN] GRAPHIC COMMUNICATIONS: Faces ERISA Suit by Bator et al. -------------------------------------------------------- DONALD BATOR, EDMOND W. MOSES, CHRISTOPHER O'MALLEY, MICHAEL ANTHONY PAPPA and ROGELIO JIMENEZ, JR. on behalf of themselves and all others similarly situated, the Plaintiffs, v. THE BOARD OF TRUSTEES OF THE INTER-LOCAL PENSION FUND of the Graphic Communications Conference of the International Brotherhood of Teamsters. LOCAL NO. 458-M GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, DISTRICT COUNCIL NO. 4 GRAPHIC COMMUNICATIONS CONFERENCE OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, the Defendants, Case No. 1:18-cv-01770 (N.D. Ill., March 12, 2018), seeks to recover damages as a result of Defendants' breach of fiduciary duties under the Employee Retirement Income Security Act, 29 U.S.C. 1001-1461, and for state law claims of fraud and breach of contract. The Defendant Trustees is named as a fiduciary to the "The Inter- Local Pension Fund of the Graphic Communications Conference of the International Brotherhood of Teamsters", in the Fund's Trust Indenture. Defendant Trustees possesses and exercises the authority to control and manage the operation and administration of the Fund. As a fiduciary to the Fund, Defendant Trustees is obligated and must solely act in the interest of those whom the Fund was established to benefit; eligible members of local unions affiliated with the International Brotherhood of Teamsters, who are participants in the Fund. Defendant Trustees breached its fiduciary duty to Plaintiffs and the Class by failing to enforce the Trust Indenture's terms. Specifically, Defendant Trustees failed to enforce the terms within the Summary Plan Description portion of the Trust Indenture that stated all members of a group that voted to participate in the Fund must become and remain participants in the Fund. Further, Defendant Trustees failed to enforce the terms contained in Article IV, Sec 1(c) of the Trust Indenture, which provided that any participating local union, that determined by official action of its membership with the prior approval of Defendant Trustees, that its members' contributions should be set higher than $5.00 a week, shall apply that formula to all participating members of the local union. As a direct and proximate result of Defendant Union's fraud, Plaintiffs and the Class have sustained damages and loss including, but not limited to: a) reductions in future Fund benefits; b) decreased value of Plaintiffs' and the Class' investments in the Fund; c) loss of interest; d) loss of use of their money; e) loss of Union membership and the benefits associated therewith; f) loss of benefits available to active Fund participants including but not limited to withdrawal at the age of 59, a disability benefit, and a death benefit, among others; and g) active status in the Fund.[BN] The Plaintiffs are represented by: Larry D. Drury, Esq. Thomas M. Rebholz, Esq. LARRY D. DRURY, LTD. 100 North LaSalle Street, Suite 2200 Chicago, IL 60602 Telephone: (312) 346 7950 E-mail: ldd@larrydrury.com GUARDIAN CREDIT: Class Certification Sought in "Starkey" Suit ------------------------------------------------------------- Samantha Starkey moves the Court to certify the class described in the complaint of the lawsuit styled SAMANTHA STARKEY, Individually and on Behalf of All Others Similarly Situated v. GUARDIAN CREDIT UNION, Case No. 2:18-cv-00411 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=UjDQceQx The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com GULLIVER'S TAVERN: Court Grants Class Certification in "Levi" ------------------------------------------------------------- In the lawsuit styled RUBI LEVI and EMILY CHICOINE, on behalf of themselves and others similarly situated, the Plaintiffs, v. GULLIVER'S TAVERN INCORPORATED; SOLID GOLD PROPERTIES, INC.; THOMAS TSOUMAS; and PATRICIA TSOUMAS; all d/b/a THE FOXY LADY, the Defendants, Case No. 1:15-cv-00216-WES-PAS (D.R.I.), the Hon. Chief Judge William E. Smith entered an order on March 30, 2018: 1. denying Defendants' motion for summary judgment and motion to preclude Class or collective certification; and 2. granting Plaintiffs' motion for partial summary judgment and motion for class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=mI0ikSA6 HARLEY-DAVIDSON: Faces Class Action in Tenn. Over TCPA Violation ---------------------------------------------------------------- Sophia Morris, writing for Law360, reports that a Harley-Davidson dealership has been hit with a proposed class action in Tennessee federal court accusing it of making repeated unsolicited calls to an individual on the Do Not Call Registry in violation of the Telephone Consumer Protection Act. Harley-Davidson of Cool Springs, part of the Revolution Motorsports dealer group, is alleged to have made several unsolicited marketing calls to named plaintiff Foster Billings II using an automated dialing machine, according to the complaint filed on March 9. The case is Billings v. Revolution Motorsports, Case No. 3:18-cv- 00277 (M.D. Tenn.). The case is assigned to Judge William L. Campbell, Jr. The case was filed March 9, 2018. [GN] HEALTH & HUMAN SERVICES: "Garza" Suit Wins Class Certification -------------------------------------------------------------- In the lawsuit styled ROCHELLE GARZA, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, the Plaintiff, v. ERIC D. HARGAN, et al., the Defendants, Case No. 1:17-cv-02122-TSC (D.C.), the Hon. District Judge Tanya S. Chutkan entered an order on March 30, 2018: 1. granting Plaintiffs' motion for class certification and Plaintiffs' motion for a preliminary injunction as to the class of: "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government; and 2. enjoining Defendants Eric Hargan, Steven Wagner, and Scott Lloyd (along with their respective successors in office, officers, agents, servants, employees, attorneys, and anyone acting in concert with them) from: 3. interfering with or obstructing any class member's access to: judicial bypass, medical appointments related to pregnancy dating, non-directive options counseling, abortion counseling, an abortion, or other pregnancy- related care; 4. forcing any class member to reveal the fact of their pregnancies and their abortion decisions to anyone, and from revealing those decisions to anyone themselves, either before or after an abortion; 5. retaliating against any class member based on her decision to have an abortion; and 6. from retaliating or threatening to retaliate against contractors that operate the shelters where class members currently reside for any actions that those contractors or shelters have taken or may take in facilitating class members' ability to access pregnancy and abortion-related medical care and/or an abortion. Eric D. Hargan is the Deputy Secretary of the Department of Health and Human Services. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=AqZNYora HEALTHCARE NATIONAL: Picha Sues over Unsolicited Telephone Calls ---------------------------------------------------------------- Kenneth Picha, Individually and on behalf of All Others Similarly Situated, the Plaintiff, v. National Association for Medical and Dental, Inc. and Healthcare National Marketing, Inc., the Defendants, Case No. 3:18-cv-00643-AJB-AGS (S.D. Fla., March 29, 2018), seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendants in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy. The TCPA was designed to prevent calls like the ones described within this complaint, and to protect the privacy of citizens like Plaintiff. "Voluminous consumer complaints about abuses of telephone technology -- for example, computerized calls dispatched to private homes -- prompted Congress to pass the TCPA." In enacting the TCPA, Congress intended to give consumers a choice as to how creditors and telemarketers may call them, and made specific findings that "[t]echnologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer." According to the complaint, sometime prior to January 1, 2013, Plaintiff was assigned, and became the owner of, a cellular telephone number from his wireless provider. Prior to January, 2018, Plaintiff requested that Defendants cease and desist any and all calls to Plaintiff's cellular number. The Plaintiff also registered his telephone number on the National Do Not Call Registry, on July 8, 2017. In fact, to make it more apparent for Defendants, Plaintiff previously filed a civil action against Defendants in order to stop any unauthorized calls from Defendants to Plaintiff's telephone cellular number. The Defendants' calls or liability as to Plaintiff prior to January 2018 are not subject to this lawsuit. Despite previously notifying Defendants that their calls are neither welcomed nor authorized, Defendants continued calling Plaintiff's cellular telephone using an automatic telephone dialing system as defined by, using an "artificial or prerecorded voice" as prohibited by 47 U.S.C. section 227(b)(1)(A). Healthcare National delivers peace of mind by offering quality insurance products through a multitude of carriers and options to fit the need of every customer.[BN] The Plaintiff is represented by: Joshua Swigart, Esq. Yana A. Hart, Esq. HYDE AND SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com yana@westcoastlitigation.com - and - Kevin Lemieux, Esq. THE LAW OFFICE OF KEVIN LEMIEUX, APC 1775 Hancock Street, Suite 180 San Diego, CA 92110 Telephone: (619) 488 6767 Facsimile: (619) 488 6767 E-mail: kevin@lawyerkevin.com HENRY SCHEIN: Faces Class Action, May 7 Lead Plaintiff Deadline --------------------------------------------------------------- The securities litigation law firm of Brower Piven, A Professional Corporation, on March 13 disclosed that a class action lawsuit has been commenced in the United States District Court for the Eastern District of New York on behalf of purchasers of Henry Schein, Inc. (Nasdaq:HSIC) ("Henry Schein" or the "Company") securities during the period between February 13, 2013 and February 12, 2018, inclusive (the "Class Period"). Investors who wish to become proactively involved in the litigation have until May 7, 2018 to seek appointment as lead plaintiff. If you wish to choose counsel to represent you and the class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in Henry Schein securities during the Class Period. Members of the class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the defendants' failure to disclose during the Class Period that Henry Schein was engaging in anti-competitive behavior through agreements with Benco Dental Supply Company and Patterson Companies, Inc., in violation of United States antitrust laws, and these violations of U.S. antitrust laws would result in heightened scrutiny by the federal government and a lawsuit filed but the Federal Trade Commission ("FTC"). According to the complaint, following a February 12, 2018 FTC announcement that it filed a complaint against Henry Schein, among others, alleging violations of U.S. antitrust laws, the value of Henry Schein shares declined significantly. If you have suffered a loss in excess of $100,000 from investment in Henry Schein securities purchased on or after February 13, 2013 and held through the revelation of negative information during and/or at the end of the Class Period and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please contact Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415-6616. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. [GN] HLADIK ONORATO: Accused of Wrongful Conduct Over Debt Collection ---------------------------------------------------------------- Angel Medina, on behalf of himself and all others similarly situated, v. Hladik, Onorato & Federman, LLP, Case No. 5:18-cv- 00955-EGS (E.D. Penn., March 6, 2018), seeks to put a stop to the Defendant practice of sending collection letters that falsely represents the legal status of the alleged debt. Hladik, Onorato & Federman, LLP is engaged, by use of the mails and telephone, in the business of attempting to collect a debt. [BN] The Plaintiff is represented by: Daniel G. Ruggiero, Esq. THE LAW OFFICES OF DANIEL RUGGIERO 275 Grove Street, Suite 2-400 Newton, MA 02466 Telephone: (339) 237-0343 Facsimile: (339) 707-2808 E-mail: druggieroesq@gmail.com HOME DEPOT: Court Certifies Lock-In and Hourly Employee Classes --------------------------------------------------------------- In the lawsuit styled JOHN UTNE, the Plaintiff, v. HOME DEPOT U.S.A., INC., the Defendant, Case No. 3:16-cv-01854-RS (N.D. Cal.), the Hon. District Judge Richard Seeborg entered an order on March 30, 2018, granting certification to Lock-In Class and Hourly Employee Class: The Hourly Employee Class is defined as: "[a]ll individuals employed by Home Depot in hourly-paid or non-exempt positions in California at any time since March 8, 2012." The Lock-In Class encompasses: "[a]ll individuals employed by Home Depot in hourly-paid or non-exempt positions in Home Depot stores in California at any time since March 8, 2012, and who worked at least one shift ending after the time that the Home Depot store was scheduled to close to the public for the evening." The Court said, "With respect to the Hourly Employee Class, Home Depot's liability may be determined through answers to questions common to the class. Whether the location of time clocks requires employees to walk across the store to clock in, and whether that time is compensable, are questions that are amenable to class resolution. As to the proposed Lock-In Class, whether the locking of store doors at closing causes employees to remain under the control of Home Depot after clocking out and before exiting the store is a common question that is subject to common proof. For both proposed classes, the key question of whether the alleged pre-shift and post-shift time is more than de minimus may be resolved on a class-wide basis. Although Home Depot argues that specific amounts of uncompensated time will vary from class member to class member, the existence of individual inquiries as to damages is not sufficient to defeat class certification. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=AqZNYora HOME DEPOT: Averts 4x4 Wood Board Labeling Class Action ------------------------------------------------------- RJ Vogt, writing for Law360, reports that an Illinois federal judge on March 12 shot down a proposed class action against hardware chain Home Depot over claims it shorted customers who bought lumber, finding that the use of "4x4" on labels was literally true because it didn't include inch-mark symbols after each number. Brought by shopper Mikhail Abramov, the suit said The Home Depot Inc. violated the Illinois Consumer Fraud and Deceptive Business Practices Act, or ICFA, by selling a 6-foot-long 4x4 piece of wood that was actually only 3´ inches square. The case is Abramov v. The Home Depot, Inc., Case No. 1:17-cv- 01860 (N.D. Ill.). The case is assigned to Honorable Sharon Johnson Coleman. The case was filed March 8, 2017. [GN] HOME DEPOT: Plaintiff Can Still Refile 4x4 Lumber Class Action -------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that a federal judge on March 12 dismissed a lawsuit accusing Home Depot Inc of deceiving shoppers about the size of its four-by-four lumber. U.S. District Judge Sharon Johnson Coleman in Chicago rejected plaintiff Mikhail Abramov's claim that the largest U.S. home improvement retailer should be held liable for selling lumber as 4 inches thick by 4 inches wide, when the dimensions were actually 3-1/2 inches by 3-1/2 inches. While not persuaded by Atlanta-based Home Depot that the lumber's actual size was "common knowledge," Coleman said its labels reading "4X4-6'" would not have misled reasonable consumers. She said the "4x4" portion lacked any unit of measurement, and Home Depot never expressly represented that its lumber actually measured 4 inches by 4 inches. Mr. Abramov's allegations "describe no more than a label that was potentially confusing to some consumers," Coleman wrote. The dismissal was without prejudice, meaning Mr. Abramov can refile his proposed class-action complaint, which sought unspecified damages. His lawyer did not immediately respond to requests for comment. Home Depot spokesman Stephen Holmes said on March 12: "We're glad to have resolved the issue." In seeking a dismissal, Home Depot said a ruling for Mr. Abramov would "ignore nearly a century of standardization and disturb an entire industry's reliance on these lumber names." U.S. District Judge Edmond Chang, who also sits in Chicago, in September dismissed a similar lawsuit filed by Mr. Abramov's law firm against home improvement retailer Menards. Judge Chang, however, found that "no reasonable consumer would think that the labels showed the exact dimensions of the lumber." His decision has been appealed. The case is Abramov v Home Depot Inc, U.S. District Court, Northern District of Illinois, No. 17-01860. [GN] IMPACT HOME: Court Certifies Healthcare Workers Class in "Clark" ---------------------------------------------------------------- In the lawsuit styled DOROTHY CLARK, Individually and on behalf of all others similarly situated, the Plaintiff, v. LASHONDA S. WILLIAMSON d/b/a Impact Home Care Services, the Defendant, Case No. 1:16-cv-01413-TDS-JLW (M.D.N.C.), the Hon. District Judge Thomas D. Schroeder entered an order on March 30, 2018: 1. granting Plaintiff's motion for conditional certification as to the Fair Labor Standards Act collective, defined as: "all current and former home healthcare workers (personal care aides, certified nursing assistants and in-home aides) who worked for LaShonda Swindell Williamson d/b/a Impact Home Care Services at any time since January 1, 2015 and who were classified as an independent contractor and who were not paid time and a half for all hours worked over 40 in a work week"; 2. approving Plaintiff's proposed notices and extending opt-in period to 60 days from the date the notice is mailed to putative class members; 3. authorizing Plaintiff's counsel to send the approved notice by first-class U.S. mail to the last known address of each putative plaintiff within 14 days of the entry of this order; 4. authorizing Plaintiff's counsel to send electronic copy of the approved notice to each putative plaintiff's personal email address (for former employees) and work email address (for current employees) within 14 days of the entry of this order; 5. authorizing Plaintiff's counsel to re-mail notices/postcards that are returned as undeliverable for those individuals for whom counsel can find better addresses; 6. permitting Plaintiff's counsel to call any individual whose notice is returned as undeliverable for the limited purpose of obtaining a current address for re-mailing notice; 7. permitting Plaintiff's counsel to send by first-class U.S. mail, the reminder postcard, in the form approved by the court, to potential opt-in plaintiffs who have not returned their Consent Form, 30 days before the expiration of the opt-in period; 8. directing Defendant to post the approved notice in a conspicuous place in her offices within 14 days of entry of the order; and 9. directing Defendant to provide Plaintiff's counsel, in electronically readable/importable form, the names, addresses, email addresses, and any employee number or unique identifier of all collective members within 7 days of the entry of this order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=hrwDGKHT INTEL CORPORATION: Faces "Phillips" Suit Over Defective CPU's ------------------------------------------------------------- Cole Phillips, individually and on behalf of all others similarly situated v. Intel Corporation, Case No. 3:18-cv-00389-HZ (D. Ore., March 5, 2018), is brought on behalf of all persons or entities in the United States who purchased one or more Intel CPUs either from Intel, its authorized retail sellers, or from a computer retailer or manufacturer who installed an Intel CPU inside the customer's computer, PC or mobile device, that are defectively designed. Specifically, the inherent defect in Intel's CPUs creates security flaw or vulnerability which allows hackers the ability to access personal, sensitive, private and secure information in every computer, PC or Device that uses an Intel CPU which were designed with features and components to perform "speculative execution," says the complaint. Intel Corporation is one of the top-selling semiconductor companies in the world and manufacturers semiconductor chips of central processors (CPUs) that are sold as individual components or sold as components in computers including personal computers (PCs) and mobile devices. [BN] The Plaintiff is represented by: Steve D. Larson, Esq. Jennifer S. Wagner, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 E-mail: slarson@stollberne.com jwagner@stollberne.com - and - Charles E. Schaffer, Esq. Daniel C. Levin, Esq. LEVIN SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: (215) 592-1500 Facsimile: (215) 592-4663 E-mail: cschaffer@lfsblaw.com INTERSTATE HOTELS: Sheraton Workers Win Wage Class Action --------------------------------------------------------- Jon Steingart, writing for Bloomberg Law, reports that workers at a Sheraton hotel in San Francisco won class action status for their claim that the employer created a culture that encouraged staff to work through breaks without pay. The class includes approximately 350 employees, according to the order by Judge William Alsup of the U.S. District Court for the Northern District of California. The company's focus on customer service pushed staff to work off the clock to keep up with job demands, Dina Rae Richardson, who cleaned hotel rooms as a room attendant, said. The judge's order criticizes the way the hotel company's lawyers obtained statements from three former employees that were used to argue against certifying the class. Lawyers from Morgan, Lewis & Bockius LLP had the former employees sign declarations the lawyers drafted based on interviews they conducted with them. The Morgan Lewis lawyers also represented the former employees in depositions the lawyers litigating the case against the hotel operator conducted later. Judge Alsup ordered the hotel's lawyers to explain why their firm shouldn't be disqualified from the case for violating conflict- of-interest rules against representing parties with adverse interests. "I'm going to order an Order to Show Cause why Morgan Lewis and Bockius should not be disqualified from this case both as to Defendant and as to Plaintiffs, because you wound up on both sides of the case," he told them during an evidentiary hearing. The employees' declarations showed they didn't believe the company committed wrongdoing, meaning the workers who signed them lacked claims against the company, the Morgan Lewis lawyers said. "Once the former employees signed their declarations, neither Interstate nor Morgan Lewis believed there was a conflict between Interstate and the three former employees or that they remained putative class members," Jason Mills, a Morgan Lewis lawyer, wrote in response to the show cause order. "Interstate should not be punished by the disqualification of its chosen counsel because of that counsel's very limited representation of the three former Interstate employees at their depositions," he wrote. "In hindsight, the better practice would have been to obtain, in an abundance of caution, advance written waivers from Interstate and the three former employees, or to have offered separate counsel to the three former employees for representation at their depositions, or to have simply defended the depositions without representing the three former employees," Mr. Mills wrote, with an apology for allowing the issue to arise. He pledged that Morgan Lewis wouldn't repeat the conduct in the Northern District of California or any other court. That explanation didn't persuade Alsup. Morgan Lewis "plainly violated" California attorney professional conduct rules, he concluded. Although the lawyers disclosed that they worked for Interstate Hotels & Resorts Inc. and Interstate Management Company LLC, which operated the Sheraton Fisherman's Wharf, the employees, whose first language was Cantonese or Vietnamese, required interpreters and may not have understood their rights and what they might be agreeing to or giving up by participating, Alsup said. A Morgan Lewis representative wasn't immediately available to respond to Bloomberg Law's request for comment on this issue March 13. Hotel's Lawyers Could Be Disqualified Morgan Lewis' violation could be enough to disqualify it from continuing to represent Interstate, Judge Alsup said. He allowed it to continue representing the company but barred Interstate from using the employees' declarations and depositions. He barred Morgan Lewis from cross-examining the employees if they're called to testify by Richardson's lawyers. "Some other firm without taint will have to do so," Judge Alsup said. "Possibly, the jury will be informed as to the facts underlying defense counsel's representation of hotel employees." Attorneys on both sides and a representative for Interstate didn't immediately respond to Bloomberg Law's request for comment March 13. Matthew Matern, Launa Adolph, and Kayvon Sabourian with Matern Law Group PC in Manhattan Beach, Calif., represent the class. Morgan Lewis attorneys Jason Mills -- jason.mills@morganlewis.com -- Hien Nguyen -- hien.nguyen@morganlewis.com -- and Rebecca Licht Jensen -- rebecca.jensen@morganlewis.com -- in Los Angeles and Robin Lagorio -- robin.lagorio@morganlewis.com -- in San Francisco represent Interstate. The case is Richardson v. Interstate Hotels & Resorts, Inc., 2018 BL 84007, N.D. Cal., No. 3:16-cv-06772, class certified 3/12/18. [GN] IYOGI INC: Kobialko Sues over Unsolicited Phone Calls ----------------------------------------------------- PAUL KOBIALKO, the Plaintiff, v. IYOGI, INC., IYOGI TECHNICAL SERVICES PVT. LTD., VISHAL DHAR, and UDAY CHALLU a/k/a UDHAYAN CHALLU, the Defendants, Case No. 1:18-cv-02319 (N.D. Ill., March 30, 2018), seeks to recover declaratory relief and statutory and compensatory damages caused by Defendant's violation pursuant to Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Illinois Consumer Fraud and Deceptive Practices Act. According to the complaint, iYogi or iYogi Tech systematically places unsolicited and harassing scam phone calls to consumers in Illinois in order to aggressively solicit business to increase its profitability at the consumers' expense. Placing unsolicited, unwanted, and harassing scam phone calls to Illinois consumers is an unfair business practice willfully employed by iYogi and/or iYogi Tech and is done on a large scale. Moreover iYogi's and/or iYogi Tech's unlawful and unfair scam solicitation efforts gives it an unfair competitive advantage over businesses that solicit lawfully (companies who legally place calls with prior consent, as authorized, and who lawfully cease calling upon realizing that they do not have consent to place such calls). The Plaintiff was substantially harmed by iYogi's misconduct. Over 40 Illinois residents have been substantially harmed by iYogi's misconduct. The class can be provisionally defined as all Illinois residents who were called on their cellular phones by iYogi and/or iYogi Tech without providing consent to be called and where the calls placed by iYogi and/or iYogi Tech resulted in autodialed and/or predictively dialed calls. iYogi is a remote technical support firm based in Gurgaon, India with customers in the United States, the United Kingdom, the United Arab Emirates, Australia, Canada, and India. iYogi provides subscription based technical support for personal computers, connected devices and peripherals, and software applications.[BN] The Plaintiff is represented by: James C. Vlahakis, Esq. Omar T. Sulaiman, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Avenue, Suite 200 Lombard, IL 60148 E-mail: jvlahakis@sulaimanlaw.com JUST BORN: White Seeks to Certify 3 Classes ------------------------------------------- In the lawsuit styled DARYL WHITE, JR., individually and on behalf of all others similarly situated, the Plaintiff, v. JUST BORN, INC., the Defendant, Case No. 2:17-cv-04025-NKL (W.D. Mo.), the Plaintiff asks the Court for an order: 1. certifying classes: a. Missouri Consumer Class defined as: "all Missouri residents who purchased a 5-ounce box of Hot Tamales candy and/or a 5-ounce box of Mike and Ike candy for personal, family, or household purposes within the relevant statute-of-limitations period"; b. Unjust Enrichment (Restatement) Multi-State Class defined as: "all persons residing in Arkansas, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Iowa, New York, Oklahoma, or West Virginia who purchased a 5-ounce box of Hot Tamales candy and/or a 5-ounce box of Mike and Ike candy for their personal or household use within the relevant statute-of-limitations period"; c. Unjust Enrichment (Appreciation) Multi-State Class defined as: "all persons residing in Alaska, Florida, Kansas, Kentucky, Maine, Maryland, Massachusetts, Missouri, Nevada, New Mexico, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, or Wisconsin who purchased a 5-ounce box of Hot Tamales candy and/or a 5-ounce box of Mike and Ike candy for their personal or household use within the relevant statute-of-limitations period" Excluded from any proposed Class is (i) Defendant, any entity in which Defendant has a controlling interest, (ii) the Court and its staff, and (iii) Class Counsel and their staff; 2. appointing Plaintiff as representative of the Classes; 3. appointing David L. Steelman of Steelman, Gaunt & Horsefield, Scott A. Kamber of KamberLaw LLC, and Christopher D. Moon of KamberLaw LLP as Class Counsel; 4. directing parties to meet and confer regarding the form of the proposed notice to potential Class members; and 5. granting such other relief as the Court deems necessary and appropriate. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZER668WL Attorneys for Daryl White, Jr. and the putative Class: David L. Steelman, Esq. Stephen F. Gaunt, Esq. STEELMAN, GAUNT &HORSEFIELD 901 Pine Street, Suite 110 Rolla, MO 65401 Telephone: 573 458 5231 Facsimile: 573 341 8548 E-mail: dsteelman@steelmanandgaunt.com sgaunt@steelmanandgaunt.com - and - Christopher D. Moon, Esq. Scott A. Kamber, Esq. KAMBERLAW LLP 9404 Genesee Avenue, Suite 340 La Jolla, CA 92037 Telephone: (310) 400 1053 Facsimile: (858) 800 4277 E-mail: cmoon@kamberlaw.com skamber@kamberlaw.com KAYAFAS CONTRACTING: Jaigua Seeks Unpaid Overtime & Wages --------------------------------------------------------- WALTER JAIGUA and JOHN DOE, on behalf of themselves, FLSA Collective Plaintiffs and the Class, the Plaintiffs, v. KAYAFAS CONTRACTING CO. INC., and ANTHONY KAYAFAS, the Defendants, Case No. 1:18-cv-01941 (E.D.N.Y., March 30, 2018), seeks to recover unpaid overtime, unpaid wages due to time-shaving, spread of hours premium, compensation due to improper wage deductions, liquidated damages and statutory penalties and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiffs brings claims for relief as a collective action pursuant to FLSA Section 16(b), 29 U.S.C. section 216(b), on behalf of all non-exempt employees, including, but not limited to, drivers, laborers, installers, helpers, construction workers, machine operators and painters employed by Defendants on or after the date that is six years before the filing of the Complaint in this case. The Plaintiffs and FLSA Collective Plaintiffs are and have been similarly situated, have had substantially similar job requirements and pay provisions, and are and have been subjected to Defendants' decisions, policies, plans, programs, practices, procedures, protocols, routines, and rules, all culminating in a willful failure and refusal to (i) pay them overtime compensation at the rate of one and one half times the regular hourly rate for work in excess of 40 hours per workweek, (ii) pay them for all hours worked due to a policy of time shaving, and (iii) improper wage deductions. Kayafas Contracting is in the painting and paper hanging business.[BN] Attorneys for Plaintiffs and FLSA Collective Plaintiffs: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465 1188 Facsimile: (212) 465 1181 KEEFE COMMISSARY: Micko Seeks Certification of Class Action ----------------------------------------------------------- In the lawsuit styled GEORGE MICKO, Plaintiffs, et a1. v. JULIE L. JONES, Secretary, Florida Dept. Of Corrections and KEEFE COMMISSARY NETWORK, LLC. (d/b/a) ACCESS CORRECTIONS, the Defendants, Case No. 1:18-cv-21242-JEM (S.D. Fla.), Mr. Micko asks the Court for an order certifying class action and appoint class counsel. Mr. Micko further asks that the court order the United States Marshall to serve Defendant's summons and order mutual participation in discovery. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=YreJfD5J The Plaintiff appears pro se. KISWANI TRUCKING: Permitted to Notify Plaintiff Class ----------------------------------------------------- In the lawsuit styled Brian Haggerty, the Plaintiff, v. Kiswani Trucking Inc., et al., the Defendant, Case No. 1:17-cv-06662 (N.D, Ill.), the Hon. Judge Charles P. Kocoras entered an order granting Plaintiff's unopposed motion to begin notice to the Plaintiff class. According to the docket entry made by the Clerk on April 5, 2018, Plaintiff's motion to dismiss party defendants Kholood Mohammad, Azi Kiswani, and Steve Kiswani without prejudice [17] is granted. The Plaintiff's unopposed motion to begin notice to the Plaintiff class is granted. Plaintiff's motion for leave to file amended complaint is granted. Status hearing is set for Sep. 16, 2018 at 9:30 a.m. A copy of the Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=vxZNGhxu LAKEMOOR, IL: Knutson Files Prelim. Bid for Class Certification --------------------------------------------------------------- The Plaintiffs in the lawsuit styled BRIAN KNUTSON, and HEATHER BENDL, individually and on behalf of all others similarly situated v. VILLAGE OF LAKEMOOR, a Municipal Corporation, Case No. 1:18-cv-01804 (N.D. Ill.), file with the Court their preliminary motion for class certification and request for discovery on certification issues. Brian Knutson and Heather Bendl, who both received notices of violation of Lakemoor's automated traffic enforcement system, and paid those violation notices, seek to certify this class: All individuals or entities to whom the Village of Lakemoor issued an automated traffic law enforcement system violation notice and who paid that violation notice (the "Class"). The Plaintiffs bring this action against the Village of Lakemoor for issuing automated traffic law enforcement system notices in violation of the specific, express terms of the Village's own Municipal Code. Specifically, the Plaintiffs contend, Lakemoor enacted an ordinance providing that the Village may issue violation notices for violation of Section 11-306(c) of the Illinois Vehicle Code captured on the Village's automated traffic law enforcement system cameras (red light cameras). The Plaintiffs also ask the Court to enter and continue the present Motion, so that the parties have an opportunity to conduct discovery on class certification issues, after which the Plaintiffs will amend this Motion and file a Memorandum of Law in support of the Amended Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0pgAcGHR The Plaintiffs are represented by: Mark D. Roth, Esq. Robert Fioretti, Esq. Kenneth Hurst, Esq. ROTH FIORETTI, LLC 311 S. Wacker Drive, Suite 2470 Chicago, IL 60606 Telephone: (312) 922-6262 E-mail: mark@rothfioretti.com rwf@rothfioretti.com ken@rothfioretti.com - and - James J. Eccleston, Esq. Stephany D. McLaughlin, Esq. Roman Sankovych, Esq. ECCLESTON LAW, LLC 55 W. Monroe Street, Suite 610 Chicago, IL 60603 Telephone: (312) 332-0000 Facsimile: (312) 332-0003 E-mail: jeccleston@ecclestonlaw.com smclaughlin@ecclestonlaw.com rsankovych@ecclestonlaw.com LJM FUNDS: Faces "Nosewicz" Suit Over Misleading Fin'l Reports -------------------------------------------------------------- James Nosewicz, individually and on behalf of all others similarly situated v. LJM Funds Management, Ltd., Two Roads Shared Trust, Northern Lights Distributors, LLC, Mark D. Gersten, Mark Garbin, Neil M. Kaufman, Anita K. Krug, Andrew B. Rogers, James Colantino, Anthony J. Caine and Anish Parvataneni, Case No. 1:18-cv-01589 (N.D. Ill., March 2, 2018), alleges that the Defendants made false and misleading Registration Statements and Prospectuses, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the complaint says, the Fund's Registration Statements and Prospectuses were materially false and misleading because rather than pursuing capital preservation in a down market and having risk mitigation techniques to preserve capital regardless of the market direction, the Fund was overexposed to the risk of volatility and a down market, as reflected in its losing 80% of its value in just two days as markets dropped and volatility spiked. While the Preservation Fund purportedly sought to preserve capital and obtain growth by betting against market volatility, the Fund actually made massive and unmitigated bets which exposed investors to excessive risks and catastrophic losses of capital, even in only a moderately down market of less than 5%, adds the complaint. The Preservation Fund was overexposed to the risk of volatility through leveraged options that, once exercised, required the Fund to liquidate its capital to pay off its positions, it notes. LJM Funds Management, Ltd. is the investment advisor to the Preservation Fund. LJM is responsible for managing the Fund's investments, executing transactions, and providing related advisory services. [BN] The Plaintiff is represented by: James E. Barz, Esq. Frank A. Richter, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 200 South Wacker Drive, 31st Floor Chicago, IL 60606 Telephone: (312) 674-4674 Facsimile: (312) 674-4676 E-mail: jbarz@rgrdlaw.com frichter@rgrdlaw.com - and - Frank J. Johnson, Esq. JOHNSON FISTEL, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 E-mail: FrankJ@JohnsonFistel.com LOBLAW: Judge Awards Carriage of Bread Price-Fixing Class Action ---------------------------------------------------------------- Alex Robinson, writing for Law Times, reports that an Ontario judge has awarded carriage of a proposed class action against bread sellers for an alleged price-fixing scheme to a consortium led by Strosberg Sasso Sutts LLP. Two different groups of law firms were vying to represent potential class members in the proposed lawsuit, brought against Loblaw, Sobeys, Metro and other Canadian retailers. The group led by Strosberg was made up of four law firms that have filed actions in five different provinces and the Federal Court. Sotos LLP and Siskinds LLP led the other consortium, which only launched an Ontario action. Ontario Superior Court Justice Ed Morgan found that the Strosberg group's approach would be in the best interests of a potential national class and fairer to the defendants, despite the fact the defendants favoured the Sotos group. "The Strosberg approach to the multijurisdictional problem is to accomplish in advance what the Sotos Team says that it will eventually do if awarded carriage," Morgan wrote in David v. Loblaw; Breckon v. Loblaw. "That is, in forming the Strosberg Consortium it has negotiated with counsel for the other existing actions." Lawyers say the decision could have implications for multi- jurisdictional litigation, which is a hot topic in the plaintiff class action bar. While Strosberg had brought together firms that had started actions in different jurisdictions, Sotos said it would enter negotiations with firms that brought actions in other provinces after it was awarded carriage. The Sotos consortium had agreed to provide an undertaking to the defendants that it would not start actions in other jurisdictions. The defendants argued this undertaking would be a way of containing the multi-jurisdictional nature of the matter and that the Strosberg group's refusal to provide such an undertaking should count against them in the carriage battle. Judge Morgan found that the undertaking had prevented the Sotos group from being proactive in other jurisdictions and that it had "ham-strung" the consortium in a way Strosberg had not. The judge also found that the use of such an undertaking by the defendants, who favoured the Sotos group, was unusual. "I take defendants' counsel at their word, but the embrace of a mechanism that is unlikely to aid their clients here is an unusual approach," Judge Morgan said. "A more cynical person might think that the defendants simply prefer the more passive of the two competing class counsel groups over the more proactive group." Jay Strosberg -- jay@strosbergco.com -- of Strosberg Sasso Sutts LLP, says the undertaking would not achieve the objective of limiting multi-jurisdictional litigation, as Merchant Law Group LLP, which was not part of either consortium, had launched actions in several western provinces. He says that if the Strosberg consortium had agreed to the undertaking, it would shut down its own actions in those provinces but would leave Merchant's actions. "It didn't achieve what they wanted," he says. Morgan noted that Sotos could not compete with Merchant in other provinces because of the undertaking, whereas Strosberg's ability to compete would help ensure uniformity of actions. David Sterns -- dsterns@sotosllp.com -- a partner with Sotos LLP, however, says the decision means firms that take the approach of filing in the jurisdiction in which they intend to move forward are going to be at a disadvantage to those that file in multiple jurisdictions. "What this means is that the arms race of multiple jurisdictional filings is back on," he says. Margaret Waddell -- marg@waddellphillips.ca -- of Waddell Phillips PC, says she finds it troubling that the decision seems to suggest that starting actions in multiple jurisdictions is seen as a good thing. She says this is completely contrary to what other decisions have said for years, which is that it is an abuse of process to start actions in jurisdictions in which one does not intend to pursue. "For the judge to weigh that as a plus I find troubling and concerning, when it's purely strategic and has been frowned on repeatedly," says Ms. Waddell, who was not involved in the case. She says the courts should consider both the undertaking not to start competing actions and Strosberg's actions to bring other firms into the fold that have already started actions as positive factors. The primary goal in these cases should be to avoid the multiplicity of actions, she says. Another factor at issue was the fact that the Sotos group included the claims of potential class members called umbrella purchasers in its action. The Strosberg group did not include umbrella purchasers in its action. Umbrella purchasers are potential class members who did not purchase bread directly from the defendants but suffered higher prices because of the alleged price-fixing scheme. The issue of whether umbrella purchasers have a cause of action is making its way up through the courts at the moment, and it is likely headed to the Supreme Court of Canada as judges in different provinces have ruled differently on the topic. The Strosberg consortium argued that including umbrella purchasers in the action would be a "problematic distraction" that could potentially threaten to derail the case with a challenge from the defendants. The Sotos group countered by saying not including umbrella purchasers in the action would be problematic as it would cause an obstacle when counsel inevitably tries to add them later. Given the unsettled nature of the law around the issue, Morgan found that the inclusion or exclusion of umbrella purchasers was a neutral factor and did not favour either group on the issue. Ms. Wadell says this finding is troubling as she thinks the interests of umbrella purchasers should not have been excluded and should have been given more consideration by the court. Lawyers representing the defendants in the proposed class action declined to comment. Mr. Sterns said the Sotos consortium had not decided yet whether it would look to appeal the carriage decision. [GN] LOOK INTERNATIONAL: Saleh Sues over Marketing Text Messages ----------------------------------------------------------- Yazan Saleh, individually and on behalf of all others similarly situated, the Plaintiff, v. Look International, Inc., d/b/a/ Sin Pin, a Florida Corporation, SIN PIN, Inc., a Florida Corporation, Assad Ibrahim, a natural parson and Majd Ibrahim, a natural parson, the Defendants, Case No. 0:18-cv-60693-RNS (S.D. Fla., March 31, 2018), seeks to recover injunctive relief, statutory damages and any other available legal or equitable remedies resulting from the Defendants' violations of the Telephone Consumer Protection Act. The Defendant LIC and SIN PIN are both telecommunications company that sell "minutes" to consumers seeking to place international calls at a discounted rate. LIC holds itself out being "the easiest and cheapest way to make domestic and international calls to anywhere in the world." In efforts to increase the sales of their "minutes" from the public at large, Defendants made consumers' cellular phones constantly ring by sending tens of thousands of illegal marketing text messages which solicited several types of discounts and promotions for future purchases of "minutes" without first obtaining express written consent to send such marketing text messages as required to do so under the TCPA. These messages were sent using mass-automated technology either directly or through a third-party company hired by Defendants to send marketing text messages on Defendants' behalf en masse. In sum, Defendants knowingly and willfully violated the TCPA, causing injuries to Plaintiff, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC. 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907 1136 Facsimile: (855) 529 9540 E-mail: jibrael@jibraellaw.com MAZUMA CREDIT: Initial Approval of "Bowens" Settlement Sought ------------------------------------------------------------- In the lawsuit styled JOY L. BOWENS, individually, and on behalf of all others similarly situated, the Plaintiff, v. MAZUMA CREDIT UNION, and DOES 1-10, the Defendant, Case No. 4:15-cv-00758-DW (W.D. Mo.), Ms. Bowens moves the Court for entry of an Order: 1. preliminarily approving Settlement Agreement reached between Plaintiff and Defendants to the Declaration of Taras Kick in support of the unopposed motion for preliminary approval; 2. appointing Garden City Group, LLC, as the Settlement Administrator and approving the proposed notice plan; and 3. scheduling a hearing for final approval of the settlement. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KM9Qiitz Attorneys for Joy L. Bowens and the Putative Class: Matthew Lee Dameron, Esq. WILLIAMS DIRKS DAMERON LLC 1100 Main Street, Suite 2600 Kansas City, MO 64105 Telephone: (816) 876-2600 Facsimile: (816) 221-8763 E-mail: matt@williamsdirks.com - and - Taras Kick, Esq. Robert Dart, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 E-mail: taras@kicklawfirm.com robert@kicklawfirm.com - and - Richard D. McCune, Esq. Jae (Eddie) Kim, Esq. MCCUNE WRIGHT AREVALO LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557 1250 Facsimile: (909) 557 1275 E-mail: rdm@mccunewright.com jkk@mccunewright.com MDL 2818: "Pitre" Suit vs. General Motors Moved to E.D. Mich. ------------------------------------------------------------- The class action lawsuit titled Eric Pitre, Richard Northcutt, and Richie Ainsworth, On behalf of themselves and all others similarly situated, the Plaintiffs, General Motors Company, General Motors Holdings LLC, and General Motors LLC, the Defendants, Case No. 2:18-cv-02484, was transferred from the U.S. District Court for the Eastern District of Louisiana, to the U.S. District Court for the Eastern District of Michigan (Detroit) on March 19, 2018. The District Court Clerk assigned Case No. 2:18- cv-10957-MFL to the proceeding. The Pitre case is being consolidated with MDL 2818 in re: General Motors Corp Air Conditioning Marketing And Sales Practices Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on February 2, 2018. The Plaintiffs allege that certain components in the air conditioning system are too weak to hold the pressure of the coolant, which builds up when the system is on. This, in turn, leads to cracks and leaks during normal operation, which allow air conditioning refrigerant to escape and eventually lead to the premature failure of the air conditioning system. Centralization will eliminate duplicative discovery; avoid inconsistent pretrial rulings, particularly on class certification; and conserve the resources of the parties, their counsel and the judiciary. In its February 2, 2018 Order, the MDL Panel found that the actions in this litigation involve common questions of fact, and that centralization in the Eastern District of Michigan will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions involve common factual issues arising from three similar putative nationwide class actions and one putative California statewide class action that concern the design, manufacture and performance of the air conditioners in several models of GM vehicles, spanning model years from 2014-2017. Presiding Judge in the MDL is the Hon. District Judge Matthew F. Leitman. General Motors Company, commonly abbreviated as GM, is an American multinational corporation headquartered in Detroit that designs, manufactures, markets, and distributes vehicles and vehicle parts, and sells financial services.[BN] The Plaintiffs are represented by: Dennis C. Reich, Esq. REICH & BINSTOCK, LLP 4265 San Felipe, Suite 1000 Houston, TX 77027 Telephone: (713) 622 7271 Facsimile: (713) 623 8724 - and - Richard M. Schechter, Esq. LAW OFFICE OF RICHARD SCHECHTER, P.C. 1 Greenway Plaza, Suite 740 Houston, TX 77046-0102 Telephone: (713) 623 8919 Facsimile: (713) 622 1680 E-mail: richard@rs-law.com MENARD'S: Faces Class Actions Over FLSA Violations -------------------------------------------------- Bruce Murphy, writing for Urban Milwaukee, reports that John Menard, Jr. has become the poster boy for the greed of America's super wealthy. Menard, 77, the chief executive of Eau Claire-based Menard's company, now ranks as the 95th richest person in the world, with an estimated net worth of $13.9 billion, according to Bloomberg's ranking of the world's top billionaires. Menard ranks near the top of the world's richest 1 percent, a group "who have seen their share of the globe's total wealth increase from 42.5% at the height of the 2008 financial crisis to 50.1% in 2017," rising to $140 trillion, as The Guardian reports. They have amassed "the greatest concentration of wealth since the US Gilded Age at the turn of the 20th century, when families like the Carnegies, Rockefellers and Vanderbilts controlled vast fortunes," the publication notes. Menard has prospered by building his privately owned chain of 300 big-box hardware and home repair stores in 14 states, but also by chiseling his workers, a series of class action suits claim. As the Dayton Daily News has reported, two law firms are suing the company in federal court in Columbus, Ohio "on behalf of workers who say they weren't properly paid wages and overtime." The suit alleges "that Menards failed to properly pay about 160 current and former hourly Menards employees in 13 states, violating the Fair Labor Standards Act . . . and state wage and hour laws." The suit claims that Menards has violated this law by not paying overtime of 1.5 times the regular rate of pay for all hours worked in excess of 40 per work week, by not paying workers for short breaks lasting 20 minutes or less, not paying them for attending certain store meetings and for job training required of workers. "The fact that an employer as large as Menards required their employees to clock out to use the restroom is unacceptable," Bob DeRose, an attorney for the plaintiffs, said in a statement quoted by the newspaper. The lawsuit comes just months after three similar suits were filed last fall in Indiana and Ohio, as the Minneapolis weekly City Pages reported. A suit by Maurice Bradley, "formerly an hourly worker" for Menards, alleged the company required workers "to clock out for any amount of time spent in breaks, including the mere minutes it takes to use the bathroom, get a drink of water, or smoke a cigarette. Menards would then subtract wages accordingly." "Ohio retail worker Carrie Santti alleged she would lose about $50 every work week due to the same company-wide policy," the story reported. "And another Ohio suit, filed by distribution center worker Lyndsey Neal, complains that Menards failed to pay full overtime for workers who routinely averaged 45- or 50-hour work weeks, and did not compensate employees for the time they spent attending mandatory warehouse safety meetings." In reponse to the lawsuits, "Menards denied it broke any federal labor laws," the story noted. As I've previously written, a columnist for the Minneapolis Star Tribune once described Menards' manner of handling an employee as "something exhumed from the Bronze Age with all its primitive logic intact." In 2015, a copy of Menards employment agreement for all managers was leaked to Bill Lueders and The Progressive magazine: it stipulates that "The Manager's income shall be automatically reduced by sixty percent (60%) of what it would have been if a union of any type is recognized within your particular operation during the term of this Agreement." Longtime labor reporter and Urban Milwaukee contributor Dominique Paul Noth did a follow-up story for People's World with some interesting analysis by experts on labor law. Prof. Paul Secunda, head of Marquette University's Labor and Employment Law Program, told Noth that Menard's demand on management was on its face blatantly illegal interference with worker rights outlined in Section 7 of NLRB law and may also involve portions of Section 8 dealing with discrimination and interference. He noted that "blaming supervisors for not being anti-union enough not only interferes with their right as individual employees but also is a derivative violation of their employees' rights to organize since they will inevitably be coerced and intimidated as a result of the company policy." Seth Goldstein, a New York City-based organizer for the Office and Professional Employees International Union, called Menard "one of the worst union busters I've ever seen," adding "I can't find anyone who likes him or likes working for him." Mr. Goldstein noted that Menards' contracts for employees don't have an end date and the binding arbitration clause it long imposed lasts years after a worker leaves, with direct warnings not to work for a competitor. The National Labor Relations Board, in response to the Progressive story, found in 2016 that Menards committed multiple violations of federal labor law. It determined that the clause threatening a 60 percent cut in pay for a manager who lets a union be established was a violation, but took no action, as Menard's had already removed this language from the agreements. The NLRB also found Menards was violating labor law by requiring employees to sign arbitration agreements that preclude them from engaging in legal action, including class action suits. But Menards also agreed to stop requiring this of employees. However, in response to the recent class action suits, the company responded that any workers' disagreements must be handled through private mandatory arbitration, without the right to appeal, rather than in public courts, City Pages reported. But "the workers pushed back, pointing out that Menards had agreed" as part of the NLRB settlement "that it wouldn't force employees to waive their rights to sue." All of which leaves a question as to whether Menards has actually stopped requiring such contracts, as it promised the NLRB. That issue may be revisited in these class action suits. [GN] MICROSOFT CORP: Faces Gender Bias, Sexual Harassment Complaints --------------------------------------------------------------- Dan Levine and Salvador Rodriguez, writing for Reuters, report that women at Microsoft Corp working in U.S.-based technical jobs filed 238 internal complaints about gender discrimination or sexual harassment between 2010 and 2016, according to court filings made public on March 12. The figure was cited by plaintiffs suing Microsoft for systematically denying pay raises or promotions to women at the world's largest software company. Microsoft denies it had any such policy. The lawsuit, filed in Seattle federal court in 2015, is attracting wider attention after a series of powerful men have left or been fired from their jobs in entertainment, the media and politics for sexual misconduct. Plaintiffs' attorneys are pushing to proceed as a class action lawsuit, which could cover more than 8,000 women. More details about Microsoft's human resources practices were made public on March 12 in legal filings submitted as part of that process. The two sides are exchanging documents ahead of trial, which has not been scheduled. Out of 118 gender discrimination complaints filed by women at Microsoft, only one was deemed "founded" by the company, according to the unsealed court filings. Attorneys for the women described the number of complaints as "shocking" in the court filings, and said the response by Microsoft's investigations team was "lackluster." Companies generally keep information about internal discrimination complaints private, making it unclear how the number of complaints at Microsoft compares to those at its competitors. In a statement on March 13, Microsoft said it had a robust system to investigate concerns raised by its employees, and that it wanted them to speak up. Microsoft budgets more than $55 million a year to promote diversity and inclusion, it said in court filings. The company had about 74,000 U.S. employees at the end of 2017. Microsoft said the plaintiffs cannot cite one example of a pay or promotion problem in which Microsoft's investigations team should have found a violation of company policy but did not. U.S. District Judge James Robart has not yet ruled on the plaintiffs' request for class action status. A Reuters review of federal lawsuits 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. Microsoft had argued that the number of womens' human resources complaints should be secret because publicizing the outcomes could deter employees from reporting future abuses. A court-appointed official found that scenario "far too remote a competitive or business harm" to justify keeping the information sealed. [GN] MICROSOFT CORP: Documents Unsealed in Gender Bias Class Action -------------------------------------------------------------- Karen Weise and Alistair Barr, writing for Bloomberg Law, report that Microsoft Corp.'s investigators concluded that fewer than 1 percent of gender-discrimination complaints made internally were "founded," according to data unsealed in an ongoing class-action lawsuit. The disclosure covers almost 120 complaints made from 2010 to 2016 by U.S. female employees working in technical roles and shows the company only sided with one accuser. Employees also lodged 108 complaints of sexual harassment, eight complaints of retaliation, and three complaints of pregnancy discrimination. The documents were unsealed in a 2015 lawsuit brought by three female employees alleging systemic disparities in the pay and promotion of women in technical and engineering roles at Microsoft. The women are seeking class action status, and their attorneys have been jousting with Microsoft over what documents can be made public. An earlier round of documents disclosed one of three cases where an employee alleged rape by a co-worker. Microsoft is fighting the lawsuit, arguing the allegations are based on individual circumstances and not indicative of any systemic problems. "Diversity and inclusion are critically important to Microsoft," the company said in a statement, adding it encourages employees to speak up with complaints. "We take all employee concerns seriously and have a fair and robust system in place to investigate employee concerns and take appropriate action when necessary." The women who sued contend that the team at company headquarters in Redmond, Washington, that investigates harassment and related complaints has "no policies or procedures," such as automatically flagging "repeat offenders" who had multiple cases against them. The court files include several memos from the Employee Relations Investigations Team that found substantive evidence of improper behavior but no violation of company policy. Managers, not human resources or the legal department, have "'final say' in any corrective action," according to the plaintiffs. In one 2013 memo, an internal investigator documented a complaint by four female employees about inappropriate touching by a male co-worker at a party. One said the man "moved his hand up and down, approaching her right armpit and bra strap," two said he grabbed them around the waist and moved them closer, and another said he moved his hand "up and down her back" in a manner so obviously inappropriate that it prompted a colleague to ask "This is how we're going to say 'Hi?'" The investigator ruled the male employee displayed "poor judgment" but didn't violate company policy. In court documents, Microsoft said each internal investigator "is a licensed attorney with years of investigation experience and training." It also said the internal investigations are not directly related to the pay inequity claims at the heart of the lawsuit. "Despite protesting that the ERIT team determined only one gender-related concern was 'founded' during the relevant time frame, they cite not one example of a pay/promotion concern for which they contend ERIT should have found a violation of company policy," the company said in a filing. The unsealed data were first reported by the Seattle Times. [GN] MISSOURI: Brown, et al. Seek to Certify Prisoners Class ------------------------------------------------------- In the lawsuit styled NORMAN BROWN, et al., the Plaintiff, v. ANNE L. PRECYTHE, et al., the Defendants, Case No. 2:17-cv-04082- NKL (W.D. Mo.), the Plaintiffs ask the Court for an order to: 1. certify a class of plaintiffs defined as: "individuals in the custody of the Missouri Department of Corrections who were sentenced to life without parole under a mandatory sentencing scheme and who were under 18 years of age at the time of the offense"; 2. appoint Norman Brown, Ralph McElroy, Sidney Roberts, and Theron Roland as class representatives; and 3. appoint Amy E. Breihan, Matthew D. Knepper, Sarah L. Zimmerman, Denyse L. Jones, and Jordan T. Ault as class counsel. Anne L. Precythe is the Director of the Department of Corrections. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fggaEsjl The Plaintiff is represented by: Amy E. Breihan, Esq. RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER 3115 South Grand Blvd., Suite 300 St. Louis, MO 63118 Telephone: (314) 254 8540 Facsimile: (314) 254 8547 E-mail: amy.breihan@macarthurjustice.org - and - Denyse L. Jones, Esq. Matthew D. Knepper, Esq. Sarah L. Zimmerman, Esq. HUSCH BLACKWELL LLP 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 Telephone: (314) 480 1500 Facsimile: (314) 480 1505 E-mail: Matt.Knepper@huschblackwell.com Sarah.Zimmerman@huschblackwell.com Denyse.Jones@huschblackwell.com - and - Jordan T. Ault, Esq. HUSCH BLACKWELL LLP 235 East High Street P.O. Box 1251 Jefferson City, MO 65102 Telephone: (573) 635 9118 Facsimile: (573) 634 7854 E-mail: Jordan.Ault@huschblackwell.com MONAT: Class Actions Pile Up Over Hair Care Products ---------------------------------------------------- Darcy Spears, writing for KTNV, reports that two hundred million dollars -- that's how much money Monat Global says it made selling hair care products in 2017 through multi-level marketing. YouTube videos show the family behind Monat luxuriating in mansions and driving fancy cars. But many in an ongoing class- action lawsuit are considering it a pyramid scheme. Three recently filed class action lawsuits accuse Monat of fraud and deception. "An inherent design and/or manufacturing defect in Monat hair care products causes significant hair loss and scalp irritation to many consumers," one lawsuit alleges. "I'm devastated with what my hair looks like right now," said Heather Fox, a Monat customer in Phoenix. "I had to cut off my hair," said Monat Market Partner Erin Ostby. Both women say Monat did them more damage than good. "My dad used to always say I was like Samson from the Bible -- I got my power from my hair, so it was really upsetting and I couldn't do that to someone else," said Ms. Ostby, who recently stopped selling Monat. The U.S. Food and Drug Administration has received and is in the process of assessing 187 adverse event reports related to Monat products. The FDA received these reports between 8/29/17 and 3/9/18. And more than 500 complaints have been filed with the Better Business Bureau in South Florida where Monat is based. "Any reputable lab will tell you there's nothing in the products that would cause this kind of reaction in a large population -- there just isn't. You can rub it in your skin, you can drink it if you like, within reason. It's not going to cause this kind of reaction," Monat Spokesperson Gene Grabowski said in a phone interview. But the company's repeated response to BBB complaints reads, "Although Monat's ingredients are naturally-based, safe, pure and sustainable, we understand that some may experience a reaction and should discontinue use." The class action lawsuits claim the products use numerous "harsh chemicals" and "known human allergens." One controversial ingredient the suit highlights is Capixyl -- containing red clover -- which some say should be on a warning label. "Yes, there should be a warning label, but only if the amount was higher," Mr. Grabowski said. The University of Maryland Medical Center says women with a history of breast cancer should avoid red clover due to its estrogen-like effects in the body. It also says red clover may interfere with the liver's ability to process some drugs. "The amount of red clover used (red clover extract) is so small that it would have no effect," said Mr. Grabowski. According to the FDA, cosmetic companies are responsible for ensuring the safety of their own products, which in most cases don't require government approval before they go on the market. "We do tests before we send them to market and we know they're safe," said r. Grabowski. "I mean, those aren't clinical tests." Monat's website shows the clinical tests they did utilized one active ingredient per study. As the class action lawsuits were recently filed, Monat has not yet responded to the claims in court. [GN] MONAT: Accused of Using Legal Tactics to Silence Critics -------------------------------------------------------- Darcy Spears, writing for KTNV, reports that Erin Ostby said "So I tried it and I really loved it! Like I was like, oh my gosh! My hair feels really good! They have a men's line and a kids' line so the whole family can use it -- like I was very excited!" But Ms. Ostby's excitement quickly faded when she says her hair began falling out after using the Monat hair products she'd been selling. "I was crying to my husband, not just over my hair, but what had I done?" She's what Monat calls a Market Partner -- someone who sells their shampoo and other hair care products on the company's multi-level marketing platform, which is mostly through social media. But the young mother had to walk away from an increasingly lucrative business when she says she could no longer stand by the products. "I was very nervous to say anything because of the backlash I have seen of other people that spoke out about what was happening." In three recently filed class action lawsuits against Monat, the company is accused of using strong-arm legal tactics to silence critics. "We have to do that to protect ourselves from defamation," said Monat spokesperson Gene Grabowski, who would only agree to a phone interview. Las Vegan Toni Miller, whose daughter works at 13 Action News, is one of the stylists Monat is suing for defamation. "What I am seeing with this product in particular, it's not normal," Ms. Miller observed after working with clients who'd used Monat. Monat claims people like Toni Miller are engaged in a smear campaign designed to promote competing products. In their suit against her, they report 1,000 order cancellations in the last two months. "When we tried to reason with our attackers who were bullying people online, bullying some of our market partners, bullying other customers and ridiculing them for using our product, we had to file a lawsuit to protect ourselves from the attacks," Mr. Grabowski said. But Ms. Miller says Monat is the bully. The company sent a letter to Posare Salon, threatening to sue the owner if she didn't silence Toni or fire her. As for consumers, Mr. Grabowski says, "Everyone is entitled to their opinion. By the way, there is not a constitutional right to complain about a company. A company has a right to respond any way it wants to." The Federal Trade Commission's Consumer Review Fairness Act "Protects consumers' ability to share their honest opinions about a business' products, services or conduct in any forum, including social media." But that's not enough. This request for a restraining order against Monat was filed March 7 in South Florida, asking a court to protect consumers against Monat's "Threats, harassment and intimidation." Monat says one stylist has agreed to pay them to settle its claims against her. Toni Miller is still fighting. Monat sent this statement for consumers: "If a consumer feels that he or she is having a negative reaction to MONAT products, we encourage them to speak with their Market Partner to obtain an intake form. The consumer can also contact MONAT Customer Service." [GN] MOUNT KISCO BAGEL: "Tapia" Suit Seeks Unpaid Overtime under FLSA ---------------------------------------------------------------- ALBERTO TAPIA, the Plaintiff, v. MOUNT KISCO BAGEL COMPANY INC. d/b/a MOUNT KISCO BAGEL, and JAMES FLEMING, individually, the Defendants, Case No. 1:18-cv-02864-KPF (S.D.N.Y., March 30, 2018), seeks to recover unpaid overtime compensation and notice damages under the Fair Labor Standards Act and New York Labor Law. According to the complaint, the Defendants have engaged in their unlawful conduct pursuant to a corporate policy of minimizing labor costs and denying employees compensation. Defendants' unlawful conduct has been intentional, willful and in bad faith, and has caused significant damage to Plaintiff and the FLSA Collective. The FLSA Collective would benefit from the issuance of a court-supervised notice of the present lawsuit and the opportunity to join the present lawsuit. Those similarly situated employees are known to Defendants, are readily identifiable and locatable through their records. These similarly situated employees should be notified of and allowed to opt into this action, pursuant to 29 U.S.C. section 216(b). The lawsuit contends the position of baker is not exempt and has never been exempt. Employees, though, are not paid overtime for all hours worked in excess of 40 hours per week. The FLSA and NYLL require that employers pay all employees at least one and 1.5 times the employee's wage for all hours worked in excess of 40 during any workweek, unless they are exempt from coverage. The Defendants failed to compensate Plaintiff and members of the FLSA Collective at one and one-half times the employee's wage for all hours worked in excess of 40 during any workweek. The exact accounting of such discrepancy can only be determined upon completion of discovery. The Plaintiff and members of the FLSA Collective were not given notice containing the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal or lodging allowances; the regular pay day designated by the employer in accordance with NYLL section 195(1); and any anything otherwise required by law.[BN] The Plaintiff is represented by: Jacob Aronauer, Esq. THE LAW OFFICES OF JACOB ARONAUER 225 Broadway, 3rd Floor New York, NY 10007 Telephone: (212) 323 6980 E-mail: jaronauer@aronauerlaw.com MYER: Has Until May 18 to Settle Shareholder Class Action --------------------------------------------------------- The Australian Financial Review reports that as activist investor Solomon Lew prepares his next attack, Myer has been given two months to settle a multimillion-dollar class action from shareholders who claim they lost money when the department store chain missed profit forecasts in 2015. The Federal Court has ordered Myer and TPT Patrol into mediation, giving the two parties until May 18 to settle the case or go to trial. A three-week hearing has been set down for August. TPT Patrol is trustee for the Amies Superannuation Fund and launched the class action in December 2016, alleging shareholders suffered loss and damage because of statements made by Myer regarding its 2014 full-year results. TPT Patrol has alleged that Myer engaged in misleading or deceptive conduct and failed to abide by its continuous disclosure obligations by providing profit guidance without a reasonable basis and by failing to inform the market about information that had a material impact on the value of its shares. The class action covers shareholders who bought Myer shares on or after September 11, 2014, and held those shares until March 19, 2015. On September 11, former Myer chief executive Bernie Brookes said he expected Myer's profit in 2015 to exceed the $98.5 million earned in 2014. On March 19, Mr Brookes revealed that profits were expected to fall as much as 24 per cent to between $75 million and $80 million. Myer shares fell 20õ on the day to $1.28 and are now trading at record lows around 41.5õ following three profit downgrades over the last 12 months. Myer's former chief executive Richard Umbers warned in February that first-half net profit would fall as much as 41 per cent to between $37 million and $41 million following an unprecedented 6.5 per cent drop in sales during the January clearance sales. A week later Mr Umbers was shown the door by new chairman Garry Hounsell, who has been appointed executive chairman while the company hunts for a new chief executive. Stake's value plunges Myer faces more legal action if its largest shareholder, Solomon Lew's Premier Investments, follows through with threats to take the department store chain to court for misleading shareholders about its prospects last year. Premier bought a 10.8 per cent stake in Myer last March for $101 million, or $1.15 a share, and has seen the value of its stake fall by more than $60 million. The losses, worth about 40õ per Premier share, will cloud Premier's first-half results, which are due to be released on March 9. Citigroup analysts expect Premier's sales to rise 7.7 per cent to $634 million and retail earnings to rise 9.4 per cent to $102 million, with strong growth from Smiggle and Peter Alexander expected to offset a 16 per cent decline in earnings from the mature clothing brands -- Portmans, Dotti, Jacqui E, Just Jeans and Jay Jays. Citigroup analyst Bryan Raymond said Premier shareholders would be looking for more detail about Premier's strategy for its investment in Myer. "Premier intends to be an activist investor in Myer rather than a potential acquirer in the near term," he said. Mr Lew is expected to use the results announcement to ramp up his campaign for an extraordinary general meeting to oust the entire Myer board and seek the appointment of three of its own nominees. Mr Lew claimed in February that Myer was in "peril" and needed a totally new board in order to have any sustainable future. "It is time for all Myer shareholders to unite to save their company," he said. [GN] NATIONSTAR MORRTGAGE: 4 Classes Certified in "McNamer" Suit ----------------------------------------------------------- In the lawsuit styled CHARLES D. MCNAMER, et al., the Plaintiffs, v. NATIONSTAR MORTGAGE, LLC, the Defendant, Case No. 2:14-cv- 01948-ALM-CMV (S.D. Ohio), the Hon. Judge Algengon L. Marbley entered an order granting the motion to certify these classes: a. Class 1 (Nationwide) as to the Issues of the Fair Debt Collection Practices Act Liability and Statutory Damages: "any person who (i) received a Chapter 7 bankruptcy discharge case filed in the U.S. Bankruptcy Courts on or after January 1, 2012 and or before January 31, 2015; (ii) who filed and served a Statement of Intention herein pursuant to 11 U.S.C. section 521(a)(2)(A) stating an intention to surrender residential real property were mailed by Nationstar one or more Mortgage Loan Statements"; b. Class 2 (Nationwide) as to the Issues of the Fair Debt Collection Practices Act Liability and Statutory Damages: "any person who (i) received a Chapter 7 bankruptcy discharge case filed in the U.S. Bankruptcy Courts on or after January 1, 2012 and or before January 31, 2015; (ii) who filed and served a Statement of Intention herein pursuant to 11 U.S.C. section 521(a)(2)(A) stating an intention to surrender residential real property were mailed by Nationstar, at least one Force-Placed Insurance letter"; c. Class 3 (S.D. Ohio) as to the Issues of Whether Nationstar Violated 11 U.S.C. section 524(a): "any person who (i) received a Chapter 7 bankruptcy discharge case filed in the U.S. Bankruptcy Courts on or after January 1, 2012 and or before January 31, 2015; (ii) who filed and served a Statement of Intention herein pursuant to 11 U.S.C. section 521(a)(2)(A) stating an intention to surrender residential real property that was/is security for a debt serviced by Nationstar; and (iii) who after vacating the real property, were mailed by Nationstar, one or more Mortgage Loan Statements"; d. Class 4 (S.D. Ohio) as to the Issues of Whether Nationstar Violated 11 U.S.C. section 524(a): "any person who (i) received a Chapter 7 bankruptcy discharge case filed in the U.S. Bankruptcy Courts on or after January 1, 2012 and or before January 31, 2015; (ii) who filed and served a Statement of Intention herein pursuant to 11 U.S.C. section 521(a)(2)(A) stating an intention to surrender residential real property that was/is security for a debt serviced by Nationstar; and (iii) who after vacating the real property, were mailed by Nationstar, at least one Force-Placed Insurance letter". A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=lBheJvTT NEIGHBORHOOD GARAGE: Blumenthal Nordrehaug Files Class Action ------------------------------------------------------------- The San Diego employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Neighborhood Garage Door Services, Inc., alleging that the company failed to lawfully calculate and pay their employees the correct minimum and overtime wages. The class action lawsuit against Neighborhood Garage Door Services, Inc. is currently pending in the San Diego County Superior Court, Case No. 32-2018- 00007885-CU-OE-CTL. The lawsuit filed against Neighborhood Garage Door Services, Inc. alleges that from time to time, employees are unable to take off duty meal and rest breaks and are not fully relieved of duty for their meal periods. Allegedly, the company employees are required to perform work as ordered by Employee Retention Services for more than five (5) hours during a shift without receiving an off-duty meal break. California labor laws require an employer to provide an employee required to perform work for more than five (5) hours during a shift with, a thirty (30) minute uninterrupted meal break prior to the end of the employee's fifth (5th) hour of work and a second uninterrupted meal break when employees are required to work ten (10) hours. Additionally, the class action lawsuit alleges that DEFENDANT failed to pay all minimum wages due to PLAINTIFF for compensable time worked. DEFENDANT also allegedly failed to pay PLAINTIFF overtime wages for all overtime worked, thereby uniformly resulting in PLAINTIFF being underpaid for all time worked during his employment, including overtime worked. For more information about the class action lawsuit against Neighborhood Garage Door Services, Inc. call (858) 952-0354 to speak to an experienced California employment attorney today. Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with law offices located in San Diego County, Riverside County, Los Angeles County, Sacramento County, and San Francisco County. The firm has a statewide practice of representing employees on a contingency basis for violations involving unpaid wages, overtime pay, discrimination, harassment, wrongful termination and other types of illegal workplace conduct. [GN] NEW ORLEANS MILLWORKS: FLSA Class Certified in "Maldonado" Suit --------------------------------------------------------------- The Hon. Carl J. Barbier grants the Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of Potential Opt-In Plaintiffs filed in the lawsuit styled OSMAN MALDONADO v. NEW ORLEANS MILLWORKS, LLC, ET AL., Case No. 2:17-cv-01015-CJB-MBN (E.D. La.). The class is defined as: "All individuals who worked or are working performing manual labor for O&G Construction, LLC during the previous three years, and who are eligible for overtime pay pursuant to the FLSA, 29 U.S.C Section 207 and who did not receive full overtime compensation." The collective action is filed by Plaintiffs Osman Maldonado, Josue Nunez, Mauricio Hernandez and Marvel Guerrero, under the Fair Labor Standards Act of 1938. The Plaintiffs brought this suit on behalf of themselves and all others similarly situated to recover allegedly unpaid overtime wages for manual work they performed for Defendants O&G Construction, LLC, Olan David Del Arca Sabat, New Orleans Metalworks, Inc., and David Waldheim. According to the Court's Order & Reasons, the Defendants shall have 14 days from the entry of this Order to produce the full names, dates of employment, and last known addresses of all potential opt-in plaintiffs. The time period within which the potential opt-in plaintiffs may opt-in is 90 days. The 90-day opt-in period will begin to run on the date that the Defendants provide a complete list of the names, dates of employment, and last known addresses of all potential opt-in plaintiffs. A copy of the Order & Reasons is available at no charge at http://d.classactionreporternewsletter.com/u?f=SasMH0RG NRA GROUP: Class Certification Under Damasco Sought in "Bartz" -------------------------------------------------------------- Crystal Bartz moves the Court to certify the class described in the complaint of the lawsuit styled CRYSTAL BARTZ, Individually and on Behalf of All Others Similarly Situated v. NRA GROUP, LLC D/B/A NATIONAL RECOVERY AGENCY, Case No. 2:18-cv-00410-DEJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=WJCZFVQo The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com OHIO: Class Certification Bid in "Ball" Suit Granted in Part ------------------------------------------------------------ In the lawsuit styled PHYLLIS BALL, et al., the Plaintiffs, v. JOHN KASICH, et al., the Defendants, Case No. 2:16-cv-00282-EAS- EPD (S.D. Ohio), the Hon. Judge Edmund A. Sargus entered an order on March 30, 2018, granting in part and denying in part Plaintiffs' motion for Class Certification. The Court held that the following revision of the class definition will ensure that a Rule 23(b)(2) class is properly constituted: "all Medicaid-eligible adults with intellectual and development disabilities residing in the state of Ohio who, on or after March 31, 2016, are qualified for home and community- based services, and after receiving options counseling express that they are interested in community-based services." Mr. Kasich is the Governor of Ohio. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=FePw124p OPAL AGED: Shine Lawyers File Class Action Over Care Home Fire -------------------------------------------------------------- The Weekly Source reports that Shine Lawyers have lodged the class action against the home's owners Opal Aged Care in the NSW Supreme Court on behalf of nine relatives of victims. Court documents allege Opal was negligent in its employment of Roger Dean, the nurse convicted of 11 counts of murder over the 2011 fire, and failed to have any or any adequate, sprinkler system in place. A coroner's inquest had found that Opal did not check Dean's references before hiring him. He had previously been investigated for workplace misconduct and was suspended from a former role because of drug problems. Dean is also being sued for negligence, setting fire to the home and failing to notify his employer of his history, mental health problems and drug dependence. "The family members feel that not all accountable parties have taken responsibility for their actions and are looking for justice to be delivered for their deceased family members. It's clear that more should have been done to protect these vulnerable nursing home residents," Shine Lawyers NSW General Manager James Chrara said. Opal is roughly owned 47.6% by GK Goh Holdings (Singapore), a similar % by AMP Capital and 2% by ex-CEO Gary Barnier. Opal currently has 71 aged care facilities in QLD, NSW, VIC and WA. [GN] ORACLE AMERICA: Fails to Pay Wages, Williams Says ------------------------------------------------- BRANDON WILLIAMS, an individual, on behalf of herself and on behalf of all persons similarly situated, the Plaintiff, v. ORACLE AMERICA, INC., a Delaware corporation conducting business in the State of California, and DOES 1 to 10, the Defendant, Case No. 18CIV01599 (Cal. Super. Ct., April 4, 2018), seeks to recover unpaid wages under the California Labor Code. Plaintiff and other class members are former employees of Oracle whose employment terminated sometime during the class period. Per Oracle's policy, upon termination of employment, Oracle forced Plaintiff and other class members to forfeit accrued commissions for work they performed in the final quarter of their employment. By failing to pay Plaintiff and other class members commissions earned during the last quarter of their employment, Oracle unlawfully withheld wages earned by Plaintiff and other class members that were due to them. Oracle America designs, manufactures, and markets network computing infrastructure solutions. The Company offers a range of services including data storage products, microprocessors, software desktop systems, developer software, and infrastructure management software.[BN] The Plaintiff is represented by: David R. Markham, Esq. Maggie Realin, Esq. Michael Morphew, Esq. THE MARKHAM LAW FIRM 750 B Street, Suite 1950 San Diego, CA 92101 Telephone: (619) 399 3995 Facsimile: (619) 615 2067 E-mail: dmarkham@markham-law.com mrealin@markham-law.com mmorphew@markham-law.com - and - Walter Haines, Esq. UNITED EMPLOYEES LAW GROUP 5500 Bolsa Avenue, Suite 201 Telephone: 888 474 7242 Facsimile: 562 256 1006 E-mail: walterhaines@yahoo.com OWL INC: Court Denies Motion for Issuance of Notice in "Perez" -------------------------------------------------------------- In the lawsuit styled JOSE PEREZ, ALFREDO SANTOS and DOUGLAS RICHEY, the Plaintiffs, v. OWL, INC., the Defendant, Case No. 6:17-cv-01092-CEM-GJK (M.D, Fla.), the Hon Judge Carlos E. Mendoza entered an order on March 30, 2018: 1. adopting the Report and Recommendation in part and made a part of this Order to the extent it is consistent with, in all other respects, the R&R is rejected; 2. denying Plaintiffs' motion for issuance of notice; and 3. on or before April 13, 2018, directing Plaintiffs to file a renewed motion for issuance of notice consistent with this Order. The Court said, "Judge Kelly recommended denying Plaintiffs' Motion because the hourly employees and the salaried employees of Defendant were not subject to a similar pay provision. See Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991) (noting that to issue a notice to employees wishing to opt-in to the litigation, those employees must be "'similarly situated' with respect to their job requirements and with regard to their pay provisions"). The Court agrees with Judge Kelly's analysis and that the hourly employees and the salaried employees are not subject to the same or similar pay provision. However, in their Objection, Plaintiffs argue that instead of denying their Motion, the Court should divide the proposed class into two distinct classes: one for salaried employees and one for hourly employees. (Doc. 81 at 7-10). The Court finds Plaintiffs' argument regarding the creation of a subclass persuasive.1 In Dice v. Weiser Security Services, Inc., the court found that it was "not prohibited from creating a subclass" and that "the creation of such a subclass would best serve considerations of convenience, cost, judicial economy, and expeditious trial process." No. 06- 61133-CIV, 2008 WL 249250, at *1 (S.D. Fla. Jan. 29, 2008) (collecting cases). Although that case involved a motion for decertification, the court acknowledged that "the district court creates an opt-in class, and certifies the class, in its sound discretion. Id. (citing Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)). Similarly, this Court finds that it is not prohibited from creating a subclass on a motion for issuance of notice and that the creation of such a subclass furthers the twin purposes behind Sec. 216(b): "(1) reducing the burden on plaintiffs through the pooling of resources, and (2) efficiently resolving common issues of law and fact that arise from the same illegal conduct." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1264 (11th Cir. 2008). Without a clear definition of the two classes and an updated notice, however, the Court declines to grant Plaintiffs' Motion at this time. Instead, Plaintiffs are encouraged to file a renewed motion that provides the Court with a clear definition of each class and an updated notice that reflects that definition." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=nuNLqvSL PGA INC: Class of Workers Certified Under FLSA in "Schilling" ------------------------------------------------------------- The Hon. William M. Conley enters an opinion and order in the lawsuit titled ERIC SCHILLING, BLAINE KROHN, and ERIK SINCLAIR v. PGA INC., Case No. 3:16-cv-00202-wmc (W.D. Wisc.): 1) granting the Plaintiffs' motion for class certification. The Court certifies this class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure: All persons who were employed by PGA, Inc., on or after March 31, 2014, who (i) did not receive overtime pay equal to 1.5 times both their base rate of pay and their cash fringe rate, (ii) were paid overtime based on the rate of pay for the work completed during overtime hours, rather than the average straight time hourly rate earned during the workweek, or (iii) both. 2) appointing Eric Schilling, Blaine Krohn, and Erik Sinclair as the class representatives; 3) appointing Attorney Yingtao Ho, Esq., and The Previant Law Firm, S.C. as class counsel; 4) denying Defendant's motion for decertification; 5) ruling that on or before April 4, 2018, the parties should submit a joint proposed form and method of notice, or if unable to agree, plaintiffs should submit their own proposed notice, with defendant to respond by April 11, 2018; and 6) ruling that the Court will hold oral argument on the parties' cross motions for summary judgment on April 26, 2018, at 10:00 a.m. The Plaintiffs assert claims against their employer, PGA Inc., a company specializing in air comfort systems in central Wisconsin, for allegedly calculating overtime wages in violation of the Fair Labor Standards Act and Wisconsin state labor laws. Specifically, the Plaintiffs allege that: (1) PGA's policy of not including the "cash fringe rate" in calculating overtime violates both the FLSA and state law; and (2) PGA's policy of paying overtime based on the rate for the work performed during overtime hours, rather than on a "straight-time hourly rate," violates state law. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=KAQ4Yah7 PINNACLE ENTERTAINMENT: Faces "Ohigashi" Suit Over Penn Merger -------------------------------------------------------------- Robert Ohigashi, on Behalf of Himself and All Others Similarly Situated v. Pinnacle Entertainment, Inc., Anthony M. Sanfilippo, Carlos Ruisanchez, Charles L. Atwood, Stephen Comer, Ron Huberman, James L. Martineau, Jaynie Miller Studenmund, and Desiree Rogers, Case No. 2:18-cv-00387 (D. Nev., March 2, 2018), is brought on behalf of all public stockholders of Pinnacle Entertainment, Inc., to enjoin the vote on a proposed transaction, pursuant to which Pinnacle will be acquired by Penn National Gaming, Inc., through its wholly-owned subsidiary Franchise Merger Sub, Inc. for approximately $2.8 billion. According to the complaint, Pinnacle filed a Definitive Proxy Statement on Schedule 14A with the U.S. Securities and Exchange Commission, which recommends that Pinnacle stockholders vote in favor of the Proposed Transaction. However, the Proxy omits or misrepresents material information concerning, among other things: (i) Pinnacle's financial projections, relied upon by Pinnacle's financial advisor J.P. Morgan Securities LLC in its financial analyses; (ii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by J.P. Morgan; (iii) Pinnacle insiders' potential conflicts of interest; and (iv) the background process leading to the Proposed Transaction. The failure to adequately disclose such material information constitutes a violation of the Exchange Act, as Pinnacle stockholders need such information to cast a fully-informed vote in connection with the Proposed Transaction or seek appraisal, says the complaint. Located at 3980 Howard Hughes Parkway, Las Vegas, Nevada 89169, Pinnacle Entertainment, Inc. owns and operates 16 gaming, hospitality, and entertainment businesses. [BN] The Plaintiff is represented by: Martin A Muckleroy, Esq. MUCKLEROY LUNT 6077 S. Fort Apache Rd., Ste 140 Las Vegas, NV 89148 Telephone: (702) 907-0097 Facsimile: (702) 938-4065 E-mail: martin@muckleroylunt.com - and - Melissa A. Fortunato, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: (212) 308-5858 Facsimile: (212) 214-0506 E-mail: fortunato@bespc.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly C. Keenan, Esq. Alexandra E. Eisig, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 E-mail: racocelli@weisslawllp.com mrogovin@weisslawllp.com kkeenan@weisslawllp.com aeisig@weisslawllp.com PIONEER CREDIT: Toney-Adkins Withdraws Bid to Certify Class ----------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on March 14, 2018, in the case entitled Charmaine Toney-Adkins v. Pioneer Credit Recovery, Inc., Case No. 1:17-cv-04770 (N.D. Ill.), relating to a hearing held before the Honorable Sharon Johnson Coleman. The minute entry states that: -- Plaintiff's agreed motion for protective order is granted; -- Plaintiff's motion for class certification is withdrawn without prejudice; -- Defendant agrees not to make a tender or an offer to settle this case on an individual basis or serve an Offer of Judgment that contemplates an individual recovery unless it gives plaintiff written notice of its intention to serve an individual offer as set forth in the stipulation; -- Status hearing is set for May 2, 2018, at 9:00 a.m. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=VjRO2lKG PNC: Wants Suit Over Job Applicants' Arrest Records Dismissed ------------------------------------------------------------- Patty Tascarella, writing for Pittsburgh Business Times, reports that Pittsburgh's largest bank asked a federal judge to dismiss claims that it violated Pennsylvania law by considering job applicants' arrest records, even in situations where there was no conviction, Reuters reported. PNC Financial Services Group Inc. said a proposed class action suit is trying to hold it liable for actions the bank took to comply with federal law, according to the article. [GN] PRESTIGE AUTO: Lopez Seeks Unpaid Overtime Wages under FLSA ----------------------------------------------------------- RAFAEL LOPEZ, on behalf of himself and all others similarly situated, the Plaintiff, v. PRESTIGE AUTO TOWING CORP., a Florida corporation, the Defendant, Case No. 1:18-cv-21204-JAL (S.D. Fla., March 31, 2018), seeks to recover unpaid overtime wages, liquidated damages, costs and reasonable attorney fees, pursuant to the Fair Labor Standards Act. According to the complaint, Plaintiff was not paid time and one- half their regular rate of pay for all hours worked in excess of 40 per work week. The records, if any, concerning the number of hours actually worked by Plaintiff and all other similarly situated employees and former employees and the compensation actually paid to such employees are in the possession, custody, and control of Defendant.[BN] The Plaintiff is represented by: Terri Gutman Valdes, Esq. TERRI GUTMAN VALDES LLC 151 Venera Avenue, Suite 300 Miami, FL 33146 Telephone: (305) 740 9600 Facsimile: (305) 740 9202 E-mail: tgvaldez@aol.com PODS ENTERPRISES: Faces "Ellenburg" Suit in Cal. Super. Court ------------------------------------------------------------- A class action lawsuit has been filed against PODS Enterprises LLC. The case is captioned as Kristin Ellenburg, On behalf of others similarly situated, the Plaintiff, v. Does 1-500 and PODS Enterprises LLC, the Defendants, Case No. 34-2018-00228848-CU-NP- GDS (Cal. Super. Ct., March 12, 2018).[BN] The Plaintiff is represented by: Thomas A Kearney, Esq. KEARNEY LITTLEFIELD, LLP 633 West 5th Street, 28th Floor Los Angeles CA 90071 Telephone: 1 213 473 1900 Facsimile: 1 213 473 1919 E-mail: tak@kearneylittlefield.com PURDUE PHARMA: New Castle Class Suit Removed to E.D. Philadelphia ----------------------------------------------------------------- The class action lawsuit filed on February 13, 2018 styled The City of New Castle, on behalf of itself and others similarly situated v. Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick Company, Inc., Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho-Mcneil-Jansen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc., Endo Health Solutions, Inc., Allergan PLC, Teva Pharmaceuticals USA, Inc., and Cephalon, Inc., Case No. 180201036 was removed from the Court Of Common Pleas, Philadelphia County to the U.S. District Court for the Eastern District of Pennsylvania. The District Court Clerk assigned 2:18- cv-00952-TJS to the proceeding. The case asserts personal injury claims. The Defendants own and operate pharmaceutical companies in the United States. [BN] The Plaintiff is represented by: Daniel C. Levin, Esq. LEVIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106 E-mail: dlevin@lfsblaw.com The Defendant is represented by: Harvey Bartle IV, Esq. MORGAN LEWIS & BOCKIUS LLP 1701 Market St Philadelphia, PA 19103 Telephone: (215) 963-5000 E-mail: hbartle@morganlewis.com RETRIEVAL-MASTERS: Rafferty Seeks to Certify Florida Consumers -------------------------------------------------------------- In the lawsuit styled CHERYL RAFFERTY, on behalf of herself and all others similarly situated, the Plaintiff, v. RETRIEVAL- MASTERS CREDITORS BUREAU, INC., d/b/a RMCB Collection Agency, a foreign corporation, and John Does 1 through 25, the Defendants, Case No. 5:17-cv-00426-PGB-PRL (M.D. Fla.), the Plaintiff asks the Court to certify a class of: "all Florida consumers who received RMCB's form Collection Letter that contained at least one of RMCB's alleged violations of the Fair Debt Collection Practices Act." A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5jYG5wLG The Plaintiff is represented by: Michael D. Sechrest, Esq. D. Marc Warner, Esq. Sean G. Hipworth, Esq. WARNER, SECHREST & BUTTS, P.A. 5200 SW 91st Terrace, Suite 101 Gainesville, FL 32608 Telephone: (352) 373 5922 Facsimile: (352) 373 5921 E-mail: Sechrest@fbswlaw.com Marc@fbswlaw.com KimHart@fbswlaw.com Lisa2@fbswlaw.com shipworth@fbswlaw.com The Defendant is represented by: Carolos A. Ortiz, Esq. Westley A. Holden, Esq. HINSHAW LAW 2525 Ponce de Leon Blvd., 4th Floor Coral Gables, FL 33134 Telephone: (305) 358-7747 E-mail: cortiz@hinshawlaw.com wholden@hinshawlaw.com REVENUE GROUP: Illegally Collects Debt, "Mormon" Suit Claims ------------------------------------------------------------ Shana Mormon, individually and on behalf of all others similarly situated v. Revenue Group and John Does 1-25, Case No. 1:18-cv- 00491-DCN (N.D. Ohio, March 2, 2018), arises out of the Defendants' practice of sending a collection letter attempting to collect a consumer debt that imposed an additional service fee for credit card and check by phone payments. Revenue Group owns and operates a debt collection company at 4780 Hinckley Industrial Pkwy, Ste 200, Cleveland, OH 44109. [BN] The Plaintiff is represented by: Amichai Zukowsky, Esq. ZUKOWSKY LAW, LLC 23811 Chagrin Blvd, Ste 160 Beachwood, OH 44122 Telephone: (216) 800-5529 E-mail: ami@zukowskylaw.com ROSELAND RESIDENTIAL: "Conley" Suit Moved to Fed. District Court ---------------------------------------------------------------- The class action lawsuit titled Ioana Conley and Alexander Conley, on behalf of herself and all others similarly situated, the Plaintiffs, v. Roseland Residential Trust and NWP Services Corporation, the Defendants, Case No. 1781-CV-03719, was removed from the Middlesex Superior Court, to the U.S. District Court for the District of Massachusetts (Boston) on April 4, 2018. The District Court Clerk assigned Case No. 1:18-cv-10629-WGY to the proceeding. The case is assigned to the Hon. Judge William G. Young. Roseland is a premier real estate development and management company with a reputation for visionary excellence and exceptional customer service.[BN] Attorneys for Plaintiffs: David J. Relethford, Esq. Michael C. Forrest, Esq. FORREST, LAMOTHE, MAZOW, MCCULLOUGH, YASI & YASI 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (415) 579 9481 E-mail: drelethford@forrestlamothe.com mforrest@forrestlamothe.com - and - Robert E. Mazow, Esq. MAZOW & MCCULLOUGH 10 Derby Square, 4th Floor Salem, MA 01970 Telephone: (978) 744 8000 Facsimile: (978) 744 8012 E-mail: rem@helpinginjured.com Attorneys for Roseland Residential Trust: Thomas H. Wintner, Esq. Mathilda McGee-Tubb, Esq. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, PC One Financial Center, 42nd Flr. Boston, MA 02111 Telephone: (617) 348 1625 E-mail: twintner@mintz.com msmcgee-tubb@mintz.com RUSHMORE LOAN: Bid to Certify Class Denied Without Prejudice ------------------------------------------------------------ In the lawsuit styled Williams, the Plaintiff, v. Rushmore Loan Management Services, et al., the Defendants, Case No. 3:17-cv- 00538-RNC (D. Conn.), the Hon. Judge Robert N. Chatigny entered an order on March 31, 2018: 1. denying without prejudice to renewal after the conference Plaintiff's motions to certify the class and compel initial disclosures; 2. granting Plaintiff's motion for an extension of time to file dispositive motions, a schedule for filing dispositive motions will be discussed at the conference; 3. denying Defendants' motions to dismiss; 4. granting motions to stay and denying as moot motions for extensions of time; 5. denying without prejudice the Plaintiff's motion to certify the class and to compel initial disclosures, and granting Plaintiff's motion to extend the time for filing dispositive motions and 6. granting motions to dismiss and, motions seeking to stay discovery and other activities pending ruling on the motions to dismiss. The Court said, "The complaint in this putative class action alleges that on July 21, 2016, Rushmore caused McCalla to bring a foreclosure lawsuit in the name of GMAT 2013 against the plaintiff, and on August 2, 2016, Rushmore sent him a payoff statement listing late fees added after his loan was accelerated. Count one claims that the defendants violated the Fair Debt Collection Practices Act (FDCPA) because the debt they sought to collect through the foreclosure action and payoff statement included payment of late fees for periods after the loan had been accelerated in violation of 15 U.S.C. Sec. 1692e, e(2), e(10), 1692f and 1692f(1). Count two claims that the foreclosure complaint included a validation notice that would confuse a consumer because it suggested a means of responding to the complaint other than as specified in the summons in violation of section 1692e. All three defendants move to dismiss on various grounds. They contend that the complaint fails to allege concrete injury because the plaintiff received a discharge in bankruptcy prior to the alleged violations; they further contend that attempts to enforce a security interest do not constitute debt collection activities and thus fall outside the scope of the FDCPA. Plaintiff responds that these arguments are unavailing at this stage. I agree. Taking the allegations of the complaint as true, plaintiff may be able to prove that he sustained a concrete injury in that the defendants violated the FDCPA by making demands for payment of invalid late charges, as alleged in count one, and by including the validation notice in the foreclosure complaint, as alleged in count two. To the extent the defendants rely on matters outside the complaint, those matters are either not properly considered or do not support a ruling dismissing the complaint. All three defendants contend that dismissal is proper under the prior pending action doctrine and in light of plaintiff's improper claim-splitting. They contend that both counts in the complaint should have been included in the complaint in Williams II, Case No. 3:16-cv-517. Plaintiff does not dispute that the violation alleged in count one overlaps with a violation alleged in Williams II. Nor does he dispute that the violation alleged in count two could be addressed in Willams II. I conclude that it may be appropriate to require plaintiff to include both counts in Williams II. A telephone conference with counsel will be scheduled to discuss this possibility." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=WLx1Ue S.A.S. SERVICES: Fails to Pay OT & Minimum Wages, Elkhouly Says --------------------------------------------------------------- ABDELRAHMAN ELKHOULY, an Individual, on behalf of himself and all others similarly situated, the Plaintiff, v. S. A. S. SERVICES GROUP, INC., a California corporation; and DOES 1 through 100, Inclusive, the Defendants, Case No. BC697737 (Cal. Super. Ct., March 12, 2018), seeks to recover overtime wages and minimum wages under the California Labor Code. According to the complaint, with regard to Defendants' California based non-exempt, hourly paid current and former employees that worked at Defendant S. A. S. Services Group locations in California, Defendants have established a rounding policy which does not compensate said employees for the time they actually worked and as a result Defendants have failed to pay all wages due including overtime wages for all hours worked and failed to pay the required minimum wage for all hours worked. Further Defendants have failed to provide uninterrupted 30 minute meal periods; failed to provide paid rest periods; failed to timely furnish accurate itemized wage statements; violated Labor Code section 203; and conducted unfair business practices. S.A.S. has been providing services to airline partners since 2004.[BN] The Plaintiff is represented by: Bruce Kokozian, Esq. KOKOZIAN LAW FIRM, APC 9440 South Santa Monica Boulevard, Suite 510 Beverly Hills, CA 90210 Telephone: (323) 857-5900 SAFE HAVEN: Response to Class Certification Motion due by May 3 --------------------------------------------------------------- In the lawsuit styled Jose Atilano, Plaintiff, v. A Safe Haven LLC, et al., the Defendants, Case No. 1:17-cv-00758 (N.D. Ill.), the Hon. Judge John J. Tharp Jr. entered an order directing briefing schedule to the plaintiff's motion to conditionally certify class: a. Response to the motion is due by May 3, 2018. b. Reply is due by May 24, 18. According to docket entry made by the Clerk on April 5, 2018, once the motion is fully briefed, the court will rule via CM/ECF notice and set a further date as appropriate. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=zWZB8v3x SAFEMARK SYSTEMS: Court Denies Class Certification in Gorss Suit ---------------------------------------------------------------- In the lawsuit styled GORSS MOTELS, INC. and E & G, INC., the Plaintiffs, v. SAFEMARK SYSTEMS, LP, the Defendant, Case No. 6:16-cv-01638-GAP-DCI (M.D. Fla.), the Hon. Judge Gregory A. Presnell entered an order on April 5, 2018, denying Plaintiffs' motion to certify class. Class A - 2013 Faxes "all persons or entities successfully sent one or more facsimiles on or about September 4, 2013, and September 6, 2013, stating "Free month (average value $500 per 100 rooms," "Free Battery replacement every 18 months for initial term of contract (3 times)," and "1 Free Safe for Office." Class B - 2015 Fax "all persons or entities successfully sent a facsimile on or about December 1, 2015, stating "Attention owners and hotel employees: Increase Cash Flow at NO COST!" and "Learn more today at Safemark.com." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=DmnKPHtf SE INDEPENDENT: Colon Seeks Class Certification ----------------------------------------------- In the lawsuit styled RICHARD COLON, on behalf of himself and all others similarly situated, the Plaintiff, v. SE INDEPENDENT DELIVERY SERVICES INC., a Florida Corporation, the Defendant, Case No. 8:17-cv-01578-JDW-MAP (M.D. Fla.), the Plaintiff moves the Court for an order: 1. certifying this matter to proceed as a class action; 2. appointing Plaintiff as Class Representative; and 3. appointing the Plaintiff's lawyers as Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=m4NlkUvk The Plaintiff is represented by: Christopher R. Turner, Esq. CHRISTOPHER R. TURNER, PLLC 1305 E. Robinson St. Orlando, FL 32801 Telephone: (407) 796 2278 E-mail: eservice@crtlegal.com - and - William G. Osborne, Esq. WILLIAM G. OSBORNE, P.A. 1305 E. Robinson St. Orlando, FL 32801 Telephone: (407) 894 1534 E-mail: Service@osborneattorneys.com SEALY INC: Fails to Pay Overtime Wages, "Sarmiento" Suit Says ------------------------------------------------------------- JESUS SARMIENTO and JUAN CHAVEZ, on behalf of themselves and all others similarly situated and on behalf of the general public, Plaintiffs, v. SEALY, INC. and SEALY MATTRESS MANUFACTURING COMPANY, LLC., the Defendants, Case No. 4:18-cv-01990-DMR (N.D. Cal., March 31, 2018), seeks to recover overtime wage, secret wage, and all wages due upon termination under the California Labor Code. During their employment, Plaintiffs worked shifts that exceeded twelve hours a day. Defendants failed to pay and other putative class members and aggrieved employees overtime time pay at twice their regular hourly rate when they worked more than 12 hours a day. Since Defendants often paid Plaintiffs and other putative class members and aggrieved employees at a lower regularly overtime rate than which they were entitled, Defendants also paid them less overtime than was required when they worked over 8 hours a day and 40 hours a week. Sealy is a brand of mattresses marketed and sold by Tempur Sealy International.[BN] Attorneys for Plaintiffs: Jocelyn Burton, Esq. Scott Nakama, Esq. BURTON EMPLOYMENT LAW 1939 Harrison Street, Suite 400 Oakland, CA 94612 Telephone: (510) 350 7025 Facsimile: (510) 473 3672 E-mail: jburton@burtonemploymentlaw.com snakama@burtonemploymentlaw.com SHORE CONSTRUCTION: Court Refuses to Certify Class in "Magana" -------------------------------------------------------------- The Hon. Nannette Jolivette Brown denies the Plaintiff's Motion for Conditional Class Certification, Judicial Notice, and for Disclosure of the Names and Addresses of the Potential Opt-In Plaintiffs filed in the lawsuit titled MAGANA v. SHORE CONSTRUCTION, LLC, et al., Case No. 2:17-cv-01896-NJB-KWR (E.D. La.). Magdaleno Magana filed this putative class action on March 6, 2017, alleging violations of the Fair Labor Standards Act. He states that he worked for Defendants Shore Construction, LLC, and Kristi Caton as a "rigger" unloading barges in Gibson, Louisiana. He was paid a regular rate of $9 per hour, an overtime rate of $13.50 per hour, and a $50 per diem. Thus, he alleges that the Defendants wrongfully did not include the $50 per diem in the calculation of his overtime premium pay. Judge Brown notes that the Plaintiff does not provide any affidavits from any potential opt-ins stating that similarly situated individuals are interested in the suit to support his "Putative Class." The Plaintiff asserts that copies of his paychecks illustrate the Defendants' policy, but his paychecks alone do not establish that Defendants had a policy of widespread violations affecting similarly-situated employees, as Plaintiff fails to present an affidavit or even the name of a single similarly-situated employee, Judge Brown opines. Since the Plaintiff fails to present such evidence, he fails to meet this lenient standard, Judge Brown adds. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=OvTXVzBi SOUTH CAROLINA: Class Action Seeks Hep C Testing for Inmates ------------------------------------------------------------ John Monk, writing for Greenville News, reports that a lawsuit that could require the S.C. Department of Corrections to spend tens of millions of dollars to treat possibly thousands of prison inmates with Hepatitis C, a potentially fatal liver disease, was filed on March 13 in federal court. The lawsuit was filed by inmate Russell Geissler, 34, of Greenville, who is serving a roughly 10-year sentence for charges including armed robbery. It claims that up to 6,000 of the state's inmates may have Hepatitis C, a liver infection especially prevalent among prison inmates.. The lawsuit alleges a violation of the Eighth Amendment to the U.S. Constitution, which bars cruel and unusual punishment. It seeks class-action status and asks a federal judge to order immediate testing of the prison system's approximately 19,000 inmates. S.C. prisons do not now systematically test inmates for Hepatitis C, the lawsuit says. A similar federal suit was brought against the Florida prison system. In that case, a federal judge last fall ordered that state's prison system to diagnose and treat the most infected inmates. The judge in that case found that Florida had "a long and sordid history of failing to treat Hepatitis C-infected inmates." Not treating them amounted to a violation of the Eighth Amendment, showing "deliberate indifference" to inmates' serious medical needs. The state of Massachusetts tentatively settled another similar federal lawsuit, agreeing to begin testing and treating its prison inmates. Similar class-action lawsuits are pending in a dozen other states. Prison inmates have a constitutional right to appropriate and timely medical treatment. Inmates have no other access to medical care other than what the state allows or provides. There is effective treatment for Hepatitis C. New drugs to treat it began to come on the market in 2013, and treatment nearly always is successful, according to medical authorities. If the infection is untreated, it can lead to liver cancer, liver failure or other severe ailments. The biggest barrier to treatment is cost of the anti-viral treatment drugs -- which can cost from $25,000 to $50,000 for each prisoner. However, Hepatitis C progresses in stages, and not everyone who has the infection needs to be treated at once. Hepatitis C is spread by exposure to blood or blood products. The most common ways to contract the disease are through intravenous drug use, but people also can be affected through tattooing or blood transfusions. Persons affected with Hepatitis C can suffer weakness, pain, liver cancer and bleeding from any part in the body. Prison officials were not immediately available to comment on the suit. However, the S.C. Department of Corrections is aware of the dangers of Hepatitis C. "We have begun to treat Hepatitis C inmates with a new drug regimen that has over a 95 per cent cure rate," prisons director Bryan Stirling wrote in his department's annual report last fall. Last fiscal year, the department treated four inmates with the new drugs, Mr. Stirling said. But that isn't anywhere near what is needed, the lawsuit says. The S.C. prison system's program "will serve only 16 inmates, despite the fact that the number of infected inmates likely numbers in the thousands," the lawsuit said. The prison system now has a partnership with the S.C. Department of Environmental Control and the University of South Carolina Infectious Disease Program, Mr. Stirling wrote. Two doctors are on contract to work with various infectious diseases, including Hepatitis C, he wrote. Mr. Geissler, an inmate since 2011, was diagnosed as having Hepatitis C in January 2014 after having his blood tested for an unrelated health issue. The prison system repeatedly has denied his requests for treatment, and he has exhausted "all available administrative remedies," his lawsuit says. Christopher Bryant, the Charleston lawyer who brought the lawsuit on Mr. Geissler's behalf, said on March 13 the prison system's position is that Mr. Geissler and other inmates with Hepatitis C are "not yet sick enough for treatment. This is contrary to accepted medical standard of care and unacceptable in a civilized society." Inmates with untreated Hepatitis C are being released when they finish their sentences, Mr. Bryant said. Outside prison, they may spread the disease. If they are tested, treated and taught about prevention inside prison, that benefits the public as a whole, Mr. Bryant said. "Treat and educate in the prisons," Mr. Bryant said. "It will help to slow the spread outside prisons." Mr. Bryant acknowledged some people may not be sympathetic to giving expensive treatment to inmates. But inmates deserve medical treatment, he said. "If someone breaks their arm in prison, we don't say, 'Hey, don't get a cast'." Also, he said, Geissler is not asking for an unproven experimental drug. The drugs in use to treat Hepatitis C have a nearly 100 percent cure rate, he said. Mr. Bryant is working with lawyers in the Harpootlian law firm of Columbia, which has experience in class-action litigation, and the Guttman Buschner law firm in Washington, D.C., experienced in medical and class-action issues, in the lawsuit. [GN] SPARCO LLC: Faces "Rudisel" Suit in South Carolina -------------------------------------------------- A class action lawsuit has been filed against Sparco LLC. The case is styled as Roy Martin and David Rudisel, individually and on behalf of all others similarly situated, Plaintiff v. Sparco LLC and AMOS Franchise Systems Inc doing business as: Advanced Maintenance, Defendants, Case No. 6:18-cv-00916-BHH (D. S.C., April 4, 2018). The nature of suit is stated as Labor: Fair Standards.[BN] The Plaintiff is represented by: John G Reckenbeil, Esq. John G Reckenbeil Law Office PO Box 1633 Spartanburg, SC 29306 Tel: (864) 582-5472 Fax: (864) 582-7280 Email: john@johnreckenbeillaw.com - and - Lawrence Everett McNair, III, Esq. John Reckenbeil Law Office 215 Magnolia Street Spartanburg, SC 29306 Tel: (864) 582-5472 Email: lee@johnreckenbeillaw.com STUCKY LAUER: Maloy Seeks to Certify Settlement Class ----------------------------------------------------- In the lawsuit styled SAMUEL MALOY, on behalf of himself and all others similarly situated, the Plaintiff, v. STUCKY, LAUER & YOUNG, LLP, the Defendant, Case No. 1:17-cv-00336-TLS-PRC (N.D. Ind.), the Plaintiff moves the Court to enter an order: 1. preliminarily certifying a class of individuals for settlement purposes as set forth in the parties' proposed settlement agreement; 2. preliminarily approving the Agreement pursuant to Rule 23 of the Federal Rules of Civil Procedure; 3. conditionally certifying Plaintiff as the named- representative of the Class; 4. conditionally certifying Plaintiff's counsel as counsel for the Class; 5. approving the form of the proposed class notice and the parties' proposed method of distribution of the Notice to the Class; and 6. setting a final fairness hearing to determine whether the proposed settlement is fair, adequate, and reasonable. The parties' Agreement defines the settlement Class under Rule 23(b)(3) comprising: "all individuals in the state of Indiana to whom Defendant sent a letter based on the Template1 in connection with the collection of a consumer debt on or after August 9, 2016 through August 9, 2017." In addition to the Plaintiff, the parties identified 925 other class members through discovery. Class members who do not exclude themselves from the settlement will receive a pro-rata share of the $5,000 set aside in the settlement fund. Thus, if no class member opts out, each class member would receive approximately $5.40. Class members will not need to submit a claim form, or any other documentation, to receive a settlement payment. To the extent any settlement checks go uncashed after reasonable steps are taken to forward checks to any forwarding addresses, such funds will be redistributed to Indiana Legal Services, Inc. -- the cy pres recipient selected by the parties. None of the funds will revert back to Defendant. In addition, Defendant will separately pay $1,000 to Plaintiff in statutory damages and for his service to the Class. Defendant also will separately pay the costs of notice and administration of the settlement, plus an award of attorney's fees and expenses to class counsel, subject to Court approval. The Agreement requires direct mail notice to the Class. Defendant has in its possession the names and recent addresses of each class member, and will provide the foregoing information to Plaintiff's counsel, who will serve as the Class administrator, and will take all reasonable steps necessary to ensure that each Class member receives direct mail notice, including updating addresses for any mail returned as undeliverable. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=FUhsCAGa The Plaintiff is represented by: Joseph Panvini, Esq. THOMPSON CONSUMER LAW GROUP, PLLC 5235 E. Southern Ave., D106-618 Mesa, AZ 85206 Telephone: 602 388 8875 Facsimile: 866 317 2674 E-mail: jpanvini@consumerlawinfo.com The Defendant is represented by: Briane M. House, Esq. SKILES DETRUDE 150 East Market Street, Suite 200 Indianapolis, IN 46204 E-mail: bhouse@skilesdetrude.com SUPERVALU INC: Faegre Baker Attorney Discusses Court Ruling ----------------------------------------------------------- Jeffrey Justman, Esq., of Faegre Baker Daniels, in an article for JDSupra, reports that on March 7, 2018, the United States District Court for the District of Minnesota dismissed a putative data breach class action against SuperValu, Inc., because the plaintiffs did not have standing and could not state claims upon which relief could be granted. The Court's opinion in In re SuperValu, Inc. Customer Data Security Breach Litigation identifies a successful path for companies seeking to dismiss data breach class actions: seek dismissal not only for defects in standing, but also for failure to state a claim. Case Background In June 2014, hackers installed malicious software on SuperValu's payment processing network. Sixteen SuperValu customers subsequently brought or joined putative class actions, alleging that they had used credit or debit cards at SuperValu and that their personal identifying information (PII), including their account numbers, expiration dates, and card verification value codes, had been stolen. Plaintiffs brought a number of claims, including for negligence, breach of contract, and under state consumer protection statutes. The Hon. Ann D. Montgomery, United States District Judge for the District of Minnesota, first granted a motion to dismiss the case in January 2016. Judge Montgomery dismissed the case at that time because Plaintiffs had not alleged facts sufficient to establish standing under Article III of the Constitution. In particular, Plaintiffs had failed to allege that their PII had been misused, and had not alleged facts that plausibly suggested a substantial risk of future harm. On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. It affirmed dismissal of the lawsuits of 15 of the 16 Plaintiffs because none of them had alleged that their PII had been misused; they had only alleged a "mere possibility," rather than a "substantial risk," of future injury. The Eighth Circuit reversed as to one remaining plaintiff, David Holmes, because he had alleged that his PII was stolen and misused in a single fraudulent charge. The Eighth Circuit remanded so Judge Montgomery could consider whether Holmes's allegations satisfied more rigorous standards under Rule 12(b)(6). The Court's Reasoning On remand, SuperValu renewed its motion to dismiss, alleging that Holmes had not alleged that he shopped at SuperValu during the operative period or that he had suffered economic injury as required under governing law. Judge Montgomery agreed and granted SuperValu's motion to dismiss each of Holmes's claims: 1. Holmes's negligence claim did not survive dismissal because under governing law, a plaintiff must allege actual out-of-pocket loss, not just an unauthorized charge. Holmes did not allege the date he shopped at a SuperValu store, the amount of the unauthorized charge, or that the charge was not reimbursed by his credit card company. Because he didn't do any of those things, he did not establish the requisite elements of causation or injury for his claim to survive dismissal. In the alternative, the Court also concluded that the economic loss doctrine, which prohibits recovery for purely economic claims sounding in negligence, barred Holmes's negligence claim. 2. Holmes's breach-of-contract claim failed because Holmes never alleged that he was a party to a contract with SuperValu, and also did not allege that he had suffered an actual injury. 3. Holmes's claims under Illinois consumer protection statutes failed because Holmes did not allege that he suffered actual monetary loss. Thus, similar to Holmes's negligence claim, the allegation of an unauthorized charge was insufficient to survive dismissal. 4. Holmes's unjust enrichment claim failed because Holmes did not allege that the goods he purchased from SuperValu were defective or that their value was somehow diminished by the data breach. Finally, Judge Montgomery denied the Plaintiffs' request to amend their complaint, both because it was untimely, and because it would have been futile. As to the latter reason, Judge Montgomery held that new allegations did not establish the substantial risk of future harm as required to establish standing under Article III of the Constitution. Defense Strategy: Move to Dismiss for Both Lack of Standing and Failure to State a Claim This case shows the benefit of a multi-front attack to data breach class actions: motions to dismiss (1) for lack of standing; and (2) for failure to state a claim. Both approaches attack allegations of a plaintiff's injury, but a motion to dismiss for failure to state a claim can be particularly valuable, because even where an alleged injury will establish standing under the Constitution (for example, an allegation that the plaintiff incurred an unauthorized charge), the law governing the merits of the claims might require more (as it did here, where it required actual, out-of-pocket loss, and allegations linking that monetary loss to the data breach). [GN] SYNGENTA: $1.51BB GMO Cor Settlement Obtains Preliminary Court OK ----------------------------------------------------------------- Hare Wynn Newell & Newton, LLP on March 12 disclosed that a $1.51 billion settlement has been reached in the nationwide class action lawsuit filed in Kansas federal court over Syngenta's genetically modified corn seed. It is believed to be the largest agricultural litigation settlement in U.S. history. The settlement covers all U.S. corn producers -- farmers and crop share landlords -- as well as grain handling facilities and ethanol plants nationwide who sold corn priced after September 15, 2013. A motion for preliminary approval has been filed. The settlement must be approved by the Honorable John W. Lungstrum, a United States District Judge for the District of Kansas. The litigation has been led by four lawyers who were appointed Co-Lead and Class Counsel by the Court - William Chaney of Gray Reed & McGraw LLP, Patrick Stueve of Stueve Siegel Hanson LLP, Don Downing of Gray, Ritter & Graham, P.C., and Scott Powell of Hare Wynn Newell & Newton. The four co-lead counsel issued a statement: "We are very pleased with this outcome. America's corn farmers and related businesses were hurt economically and this settlement will provide fair compensation for their damages. It is an equitable result for all involved." Who is Covered Under this Syngenta Corn Class Action Settlement? All corn growers, grain handling facilities and ethanol plants across the country -- as defined in the settlement and who choose to stay in the settlement -- are covered by this settlement, including any U.S. farmers who opted out of previous Syngenta litigation. However, all class members must submit a claim form to receive settlement funds. Next Steps If preliminarily approved, the settlement terms and claims process information will be set forth in notices mailed to class members and published in various media outlets across the country, as well as in a settlement website. Members of the class then will have a period of time to submit a claim form, opt out of the settlement, or object to the terms of the agreement. Judge Lungstrum then will decide on whether to finally approve the $1.51 billion settlement. If the settlement is ultimately approved, it is anticipated that funds could be distributed to class members in the first half of 2019. The Syngenta Genetically Modified Corn Seed Litigation Judge Lungstrum certified the nationwide class action lawsuit in September 2016. Eight state class action lawsuits were also certified in the multi-district litigation. The four co-lead plaintiff's counsel in the nationwide class action lawsuit also represented more than 7,000 Kansas farmers in the first and only state class action lawsuit to be tried to a verdict. In June 2017, a Kansas jury returned a $217.7 million verdict in favor of the Kansas grown growers. These farmers, as well as all corn farmers nationwide, will be covered under this class action settlement and must submit a claim form to receive compensation. For more information, visit www.syngentacornlitigation.com [GN] TELECHECK SERVICES: Bid for Class Certification Denied as Moot -------------------------------------------------------------- In the lawsuit styled JAMES HUFF, the Plaintiff, v. TELECHECK SERVICES, INC., TELECHECK INTERNATIONAL, INC., and FIRST DATA CORPORATION, the Defendants, Case No. 3:14-cv-01832 (M.D. Tenn.), the Hon. Judge Samuel H. Mays, Jr. entered on order on March 30, 2018: 1. granting the Defendants' motion for summary judgment; and 2. denying as moot the Plaintiff's motion for class certification. The Court said, "Plaintiff does not face a substantial risk of harm, nor has he incurred any mitigation costs. Plaintiff admits that he has not "suffer[ed] any psychological harm" or "emotional distress" as a result of the missing information in his report. (ECF No. 78-2 at 1329.) Plaintiff also did not "lose money because of the contents of this report." (Id.) Indeed, the missing information had "[no] effect on [Plaintiff] whatsoever." (Id.) Plaintiffs' personal information in Galaria had "already been stolen and [was] now in the hands of ill-intentioned criminals." Galaria, 663 F. App'x at 388. The missing information in Plaintiff's TFR has not been stolen and has "never affected, altered, or influenced a single consumer report on Plaintiff." (ECF No. 81 at 1569.) Because the two missing transactions in Plaintiff's TFR were accurate, their communication to third parties would have conferred no harm on Plaintiff. Having failed to identify a concrete harm or risk of harm that Congress sought to prevent by requiring disclosure, Plaintiff "is left with a statutory violation divorced from any real world effect." Dreher, 856 F.3d at 347. Defendants' failure to include two transactions in Plaintiff's TFR had no practical effect on Plaintiff. A statutory violation, by itself, is insufficient to confer standing. Because Plaintiff has failed to demonstrate that he has suffered a concrete injury sufficient to confer Article III standing, "the court cannot proceed at all." "[T]he only function remaining to the court is that of announcing the fact and dismissing the cause." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=RXH4mdWD TIGER BRANDS: 50 Families of Listeriosis Victims to Join Suit ------------------------------------------------------------- Mia Lindeque writing for Eyewitness News, reports that Richard Spoor Incorporated Attorneys says 50 families of victims of listeriosis have made contact requesting to be represented in what could be a class action lawsuit. More than a 180 people have died of listeriosis since the outbreak last year and just less than a thousand people have become ill. Health Minister Aaron Motsoaledi has identified polony from Enterprise and Rainbow Chickens as the source of the deadly bacteria. Listeria was found at Enterprise's Germiston and Polokwane factories. Human rights lawyer Richard Spoor says that a team is collecting affidavits from affected families and finalizing documents. "Mothers of small children who contracted this disease and pregnant women and their babies and the complications that go with it of those that have come past my desk in the last few days. But there may be others, they're coming." Mr. Spoor says a proper investigation through the Labour Department is needed. The firm is now hoping to speak to the union representing workers at the affected factories to assist with more information. [GN] TIGER BRANDS: Suits Expected to Pile Up Over Listeriosis Outbreak ----------------------------------------------------------------- Gemma Ritchie, writing for Mail & Guardian, reports that while still denying culpability in the deaths of at least 183 people and 479 counts of illness as a result of the listeriosis outbreak, Tiger Brands is now the subject of several lawsuits and criminal charges. Forensic investigator Paul O'Sullivan and Forensics for Justice plan to open a criminal docket against Tiger Brands, with the hope of charging the company with attempted murder and culpable homicide. Over and above Mr. O'Sullivan, attorney Richard Spoor and the Economic Freedom Fighters have independently confirmed that they plan to file lawsuits against Tiger Brands whose Enterprise Food facility in Polokwane has been identified the source of the epidemic. If the lawsuits are successful, they could potentially result in hundreds of millions of rands awarded to victims and the families of those killed. Mr. O'Sullivan said he will work closely with National Institute for Communicable Diseases (NCID) to work out the exact number of listeriosis-linked deaths, which the investigator believes will rise to 500. Even though Tiger Brands may face litigation, its chief executive Lawrence MacDougall has said that the company's primary concern continues to be food safety and, in response to the health department's announcement and the findings by the NCID, it has began a voluntary recall of all its processed-meat products. Mr. Spoor, who is putting the class action together on behalf of victims, has blamed the outbreak of LST6, the specific strain of listeriosis, on health officials. Nearly all of the victims who were tested showed strains linked to the Polokwane factory. "That looks to us to be an overwhelmingly strong case, it's like a fingerprint, or the marks on a bullet fired from a gun," said Spoor. The government has promised to support communities intending to take court action, saying that it will provide information and expertise. "Laws are available to take people to account and they are going to be punished in terms of the available legislation," Health Minister Aaron Motsoaledi told the National Assembly. Mr. Spoor, who spearheaded and won a suit against gold producers over the fatal lung disease silicosis, will join forces with US lawyer Bill Marler who won $110-million in compensation for victims of an ecoli outbreak in the United States which originated from fast-food chain Jack in the Box. Countries around the continent have already placed a ban on Tiger Brand imports processed meats from South Africa were set alight in several locations in Malawi. [GN] TIGER BRANDS: To Contest Listeriosis Class Action Aggressively -------------------------------------------------------------- Bloomberg's Paul Burkhardt and Fin24 report that the share price of Tiger Brands [JSE:TBS] dipped by more than 5% in early trade on Monday, March 12, 2018, before recovering to trade a touch over 3% down on news that South African listeriosis victims plan to file a class action case against the group. Richard Spoor, known in South Africa for his work for mineworkers seeking compensation for lung damage, is teaming up with Seattle- based firm Marler Clark on the listeriosis case, he said on March 12. The suit could be brought within the next two weeks. The group's shares were trading down 3.3% at R355.95 at 15:46 on the JSE after reaching an intra-day low of R348.52. Tiger Brands' Enterprise unit has closed two factories and recalled ready-to-eat meat products after government tests linked one of its facilities to the outbreak. "We have instructions from a large enough group of victims and a representative group of victims" to file a suit, Mr. Spoor said by phone. Tiger Brands hasn't received notification of any class action, said Nevashnee Naicker, a company spokesperson. The Department of Health traced the outbreak, in which more than 180 people have died, to Tiger Brands' Enterprise factory in Polokwane, in Limpopo province, and said it would support anyone intending legal action. While the department showed Tiger Brands confirmation that the ST6 strain of listeria, which has been linked to the deaths, was found at the facility, tests haven't shown the strain in the company's products, Mr. Naicker said. Consumer protection rules state that harm caused by a defective product can hold the distributor strictly liable, Spoor said. "I can't see how it would be in Tiger Brands' interest to contest this aggressively," he said. Tiger Brands on March 9 said that its Polokwane and Germiston factories would remain closed while it conducts a "deep cleaning process". "Tiger Brands acknowledges that it is dealing with a national crisis which has impacted customers, consumers and the industry. Tiger Brands intends being at the forefront of finding a solution, and to this end, we have appointed a team of local and international scientific experts to attempt identify the root cause of LST6," it said. [GN] TIGER BRANDS: Spoor Optimistic on Success of Listeriosis Case ------------------------------------------------------------- Chisom Jenniffer Okoye, writing for The Citizen, report that the class action won't cost victims a cent, as 'we will recover the money from Tiger Brands,' human rights lawyer Richard Spoor says. Preparations for a listeriosis-related class action against Tiger Brands have begun and attorneys representing those affected are so confident of success they will conduct the case pro bono. Richard Spoor Incorporated Attorneys has a "sufficient number" of victims to pursue a class action case in order to hold Tiger Brands accountable for the outbreak, that affected hundreds of consumers and led to 180 deaths. The law firm has teamed up with Marler Clark, a US food safety firm, and is confident it has strong evidence and experience to win a multimillion-rand case against Tiger Brands. Human rights lawyer Richard Spoor said: "We have no intention of recovering the money from our clients. "We will litigate on our own expense and recover the money from Tiger Brands." According to Mr. Spoor, a class action case allows for the victims to be represented by a strong team of advocates and one record file of evidence that will not only strengthen the case, but enable the firm to do "a better job". "The big advantage about class cases is that it will benefit everyone involved," said Mr. Spoor. "This is especially true for people with smaller cases who are usually not given much attention because their cases are deemed much smaller in comparison to other cases dealing with deaths or diseases caused by the defendant. "In this case, people with smaller cases benefit more because they get the opportunity to get their justice as well." The case could also assist people who are unable to afford the legal fees essential to pursue such a case. Mr. Spoor said his firm would have to apply and wait for the court to grant them with the relevant certification to pursue the case before they can issue an official notice for all victims to participate. Although victims are encouraged to join the class action, Spoor says they were not obligated to join and were free to pursue their own cases. Mr. Spoor said his firm was confident they would bring justice to the victims of the listeriosis outbreak and that their clients would not have to pay the firm's legal fees from any money they might be awarded. [GN] TONE HOUSE: Faces "Martinez" Suit in E.D. New York -------------------------------------------------- A class action lawsuit has been filed against Tone House Fitness, LLC. The case is styled as Pedro Martinez, individually and as the representative of a class of similarly situated persons, Plaintiff v. Tone House Fitness, LLC doing business as: Tone House, Defendant, Case No. 1:18-cv-02002 (E.D. N.Y., April 3, 2018). Tone House Fitness LLC operates athletic-based group fitness studios.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com TRUECAR INC: Milbeck Sues over Securities Fraud ----------------------------------------------- LEON D. MILBECK, on behalf of himself and all others similarly situated, the Plaintiff, v. TRUECAR, INC. and MICHAEL GUTHRIE, the Defendants, Case No. 2:18-cv-02612 (C.D. Fla., March 30, 2018), seeks to recover damages caused by the Defendants' securities fraud in violation of the Securities Exchange Act of 1934. TrueCar develops and publishes an online automobile information and communication platform. The Company provides data and price reports for new and used cars, and provides a platform for car dealers to communicate with consumers. TrueCar operates a company-branded platform that can be accessed directly, and also customizes and operates its platform on a co- branded basis for many affinity group marketing partners, including financial institutions, such as the United Services Automobile Association, membership-based organizations such as Consumer Reports, and employee buying programs for large enterprises such as IBM and WalMart. Its platform enables users to obtain market-based pricing data on new and used cars, and to connect with its network of TrueCar Certified Dealers. The platform also enables automobile manufacturers, or OEMs, to connect with TrueCar users during the purchase process to deliver targeted incentives to consumers. The Company's single largest source of unique visitors and unit sales from affinity group marketing partners is from its relationship with USAA, a related party that currently owns approximately 9% of TrueCar's outstanding common stock. Therefore, USAA has a significant influence on TrueCar's financial performance. USAA is an institution that serves current and former military members and their families. The majority of TrueCar's revenues (over 90%) are transaction revenue that is either based on a fee per vehicle sold or in the form of a subscription arrangement. The subscription arrangements can be a flat rate subscription or a subscription for which TrueCar guarantees a dealer a minimum number of sales or introductions. If the minimum is not met TrueCar gives a credit to the dealer. During the Class Period the Company made numerous positive statements concerning the Company's prospects and growth, while failing to disclose negative developments related to USAA, its largest source of revenue. On November 6, after missing on guidance, the Company disclosed that USAA had made significant changes to its website during the Class period that had a material adverse effect on the volume of purchases generated by USAA. On this news, TrueCar's shares declined by $5.76 per share, or 35.25%, to close at $10.58 per share on November 7, 2017 on heavy trading volume. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, Plaintiff and other Class members have suffered significant losses and damages.[BN] Attorneys for Plaintiff: Laurence D. King, Esq. Mario M. Choi, Esq. Justin B. Farar, Esq. Robert N. Kaplan, Esq. Frederic S. Fox, Esq. Jeffrey P. Campisi, Esq. Jason A. Uris, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772 4700 Facsimile: (415) 772 4709 E-mail: lking@kaplanfox.com mchoi@kaplanfox.com jfarar@kaplanfox.com rkaplan@kaplanfox.com ffox@kaplanfox.com jcampisi@kaplanfox.com juris@kaplanfox.com TWITTER INC: Two Men Want to Lead Stock Fraud Class Action ---------------------------------------------------------- Jack Newsham, writing for Law360, reports that two men and their lawyers at Wilentz Goldman & Spitzer PA and Cherundolo Law Firm PLLC asked a New York federal judge on March 13 to let them lead a proposed class action against an imprisoned fraudster and the companies and individual that allegedly worked with him. Steven Amerio and Andrew Goldberg say they lost $300,000 in Gregory W. Gray's scheme, in which the central New York businessman bought less Twitter Inc. stock ahead of its initial public offering than he told investors he would. The case is Goldberg v. Gray, Jr. et al, Case No. 5:15-cv-00538 (N.D.N.Y.). The case is assigned to Judge David N. Hurd. The case was filed April 30, 2015. [GN] U.S. GEOTHERMAL: Young Balks at Merger Deal with Ormat Tech ----------------------------------------------------------- JULIE YOUNG, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. U.S. GEOTHERMAL, INC., JOHN H. WALKER, PAUL LARKIN, LELAND MINK, JAMES C. PAPPAS, RANDOLPH J. HILL, ALI HEDAYAT, DOUGLAS J. GLASPEY, ORMAT TECHNOLOGIES, INC., ORMAT NEVADA, INC., and OGP HOLDING CORP., the Defendants, Case No. 1:18-cv-00145-CWD (D. Idaho, March 30, 2018), seeks to recover damages caused by U.S. Geothermal's Board of Directors for their violations of the Securities Exchange Act of 1934 in connection with the proposed sale of the Company to Ormat Technologies, Inc. On January 24, 2018, U.S. Geothermal entered into an agreement and plan of Merger with Ormat Nevada Inc., and OGP Holding Corp., a wholly owned subsidiary of Ormat, pursuant to which Ormat will purchase each issued and outstanding share of the Company's common stock in exchange for $5.45 in cash. Upon consummation of the proposed transaction OGP Holding will merge with and into the Company. On March 20, 2018, the Company filed a proxy statement. The proxy statement omits material information regarding the proposed transaction, thereby rendering it false and misleading in violation of Securities Exchange Act of 1934.[BN] Attorneys for Plaintiff: Eric B. Swartz, Esq. JONES & SWARTZ PLLC LANDMARK LEGAL GROUP TM 623 West Hays Street Boise, ID 83702 Telephone: (208) 489 8989 Facsimile: (208) 489 8988 E-mail: eric@jonesandswartzlaw.com UBIQUITI NETWORKS: Robbins Geller Files Securities Class Action --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on March 13 disclosed that a class action has been commenced on behalf of purchasers of Ubiquiti Networks, Inc. ("Ubiquiti") (NASDAQ:UBNT) common stock during the period between August 3, 2017 and February 20, 2018 (the "Class Period"). This action was filed in the Southern District of New York and is captioned Kho v. Ubiquiti Networks, Inc., No. 18-cv-02242. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from February 22, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, David C. Walton of Robbins Geller at 800/449-4900 or 619/231- 1058, or via e-mail at davew@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/ubiquitinetworks/. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Ubiquiti and certain of its officers with violations of the Securities Exchange Act of 1934. Ubiquiti develops technology platforms for hi-capacity distributed Internet access, unified information technology, and next- generation consumer electronics for home and personal use. Ubiquiti claims that the key to keeping costs disruptively low is eschewing a traditional sales force in favor of the "Ubiquiti Community," explaining that its "business model is driven by a large, growing and highly engaged community of service providers, distributors, value added resellers, systems integrators and corporate IT professionals, which [the Company] refer[s] to as the Ubiquiti Community." The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose material adverse facts about the Company's business, operations and prospects. Specifically, the complaint alleges that during the Class Period, Ubiquiti had been inaccurately reporting its operating metrics and using improper accounting practices, including overstating the number of actual registered users participating in the Ubiquiti Community, as well as the levels and importance of their engagement with the Ubiquiti Community; overstating accounts receivable; and overstating the profits derived from the Company's U.S. operations and thus its U.S. operations profit margins. In addition, much of Ubiquiti's distributor network was made up of overseas entities and individuals who were doing business in sanctioned countries and in jurisdictions identified by the Financial Action Task Force as "noncooperative jurisdictions" with regard to anti-money laundering regulations. As a result of these false statements and/or omissions, the price of Ubiquiti common stock was artificially inflated to as high as $81.74 per share during the Class Period. On September 18, 2017, Citron Research issued a report detailing a series of "alarming red flags" indicating that the Company had been deceiving investors and was engaged in "fraud," including, among other things, misrepresenting the size of its purported "Ubiquiti Community," as well as its levels of accounts receivable. This partial disclosure caused Ubiquiti's stock price to fall $4.33 per share, or nearly 8%, to close at $50.62 per share on September 18, 2017. On November 9, 2017, Ubiquiti acknowledged it had inflated the size of the Ubiquiti Community due to a purported "reporting error" and admitted in an SEC filing that it had only about 609,000 registered users, not the 4 million it had repeatedly reported in its SEC filings. Then, on February 20, 2018, the Company filed a Form 8-K disclosing that on February 13, 2018, the SEC had issued subpoenas to Ubiquiti and certain of the Company's officers requesting documents and information regarding a range of topics, including metrics relating to the Ubiquiti Community and the Company's accounting practices, financial information, auditors, international trade practices, and relationships with distributors and various other third parties. Following the disclosure that the SEC had served subpoenas on the Company, the price of Ubiquiti common stock plummeted, falling $18.76 per share, or more than 25%, from its close of $74.04 per share on February 16, 2018, to close at $55.28 per share on February 20, 2018. Plaintiff seeks to recover damages on behalf of all purchasers of Ubiquiti common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising and representing U.S. and international investors in securities litigation and portfolio monitoring. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For the third consecutive year, the Firm ranked first in both the total amount recovered for investors and the number of shareholder class action recoveries in ISS's SCAS Top 50 Report. Robbins Geller attorneys have shaped the law in the areas of securities litigation and shareholder rights and have recovered tens of billions of dollars on behalf of the Firm's clients. Robbins Geller not only secures recoveries for defrauded investors, it also implements significant corporate governance reforms, helping to improve the financial markets for investors worldwide. [GN] UNITED COLLECTION: Faces "Taubenfliegel" Suit in E.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against United Collection Bureau, Inc. The case is styled as Menachem Taubenfliegel, on behalf of himself and all other similarly situated consumers, Plaintiff v. United Collection Bureau, Inc., Defendant, Case No. 1:18-cv-02005 (E.D. N.Y., April 4, 2018). United Collection Bureau, Inc. provides debt collection services for companies (government, healthcare, utility, financial service, communication, and student markets) and individuals in the United States.[BN] The Plaintiff is represented by: Adam Jon Fishbein,Esq. Adam J. Fishbein, P.C. 735 Central Avenue Woodmere, NY 11598 Tel: (516) 668-6945 Email: fishbeinadamj@gmail.com UNITED STATES: Ramos et al Sue Homeland Security over TPS Rule -------------------------------------------------------------- CRISTA RAMOS, individually and on behalf of others similarly situated; CRISTINA MORALES; BENJAMIN ZEPEDA, individually and on behalf of others similarly situated; ORLANDO ZEPEDA; JUAN EDUARDO AYALA FLORES, individually and on behalf of others similarly situated; MARIA JOSE AYALA FLORES; ELSY YOLANDA FLORES DE AYALA; HNAIDA CENEMAT, individually and on behalf of others similarly situated; WILNA DESTIN; RILYA SALARY, individually and on behalf of others similarly situated; SHERIKA BLANC; IMARA AMPIE; MAZIN AHMED; and HIWAIDA ELARABI, the Plaintiffs, v. KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; ELAINE C. DUKE, in her official capacity as Deputy Secretary of Homeland Security; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; and UNITED STATES OF AMERICA, the Defendants, Case No. 3:18-cv-01554-EMC (N.D. Cal., March 12, 2018), challenges the Department of Homeland Security's new rule for deciding whether to terminate Temporary Protected Status designations for countries facing armed conflict, natural disasters, or other crises that make the return of people from those countries untenable. The Plaintiffs comprise U.S. citizen children, their non-citizen parents, and other non-citizen adults who are in the United States legally, and who have lived in the U.S. lawfully for years, in some cases decades. According to the lawsuit, since President Donald J. Trump took office in January 2017, the Administration has announced four TPS terminations, each one for a country in Latin America, the Caribbean, or Africa -- El Salvador, Nicaragua, Haiti and Sudan. As a result of the Department of Homeland Security's unlawful actions, more than 200,000 individuals who hold TPS face the imminent loss of their right to live and work lawfully in this country. In addition, more than 200,000 U.S. citizen children, each of them with a parent or parents who are TPS holders, face an impossible choice between leaving the only home they have ever known, and growing up without one or both parents. TPS is a form of humanitarian immigration relief that allows individuals from designated countries to live and work lawfully in the United States when they cannot return safely to their country of origin due to armed conflict, natural disaster or other "extraordinary circumstances." See 8 U.S.C. section 1254a. Congress created TPS to establish formal criteria and procedures to replace more ad hoc practices the Executive Branch had used for decades to provide similar relief. Although some countries are designated for TPS only for short periods, others have been designated for many years, including El Salvador (designated since 2001), Nicaragua (designated since 1999), Sudan (designated since 1997), and Haiti (designated since 2010). Under previous administrations, DHS regularly considered natural disasters and social or economic crises that occurred after a country was originally designated for TPS in deciding whether to continue or instead terminate a country's designation. But after President Trump took office, DHS -- without any formal announcement or other explanation -- adopted a new, novel interpretation of the TPS statute that eschews consideration of any intervening country conditions. The Administration's new legal rule has dramatically altered the lives of many Americans. More than 270,000 U.S. citizen children have at least one parent with TPS. Many of them are still in school. This country is their home in every legal and practical sense of that word. Yet their parents will shortly lose the right to continue living and working lawfully in this country. Currently, more than 400,000 individuals from ten different countries have TPS. Whether or not they have children, many TPS holders came to this country at a young age and have lived here for most of their lives. They have homes, spouses, jobs, and other profound social ties to their communities that now entwine their lives with this country. Since President Trump took office, DHS has applied its new rule for making TPS determinations to terminate the TPS designations of El Salvador, Haiti, Nicaragua, and Sudan.[BN] The Plaintiffs are represented by: Ahilan T. Arulanantham, Esq. Jennifer Poon, Esq. ACLU OF SOUTHERN CALIFORNIA 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977 5211 Facsimile: (213) 977 5297 E-mail: aarulanantham@aclusocal.org jpoon@aclusocal.org - and - Emilou MacLean, Esq. Jessica Karp Bansal, Esq. NATIONAL DAY LABORER ORGANIZING NETWORK 674 S. La Layette Park Place Los Angeles, CA 90057 Telephone: (213) 380-2214 Fax: (213) 380-2787 E-mail: emi@ndlon.org jbansal@ndlon.org - and - Mark E. Haddad, Esq. Alycia A. Degen, Esq. Sean A. Commons, SBN 217603 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896 6000 Facsimile: (213) 896 6600 E-mail: mhaddad@sidley.com adegen@sidley.com scommons@sidley.com - and - Nicole M. Ryan, Esq. Ryan M. Sandrock, Esq. SIDLEY AUSTIN LLP 555 California Street, Suite 2000 San Francisco, CA 94104 Telephone: (415) 772 1200 Facsimile: (415) 772 7400 E-mail: nicole.ryan@sidley.com rsandrock@sidley.com - and - Amanda R. Farfel, Esq. Andrew B. Talai, Esq. Marisol Ramirez, Esq. SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 Telephone: (213) 896 6000 Facsimile: (213) 896 6600 E-mail: afarfel@sidley.com atalai@sidley.com marisol.ramirez@sidley.com UNITED STATES: Opposes Class Action in Guam Over H-2B Visas ----------------------------------------------------------- Kevin Kerrigan, writing for The Guam Daily Post, reports that the federal government has filed a motion opposing the class-action status sought by the Guam Contractors Association and 11 other plaintiffs in their lawsuit over the denial of H-2B visas for skilled foreign laborers. The U.S. Justice Department's motion argues that the Guam businesses that filed the lawsuit "lack standing" because no relief can be granted since the periods of need for all the H-2B worker petitions that were denied have now expired. In addition, the U.S. Citizenship and Immigration Services contends the request for class action status is "unripe," or not ready, for judicial review because there aren't any current H-2B petitions at issue. 2016 lawsuit A group of Guam businesses filed the lawsuit against USCIS in October 2016. They accused USCIS of an about-face by imposing a new interpretation of the "temporary need" requirement for an H- 2B application. They called the agency's "new interpretation" of the requirements "arbitrary and capricious," and charged USCIS with damaging their businesses and the economy of Guam. In January, Chief Judge Frances Tydingco-Gatewood of the District Court of Guam issued a preliminary injunction against ordering the agency to reverse its previous denials of H-2B worker petitions, and to stop the blanket denial of future petitions -- at least temporarily -- until the merits of the case have been decided. The Guam plaintiffs are seeking class-action status to cover all Guam employers who need skilled foreign labor, and they want the judge's temporary injunction made permanent. Motion 'not a surprise' John Robertson, the chairman of the committee overseeing the Guam Contractors Association's lawsuit over the H-2B denials, called the opposition motion "bad news," but "not a surprise." Mr. Robertson said from the beginning, their case was filed "on the basis that all those businesses similarly affected by the cessation of work-visa approvals would benefit." "Class certification is a vital aspect of the case," said Robertson, who said he is confident "our legal team of Jeff Joseph, Jenn Davis and Melinda Swavely will put forth the winning argument in this case." [GN] UNITED STATES: Aguilar's Bid to Certify Taken Under Advisement -------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on March 14, 2018, in the case captioned Rony Chavez Aguilar, et al. v. U.S. Immigration and Customs Enforcement Chicago Field Office, et al., Case No. 1:17- cv-02296 (N.D. Ill.), relating to a hearing held before the Honorable Robert M. Dow Jr. The minute entry states that: -- Plaintiff's motion for class certification is terminated as moot, as it is superseded by Plaintiffs' amended motion for class certification, which is taken under advisement; and -- Status hearing set on March 19, 2018, is stricken and no appearances are necessary. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=qK7Y3UN6 UNIVERSITY HOSPITALS: Sauder Schelkopf Files Suit Over Lost Eggs ---------------------------------------------------------------- Lisa M. Krieger, writing for The Mercury News, reports that when "S.M." sought to save her eggs for future motherhood, the San Francisco woman was assured that they would be safely frozen until she needed them. But those precious eggs, along with the eggs and embryos of hundreds of other patients, were stored in malfunctioning Tank No. 4 at Pacific Fertility Center's lab on Francisco Street -- and are now presumed damaged. In this first suit to be filed after a rare malfunction that remains under investigation, the woman, who remains anonymous for privacy, is seeking compensation for negligence and breach of contract from the Prelude Fertility, where she received treatment in 2016, and Pacific Fertility Center, which stored her eggs. The law firm, Sauder Schelkopf of Berwyn, PA, is asking the court to certify the case as a class action, saying that at least 400 individuals may have been harmed by the incident. The suit was filed late Tuesday in the U.S. District Court, Northern District of California, San Francisco Division. "We have been contacted by many people who have been impacted by this heartbreaking incident and we look forward to getting them answers and a meaningful resolution," said attorney Joseph Sauder. "The value of the eggs and embryos that Plaintiff and other class members entrusted to Defendants -- and for which Defendants accepted legal responsibility to store, preserve, and protect -- is substantial," according to the complaint. "For some families, these fertility services provide their only opportunity to conceive a child," it asserts. The fertility clinic breakdown was one of two refrigeration failures -- thought to be the first of their type -- to happen nearly simultaneously on March 4. The other clinic, in Ohio's University Hospitals Cleveland Medical Center, estimates that 2,00 eggs and embryos may have been damaged or destroyed. At least two lawsuits have been filed against the Cleveland clinic. The first is on behalf of Amber and Elliot Ash, who live just west of Cleveland. The couple, infertile after Elliott's cancer treatment, said that their doctor confirmed that two embryos had been in the affected tank and were unusable. Another Cleveland-based patient, Kate Plants, is suing for the loss of five embryos. She had sought fertility treatment following ovarian and uterine cancer. Although no one yet knows what went wrong, experts suspect there were leaks in the seals of the tank that holds liquid nitrogen, where frozen embryos are stored. The San Francisco center states that its system is equipped with a sensor, and an alarm. But the problem was discovered only when the clinic's laboratory director was performing a routine check of the steel storage tanks -- and saw that the level of liquid nitrogen in one tank was too low, according to the center. It's not known whether the failure damaged the eggs and embryos; even if liquid nitrogen levels fall, the storage tanks are slow to warm. But there's no way to know until the eggs and embryos are thawed -- and they can't be safely re-frozen. Retrieving eggs is not a simple medical procedure, and Pacific Fertility's egg-freezing services are not cheap. One cycle of freezing and retrieval, including storage for a year, costs $8,345. A second cycle costs $6,995. Additional costs arise from other of Pacific Fertility's services, such as new patient consultations, lab work, and continuing tissue storage, as well as from needed medications. Pacific Fertility charges an annual fee of $600 for storing human reproductive tissue. Embryo freezing services similarly involve significant costs. S.M's insurance company paid for a portion of Defendants' services and necessary medications. She paid the remaining costs -- totaling approximately $10,000 -- herself. The suit alleges that the center was negligent by failing to adequately maintain, inspect, monitor, and/or test their liquid nitrogen storage tanks, in accordance with industry standards, including through a functional electronic tank monitoring system capable of detecting a rise in temperature or a drop in liquid nitrogen levels and promptly alerting staff to the immediate problem. [GN] UNIVERSITY HOSPITALS: Clinic Malfunction Case May Face Challenges ----------------------------------------------------------------- James F. McCarty, writing for The Plain Dealer, reports that the longest-serving judge in Cuyahoga County history said on March 13 the plaintiffs in the University Hospitals fertility clinic malfunction likely will have a high mountain to climb before resolving their lawsuits. "They could be going down a very extensive road," Judge Richard McMonagle said on March 13. "And they could be facing tremendous expenses." Judge McMonagle served for 36 years on the Common Pleas Court before retiring in 2014. He presided over some of the most complex court cases filed during those decades. About 2,000 eggs and embryos belonging to about 700 people may have been damaged when the temperature rose in a liquid nitrogen freezer at UH's Ahuja Medical Center fertility clinic in Beachwood on March 3-4, according to the hospital. Since then, at least eight lawsuits have been filed against UH, and dozens of others are being prepared for filing in Cuyahoga County Common Pleas Court, according to lawyers. Several hurdles lie ahead, Judge McMonagle said. They include the need to consolidate all of the cases under a single judge. Later, the plaintiffs would have to obtain class action certification based on the uniformity of causes for the clinic's malfunction, and the similarity of damages suffered by the couples who lost eggs and embryos. "Every family may have different reasons for having these in vitro fertilization procedures done," Judge McMonagle said. "There are dozens of reasons, and they're not all the same case. The damages could be different." Judge McMonagle surmised that University Hospitals would probably file joinder proceedings, potentially adding as defendants in the cases the manufacturer of the liquid nitrogen freezer that malfunctioned, as well as any outside contractors or inspectors hired to monitor the facility. Attorney William Craig Bashein, who filed a lawsuit against UH on March 12 on behalf of Jasen and Sandra Alexa Miller of Newbury Township, is confident he will be able to meet the eligibility requirements for class action status. "Clearly, in this case we have a common set of underlying facts that lead to liability," Mr. Bashein said. "Those facts make class certification appropriate. The fact that different class members' claims may vary in circumstances does not defeat class certification." Of the potential 700 victims, perhaps less than half are likely to hire lawyers to file lawsuits on their behalf, Mr. Bashein said. That's where a class action suit could provide damage rewards for all of the members of the class, he said. "How do you deal with damages suffered by those without legal representation?" Mr. Bashein asked. "The beauty of a class action is that you can compensate all of the victims, even those not represented by counsel." Several of the plaintiffs' lawyers mentioned the possibility of enlisting Richard McMonagle's brother, James, as a mediator in the case. A former judge, he previously served as a senior vice president and lead lawyer at University Hospitals, and also as a mediator and arbitrator in complex civil litigation. If James McMonagle was considering offering his services to the court, he wasn't saying so on March 13. "My answer is no comment," he said when contacted by The Plain Dealer. "I only know what I've read in the paper." [GN] UPMC: Cole's Wexford Moves to Certify Class of Highmark Insureds ---------------------------------------------------------------- The Plaintiff in the lawsuit entitled COLE'S WEXFORD HOTEL, INC., On its own behalf and on behalf of all others similarly situated v. UPMC and HIGHMARK, INC., Case No. 2:10-cv-01609-JFC (W.D. Pa.), moves the Court for an order certifying this Class: All persons, whether natural or fictitious, who purchased small group health insurance coverage in Western Pennsylvania from, or otherwise paid any small group plan premiums to, Highmark Health Insurance Co. ("HHIC") or a similar for-profit subsidiary of Highmark, Inc. ("Highmark") between July 1, 2010 and March 21, 2012. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Fy5YOcuT The Plaintiff is represented by: Andrew M. Stone, Esq. STONE LAW FIRM, LLC The Frick Building, Suite 1806 437 Grant Street Pittsburgh, PA 15219 Telephone: (412) 391-2005 Facsimile: (412) 391-0853 E-mail: astone@stone-law-firm.com - and - Arthur H. Stroyd, Jr., Esq. Steven J. Del Sole, Esq. Patrick K. Cavanaugh, Esq. DEL SOLE CAVANAUGH STROYD LLC 3 PPG Place, Suite 600 Pittsburgh, PA 15222 Telephone: (412) 261-2393 Facsimile: (412) 261-2110 E-mail: astroyd@dscslaw.com sdelsole@dscslaw.com pcavanaugh@dsclaw.com - and - Scott M. Hare, Esq. LAW OFFICE OF SCOTT M. HARE The Frick Building, Suite 1806 437 Grant Street Pittsburgh, PA 15219 Telephone: (412) 338-8632 Facsimile: (412) 338-6611 E-mail: scott@scottlawpgh.com - and - Hamish Hume, Esq. Melissa Felder Zappala, Esq. Joshua Riley, Esq. BOIES, SCHILLER & FLEXNER LLP 1401 New York Ave. N.W. Washington, DC 20005 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 E-mail: hhume@bsfllp.com mzappala@bsfllp.com jriley@bsfllp.com - and - David Stone, Esq. STONE & MAGNANINI LLP 100 Connell Drive, Suite 2200 Berkeley Heights, NJ 07922 Telephone: (973) 218-1111 Facsimile: (973) 218-1106 E-mail: dstone@stonemagnalaw.com USA GATEWAY: Faces "Argamaso" Suit in California Superior Court --------------------------------------------------------------- A class action lawsuit has been filed against USA Gateway, Inc. The case is styled as Violeta Argamaso, individually and on behalf of those similarly situated, Plaintiff v. USA Gateway, Inc., a Texas Corporation and Does 1-10, Defendants, Case No. CGC18565448 (Cal. Super. Ct., April 3, 2018). USA Gateway, Inc., doing business as GTT International, operates as an air ticketing consolidator.[BN] The Plaintiff is represented by: Kevin F. Woodall, Esq. Woodall Law Offices 100 Pine St Ste 1250 San Francisco, CA 94111 Tel: (415) 413-4629 Fax: (866) 937-4109 Email: Kevin@kwoodalllaw.com USF REDDAWAY: "Gomez" Seeks to Certify Class & Subclass ------------------------------------------------------- In the lawsuit styled RICARDO I. GOMEZ, Individually and on Behalf of Other Members of the Public Similarly Situated, the Plaintiffs, v. USF REDDAWAY, INC., a OREGON Corporation, and DOES 1 through 50, inclusive, the Defendants, Case No. 2:16-cv-05572- JAK-FFM (C.D. Cal.), the Plaintiffs will move the Court on July 13, 2018, for an order: 1. certifying classes: California Residents Class: "all California residents employed as non-exempt pick-up and delivery truck drivers by Defendants in the State of California at any of Defendants' California terminals during the relevant time period who have performed work within California. Waiting Time Subclass: "all Class Members whose employment was terminated at any time within three years prior to the filing of the complaint in this action until resolution of this lawsuit"; and 2. appointing James Hawkins, APLC, as class counsel. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=fSOSriUK The Plaintiff is represented by: James R. Hawkins, Esq. Gregory Mauro, Esq. JAMES R. HAWKINS, APLC 9880 Research Drive, Suite 200 Irvine, CA 92618 Telephone: 949 387 7200 Facsimile: 949 387 6676 E-mail: james@jameshawkinsaplc.com greg@jameshawkinsaplc.com WAL-MART STORES: "Phipps" Suit Seeks to Certify Employees Class --------------------------------------------------------------- In the lawsuit styled CHERYL PHIPPS and SHAWN GIBBONS, the Plaintiffs, v. WAL-MART STORES, INC., the Defendant, Case No. 3:12-cv-01009 (M.D. Tenn.), the Plaintiffs ask the Court for an order on March 30, 2018: 1. certifying a class of: "all women below the level of Store Manager and excluding Pharmacists and Co-Managers, employed at any retail store in Wal-Mart Region 43 at any time from December 26, 1998 to February 23, 2009, who were subject to: (a) the compensation system for hourly retail sales positions; (b) the compensation system for Management Trainees and Assistant Managers; or (c) the promotion system into Management Trainee/Assistant Manager positions"; 2. appointing Cheryl Phipps and Shawn Gibbons as class representatives; 3. appointing Plaintiffs' counsel to serve as counsel for the class; and 4. authorizing notice to the class of the action and their right to opt out. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=9M1zLPzy Counsel for Plaintiffs: Christine E. Webber, Esq. Joseph Sellers, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave NW, Suite 500 West Washington, DC 20005 Telephone: (202) 408 4600 Facsimile: (202) 408 4699 E-mail: JSellers@cohenmilstein.com CWebber@cohenmilstein.com - and - David W. Garrison, Esq. Scott P. Tift, Esq. Seth M. Hyatt, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244 2202 Facsimile: (615) 252 3798 E-mail: dgarrison@barrettjohnston.com stift@barrettjohnston.com shyatt@barrettjohnston.com - and - Jocelyn D. Larkin, Esq. THE IMPACT FUND 125 University Avenue, Suite 102 Berkeley, CA 94710 Telephone: (510) 845 3473 Facsimile: (510) 845 3645 E-mail: jlarkin@impactfund.org WALGREENS BOOTS: "Polsky Suit Moved to S.D. Texas ------------------------------------------------- The class action lawsuit titled Larry Mark Polsky, and On Behalf of All Others Similarly Situated, the Plaintiff, v. Walgreens Boots Alliance, Inc., the Defendant, Case No. 2018-DCL-889-G, was removed from the 404th District Court, Cameron County, Texas, to the U.S. District Court for Southern District of Texas (Brownsville) on Mar. 12, 2018. The District Court Clerk assigned Case No. 1:18-cv-00046 to the proceeding. The case is assigned to the Hon. Judge Andrew S. Hanen. Walgreens Boots is an American holding company headquartered in Deerfield, Illinois that owns Walgreens, Boots, and a number of pharmaceutical manufacturing, wholesale and distribution companies.[BN] The Plaintiff is represented by: Larry Mark Polsky, Esq. 5 Cactus Wren Laguna Vista, TX 78578 Telephone: (956) 943 7717 Facsimile: (956) 943 7709 E-mail: mossad1947@sbcglobal.net Attorneys for Defendant: Seth M. Isgur, Esq. Michael A. Swartzendruber, Esq. NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Telephone: (713) 651 5440 Facsimile: (713) 651 5246 E-mail: seth.isgur@nortonrosefulbright.com michael.swartzendruber@nortonrosefulbright.com WARREN COUNTY, OH: Certification of Adoptive Parents Class Sought ----------------------------------------------------------------- The Plaintiffs in the lawsuit captioned ADOPTIVE FAMILY #1 AND THEIR DAUGHTER A. And ADOPTIVE FAMILY #2 AND THEIR CHILDREN B. AND C., Individually and on Behalf of Class of Similarly Situated Children and Parents v. WARREN COUNTY, OHIO/WARREN COUNTY BOARD OF COMMISSIONERS, Case No. 1:18-cv-00179-SJD (S.D. Ohio), move for class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The class will be defined as: all current and potential adoptive parents, and their adopted children, who are eligible to receive subsidies under Title IV-E of the Adoption Assistance and Child Welfare Act and who fall under the jurisdiction of Warren County Children Services. There are two sub-classes: those who are receiving between $0 and $250 in adoption assistance subsidies, and those who are receiving more than $250 in adoption assistance subsidies. The Plaintiffs also ask the Court to designate them as class representatives, and to designate Alphonse A. Gerhardstein, Esq., Jennifer L. Branch, Esq., M. Caroline Hyatt, Esq., and Barbara Thornell Ginn, Esq., to serve as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=cbmQllBy The Plaintiffs are represented by: Barbara Thornell Ginn, Esq. GINN LAW OFFICE, LLC 8595 Beechmont Avenue, Suite 103 Cincinnati, OH 45255 Telephone: (513) 277-1478 Facsimile: (513) 426-7335 E-mail: Barbara@GinnLLC.com - and - Alphonse A. Gerhardstein, Esq. Jennifer L. Branch, Esq. M. Caroline Hyatt, Esq. GERHARDSTEIN & BRANCH CO. LPA 441 Vine St., Suite 3400 Cincinnati, OH 45202 Telephone: (513) 621-9100 Facsimile: (513) 345-5543 E-mail: agerhardstein@gbfirm.com jbranch@gbfirm.com chyatt@gbfirm.com WELLS FARGO: "Hernandez" Suit Seeks Overtime Pay under Labor Code ----------------------------------------------------------------- SIL VIA HERNANDEZ, as an individual and on behalf of all others similarly situated, the Plaintiff, v. WELLS FARGO BANK, NATIONAL ASSOCIATION, a national association; and DOES 1 through 50, inclusive, the Defendant, Case No. 18CV324548 (Cal. Super. Ct., March 12, 2018), seeks to recover penalties and/or damages for violations of the California Labor Code, including without limitation, failure to pay overtime based on the correct regular rate of pay and for restitution. The Plaintiff began working for Defendants in or around July 2008 until in or around 9 2013/2014, at which point Plaintiff left employment with Defendant. In or around January 2015, 10 Plaintiff returned to work for Defendant. On or about March 28, 2016, Plaintiff was terminated. According to the complaint, the Plaintiff and the Class were and are employed by Defendant as non-exempt employees and, thus, Plaintiff and the Class are entitled to overtime wages. During their employment with Defendant, Plaintiff and the Class worked overtime hours. Specifically, Plaintiff and the Class worked more than 8 hours in a workday and/or 40 hours in a workweek, without being paid the proper amount of overtime pay. Wells Fargo is an American multinational financial services company headquartered in San Francisco, California, with central offices throughout the country.[BN] Attorneys for Plaintiff and the Class: Larry W. Lee, Esq. Kristen M. Agnew, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 - and - William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531 4214 Facsimile: (831) 634 0333 - and - Dennis S. Hyun, Esq. HYUN LEGAL, APC 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488 6555 Facsimile: (213) 488 6554 WINES TIL SOLD: DOJ's Move to Oppose Settlement Challenged ---------------------------------------------------------- Alison Frankel, writing for Reuters, reports that in February, on her way out of her high-ranking Justice Department post, Rachel Brand disclosed a new DOJ priority at a luncheon speech to the Federalist Society. The Class Action Fairness Act of 2005 requires defendants to notify the Justice Department of proposed settlements. Because of a mailroom snafu, Ms. Brand said, DOJ hadn't been receiving notices in time to review the settlements before they were approved. But the systems had been fixed, Brand said, and the Justice Department was ready to stand up. "If a settlement isn't fair or reasonable under CAFA, DOJ may file a statement of interest saying so," Ms. Brand said. "Be on the lookout in the coming days for the first example." Sure enough, on the very next day, the Justice Department filed a statement of interest opposing final approval of a $10.8 million consumer class action in federal court in Camden, New Jersey. DOJ's filing marked the first time in more than a decade -- and apparently only the third time since CAFA's enactment -- that the Justice Department has followed up on a CAFA notice by urging a court to reject a settlement. Class counsel in the case, Cannon v. Ashburn, responded on March 12 to the Justice Department, a coalition of state attorneys general and a handful of objecting class members. The brief, from Carella Byrne Cecchi Olstein Brody & Agnello and Giskan Solotaroff Anderson, mentions some changes in the proposed settlement. The Justice Department and other objectors had complained the deal entitled class members -- consumers who bought wine from the website Wines Til Sold Out -- only to coupon-like "redemption codes" discounting the price of future purchases from the website. The new proposed deal adds a $500,000 cash fund for class members who don't redeem their discounts. It also extends the time in which wine purchasers can use the discounts and, at the judge's suggestion, postpones consideration of plaintiffs' lawyers' $1.7 million fee request until class members have received their recoveries. Most notably, the brief accuses the Justice Department of unjustified ideological meddling with a settlement that has proven popular with the allegedly deceived consumers who benefit from it. Class counsel said DOJ has no business interfering in this case -- or, for that matter, in any class action in which the United States does not have an interest. If, as Rachel Brand hinted, the Justice Department plans to step up its policing of class action settlements, the Wines Til Sold Out case could be an important test of DOJ's authority. The class brief contends CAFA provides the federal government a right to be notified about proposed class deals, but not to influence the settlement approval process. "DOJ selectively cherry picks language in CAFA's legislative history which simply states that 'the committee believes that notifying appropriate state and federal officials of proposed class action settlements will provide a check against inequitable settlements in these cases' and 'will also deter collusion between class counsel and defendants to craft settlements that do not benefit the injured parties,'" the brief said. "But that language does not convey a right to object to settlements. The policy is to check abuses through the obligation to report, not through an unstated right to object. DOJ essentially asks that such a right to object be inferred, which is wrong." The brief cited several cases, including the BP Deepwater Horizon litigation, in which federal courts have held CAFA does not confer constitutional standing on state AGs who want to object to class settlements. The brief does not mention precedent on CAFA and DOJ's standing, but that's to be expected given the novelty of DOJ's filing in the wine case. Class counsel said the Justice Department can't claim an interest in a case asserting a violation of New Jersey consumer laws, particularly because the federal government has failed to protect consumers from deceptively advertised discounts. (The Justice Department argued that consumers weren't injured by Wines Til Sold Out's allegedly inflated reports of the original prices of wines it sold at a purported discount because consumers ultimately got exactly what they purchased at the price they agreed to pay. Plaintiffs' lawyers said DOJ ignored the "real, quantifiable economic value," under New Jersey law, of ending a so-called reference pricing scheme.) "There are . . . no 'interests of the United States,' at stake in the application of state consumer fraud laws and state common laws, and DOJ identifies none," the brief said. Class counsel accused the Justice Department of making an ideological statement instead of acting in the best interests of consumers, who have already claimed $3 million in benefits. The claims rate, according to the brief, is so far 15 percent -- much higher than average rates in consumer cases. "DOJ's statement appears to be based on little more than an ideological hostility to collective litigation," the brief said. "This is not the forum for airing such grievances. DOJ's statement does not reasonably explain the government's views of the laws and the facts, but instead simply presents its own self-serving and imagined set of facts to further an ideological crusade against class actions." In an interview, class counsel (and former federal prosecutor) James Cecchi of Carella Byrne said the Justice Department should have reached out to him before using this case to launch its new class action activism. "They filed an objection without gaining an understanding of the facts or the case, as clearly reflected in the huge take rate to date," he said. "The most important voice, other than the court, is the class, and the class here has said clearly and unambiguously that they want the relief provided by this settlement." One potentially significant point: DOJ fashioned its filing in the wine class action not as an objection but as a statement of interest. Class counsel's brief argues that under the Federal Rules of Civil Procedure, only class members can file objections to proposed settlements. "The rule and the case law thus doom DOJ's ill-considered venture here," the brief asserts. But technically, the Justice Department isn't appearing as an objector. [GN] WOOD GROUP: Pipeline Inspectors Class Certified in "Fenley" Suit ---------------------------------------------------------------- In the lawsuit styled TOMMY L. FENLEY, et al., the Plaintiff, v. WOOD GROUP MUSTANG, INC., the Defendant, Case No. 2:15-cv-00326- GCS-KAJ (S.D. Ohio), the Hon. Judge George C. Smith entered an order: 1. granting Plaintiffs' motion to certify a class of: "all current and former employees of [WGM] who were classified with the pay code "DAY - Non Exempt Day Rate," and who worked in WGM's Pipeline Services Inspection Department as an inspector (or an equivalent position) in the United States in any workweek between three years prior to the date of the Court's Order and the present (Inspectors)"; 2. denying WGM's motion to decertify; and 3. denying WGM's motion to exclude. The Court recommends that the parties engage in mediation to resolve the claims at issue. If the parties wish to participate in mediation, they may contact Judge Smith's chambers at (614) 719-3220 or Judge Jolson's chambers at (614) 719-3470 to schedule a mediation through the Court. The Clerk shall remove Documents 108, 110, and 119 from the Court's pending motions list. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=yW89UzXq YAHOO INC: Must Face Class Action Over Data Breaches ---------------------------------------------------- Matthew Renda, writing for Courthouse News Service, reports that Yahoo must face a raft of civil claims relating to the largest data breach in history, a federal judge ruled on March 9. U.S. District Court Judge Lucy Koh denied Yahoo's attempt to dismiss a variety of claims that it failed to protect its users' data while hiding the nature of its flimsy digital security practices and taking too long to notify customers of the threats to their information. "The sole argument raised in defendants' motion to dismiss is unpersuasive," Judge Koh wrote in the 43-page order issued on March 9. Judge Koh's order represents a significant legal defeat for Yahoo, recently purchased by Verizon. In addition to advancing negligence claims, Judge Koh said users can seek punitive damages under California law relating to their claims Yahoo knew it had an inadequate security apparatus, but did little to address it and did not inform users immediately when the hacks occurred. The judge also chided Yahoo's legal strategy of blaming its customers for continuing to use its email services after learning of data breaches. "(Yahoo) also criticize plaintiffs for continuing to use Yahoo Mail and taking no remedial actions after learning of defendants' allegedly inadequate security," Judge Koh wrote. "However, defendants fail to acknowledge that defendants' delayed disclosures are likely to have harmed plaintiffs in the interim." The case began in 2016, after a number of plaintiffs sued the web services provider following a disclosure that more than 1 billion email accounts had been hacked three times over a three-year period beginning in 2013. Discovery has since revealed the estimate was too conservative: all 3 billion users of Yahoo's various web service platforms were exposed to hackers. The first hack occurred in 2013, when Yahoo used an encryption technology that was widely acknowledged within the data-security industry to be outdated and inadequate. Yahoo also failed to alert customers about the breach and when it finally disclosed the cyberattack three years later, it underestimated the scope, according to the plaintiffs. Hackers hit the company again in 2014, this time using a spear- phishing scheme in which one or more Yahoo executives voluntarily entered usernames and passwords to give hackers access to a vast amount of privileged data. In 2016, the last hack used the forged-cookie technique. Cookies allow users to stay signed into various websites. Hackers forged cookies through which users unwittingly gave hackers prolonged access to vulnerable data. All told, Yahoo's 3 billion users suffered exposure of privileged information including names, email addresses, social security numbers, bank accounts, home addresses, ZIP codes, occupations, birth dates and personal preferences. Lead plaintiff Kimberly Heines says hackers used information stolen from her Yahoo emails to pilfer her Social Security payments, causing her to fall behind on bills and incur late fees. New Jersey couple Matthew and Deana Ridolfo say hackers took out several lines of credit in their names, and they spent significant time addressing the fallout from the identity theft besides paying monthly fees for identity theft services. Several of the other plaintiffs experienced similar issues. Many of the plaintiffs claim they would have behaved differently had they known in 2013 that their private information had been compromised. They say Yahoo's failure to promptly disclose the depth and breadth of the hack created direct financial harm. Judge Koh sided with them at the motion to dismiss stage and advanced the case. "Plaintiffs' allegations are sufficient to show that they would have behaved differently had defendants disclosed the security weaknesses of the Yahoo Mail System," Judge Koh wrote. U.S. prosecutors have charged four individuals -- two Russian intelligence agents and two hackers -- in connection with the data breach. Karim Baratov, a Canadian national hired by the Russian government to perform various hacks, pleaded guilty last November to various computer hacking and conspiracy charges. Three other suspects, Dmitry Aleksandrovich Dokuchaev, Igor Anatolyevich Sushchin and Alexsey Alexseyevich Belan, remain at large in Russia, according to the U.S. Department of Justice. [GN] YOUNG ADULT INSTITUTE: Khan Seeks Minimum & OT Wages under FLSA --------------------------------------------------------------- FAYYAZ KHAN, on behalf of himself and others similarly situated, Plaintiff, v. YOUNG ADULT INSTITUTE, INC. d/b/a NATIONAL INSTITUTE FOR PEOPLE WITH DISABILITIES, the Defendant, Case No. 1:18-cv-02824 (S.D.N.Y., March 30, 2018), seeks to recover unpaid minimum wage and overtime compensation, liquidated damages on those amounts, prejudgment and post-judgment interest; and attorneys' fees and costs, pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff was routinely working hours in excess of 40 hours per week for which he was not compensated according to state and federal overtime law. In December 2017, after nearly a decade of faithful service, and after routinely working in excess of 80 hours per week, YAI abruptly terminated Plaintiff for allegedly not showing up to work. The Plaintiff is a covered employee within the meaning of the FLSA and NYLL. YAI did not pay Plaintiff the proper overtime wages as required by law for all hours worked over 40 in a workweek. The Defendant did not keep accurate records of wages or overtime hours worked by Plaintiff. YAI inaccurately reported the number of hours Plaintiff worked each week. YAI knowingly and willfully operated their business with a policy of not paying Plaintiff and other similarly situated employees either the federal or New York State minimum wage, the FLSA overtime rate (of time and one- half), and the New York State overtime rate (of time and one- half), in direct violation of the FLSA and New York Labor Law and the supporting federal and New York State Department of Labor Regulations.[BN] Attorneys for Plaintiff Fayyaz Khan and the Putative Class: Mohammed Gangat, Esq. LAW OFFICE OF MOHAMMED GANGAT 675 3rd Avenue, Suite 1810 Telephone: (718) 669 0714 E-mail: mgangat@gangatllc.com ZAPPOS.COM: 9th Cir. Revives Data Breach Class Action ----------------------------------------------------- Brandon C. Ge, Esq. -- bge@crowell.com -- Nathanial J. Wood, Esq. -- nwood@crowell.com -- and Jeffrey L. Post, Esq. -- jposton@crowell.com -- of Crowell & Moring, reported that the U.S. Court of Appeals for the Ninth Circuit revived a class action lawsuit related to a 2012 data breach, determining that the future risk of identity theft suffices to establish Article III standing, even where there has been no actual harm. At issue in the case, In re Zappos.com, was whether the plaintiffs had standing to bring claims based on a January 2012 data breach where hackers allegedly stole the personal information of more than 24 million Zappos.com Inc. customers -- names, account numbers, passwords, email addresses, billing and shipping addresses, telephone numbers, and credit and debit card information. The decision is likely to have a significant impact on data breach litigation given the number of such cases filed in the Ninth Circuit. The circuits are currently split on the standard for establishing Article III standing in data breach litigation, a split that will likely continue until the Supreme Court addresses the issue. The Ninth Circuit's decision also creates a need for companies to revisit their standard breach notification language, as the court revived the claims against Zappos in part because Zappos warned its customers in its notice that they should consider changing their passwords due to the breach, which the court considered evidence that consumers were at risk of harm from the incident. [GN] * Cohen Milstein Files Class Action Over VIX Index Manipulation --------------------------------------------------------------- Cohen Milstein Sellers & Toll PLLC on March 12 disclosed that as controversy surrounding the CBOE Volatility Index ("VIX Index") continues to grow, a new federal class action lawsuit filed on March 9 alleges widespread manipulation of the VIX futures and options market, resulting in hundreds of millions of dollars in losses for investors across the country. The litigation, filed on behalf of investors damaged by this manipulation, is the first lawsuit concerning this market manipulation to allege violations of the Commodity Exchange Act, which prohibits market participants from improperly influencing the price of commodity futures. Furthermore, the named plaintiff and its counsel signaled their intention to issue a third-party subpoena to the Chicago Board Options Exchange, publisher of the VIX index and the only source of information for identifying the unnamed traders and transactions involved in the alleged market manipulation. The named plaintiff is being represented by Cafferty Clobes Meriwether & Sprengel LLP and Cohen Milstein Sellers & Toll PLLC. "The health of our financial system and the stability of our markets depends on the trustworthiness of their institutions," said Michael Eisenkraft -- meisenkraft@cohenmilstein.com -- co- counsel for the named plaintiff and putative class and a Partner in Cohen Milstein's Securities Litigation and Investor Protection practice. "By manipulating the VIX derivative market, the defendants not only profited off their deceit at the expense of honest investors, but damaged the integrity of an entire industry." According to the complaint filed in the U.S. District Court for the Northern District of Illinois, unnamed traders were able to rig the market for VIX futures and options by manipulating the process in which the contract's settlement price -- used to determine their value at settlement -- was calculated at the time of the contract's expiration. The lawsuit alleges this was done by aggressively transacting in a key determinant of a VIX derivative's settlement value -- S&P 500 Index (SPX) options -- ahead of the settlement auction, thereby manipulating the value of VIX futures and options. "By bringing this case forward and seeking to expose those who were involved in this scheme, we hope to bring a measure of justice to all those impacted and restore confidence in our financial infrastructure," said Anthony Fata, co-counsel for the named plaintiff and putative class and a Partner at Cafferty Clobes Meriwether & Sprengel LLP. Published by the Chicago Board Options Exchange (CBOE), the Volatility Index (VIX Index) -- often referred to as the "fear gauge" -- attempts to measure the 30-day implied volatility of the market. The VIX Index is based on the S&P 500, the core index for U.S. equities, and calculates expected volatility by averaging the price of put and call options over a wide range of contract terms. In 2004, CBOE introduced the first futures and options for the VIX Index, fueling a dramatic rise in trading volume that continues to this day. However, according to the lawsuit, the unique and complex way in which the settlement price -- and therefore the value -- of an expiring VIX future or option is determined has left the market extremely susceptible to manipulation. The complaint cites research from University of Texas academics which points out that, unlike other index derivatives which derive their value from the price of their underlying assets, VIX futures and options are subject to a hybrid auctioning process on expiration date that is largely affected by another class of instruments, namely SPX options. The unique structure, according to the researchers, leaves the market much more vulnerable to manipulation, as traders can influence the final settlement price of VIX derivatives by making transactions that distort the value of relatively thinly traded SPX options. The lawsuit alleges the manipulation scheme identified by the UT researches was put into effect no later than 2011. It also cites recent settlement prices reportedly showing abnormal spikes in VIX future and options prices, including one session in January 2018 in which the settlement price jumped from $11.76 to $12.81 in the final day of trading before expiration, marking the fourth largest price swing over more than 160 days of trading. According to the lawsuit, this market manipulation led to the transfer of more than $42 million among contract holders. The lawsuit calls for the certification of a class to represent all similarly-situated investors as well as damages and relief related to losses sustained as a result of market manipulation and legal fees. The named plaintiff is being represented by Anthony Fata and Daniel Herrera of Cafferty Clobes Meriwether and Sprengel LLP as well as Michael Eisenkraft, Carol Gilden -- cgilden@cohenmilstein.com -- and Times Wang -- twang@cohenmilstein.com -- of Cohen Milstein Sellers & Toll PLLC. About Cohen Milstein Cohen Milstein Sellers & Toll PLLC -- http://www.cohenmilstein.com-- is recognized as one of the premier law firms in the country handling major, complex plaintiff-side litigation. With more than 90 attorneys, Cohen Milstein has offices in Washington, D.C., Chicago, Ill., Denver, Colo., New York, N.Y., Palm Beach Gardens, Fla., Philadelphia, Pa., and Raleigh, N.C. About Cafferty Clobes Founded in 1992, Cafferty Clobes Meriwether & Sprengel LLP -- http://www.caffertyclobes.com-- focuses on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm has offices in Chicago, Philadelphia, and Ann Arbor, [GN] * Cyber-Related Securities Fraud Class Action on the Rise --------------------------------------------------------- Cara Peterman, writing for Law360, reports that while significant consumer litigation has become increasingly common following the announcement of a large data breach, cyber-related investor suits have historically been limited to the intermittent shareholder derivative action alleging that the breached company's board failed to properly oversee the organization's cyberrisks. And those few sporadic derivative suits filed over the last several years have universally been dismissed in the earliest stages of the litigation But after almost a decade of relative calm, the past 12 months saw a flurry of substantial securities fraud class action. [GN] * Locke Lord Attorney Discusses Independent Contractor Cases ------------------------------------------------------------ Richard Reibstein, Esq. -- rreibstein@lockelord.com -- of Locke Lord LLP, in an article for JDSupra, provided a Independent Contractor Misclassification and Compliance News Update for February 2018. February was a busy and important month for IC misclassification and compliance law. Featured among the ten cases summarized below are the first-ever trial of an IC misclassification case in the on-demand, sharing economy (Lawson v. GrubHub Holdings, Inc.); oral argument before a state's highest court over the test to be applied in IC misclassification cases (Dynamex Operations West v. Superior Court); and the U.S. Supreme Court accepting for review a case that may have far- reaching implications for companies operating across state lines that enter into IC agreements containing arbitration clauses with individuals classified as ICs (New Prime Inc. v. Oliveira). In addition, there were three IC misclassification cases where the courts certified cases as class actions (involving educational consultants and trainers, cable technicians, and distributors of baked foods); one case where class action status was denied (involving delivery drivers); a decision compelling arbitration in an IC misclassification case where a client of a staffing company was able to piggy-back on the staffing company's arbitration agreement; and filings of two new IC misclassification cases (involving port truckers and exotic dancers). The cases reported below from February 2018 demonstrate that class action IC misclassification cases remain a thorn in the side of companies who use ICs either to supplement their workforce or as an integral part of their business model. But, that is because, with the exception of GrubHub, too many companies using ICs do so without the attention needed to structure, document, and implement their IC relationships in a manner that maximizes compliance with federal and state IC laws. And in the GrubHub case, the decision may well have turned out differently if the plaintiff was sympathetic instead of one whom the judge found to have engaged in "dishonest conduct" and "claimed ignorance of his dishonest conduct [was] not credible." How can companies minimize their exposure to IC misclassification liability? There are several ways, as more fully described in the latest White Paper posted on this blog, including restructuring, re-documenting, and re-implementing; re-distributing; and reclassifying. The only choice that is not recommended is standing still. Even companies like GrubHub, as we noted in our blog post reporting on its win at trial, could have tightened up its IC compliance even more -- despite the fact that it was able to endure the judge's close scrutiny. Thus, companies that feel that their IC relationships will likewise survive a legal challenge would be well advised to consider further enhancing their IC compliance. And for those businesses that have yet to upgrade their IC compliance, the GrubHub decision should be a positive signal that they, too, can structure, document, and implement their IC relationships in a lawful manner. In the Courts (10 cases) CALIFORNIA SUPREME COURT CONSIDERING WHETHER TO KEEP ITS CURRENT TEST FOR IC STATUS OR ADOPT A MORE WORKER-FRIENDLY TEST. Oral argument was heard on February 6, 2018 in a key California Supreme Court case to determine if the courts in that state should continue a long-standing test in California for determining independent contractor status in cases involving wage and hour issues. As discussed in detail in our blog post of February 5, 2018, the case, involving the trucking company Dynamex, addressed the issue of whether the Supreme Court should continue to follow its time-honored holding from 1989 in S.G. Borello & Sons, Inc. v. Dep't of Industrial Relations (which is roughly akin to a common law / economic realities test for determining IC status) or apply a far more rigorous standard as set forth in the 2010 holding in Martinez v. Combs. The California Supreme Court had asked the parties to file supplemental briefs addressing whether the test for IC status in California should embody the standard set forth in 2015 by the New Jersey Supreme Court in Hargrove v. Sleepy's LLC, where the courts in New Jersey were instructed to apply in wage and hour cases the same three-pronged "ABC" test formulated by the New Jersey legislature for IC status in unemployment cases. That decision is regarded as employee-friendly because, unlike most other IC tests including Borello, which consider and weigh a number of different factors when determining IC status, an ABC statute requires that each and every one of the three prongs of the ABC test be proven by a business to establish IC status. While it is difficult, even for the most experienced practitioners, to predict how a court may rule based on questions and answers at oral argument, one of the most important exchanges was a question posed to the principal lawyer for the worker, who is a driver for Dynamex: would the worker be an employee or independent contractor under the Borello test? The driver's counsel, without any hesitation or equivocation, responded that the driver would be an employee under Borello. This signifies that there is no need for the court to consider changing the test for IC status in California in this case. Generally, courts are reluctant to alter long-standing legal standards where the result in the case would not change. This may be one reason that the California Supreme Court chooses not to modify Borello at this time. If a majority of judges feel that the Borello test should continue, they may choose not to "punt" at this time and instead affirmatively re-endorse Borello and reject any notion that California should join New Jersey and adopt an ABC test. The two most likely reasons for upholding Borello are that ABC tests are promulgated by legislatures, not by courts; and that Borello already includes all three prongs of the ABC test, but allows courts flexibility in applying all relevant factors when determining IC status. While the case has been on appeal for over three years, a decision is expected by or before this summer. Dynamex Operations West v. Superior Court (No. S222732). GRUBHUB PREVAILS IN FIRST ON-DEMAND, SHARING ECONOMY CASE THAT HAS BEEN TRIED. GrubHub, Inc., an on-demand food delivery company, prevailed in an IC misclassification case that was tried this past fall in a California federal court. The case was brought by a gig worker who made restaurant deliveries for the sharing economy company. The worker alleged that GrubHub misclassified him as an independent contractor. As noted in our blog post of February 8, 2018, the case drew sustained media attention during a non-jury trial in September 2017 because it was the first IC misclassification trial involving a gig economy business. In her lengthy opinion, Magistrate Judge Jacqueline Scott Corley, applying the Borello test, stated that while there were some facts that indicated some control by GrubHub over the manner and means by which the driver, Lawson, rendered his services, there were more facts that, in the judge's view, supported the conclusion that GrubHub did not control the details of how Lawson accomplished his work. Among other factors supporting IC status, Judge Corley noted that GrubHub did not dictate the vehicle the driver used for deliveries or its condition and the driver did not have to have GrubHub signage on his vehicle, although the company made sure the vehicle was registered and insured and that Lawson had a valid driver's license; GrubHub did not control the driver's appearance while making deliveries; GrubHub did not require the driver to engage in any training or orientation, and did not provide the driver with a script to follow when interacting with customers; and GrubHub did not control whether and when Lawson would work and for how long, nor did it tell him what supplies, if any, he needed to have with him. Although the judge found some instances of control, including the fact that GrubHub could terminate the contractual agreement with the driver at will with 14 days' notice, determined the rates the driver would be paid and the fees customers would pay for delivery service, and dictated which blocks of time to make available for driver selection and the geographical boundaries of the delivery zones, Judge Corley stated that such control was not exercised over the manner and means of performing the services, but rather over the result of the work -- to ensure diners received their meals in a timely fashion. In evaluating eight "secondary factors" used under the Borello decision to determine IC status, the judge found that three favored GrubHub, four favored the driver, and one was neutral. Thus, the case was what is commonly referred to as falling into a "gray area" where a change in one or two key facts may well change the outcome of the case. As noted in our blog post, one of the keys to the judge's decision in GrubHub's favor was because she discredited the driver, finding that he engaged in "dishonest conduct" and that his "claimed ignorance of his dishonest conduct is not credible." As a result, it appeared that the judge credited the testimony of GrubHub's witnesses where there was disputed testimony on a key issue of fact. Finally, the judge distinguished a case that she said "has facts similar to those the Court found here." By focusing on the differences between the facts in that case and this one, the judge confirmed that her decision in the GrubHub case was not a validation of IC status for all gig economy companies that use an IC model, but rather a recognition that the facts matter, and, in this case and this case alone, those facts favored IC status. Lawson v. GrubHub Holdings, Inc., No. 15-cv- 05128 (N.D. Cal.). U.S. SUPREME COURT ACCEPTS CASE INVOLVING THE INTERSECTION OF IC AGREEMENTS WITH THE FEDERAL ARBITRATION ACT. The United States Supreme Court has decided to resolve the issue of whether Section 1 of the Federal Arbitration Act, which exempts from the purview of the statute any "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" (emphasis added), includes workers who have signed independent contractor agreements. According to the petition for certiorari, the plaintiff in the underlying claim is an independent contractor driver whose agreement with New Prime, Inc., an interstate trucking company, includes a mandatory arbitration provision requiring that all workplace disputes be arbitrated with New Prime on an individual basis. The driver filed a proposed class action in court alleging, among other things, claims for unpaid wages due to misclassification as an independent contractor. In opposition to the company's motion to compel arbitration, the worker claimed that his IC agreement is a "contract of employment" covering him as a worker engaged in interstate commerce. According to the petition to the Supreme Court, New Prime claims that the U.S. Court of Appeals for the 1st Circuit misread the exemption and applied it far too broadly when it held that the term "contracts of employment" should include independent contractor agreements. Prime stated in its petition that, "Without the ability to include enforceable arbitration provisions in contracts governing independent contractors, the entire transportation industry will be relegated to resolving all disputes arising out of such contracts in court, notwithstanding the contrary intentions of the parties." New Prime Inc. v. Oliveira, No. 17-340 (U.S. Sup. Ct. Feb. 26, 2018). EDUCATIONAL TRAINERS AND CONSULTANTS GRANTED CONDITIONAL CERTIFICATION IN CLASS ACTION ALLEGING IC MISCLASSIFICATION. An Alabama federal court granted conditional collective action certification for on-site educational trainers and consultants nationwide in an IC misclassification action alleging wage and hour violations of the federal Fair Labor Standards Act and state wage and hour laws. The lawsuit was brought against Medfirst Consulting Healthcare Staffing Inc., a company that sells information technology and educational services to healthcare providers across the U.S. The company helps healthcare companies find consultants to implement and customize industry-specific software and train personnel to use it. The Company maintains a network with thousands of consultants. Plaintiffs alleged that they signed contracts that contained restrictive covenants; received training about the software and methods for training medical personnel; were supervised by Medfirst; had to submit timesheets and expense reports; and were required to report their job performance to the company. In deciding to conditionally certify a class of trainers and consultants, the court concluded that the named plaintiffs presented a reasonable basis for finding that they are similarly situated to the proposed members of the collective class; that "the universal failure to provide overtime pay strongly suggests, at least at this stage, that [the Company]applied common pay policies to all of its trainers and consultants"; and that the economic realities test could be readily applied on a class-wide basis regarding the alleged misclassification issue. Kiley v. Medfirst Consulting Healthcare Staffing, LLC, No. 17-cv-1756 (N.D. Ala. Feb. 23, 2018). CABLE TECHNICIANS GRANTED CONDITIONAL CERTIFICATION IN IC MISCLASSIFICATION CASE. A Louisiana federal court granted conditional certification of a collective action under the FLSA brought by cable technicians against Cable Marketing & Installation of Louisiana, Inc. The technicians claim that they were denied minimum wage and overtime under the FLSA due to their misclassification as independent contractors. In determining that the technicians who performed services for the company while classified as independent contractors were similarly situated, the court found that all of the technicians worked under the same agreement; the company exerted some control over the technicians' working conditions; all technicians were paid on a piece rate; all of the technicians performed the same type of work; a cap was placed on technician compensation; and technicians were assessed chargebacks for substandard work resulting in their alleged underpayment. Overall, the court concluded that the technicians were similarly situated with respect to job requirements, pay provisions, and elements under the FLSA's economic reality test. Hobbs v. Cable Marketing & Installation of Louisiana, Inc., No. 17-cv-4766 (E.D. La. Feb. 6, 2018). DISTRIBUTOR OF FLOWERS FOODS' SUBSIDIARY IN SAN ANTONIO WINS COLLECTIVE CERTIFICATION IN IC MISCLASSIFICATION CASE. A Texas federal court has granted the motion for conditional certification brought by a distributor of a San Antonio subsidiary of Flower Foods, Inc., a nationwide baked goods/snack foods company, where the distributor alleges that he and other distributors for the San Antonio company were misclassified as independent contractors. The court found that the proposed class members' claims were sufficiently similar to the plaintiff to merit sending notice of the collective action to potential class members. Specifically, through his pleadings and affidavit, the court found that the plaintiff made a sufficient showing that all distributors regularly worked over 40 hours and did not receive overtime compensation; they performed similar work in the company's bakery and warehouse operations; contracts were entered into between the parties without any input from the distributors; and distributors were not permitted to carry any competing products in their delivery vehicles. In its decision, the court noted that other courts have granted conditional certification in IC misclassification cases involving distributors for several different Flower Foods' affiliates. Wiatrek v. Flowers Foods, Inc., No. SA-17-CV-772 (W.D. Tex. Feb. 5, 2018). DELIVERY DRIVERS IN NEW JERSEY DENIED CLASS CERTIFICATION IN IC MISCLASSIFICATION CASE. A federal court judge in New Jersey has denied the motion of delivery drivers who brought a proposed class action for alleged violations of ERISA, the Family Medical Leave Act, and the New Jersey Wage Payment Law as a result of alleged misclassification of the drivers as ICs. The court found that the drivers failed to establish that the putative class members were "ascertainable." The court explained that a plaintiff seeking certification of a federal class action must prove by a preponderance of the evidence that the class is ascertainable, requiring the plaintiff to show that (1) the class is defined with reference to objective criteria; and (2) there is a reliable and administratively feasible mechanism for determining whether proposed class members fall within the class definition. After reviewing the parties' briefs and deposition testimony of the paralegal responsible for analyzing the data and documents to determine the scope of the proposed class, the court concluded that the methodology used by the plaintiffs to determine who worked full-time, who did not receive overtime pay, and who was subject to company deductions did not satisfy the two-part test for ascertainability. The court stated that there were gaps in time of some of the records relied upon by the paralegal that made assessing the class size "tenuous or speculative" and there was no way of knowing whether the carrier paid drivers overtime compensation. Hargrove v. Sleepy's, LLC, No. 10-cv-1138 (D.N.J Feb. 28, 2018). CLIENT OF STAFFING COMPANY IS THIRD PARTY BENEFICIARY OF AN IC AGREEMENT'S ARBITRATION CLAUSE CONTAINING A CLASS ACTION WAIVER. An Illinois federal court granted a motion to compel arbitration of the IC misclassification claims by drivers who provided services to automotive parts distributor, Worldpac Inc., even though Worldpac was not a party to the IC agreement. The drivers alleged that Worldpac, which used staffing company Partsfleet to contract with drivers needed by Worldpac to deliver the auto parts to its customers, violated overtime and minimum wage provisions of the FLSA and various state and local laws due to misclassification of the drivers as independent contractors. The drivers did not sue Partsfleet but rather Worldpac, presumably hoping to avoid being compelled to arbitrate their claims under the arbitration provisions contained in the Partsfleet IC agreement. In response to Worldpac's motion to compel arbitration, the drivers argued that they were not obligated to arbitrate their claims because Worldpac was not covered by the agreement. The court disagreed with the drivers, holding that Worldpac, as a third party/intended beneficiary to the agreement, was entitled to enforce the arbitration provision, which stated that it was intended to apply to all controversies involving the staffing company "or its customers." Brown v. Worldpac, Inc., 17 CV 6396 (N.D. Ill. Feb. 1, 2018). PORT TRUCKERS BRING ANOTHER IC MISCLASSIFICATION CLASS ACTION AGAINST A LOGISTICS COMPANY. Port truckers have brought yet another proposed class action in the drayage industry, this time against a trucking subsidiary of XPO Logistics Inc. in Los Angeles County Superior Court. The drivers claim wage and hour violations of the California Labor Code due to alleged misclassification of the drivers as independent contractors and not employees. The drivers reportedly seek over $1 million for more than 160 port and rail drivers in restitution for failure to pay at least the minimum wage, unpaid wages for meal and rest breaks and non-driving work such as wait time to pick up loads, and unlawful deductions for operational expenses, administrative fees, and insurance costs. According to the complaint, the company controls when drivers work and which loads they haul; requires drivers to conduct daily truck inspections; and requires drug testing of the drivers. The drayage trucking industry has been besieged by IC misclassification lawsuits not only by class action lawyers but most recently by the City of Los Angeles, as noted in our January blog update. Alvarez v. XPO Logistics Cartage LLC, No. BC695123 (Los Angeles Super. Ct. Feb. 26, 2018). NEW IC MISCLASSIFICATION CASE BROUGHT BY EXOTIC DANCERS AGAINST ADULT ENTERTAINMENT CLUB. An exotic dancer has brought a proposed collective action against Georgia gentlemen's club, Peaches of Atlanta, claiming minimum wage and overtime compensation violations of the FLSA due to misclassification of herself and other dancers as independent contractors instead of employees. According to the plaintiff, the dancers' only compensation was in the form of tips from Club patrons and the Club had a "practice of siphoning away those tips to distribute to non-tip eligible employees." The collective action complaint alleges that the dancers were employees and not ICs under the economic realities test because the Club had the power to hire, fire and discipline the dancers; required the dancers to work a certain number of days during the week, including one "slow day"; required each dancer to audition before hire; required the dancers to wear certain clothing on specific days of the week; determined the rate and method of payment for the dancers; required the dancers to tip out other employees at the end of the shift, such as the DJ, House Mom and Club owner; maintained attendance records; scheduled mandatory meetings; assessed fines if days of work/meetings were missed; and controlled the music used by the dancers. Lawson v. Clean City, Ltd. d/b/a Peaches of Atlanta, No. 18-cv-579 (N.D. Georgia Feb. 6, 2018). [GN] * Schwarzenegger Mulls Class Action Against Oil Industry -------------------------------------------------------- Mark Schleifstein, writing for NOLA.com, reports that terminator star and former California Gov. Arnold Schwarzenegger put the oil industry on notice that he will participate in a class action lawsuit charging that fossil fuel pollution is killing millions of people every year around the world through the effects of global warming. "We are going to go after them and we are going to be in there like an Alabama tick, that I can promise you," Mr. Schwarzenegger said. His comments came during an interview by Edward-Isaac Dovere of Politico before about 1,000 participants in SXSW, the South by Southwest Conference, on March 11 for Mr. Dovere's OFF Message online podcast. "I don't think there's any difference than if you walk into a room and you know you're going to kill someone, it's first degree murder," he said. "I think it's the same thing with the oil companies. They know they're killing people and they continue doing the same thing over and over and selling it, so I think something needs to be done about it." Mr. Schwarzenegger also took several shots at President Donald Trump, including a joke about the plot of his next Terminator movie, which begins production in Europe in June. "The T-800 model that I play, he's traveling back in time to 2019 to get Trump out of prison," he joked. But during a more serious part of the interview, Schwarzenegger confirmed that he's planning on filing a lawsuit against the oil industry, although he declined to say when: "We don't want to signal or moves." Mr. Schwarzenegger said that like the tobacco industry's paying hundreds of billions of dollars after being found responsible for lying about the health effects of smoking, the oil industry has lied about what it has known about the effects of fossil fuel pollution. "People don't know that the oil companies knew from 1959 on, they did their own study and knew there would be global warming and climate change happening because of fossil fuels, and on top of it, it will be risky for people's lives," he said. "That it would kill people and give people cancer, and all of this, all of this stuff the oil companies knew and they kept hiding it from the people." "There's 7 to 9 million people dying every year because of pollution because of fossil fuels," he said. "It is absolutely irresponsible to know that your product is killing people and to not have a warning label on it like they do in tobacco. Every gas station should have a warning label on it, every car should have a warning label, every product that has fossil fuels in it should have a warning label on it," he said. [GN] * SCOTUS Ruling on Class-Action Waivers Expected ------------------------------------------------ Elliott Mest, writing for Hotel Management, reports that we often imagine the rule of law as something rigid or set in stone, but in reality it is anything but. Case in point, the National Labor Relations Board, the organization in charge of maintaining a balance between the powers of the employer and the rights of the employee, is in the process of walking back a number of Obama-era decisions regarding employment law. During the previous administration, the NLRB decided that class-action waivers in arbitration cases were not enforceable, but a new decision from the NLRB could be taking the opposite stance. Class-action waivers are often signed by employees when they are hired, exempting their right to participate in class-action lawsuits against their employer. The Obama-era NLRB had strict restrictions on how these waivers could be presented to employees, as well as the consequences of their signing, but the new Republican majority in the NLRB has taken a more pro-business approach. Oral arguments on walking back these restrictions have already been put forth before the Supreme Court, and a decision on the matter is expected to be made within weeks. Because the decision is still up the air, and it will have far- reaching consequences for employers and employees alike, Mark Spring -- mspring@cdflaborlaw.com -- principal at labor, employment and immigration law firm Carothers, DiSante & Freudenberger, recommends employers wait before presenting new contracts to employees. "If you're already using an arbitration agreement, just continue doing what you're doing," Mr. Spring said. "The decision may set some parameters as to what's going to work and what isn't, and could offer guidelines on how to make these agreements enforceable." Hook, Line... Once the rules are in place, employers will be faced with the difficulty of convincing existing employees to sign. Dana Kravetz -- kravetz@mrllp.com -- managing partner at law firm Michelman & Robinson, said new hires can be bound to these agreements as a condition of new employment, but existing employees may need additional considerations. "If you are trying to get existing employees to sign off or amplify an agreement with new language, you may have to give them something and some may say no," Ms. Kravetz said. "These are waivers to a trial by jury, and there is a certain consideration there to get employees to sign them." In many cases, Ms. Kravetz said, employers make the mistake of implying or outright stating that continued employment is justification enough for workers to sign these agreements, but this line of thinking is unlikely to hold up in court. To sidestep this, Don Schroeder -- dschroeder@foley.com -- partner at law firm Foley & Lardner, said it may be a good idea to time the signing of new employee contracts with other events, such as promotions, raises or bonuses. "A lot of times, companies will set up an online portal to ensure employees consent to these new rules, and that is appropriate," Mr. Schroeder said. "Even an online signature is valid, as long as it ensures the employees have a clear understanding how the portal works and they acknowledge what they sign, and it allows companies to keep a record of it." Mr. Schroeder said one of the major mistakes hotels make is failing to draft arbitration provisions that make it very clear what claims are included under the umbrella of the arbitration clause. He said that many small and midsized businesses make the mistake of lifting agreements from online and circulating them to employees, when these agreements may have been drafted more than a decade ago. "It's very critical for companies operating in multiple jurisdictions that they include provisions that are clear as to what is and isn't covered by claims going forward, and for each region as well," Mr. Schroeder said. Give and Take Mr. Spring said there are negatives to the rule reversal, as well. Typically, an employer would not be expected to pay to provide an attorney for its employees during a class-action lawsuit, but that may not be the case if they are taken to court for a grievance that may have been addressed in such a suit. Also, Mr. Spring said employers are going to have to weigh the possibility of having to fire good, long-time employees who are unwilling to sign new agreements. "There is no hard and fast rule behind this, but if you have an employee with 15 years behind them, and they are one of your best, and they don't want to sign is it worth it to fire them?" Mr. Spring said. "You want to do that then in a way that is enforceable by both state and federal law, and in a way that doesn't affect employee morale." With decisions such as these becoming more common, Ms. Kravetz said he isn't surprised to see multiple hotel companies updating their employee handbooks. The response from unions and employee organizations cannot be ignored either, and employees are increasingly more educated on employment law. "There is a bill being floated right now that would cause claims related to sexual harassment to not be subject to arbitration," Ms. Kravetz said. "Employers could find resistance to people signing class-action waivers in light of their awareness of this bill, and it's part of an inherent distrust of employers that creeps up when asked to sign something like this." [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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