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/raid1/www/Hosts/bankrupt/CAR_Public/180524.mbx C L A S S A C T I O N R E P O R T E R Thursday, May 24, 2018, Vol. 20, No. 104 Headlines 970365 ALBERTA: Fort McMurray Case Suspended After Settlement AB CAR: Court Grants Prelim Approval of "Abdi" Class Settlement ABA PROTECTION: Fails to Pay Wages and Overtime, Ojo Says ALERI INC: Averts Class Action Over Blood Coagulation Monitor AMERICAN GENERAL: Petersen Seeks to Certify Policyholders Class AMERICAN HONDA: Court Narrows Claims in "Aberin" Suit AMP LTD: Chairwoman, Legal Counsel Quit Amid Class Action Threat AMP LTD: Faces Fourth Potential Shareholder Class Action AMP LTD: IMF Bentham Plans to Fund Shareholder Class Action AMP LTD: Potential Fines Unlikely to Deter Future Conduct ANTALIA TURKISH: Abarca et al. Sue over Unpaid Wages under FLSA APPLE INC: Faces $5 Billion Class Action Lawsuit AUSTRALIA: More Actions Needed Over PFAS Chemicals AUSTRALIA: Queensland Settles Palm Island Riot Case for $30MM BARNES & NOBLE: Data Breach Class Action Ongoing BAXALTA US: Faces "Martinez" Wage-and-Hour Suit BELL: Ontario Contract Case Could Be Grounds for Class Action BIGLARI HOLDINGS: Faces Class Action Over Restructuring BIGLARI HOLDINGS: Shareholder Suit Remanded to Ind. Superior Ct. BITGRAIL: Files Bankruptcy Petition in Italy Amid Litigation CAESARS ENTERPRISE: Arwine-Lucas Moves to Certify Four Classes CANADA: Sixties Scoop Survivors Object to Class Action Settlement CANADA: Class Action May Reach Resolution in Shorter Timeline CENTER FOR ELDERS: Fails to Pay Overtime Wages, Musawwir Says CHAMBER APPROVED: Morris Sues over Fax-Based Marketing Activities CHEMOURS CO: Loses Bid to Dismiss "Girardot" DWPCA Suit CITIGROUP INC: Market Makers Targeted in VIX Manipulation Lawsuit CLEMENTS FLUIDS: "Laney" Suit Seeks Overtime Pay under FLSA CLEVELAND AVE: Court Denies Bid to Dismiss "Hogan" FLSA Suit COLONIAL PARKING: Abraha's Bid for Class Certification Denied CONVERGYS CORP: Wins Summary Judgment in "Dimery" FLSA Suit COSTCO WHOLESALE: Man Seeks Class Suit for Shortchanging Members COVENTRY HEALTH: Court Denies Approval of $1.5MM Settlement CRST VAN: Reed Wants Testimony of Expert B. J. Nadell Excluded CYTEC INDUSTRIES: Claudet Seeks to Certify Plan Members Class DARP INC: Fochtman Seeks Certification of Participants Class DAVIS DEVELOPMENT: Fails to Pay Minimum Wage & OT, Orozco Says DELAWARE, USA: Saunders Moves for Certification of Inmates Class DENVER: Court Denies Summary Judgment in Homeless Sweeps Suit DISCOUNT POWER: Faces Class Action in Conn. Over TCPA Violation DOORDASH INC: Burger Antics' Class Certification Bid Withdrawn DR. PEPPER: Proskauer Rose Attorneys Discuss Class Action Ruling EQUIFAX INC: CFPB Fails to Act Despite Consumer Complaints FACEBOOK INC: Faces Dozens of Lawsuits Over Cambridge Analytica FACEBOOK INC: Millionaire Suing Over Fraud Adverts FCA US: Judge Allows Jeep Wrangler Class Action to Proceed FEDEX GROUND: Certification of Class Sought in "Carrow" Suit FLORIDA BC: Class of Sales Coordinators Certified in "Reese" Suit FORD MOTOR: Ct. Excludes Plaintiff Expert Witnesses in "Johnson" FOREMOST INSURANCE: Braden Seeks Prelim. OK of Class Settlement FOREMOST INSURANCE: Accord in Braden-Brown Suit Has Initial OK FRIENDLUM INC: Fails to Pay Overtime Wages, Elias Says FRONTIER COMMUNICATIONS: Williams Sues over Stock Price Drop GC SERVICES: Dickens Renews Class Certification Bid in Florida GENERAL MILLS: Court OKs $97,500 Atty's Fees in "Rooker" GEORGE WESTON: Class Action Over Rana Plaza Collapse Ongoing GLOBAL EAGLE: Purcell Julie Investigates Fiduciary Duty Breach GOLD STANDARD: Zollicoffer Seeks to Certify Class of Laborers GOLDEN STATE: Court Needs Supplemental Briefing in "Palma" GSP TRANSPORTATION: Enters Settlement in Principle with Campbell GUADALUPE, CA: "Limon" Suit Seeks Overtime Pay under FLSA GUAM: USCIS Attorney Fights Sanction for Denial of H-2B Petitions HELIX ENERGY: "Hernandez" Suit Seeks Overtime Wages under FLSA HITACHI AUTOMOTIVE: Court Certifies Class in "Lear" FLSA Suit HOMES OF OPPORTUNITY: Belmont Moves to Certify RS Managers Class HOWROYD-WRIGHT EMPLOYMENT: Becerra-South Sues over Overtime Wages HYUNDAI MOTOR: Court Narrows Claims in Defective Brakes Suit INTEREXCHANGE INC: 9th Cir. Refuses to Review Au-Pair Class Cert IMMEDIATE CREDIT: Class Certification Sought in "Hovermale" Suit J.C. PENNEY: Fails to Pay Minimum & Overtime Wages, Garcia Says JPAY INC: Reyes Moves to Certify Class and Subclass of Ex-Inmates JPMORGAN CHASE: Childresses' Bid to Certify Class Denied KOHL'S DEPARTMENT: Collins et al Seek to Certify Collective Suit LEGEND MINING: Conditional Certification in "Kaesemeyer" Denied LEWIS GALE: "Hardy" Suit Seeks Minimum & OT Wages under FLSA LIVE NATION: June 18 Lead Plaintiff Motion Deadline Set LYFT: Drivers File Class Action Over Undisclosed Charges M3 FINANCIAL: Mason Seeks Final Approval of $600K Settlement MASTRIA INCORPORATED: "De Leon" Suit Can't Proceed as Class MAZZONE MANAGEMENT: Olvera, et al. Seek to Certify 3 Classes MEDICIS PHARMACEUTICAL: July 18 Settlement Fairness Hearing Set MOLINA HEALTHCARE: June 29 Lead Plaintiff Motion Deadline Set NATIONAL RAILROAD: Campbell's Bid for Class Certification Denied NATIONAL UNION: Bid to Enjoin "Zebersky" Suit Granted NEVADA: Court Narrows Claims in "Walden" Wage & Hour Suit NEW ENTERPRISE: Court Narrows Claims in "Carr" NISSAN NORTH: Judge Dismisses Some Claims in Timing Chain Suit NOVARTIS PHARMA: Drogueria Sues over Exforge Non-Compete Deal NYKO: Nintendo Switch Owners File Class Action Over Dock Defect PALACIOS, TX: "Hubanek" Suit Seeks Overtime Wages under FLSA PHILIP MORRIS: Two Attorneys in Tobacco Litigation Suspended PROPARK AMERICA: "Sadino" Remanded to Calif. State Court QUINSTREET INC: Faces Securities Class Action in California RELIABLE REPORTS: Court Dismisses Non-Ohio Residents' FLSA Suit RM GALICIA: Court Approves $1.5MM TCPA Class Action Settlement SCHNUCK MARKETS: 7th Cir. Rules on Economic Loss Rule Issue SAMSUNG ELECTRONICS: Faces DRAM Class Action in California SAN DIEGO GAS: Faces Lawsuits Over Powerline Easements SEMPRA ENERGY: Court Dismisses "Plumley" Securities Fraud Suit SOUTH CAROLINA ELECTRIC: Sued Over Bungled Fairfield Project SQUAW VALLEY: Court Extends Time to Respond in "Pinto" SUGAR TRANSPORT: Court Extends Discovery Deadlines in "Guinn" SUNRISE SENIOR: Court Grants Final OK of "Johnson" Class Deal SUNTRUST BANK: Fails to Secure Classified Info, LeRoy et al. Say SYNGENTA: Lawyers Misled Corn Growners, Lawsuit Claims TARGET CORP: Settles Criminal Background Check Case for $3.4MM TEZOS SECURITIES: Securities Suit Briefing Schedule Set TIGER BRANDS: Confirms Presence of Listeria Strain in Facilities TIM DRAPER: Investors Bring Suit Over Sale of Digital Currency TOTAL QUALITY: Two Plaintiffs No Longer Part of Class Action UBER TECHNOLOGIES: 14 Women Seek Release from Arbitration UBER TECHNOLOGIES: 103 Drivers Face Sexual Assault Complaints UBER TECHNOLOGIES: Briefing Schedule Set in "Yucesoy" UNITED STATES: 9th Cir. Needs Supplemental Briefs in "Rodriguez" UNITED STATES: VA to Build Housing Units Following Class Action UNIVERSAL TAX: Judge Rejects D&B's Attempt to Reopen Class Action UNO RESTAURANT: Court Won't Certify Class of Tipped Employees VOLKSWAGEN GROUP: Aspen Law Firms File Emissions Scandal Lawsuit VOLKSWAGEN GROUP: Class Action Over Defective Sunroofs Dismissed VOLVO CARS: Court Junks Suit Over Side Impact Protections Systems WAL-MART STORES: Tye Moves to Certify Five Classes of Purchasers WALMART STORE: Judge Rejects Attempt to Dodge Class Action WEINSTEIN CO: Six Women Plaintiffs in Class Action Seek Court Nod WORTHINGTON PJ: Seeks Final OK of $35,250 Deal in "O'Connor" Suit WYNN RESORTS: Court Extends Deadlines in "Ferris" * Australia's Mandatory NDB Legislation Takes Effect * Carlton Fields Releases 2018 Class Action Survey * Citizen Petition for Regulation of Sugar May Lead to Lawsuit ********* 970365 ALBERTA: Fort McMurray Case Suspended After Settlement ------------------------------------------------------------- David Thurton, writing for CBC News, reports that though settlements have been reached and the building has long-since been torn down, the saga of the troubled Penhorwood condo complex in Fort McMurray is far from resolved in owners' minds. After 11 years of litigation, a Calgary Court of Queen's Bench judge approved the final settlements in September 2017, court documents show. The only thing that's left is for the courts to approve a process under which owners can deal with the banks still carrying unpaid mortgages, said Christine Burton, president of the Penhorwood Condo Association. Even after that's worked out, some owners will continue to live in financial ruin, Ms. Burton said. "Some people went bankrupt," she said. "A lot of people foreclosed, stopped paying their mortgages. We had a lot of marriages break up over this." Problems from roof to foundation The seven-building, 168-unit complex was built between 2003 and 2004. Three years later, in January 2007, condo owners filed their first statement of claim. In several amended claims filed later, owners alleged numerous building deficiencies from roofs to foundations. "Just about every single system in the building was failing," Ms. Burton said. In 2011, municipal building inspectors determined the complex was structurally unsound, and ordered a sudden evacuation on a cold night in March. Condo owners filed a $60-million lawsuit that year against the companies that built the complex -- 970365 Alberta Ltd, Prairie Communities Corp., and Dome Britannia Properties Inc. -- the architect and engineering firms that designed it and the municipality that approved it. The condemned building was torn down in 2015. Since then, owners have continued to pay their mortgages. The exact amount the defendants paid to condo owners is unknown because the 2017 settlement is sealed under a court order. Court settlements are not an admission of guilt. The lawsuit and a class action suit were suspended after the settlements were reached, Ms. Burton said. Settlement doesn't equal loss Owner Pawel Odrzygozdz received only a fraction of the amount needed to pay off his $250,000 mortgage. He anticipates he'll be paying off his debt for years. But for him, the loss has been even greater. He and his wife were expecting twins, but she miscarried after the evacuation. "I guess a lot of people could consider there was no life lost in this entire situation. That's not how I look at it," Odrzygozdz said. "The way I look at it is, I lost two potential babies that potentially could have been born healthy. "But because of this entire situation, they weren't able to come into this world." The 4.74-acre site is now up for sale, with an asking price of $9,500,000. Any money from the sale, Burton said, will go to condo owners. [GN] AB CAR: Court Grants Prelim Approval of "Abdi" Class Settlement --------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, granted Parties' Stipulated Motion for Certification of Settlement Class and for Preliminary Approval of Class Action Settlement in the case captioned SAMATAR ABDI, Plaintiff, v. AB CAR RENTAL SERVICES, INC., Defendant, Case No. C16-0421RSL (W.D. Wash.). Pursuant to Federal Rule of Civil Procedure 23(c), the Court conditionally certifies, for settlement purposes only, the following Settlement Class: All employees of the Defendant who were on Defendant's payroll who are alleged to have been either Hospitality Workers or Transportation Workers and who worked one or more hours within the City of SeaTac at any time during the time period from January 1, 2014 to the present, and who were paid less than the prevailing minimum wage prescribed by the City of SeaTac Municipal Code 7.45.050, i.e., a base rate of $15.00 per hour in 2014 and $15.24 in 2015 and 2016. Persons in the Settlement Class will possess the right to opt out by sending a written request to a designated address on or before June 7, 2018. All Settlement Class Members who do not opt out in accordance with the terms set forth herein will be bound by all determinations and judgments in this action. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/yc6dbj7v from Leagle.com. Samatar Abdi, Plaintiff, represented by Cleveland Stockmeyer -- cleve@clevelandstockmeyer.co -- CLEVELAND STOCKMEYER, Daniel R. Whitmore -- dan@whitmorelawfirm.com -- & Duncan Calvert Turner -- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC. AB Car Rental Services, Inc., a Delaware corporation, Defendant, represented by Breanne Sheetz Martell -- bsheetz@littler.com -- LITTLER MENDELSON & Ryan Paul Hammond -- rhammond@littler.com -- LITTLER MENDELSON. ABA PROTECTION: Fails to Pay Wages and Overtime, Ojo Says --------------------------------------------------------- OLUFEMI DAVID OJO, on behalf of himself and others similarly situated, the Plaintiff, v. ABA PROTECTION, INC., a California corporation; and DOES 1 through 50, inclusive, the Defendant, Case No. BC705970 (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid wages and overtime under the California Labor Code. According to the complaint, from at least 4 years prior to the filing of this lawsuit and continuing to the present, the Defendants had a consistent policy or practice of failing to pay Employees overtime compensation at premium overtime rates for all hours worked in excess of 8 and/or 40 hours a week, in violation of Labor Code and the corresponding sections of the IWC Wage Orders. The Plaintiff and other putative class members consistently worked shifts in excess of eight hours a day or 40 hours a week but were paid only straight time for each hour worked.[BN] The Plaintiff is represented by: Anthony J. Orshansky, Esq. Alexandria R. Kachadoorjan, Esq. Justin Kachadoorjan, Esq. COUNSELONE, PC 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277 9945 Facsimile: (424) 277 3727 E-mail: anthony@counselonegroup.com alexandria@counselonegroup.com justin@counselonegroup.com ALERI INC: Averts Class Action Over Blood Coagulation Monitor ------------------------------------------------------------- HarrisMartin Publishing reports that a California federal judge has denied class action certification of an action accusing Aleri Inc. and its predecessor HomoSense Inc., the makers of a blood coagulation monitor, of failing to adequately warn of possible device malfunctions, ruling that individual inquiries will be necessary to determine proximate cause. On April 24, Judge Gonzalo Curiel of the U.S. District Court for the Southern District of California explained that a learned intermediary doctrine analysis requires demonstrating proximate cause, and that a proximate cause determination will ultimately lead to individual inquiries into each doctor's experience with the product. [GN] AMERICAN GENERAL: Petersen Seeks to Certify Policyholders Class --------------------------------------------------------------- In the lawsuit styled EDWARDINE C. PETERSEN, on behalf of herself and all others similarly situated, the Plaintiff, v. AMERICAN GENERAL LIFE INSURANCE CO., the Defendant, Case No. 3:14-cv- 00100-BJD-JBT (M.D. Fla.), the Plaintiff asks the Court for an order: 1. certifying a class for settlement purposes: "Members of the First Union Financial Institution Block as identified by DRIASI, American General's Third-Party Administrator, whose Certificate under American General Group Policy G-500,017 was still active as of October, 2014"; and 2. allowing notice to be issued to the class and specifying a date for the Final Approval Hearing so it may be included in the Notice to the Class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=anGF9dXl Attorneys for Plaintiff and the Class: Janet R. Varnell, Esq. Brian R. Warwick, Esq. VARNELL & WARWICK, P.A. P.O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753 8600 E-mail: jvarnell@varnellandwarwick.com bwarwick@varnellandwarwick.com - and - Michael D. Donovan, Esq. DONOVAN LITIGATION GROUP, LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 Telephone: (610) 647 6067 E-mail: mdonovan@donovanlitigationgroup.com The Defendant is represented by: Christian P. George, Esq. Aleksas A. Barauskas, Esq. Gary Guzzi, Esq. AKERMAN LLP E-mail: christian.george@akerman.com aleksas.barauskas@akerman.com Gary.guzzi@akerman.com - and - Jeffrey Grantham, Esq. Thomas J. Butler, Esq. MAYNARD COOPER & GALE E-mail: jgrantham@maynardcooper.com tbutler@maynardcooper.com AMERICAN HONDA: Court Narrows Claims in "Aberin" Suit ----------------------------------------------------- The United States District Court for the Northern District of California granted in part and denied in part Defendant's Motion to Dismiss certain claim in Plaintiffs' Second Amended Complaint (SAC) in the case captioned ABERIN ET AL., Plaintiffs, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Case No. 16-cv- 04384-JST (N.D. Cal.). The Plaintiffs' claims arise from their purchase of Acura vehicles which contained a Bluetooth pairing device entitled HandsFreeLink (HFL) that allowed for hands-free cell phone calls. Beginning in 2005, AHM issued internal Technical Service Bulletins (TSBs) to its dealers describing the defect but offering no solution or warranty. In some cases, the Plaintiffs purchased their Acura vehicles specifically because they had HFL, and because Acuras had a reputation for reliability. The Plaintiffs filed this putative class action alleging claims under California and various other state consumer protection and warranty laws against the Defendants. AHM argues that New York plaintiff Matza and Washington plaintiff Burgess, both new to the SAC (Burgess by consolidation and Matza by amendment), have several untimely claims. AHM argues that Matza's consumer protection claim is untimely because New York's law has a three-year statute of limitations that accrued on the date of purchase in September 2006. AHM also argues that Matza's claims for express warranty, implied warranty, and under the MMWA have a four-year statute of limitations. The Court holds that "AHM's recitation of the statutes of limitations for the New York and Washington state consumer protection and warranty statutes is correct, and under these statutes, the claims are untimely. But this is not the end of the timeliness inquiry. The Plaintiffs argue that Matza and Burgess's consumer protection and warranty claims are all timely as fraudulent concealment and delayed discovery tolling apply. Plaintiffs are correct that tolling applies." The Court concludes that Plaintiffs Lou, Yeung, Matza, and Burgess adequately plead the time and manner of their discovery. However, that is not the end of the inquiry. To invoke the discovery rule, each Plaintiff must also show he acted reasonably and diligently. AHM argues that these plaintiffs were not diligent because they knew they had problems with their batteries, but did not investigate the source of the problems. The Plaintiffs respond that AHM's concealment, combined with the fact that the defect manifests by causing apparently unrelated electrical components to fail, left the Plaintiffs unable to discover the defect on their own. The Plaintiffs have the better argument. The Plaintiffs allege that they had their cars repaired by dealerships who purported to fix the reported problems but never identified the underlying HFL issue causing those problems. In an analogous situation, another court in this district held that plaintiffs alleged fraudulent concealment when a car manufacturer pretended to fix problems with the defect instead of admitting that the problems could not be fixed. Courts have also recognized that a consumer without sophisticated knowledge of automobiles might not suspect a defect, and therefore not investigate further, when it appeared that a repair fixed the problem. As to the Plaintiffs' fraudulent concealment claims, defendant must show not only that the Plaintiffs should have known about the defect itself, but also that they know about the Defendant's alleged fraud in concealing the defect, the Court says, citing MyFord Touch, 46 F. Supp. 3d at 962. The Court's prior holding that the Plaintiffs sufficiently allege a defect within Honda's exclusive knowledge, and that Honda withheld information from Plaintiffs, are sufficient in this regard. In short, plaintiffs Lou, Yeung, Matza, and Burgess, adequately allege tolling. The motion to dismiss their consumer protection and warranty claims on statute of limitations grounds is denied. The Plaintiffs also argue that the warranty fails its essential purpose if it does not cover design defects, under the UCC Section 2-719. The Plaintiffs again cite to a number of out of district and circuit cases for this proposition, arguing that design defects are interchangeable with workmanship or manufacturing defects at the pleadings stage. However, many courts in this district and circuit have repeatedly held that warranties covering 'materials or workmanship' do not cover design defects. AHM's motion to dismiss Plaintiffs' express warranty claims is granted. Under California law, a third-party beneficiary can enforce a contract made expressly for his benefit. A contract made expressly for a third party's benefit does not need to specifically name the party as the beneficiary; the only requirement is that the party is more than incidentally benefitted by the contract. Plaintiffs successfully invoke this exception. As to Florida Plaintiff Criner, however, AHM's motion has more force. Under Florida law, the rule is simple: a plaintiff cannot recover economic losses for breach of implied warranty in the absence of privity. AHM's motion to dismiss on the grounds of implied warranty for lack of privity under California law is denied but the motion to dismiss on the grounds of implied warranty for lack of privity under Florida law is granted. The Court finds that the Defendants are correct that to the extent that this Court dismisses Plaintiffs' implied and express warranty claims, it must also dismiss their MMWA claims. The MMWA claims on the basis of the express warranties are dismissed but the claims for implied warranties are granted, in part. Accordingly, the motion to dismiss the MMWA claim under Florida law is granted, but the motion under all other laws is denied because implied warranty claims survive. AHM argues that the plaintiffs cannot obtain equitable relief under the UCL because they have an adequate remedy at law. AHM is correct that some federal courts have so held. This Court joins the many other courts, however, that have reached the opposite conclusion, finding no bar to the pursuit of alternative remedies at the pleadings stage. For these reasons, the Court rules: -- AHM's motion to dismiss Plaintiffs' claims for equitable relief under the UCL and CLRA is denied. -- AHM's motion to dismiss is granted in part and denied in part and the motion to strike is denied in full. -- AHM's motion to dismiss Burgess's and Matza's consumer protection claims on the grounds of timeliness is denied. -- AHM's motion to dismiss Burgess's and Matza's warranty claims on the grounds of timeliness is denied. -- AHM's motion to dismiss the consumer protection and warranty claims of the Aberin Plaintiffs and Plaintiffs Lou, Yeung, Matza, and Burgess on the grounds of failure to plead tolling of the statute of limitations is granted as to the Aberin Plaintiffs and denied as to Plaintiffs Lou, Yeung, Matza, and Burgess. -- AHM's motion to dismiss the express warranty claims of Plaintiffs Criner, Matza, and Burgess on the grounds of failure to manifest during the warranty period is granted. -- AHM's motion to dismiss the implied warranty claims under California law on the basis of privity is denied but the motion to dismiss the implied warranty claims under Florida law on the basis of privity is granted. -- AHM's motion to dismiss the MMWA warranty claims is denied except as to claims under Florida law, as to which the motion is granted. -- AHM's motion to dismiss Plaintiffs' claims for equitable relief is denied. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/y73l2tra from Leagle.com. Yun-Fei Lou, Lindsey Aberin, Don Awtrey, Daniel Criner, John Kelly & Melissa Yeung, individually and on behalf of all others similarly situated, Plaintiffs, represented by Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Catherine Gannon -- catherineg@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Christopher A. Seeger -- cseeger@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, Daniel R. Leathers -- DLeathers@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, David Brian Fernandes- dfernandes@baronbudd.com -- Baron & Budd, P.C., James E. Cecchi -- jcecchi@carellabyrne.com - - Carella Byrne Cecchi Olstein Brody & Agnello, P.C., James C. Shah -- jshah@sfmslaw.com -- Shepherd Finkelman Miller & Shah, LLP, Lindsey H. Taylor, Carella Byrne Cecchi Olstein Brody & Agnello, P.C., Mark Philip Pifko -- mpifko@baronbudd.com -- Baron & Budd, P.C., Roland K. Tellis -- rtellis@baronbudd.com -- Baron Budd, P.C., Scott Alan George -- sgeorge@seegerweiss.com -- Seeger Weiss LLP, pro hac vice, Stephen A. Weiss -- cseeger@seegerweiss.com -- Seeger Weiss LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. American Honda Motor Company, Inc., Defendant, represented by Livia M. Kiser -- lkiser@sidley.com -- Sidley Austin LLP, Andrew Jacob Chinsky -- achinsky@sidley.com -- Sidley Austin LLP, pro hac vice, Eric B. Scwartz -- eschwartz@sidley.com -- Sidley Austin LLP & Michael Christian Andolina -- mandolina@sidley.com - - Sidley Austin LLP, pro hac vice. AMP LTD: Chairwoman, Legal Counsel Quit Amid Class Action Threat ---------------------------------------------------------------- Paulina Duran and Aaron Saldanha, writing for Reuters, report that Australia's largest-listed wealth manager AMP announced the resignations of its chairwoman and legal counsel on April 30, and slashed its directors' fees by a quarter as it races to stem the fallout from damaging revelations of misconduct at the firm. The exits follow disclosures at a judicial inquiry into the country's financial sector that AMP misled many customers and deceived the corporate regulator. The scandal has already caused the early departure of CEO Craig Meller, who was due to leave by year end, and analysts expect more heads will roll. Chairwoman Catherine Brenner and group General Counsel Brian Salter will depart immediately, AMP said in a statement. Mike Wilkins, a former independent director who has been named both interim chairman and CEO, said the evidence given to the government-backed Royal Commission is "being treated extremely seriously by the board". "Appropriate steps are being taken to address the issues raised, and remediating our customers is being given utmost priority," he said. AMP, which is also staring at a possible class action, has seen around A$2.2 billion ($1.7 billion) wiped off its market capitalization over the past two weeks in the wake of the revelations. It was valued at A$11.6 billion at the April 27 close. The inquiry was told that advisers at AMP misappropriated funds of thousands of clients over the last decade by charging them without providing advice, and that it had repeatedly lied to the Australian Securities and Investments Commission (ASIC). Counsel assisting the inquiry said on April 27 that AMP had breached provisions of the Corporations Act that carry criminal sanctions. Brenner, Salter and Meller were singled out by the inquiry as part of a group of senior executives that allegedly modified a report by law firm Clayton Utz and submitted it to the regulator in late 2017 as "external and independent". Their intention was to limit the report's findings about the involvement of AMP's senior executives in misappropriating customer fees, the inquiry heard. AMP said in its statement that Brenner, Meller and the other directors "did not act inappropriately in relation to the preparation of the Clayton Utz report". The statement did not comment on Salter's behavior. REMUNERATION CONSEQUENCES The company said it would make a formal submission in response to the allegations raised at the commission by May 4. The "employment and remuneration consequences" for individuals who were responsible for charging fraudulent fees will be determined once an external employment review is completed, which is expected shortly, it said. AMP added that it would slash fees for board directors by 25 percent for the rest of 2018 as a recognition of the "collective governance accountability for the issues raised in the Royal Commission and for their impact on the reputation of AMP". AMP has already started searching for a new CEO, and will fast track the selection of a new chair to "help ensure stability and further strengthen governance", Wilkins said. David Ellis, an analyst at Morningstar, said it was likely more executives and board members would leave in coming weeks. "All bets are off," Ellis said. "With a new CEO and a new board, the future strategy could be completely different." AMP is currently staring at a possible shareholder class action, with litigation financier IMF Bentham Ltd saying it plans to fund one against the wealth manager regarding alleged misconduct as revealed by the commission. An AMP spokeswoman declined to comment on the proposed class action. The Royal Commission is just a couple of months into what is expected to be a year-long investigation. The inquiry will be able to make wide-ranging recommendations including legislative changes and on criminal or civil prosecutions. [GN] AMP LTD: Faces Fourth Potential Shareholder Class Action -------------------------------------------------------- Simone Ziaziaris, writing for Australian Financial Review reports that AMP is facing a fourth potential shareholder class action after law firm Phi Finney McDonald announced it is preparing action against the wealth management giant for misleading investors and breaching continuous disclosure obligations. Following the resignation of AMP chairman Catherine Brenner on April 30, Phi Finney McDonald said the class action will seek compensation for investors after revelations at the banking royal commission that AMP could face criminal charges for charging customers fees for services that were not provided. It follows law firms Shine Lawyers, Slater and Gordon and Quinn Emanuel Urquhart & Sullivan, which said they were each investigating class actions against AMP. "It is all very well for AMP to say that it 'unreservedly' apologises to the regulator, but where does that leave investors in AMP shares who have seen billions of dollars wiped off AMP's market capitalisation in the last two weeks?" Mr Finney said. He said the class action, which is backed by litigation funder IMF Bentham limited, will be open to all shareholders "aggrieved" by AMP's misconduct. AMP's market value has fallen by $2.3 billion since its executives began giving testimony to the royal commission a fortnight ago, with its shares down a further 0.5 per cent to $4.00 by 1250 AEST on April 30. The 169-year-old company has admitted it charged customers fees for financial advice that was never delivered, and repeatedly lied to ASIC about its behaviour. The scandals uncovered during the royal commission have forced Ms Brenner, AMP chief executive Craig Meller, and group general counsel and company secretary Brian Salter to step down as the company tries to rebuild trust with customers. [GN] AMP LTD: IMF Bentham Plans to Fund Shareholder Class Action ----------------------------------------------------------- Aaron Saldanha, writing for Reuters, reports that litigation financier IMF Bentham Ltd said on April 30 that it plans to fund a class action against AMP Ltd, Australia's largest listed wealth manager. IMF said the investment involves a proposed class action by certain current and former AMP shareholders regarding alleged misconduct as revealed by Australia's Financial Services Royal Commission. AMP announced the resignations of its chairwoman and legal counsel earlier on April 30, and slashed its directors' fees by a quarter, as the firm tries to stem the fallout from damaging revelations. [GN] AMP LTD: Potential Fines Unlikely to Deter Future Conduct --------------------------------------------------------- Anna Patty, writing for The Sydney Morning Herald, reports that legal experts and angry shareholders doubt criminal and civil penalties AMP could face will be high enough to have a deterrent effect on its future conduct. The banking royal commission has heard AMP breached criminal provisions for misleading the Australian Securities and Investments Commission over its charging of clients fees for no service. Potential penalties for a criminal breach are $210,000 per charge and $1 million for each civil breach. Fines reaching tens of millions of dollars would be a drop in the ocean compared to AMP's $800 million profit last year. Allan Goldin from the Australian Shareholders' Association (ASA) said fines in Australia were very low in comparison to those imposed for similar corporate offences in the US and Europe. "Why should we trade the idea that corporate theft is OK?" Mr Goldman said. The Bank of America paid almost $US17 billion in 2014 to settle allegations about its role in selling mortgages to investors leading up to the global financial crisis. A Financial Times analysis last year showed the Bank of America had paid $US56 billion in settlements to cover its mortgage sales and those of two companies it acquired, subprime lender Countrywide and broker Merrill Lynch. JPMorgan Chase, which acquired Bear Stearns and Washington Mutual was reported to have paid $US27 billion in settlements. European banks paid billions of dollars in settlements in the US last year, including $US5.5 billion from the Royal Bank of Scotland. Mr Goldman, ASA's NSW company monitoring committee chairman, said Australian shareholders wanted long-term sustainable profits but AMP, "one of the most recognised and trusted names in Australia", had "trashed" its reputation. "As a shareholder you are losing money but the concern is am I going to get it back, because how long is it going to take AMP to get their reputation back?" he said. Jan Saddler from Shine Lawyers, who is running a class action against AMP on behalf of shareholders, said civil and criminal penalties were supposed to have a punitive and deterrent effect, but those AMP potentially faced were "modest amounts" relative to company profits. "I'm not sure that it's having the desired outcome because we are continuing to see conduct that falls well short of the standard expected by the community," she said. Louise Davidson, Australian Council of Superannuation Investors chief executive, said penalties should be a financial deterrent. "Whilst the financial penalties themselves may not have a significant impact on the company's bottom line and may not therefore act as a deterrent, I would expect that the reputational impact of what has been revealed in the royal commission would certainly be a deterrent," she said. "Nevertheless there is clearly a need for the financial penalties to be reviewed for the future." University of Sydney Professor of Corporate Law Jennifer Hill said ASIC has long argued the penalties for corporate misconduct available to comparable international regulators are broader and higher than those in Australia. ASIC has complained it lacked power to order disgorgement, which aims to prevent unjust enrichment through wrongdoing. Civil penalties had also remained static for decades. The federal government announced in March it would significantly increase penalties for criminal and civil liability under the Corporations Act for corporations and individuals. Professor Hill said criminal liability against corporations was controversial in the US where critics claimed high fines against corporations often punished shareholders and employees instead of deterring the future conduct of corporations -- unless individuals were targeted. "Some commentators doubt that even the stratospheric $US1 billion fine levied against Wells Fargo bank a few weeks ago will truly act as a deterrent," Professor Hill said. "Yet, criminal liability may have limited effectiveness against individual corporate managers." Professor Hill said a benefit higher penalties may have in Australia included providing regulators with greater leverage to address corporate culture issues in negotiated settlements. [GN] ANTALIA TURKISH: Abarca et al. Sue over Unpaid Wages under FLSA --------------------------------------------------------------- MISAEL PEREDA ABARCA and ORLANDO XOCUA DE LA CRUZ, individually and on behalf of others similarly situated, the Plaintiffs, v. ANTALIA TURKISH CUISINE LLC (D/B/A ANTALIA), OZAN EKMEL ANDA, DAVID D KOCAK, and SERHAT (A.K.A. SERGIO) CETINKAYA, the Defendants, Case No. 1:18-cv-04380 (S.D.N.Y., May 16, 2018), seeks to recover minimum wage compensation under the Fair Labor Standards Act of 1938 and New York Labor Law. According to the complaint, the Plaintiffs were ostensibly employed as delivery workers. However, they were required to spend a considerable part of their work day performing non-tipped duties, including but not limited to carrying delivery boxes into the store, taking and carrying inventory down to the basement, taking out the trash, and cutting cardboard boxes. At all times relevant to this Complaint, Plaintiffs worked for Defendants without appropriate minimum wage compensation for the hours that they worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiffs appropriately for any hours worked at the straight rate of pay. Furthermore, Defendants repeatedly failed to pay Plaintiffs wages on a timely basis. The Defendants employed and accounted for Plaintiffs as delivery workers in their payroll, but in actuality their duties required a significant amount of time spent performing non-tipped duties alleged above. Regardless, at all relevant times, Defendants paid Plaintiffs at a rate that was lower than the minimum wage rate.[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317 1200 Facsimile: (212) 317 1620 E-mail: Faillace@employmentcompliance.com APPLE INC: Faces $5 Billion Class Action Lawsuit ------------------------------------------------ Patenty Apple reports that The National Corporation of Consumers and users of Chile filed a Class Action against Apple on April 27 in the afternoon for slowing iPhones in X in the Northern District of California, San Jose Division. The plaintiff is described as a private non-profit organization with its principal place of business in Santiago, Chile. The plaintiff was founded in 1996 with the purpose to inform and educate consumers and assume their legal representation and defense. Other countries suing Apple on this same issue include France, South Korea, Australia, Israel and Canada to date in 2018. The plaintiff is demanding $5 billion as noted in the graphic below from the court docket. Nature of the Action The plaintiff's court filing presents a segment titled "Nature of the Action" and it states the following verbatim: "Apple promised that its recent iOS 10 and iOS 11 software updates for the iPhone 6 and iPhone 7 models would improve those devices' performance. Apple also made it nearly impossible for its customers to refuse those updates. But Apple didn't tell its customers that it intentionally designed those software updates to slow the devices' processing speed to correct a battery defect. Yet Apple happily took its customers' money when the customers, dissatisfied with their now-slower devices, purchased new and more expensive iPhones. Apple finally came clean in December 2017 under public pressure, admitting its software updates slowed processor speed. Consumers around the world were forced to either purchase new phones for hundreds, if not thousands, of dollars or continue to struggle with their slowed devices. Plaintiff brings this action on behalf of all Chilean consumers who own the iPhone 6, iPhone 6s, iPhone 6 Plus, iPhone 6s Plus (collectively, the "iPhone 6"), or the iPhone 7 and iPhone 7 Plus (collectively, the "iPhone 7") (together, "Affected Phones"), whose devices were harmed by Apple's iOS software updates for versions 10.2.1, 10.3, 10.3.1, 10.3.3 (the "iOS 10 Update") and for versions 11.0.1, 11.02, 11.03, 11.1.1, 11.1.2, 11.2, and 11.2.1 (the "iOS 11 Update," and collectively, the "iOS 10 and iOS 11 Updates") those updates were released between January 23, 2017 and December 13, 2017." It's clear the plaintiff's position is that Apple purposely slowed iPhones so as to push customers to upgrade more often. Their formal complaint states that "Despite the iPhone's importance, Apple has struggled with problems in its flagship product. According to Apple's 2017 Form 10-K, 'iPhone net sales decreased during 2016 compared to 2015. The Company believes the sales decline was due primarily to a lower rate of iPhone upgrades during 2016 compared to 2015 . . . .'" The plaintiff's formal complaint further added that "Specifically, Defendant has since admitted that the iOS 10 and iOS 11 Updates deteriorated the performance of the Affect Phones by causing: a. Longer app launch-times; b. Lower frame rates while scrolling; c. Backlight dimming; d. Lower speaker volume; e. Gradual frame rate reductions in some apps; f. Disabling the camera flash; and g. Apps refreshing in background may require reloading upon launch. The Concealed Facts were material because the decrease in processing speed significantly impacted the functionality of Plaintiff's members' iPhones. By its misrepresentations and omissions, Defendant, upon information and belief, intended to induce Plaintiff's members to purchase newer iPhone models to increase profits and improve Defendant's business as a whole." Causes for Action Below are the four causes of action listed in the plaintiff's formal complaint: Count 1: Injunctive Relief Count 2: Trespass to Chattels Count 3: Unjust Enrichment Count 4: Fraudulent Misrepresentation/Omission [GN] AUSTRALIA: More Actions Needed Over PFAS Chemicals -------------------------------------------------- Laurel Stowell of Wanganui Chronicle, writing for NZHerald, reports that Ohakea residents affected by chemical contamination from the Air Force base need more and better testing and more open information from the Defence Force, lawyer Tim Gunn, Esq., says. But a Defence Force spokesperson says it has been completely open and is using the right test for this stage. Gunn works for Shine Lawyers in Auckland, which deals in civil and insurance litigation. The law firm's Australian parent company is working on a class action lawsuit against the Australian Defence Force concerning exposure to chemicals in Oakey, Queensland. In December the New Zealand Defence Force (NZDF) told councils and residents that PFAS chemicals used in firefighting foams were present in groundwater around its Ohakea air base. Gunn said NZDF knew about the contamination as early as mid-2015. "This is a dangerous case of the perpetrators also being the gatekeepers to vital information that holds life-altering weight to the community." The NZDF told Horizons Regional Council about possible contamination in October 2015, the spokesperson said, and it carried on investigating "carefully and methodically" after that. New Zealand didn't have a drinking water guideline for PFAS until 2017, and the NZDF discovered PFAS had moved outside the Air Force base only in September last year. It has since commissioned two rounds of testing, by AsureQuality. The latest results increased the number of Ohakea households that have drunk bore water with unacceptably high levels of the chemical from five to eight. Gunn has seen people harvesting watercress from ponds near the base. He said residents should ask for tests of surface water, soil, plants and their own blood as well as the groundwater tests. Residents have been advised not to eat a lot of food from their land, as a precaution, because small amounts of the chemical can accumulate in their bodies. Gunn also said New Zealand tests for PFAS compounds are not as effective as the TOP Assay test used in Australia. But the NZDF spokesperson said current tests were to assess the risk to households and the TOP Assay test would be used if long-term remediation was done. The PFAS scare is older in Australia, with New Zealand about three years behind. The chemicals are toxic, soluble and very long lasting. Small amounts build up in the body and Queensland's Department of Environment and Science says they can cause health problems including liver damage, benign tumours and thyroid disease. In Australia test results were put up online, with a map of the area affected, Gunn said. In New Zealand the Ministry for the Environment is the lead agency dealing with PFAS contamination near several NZDF sites. Its website has published NZDF test results, and results from the latest round of testing near Ohakea. The website says there are no acute health risks for people or stock from ingesting small amounts of the chemical, and it's okay to sell stock, milk and food grown on the land commercially. Mr Gunn believes the contamination will eventually affect land values near NZDF sites. He's looking for owners interested in being part of a class action, but said better information about the extent of the problem is needed first. Horizons Regional Council is investigating the contamination, and may prosecute the NZDF. [GN] AUSTRALIA: Queensland Settles Palm Island Riot Case for $30MM ------------------------------------------------------------- David Chen, writing for ABC, reports that the Queensland Government has agreed to pay $30 million to settle a class action in the Federal Court over the 2004 Palm Island riots. As part of the settlement reached with Palm Island residents in late April, the State Government has also agreed to offer an apology. The settlement includes payments for 447 claimants as well as interest, legal and administrative costs. Indigenous activist Lex Wotton, who was convicted of inciting the riots following the death of Cameron Doomadgee, launched the legal action in 2015. Mr Doomadgee, 36, died of massive internal injuries after he was arrested for being drunk and locked in a police cell, with no visible injuries at the time. Hours later he was dead from massive internal injuries including broken ribs and a ruptured spleen, and his liver was so badly damaged it was almost cleaved in two across his spine. The pathologist who conducted a post-mortem compared Mr Doomadgee's injuries with those of plane crash victims. Residents accused arresting officer Senior Sergeant Chris Hurley of murder, but he was acquitted of manslaughter in 2007. On the day Mr Doomadgee's autopsy results were read out, about a week after his death, Mr Wotton led angry residents on a riot through the town. Mr Wotton was later convicted of inciting a riot and served 19 months in jail before being released on parole in 2014. Mr Wotton and his family was awarded $220,000 in damages for racial discrimination in December 2016. Police response was racist, court found Island residents marched from the town square and burnt down the police station, court house and police houses. Officers tried to barricade themselves as they were attacked with sticks and rocks, and told to leave the island. Queensland's then-premier Peter Beattie declared a state of emergency and dozens of riot squad members were flown in to control the crowd. The Federal Court found in November 2016 that police were racist in their response, and ordered compensation for one family, prompting momentum around a class action. In her 2016 ruling, Federal Court Justice Debbie Mortimer found police had acted "with impunity". She also found the Queensland Police Service's failure to suspend Senior Sergeant Hurley after Mr Doomadgee's death was unlawful discrimination. "I am satisfied the QPS . . . would not have had that attitude if this tragedy occurred in a remote, close-knit, but overwhelmingly non-Aboriginal community -- for example, a pastoralist community in rural Queensland," she said. Mr Wotton said he is glad the case has come to an end almost 14 years later. "It did take a toll on me . . . and I'm probably still suffering in some sense from it all now but I can move on," he said. "I can concentrate more on myself now than be worried about this. "The wider community didn't have to go through what I had to, to get the outcome," he said. Lawyer Stewart Levitt said he was pleased with the outcome after working with Mr Wotton for nearly a decade. "This is an opportunity for a celebration, but the other thing that does concern me is that people will be receiving substantial sums of money for the first time in their life. I just hope carpet baggers don't prey on them and lighten their pockets rapidly," Mr Levitt said. "I'd like to see [the Australian Securities and Investment Commission] keeping a close watch to see what happens to the Indigenous [people] to ensure they're not preyed upon by people with poor motives in respect to the sudden floods of funds that they're going to be receiving in Palm Island, where there's not even a bank branch." Apology would also help community 'move on' Queensland Minister for Aboriginal and Torres Strait Islander Partnerships Jackie Trad said the Government would work with the community on a way to recognise the apology. "I look forward to continuing to work closely with the community as we move forward together." Palm Island Mayor Alf Lacey said he hoped the settlement would allow the community to move on. "Hopefully that part of history will fade -- I think it's really important there's an apology statement from the State Government," Councillor Lacey said. "I think it's really important a line is drawn in the sand and people move on." Law firm Levitt Robinson will hold two public meetings in May in north Queensland to explain the settlement to residents. The Federal Court will sit in Townsville in June to decide whether to approve the settlement. [GN] BARNES & NOBLE: Data Breach Class Action Ongoing ------------------------------------------------ Ellen Duffer, writing for Forbes.com, reports that back in September of 2012, Barnes & Noble discovered that credit card information had been stolen from sixty-three stores across the country. Six years later, a class action lawsuit attempting to procure damages resulting from the expenses related to the hack - -bank fees and credit monitoring services, for example -- is still ongoing. The case was dismissed (three times), but in March the 7th U.S. Circuit Court of Appeals in Chicago reversed the latest dismissal, giving plaintiffs the opportunity to pursue the case known as Dieffenbach et al v Barnes & Noble Inc. Barnes & Noble, which announced revenue decreases in March, and layoffs in February, cannot catch a break. [GN] BAXALTA US: Faces "Martinez" Wage-and-Hour Suit ----------------------------------------------- ELVIA MARTINEZ, individually, on a representative basis, and on behalf of all others similarly situated, the Plaintiff, v. BAXALTA US INC., a Delaware Corporation; and DOES 1 through 10, inclusive, the Defendant, Case No. BC705969 (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid wages under the California Labor Code. According to the complaint, during their employment with the Defendants, the Plaintiff and the Represented Employees were compensated on an hourly basis but also received additional compensation including, but not limited to, shift differentials. At all relevant times, the Defendant provided Plaintiff and the Represented Employees with inaccurate and incomplete wage statements that (1) failed to state the rates of pay for additional hourly compensation, such as shift differentials, and (2) failed to state the corresponding number of hours worked at each additional hourly rate. For example, the wage statement issued to Plaintiff with a check date of September 1, 2017, states that Plaintiff earned $44.79 for a shift differential but fails to state the proper rate or the number of hours worked at this shift differential rate. Accordingly, the wage statements that Defendants provided to Plaintiff and the Represented Employees fail to accurately state all applicable rates and hours worked, and Plaintiff and the Represented Employees were left with no way to determine if they were being paid properly for all hours worked, including additional compensation such as shift differentials. Baxalta US Inc. develops therapies in hematology, immunology, and oncology. The company is based in Deerfield, Illinois. Baxalta US Inc. operates as a subsidiary of Baxalta Incorporated.[BN] Attorneys for Plaintiff Elvia Martinez, individually, on a representative basis, and on behalf of all others similarly situated: Brian J. Mankin, Esq. Peter J. Carlson, Esq. FERNANDEZ & LAUBY LLP 4590 Allstate Drive Riverside, CA 92501 Telephone: (951) 320 1444 Facsimile: (951) 320 1445 E-mail: bjm@femandezlauby.com pjc@femandezlauby.com BELL: Ontario Contract Case Could Be Grounds for Class Action ------------------------------------------------------------- Erica Johnson, writing for CBC News, reports that a Toronto man is elated after a deputy judge ruled that a verbal contract he made with a Bell customer service agent trumps the contract the telecom later emailed him, noting prices could increase. In a judgment issued in March in a Toronto small claims court, Deputy Judge William C. De Lucia said that Bell's attempt to impose new terms after a verbal contract guaranteeing a monthly price for 24 months had been struck was "high-handed, arbitrary and unacceptable." It all started in November 2016, when David Ramsay called a Bell customer service representative to inquire about TV and internet services. The sales agent told Mr. Ramsay he could get Bell's Fibe TV and internet services "for $112.90 a month for 24 months" and then said he'd get an "email confirmation of everything that was just discussed." But when the email arrived, it said prices were actually "subject to change" and that Bell was planning to increase its price for internet service by $5, two months later. "I was stunned and appalled to find these buried terms in an email," says Mr. Ramsay. "I had a contract, and this ain't that contract." Mr. Ramsay called Bell to say the emailed contract was different from the verbal contract he'd made on the phone. In a move that was pivotal to his legal case, he requested a transcript of the call in which the customer service rep promised him a fixed price for two years. To request phone call transcript with Bell: email privacy@Bell.ca "They kept saying, 'Everyone has to pay those price increases,'" says Mr. Ramsay. "'Everyone has to pay.'" Undeterred, Mr. Ramsay filed a complaint with the Commission for Complaints for Telecom-television Services (the CCTS), a moderator between customers and telecom providers. In a lengthy email exchange, a spokesperson for the CCTS insisted that Bell had the right to increase prices and since the telecom had notified Mr. Ramsay of this fact -- as well as an upcoming price increase -- it ruled that the telecom provider met its obligations and no further investigation was warranted. The CCTS closed Mr. Ramsay's file. "I couldn't believe it," says Mr. Ramsay. "They just refused to consider my argument that I had a verbal contract. I even sent them a link to that section of the law, which they ignored." 'There's a principle at stake here' Mr. Ramsay had consulted a couple of lawyer friends, who told him they thought he was on the right track, that a verbal agreement was binding. "Even though the dollar amount was small," says Mr. Ramsay, "I got on my white horse and thought, 'There's a principle at stake here. Let's take them to small claims court and see what happens.'" Industry-wide problem Mr. Ramsay also figured he wasn't the only one who had the same concerns about Bell's pricing, in part because of stories he'd seen by Go Public and other media reports. Go Public has received over 100 similar complaints from customers who say Bell sales agents promised them a guaranteed monthly price, only to receive an emailed contract where it said prices could go up. In a joint Go Public/Marketplace investigation earlier this year, sales agents for Bell were repeatedly caught on hidden camera falsely promising customers that prices for TV, internet and home phone deals would not change for 24 months. Customers from other telecoms -- such as Rogers and Telus -- have written to say they, too, were promised a price by a sales rep only to receive an email mentioning that prices could change. According to a recent report from the CCTS, between August 2017 and January 2018 the number 1 complaint it received -- from almost 2,000 customers -- was that telecom providers gave misleading information or did not disclose all contract terms. Bell sought confidentiality agreement Before they got to court, Bell offered Mr. Ramsay money to drop the case -- $300, roughly the amount Ramsay estimated the telecom would be over-billing him for two years. He declined. "I wanted a judge to rule on the merits of this case," he says. "And if I happened to win, I thought it'd be a useful case for others to know about." Three weeks before the court date, Bell contacted Mr. Ramsay again. He was offered $1,000 to settle, but was required to sign a confidentiality agreement. Again, Ramsay declined. "I thought the merits of the case were good," he says. "Not to get too self-righteous, but I thought it was a battle worth having. So I said, 'Onward, ho!'" Off to small claims court Representing himself, Mr. Ramsay appeared in a Toronto small claims court on March 19, armed with what he calls his "smoking gun" -- the transcript of his conversation with the Bell sales rep. He highlighted two specific comments by that agent -- one in which she told him "Your total cost for the 24 months will be $112.90 per month" and "You're going to get an email confirmation of everything that was just discussed." Bell stuck to its argument that it had emailed contract details shortly after Mr. Ramsay's call, so the contents of that email were what should be binding. It also said the customer service agent Mr. Ramsay spoke to did not know about a planned price increase, which is why that wasn't mentioned, and claimed that, because Mr. Ramsay had continued with Bell's service, he was essentially agreeing to the telecom's contract terms. Judge De Lucia was not swayed by those arguments, saying in his reasons for judgment, "I find that Bell cannot unilaterally insert or impose new terms. Any imposition of new terms . . . is unenforceable." Judge De Lucia said Bell has the right to impose price changes, but not during a contract when a monthly price has been agreed upon. "To alter or change the terms, as Bell has requested," said Judge De Lucia, "would be grossly unfair, grossly prejudicial to the plaintiff and unconscionable." The deputy judge ordered Bell to pay Mr. Ramsay $1,110 to cover the cost of damages, his time, inconvenience and miscellaneous costs. Bell won't comment on judgment Go Public asked Bell for an on-camera interview, but the request was declined. It also refused to comment on the deputy judge's findings, and would not address complaints by other customers who say they were not [verbally] told prices were subject to change when they purchased services. In an email, Bell's senior manager of media relations admitted the call centre rep did not tell Ramsay that prices were subject to change and said Bell had "informed the customer service team involved and they are using it as a coaching opportunity." The Bell spokesperson also said the company had offered to cancel Ramsay's contract without penalty. Mr. Ramsay told Go Public that he didn't cancel, because he wanted the services at the price he had [verbally] negotiated. CCTS changes tune In an apparent turnaround, when Go Public contacted the CCTS to discuss Mr. Ramsay's victory, commissioner Howard Maker said the organization believes an oral contract is binding. "If a customer calls a service provider on the phone and they make a deal for a package of services for a fixed price, that's a deal," said Maker. It's also the opposite of what the CCTS employee handling Mr. Ramsay's case determined. "We are human," said Mr. Maker. "So did we make an error? Maybe . . . we'll do our analysis . . . and we'll take appropriate steps." Mr. Ramsay wants the CCTS to re-open similar cases where staff erroneously told customers they had to pay price increases when a telecom sales rep didn't inform them of those changes before locking them into a contract. "I'm sure they have hundreds of cases just like mine," says Mr. Ramsay. "So I think it's incumbent on the CCTS to take notice of this and review a bunch of those cases." Grounds for class action Meanwhile, an expert on contract law says he foresees a lot of consumer interest in this "David vs. Goliath" case. "It should really make consumers feel very confident," says Anthony Daimsis, a contract law professor at the University of Ottawa. "Should they choose to all get together, instead of having to deal with these claims one at a time, they could probably make a very good case for one big class action." Even though the case was heard in small claims court, Mr. Daimsis says the judgment was "persuasive" and likely how a higher court would rule. Mr. Daimsis considers the judgment a warning to all telecom providers. "What it should signal to other outfits that are operating this way, is that this is not the way Canadian courts will accept how larger parties act with consumers." [GN] BIGLARI HOLDINGS: Faces Class Action Over Restructuring ------------------------------------------------------- Greg Andrews, writing for Shares of Steak n Shake's parent company plunged 20 percent on April 27 after shareholders approved a controversial plan to create two classes of stock--a move that strengthens CEO Sardar Biglari's grip on the company. The outcome of the April 26 Biglari Holdings Inc. vote was a foregone conclusion because the 40-year-old entrepreneur controls 55 percent of the shares. Hours after the vote, Standard & Poor's disclosed that because of the dual-class structure, Biglari Holdings shares were "were no longer appropriate for continued inclusion" in the SmallCap 600 index and would be removed. The change will spur fund managers whose holdings are tied to the index to unload their Biglari Holdings shares. On April 27, shares tumbled $84.88 to close at $338.40, wiping out $178 million in market value. The restructuring arms Sardar Biglari with a new class of shares with no voting power that he can use as currency in acquisitions without diluting his voting power. Shareholders would receive one non-voting share and one-tenth of a voting share for each existing share. Sardar Biglari's critics have sharply criticized the restructuring, and shareholders have filed two suits in Hamilton County charging unjust enrichment and breaches of fiduciary duty. A lawsuit filed in late January by a client of the Indianapolis law firm Price Waicukauski Joven & Catlin LLC put it bluntly: "This class action challenges a self-interested scheme to reorganize Biglari Holdings' corporate structure for the express purpose of ensuring S. Biglari's control over the company . . . in perpetuity." The suits initially sought an injunction blocking the shareholder vote. Attorneys for the plaintiffs dropped that motion after the company said the restructuring could be unwound if the court ultimately sides with the plaintiffs, according to the San Antonio Express-News. In addition to owning Indianapolis-based Steak n Shake, San Antonio-based Biglari Holdings owns an insurance company, the men's magazine Maxim, Western Sizzlin, and a 20-percent stake in Cracker Barrel. Sardar Biglari gained control of Steak n Shake a decade ago, turning around the struggling chain by implementing a value-pricing strategy that translated into 29 straight quarters of same-store sales increases before hitting a rough stretch in 2016 that continues today. Along the way, he has stirred up plenty of controversy. Several investor lawsuits bashed a 2013 deal under which Sardar Biglari licensed the "Biglari" name to the company for 20 years. Biglari won't receive royalties if he remains atop the company, but if it were sold, or if he were forced out for anything but malfeasance, he'd receive 2.5 percent of sales for five years--a sum that could surpass $100 million. Since May 2009, Biglari Holdings shares have performed roughly in line with the S&P 500, according to Jonathan Heller, president of Pennsylvania-based KEJ Financial Advisors and a columnist on TheStreet.com. But he noted in a column that the stock rocketed 175 percent higher in 2009. Since 2010, Biglari Holdings shares have risen by about 50 percent, well below the S&P 500's 139 percent increase. "While the company has grown assets and book value significantly over the years, the share price has not followed, at least in recent years," Mr. Heller wrote. "Part of that, in my view is due to a complicated structure [and] distrust of management." [GN] BIGLARI HOLDINGS: Shareholder Suit Remanded to Ind. Superior Ct. ---------------------------------------------------------------- Magistrate Judge Tim A. Baker of the United States District Court for the Southern District of Indiana, Indianapolis Division, issued a Report and Recommendation recommending that the District Court grant Plaintiff's Motion to Remand the Action in the case captioned JOSEPH HIPPS, Plaintiff, v. BIGLARI HOLDINGS, INC., SARDAR BIGLARI, PHILIP L. COOLEY, KENNETH R. COOPER, JAMES P. MASTRIAN, RUTH J. PERSON, Defendants, No. 1:18-cv-00349-TWP-TAB (S.D. Ind.), to the Hamilton Superior Court. Hipps filed a shareholder class action in Hamilton Superior Court alleging the Individual Defendants breached their fiduciary duties as members of Biglari Holdings' board of directors in connection with a pending reclassification of Biglari Holdings' capital structure. Hipps alleges that if the vote is allowed to take place, the reclassification will be approved because Sardar Biglari is the controlling shareholder. The removal is based on the Court's diversity jurisdiction, and there is no dispute that there is complete diversity. The Court finds that the Defendants' argument that Biglari Holdings is a nominal defendant is unconvincing. Though the forum defendant rule is not triggered by the citizenship of a nominal party, Biglari Holdings is not a nominal defendant and its citizenship cannot be ignored. A defendant is nominal when his relation to the suit is merely incidental and it is of no moment to him whether the one or the other side in the controversy succeeds. If Hipps prevails in this action, Biglari Holdings could be enjoined from taking an action that it otherwise would have taken. Thus, which side wins in this dispute clearly matters to Biglari Holdings, and it is not a mere nominal party. Contrary to the Defendants' position, these cases show that the inquiry does not stop at whether the defendant faces liability, but continues on to what interest the defendant has in the litigation. Biglari Holdings has an interest in continuing to operate as it sees fit, and if Hipps were to succeed in this litigation, that ability would be enjoined. Therefore, Biglari Holdings is not a nominal defendant, and remand is appropriate. Hipps's motion to remand should be granted to the extent that it seeks to remand this case to Hamilton Superior Court. A full-text copy of the Magistrate Judge's March 26, 2018 Report and Recommendation is available at https://tinyurl.com/y77e747l from Leagle.com. JOSEPH HIPPS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Brad A. Catlin -- bcatlin@price-law.com -- PRICE WAICUKAUSKI JOVEN & CAITLIN, LLC, Christopher M. Windover -- mwindover@ktmc.com -- KESSLER TOPAZ MELTER & CHECK, LLP, pro hac vice, David F.E. Tejtel -- jfriedman@fotpllc.com -- FRIEDMAN OSTER & TEJTEL PLLC, pro hac vice, Eric L. Zagar -- ezagar@sbtklaw.com -- SCHIFFRIN & BARROWAY, LLP, pro hac vice, J. Daniel Albert -- dalbert@ktmc.com -- KESSLER TOPAZ MELTER & CHECK, LLP, pro hac vice, Jeremy Friedman -- jfriedman@fotpllc.com -- FRIEDMAN OSTER & TEJTEL PLLC, pro hac vice, Justin O. Reliford -- jreliford@ktmc.com -- KESSLER TOPAZ MELTER & CHECK, LLP, pro hac vice & Spencer Oster, FRIEDMAN OSTER & TEJTEL PLLC, pro hac vice. BIGLARI HOLDINGS, INC., SARDAR BIGLARI, PHILIP L. COOLEY, KENNETH R. COOPER, JAMES P. MASTRIAN & RUTH J. PERSON, Defendants, represented by Christopher J. Clark -- chris.clark@lw.com -- LATHAM & WATKINS LLP, pro hac vice, J. Christian Word -- christian.word@lw.com -- LATHAM & WATKINS, LLP, pro hac vice, Michael E. Bern -- michael.bern@lw.com -- LATHAM & WATKINS LLP, pro hac vice, Scott Stuart Morrisson -- smorrisson@kdlegal.com -- KRIEG DEVAULT LLP & William J. Barkimer -- wbarkimer@kdlegal.com,- KRIEG DEVAULT LLP. BITGRAIL: Files Bankruptcy Petition in Italy Amid Litigation ------------------------------------------------------------ Oladapo Olagoke, writing for Cryptona, reports that a representative of BonelliErede, a law firm based in Italy, made an announcement on reddit on April 27 that the law firm, which is presently representing victims of the BitGrail hack, has filed a petition with an Italian court to pronounce BitGrail bankrupt under article 6 of Italian Bankruptcy Law. The move by the law firm is the latest development in a war of words and lawyers that took place between Nano Foundation and the founder of BitGrail, Francesco Firano ever since the cryptocurrency exchange reported losing 17 million Nano (XRB) tokens -- which worth about $187 million as at that time, but $124 million currently. During an interview, Francesco said the theft took place on 19th January, though the news was first reported on the 8th February. BitGrailVictimsGroup published a post on Medium stating that BonelliErede is filing the bankruptcy petition on behalf of a BitGrail creditor, Espen Enger, who is representing more than 3000 victims presently. Majority of the victims reported to Espen that they "prefer an immediate accounting of BitGrail's assets in bankruptcy," having the fear that their assets may be further depleted: "In filing for a declaration of bankruptcy, a decision has been made to trust the Italian legal system to resolve the conflict. We are confident that the Italian authorities are best equipped to require Mr. Firano to disclose the facts of what occurred [. . .] [We] seek an equitable distribution of the assets rather than to permit private resolutions in which some victims might profit over others." Nano developing team, last February, posted an accusation that Francesco had asked for the modification of Nano's ledger "in order to cover his losses," as well as purportedly "misleading" the crypto community as regards Nano's solvency. Francesco replied that the fault does not originate from BitGrail, but from Nano's "totally unreliable" software, pointing to timestamp irregularities on the Nanode block explorer. In March, BitGrail made a promise to reimburse its victims, offering to cover 80% of the losses by issuing its own newly created token, BitGrail Shares (BGS), with the remaining 20% in Nano. However, the qualification was that the victims of the hack would have to sign an agreement to decline any legal action taken against BitGrail. Nonetheless, the legal story exploded in April, when a Unites States class action litigation demanded that the Nano Core Team hard-fork the Nano's protocol so as to reimburse victims. However, Nano, since then, has chosen to sponsor a legal fund to provide all victims of the BitGrail hack with legal representation, in collaboration with BonelliErede and Enger. According to a Twitter poll taken by Francesco himself on the 28th February, about 79% of the 7,610 respondents on Twitter would rather see BitGrail file bankruptcy than reopened. [GN] CAESARS ENTERPRISE: Arwine-Lucas Moves to Certify Four Classes -------------------------------------------------------------- The Plaintiffs in the lawsuit entitled JENNIFER M. ARWINE-LUCAS, and KEVIN L. LUCAS, both individually, and on behalf of all others similarly situated v. CAESARS ENTERPRISE SERVICES, LLC, et al., Case No. 4:17-cv-00451-HFS (W.D. Mo.), ask the Court to certify four classes: (1) Miscalculated Regular Rate of Pay for Tipped Employees FLSA Collective: All tipped employees who were paid a direct hourly wage less than $7.25 per hour and for whom a tip credit was claimed and who held any of the following positions at the following casinos from three years prior to the filing of the Complaint until June 30, 2017: * Harrah's Joliet - Beverage Server, Waitperson, Poker Dealer, Slot, Attendant/Host, Valet, Server; * Harrah's Ak-Chin - Beverage, Server, Bingo Staff, Dealer, Stocker, Waitperson, Poker, Dealer, Cleaner; * Horseshoe Council Bluffs - Bartender, Beverage Server, Dealer, Valet, Valet Lead, Waitperson, Poker Dealer, Food Server, Server Assistant, Dealer, Tournament; * Harrah's Council Bluffs - Bartender, Beverage Server, Dealer, Valet, Valet Lead, Waitperson; * Harrah's North Kansas City - Bartender, Beverage, Server, Dealer, Valet, Waitperson, Poker Dealer; * Harrah's Gulf Coast - Dealer, Food Server Tip, Compliance, Valet Runner; * Tunica Roadhouse - Dealer; * Horseshoe Tunica - Dealer, Poker Dealer, Bell Person; and * Harrah's Philadelphia - Poker Dealer; (2) Failure to Provide Adequate Tip Credit Notice FLSA Collective: All hourly, non-exempt tipped employees who were paid a direct hourly wage that was less than $7.25 per hour and for whom a tip credit was claimed and who worked at any of the following casinos from three years prior to the filing of the Complaint until September 30, 2017: * Harrah's Arizona Corporation, Bally's Atlantic City, Bluegrass Downs, Biloxi Hammond LLC, Caesars Atlantic City, Horseshoe Council Bluffs/MAC, Chester Casino & Racetrack, Harrah's Council Bluffs, Harrah's Gulf Coast, Harrah's Atlantic City, Harrah's New Orleans, Harrah's Joliet Casino, Harrah's Metropolis Casino, Harrah's North Kansas City, Tunica Roadhouse Hotel & Casino, Louisiana Downs, Horseshoe Baltimore, Horseshoe Bossier City, Horseshoe Indiana, Horseshoe Hammond, and/or Horseshoe Tunica; (3) Nationwide Timeclock Rounding Policy FLSA Collective: All hourly non-exempt employees who clocked-in and clocked-out using the TimeWorks timekeeping system at any casino property to which Caesars Enterprise Services, LLC provided timekeeping services from three years prior to the filing of the Complaint to the present; and (4) Harrah's North Kansas City Unjust Enrichment/Breach of Contract Class: All hourly non-exempt employees who worked at Harrah's North Kansas City at any time from five years prior to the filing of the Complaint to the present who clocked-in and clocked-out using the TimeWorks timekeeping system. The Plaintiffs also ask the Court to appoint them as class representatives and to appoint their counsel as class counsel. They further ask the Court to order the Defendants to produce necessary information for each member of each class, and to set a deadline by which the Plaintiffs shall file a motion to approve Class Notice. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Wt29B8Np The Plaintiffs are represented by: George A. Hanson, Esq. Alexander T. Ricke, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: hanson@stuevesiegel.com ricke@stuevesiegel.com - and - Ryan L. McClelland, Esq. MCCLELLAND LAW FIRM, A PROFESSIONAL CORPORATION The Flagship Building 200 Westwoods Drive Liberty, MO 64068-1170 Telephone: (816) 781-0002 Facsimile: (816) 781-1984 E-mail: ryan@mcclellandlawfirm.com CANADA: Sixties Scoop Survivors Object to Class Action Settlement ----------------------------------------------------------------- David P. Ball, writing for Toronto Star, reports that B.C. survivors of the Sixties Scoop, Canada's mass removal of Indigenous children from their homes into white families over several decades, say a proposed lawsuit settlement is far too little to bring justice -- and leaves out too many of those ripped from their cultures. The class action payout to First Nations and Inuit people who lost their culture through the wave of child seizures is up for approval, with hearings on May 10 and 29. But April 30 saw some survivors scrambling to meet the deadline to legally object on the record to the payout, saying the $750 million Canada offered is miniscule when divided up among a still-unknown number of survivors and legal firms involved. "It's unfair," said Vancouver radio producer Gunargie, 52, of Kwakwaka'wakw nation. She told StarMetro she was adopted out of her family at age 7, which she said was the result of her and her mother's time in residential school. And although she was placed on a beautiful farm in Mission, B.C. with a non-Indigenous family "who loved and smothered" her in hopes of giving her a "better life," she said the experience was also isolating and led to times to "self-destruction" and violence as a teen. "I as a victim -- a class action member -- am expected to settle for $50,000 at the most," she said. "But I don't even know what the final compensation figure will be until they've counted all of the claimants. "I could end up with $25,000 or only $5 for the loss of my culture and language and traditions, my connection to the history of my people and ancestors, and therefore to my daughters' lineage too." According to a website by the lawyers representing the class, any First Nations or Inuit person removed from their home between 1951 and 1991 is eligible to become a claimant if they "suffered the loss of . . . cultural identity as a result." But the lawyers said that although the final payout "depends on how many claimants actually come forward," they predicted up to $50,000 per claimant, and "nothing less than $25,000." The case was allowed to proceed by an Ontario judge in 2013, against the objections of government. Hearings to approve the settlement are planned for May 10 in Saskatoon and May 29 in Toronto, according to the legal hotline for survivors of the Sixties Scoop, which also provided information on how to opt out of the claim. Ernie Crey, Chief of Cheam First Nation, is another survivor of the period in Canadian history. In 1963, he was arrested for stealing candy and food and placed in a delinquent boys school he described as a "prison for children," then spent until age 20 in foster homes. "Let's not forget some of these children also spent time in jails for children like I did," Mr. Crey told StarMetro. "The Sixties Scoop wasn't just foster care and adoptive homes. "On the whole, my time in care probably was a lot less traumatic than many, many other children. Many of those much younger than I was were actually exploited . . . It's doubtful they knew anything about being an Indigenous child -- they just knew they grew up in a world that looked with scorn upon them." Mr. Crey is marking 20 years since he co-authored a book on the Sixties Scoop, Stolen from Our Embrace. He said although he is not part of the class action lawsuit, he sympathizes with survivors "eager to get it resolved," the government's settlement offer is "incredibly disappointing" in excluding MÇtis and non-status Indians taken from their homes as kids. "There's a large group of people who say, 'This isn't enough for what we endured,' and even more than that who have been excluded. That's the major shortcoming of the 'resolution' as it now stands . . . This is only going to rebound back on the government." Collectiva, the legal coalition behind the class action, said it understands some claimants' anger at the amount offered. "We know that justice is imperfect and that $50,000 does not make up for the harm and suffering you have experienced," the firms' website told survivors. "No amount of money ever could. According to our legal experts, it is very likely more than could have been won in court." But the website touted a $50-million charitable foundation to help "ensure this never happens again," and that nothing in the agreement would stop a victim from suing their province for "psychological or physical abuse experienced as a result" of the Sixties Scoop, nor for MÇtis to launch their own lawsuit. In announcing the settlement deal last October, federal Crown- Indigenous Relations Minister Carolyn Bennett tearfully told reporters the Sixties Scoop was a "dark and painful chapter" of Canada's history, and that "language and culture, apology, healing . . . are essential elements to begin to right the wrong." According to lawyer Jai Singh -- jsingh@watsongoepel.com -- with Watson Goepel law firm representing some claimants, the settlement amount is one area he's heard many concerns. "A lot of people do want that compensation because right now, right or wrong, it's the option given," he told StarMetro. "You're dealing with underprivileged people . . . and you give them the option of a payment, how fair is that payment That's a big question." Although he was not permitted to comment further on the details of the settlement, he's preparing his submission for the May 10 hearing before a judge and expects the criticisms will emerge in the courtroom then, both from lawyers and claimants invited to weigh in. Because the settlement has been agreed upon by both claimants and government, in the absence of an adversarial court process, he said, at this point objections are the only way for claimants to voice their concerns on the legal record. But he warned that "ultimately there have been very few cases where settlements have been set aside" at this stage. Perhaps most importantly, he argued, the ongoing apprehensions of Indigenous children -- long after the decades covered by the class action -- are one of the Sixties Scoop's worst legacies. "From what I've heard, for a lot of the people, it's never been about money but the fact that they've lost a family," Mr. Singh said. "Then they're losing their children to the system today because of the fact they're Sixties Scoop victims. "Their history is being used against them." [GN] CANADA: Class Action May Reach Resolution in Shorter Timeline ------------------------------------------------------------- Marg. Bruineman, writing for Law Times, reports that a $1.8- billion class action application launched in January accuses the federal government of segregating portions of Canada's Indigenous population in "Indian hospitals" across the country between 1945 and 1981, where people were allegedly abused, confined and mistreated. With a new class action developing, lawyers say they expect the hospitals case may reach resolution in a shorter timeline than previous cases involving Indigenous Canadians. "It's a case . . . I think is of great importance, not only that it be brought forward for the sake of the class but also for the sake of Canada becoming aware of this chapter in history," says Jonathan Ptak -- jptak@kmlaw.ca -- a partner at Koskie Minsky LLP in Toronto, who is acting for the plaintiffs. The hospitals class action follows a settlement with survivors of the Sixties Scoop, which was announced in October and is worth about $800 million. That case relates to an estimated 20,000 First Nations and Inuit children who were removed from their homes, losing their cultural identities. Earlier, the Indian Residential Schools Settlement Agreement brought to an end a class action involving about 86,000 Indigenous children enrolled in the Canadian residential schools system. It went into effect in 2007 and was the largest class action settlement in Canadian history to that point. In this latest case, the representative plaintiff, Anne Cecile Hardy, accuses the Attorney General of Canada of establishing 29 "Indian hospitals" across the country, including segregating segments of the country's Indigenous population and keeping them in substandard facilities where they were severely mistreated. The statement of claim, which was filed with the Federal Court of Canada in January, alleges that the Indigenous patients were separated from their families, friends and communities and taken to "dilapidated" facilities that were converted into hospitals. The claim alleges that, at the "overcrowded, poorly staffed and unsanitary facilities," they were physically and sexually assaulted, restrained in their beds and force-fed their vomit. The proposed class action accuses the government of being negligent and breaching its fiduciary duties owed to Indigenous people, resulting in enormous harm. The court must first certify the claim as a class action before it can proceed. In an emailed statement, James Fitz-Morris, a spokesman for Indigenous and Northern Affairs Canada, said Canada is committed to righting historical wrongs committed against Indigenous people and that the federal government is working to resolve the matter out of court, as it did with the Sixties Scoop survivors' class action. Ottawa-based Michel Nolet -- michel.nolet@nelligan.ca -- an associate with Nelligan O'Brien Payne LLP, a member of its Indigenous Law practice group and a Montreal-area Kahnawake Mohawk, says it's quite possible that this latest case will follow a path to resolution, as have the previous class actions. Given the federal government's stated desire to resolve the case out of court and its experience with the previous cases, he believes it may be resolved more quickly. "There's an opportunity here to avoid going all the way through with a class action and settling it," says Mr. Nolet. "I definitely think the governments are more open to engage in settlement." Mr. Nolet says that, in this case, he does not anticipate the case proceeding for "years and years and years." In the Indian Residential Schools Settlement Agreement, the government acknowledged the abuse suffered by formal residential schools students. Carolyn Bennett, minister of Crown-Indigenous Relations and Northern Affairs, recently referred to it as "tragic and unacceptable." The residential schools case signifies a change in government approach and may have set the tone for future class actions, including the Sixties Scoop class action, Nolet says. He says the purpose of tort law is to recognize when people are harmed and ought to be compensated, as well as to hold wrongdoers accountable for their actions. Without the push of class actions, there would be little incentive for the government to negotiate, says Tom McMahon, who served as general legal counsel for the Truth and Reconciliation Commission and now spends his time in retirement writing research papers related to residential schools at his home in Winnipeg. The successes of the previous class actions involving Indigenous people provide more incentive for the government to negotiate successive cases, Mr. McMahon says. Society's delay in reconciliation might well be reflected in tort law, he says. "The fact that we have class action, the fact that Indigenous people are capable of winning class action matters in court, the fact that the government is willing to negotiate settlement -- these are all tremendously positive things for our society," he says. McMahon credits the legal system for ushering in so many changes related to Indigenous people. More than 4,000 court cases related to residential schools, including the class actions, were filed representing thousands of plaintiffs. That has resulted in $5 billion in payments to residential schools survivors, he says. [GN] CENTER FOR ELDERS: Fails to Pay Overtime Wages, Musawwir Says ------------------------------------------------------------- MAHASIN MUSAWWIR, an individual, on her own behalf and on behalf of all others similarly situated, the Plaintiffs, v. CENTER FOR ELDERS' INDEPENDENCE, a Domestic non-profit; and DOES 1-10, inclusive, the Defendants, Case No. RG18905207 (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid overtime wages under the California Labor Code. The Plaintiff was employed by Defendants as a full-time, non- exempt, hourly employee from approximately August 21, 2017 through February 2018. The Plaintiff was a Bus Driver and made around $18.05 an hour. The Plaintiff alleges that all current and former CENTER employees subject to the same illegal wage and hour practices are class members. The Plaintiff alleges that the CENTER has had a consistent policy and/or practice of, among other things: (i) regularly staffing shifts in a way that did not allow Plaintiff and members of the putative class to take or timely take adequate off-duty meal periods and/or rest periods mandated by law; (ii) failing to pay Plaintiff and the members of the putative class the premium compensation mandated by California Labor, take untimely meal periods and/or rest periods; (iii) failing to pay Plaintiff and the members of the putative class overtime when they worked more than eight hours in a day and instead would only pay overtime when an employee worked more than 40 hours in a workweek; (iv) failing to provide Plaintiff and the members of the putative class with accurate wage statements based upon the meal/rest break and overtime violations; and (v) failing to pay Plaintiff and the members of the putative class with all wages owed at the time of compensation.[BN] The Plaintiff is represented by: Marcus J. Bradley, Esq. Kiley L. Grombacher, Esq. Taylor L. Emerson, Esq. BRADLEY/GROMBACHER, LLP 2815 Townsgate Rd Suite 130 Westlake Village, CA 91361 CHAMBER APPROVED: Morris Sues over Fax-Based Marketing Activities ----------------------------------------------------------------- JONATHAN S. MORRIS, P.A. and BROWARD PSYCHOLOGY, P.A., individually and on behalf of all others similarly situated, the Plaintiffs, v. CHAMBER APPROVED, INC., BROWARD COUNTY CHAMBER OF COMMERCE, INC., MIAMI-DADE COUNTY CHAMBER OF COMMERCE, INC., and SOUTH FLORIDA CHAMBER OF COMMERCE, INC., Florida corporations, the Defendants Case No. 0:18-cv-61105-DPG (S.D. Fla., May 16, 2018), seeks to require the Defendants to cease all unauthorized fax-based marketing activities. This case challenges Defendants' practice of collectively sending unsolicited faxes to Florida businesses. The faxes advertise business conferences and expositions hosted by Defendants that include business trade shows, motivational seminars, educational workshops, VIP networking, and government workshops. Among other things, recipients of the faxes are solicited to purchase exhibitor space at or admission to the business trade shows, marketing services, and memberships to Defendants' organizations. The Defendants collectively sent the faxes at issue to Plaintiffs and the Class despite: (i) having no established business relationship with them; (ii) never receiving the recipients' consent to send them such faxes; and (iii) that none of the faxes sent contained requisite opt-out notices. As such, Defendants' fax advertisements violated the Telephone Consumer Protection Act, 47 U.S.C., and caused Plaintiffs and putative members of the Class to suffer actual harm, including the aggravation and nuisance of receiving such faxes, the loss of use of their fax machines during the receipt of such faxes, and increased labor expenses.[BN] Counsel for Plaintiffs and the Class: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469 5881 E-mail: kaufman@kaufmanpa.com CHEMOURS CO: Loses Bid to Dismiss "Girardot" DWPCA Suit ------------------------------------------------------- The Superior Court of Delaware denied Defendant's Motion to Dismiss the case captioned MARK GIRARDOT, GERHARD R. WITTREICH, and PETER BUTLER, individually and on behalf of others similarly situated, Plaintiffs, v. THE CHEMOURS COMPANY, Defendant, C.A. No. N17C-10-148 MMJ (Del. Super.). Chemours seeks dismissal only of the alleged Delaware Wage Payment and Collection Act (DWPCA) violation. The Plaintiffs claim that Chemours induced them to accept a severance package, which prevented them from accepting a superior severance package Chemours offered later. The Plaintiffs allege five counts: fraud, breach of covenant of good faith and fair dealing, promissory estoppel, unjust enrichment, and a violation of the (DWPCA). Separation Benefits Are Recoverable Under the DWPCA The civil enforcement section of the DWPCA, Section 1113, allows employees to recover unpaid wages and liquidated damages. Section 1101 defines wages as compensation for labor or services rendered by an employee, whether the amount is fixed or determined on a time, task, piece, commission or other basis of calculation. Chemours argues that the severance Plaintiffs seek does not fit this definition because the severance was not compensation for services rendered, but only a benefit offered as a result of termination. In this case, Chemours mistakenly relies only on Green Giant's preliminary conclusion that Section 1101's definition of wages does not include severance pay, but ignores the primary holding in the case that Section 1113 allows for recovery of severance pay. Section 8111 of Title 10 of the Delaware Code states that any claim for wages for work or any other benefits arising from such work expires 1 year from the accruing of the cause of action on which such action is based. This one-year statute of limitations applies to DWPCA claims. The Plaintiffs filed this action on October 11, 2017. Whether the Plaintiffs' claim is barred depends on when the DWPCA claim accrued. The Plaintiffs are seeking compensation for a severance package announced on December 1, 2015 that would have paid out over a 12- month period. Had the Plaintiffs been selected to participate in the package the same day it was announced, payments would have been required to be made as late as December 1, 2016. By the plain language of Section 1109, each claim accrued 30 days after each payment was required to be made. Some of these payments accrued as late as December 31, 2016. The Plaintiffs brought their claim on October 11, 2017, within one year of the day that some of the payments were due. The Court holds that the DWPCA claims are not barred by the statute of limitations. A full-text copy of the Superior Court's March 26, 2018 Opinion is available at https://tinyurl.com/ycaqvsg8 from Leagle.com. Robert K. Beste, Esq. -- rbeste@cohenseglias.com -- Jonathan Landesman -- jlandesman@cohenseglias.com -- (Argued), Cohen Seglias Pallas Greenhall & Furman, P.C., Attorneys for Plaintiffs. Stephanie E. O'Byrne, Esq. -- sobyrne@potteranderson.com -- (Argued), Kathleen Furey McDonough, Esq. -- kmcdonough@potteranderson.com -- Potter Anderson & Corroon LLP, Attorneys for Defendant The Chemours Company. CITIGROUP INC: Market Makers Targeted in VIX Manipulation Lawsuit ----------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that a trader has filed an antitrust lawsuit accusing seven market makers, including Citigroup Inc and Citadel Securities LLC, of conspiring to manipulate Wall Street's main gauge of future stock market volatility, the VIX, at investors' expense. The complaint filed on April 27 also accused Cboe Exchange Inc , which administers the VIX, of taking a "laissez faire" approach that allowed the manipulation to flourish, out of "greed" for higher transaction fees and revenue. William Siegel, a trader in VIX futures and options, filed his proposed class-action lawsuit in Chicago on behalf of investors in VIX derivatives since Jan. 1, 2008. Cboe and Citadel did not immediately respond to requests for comment. Citigroup declined to comment. The VIX derives its price from S&P 500 options, and some investors have complained about suspected rigging to make positions more profitable when settled. In February, an anonymous whistleblower sent a letter to the U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission alleging VIX manipulation. Cboe called the letter "replete with inaccurate statements, misconceptions and factual errors," but Siegel said others like former SEC Chairman Harvey Pitt and former CFTC Commissioner Bart Chilton have suggested that rigging was possible. The lawsuit said manipulation has caused "billions of dollars in losses" for investors in VIX instruments, and Cboe has taken "no effective action" to stop it. After trading between 10 and 20 for several months, the VIX soared above 50 on Feb. 6 amid a slump in U.S. stock prices. Traders betting on a stable or falling VIX suffered losses, and some investments indirectly linked to the gauge lost more than 80 percent of their value in one day. On April 23, Cboe told customers it is assessing possible steps to improve the VIX settlement process. Siegel is represented by the Hausfeld law firm, whose specialties include lawsuits over rigging in financial markets. The case is Siegel v Cboe Exchange Inc et al, U.S. District Court, Northern District of Illinois, No. 18-03021). [GN] CLEMENTS FLUIDS: "Laney" Suit Seeks Overtime Pay under FLSA ----------------------------------------------------------- DOUG LANEY, GARY MCANALLY AND CHRIS MORGAN Individually and on behalf of all others similarly situated, the Plaintiff, v. CLEMENTS FLUIDS, INC., CLEMENTS FLUIDS MANAGEMENT, LLC., CLEMENTS FLUIDS SOUTH TEXAS, LTD., AND CLEMENTS FLUIDS HENDERSON, LTD., the Defendants, Case No. 2:18-cv-00207-JRG (E.D. Tex., May 16, 2018), seeks to recover overtime pay, liquidated damages, attorneys' fees, and costs, pursuant to the Fair Labor Standards Act of 1938. According to the complaint, the Plaintiffs and the Potential Day Rate Class Members were (and are) paid on a day rate system. Specifically, Clements Fluids paid its Day Rate Workers a flat amount for each day worked without the proper overtime premium for all hours worked in excess of 40 in a workweek. Also, Clements Fluids paid (and continue to pay) the Potential Salaried Fluid Technician Class Members a salary without any payment of the proper overtime premium for all hours worked in excess of 40 in a workweek. Finally, Clements Fluids paid (and continues to pay) the Potential Hourly Fluid Technician/Operator Class Members a 'trip charge' which is not included in the calculation of the regular rate for purposes of paying overtime pay, which results in improperly calculated overtime wages. The Defendants provide drilling, completion and workover in Texas, Louisiana, New Mexico, Oklahoma and Arkansas.[BN] Attorneys In Charge For Plaintiffs And Potential Class Members: William S. Hommel, Jr., Esq. HOMMEL LAW FIRM 1404 Rice Road, Suite 200 Tyler, TX 75703 Telephone: (903) 596 7100 Facsimile: (469) 533 1618 E-mail: bhommel@hommelfirm.com CLEVELAND AVE: Court Denies Bid to Dismiss "Hogan" FLSA Suit ------------------------------------------------------------ The United States District Court for Southern District of Ohio, Eastern Division, denied Defendants Buckeye Association of Club Executives and The Owners' Coalition's (Sirens Defendants) Motion to Dismiss the case captioned JESSICA HOGAN, et al., Plaintiffs, v. CLEVELAND AVE RESTAURANT INC. d/b/a SIRENS, et al., Defendants, Case No. 2:15-CV-2883 (S.D. Ohio). The Sirens Defendants employed Plaintiff Jessica Hogan in various roles at different times, including as an exotic dancer, a bartender, a waitress, and a friction monitor, which is a security/monitoring function. Ms. Hogan alleges that the Sirens Defendants employed a number of unlawful pay practices, including charging her fees when she performed exotic dances for customers, charging her 10% on all customer tips left on credit cards, and requiring her to pay tips to non-tipped employees. BACE and OC's primary argument in their Motion to Dismiss is that the Plaintiffs cannot establish that BACE and OC are employers under the Fair Labor Standards Act or Ohio wage and hour laws. The Court finds that the Plaintiffs have set forth sufficient allegations that, if taken as true, show an agreement among BACE and OC and BACE-member clubs to employ the Lease Agreement and/or Tenant System. Indeed, they allege an actual agreement to use the Lease Agreement, that Sirens itself characterized as an industry agreement under oath. The Plaintiffs allege that there is an industry agreement among BACE-member clubs to employ and not deviate from the Lease Agreement and the Tenant System. The Plaintiffs allege that Defendants anti-competitive conduct has restrained or eliminated price competition resulting in the Plaintiffs being paid less than they would have been in the absence of the agreement. The Defendants contend that BACE and OC cannot be liable because the very authorities the Plaintiff relies on to show the 'dancer lease agreement' business model has been around for decades nullifies the argument that BACE and/or OC created the 'dancer lease agreement' business model. In other words, the Defendants argue that they cannot be liable because they were not the first group to ever conceive of the leasor/lessee model. But the Plaintiffs' allegations do not depend on whether or not BACE and OC created the model they need only show that they conspired with the clubs to come to an agreement to use the leases to fix-price and restrain competition. The Plaintiffs sufficiently allege so in the Amended Complaint, the Court said. The civil conspiracy claims are based on the wage and hour violations, which the Defendants do not argue did not occur. Instead, the Defendants argue that the civil conspiracy claim is clearly a cause of action under the FLSA, which involves the 'employer, and not the associations any employer' may be associated with. But the Plaintiffs' civil conspiracy claim is not brought under the FLSA, it is brought under Ohio tort law. The Defendants contend that FLSA claims and conspiracy claims whether civil conspiracy or antitrust or otherwise cannot coexist in a single complaint. The Defendants point to no legal authority for the proposition that trade associations cannot be liable in conspiracy claims premised on FLSA violations or antitrust violations, and the Supreme Court has held trade associations can be liable for antitrust violations, so their argument is not well taken. A full-text copy of the District Court's March 26, 2018 Opinion and Order is available at https://tinyurl.com/y99vdlnp from Leagle.com. Jessica Hogan, Plaintiff, represented by Andrew Biller -- abiller@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Andrew P. Kimble -- akimble@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Jennifer J. Morales -- jmorales@msdlegal.com -- Markovits, Stock & DeMarco, LLC, Paul M. De Marco -- pdemarco@msdlegal.com - - Markovits, Stock & DeMarco, LLC & Rachel S. Bloomekatz -- rachel@guptawessler.com -- Gupta Wessler PLLC. Dejha Valentine, Plaintiff, represented by Andrew Biller, Markovits, Stock & DeMarco, LLC &Andrew P. Kimble, Markovits, Stock & DeMarco, LLC. Cleveland Ave Restaurant, Inc., doing business as, Chad Sullivan, Francis Sharrak, Michael Sharrak, Dominick Alkammo & Jay Nelson, Defendants, represented by Edward W. Hastie, III, Hastie Law Office LLC. 1258 Grandview Ave. Suite B, Columbus, OH 43212. Buckeye Association of Club Executives, Defendant, represented by Anthony R. Cicero & Luke Lirot, Law Office of Luke Lirot, P.A., 2240 Belleair Rd Ste 190. Clearwater, FL 33764-1703, pro hac vice. COLONIAL PARKING: Abraha's Bid for Class Certification Denied ------------------------------------------------------------- The Hon. Colleen Kollar-Kotelly denied without prejudice the motion for class certification filed by the Plaintiffs in the lawsuit captioned Berthe Benyam Abraha, et al. v. Colonial Parking, Inc., et al., Case No. 1:16-cv-00680-CKK (D.D.C.). Judge Kollar-Kotelly also denied as moot Defendant FCE Benefit Administrators, Inc.'s Motion to Strike Evidence Submitted by Plaintiffs in Support of Plaintiffs' Motion for Class Certification. The parties were ordered to file a Joint Status Report by May 14, 2018, indicating whether the Plaintiffs shall take the opportunity to file a motion for leave to amend the Complaint, whether the Defendants intend to oppose that motion, and what briefing timeline the parties would propose. The parties' Joint Status Report also shall make any alternative proposal to amending the Complaint that would more efficiently resolve this action. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=UcQA7vAN CONVERGYS CORP: Wins Summary Judgment in "Dimery" FLSA Suit ----------------------------------------------------------- The United States District Court for the District of South Carolina, Florence Division, granted Defendant's Motion for Summary Judgment as to both Plaintiffs' Fair Labor Standard Act (FLSA) collective action and Rule 23 class claims in the case captioned TERRY DIMERY, individually, and on behalf of other similarly-situated individuals, Plaintiffs, v. CONVERGYS CORPORATION, and CONVERGYS CUSTOMER MANAGEMENT GROUP, INC., jointly and severally as, Defendants, Civil Action No. 4:17-CV- 00701-RBH (D.S.C.). The Plaintiffs allege that the Defendants failed to pay them, and all similarly situated employees, for their pre-shift time spent booting up their computers, logging into required computer networks and software applications, and reviewing work-related e- mails and other information at the start of their shift. Furthermore, the Plaintiffs allege that the Defendants failed to compensate them and other similarly situated employees for all mid-shift technical downtime incurred due to computer and other technical problems. The Plaintiffs further allege that the Defendants failed to pay the Plaintiffs and other similarly situated employees for post-shift time spent doing similar tasks. The Defendants first argue that, as a matter of law, the Plaintiffs waived their right to pursue a collective or class action against the Defendants, based upon the language in the employment application between the Defendants and the Plaintiffs, which constitutes an enforceable contract. The Court found that the Defendants have met their initial burden of establishing the existence of a contract in that they have provided the affidavits of Convergys employees who have attested that these documents relate to the respective employees. Once the Defendants provided the requisite evidentiary support to establish these agreements, it was incumbent upon the Plaintiff to provide something beyond mere allegations to refute this fact. The Plaintiffs have not filed anything in the record to suggest these documents contain false signatures, nor have the Plaintiffs supplemented their response to the motion or requested additional time to supplement the record. The Plaintiffs have not otherwise come forward with evidence, affidavit or otherwise, suggesting that the Plaintiffs did not sign the agreements in question. While the Plaintiffs make mention of the fact that they need additional time to investigate these documents, the Plaintiffs have not filed an affidavit or otherwise provided any evidence to refute the testimony on Ms. Castillo and Mr. Preston regarding the timing and veracity of the execution of these documents. Therefore, the Court believes it is appropriate to consider the merits of the summary judgment motion at this stage. The Defendants argue that as a matter of law, an individual may waive his or her right to bring or join a class action lawsuit. The Defendants have provided the affidavit of Greg Preston who avers that Plaintiff Dimery electronically signed his employment application with a unique electronic signature ID on November 7, 2015. The Plaintiffs assert that the right to participate in a collective action under Section 216(b) is a substantive right provided for by the FLSA that cannot normally be waived. The Plaintiffs further argue that the right to bring a collective action under the FLSA may only be waived in very narrow circumstances: either through an approved settlement or within the context of binding arbitration agreements. In reviewing the applicable case law, the Court finds that based on the current case law, including cases within the Fourth Circuit, the FLSA does not provide a substantive right to bring a collective action based upon a certain class, despite the fact that it permits employees to bring such actions. The Defendants also seek summary judgment as to the Plaintiffs' Rule 23 class action claims. In response, the Plaintiffs have not provided a response as to the invalidity of the waiver as it relates to class actions brought under Rule 23. Rule 23(a) states that, one or more members of a class may sue or be sued as representative parties provided certain requirements are met. The Plaintiffs have not indicated any reason for the Court not to find that, much like the applicability of the waiver as to the FLSA collective action, the waiver applies to its Rule 23 cause of action, as well. The Plaintiffs do not make an argument regarding the validity of the Rule 23 class waiver. They do not argue it violates any South Carolina law, or is otherwise unconscionable under South Carolina law. Clearly, the right to employ Rule 23 is a procedural right only. As such, it can be waived, the Court said. Accordingly, the Court granted the Defendants' Motion for Summary Judgment to the extent the Plaintiffs' seek to pursue their claims in a representative capacity as collective and/or class action claims, and those claims are dismissed with prejudice. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/yabrcreu from Leagle.com. Terry Dimery, individually and on behalf of other similarly- situated individuals, Plaintiff, represented by Benjamin A. Baroody BBaroody@Bellamylaw.com, Bellamy Rutenburg Copeland Epps Gravely and Bowers, Charles R. Ash, IV -- cash@sommerspc.com -- Sommers Schwartz PC, pro hac vice, Jason J. Thompson -- jthompson@sommerspc.com -- Sommers Schwartz PC, pro hac vice & Kevin J. Stoops -- kstoops@sommerspc.com -- Sommers Schwartz PC, pro hac vice. Convergys Corporation, jointly and severally & Convergys Customer Management Group Inc, jointly and severally, Defendants, represented by William L. Duda -- william.duda@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC, Lynda M. Hill -- lhill@fbtlaw.com -- Frost Brown Todd LLC, pro hac vice & Mekesha H. Montgomery, Frost Brown Todd LLC, The Pinnacle at Symphony Place, 150 3rd Avenue South, Suite 1900, Nashville, Tennessee 37201, pro hac vice. COSTCO WHOLESALE: Man Seeks Class Suit for Shortchanging Members ---------------------------------------------------------------- Elizabeth Alt, writing for St. Louis Record, reports that a man has filed a class action lawsuit against Costco Wholesale alleging that the mega-warehouse retailer illegally reimburses part of store memberships instead of the entire price as stated in company policy. The lawsuit filed on April 19 in the U.S. District Court for the Eastern District of Missouri requests a jury trial and claims unjust enrichment, violations of the Missouri Merchandising Practicing Act, and breach of contract against Costco, the second largest retailer in the world. "Defendant's actions are oppressive, unethical, and unscrupulous, and have caused substantial injury to plaintiff," according to lawyers for Scott Pearlstone, who claims in the lawsuit that after purchasing the more expensive of two membership options offered at Costco, he decided to cancel. Pearlstone states in the complaint that he reviewed Costco's "100 percent Risk-Free Guarantee" and was also told by an employee that he could cancel at any time and receive a full refund. Pearlstone says he purchased the "Executive" membership at the Costco location in Manchester. He alleges Costco instead refunded him the amount he paid reduced by the amount he had earned in the Costco rewards, amounting to less than what he originally paid for the membership, stating in the complaint that Costco is "unlawfully shortchanging consumers by withholding a portion of the money refunded on cancelled store memberships." Pearlstone claims there are hundreds if not thousands of people who have also experienced this deception by Costco, and requests to be certified as a class action. The complaint also states Costco is being unjustly enriched by retaining the money owed to customers. According to the complaint, "Defendant promised plaintiff and the other members of the class and subclass that they could cancel their executive memberships "at any time," after which they would receive a refund "in full" of the membership fees paid to defendant . . . defendant instead reduces the amount of a cancelling member's refund by the amount of Costco store credit earned as part of the executive membership's 2 percent reward program." The lawsuit seeks punitive damages, injunctive relief and other related costs. [GN] COVENTRY HEALTH: Court Denies Approval of $1.5MM Settlement ----------------------------------------------------------- The United States District Court for the Middle District of Florida, Orlando Division, denied the Joint Motion for Final Approval of Settlement in the case captioned MIA WILLIAMS, Plaintiff, v. COVENTRY HEALTH CARE OF FLORIDA, INC., COVENTRY HEALTH CARE, INC., AETNA LIFE INSURANCE COMPANY, AETNA INC. and AETNA MEDICAID ADMINISTRATORS, LLC, Defendants, Case No. 6:16-cv- 731-Orl-41TBS (M.D. Fla.). The Amended Complaint alleges that the Defendants violated the Fair Labor Standards Act (FLSA), by failing to pay certain employees required overtime pay. This case was conditionally certified as a collective action under the FLSA and the class was defined as "All Social Workers employed by Defendant in the State of Florida within the three-year period immediately preceding the filing of this case." The Revised Settlement Agreement provides that the Defendant will pay a total of $1,500,000.00. That amount is to be distributed as follows: $6,500.00 paid to five of the Plaintiffs for their services in participating in the litigation on behalf of the other Plaintiffs, $976,000.00 to Plaintiffs as payment for back wages and liquidated damages, $500,000.00 in attorneys' fees, and $17,500.00 for costs. The first issue raised by Judge Smith is whether the amount of attorneys' fees is reasonable. Judge Smith concluded that, despite the parties' argument to the contrary, the attorneys' fees were not separately negotiated. He concluded that the very fact that the amount of the attorneys' fee was contingent on the amount Plaintiffs recovered meant that the fees could not have been separately negotiated. This Court agrees with Judge Smith. Per the parties' own representation, the amount of attorneys' fees was directly dependent on the amount of Plaintiffs' recovery. This cannot be reconciled with the concept of separately negotiated. Plaintiffs appear to argue that because the percentage thirty percent was negotiated at the beginning of the litigation without Plaintiffs' counsel knowing what the ultimate recovery was going to be, it was separately negotiated. The attorneys' fee cannot be separately negotiated if it is derived from the amount of Plaintiffs' recovery. Because the fee was not separately negotiated, the Court must conduct a reasonableness analysis. Judge Smith concluded that he could not do so because Plaintiffs' counsel did not provide information upon which he could conduct a lodestar analysis. The parties argue that a lodestar analysis is not necessary and indeed inappropriate because this is a common fund case. This same logic, however, cannot be applied in the FLSA collective action context. Unlike most other types of claims, FLSA rights cannot be abridged by contract or otherwise waived because this would nullify the purposes of the statute and thwart the legislative policies it was designed to effectuate. So, if a plaintiff is owed back wages under the FLSA, he or she is entitled to be paid those wages without reduction. And when a plaintiff is awarded back wages under the FLSA, he or she is also entitled to recoup reasonable attorneys' fees and costs from the defendant in addition to damages. When these provisions are viewed together, it is clear that the percentage of the common fund analysis is not proper in FLSA cases. Because the percentage of the common fund analysis is inappropriate here, the Court must determine what is necessary to conduct a reasonableness analysis of the attorneys' fee award. In these circumstances, the lodestar method combined with the Court's common sense and expertise must be employed. Indeed, in this case, the information provided by the parties supports the necessity of a lodestar analysis. As noted by Judge Smith, without additional information, it appears that the hourly fee here would be almost double that normally awarded in FLSA cases. This is likely not accurate given that the Plaintiffs' counsel has not provided the Court with even an estimate of the paralegal time expended on this matter. Further, it is likely that a higher than average fee would be appropriate in this case, but again, the parties have not provided the Court with any such justification. Accordingly, if the parties choose to submit an amended settlement agreement for approval, the Plaintiffs' counsel will be directed to file adequate information for a lodestar analysis to be conducted. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/y7g9778d from Leagle.com. Mia Williams, individually and on behalf of all others similarly situated, Plaintiff, represented by Jeremiah Joseph Talbott, Jeremiah J. Talbott, PA, 900 East Moreno Street, Pensacola, FL, 32503, John Clark Davis, Law Office of John C. Davis, 623 Beard Street, Tallahassee, FL, 32303 & Sean Parnell Culliton, Sean Culliton, Esq., LLC, 150 John Knox Road, Tallahassee, Florida, United States. Coventry Health Care of Florida, Inc., Coventry Health Care, Inc., Aetna Life Insurance Company, Aetna Inc. & Aetna Medicaid Administrators, LLC, Defendants, represented by Amanda Simpson -- Amanda.Simpson@jacksonlewis.com -- Jackson Lewis, PC & Stephanie Leigh Adler-Paindiris -- Stephanie.Adler.Paindiris@jacksonlewis.com -- Jackson Lewis, PC CRST VAN: Reed Wants Testimony of Expert B. J. Nadell Excluded -------------------------------------------------------------- The Plaintiff in the lawsuit styled WALTER REED, on behalf of himself and on behalf of all others similarly situated v. CRST VAN EXPEDITED, INC., a foreign for profit company, Case No. 8:17- CV-00199-JDW-CPT (M.D. Fla.), asks the Court to exclude any testimony by the Defendant's expert, Barry J. Nadell, on topics included in Exhibit I (Rule 26(a)(2) Disclosures), served by the Defendant, on January 24, 2018, for purposes of its consideration of the motion for summary judgment filed by the Defendant. Mr. Reed argues that the Defendant did not submit an affidavit by Mr. Nadell stating that the report was made under penalty of perjury pursuant to 28 U.S.C. Section 1746. He contends that it is well known that, "Only 'pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits' can be considered by the district court in reviewing a summary judgment motion," citing Carr v. Tatangelo, 338 F.3d 1259, 1273 (11th Cir. 2003), as amended (Sept. 29, 2003) (quoting former Fed. R. Civ. P. 56(e)). Therefore, the Plaintiff asserts, Mr. Nadell's expert report has no probative value and cannot be used in consideration of the Defendant's motion for summary judgment. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=87ep67O4 The Plaintiff is represented by: Marc R. Edelman, Esq. MORGAN & MORGAN One Tampa City Center Tampa, FL 33602 Telephone: (813) 223-5505 E-mail: medelman@forthepeople.com The Defendant is represented by: E. Holland Howanitz, Esq. WICKER, SMITH, O'HARA, MCCOY & FORD, P.A. 50 North Laura Street, Suite 2700 Jacksonville, FL 32202 Telephone: (904) 598-3207 E-mail: Ehowanitz@wickersmith.com - and - Molly A. Arranz, Esq. SMITHAMUNDSEN, LLC 150 North Michigan Avenue, Suite 3300 Chicago, IL 60601 Telephone: (312) 894-3307 Facsimile: (312) 997-1707 E-mail: Marranz@salawus.com CYTEC INDUSTRIES: Claudet Seeks to Certify Plan Members Class ------------------------------------------------------------- In the lawsuit styled AMAN JOSEPH CLAUDET JR. individually and on behalf of all others similarly situated, the Plaintiff, v. CYTEC RETIREMENT PLAN, CYTEC INDUSTRIES INC., and SOLVAY USA, INC., the Defendants, Case No. 2:17-cv-10027-EEF-JVM (E.D. La.), the Hon. Eldon E. Fallon entered an order: 1. certifying a class of: "all vested participants in the Cytec Retirement Plan who from January 1, 1994 to December 31, 2013 elected a joint and survivor benefit option pursuant to the 1994 or 1997 Cytec Retirement Plan and were subject to a reduction of monthly benefits as a result of the actuarial charges of the "pop-up" feature, as described in the Cytec Retirement Plan 2015 Voluntary Correction Program (and their beneficiaries, if they are deceased or incompetent)." 2. appointing class counsel Charles J. Stiegler of Stiegler Law Firm, LLC, and Christopher L. Williams of Williams Litigation, LLC; and 3. directing parties to effectuate notice to the members of the class as follows: within 45 days of entry of this order, and Defendants shall provide to Plaintiff's counsel, in the manner that such information is maintained by Defendants, the names and last known addresses of all members of the class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=JfmJgyUN DARP INC: Fochtman Seeks Certification of Participants Class ------------------------------------------------------------ The Plaintiffs in the lawsuit entitled MARK FOCHTMAN, CORBY SHUMATE, MICHAEL SPEARS, ANDREW DANIEL, FABIAN AGUILAR, and SLOAN SIMMS individually and on behalf of all others similarly situated v. DARP, INC., HENDREN PLASTICS, INC., and JOHN DOES 1-29, Case No. 5:18-cv-05047-TLB (W.D. Ark.), move the Court to certify a class of: All individuals who were DARP participants at any time from October 23, 2014 until the present, who worked for Hendren Plastics, Inc. in the State of Arkansas during their time at DARP. The lawsuit is a class action for violations of the Arkansas Constitution's prohibition on slavery, unpaid minimum wage and overtime under the Arkansas Minimum Wage Act, and for violations of the Arkansas Human Trafficking Act of 2013, the Plaintiffs allege. The Plaintiffs contend that the Defendant claims to operate counseling and rehabilitation services; instead of providing these services, DARP force its charges to toil long hours in dirty and dangerous jobs for no pay at local manufacturing businesses, including Hendren Plastics. The Plaintiffs also ask the Court to appoint them as class representatives, and Holleman & Associates, P.A., as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=CVTrQJJ0 The Plaintiffs are represented by: John Holleman, Esq. Timothy A. Steadman, Esq. Jerry Garner, Esq. HOLLEMAN & ASSOCIATES, P.A. 1008 West Second Street Little Rock, AR 72201 Telephone: (501) 975-5040 Facsimile: (501) 975-5043 E-mail: jholleman@johnholleman.net tim@johnholleman.net jerry@johnholleman.net DAVIS DEVELOPMENT: Fails to Pay Minimum Wage & OT, Orozco Says -------------------------------------------------------------- JOSE OROZCO, as an individual and on behalf of all others similarly situated, the Plaintiff, v. DAVIS DEVELOPMENT COMPANY, INC., a California Corporation; and DOES 1 through 100, the Defendant, Case No. BC705967 (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid minimum wage and overtime wages under the California Labor Code. According to the complaint, the Plaintiff has worked for Defendants as a laborer since 2015, but has been on a medical leave of absence since approximately August 24, 2017. During his employment with the Defendants, the Plaintiff typically worked six days per week and worked approximately 45-50 hours per week. In the summer months, the Plaintiff regularly worked in excess of 50 hours per week. Throughout his employment with Defendants, Plaintiff was paid on a piece-rate basis, whereby he was paid a pre-determined rate per square foot based on the framing projects he completed. The Plaintiff was compensated exclusively on a piece-rate basis, and Defendants did not maintain any record of the hours worked by Plaintiff. During his employment with Defendants, Defendants failed to pay Plaintiff and other non- exempt employees who were compensated on a piece-rate basis for so-called "nonproductive" time (i.e., hours that they were working but were not actually performing piece-rate work). For example, Plaintiff was required to travel between jobsites, unload tools, wait for materials to arrive at jobsites, and sometimes had to wait for a forklift operator to become available before he could begin his work. Under Defendants' piece-rate compensation system, Plaintiff was not compensated for time spent performing such tasks. As a result of these practices, the Defendants did not pay Plaintiff and other non-exempt employees for all hours worked at the minimum wage when they were being compensated on a piece-rate basis, as Defendants failed to pay Plaintiff for non-productive hours. Davis Development is a multi-family housing developer based in Atlanta, Georgia.[BN] Attorneys for Plaintiff: Paul K. Haines, Esq. Fletcher W. Schmidt, Esq. Andrew J. Rowbotham, Esq. Matthew K. Moen, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Telephone: (424) 292 2350 Facsimile: (424) 292 2355 E-mail: phaines@haineslawgroup.com fschmidt@haineslawgroup.com arowbotham@haineslawgroup.com mmoen@haineslawgroup.com DELAWARE, USA: Saunders Moves for Certification of Inmates Class ---------------------------------------------------------------- The Plaintiff in the lawsuit entitled ROBERT SAUNDERS v. GOVERNOR JACK MARKELL, et al., Case No. 1:15-cv-01184-GMS (D. Del.), seeks certification of class and subclass of inmates. Mr. Saunders brings the action on his own behalf and on behalf of a class of inmates, who are now, or will in the future be, under the custody of the Delaware Department of Corrections. The subclass consists of all inmates with disabilities, including inmates with mobility, hearing, sight, learning and developmental disabilities. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=reuYSyxk DENVER: Court Denies Summary Judgment in Homeless Sweeps Suit ------------------------------------------------------------- The United States District Court for the District of Colorado denied Plaintiffs' Motion for Summary Judgment in the case captioned RAYMOND LYALL, GARRY ANDERSON, THOMAS PETERSON, FREDRICK JACKSON, BRIAN COOKS, and WILLIAM PEPPER, Plaintiffs, v. CITY OF DENVER, a municipal corporation, Defendant, Civil Action No. 16-cv-2155-WJM-CBS (D. Colo.). The Plaintiffs are homeless persons living on Denver's streets. Proceeding via 42 U.S.C. Section 1983, they bring a class action lawsuit against Defendant City of Denver (the City and County of Denver; hereinafter, Denver), arguing that Denver clears homeless encampments through unconstitutional means. At the outset, the Court must resolve a disagreement between the parties over what this lawsuit is actually about. The Plaintiffs brought this lawsuit to challenge the alleged method by which Denver enforces its urban camping ban. The Plaintiffs say that under that ordinance and sundry others, Denver began in 2015 to systematically seize and destroy their property in what has sadly come to be known as "The Homeless Sweeps." The Plaintiffs specifically focused on mass sweeps "where the Plaintiffs' and the Plaintiff Class's rights civil rights have been eviscerated." The Fourth Amendment protects persons, houses, papers, and effects, against unreasonable searches and seizures. This prohibition against unreasonable seizures extends both to civil and criminal seizures. A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property. The Fourteenth Amendment also protects property, holding, "No state shall deprive any person of life, liberty, or property without due process of law." The Court pointed out that to hold Denver liable for a Fourth Amendment violation or a procedural due process violation, the Plaintiffs must work through the municipal liability framework established by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658 (1978). Monell held that a municipality can be liable in 42 U.S.C. Section 1983 for damages only when the entity's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the constitutional injury. The Court holds that three alleged incidents or series of incidents do not qualify as the mass sweeps the Plaintiffs challenge in this lawsuit, nor are they remotely probative of whether mass sweeps take place. Those are: the December 15, 2015 incident at the Denver Rescue Mission; regular park ranger activities along Cherry Creek and the South Platte River; and regular sidewalk cleanings at Samaritan House in late 2016. There are also three alleged incidents that clearly qualify as mass sweeps, taking the facts in the light most favorable to Plaintiffs: the March 8-9, 2016 operation in and around Triangle Park; the July 13, 2016 Riverdance 3/Arkins Court cleanup; and the November 15, 2016 operation at the Denver Rescue Mission. There are two incidents whose evidentiary value is ambiguous. The first is the March 25, 2016 incident where Thomas Peterson's property went missing and he soon tracked down four police officers and four garbage workers who allegedly told him that they had taken his property. This does not meet the ten-employee threshold the Plaintiffs established as part of their definition of a mass sweep. However, drawing all reasonable inferences in the Plaintiffs' favor, the Court finds that an alleged eight- employee operation has at least some tendency to prove that larger-scale operations with ten persons or more are occurring. The second ambiguous incident is the clearing of the encampment at Arapahoe & 27th Street on November 28, 2016. The number of Denver employees or agents involved in this operation is not clear. On the other hand, it also appears this was a large-scale operation. Again, drawing all reasonable inferences in the Plaintiffs' favor, the Court will assume that ten or more Denver employees or agents participated. A reasonable trier of fact could accept the Plaintiffs' evidence and the inferences they draw from it, and if so, could find Denver municipally liable for deliberate indifference to a pattern of unconstitutional conduct. Consequently, with respect to the Plaintiffs' Fourth Amendment and procedural due process claims, the Plaintiffs have established a genuine issue of fact which cannot be resolved through summary judgment. On the other hand, the Plaintiffs have failed to eliminate any dispute of material fact over their view of the evidence or in other words, a reasonable trier of fact could also accept Denver's story. Thus, neither the Plaintiffs nor Denver are entitled to summary judgment on Plaintiffs' Fourth Amendment or procedural due process claims. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/yckheboy from Leagle.com. Raymond Lyall, Garry Anderson, Thomas Peterson, Fredrick Jackson, Brian Cooks & William Pepper, Plaintiffs, represented by Andrew Joseph McNulty -- AMcNulty@KLN-law.com -- Killmer, Lane & Newman, LLP, David Arthur Lane -- dlane@kln-law.com -- Killmer, Lane & Newman, LLP & Jason Flores Williams -- JFW@JFWLAW.NET -- Law Office of Jason Flores-Williams. City of Denver, municipal corporation, Defendant, represented by Conor Daniel Farley, Denver City and County Attorney's Office, Geoffrey Charles Klingsporn, Denver City Attorney's Office & Wendy J. Shea, Denver City and County Attorney's Office. DISCOUNT POWER: Faces Class Action in Conn. Over TCPA Violation --------------------------------------------------------------- Robert Storace, writing for Connecticut Law Tribune, reports that tired of robocalls and telemarketing calls interrupting his meals, Pennsylvania resident Stewart Abramson filed a federal class action lawsuit on April 27 in Connecticut against Discount Power Inc. The lawsuit seeks up to $1,500 for every call in violation of the Telephone Consumer Protection Act. While almost everyone can relate to getting nuisance calls, experts in creditors' rights law say the suit faces an uphill battle. "It's a tough case to win," said attorney Myles Alderman Jr., managing member of Alderman and Alderman, which has several offices in Connecticut. "Some courts believe TCPA was not meant for class actions, and that it was intended to protect individuals from abusive phone calls." Mr. Alderman is not involved in the litigation. The claim says potential class members could include anyone with records of unwanted calls from Discount Power beginning April 27, 2014. Creditors' and debtors' rights attorney Marc Miller, of counsel for Cohen & Wolf, said on April 30 many potential lawsuits regarding TCPA are settled before they make their way to the courts. "The amount of money involved is relatively small and, in many cases, it's an opportunity for some lawyers to collect a quick buck," said Mr. Miller, who represented a defendant in a similar case related to unwanted faxes, but is not involved in the Abramson case. Each TCPA violation can cost a defendant $500, while each willful violation costs $1,500, so most cases settle. "If it's $1,500 we are talking about, the plaintiff will get $1,000 and the attorney $500 and no lawsuit is filed," Mr. Miller said. "It's not worth it for the defendants to fight it." Attorneys for Mr. Abramson filed the lawsuit on April 27 in U.S. District Court in the District of Connecticut in Bridgeport. But proving those violations are not as easy as it might seem, Miller said. "You must show it was done willfully to get the $1,500 per call," Mr. Miller said. "There is some way the defendants got that phone number. You have to prove they did not get that number by some actions you have undertaken. That is not always easy to do." The April 27 lawsuit alleges Discount Power called Abramson several times without first getting consent, as required under the TCPA. Abramson wrote Discount Power, which offers low-cost electricity options, asking if it had any evidence he consented to receive the unwanted calls at home, according to the suit. Discount Power never responded, the complaint states. The lawsuit also states Discount Power violated TCPA because the company making the call never identified itself. "In order to find out who has called him, Mr. Abramson pressed 'five' in response to the prerecorded message that he received on March 16," the complaint states. "Mr. Abramson spoke with a telemarketing agent who said that he was with Discount Power." The lawsuit cites one count: violation of the TCPA's prerecorded call provisions. The suit seeks injunctive relief prohibiting the use of prerecorded messages by Discount Power and up to $1,500 for each violation, or phone call. No one from Discount Power's legal department responded to a request for comment on April 30. The company's attorney, Nancy Hancock -- nhancock@pullcom.com -- of Pullman & Comley in Bridgeport, did not respond to a request for comment. The plaintiff has three attorneys: Todd Michaelis of Carmody Torrance Sandak & Hennessey in Waterbury, Anthony Paronich of Broderick & Paronich in Boston, and Matthew McCue of The Law Office of Matthew McCue in Natick, Massachusetts. Mr. McCue referred all comments to Paronich, who declined to comment. Mr. Michaelis did not respond to a request for comment. The case will be heard by Judge Stefan Underhill. [GN] DOORDASH INC: Burger Antics' Class Certification Bid Withdrawn -------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on April 26, 2018, in the case styled Burger Antics, Inc. v. Doordash, Inc., Case No. 1:18-cv- 00133 (N.D. Ill.), relating to a hearing held before the Honorable Jorge L. Alonso. The minute entry states that pursuant to the parties' stipulation, the Plaintiff's motion for certification of a class action is withdrawn. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=rOfFPUsa DR. PEPPER: Proskauer Rose Attorneys Discuss Class Action Ruling ---------------------------------------------------------------- Lawrence I Weinstein, Esq. -- lweinstein@proskauer.com -- Jeffrey H Warshafsky, Esq. -- jwarshafsky@proskauer.com -- Russell Kostelak, Esq. -- rkostelak@proskauer.com -- of Proskauer Rose LLP, in an article for The National Law Review, report that recently, a plaintiff's purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term "Diet" alone on a soft drink label does not constitute a claim that the soft drink will assist in weight loss. In Becerra v. Dr. Pepper/Seven Up, Inc., Plaintiff Shana Becerra brought a putative class action in the Northern District of California against Dr. Pepper, claiming the prominent display of the term "diet" on the Diet Dr. Pepper label falsely indicated that the product would contribute to healthy weight management and would not cause her to gain weight. 2018 WL 1569697 (N.D. Cal. Mar. 30, 2018). Instead, Becerra alleged that the use of artificial sweeteners in Diet Dr. Pepper actually caused her to gain weight. Judge William H. Orrick dismissed Becerra's claim, holding that nothing on the label, packaging, or advertising of Diet Dr. Pepper would suggest to a reasonable consumer that Diet Dr. Pepper will help a consumer with weight loss or healthy weight management. Rather, the court held, a reasonable consumer would know that the term "diet" on the Diet Dr. Pepper label is simply used to denote a lower calorie version of the standard Dr. Pepper soft drink. From the term "diet," a reasonable consumer has no basis to infer anything more than the fact that the soft drink is calorie-free; that term, standing alone, does not imply that the soft drink has any benefit for weight loss or weight management. Judge Orrick dismissed Becerra's complaint without prejudice, granting her leave to amend. The court warned Becerra, however, that the scientific studies she cited in her complaint to support her allegation that the aspartame in Diet Dr. Pepper caused weight gain were insufficient to state a claim. The studies did not establish any causation between aspartame and weight gain. At best, these studies merely evidenced a correlation between weight gain and the consumption of artificial sweeteners like aspartame. Because Becerra failed to cite a single study that found a causative link between aspartame and weight gain, this provided a separate basis to dismiss her claim. A materially identical suit was also brought against the maker of Dr. Pepper by two New York consumers in the Southern District of New York. Relying on Judge Orrick's decision and another California decision involving another brand of soft drink, Judge Daniels of the Southern District of New York dismissed this suit without prejudice in an April 18, 2018 summary order. Although both dismissals were without prejudice, it is difficult to conceive how either case can plausibly be revived. Watch this space for further developments. [GN] EQUIFAX INC: CFPB Fails to Act Despite Consumer Complaints ---------------------------------------------------------- Emily Stewart, writing for Vox, reports that's since Equifax announced that a data breach had left the personal information of tens of millions of people exposed last September, the Consumer Financial Protection Bureau -- the US government's top consumer watchdog -- has received more than 20,000 complaints about the company, which is about double the number it received in the six months before. Equifax has said the CFPB is investigating, but thus far the agency hasn't taken any action. Acting Director Mick Mulvaney is instead trying to make the bureau's complaint portal private so the public won't even be able to see what's happening. Sen. Elizabeth Warren (D-MA), however, would like to know what's up. Along with Sens. Brian Schatz (D-HI) and Bob Menendez (D-NJ), Sen. Warren released a new report on the Equifax data breach on April 30. The findings: In the six months after Equifax announced the breach on September 7, 2017, consumers have filed upward of 20,000 complaints regarding the company on the CFPB's website related to the improper use of a credit report, incorrect information on a report, Equifax's inadequate resolution to problems after the breach, and the identity theft solutions Equifax put out post-breach. Despite the number and frequency of the complaints, the CFPB has yet to take any punitive action. In fact, it has taken just one enforcement action total since Mulvaney took over. "The bottom-line is simple: Consumers are reaching out to the CFPB to help them deal with Equifax-related problems at nearly twice the rate they did before the recent data breach," the report reads. "As part of its duty to consumers, the CFPB must continue a full-throated investigation into the Equifax breach, including the company's response and its effort to work with consumers to mitigate the harm and repair any damage." The report includes some details of complaints filed by consumers, including one who claimed to have a job opportunity denied because of an Equifax credit report with false accounts and another who said they were directed to call six different phone numbers after the breach. "I have been a victim of identity theft and I have suffered from the credit breach," another consumer wrote. It's been hard to get a read on exactly what the CFPB is up to, and whether Mr. Mulvaney, who took over for the Obama-appointed Richard Cordray in November, is taking the matter seriously. Reuters reported in February that the CFPB was scaling back its probe of Equifax, but the agency has denied the report. "The bureau is looking into Equifax's data breach and response," an agency spokesperson said in an email to Vox at the time. "Reports to the contrary are incorrect." The CFPB typically does not publicly confirm or deny confidential enforcement activities, but Equifax itself revealed the probe in its regulatory filings with the Securities and Exchange Commission. While speaking with bankers and lending industry professionals at the American Bankers Association conference, Mr. Mulvaney said he wants to make the complaints portal -- where consumers can file complaints about financial products and services -- private, meaning nobody would know what harm Equifax and other companies might be causing customers and how the CFPB is responding. "I don't see anything in here that says I have to run a Yelp for financial services sponsored by the federal government," he said, holding up a copy of the Dodd-Frank financial reform law, according to the Wall Street Journal. (That's the same conference where Mr. Mulvaney said that as a member of Congress, he only met with lobbyists who donated to his campaign.) On April 30, Sens. Warren, Schatz, and Menendez sent a letter to Mr. Mulvaney raising concerns about the 20,000 Equifax complaints and his proposal to make the bureau's entire complaint portal private. "Without this information, researchers and advocates would lose the ability to track in real time the difficulties consumers are facing," they wrote. Interestingly, the letter is also addressed to Leandra English, the CFPB's deputy director who is currently fighting Mr. Mulvaney for the acting director title in court. When former director Richard Cordray resigned in November, he designated English as his successor, and for a while there was a confusion as to who was in charge. A judge upheld Trump's naming of Mulvaney as acting director, but the legal battle over it continues. The letter from Sens. Warren, Schatz, and Menendez actually names English as acting director of the CFPB and Mr. Mulvaney as director of the Office of Management and Budget. The Equifax breach was really bad, and the government has yet to offer a real response to it. In the US, 143 million Equifax users -- about half of the country's population -- had their personal information compromised in a data breach that spanned several weeks in the spring and summer. (Equifax has subsequently revised up that number twice; it now says the breach affected 148 million people.) The company waited about six weeks between discovering the data breach in late July and publicly announcing it in early September. In the meantime, three of its executives sold around $2 million worth of their shares in the company. After it announced the data breach, Equifax offered customers affected free credit monitoring and identity protection services -- as long as they agreed to a forced arbitration clause that barred them from joining forces with other wronged customers to sue the company. After a backlash, the company dropped the clause. Equifax CEO Richard Smith stepped down in late September. In October, he testified before the Senate Banking Committee and faced questions about Equifax's handling of consumer data and the breach, executive stock sales, and broader issues pertaining to credit bureaus such as Equifax, TransUnion, and Experian, which handle the personal information of millions of consumers. (Credit bureaus are partly regulated by multiple agencies.) Equifax is potentially facing a number of potential legal consequences, although thus far, the outcomes remain largely unclear -- it has confirmed that more than 240 class-action suits have already been filed against it and that it is cooperating with multiple investigations and probes, including by all 50 state attorneys general, the Federal Trade Commission, the Securities and Exchange Commission, the Financial Industry Regulatory Authority (FINRA), and various congressional committees, among others. So far, just one person tied to the breach has been punished. In March, the SEC charged Equifax's former chief information officer, Jun Ying, with insider trading. Mr. Smith, the former CEO, stepped down with a payday of an estimated $90 million and is still getting a pension worth millions. Equifax's new CEO's target compensation is $20 million. Equifax in 2017 made $3.4 billion in revenue, up 7 percent from what it made the year before. The company has been awarded hundreds of federal contracts worth millions of dollars over the past decade, including one especially eyebrow-raising one after the breach was revealed. The IRS awarded Equifax a $7.2 million no-bid contract to verify taxpayer identities, Politico first reported, but suspended the contract after public backlash. Mr. Mulvaney just took action against Wells Fargo. Shouldn't it be Equifax's turn? Mr. Mulvaney, who once described the CFPB as a "sick, sad" joke, has had a slow start taking over as the agency's acting director. But that changed in April when the CFPB and another bank regulator hit the megabank Wells Fargo with a $1 billion fine for improperly charging thousands of customers for auto insurance they didn't need and to lock in low mortgage rates -- one of the most severe fines the CPFB has levied in its history. Now, onlookers say, it's time to do something about Equifax. "Equifax makes it clear that if they get the chance, they're going to wiggle off the hook for having put more than half of all adult Americans at risk for fraud for years to come because of the data that were stolen," Sen. Warren told Vox's Stewart in February when she released a separate report about Equifax. A handful of bills have been drafted in Congress to address the Equifax situation, though they haven't gotten very far. In September, Sens. Warren and Schatz put forth a bill that would force Equifax and its competitors to provide free credit freezing and unfreezing services and offer overall better fraud alert protections; Warren and Sen. Mark Warner (D-VA) have also introduced legislation that would give the FTC more supervisory authority over credit reporting agencies. At the moment, and given Congress's broad inaction on a range of issues, the impetus is likely on federal agencies, state attorneys general, class-action suits, and, yes, the CFPB to act. It's unclear how Mr. Mulvaney will choose to approach the situation, but the fact that he's focused on making consumer complaints private instead of acting on them is not a good sign. [GN] FACEBOOK INC: Faces Dozens of Lawsuits Over Cambridge Analytica --------------------------------------------------------------- Jeff John Roberts, writing for Fortune, reports that Facebook has cleared two big hurdles as it tries to quell a controversy over user data: First, CEO Mark Zuckerberg came out of a Congressional grilling with flying colors, and then the company soothed shareholders by blowing its latest earnings report out of the water. Despite this good news, Facebook still faces a third ordeal in the form of legal fallout from the Cambridge Analytica affair-- which saw a rogue polling agency siphon and sell data from at least 87 million users. And that ordeal has barely begun. A review of federal court documents shows that Facebook is facing more than three dozen class action lawsuits over Cambridge Analytica. The complaints seek damages on behalf of millions of consumers for alleged misuse of their data, or for investors who allegedly suffered losses when Facebook's stock plummeted on news of the scandal. While lawsuits are a matter of course for big companies, Facebook is treating the Cambridge Analytica cases as significant enough to make a special note of them in the company's quarterly SEC report. A section titled "Legal Proceedings" had previously only cited ongoing litigation over Facebook's botched 2012 IPO, but now includes the following paragraph (emphasis mine): "Beginning on March 20, 2018, multiple putative class actions and derivative actions were filed in state and federal courts in the United States and elsewhere against us and certain of our directors and officers alleging violations of securities laws, breach of fiduciary duties, and other causes of action in connection with the misuse of certain data by a developer that shared such data with third parties [. . .] the events surrounding this misuse of data became the subject of U.S. Federal Trade Commission and other government inquiries in the United States, Europe, and other jurisdictions. Any such inquiries could subject us to substantial fines and costs, divert resources and the attention of management from our business, or adversely affect our business." The lawsuits reviewed by Fortune (here's a sample one) do not list specific dollar amounts, but rather cite damages under grounds like negligence, invasion of privacy, and violation of state consumer protection laws and the federal Stored Communications Act. Others seek recovery for investors, while further ones involve claims from state attorneys general. Facebook has faced mass consumer lawsuits over privacy violations in the past, and has typically been able to settle them relatively cheaply by paying a few million dollars to nonprofit organizations. Such a quick resolution is unlikely in the case of the Cambridge Analytica scandal, however, given that judges have grown skeptical of settlements that do not deliver direct benefits to consumers, and because of growing scrutiny by government and media of tech companies' privacy practices. The worse news for Facebook is that this batch of lawsuits could be just the tip of the iceberg. As tech site The Register reported, Facebook's SEC filing says it anticipates the discovery of "additional incidents of misuse of user data or other undesirable activity by third parties." In other words, more Cambridge Analytica-style scandals (in which Facebook provided customer data to firms that then misused it) are likely on the way -- and could trigger more privacy lawsuits naming Facebook. "We believe these lawsuits are without merit, and we are vigorously defending them," Facebook states in its SEC filing describing the Cambridge Analytica lawsuits. In reply to a request for further comment, a company spokesperson pointed to a blog post by Facebook's Deputy General Counsel stating the incident is not a data breach. Despite its confident pronouncement, it's far from clear how easily Facebook can weather the legal fallout from Cambridge Analytica. While the company is a profits machine, and is sitting on more than $40 billion in cash, potential payouts to hundreds of millions of users could put a big crimp in its future earnings. [GN] FACEBOOK INC: Millionaire Suing Over Fraud Adverts -------------------------------------------------- Jake Kanter, writing for Business Insider, reports that a millionaire British consumer rights champion disclosed that he is suing Facebook over fraudulent adverts -- and he has been shocked with how the company has responded to the legal action. Martin Lewis said scammers are using his reputation to ensnare people into bitcoin "get-rich-quick schemes" through fake adverts on Facebook. The Money Saving Expert founder has counted 50 such adverts, but Facebook revealed in evidence to a British parliamentary committee that the number is actually more like thousands. Lewis decided to sue after becoming frustrated with Facebook's sluggish response to his takedown requests. His attorney, Mark Lewis, Esq. -- mark.lewis@seddons.co.uk -- said Facebook took up to three weeks to reply to his requests, by which time the damage was already done. Mark Lewis, Esq., a media lawyer at Seddons who was at the forefront of efforts to expose the News of the World phone- hacking scandal, said Facebook's response to being taken to court has not been much better. Facebook's law firm White & Case has insisted he serves legal notice on the company in Ireland, which makes the process more drawn-out and bureaucratic. "It's deliberately obtuse and unhelpful. You would expect that from a scam artist, but you wouldn't expect that from one of the biggest companies in the world," Mark Lewis told Business Insider. Facebook said it has been in contact with Lewis' representatives "for some time" and has removed the offending ads and thousands of others that break its advertising policies. A spokeswoman told Business Insider: "We have also offered to meet Martin Lewis in person to discuss the issues he's experienced, explain the actions we have taken already and discuss how we could help stop more bad ads from being placed." Martin Lewis is pursuing exemplary damages against Facebook, which is extremely rare in UK defamation law. If successful, the High Court could take punitive action against Facebook, which means it not only has to compensate Lewis, but also cough up the profit from any of the fake adverts in his name. The millionaire consumer rights champion does not intend to profit from the case. Instead, he will donate any of the damages he is awarded to anti-scam charities. Facebook could be hit with a class action lawsuit Winning his case will also set a precedent that will make it easier for others to take action if their reputation is damaged by fake Facebook adverts. This, Mark Lewis said, makes it less likely that he will settle. The attorney, who is working on a no-win-no-fee basis, said he has had interest from another high-profile individual in joining Lewis to take joint action against Facebook. He would be keen to hear from others. Lewis, who has a net worth of ú125 million ($175 million) according to The Sunday Times, is not the only millionaire entrepreneur to raise concerns about fake Facebook ads. Deborah Meaden, the star of BBC show "Dragons' Den," has campaigned against the problem, as has her former co-star Duncan Bannatyne. "Martin Lewis is very courageous taking on Facebook. Perhaps we should join together to bring a class action against them to try and halt this type of scam once and for all to stop ordinary people being duped," Bannatyne said in a statement. Indeed, scammers have even traded off the "Dragons' Den" brand -- the UK equivalent of "Shark Tank" -- to try and entrap people. The BBC is aware of the issue and the broadcaster's lawyers have been in touch with Sony Pictures Television, which owns the intellectual property to the show. Asked if it is in touch with Facebook, Sony declined to comment. The BBC also declined to comment. Facebook: Fake ads are "not welcome" In evidence to British lawmakers on the Digital, Culture, Media and Sport Committee, Facebook Chief Technology Officer Mike Schroepfer said fake adverts are "not welcome on our platform." He said the fraudsters have invented ways of getting around the Facebook machine that takes down fraud ads, such as intentionally misspelling names of the individuals they are using to front their scams. This being the case, Schroepfer said it is vital Facebook roots out and removes the "bad actors" completely. "In the case of Mr Lewis, he reported on the order of 50 ads to us. As a result of that, we did a more extensive investigation using our technical tools, found thousands of other ads, and took all of those down proactively," Schroepfer said. "More importantly, we found the dozens of actors, the people who are fraudulently advertising on the platform, and took them off. It prevents them from advertising in the future." He added that the company is hoping to use facial recognition, which it is currently rolling out in Europe, to assist with its efforts in removing fake ads. "It is challenging to do technically at scale and it is one of the things I am hopeful for in the future that would catch more of these things automatically," Schroepfer said.[GN] FCA US: Judge Allows Jeep Wrangler Class Action to Proceed ---------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Jeep Wrangler class-action lawsuit filed over radiator sludge and heating and cooling issues is moving forward after a federal judge found two of five claims against Chrysler viable. According to the proposed class-action lawsuit, Chrysler uses a sand-casting method when manufacturing 2012-2017 Wrangler engines, but excess sand, sodium and other contaminants are left behind because the automaker fails to purge the sand from the cylinder heads. The plaintiffs claim the sand and other particles seep from the engines into the radiators, heater cores, oil coolers and water pumps, forming a sludge-like material that accumulates in the radiators and reservoirs. This finally causes the heating and cooling systems to fail, not even allowing fog to be removed from windshields. The Wranglers allegedly can't be fixed by flushing the radiator systems, so owners are forced to replace the radiators and engines to permanently fix the defects. Chrysler filed a motion to dismiss the lawsuit and the judge ruled three of five plaintiff's claims don't stand up. However, FCA first sought to have the lawsuit dismissed due to a lack of standing. The judge said the plaintiffs adequately plead they have the legal right to bring the lawsuit. In short, the radiator sludge problem the plaintiffs claim they suffer from are directly tied to alleged actions by Chrysler. The judge ruled in favor of the plaintiffs concerning an express warranty claim and a Magnuson-Moss Warranty Act claim, starting with the express warranty claim. The plaintiffs' claims are based in part on two express warranties that cover 2012-2017 Jeep Wranglers: The 3-Year/36,000 mile "basic limited warranty" and the 5-Year/100,000 mile "powertrain limited warranty." The basic warranty "covers the cost of all parts and labor needed to repair any item" in the vehicle, with the exception of "tires and [u]nwired headphones." The powertrain limited warranty is more limited in scope and "covers the cost of all parts and labor needed to repair" a list of particular vehicle components, including "cylinder head assemblies" and other parts of the engine. The judge says everyone basically admits that none of the named plaintiffs sought repairs within the time and mileage limits as stated in the basic limited warranty, but owners did meet the time requirements concerning the powertrain limited warranty. Chrysler argues the repairs that were made did not involve any of the components covered by the powertrain warranty. However, the judge found the allegations set forth by the plaintiffs are not that the heating and cooling systems are defective, but the owners instead claim the heating and cooling problems are caused by underlying manufacturing defects in the engine cylinder heads. Those parts are expressly covered by the powertrain warranty, causing the judge to decline to dismiss the express warranty claim. The other claim the judge let go through is the Magnuson-Moss Warranty Act (MMWA) claim. The judge ruled that because the plaintiffs stated a claim for breach of express warranty, Chrysler's motion to dismiss the MMWA claim is also denied. The remaining claims didn't work out as well for the plaintiffs, as the judge dismissed a breach of implied warranty claim. Chrysler told the judge the implied warranty claim is time-barred by the statute of limitations, something the plaintiffs didn't even oppose. Because they failed to oppose Chrysler's grounds for dismissal, the judge ruled the plaintiffs had abandoned their implied warranty claim. The judge also dismissed counts four and five of the lawsuit that allege unfair and deceptive trade practices and false advertising. Chrysler argues that both claims are barred by the statute of limitations because the allegedly deceptive acts occurred more than three years prior to the filing of the lawsuit, and the judge fully agreed. The Jeep Wrangler class-action lawsuit was filed in the U.S. District Court for the Southern District of New York - Malizia et. al. v. FCA US, LLC. The plaintiffs are represented Greg Coleman Law PC, Simmons Hanly Conroy LLC, and Whitfield Bryson & Mason LLP. CarComplaints.com has complaints about the Jeeps named in the class-action lawsuit: Jeep Wrangler - 2012 / 2013 / 2014 / 2015 / 2016 / 2017 [GN] FEDEX GROUND: Certification of Class Sought in "Carrow" Suit ------------------------------------------------------------ The Plaintiffs in the lawsuit titled MICHAEL CARROW, MICHAEL FENNEL, AND NICHOLAS STEFANOU, individually and on behalf of all others similarly situated v. FEDEX GROUND PACKAGE SYSTEMS, INC., Case No. 1:16-cv-03026-RBK-JS (D.N.J.), move for class certification of a class consisting of: All persons who: 1) entered into a FedEx Ground or Home Delivery Operating Agreement, either personally or through a corporate entity; 2) drove a vehicle on a full-time basis to provide package pick-up and delivery services pursuant to the Operating Agreement in any week from April 13, 2010 to June 1, 2017 (the "Class Period"); 3) were dispatched out of a terminal in the state of New Jersey; and 4) who first signed an Operating Agreement after October 15, 2007, or excluded themselves from the certified class in Tofaute v. FedEx Ground Package System, Inc., No. 05-595 (N.D. Ind.). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=dUCxG7QT The Plaintiffs are represented by: Anthony L. Marchetti, Jr., Esq. MARCHETTI LAW, P.C. 900 N. Kings Hwy., Suite 306 Cherry Hill, NJ 08034 Telephone: (856) 824-1001 Facsimile: (267) 219-4838 E-mail: amarchetti@marchettilawfirm.com - and - Harold Lichten, Esq. Matthew W. Thomson, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston St., #2000 Boston, MA 02116 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: hlichten@llrlaw.com mthomson@llrlaw.com FLORIDA BC: Class of Sales Coordinators Certified in "Reese" Suit ----------------------------------------------------------------- The Hon. Carlos E. Mendoza granted in part the Plaintiff's Motion for Conditional Class Certification in the lawsuit styled JAY E. REESE v. FLORIDA BC HOLDINGS, LLC, Case No. 6:17-cv-01574-CEM-GJK (M.D. Fla.). United States Magistrate Judge Gregory J. Kelly submitted a Report and Recommendation recommending that the Court grant in part the Plaintiff's Motion. Specifically, Judge Kelly concluded that the class should be narrowed to encompass only those employees located at Defendant's Orlando and Daytona Beach locations. Judge Kelly also determined that the proposed notice should be amended and that sending a reminder is unnecessary. After a de novo review of the record, and noting no objections were timely filed, the Court agrees with the analysis in the Report and Recommendation. Therefore, the Report and Recommendation is adopted and confirmed and made a part of this Order. This class is conditionally certified pursuant to 29 U.S.C. Section 216(b): All employees of Defendant who worked at the Orlando or Daytona Beach locations and (1) are or were employed by Defendant as "Sales Coordinators" during the preceding three years; (2) were classified as exempt from the FLSA; and (3) worked more than forty hours in a work week without being paid proper overtime compensation. The Plaintiff's counsel is appointed as class counsel. On or before May 11, 2018, the Defendant shall provide to the Plaintiff's counsel the full names, job titles, dates of employment, last known addresses, telephone numbers, and e-mail addresses for each individual in the class. Judge Kelly also ruled that on or before May 15, 2018, the Plaintiff shall distribute the notice and consent to-join forms, via first class mail, to all putative class members, with these revisions: a. Replace the word "misclassified" in the class definition with "classified"; b. Delete "unlawfully" and "proper" from the penultimate sentence before the chart regarding "YOUR LEGAL RIGHTS AND OPTIONS"; c. Delete the following sentence from the chart: "By opting in you also conserve judicial resources"; and d. Delete footnote one from the notice. On or before May 22, 2018, the Plaintiff shall notify the Court of the date that the notices were mailed. The Motion is denied in all other respects. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=1qdqDW1U FORD MOTOR: Ct. Excludes Plaintiff Expert Witnesses in "Johnson" ---------------------------------------------------------------- The United States District Court for the Southern District of West Virginia, Huntington Division, granted Defendant's Motion to Exclude Plaintiffs' Designated Expert Witnesses Hubing, van Schoor, and Koopman in the case captioned CHARLES JOHNSON, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant, Civil Action No. 3:13-6529 (S.D.W.V.). The Plaintiffs consist of nineteen individuals from seventeen states seeking economic loss damages for allegedly defective Ford vehicles manufactured between 2004 and 2010. The Plaintiffs' theory is that the electronic throttle control (ETC) system contains a defect in its ability to identify and mitigate unintended acceleration. Todd H. Hubing, Ph.D. Ford first challenges the testimony of Dr. Hubing, an electrical engineer who has studied the field of electromagnetic compatibility in automobiles for many years, principally as a professor at Clemson University. His credentials are not challenged by Ford. As part of his work related to the automotive industry, he has published a number of peer-reviewed articles through the Institute for Electrical and Electronics Engineers (IEEE). One of those articles published in June 2015 focused on his examination of five vehicles equipped with ETC systems, including two Ford models. The Court also is troubled by Dr. Hubing's opinion that Ford's Gen II ETC system allows unintended acceleration at a rate above industry standards. First, his testing of non-Ford vehicles revealed some vulnerability to unintended acceleration in all the models tested. Thus, some risk of unintended acceleration seems unavoidable, at least with respect to those model years in his study. Second, the article alludes to the recent NASA investigation and the NHTSA database of unintended acceleration complaints. However, Dr. Hubing does not explain in his article, or his report, the basis for relying on this data to make the claimed comparison of rates of unintended acceleration. The NHTSA database consists of voluntary complaints, not specific incidents that were verified or even examined. Additionally, neither source presents any definitive survey by which an expert could compare anything more than general complaints. For instance, Toyota's extreme high rate of unintended acceleration was attributed somewhat to Toyota's increased adverse publicity at the time. Also, these complaint rates were selected for models with new or modified ETC systems, and though Plaintiffs repeatedly assert that the Gen II system is identical in all the models within their proposed class, the complaint rate for 2005 Mustangs was twice the rate for 2006 Explorers. The fact that complaints increased may trigger a study or investigation, but it does not serve as proof of the defect asserted by Plaintiffs. Marthinus van Schoor, Ph.D. Next, Ford challenges the opinions of Dr. Marthinus van Schoor, who holds a M.S. and a Ph.D. in aeronautics and astronautics. Dr. van Schoor performed what Plaintiffs' counsel characterized as measurements and inspection of Ford class vehicle pedals. He offers opinions on technical performance and safety issues related to the Accelerator Pedal Assembly. In addition to his criticism of Ford's ETC system, he explains an alternative design employing Brake Over Accelerator (BOA) technology and related safety features. The Court finds Dr. van Schoor's measurements of pedal-angle return from lateral force to be irrelevant. He simply has no explanation of how such lateral forces on a gas pedal may be expected in the normal operation of a vehicle. Consequently, his finding that lateral force on the pedal may result in faulty sensor output is irrelevant to the Plaintiffs' theory of defect. Furthermore, Dr. van Schoor's criticism of Ford's use of contacting sensors is confusing. As the Plaintiffs apparently do not expect to elicit his opinion that these sensors are a defect in this system, his criticism also is irrelevant. In addition to these subjects, Dr. van Schoor offers evidence of an alternative design: the use of BOA to provide a last stand against any unintended acceleration caused by the alleged inadequate failsafes in Ford's Gen II ETC system. In a design defect case like this, evidence of the availability of a safer alternative may be relevant. However, the Plaintiffs' evidence of the design defect must be adduced first. Merely demonstrating a safer alternative exists does not render the chosen design defective. Philip Koopman, Ph.D. Finally, Ford challenges the opinions of Dr. Koopman. Ford focuses on whether his testing provides a reliable basis for his opinions. In his lengthy reports, consisting of his primary report and his supplemental reports concerning testing and software analysis, Dr. Koopman concludes that Ford's Gen II ETC system is prone to allowing unintended acceleration due to the design defect alleged by the Plaintiffs. His qualifications are extensive and unchallenged, but Ford vigorously disputes the support for his conclusions. Though Dr. Koopman reports that contacting sensors like those used by Ford in the class vehicles should be replaced with noncontacting sensors, he has done no analysis of unintended acceleration complaint rates between the two designs or examined vehicles using non-contacting sensors. This gap amounts to a failure to validate his theory. Dr. Koopman's testimony, that the Plaintiffs' complaints are consistent with his design defect opinion, is inadequate to tie his opinions to this case. First, he relies on nothing more specific than the Consolidated Complaint to understand the Plaintiffs' unintended acceleration events. Second, there are profound inconsistencies between the general complaints and his opinions. Nearly every Plaintiff described a failure of their brakes to counteract the unintended acceleration, yet in Dr. Koopman's own testing procedure, the brakes restrained the acceleration. Further, some Plaintiffs reported that their gas pedals were moving up and down without a foot-on-pedal, a circumstance not replicated in any of the tests done by the Plaintiffs' experts. If these Plaintiffs were right, this pedal problem likely would be mechanical, perhaps caused by the return spring. Ultimately, Dr. Koopman's testing fails to serve as a reliable basis for his opinions regarding the design defects alleged by the Plaintiffs in this case. A full-text copy of the District Court's March 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/ybdbj5mz from Leagle.com. Charles Johnson, Michael Antramgarza, Quintin Williams, ACA Legal Investigations, Inc., John McGee, David H. Patton & Inez A. Patton, Plaintiffs, represented by Adam J. Levitt -- alevitt@dlcfirm.com -- DICELLO LEVITT & CASEY, pro hac vice, Alison K. Hurley -- ahurley@bremerandwhyte.com -- BREMER WHYTE BROWN & O'MEARA, pro hac vice, Amy E. Keller -- akeller@dlcfirm.com -- DICELLO LEVITT & CASEY, Anne M. Tarvin, BARTIMUS FRICKLETON ROBERTSON RADER, 11150 Overbrook Road, #200, Leawood, KS 66211, Benjamin L. Price, BREMER WHYTE BROWN & O'MEARA, 20320 S.W. Birch Street Second Floor, Newport Beach CA 92660, pro hac vice, Bradley D. Honnold, BARTIMUS FRICKLETON ROBERTSON & GOZA, 11150 Overbrook Road, #200, Leawood, KS 66211, C. Calvin Warriner, III, SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409- 6601, pro hac vice, Donald H. Slavik -- dslavik@slavik.us -- SLAVICK LAW FIRM, pro hac vice, E. Powell Miller, THE MILLER LAW FIRM, 3300 Two Commerce Square. 2001 Market Street. Philadelphia, PA 19103, pro hac vice. Ford Motor Company, Defendant, represented by Andrew J. Trask -- atrask@mcguirewoods.com -- MCGUIRE WOODS, pro hac vice, Bradley J. Schmalzer, FLAHERTY SENSABAUGH & BONASSO, P.O. Box 3843. Charleston, WV 25338-3843, Brian D. Schmalzbach -- BSCHMALZBACH@MCGUIREWOODS.COM -- MCGUIRE WOODS, pro hac vice, Harold C. Zuckerman -- harold.zuckerman@mcafeetaft.com -- MCAFEE & TAFT, Jeffrey A. Holmstrand, GROVE & DELK. 44 1/2 Fifteenth Street Wheeling, WV 26003, Jill Crawley Griset -- jgriset@mcguirewoods.com -- MCGUIRE WOODS, Jodi Munn Schebel -- Jodi_schebel@bowmanandbrooke.com -- BOWMAN & BROOKE, pro hac vice, John Tracy Walker, IV -- twalker@mcguirewoods.com -- MCGUIRE WOODS, pro hac vice, Michael Bonasso, FLAHERTY SENSABAUGH & BONASSO, P.O. Box 3843. Charleston, WV 25338-3843, Perry Watson Miles, IV, MCGUIRE WOODS, pro hac vice, Peter J. Fazio, AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, pro hac vice, Sarah Virginia Bondurant Price -- vbondurantprice@mcguirewoods.com -- MCGUIRE WOODS, pro hac vice, Susan W. Romaine, FLAHERTY SENSABAUGH & BONASSO & William J. Hanna, FLAHERTY SENSABAUGH & BONASSO, P.O. Box 3843. Charleston, WV 25338-3843. Ford Motor Company, Counter Claimant, represented by Andrew J. Trask, MCGUIRE WOODS, Bradley J. Schmalzer, FLAHERTY SENSABAUGH & BONASSO, Brian D. Schmalzbach, MCGUIRE WOODS, pro hac vice, Harold C. Zuckerman, MCAFEE & TAFT, Jason H. Dang, BREMER WHYTE BROWN & O'MEARA, Jeffrey A. Holmstrand, GROVE & DELK, Jodi Munn Schebel, BOWMAN & BROOKE, pro hac vice, John Tracy Walker, IV, MCGUIRE WOODS, pro hac vice, Michael Bonasso, FLAHERTY SENSABAUGH & BONASSO, Perry Watson Miles, IV, MCGUIRE WOODS, pro hac vice, Peter J. Fazio, AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, Sarah Virginia Bondurant Price, MCGUIRE WOODS, pro hac vice, Susan W. Romaine, FLAHERTY SENSABAUGH & BONASSO & William J. Hanna, FLAHERTY SENSABAUGH & BONASSO. Progressive Casualty Insurance Company, Interested Party, represented by Michael M. Stevens, MARTIN & SEIBERT. FOREMOST INSURANCE: Braden Seeks Prelim. OK of Class Settlement --------------------------------------------------------------- The Plaintiffs in the lawsuit styled DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated v. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, Case No. 4:15- cv-04114-SOH (W.D. Ark.), filed with the Court their Agreed Motion for Preliminary Approval of Class Action Settlement, Class Certification for Settlement Purposes, Appointment of Class Representatives and Appointment of Class Counsel. On April 27, 2018, the parties executed a Stipulation of Settlement. Accordingly, the Plaintiffs ask the Court to enter an order: (i) granting preliminary approval of the proposed Settlement; (ii) appointing Plaintiffs as Class Representatives; (iii) appointing Class Counsel; (iv) directing that notice of the proposed Settlement be given to members of the Class in the proposed form and manner; and (v) scheduling a hearing before the Court to determine whether the proposed Settlement should be finally approved. A copy of the Agreed Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=eYd4i22E The Plaintiffs are represented by: Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON P.A. 406 Walnut Street Texarkana, AR 71854 Telephone: (870) 772-4113 Facsimile: (870) 773-2967 E-mail: mkeil@kglawfirm.com jcgoodson@kglawfirm.com - and - A.F. "Tom" Thompson, III, Esq. Kenneth P. "Casey" Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 555 East Main St., Suite 200 Batesville, AR 72501 Telephone: (870) 793-3821 Facsimile: (870) 793-3815 - and - James M. Pratt, Jr., Esq. JAMES M. PRATT, JR., P.A. 144 Washington NW Post Office Box 938 Camden, AR 71701 Telephone: (870) 836-7328 Facsimile: (870) 837-2405 - and - Richard E. Norman, Esq. R. Martin Weber, Jr., Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 Telephone: (713) 651-1771 Facsimile: (713) 651-1775 E-mail: rnorman@crowleynorman.com mweber@crowleynorman.com - and - W.H. Taylor, Esq. Stevan E. Vowell, Esq. TAYLOR LAW PARTNERS 303 E. Millsap Road P.O. Box 8310 Fayetteville, AR 72703 Telephone: (479) 443-5222 E-mail: whtaylor@taylorlawpartners.com svowell@taylorlawpartners.com FOREMOST INSURANCE: Accord in Braden-Brown Suit Has Initial OK -------------------------------------------------------------- In the lawsuit styled DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated, the Plaintiffs, v. FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, the Defendant, Case No. 4:15-cv-04114-SOH (W.D. Ark.), the Hon. Judge Susan O. Hickey entered an order on May 21, 2018: 1. granting Plaintiffs' motion for preliminary approval of proposed settlement, subject to further consideration at the final approval hearing; 2. conditionally certifying Settlement Class for settlement purposes only: "Persons who had a Covered Loss and who, during the Class Period, received a Qualifying ACV Payment" Excluded from the Class are: (1) Persons that received payment in the full amount of insurance shown on the declarations page of the Homeowners Insurance Policy; (2) Foremost and its affiliates, officers, and directors; (3) members of the judiciary and their staff to whom this Action is assigned; (4) Persons who have a pending bankruptcy or whose claims were discharged in a bankruptcy proceeding; (5) Persons who executed a release of the claims set forth herein; and (6) Plaintiffs' counsel.; and 3. preliminarily appointing David Braden and Dale Brown as representatives of the Settlement Class, and preliminarily finding that the following attorneys for Plaintiffs satisfy the adequacy requirement of Federal Rule of Civil Procedure 23, and appointing such counsel as counsel for the Settlement Class: D. Matt Keil, Esq. John C. Goodson, Esq. KEIL & GOODSON P.A. 406 Walnut St. Texarkana, AR 71854 - and - A.F. "Tom" Thompson, III, Esq. Kenneth P. "Casey" Castleberry, Esq. MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 555 E. Main St., Suite 200 Batesville, AR 72501 - and - R. Martin Weber, Jr., Esq. Richard E. Norman, Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 - and - Stevan E. Vowell, Esq. W.H. Taylor, Esq. TAYLOR LAW FIRM 303 E. Millsap Rd. P.O. Box 8310 Fayetteville, AR 72703 Rust Consulting, Inc. is preliminarily appointed as third-party administrator. According to the Court ruling, "If final approval of the Proposed Settlement is not granted, this Order, including the above description of the Settlement Class and the preliminary appointment of the Representative Plaintiffs and Class Counsel, shall be automatically vacated. If the Stipulation is terminated or is disapproved in whole or in part by this Court, any appellate court or any other court of review, or if the agreement to settle is terminated as provided in Paragraph 71 of the Stipulation, the Stipulation and the fact that it was entered into shall not be offered, received or construed as an admission or as evidence for any purpose including, but not limited to, the "certifiability" of any litigation class, as discussed in Paragraph 73 of the Stipulation." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ytUGW4hL FRIENDLUM INC: Fails to Pay Overtime Wages, Elias Says ------------------------------------------------------ JOHN ELIAS, individually and on behalf of all others similarly situated, the Plaintiff, v. FRIENDLUM INC dba DIRECT HOME ENERGY SOLUTIONS, GDFRIEND INC dba EVERLAST HOME ENERGY SOLUTIONS, SMITHLUM & FRIEND INC dba POWERSTAR HOME ENERGY SOLUTIONS, and DOES 1 through 10, inclusive, the Defendants, Case No. 37-2018-00024215-CU-OE-CTL (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid overtime Wages under the California Labor Code. According to the complaint, the Defendants collectively employed Plaintiff, as well as employ and have employed others similarly situated, as canvassers. As canvassers, Plaintiff and those similarly situated, travel to various neighborhoods and promote Defendants' business on behalf of Defendants. The promoted services include Defendants' various contracting services. Defendants' direct Plaintiff and others similarly situated to promote their services by having them contact prospective buyers for the exclusive purpose of scheduling appointments for registered home improvement salespersons for Defendants. In addition, Plaintiff is informed and believes, and thereon alleges, that Defendants have increased their profits by violating state wage and hour laws and exploiting their employees, by, among other things: (1) failing to pay their employees all wages for time worked; and (2) requiring the employees to use their personal cell phones in order to perform their required job duties for Defendants. Defendants did not reimburse employees for the costs of this cellular phone usage.[BN] The Plaintiff is represented by: Devon K. Roepcke, Esq. LAW OFFICES OF DEVON K. ROEPCKE, PC 170 Laurel Street San Diego, CA 92101 Telephone: (619) 940 5357 Facsimile: (619) 354 4157 E-mail: droepcke@lawdkr.com - and - Eric A. Laguardia, Esq. LAGUARDIA LAW 402 West Broadway, Suite 800 San Diego, CA 92101 Telephone: (619) 655 4322 Facsimile: (619) 655 4344 E-mail: eal@laguardialaw.com FRONTIER COMMUNICATIONS: Williams Sues over Stock Price Drop ------------------------------------------------------------ SHARON WILLIAMS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. DANIEL J. McCARTHY, RALPH PERLEY McBRIDE, LEROY T. BARNES, JR., PETER C.B. BYNOE, DIANA S. FERGUSON, EDWARD D. FRAIOLI, PAMELA D.A. REEVE, VIRGINIA P. RUESTERHOLZ, HOWARD L. SCHROTT, MARK S. SHAPIRO, MYRON A. WICK, III, LARRAINE D. SEGIL, JOHN M. JURELLER and MARY A. WILDEROTTER, the Defendants, and FRONTIER COMMUNICATIONS CORPORATION, a Delaware corporation, Nominal Defendant, Case No. 3:18-cv-00826 (D. Conn., May 16, 2018), alleges that from at least February 6, 2015 through the present, the Defendants caused Frontier to issue false and misleading statements concerning the Company's true financial and operating condition. Moreover, defendants' wrongful acts have caused the Company to face a complicated and expensive- to-defend securities class action. Accordingly, the Defendants' violations of the law have severely damaged Frontier. Although Frontier has been severely injured, defendants have not fared nearly so badly. During their tenure as Frontier's top insiders, defendants collectively pocketed more than $37 million in salaries, fees, stock, and other incentive-based compensation not justified in light of the serious breaches of fiduciary duty and violations of federal law that have occurred during their watch. These payments unjustly enriched Defendants. Frontier is a Delaware corporation that provides communications services to urban, suburban and rural communities in 29 states. On February 5, 2015, the Company announced that it entered an agreement to acquire Verizon Communications Inc.'s wireline operations in California, Texas, and Florida for $10.54 billion in cash and assumed debt. News of the acquisition caused Frontier's stock price to jump by 8.7% to $125.55 on February 12, 2015. The Verizon wireline acquisition was completed on April 1, 2016. But Defendants failed to disclose the fact that the wireline assets Frontier acquired from Verizon were not performing well and were causing substantial financial problems. On February 27, 2017, the Defendants caused the Company to begin revealing the true impact the non- and under- performing wireline assets were having when they released fourth quarter of 2016 financial results. The release stated that the Company's results were negatively impacted by the "resolution of non-paying acquired CTF accounts." Frontier's Chief Executive Officer, Daniel J. McCarthy, provided additional color on the effect these accounts were having when he stated that "[r]esults for the fourth quarter were impacted by our intensified efforts to resolve acquired accounts in California, Texas and Florida that we have determined to be nonpaying." During a conference call with investors that same day, defendant McCarthy explained that the Company had been working through the account-cleanup process since July 20, 2016, that the Company began disconnecting non- paying accounts at the end of August 2016, and that the disconnects continued through the first quarter of 2017. These revelations caused the Company's stock price to fall nearly 11% ($5.40 per share) to a closing price of $43.95 on February 28, 2017. This precipitous fall wiped out approximately $424 million in shareholder equity. Then, on May 2, 2017, the Company reported its first quarter 2017 financial results that included a net loss of $75 million and a year-over-year first quarter decline in revenue of $53 million. During a conference call that day, defendant Ralph P. McBride, Frontier's Chief Financial Officer, stated that the non-paying accounts and the automation of legacy non-paying disconnects accounted for approximately $16 million of the revenue decline. Defendant McBride explained that "[t]he CTF account cleanup reduced Q1 revenue by $11 million, and the onetime impact related to automating the nonpay disconnect process for the legacy properties reduced Q1 revenue by $5 million." These revelations caused the Company's stock price to plummet more than 16% to $24.15 per share on May 3, 2017, wiping out another $376.9 million in shareholder equity. In an effort to prop up the Company's rapidly declining stock price, on or around May 12, 2017, Frontier's Board announced a reverse stock split at a ratio of 1 share for 15 shares, which the Company announced was completed on July 10, 2017.[BN] The Plaintiff is represented by: Jonathan P. Whitcomb, Esq. DISERIO MARTIN O'CONNOR & CASTIGLIONI LLP One Atlantic Street, 8th Floor Stamford, CT 06901 Telephone: (203) 358 0800 Facsimile: (203) 348 2321 E-mail: jwhitcomb@dmoc.com - and - Benny C. Goodman III, Esq. Erik W. Luedeke, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: (619) 231 1058 Facsimile: (619) 231 7423 E-mail: bennyg@rgrdlaw.com eluedeke@rgrdlaw.com GC SERVICES: Dickens Renews Class Certification Bid in Florida -------------------------------------------------------------- The Plaintiff in the lawsuit entitled TERRI E. DICKENS, on behalf of the estate of Ronnie E. Dickens and others similarly situated v. GC SERVICES LIMITED PARTNERSHIP, Case No. 8:16-cv-00803-JSM- TGW (M.D. Fla.), renews her motion to certify this class: (1) All persons with a Florida address, (2) to whom GC Services Limited Partnership mailed an initial communication that stated: (a) "if you do dispute all or any portion of this debt within 30 days of receiving this letter, we will obtain verification of the debt from our client and send it to you," and/or (b) "if within 30 days of receiving this letter you request the name and address of the original creditor, we will provide it to you in the event it differs from our client, Synchrony Bank," (3) between April 4, 2015 and April 4, 2016, (4) in connection with the collection of a consumer debt, (5) that was not returned as undeliverable to GC Services Limited Partnership. Ms. Dickens also asks the Court to appoint her, in her capacity as personal representative of the estate of Mr. Dickens, as class representative, and to appoint her counsel as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=adzEKDL5 The Plaintiff is represented by: James L. Davidson, Esq. Michael L. Greenwald, Esq. Jesse S. Johnson, Esq. GREENWALD DAVIDSON RADBIL PLLC 5550 Glades Road, Suite 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: jdavidson@gdrlawfirm.com mgreenwald@gdrlawfirm.com jjohnson@gdrlawfirm.com The Defendant is represented by: William S. Helfand, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 24 Greenway Plaza, Suite 1400 Houston, TX 77046 Telephone: (713) 659-6767 Facsimile: (713) 759-6830 E-mail: bill.hefland@lewisbrisbois.com GENERAL MILLS: Court OKs $97,500 Atty's Fees in "Rooker" -------------------------------------------------------- The United States District Court for the Central District of California granted Plaintiff's Motions for Final Approval of Class Action Settlement, Final Approval of Attorneys' Fees and Costs, and Final Approval of Class Representative Payment in the case captioned JAMIE ROOKER, individually, and on behalf of all others similarly situated, Plaintiff, v. GENERAL MILLS OPERATIONS, LLC, et al., Defendants, No. CV 17-467 PA (PLAx) (C.D. Cal.). The Court certifies the Settlement Class pursuant to Federal Rule of Civil Procedure 23, solely for the purpose of settlement. The Settlement Class is defined as: "any current or former non-exempt employees of Defendants GENERAL MILLS OPERATIONS, LLC, and GENERAL MILLS, INC. (Defendants) at their Carson facility at any time from November 7, 2012, to August 14, 2017, and who have not previously released the Released Claims." The Court approves payment of reasonable attorneys' fees to Class Counsel in the amount of $97,500 and costs in the amount of $7,203.23, to be paid from the Gross Settlement Fund as provided in the Settlement Agreement. The Court approves the payment of $5,000 to be paid from the Gross Settlement Amount in satisfaction of any claim for penalties that may be owed to under the Private Attorneys General Act (PAGA), Cal. Labor Code section 2699, et seq., with 75% as provided in the Settlement Agreement payable directly to the Labor and Workforce Development Agency (LWDA). The Court approves the payment for Settlement Administration Costs incurred by ILYM Group, Inc., in the amount of $14,658.99 to be paid from the Gross Settlement Fund as provided in the Settlement Agreement. A full-text copy of the District Court's March 26, 2018 Judgment is available at https://tinyurl.com/y8pqx2fn from Leagle.com. Jamie Rooker, on behalf of herself and others similarly situated, Plaintiff, represented by Andrea Leigh Rosenkranz, Lavi and Ebrahimian LLP & Joseph Lavi, Lavi and Ebrahimian LLP, 8889 West Olympic Blvd., Suite 200, Beverly Hills, CA 90211 General Mills Operations, LLC, a limited liability company & General Mills, Inc., a corporation, Defendants, represented by James E. Hart -- jhart@littler.com -- Littler Mendelson PC & Jon G. Miller -- jmiller@littler.com -- Littler Mendelson PC. GEORGE WESTON: Class Action Over Rana Plaza Collapse Ongoing ------------------------------------------------------------ Shannon Kari, writing for Law Times, reports that the legal analysis of the judge who declined to certify a proposed $2- billion class action in connection with the 2013 collapse of a plaza in Bangladesh in which 1,130 workers were killed was front and centre at the Ontario Court of Appeal. Lawyers for the appellants in Das v. George Weston Ltd. argued that Superior Court Justice Paul Perell exceeded his jurisdiction, went on an improper "fact-finding mission" and erred in his interpretation of the plaintiffs' pleadings. "Justice Perell did not look at the entire case," said Peter Jervis on the first day of a two-day hearing at the Court of Appeal. "He misconstrued the breadth of the negligence claim. He narrowed it to set up a straw claim that he could knock down," argued Mr. Jervis, a partner at Rochon Genova LLP. If the lower court decision is upheld, it could have a significant impact on class actions alleging negligence related to foreign operations, he suggested. "Is this court prepared to say that the laws of Ontario will not hold a Canadian company responsible for flaws in its supply chain that it knows about? There has never been a case like this," said Jervis. The action stems from the fact that the Loblaw subsidiary Joe Fresh purchased clothes from a company that used a sub-supplier to manufacture the goods inside the Rana Plaza, where the industrial accident occurred. Bureau Veritas, a company that Loblaw retained to conduct social audits of factories in Bangladesh, is also a defendant (Weston is the controlling shareholder of Loblaw). The class action is being supported financially by the Law Foundation of Ontario's class proceedings fund. Justice Perell dismissed the action last July. He found that the law of Bangladesh applied to the proposed class and the action was barred by a limitations period in that country. As well, the defendants' Rule 21 motion was successful as Justice Perell concluded that there were "no legally viable tort claims" against the defendants. In awarding $2.3 million in costs to the defendants, Justice Perell was critical of the plaintiffs' legal approach. Aspects of the pleadings where described as "conclusory, argumentative, rhetorical, tautological, inflammatory and question-begging," by the judge. "Loblaws and Bureau Veritas, who did not own or construct Rana Plaza or cause it to collapse, are accused of having and breaching a duty of care by not taking steps to protect the employees and others at Rana Plaza from the villainy of third parties," stated Justice Perell, in rejecting this position. In arguing that the Superior Court decision should be upheld, lawyers for Loblaw say that the plaintiffs are trying to impose liability for actions by third parties over which it had no control. "The real causes of the collapse were all in Bangladesh," states Christopher Bredt -- CBredt@blg.com -- lead lawyer for Loblaw, in written submissions filed with the Court of Appeal. "Under the appellants' approach, factory workers' rights would be governed by the law of whatever country hosts the corporate headquarters of the customer for whom they happen to be producing items at a particular moment in time," adds Mr. Bredt, a partner at Borden Ladner Gervais LLP. "This approach frustrates the putative class members' reasonable expectations and offends comity by arrogating to Ontario courts the power to impose our legal regime on the citizens of Bangladesh," he wrote. Loblaw has adopted a corporate social responsibility standard for its domestic and international businesses, which leads to a duty of care, Jervis argued during the Court of Appeal hearing. "They outsourced for profit. They knew there were dangers," he told the panel of justices -- David Doherty, Kathryn Feldman and Douglas Gray (sitting ad hoc). "You are pleading assumed responsibility. But the documents don't say that," noted Doherty. "If you pleaded to certain documents, is the motions judge not entitled to look at the documents?" he asked. Justice Perell went beyond what a judge is permitted to do in a Rule 21 motion, Jervis replied. "He can read them, but they are not evidence. At this stage, he has to take the pleadings as true. At trial, that may be disproven," Jervis added. "Justice Perell reduced this case to a purchaser of goods that does not have liability to the workers. The facts that are pleaded, plead proximity. This is not a case of foreign farm workers," stated Jervis. At times, the judicial panel appeared skeptical of the characterization of Justice Perell's legal analysis. "It is all linked together. I am not convinced he has reduced it," said Feldman. On the issue of costs, the Law Foundation of Ontario is asking the Court of Appeal to find either that no costs are payable or, alternatively, reduce the total award to $500,000 from $2.3 million if the appeal is unsuccessful. The Court of Appeal reserved its decision after the two-day hearing. [GN] GLOBAL EAGLE: Purcell Julie Investigates Fiduciary Duty Breach -------------------------------------------------------------- Purcell Julie & Lefkowitz LLP, a class action law firm dedicated to representing shareholders nationwide, is investigating a potential breach of fiduciary duty claim involving the board of directors of Global Eagle Entertainment Inc. (NASDAQ: ENT). If you are a shareholder of Global Eagle Entertainment Inc. and are interested in obtaining additional information regarding this investigation, free of charge, please visit us at: http://pjlfirm.com/global-eagle-entertainment-inc/ You may also contact Robert H. Lefkowitz, Esq. either via email at rl@pjlfirm.com or by telephone at 212-725-1000. One of our attorneys will personally speak with you about the case at no cost or obligation. Purcell Julie & Lefkowitz LLP -- http://www.pjlfirm.com-- is a law firm exclusively committed to representing shareholders nationwide who are victims of securities fraud, breaches of fiduciary duty and other types of corporate misconduct. [GN] GOLD STANDARD: Zollicoffer Seeks to Certify Class of Laborers ------------------------------------------------------------- The Plaintiffs in the lawsuit titled JAMES ZOLLICOFFER, ANTWOIN HUNT and NORMAN GREEN, on behalf of themselves and similarly situated laborers v. GOLD STANDARD BAKING, INC., PERSONNEL STAFFING GROUP, LLC d/b/a MOST VALUABLE PERSONNEL d/b/a MVP, Case No. 1:13-cv-01524 (N.D. Ill.), file with the Court a revised pleading pursuant to the Court's April 23, 2018 Opinion and Order and move the Court for an order certifying the proposed class for claims arising under Section One of the Civil Rights Act of 1866. The Plaintiffs further seek to certify this class: African-American laborers who sought work assignments through MVP and were otherwise eligible to work at GSB, but on one or more occasions were not assigned to work at GSB when a position for which they were otherwise qualified was available during the period of four years prior to the filing of the Plaintiffs' Original Complaint for the Section 1981 claims up through and including December 31, 2015. The Plaintiffs also ask the Court to appoint them as class representatives, to appoint their counsel to serve as counsel for the class, and to authorize 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=3VLpAUej The Plaintiffs are represented by: Christopher J. Williams, Esq. Alvar Ayala, Esq. WORKERS' LAW OFFICE, P.C. 53 W. Jackson Blvd., Suite 701 Chicago, IL 60604 Telephone: (312) 795-9121 E-mail: cwilliams@wagetheftlaw.com aayala@wagetheftlaw.com - and - Joseph M. Sellers, Esq. Shaylyn Cochran, Esq. Miriam R. Nemeth, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 E-mail: jsellers@cohenmilstein.com scochran@cohenmilstein.com mnemeth@cohenmilstein.com GOLDEN STATE: Court Needs Supplemental Briefing in "Palma" ---------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order requiring Supplemental Briefing in the case captioned ROMEO PALMA, Plaintiff, v. GOLDEN STATE FC, LLC, d/b/a AMAZON.COM, Defendant, No. 1:18-cv-00121-DAD-MJS (E.D. Cal.). The Plaintiff is employed by the defendant in its Patterson, California fulfillment center. The Plaintiff's job duties at the fulfillment center include packaging, loading, unloading, and various other tasks. The Plaintiff brings this action on behalf of himself and all other similarly situated employees, alleging that they have been exposed to, have suffered, and/or were permitted to work under defendant's unlawful employment practices. Here, the plaintiff's complaint alleges that the defendant regularly requires the plaintiff to work shifts in excess of 10 hours without providing a third rest break. However, neither party has addressed whether the First Amended Complaint alleges that this practice was universally followed in every instance. Because the plaintiff has challenged jurisdiction by arguing that the violation rate in this case is less than 100%, the defendant now bears the burden of demonstrating that jurisdiction is proper in this court. Accordingly, the defendant is ordered to submit supplemental briefing addressing the following issues: (1) whether the allegations of the FAC, as pleaded, allege a 100% violation rate under Ibarra; (2) if not, what constitutes a reasonable violation rate based on the allegations of the FAC and the available evidence; and (3) what constitutes a reasonable estimate of the amount in controversy in light of that violation rate. The Plaintiff is directed to file its response to the defendant's supplemental brief, if any, within fourteen days thereafter. A full-text copy of the District Court's April 12, 2018 Order is available at https://tinyurl.com/ybrvyfwe from Leagle.com. Romeo Palma, Plaintiff, represented by Joshua H. Haffner -- jhh@haffnerlawyers.com -- Haffner Law, PC. Golden State FC, LLC, Doing business as Amazon.Com, Defendant, represented by Alejandro David Szwarcsztejn -- david.szwarcsztejn@morganlewis.com -- Morgan, Lewis and Bockius LLP & Barbara J. Miller -- barbara.miller@morganlewis.com -- Morgan Lewis and Bockius LLP. GSP TRANSPORTATION: Enters Settlement in Principle with Campbell ---------------------------------------------------------------- The Hon. Travis R. McDonough entered an order in the lawsuit entitled SUSAN CAMPBELL, on behalf of herself and on behalf of all other similarly situated current and former employees v. GSP TRANSPORTATION, INC. and JEFF SCHOEPHEL, Case No. 1:17-cv-00045- TRM-CHS (E.D. Tenn.), denying with leave to re-file the Plaintiff's motion for leave to file an amended complaint and motion to certify class. On April 27, 2018, the parties submitted a joint status report, representing that they have come to a settlement in principle and that the Plaintiff's motion for leave to file an amended complaint and motion to certify class are now moot, according to the Order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=wVZsXPfv GUADALUPE, CA: "Limon" Suit Seeks Overtime Pay under FLSA --------------------------------------------------------- CARLOS H. LIMON, NORMA BRIBIESCA, JULIO CARRILLO, SALVADOR CURIEL, ALEJANDRO ESTRADA, STEVEN IWASKO, CIAN LENEHAN, ALEJANDRO MARIN, FRANK MEDINA, JOANA MENDOSA, HEATH MILLER, MARIA NEGRANTI, EFRAIN ISAAC OSEGUERA, ISRAEL REYES, and ROSANNE TESORO, the Plaintiffs, v. CITY OF GUADALUPE, and DOES 1 THROUGH 10, inclusive, the Defendants, Case No. 2:18-cv-04122 (C.D. Cal., May 16, 2018), seeks to recover compensation for overtime work pursuant to the Fair Labor Standards Act. According to the complaint, the Defendants have willfully violated, and are willfully violating, the compensation requirements of the FLSA, by employing Plaintiffs, and all other similarly situated employees, for weeks longer than the applicable maximum weekly hours established by Section 207 of the FLSA, without properly compensating them for work performed in excess of the hours at rates not less than one and one-half times their regular rates of pay. The Plaintiffs are non-exempt rank and file employees who are regularly suffered or permitted to work in excess of the applicable overtime threshold every work period, but do not receive compensation for all such time worked at the rate of one and one-half times their regular rate of pay from the Defendant. More specifically, Defendants are not paying for all hours worked above the overtime threshold, are not paying the correct base hourly rate of pay which thereby causes an incorrect regular rate of pay, and do not include all forms of compensation in its calculation of the Plaintiffs regular rate of pay, all in violation of 29 U.S.C. Section 207. Guadalupe is a small city located in Santa Barbara County, California. According to the U.S. Census of 2010, the city has a population of 7,080.[BN] The Plaintiffs are represented by: Michael A. McGill, Esq. ADAMS, FERRONE & FERRONE 4333 Park Terrace Drive, Suite 200 Westlake Village, CA 91361 Telephone: (805) 373 5900 Facsimile: (818) 874 1382 E-mail: mmcgill@adamsferrone.com GUAM: USCIS Attorney Fights Sanction for Denial of H-2B Petitions ----------------------------------------------------------------- Kevin Kerrigan, writing for The Guam Daily Post, reports that the attorney for the Justice Department Office of Immigration Litigation maintains the U.S. Citizenship and Immigration Service is in compliance with the District Court's preliminary injunction and should not be held in contempt or sanctioned for its continued denial of H-2B petitions. Assistant U.S. Attorney Glenn Girdharry filed his response on April 27 in answer to a motion filed on May 25 by attorney Jeff Joseph, who represents the Guam Contractors Association and 11 other plaintiffs. Mr. Joseph wants Chief Judge Frances Tydingco-Gatewood of the District Court of Guam to impose sanctions on USCIS and hold the immigration agency in contempt after its denial of three H-2B petitions from Guam Advance Enterprises. Guam Advance Enterprises is not one of the original plaintiffs, but Joseph describes the company as a "potential class member," whose petitions were denied after Judge Gatewood's March 31 decision to grant class-action certification to the lawsuit and despite her Jan. 24 preliminary injunction ordering USCIS to reverse its previous denials of H-2B worker petitions, and to stop the blanket denial of future petitions. Mr. Girdharry argues that the preliminary injunction doesn't apply to H-2B petitions filed by companies that are not among the original 12 plaintiffs and the court hasn't issued any order to expand the scope of its preliminary injunction beyond those 12 plaintiffs. Mr. Girdharry points out that the preliminary injunction refers repeatedly to "the plaintiffs," which he maintains "means precisely that -- the named plaintiffs in this lawsuit." He argues "there is no reference anywhere in the (preliminary injunction) to a 'class' or 'proposed class,' confirming (USCIS') reading that the injunction does not apply to unidentified third parties that may claim membership in the putative class." Mr. Girdharry says Mr. Joseph's request for sanctions against USCIS "is highly inappropriate and should be rejected outright." He added "the court should not expand the scope of the preliminary injunction to the certified class." [GN] HELIX ENERGY: "Hernandez" Suit Seeks Overtime Wages under FLSA -------------------------------------------------------------- GERALD HERNANDEZ, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. HELIX ENERGY SOLUTIONS GROUP, INC., the Defendant, Case No. 4:18-cv-01588 (S.D. Tex., May 16, 2018), seeks to recover unpaid overtime wages under the Fair Labor Standards Act of 1938. According to the complaint, Helix violated the FLSA by employing Plaintiff and other similarly situated nonexempt employees "for a workweek longer than 40 hours [but refusing to compensate them] for [their] employment in excess of 40 hours at a rate not less than one and one-half times the regular rate at which [they are or were] employed." During Plaintiff's employment with Helix, he regularly worked in excess of 70 hours per week. In fact, Plaintiff worked a minimum of 84 hours per week each week that he was on rotation. Helix knew or reasonably should have known that Plaintiff worked in excess of 40 hours per week. Helix did not pay Plaintiff overtime "at a rate not less than one and one-half times the regular rate at which he [was] employed. Helix Energy Solutions Inc., known as Cal Dive International prior to 2006, is an American oil and gas services company headquartered in Houston, Texas.[BN] The Plaintiff is represented by: Melissa Moore, Esq. Curt Hesse, Esq. Lyric Center, Esq. Bridget Davidson, Esq. MOORE & ASSOCIATES 440 Louisiana Street, Suite 675 Houston, TX 77002 Telephone: (713) 222 6775 Facsimile: (713) 222 6739 HITACHI AUTOMOTIVE: Court Certifies Class in "Lear" FLSA Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Kentucky, Central Division, Lexington, granted Plaintiffs' Motion to Certify Class in the case captioned CAROL LEAR and JAMES TINCHER, On behalf of themselves & all others similarly situated, Plaintiffs, v. HITACHI AUTOMOTIVE SYSTEMS, AMERICAS, INC., Defendant, Action No. 5:17-cv-186-JMH (E.D. Ky.). This is an action for unpaid overtime wages brought by Plaintiffs Carol Lear and James Tincher on behalf of themselves and other similarly situated employees, including without limitation, Production Supervisors employed by Defendant Hitachi Automotive Systems Americas, Inc., at its Berea, Kentucky manufacturing facilities. This collective action challenges the Defendant's policy of failing to pay the Plaintiffs and other similarly situated employees overtime pay for hours over 40 worked in a workweek in violation of the Fair Labor Standards Act and the Kentucky Wage and Hour Act, KRS Section 337.010. The case sits at the notice stage of the bifurcated certification process. The Plaintiffs ask the Court to conditionally certify their FLSA claim for unpaid overtime wages as a collective action and order notice of the action to: "All current and former supervisors including, without limitation, Production Supervisors, Quality Supervisors, and Warehouse Supervisors employed by the Defendant in its Berea, Kentucky manufacturing facilities at any time since April 24, 2012, excluding all supervisors who have only worked on the south side of the Berea Motors facility since April 24, 2012." After consideration of the parties' arguments, the lenient standard, and in the interest of justice, the Court holds the notice will include: "All current and former supervisors including, without limitation, Production Supervisors, Quality Supervisors, and Warehouse Supervisors employed by the Defendant in its Berea, Kentucky manufacturing facilities at any time since April 24, 2014, who worked more than forty (40) hours in any workweek during their employment, excluding all supervisors who have only worked on the south side of the Berea Motors facility since April 24, 2014." In addition to facilitating notice, the FLSA allows "courts to monitor preparation and distribution of the notice" to the putative members of the collective action, thereby ensuring that it is timely, accurate, and informative. A full-text copy of the District Court's March 26, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yaocovty from Leagle.com. Carol Lear, On behalf of HERSELF and All Others Similarly Situated & James Tincher, Plaintiffs, represented by David W. Garrison -- dgarrison@barrettjohnston.com -- Barrett, Johnston, Martin & Garrison, LLC, pro hac vice, John Christopher Sanders -- csanders@chrissanderslaw.com -- Joshua A. Frank -- jfrank@barrettjohnston.com -- Barrett, Johnston, Martin & Garrison, LLC, pro hac vice, Scott P. Tift -- stift@barrettjohnston.com -- Barrett, Johnston, Martin & Garrison, LLC, pro hac vice & Seth M. Hyatt -- shyatt@barrettjohnston.com -- Barrett, Johnston, Martin & Garrison, LLC, pro hac vice. Hitachi America, Ltd., Defendant, represented by Craig P. Siegenthaler -- csiegenthaler@fisherphillips.com -- Fisher & Phillips, Lauren Claycomb, Fisher & Phillips, Megan R. U'Sellis - - musellis@fisherphillips.com -- Fisher & Phillips & Timothy J. Weatherholt -- tweatherholt@fisherphillips.com -- Fisher & Phillips. Hitachi Automotive Systems Americas, Inc., Defendant, represented by Craig P. Siegenthaler, Fisher & Phillips, Megan R. U'Sellis, Fisher & Phillips & Timothy J. Weatherholt, Fisher & Phillips. HOMES OF OPPORTUNITY: Belmont Moves to Certify RS Managers Class ---------------------------------------------------------------- The Plaintiff in the lawsuit captioned Susan Belmont, on behalf of herself and others similarly situated v. Homes of Opportunity, Inc. and Lawrence A. Maniaci, Case No. 4:18-cv-10854-LVP-MKM (E.D. Mich.), moves for the conditional certification of this collective class: All persons who are or have been employed by Defendants Homes of Opportunity, Inc. and Lawrence A. Maniaci as Residential Services Managers and similar positions for any of the homes they operate in Michigan from [three years back from the date the Court orders conditional certification] to the present. The Motion is made pursuant to 29 U.S.C. Section 216(b) of the Fair Labor Standards Act. Ms. Belmont also asks the Court to order the Defendants to produce the list necessary to facilitate notice to the proposed class members. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=xm8RtI6W The Plaintiff is represented by: Megan A. Bonanni, Esq. Robin B. Wagner, Esq. PITT, MCGEHEE, PALMER AND RIVERS, P.C. 117 West Fourth Street, Suite 200 Royal Oak, MI 48067 Telephone: (248) 398-9800 Facsimile: (248) 398-9804 E-mail: mbonanni@pittlawpc.com rwagner@pittlawpc.com HOWROYD-WRIGHT EMPLOYMENT: Becerra-South Sues over Overtime Wages ----------------------------------------------------------------- APRIL BECERRA-SOUTH, individually, and on behalf of other members of the general public similarly situated, the Plaintiff, v. HOWROYD-WRIGHT EMPLOYMENT AGENCY, INC./APPLE ONE SERVICES, LTD., and DOES 1 through 25, the Defendants, Case No. BC705970 (Cal. Super. Ct., May 16, 2018), seeks to recover unpaid wages under the California Labor Code. According to the complaint, the Plaintiff's claims are typical of the claims of the class members. The Plaintiff and the members of the class sustained damages arising out of Defendants' common practice of failing to: -- pay overtime wages, -- provide meal and rest periods, -- pay all wages due at termination, -- provide proper paycheck stubs, and -- pay all wages for all hours worked. Howroyd-Wright Employment Agency, Inc., doing business as AppleOne, provides employment services. It offers career assistance, direct hire, temporary and contingent, project staffing, and managed services; and government, payroll accommodation, education and training, and outplacement services.[BN] The Plaintiff is represented by: Michael A. Gould, Esq. Aarin A. Zeif, Esq. GOULD & ASSOCIATES 17822 E 17th Street, Suite 106 Tustin, CA 92780 Telephone: (714) 669 2850 Facsimile: (714) 544 0800 E-mail: Michael@wageandhourlaw.com Aarin@wageandhourlaw.com HYUNDAI MOTOR: Court Narrows Claims in Defective Brakes Suit ------------------------------------------------------------ The United States District Court for the Western District of New York granted in part and denied in part Defendant's Motion for Summary Judgment in the case captioned ANNE MARIE HAAG, on behalf of themselves and all others similarly situated, Plaintiff, v. HYUNDAI MOTOR AMERICA, Defendant, No. 12-CV-6521L (W.D.N.Y.). The Plaintiff alleges that defendant Hyundai Motor America breached the terms of an express service warranty, and misrepresented or omitted material facts about an alleged vehicle defect at the time she purchased her 2009 Hyundai Santa Fe. The Plaintiff initially claims that the defendant breached its obligations to repair or replace her vehicle's brakes, under the terms of the Limited Warranty that accompanied her purchase of a 2009 Hyundai Santa Fe. The Defendant argues that the plaintiff's breach of express warranty claim must be dismissed, because the particular defects that the plaintiff alleges braking systems with rotors that were too thin and/or caliper pins that were not galvanized or otherwise sufficiently anti-corrosive to avoid premature rusting are, as a matter of law, design defects not covered by the Warranty, and not defects in factory workmanship or materials. Under New York law, a manufacturing defect results when a mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes harm, while a design defect results when the product as designed is unreasonably dangerous for its intended use. Here, it appears undisputed that the components of the brake system for the plaintiff's vehicle were intentionally chosen by defendant for use throughout the Santa Fe product line. The Plaintiff makes no plausible claim, and offers no evidence, that their inclusion in the plaintiff's vehicle was the result of a mistake or fabrication flaw. To the contrary, the plaintiff specifically claims that the entire 2007-2012 Santa Fe product line suffered from the same defect, premature corrosion of the braking system, resulting from the intentional use of inferior or defective materials. The Plaintiff simply urges the Court to depart from recent precedent and find that a design defect resulting from an intentional selection of defective materials is as violative of the Warranty and covered there-under as much as a negligent or inadvertent one. Bound as it is by well-settled precedent and finding no flaw therein, the Court declines to depart from it. As such, the plaintiff's claims that the entire Santa Fe product line, as designed, contained a defective rear braking system, are appropriately viewed as design defect claims rather than manufacturing defect claims. They are therefore not covered by the express terms of the Warranty, and fail as a matter of law. N.Y. Gen. Bus. Law Section 349 prohibits misleading business practices which harm consumers, and requires pleading and proof of three elements: (1) that an act or practice was consumer- oriented; (2) that it was misleading in a material respect; and (3) that the plaintiff was injured thereby. The Plaintiff contends that the defendant concealed, or at least omitted, information concerning the alleged brake system defect in her vehicle at the time of purchase. The Court find that multiple questions of material fact preclude summary judgment on the plaintiff's consumer protection claim. These include factual disputes concerning nearly every element of the claim, including: whether the brake parts at issue were actually defective; whether and to what extent the defendant was aware of the defect; whether the defendant concealed or omitted information concerning the defect and/or the scope of relevant Warranty coverage to the plaintiff in connection with the plaintiff's purchase of her vehicle; whether the omission of such information is material; and whether and to what the plaintiff's damages are attributable to the concealment or omission of information by the defendant, rather than to the plaintiff's alleged failure to perform regular vehicle maintenance. Because the facts material to the plaintiff's N.Y. General Business Law Section 349 claim are largely in dispute, as matters now stand, resolution of that claim on a motion for summary judgment would be inappropriate. The Defendant's motion for summary judgment is granted in part, and denied in part. A full-text copy of the District Court's March 26, 2018 Decision and Order is available at https://tinyurl.com/y95qt4z8 from Leagle.com. Anne Marie Haag, both individually and on behalf of a class of all others similarly situated, Plaintiff, represented by Elmer R. Keach, III -- bobkeach@keachlawfirm.com -- Law Offices of Elmer Robert Keach, III, PC, Gary S. Graifman -- ggraifman@kgglaw.com - - Kantrowitz Goldhamer & Graifman, P.C., Nicholas A. Migliaccio - - nmigliaccio@classlawdc.com -- Migliaccio & Rathod, Gary E. Mason, Whitfield Bryson & Mason LLP & Jennifer S. Goldstein, Whitfield Bryson & Mason LLP, pro hac vice, 518 Monroe Street, Nashville, TN, 37208 Hyundai Motor America, Defendant, represented by Michael L. Kidney -- michael.kidney@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Timothy J. Graber -- tgraber@gmclaw.com -- Gibson, McAskill & Crosby, James W. Clayton -- james.clayton@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice & Brian P. Crosby -- bcrosby@gmclaw.com -- Gibson, McAskill & Crosby, LLP. INTEREXCHANGE INC: 9th Cir. Refuses to Review Au-Pair Class Cert ---------------------------------------------------------------- Perry Cooper, writing for Bloomberg BNA, reports that former au pairs alleging their visa sponsors engaged in wage-fixing may continue with their class action after the Tenth Circuit denied review of the class certification order April 26. The sponsors failed to establish that review of the order is appropriate, the U.S. Court of Appeals for the Tenth Circuit said. Federal Rule of Civil Procedure 23(f) gives federal appeals court discretion to review class certification orders, but review is the "exception rather than the rule," the court said. [GN] IMMEDIATE CREDIT: Class Certification Sought in "Hovermale" Suit ---------------------------------------------------------------- The Plaintiff in the lawsuit styled JENNIFER D. HOVERMALE, on behalf of herself and all others similarly situated v. IMMEDIATE CREDIT RECOVERY, INC., Case No. 1:15-cv-05646-RBK-JS (D.N.J.), moves the Court for an Order certifying the case to proceed as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Court will commence a hearing on June 4, 2018, at 10:00 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0vKLU0I1 The Plaintiff is represented by: Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Telephone: (973) 379-7500 Facsimile: (973) 532-2056 E-mail: philip@sternthomasson.com andrew@sternthomasson.com J.C. PENNEY: Fails to Pay Minimum & Overtime Wages, Garcia Says --------------------------------------------------------------- DOMINIC GARCIA, an individual and on behalf of current and former similarly situated employees in the State of California, the Plaintiff, v. J. C. PENNEY CORPORATION, INC. and DOES 1 through 50, inclusive, the Defendant, Case No. 37-2018-00024148-CU-OE-CTL (Cal. Super. Ct., May 16, 2018), seeks to recover minimum and regular wages and overtime wages under the California Labor Code. According to the complaint, the Plaintiff and other similarly- situated employees of Defendants worked under similar policies, practices, and procedures relating to wage statements, recordkeeping, and payment of wages applicable to Defendants' facilities in California. The Plaintiff and similarly aggrieved employees were nonexempt hourly employees and eligible to earn non-discretionary bonuses and commissions based on sales and performances, including additional remuneration for the sale of JCP credit cards to customers. The Plaintiff and similarly aggrieved employees worked more than 8 hours in a workday and/or more than 40 hours in a workweek. J. C. Penney is an American department store chain with 850 locations in 49 U.S. states, and Puerto Rico.[BN] The Plaintiff is represented by: Brian Short, Esq. Kristina De La Rosa, Esq. SHORTLEGAL, APC 350 10th Ave., Suite 1000 San Diego, CA 92101 Telephone: (619) 272 0720 Facsimile: (619) 839 3129 JPAY INC: Reyes Moves to Certify Class and Subclass of Ex-Inmates ----------------------------------------------------------------- The Plaintiff in the lawsuit titled JOE RUDY REYES, individually and on behalf of all others similarly situated v. JPAY, INC.; SECURUS TECHNOLOGIES, INC.; PRAXELL INC.; AND SUNRISE BANKS NATIONAL ASSOCIATION, Case No. 2:18-cv-00315-R-MRW (C.D. Cal.), moves the Court for an order certifying this class: All persons who, from applicable statutes of limitation through the present, upon their release from a California Department of Corrections and Rehabilitation facility, were given the balance of their inmate trust account and/or all or a portion of the funds owed to them under Cal. Penal Code Section 2713.1 on a "JPay Progress Card," as issued and/or serviced by JPay, Inc., Praxell, Inc., and Sunrise Bank National Association. The Plaintiff also moves the Court for an order to certify this Subclass: All persons who, from applicable statutes of limitation through the present, upon their release from a California Department of Corrections and Rehabilitation facility, were given all or a portion of the funds owed to them under Cal. Penal Code Section 2713.1 on a "JPay Progress Card," as issued and/or serviced by JPay, Inc., Praxell, Inc., and Sunrise Bank National Association. The Plaintiff further moves to have the Plaintiff's Counsel to be appointed as Class Counsel. The Court will commence a hearing on June 4, 2018 at 10:00 a.m., to consider the Motion. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=RFkxLM6d The Plaintiff is represented by: Lisa Faye Petak, Esq. KELLER ROHRBACK L.L.P. 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 E-mail: lpetak@kellerrohrback.com - and - Mark A. Griffin, Esq. Laura R. Gerber, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: mgriffin@kellerrohrback.com lgerber@kellerrohrback.com - and - Lisa Faye Petak, Esq. KELLER ROHRBACK L.L.P. 801 Garden Street, Suite 301 Santa Barbara, CA 93101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 E-mail: lpetak@kellerrohrback.com - and - Mark A. Griffin, Esq. Laura R. Gerber, Esq. KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: mgriffin@kellerrohrback.com lgerber@kellerrohrback.com - and - Sabarish Neelakanta, Esq. Daniel Marshall, Esq. Masimba Mutamba, Esq. THE HUMAN RIGHTS DEFENSE CENTER P.O. Box 1151 Lake Worth, FL 33460 Telephone: (561) 360-2523 Facsimile: (866) 228-1681 E-mail: sneelakanta@humanrightsdefensecenter.org dmarshall@humanrightsdefensecenter.org mmutamba@humanrightsdefensecenter.org JPMORGAN CHASE: Childresses' Bid to Certify Class Denied -------------------------------------------------------- In the lawsuit styled GARY and ANNE CHILDRESS, et al., the Plaintiffs, v. JPMORGAN CHASE & CO., et al., the Defendants, Case No. 5:16-CV-298-BO (E.D.N.C.), the Hon. Judge Terrence W. Boyle entered an order on May 18, 2018: 1. granting Parties' joint motion to stay consideration of Plaintiffs' pending motions pending the outcome of mediation between the parties; 2. denying without prejudice motions to certify class and to compel, with permission to refile in the event the matters are not resolved through mediation; and 3. granting motions to seal filed by JPMorgan Chase. The Court said, "This action is hereby stayed. The clerk is directed to remove this case from the Court's active docket while the parties pursue mediation. At the close of 90 days from the date of entry of this order, or earlier if mediation is successful or reaches an impasse, the parties shall file a joint notice and status report detailing what issues, if any, remain to be adjudicated. On the filing of the joint notice and status report, the clerk shall return the case to the Court's active docket without further order of the Court." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LRkkHzWT KOHL'S DEPARTMENT: Collins et al Seek to Certify Collective Suit ---------------------------------------------------------------- In the lawsuit styled STACY COLLINS, TIANGE LUSENI and LISA PETERSON, individually and on behalf of other similarly situated individuals, the Plaintiffs, v. KOHL'S DEPARTMENT STORES, INC. and KOHL'S CORPORATION, the Defendants, Case No. 3:18-cv-00065- VAB (D. Conn.), the Plaintiffs move the Court for an order: 1. conditionally certifying an "opt-in" collective action; 2. approving issuance of notice to: "all Assistant Store Managers employed by Defendants at any time from May 21, 2015 forward"; and 2. directing Defendants to produce the names, last known addresses, telephone numbers, and email addresses. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=Xg8ZZMc5 The Plaintiffs are represented by: Richard E. Hayber, Esq. Michael Petela, Esq. HAYBER LAW FIRM, LLC 221 Main Street, Suite 502 Hartford, CT 06106 Telephone: (860) 522 8888 Facsimile: (860) 218 9555 E-mail: rhayber@hayberlawfirm.com mpetela@hayberlawfirm.com - and - Shannon Liss-Riordan, Esq. PETER DELANO LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994 5800 Facsimile: (617) 994 5801 E-mail: sliss@llrlaw.com pdelano@llrlaw.com LEGEND MINING: Conditional Certification in "Kaesemeyer" Denied --------------------------------------------------------------- The United States District Court for the Western District of Louisiana, Lafayette Division, denied Plaintiffs' Motion for Conditional Certification in the case captioned Kaesemeyer, v. Legend Mining USA Inc et al., Civil Action No. 6:17-cv-01520 (W.D. La.). The Plaintiff, a resident of the State of Washington, worked for Legend Mining USA, Inc., the American subsidiary of Legend Mining, Inc., at the Weeks Island salt mine in Iberia. The Plaintiff alleges he was told that pay dates would be the 10th and 25th of every month. The Plaintiff alleges he never received a pay check for the 10 days he worked in October. The Plaintiff filed this action alleging causes of action under the Fair Labor Standards Act (FLSA) for non-payment of wages and miscalculated regular rate, the Louisiana Wage Payment act, La. R.S. Sections 23:631-632 and breach of contract. The Plaintiff seeks certification of a collective pursuant to 29 U.S.C. Section 216(b), consisting of: "All employees of Legend Mining Inc., and Legend Mining USA, Inc., within the United states of America, who worked within the tree years prior to the filing of this Complaint and were not paid overtime premiums consisting of one and a half times their regular rate under the FLSA." The Court finds that the Plaintiff has failed to identify any other potential plaintiffs, failed to obtain affidavits from any potential plaintiffs, and failed to provide evidentiary support for the existence of a widespread plan or policy. The Plaintiff's Complaint and employment contract do not provide support for his claim that similarly situated individuals exist, leaving the Plaintiff with only unsupported and minimal allegations that Legend violated the FLSA such that it affected all employees at Legend. Those bare allegations are insufficient to support conditional certification. The Court finds that the Plaintiff has failed to show that a collective action should be conditionally certified and notice issued. Under Lusardi v. Xerox Corporation, 118 F.R.D. 351 (D.N.J. 1987)) lenient standard, the relevant inquiry for the Court is whether the Plaintiff has sufficiently shown that other current and former employees of Legend were together the victims of a single decision, policy or plan. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/yc6wnwrv from Leagle.com. Daniel Kaesemeyer, Plaintiff, represented by Charles Joseph Stiegler, Stiegler Law Firm. 318 Harrison Ave., Suite 104, New Orleans, LA 70124 Legend Mining U S A Inc & Legend Mining Inc, Defendants, represented by Lisa Brener, Brener Law Firm & Douglas R. Kraus, Brener Law Firm, 3640 Magazine Street, New Orleans, LA 70115 LEWIS GALE: "Hardy" Suit Seeks Minimum & OT Wages under FLSA ------------------------------------------------------------ KEITH HARDY, KIRK HENDRICKS, RODRIGO CONTRERAS, SHANNON FINKS, and DEION SANDERS, individually and on behalf of all other employees and former employees of Lewis Gale Medical Center, LLC similarly situated, the Plaintiffs, v. LEWIS GALE MEDICAL CENTER, LLC, the Defendant, Case No. 7:18-cv-00218-EKD (W.D. Va., May 16, 2018), seeks to recover compensatory and punitive damages, unpaid minimum wages and overtime compensation, liquidated damages, attorney's fees, pre-judgment and post-judgment interest, and costs under the Fair Labor Standards Act. According to the complaint, Plaintiffs are all hourly, non-exempt employees within the definition of the Fair Labor Standards Act, and therefore are entitled to minimum wages and to overtime compensation for any hours worked over 40 hours per week. The Defendant strongly encouraged, or required, Plaintiffs to clock in seven minutes prior to the start of their shift. Plaintiffs are prohibited from signing in more than seven minutes early. The Plaintiffs were only permitted to clock out within the seven minute period prior to the end of their shift if their replacement had already reported for duty. Lewis Gale Medical Center, LLC operates hospitals and medical centers in the United States.[BN] The Plaintiffs are represented by: John P. Fishwick, Jr., Esq. Monica L. Mroz, Esq. Carrol M. Ching, Esq. FISHWICK & ASSOCIATES PLC 101 South Jefferson Street, Suite 500 Roanoke, VA 24011 Telephone: (540) 345 5890 Facsimile: (540) 343 5789 E-mail: John.Fishwick@fishwickandassociates.com Monica.Mroz@fishwickandassociates.com Carrol.Ching@fishwickandassociates.com LIVE NATION: June 18 Lead Plaintiff Motion Deadline Set ------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on April 30 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Live Nation Entertainment, Inc. (NYSE: LYV) from February 23, 2017 through March 30, 2018, both dates inclusive (the "Class Period"). The lawsuit seeks to recover damages for Live Nation investors under the federal securities laws. To join the Live Nation class action, go to http://www.rosenlegal.com/cases-1333.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, defendants during the Class Period made materially false and/or misleading statements and/or failed to disclose that: (1) Live Nation failed to abide by the terms of an antitrust consent decree with the Department of Justice (the "Consent Decree"); (2) Live Nation lacked adequate internal controls to prevent a violation of the Consent Decree; and (3) as a result of the foregoing, Live Nation's financial statements and defendants' statements about Live Nation's business, operations, and prospects, were materially false and misleading at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than June 18, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1333.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] LYFT: Drivers File Class Action Over Undisclosed Charges -------------------------------------------------------- Eric Ross, writing for Koaa, reports that the popular ride- sharing service "Lyft" is at the center of a federal lawsuit -- accused of ripping off its drivers. Chief Investigative Reporter Eric Ross put the company's honesty and integrity to the test to see whether it's being upfront about how it pays employees. News 5 Investigates took 5 Lyft rides and on every ride, there was a difference in the fare Lyft charged us and what the company told the driver we paid. This price discrepancy happened before Lyft took out its standard service fees. James Campbell has been driving for Lyft for about 6 months. "You are your own boss," he said. "You don't have to answer to anybody." Mr. Campbell retired from the oil industry and drives part-time to stay make a little extra money. "I like to make at least $50 a day," he said. With Mr. Campbell's permission, News 5 hit the streets to find out whether the billion dollar company is taking advantage of employees. On our first ride, we had Campbell take us from our studio in Colorado Springs to the Starbucks in The Promenade Shoppes at Briargate -- about 5 miles away. At the end of our ride, we compared the fare. On our phone, we paid $10.81 for the ride. However, it showed Campbell we paid $8.94 for our ride and then Lyft took out $2.24 in service fees to give him a total of $6.70. "So we're missing about a dollar and something somewhere," Mr. Campbell said. It's actually $1.87 fare difference Lyft didn't tell the driver about. That's in addition to the $2.24 service fee Lyft took out, bringing the total fees to $4.11. On our second ride, we had Campbell drive from the Briargate Starbucks to the Kum and Go gas station on N. Chestnut which is a little more than 7.5 miles away. On this ride, Lyft charged us $13.43. On Campbell's phone, Lyft showed him we paid $10.57 -- a $2.87 difference. That's before Lyft deducted it's "service fee" of $2.64, bringing the total fees to $5.50. "It all adds up," Mr. Campbell said. "Did I get stiffed or does Lyft have an account somewhere that the dollar (discrepancy) is paying for like a lawsuit?" Lyft is currently fighting a federal lawsuit which claims the company is deceiving drivers and underpaying them, while lining the company's pocketbook. In all of our rides, we noticed at least a $1.50 discrepancy between what Lyft charged us for the our fare, and what Lyft told the drivers we paid. "Lyft is making plenty of money," Mr. Campbell said. Of course, Mr. Campbell would like to see the pay scale be more transparent. "They don't explain crap," he said. Mr. Campbell would also like to see more of the money go back to the drivers since they also have to factor in the cost of gas. "We take what we make and we make the best of it," he said. Lyft declined to comment on pending litigation but did send us the following statement: "Drivers are integral to Lyft, and we are constantly working to help them achieve their goals. That's why Lyft has offered in- app tipping since our earliest days and was the first to introduce key features like same-day payments and low-cost car rentals. It's important to note that passenger pricing and driver pay are based on different factors, explained in Lyft's Terms of Service. Passengers who input a destination when requesting a ride pay based on the estimated time and distance of the trip, which is quoted to them at the time of booking. This allows passengers to see upfront how much their ride will cost. Drivers are paid based on the actual time and distance of the trip, calculated once it is completed. This helps ensure that if a driver encounters a variable that makes the ride longer, such as traffic, they are not underpaid because the estimate given to the passenger was lower than the actual cost of the ride. Lyft does charge a service fee on each ride, which helps power the Lyft platform and related services." [GN] M3 FINANCIAL: Mason Seeks Final Approval of $600K Settlement ------------------------------------------------------------ The Plaintiff in the lawsuit styled ELAINE MASON, on behalf of herself, and all others similarly situated v. M3 FINANCIAL SERVICES, INC., an Illinois corporation, Case No. 1:15-cv-04194 (N.D. Ill.), moves for final approval of class action settlement. In her complaint, the Plaintiff alleges that M3's debt collection efforts violated the federal Telephone Consumer Protection Act by using an automatic telephone dialing system ("ATDS") and by using prerecorded voice messages to call consumers cell phones without consent. Following extensive discovery and settlement negotiations, the Parties reached a settlement that provides extraordinary relief to consumers. M3 has agreed to establish a $600,000 Settlement Fund for the 19,385 Settlement Class Members whose cellphone numbers were called by M3 during the Class Period and were identified on the Class List. Each is entitled to a pro rata payment from the Settlement Fund, after the costs of notice and claims administration, attorneys' fees and litigation costs and an incentive payment is deduced from the Settlement Fund. Based on the number of approved claims, each claimant is expected to receive approximately $360. The Settlement Class is defined in the Agreement as follows: All persons in the United States who (1) received one or more calls from M3 Financial, (2) that were placed through the Global Connect dialing platform (ATDS and/or pre-recorded voice message), (3) on his or her cellular telephone(s), (4) and that number was not listed in the patient or guarantor field on the account in which the call(s) were placed, (5) from May 12, 2011 through May 26, 2016, and (6) whose telephone numbers are identified in the Class List. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=IaLkBRNU The Plaintiff is represented by: Ronald A. Marron, Esq. Alexis M. Wood, Esq. Kas L. Gallucci, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 E-mail: ron@consumersadvocates.com alexis@consumersadvocates.com kas@consumersadvocates.com - and - Jeffrey M. Salas, Esq. SALAS WANG LLC 73 W. Monroe, Suite 219 Chicago, IL 60603 Telephone: (312) 803-4963 E-mail: jsalas@salaswang.com MASTRIA INCORPORATED: "De Leon" Suit Can't Proceed as Class ----------------------------------------------------------- In the lawsuit styled HECTOR DE LEON, et al., the Plaintiffs, v. MASTRIA INCORPORATED, et al., the Defendants, Case No. 5:17-cv- 00626-EJD (N.D. Cal.), the Hon. Judge Edward J. Davila entered an order on May 21, 2018, denying Plaintiffs' motion for conditional class certification. The Court said, "On January 25, 2018, the Plaintiffs filed a motion seeking conditional class certification pursuant to the Fair Labor Standards Act. Defendants opposed. In their reply, the Plaintiffs responded that they 'do not contest Defendants' request for an order denying their motion for FLSA class certification. This case shall proceed only on the individual claims of the named plaintiffs that remain in the case, Hector De Leon and Carlos Cisneros. No further amended complaint shall be filed." A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LpcMa19w MAZZONE MANAGEMENT: Olvera, et al. Seek to Certify 3 Classes ------------------------------------------------------------ In the lawsuit styled JULIO A. OLVERA, et al., on behalf of themselves, and all other similarly situated, the Plaintiffs, v. MAZZONE MANAGEMENT GROUP LTD., et al., the Defendants, Case No. 1:16-cv-00502-BKS-DJS (N.D.N.Y.), the Plaintiffs ask the Court for an order: 1. certifying three classes including Collective Action Class pursuant to the Fair Labor Standard Act; New York Restaurant Class; and New York Restaurant Class; and 2. appointing Plaintiffs' counsel as co-counsel for the Classes. The FLSA Collective Action Class is defined as: "all tipped, hourly workers employed by Mazzone Restaurants (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within three years prior to [April 29, 2016] through the date of final disposition of this action and who were subject to Defendants' unlawful practices of illegally retaining portions of tips when customers purchased wine"; The New York Restaurant Class is defined as: "all tipped, hourly workers employed by Mazzone Restaurants (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within three years prior to [April 29, 2016] through the date of final disposition of this action and who were subject to Defendants' unlawful practices of: (1) illegally retaining portions of tips when customers purchased wine"; (2) failing to pay minimum wage under the New York labor Law and/or (3) failing to provide tipped workers with required notice and obtaining signed acknowledgement of such notice"; and The New York Catering Class is defined as: "all tipped, hourly workers employed by Mazzone Restaurants (waiters, waitresses, bartenders, bussers, runners, and other hourly service workers) within three years prior to [April 29, 2016] through the date of final disposition of this action and who were subject to Defendants' unlawful practices of: (1) taking deductions from the Class members tip pool by failing to pass along the 20% Service charge or Catering Fee placed on customers' bills to employees as a gratuity; and/or (2) deducting wages for meals, regardless of whether employees ate meals at catered events"; A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=NkEYG2pf Attorneys for Plaintiffs and the putative Class: WILENTZ, GOLDMAN & SPITZER P.A. 90 Woodbridge Center Drive Woodbridge, NJ 07095 Telephone: (732) 636 8000 - and - FLEISCHMAN LAW FIRM, PLLC 565 Fifth Avenue, Seventh Floor New York, NY 10017 Telephone: (212) 880 9567 - and - LAW OFFICE OF JOSEPH T. MOEN 45 Prospect Street Cambridge, MA 02139 Telephone: (61) 575 9240 MEDICIS PHARMACEUTICAL: July 18 Settlement Fairness Hearing Set --------------------------------------------------------------- If You Purchased Solodyn(R) and/or Its Generic Equivalent You Could Get Money From A Class Action Lawsuit Settlement A proposed $20 million settlement has been reached in a class action lawsuit involving the antibiotic drug Solodyn(R). The lawsuit claims that Medicis Pharmaceutical Corp., Impax Laboratories, Inc., Lupin Limited, Lupin Pharmaceuticals Inc., and Sandoz Inc. (the "Defendants") violated state competition (i.e. antitrust and consumer protection) and unjust enrichment laws by agreeing not to compete with each other and keeping lower-cost generic versions of Solodyn(R) off the market. The Defendants deny this. No one is claiming that Solodyn(R) is unsafe or ineffective. What does the settlement provide? To settle the lawsuit, Impax Laboratories, Inc. has agreed to pay $20 million into a Settlement Fund to settle all claims in the lawsuit brought on behalf of consumers and health insurers known as third-party payors. This settlement is in addition to the $23 million settlement recently announced with Medicis Pharmaceutical Corp. Class Counsel will ask the Court to award attorneys' fees in an amount not to exceed one-third of the Settlement Fund, plus interest, litigation expenses and incentive payments to the Class Representatives. After these deductions, the remainder of the Settlement Fund will be distributed pro rata to Class Members who file a valid claim form. The amount of money you are eligible to receive will depend on how much you (and other consumers) paid for Solodyn(R) or generic versions of Solodyn(R). Who is included? Generally, you are included in the Classes if you purchased, paid and/or provided reimbursement for some or all of 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg Solodyn(R) and/or its generic equivalent prescription in AL, AK, AZ, AR, CA, FL, HI, ID, IL, IA, KS, LA, ME, MA, MI, MN, MS, MO, MT, NE, NV, NH, NJ, NM, NY, NC, ND, OK, OR, RI, SD, TN, UT, VT, WA, WV, WI, WY, DC and PR, in tablet form, from July 23, 2009 through February 25, 2018, inclusive. Certain third-party payors are also members of the Classes. You are NOT a member of the Classes if: you paid a "flat co- payment" for all of your prescription drug purchases regardless of whether they are brand or generic; you are one of the Defendants or an officer, director, manager, employee, subsidiary, or affiliate of any Defendant(s); you purchased only directly from Defendants or for resale purposes; you purchased or received Solodyn(R) or its generic equivalent only through a Medicaid program; you are a Pharmacy Benefit Manager; or you are the judge in this lawsuit or a member of the judge's immediate family. How do I get a payment? You must submit a Claim Form by July 31, 2018 to be eligible for a payment. The Claim Form, and instructions on how to submit it, are available at www.SolodynCase.com or by calling 1-800-332- 7414. If you previously submitted a Claim Form for the Medicis settlement, you do not need to submit another Claim Form. Your previous Claim Form will be used to calculate any payment that you may be entitled to. What are my other rights? If you are a Class Member, you may comment on or object to the proposed Settlement. To do so, you must act by June 18, 2018. Details on how to comment or object are at www.SolodynCase.com. The Court will hold a hearing tentatively set for 3:00 p.m. on July 18, 2018, to consider whether the Settlement and all of the terms are fair, reasonable, and adequate. These deadlines may be amended by Court Order, so check the litigation website noted below. For More Information or to Request a Claim Form Visit www.SolodynCase.com Call 1-800-332-7414 [GN] MOLINA HEALTHCARE: June 29 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------- Rigrodsky & Long, P.A., on April 30 disclosed that a complaint has been filed in the United States District Court for the Central District of California on behalf of all persons or entities that purchased the common stock of Molina Healthcare, Inc. ("Molina" or the "Company") (NYSE: MOH) between August 31, 2014 and August 2, 2017, inclusive (the "Class Period"), alleging violations of the Securities Exchange Act of 1934 against the Company and certain of its officers (the "Complaint"). If you purchased shares of Molina during the Class Period, or purchased shares prior to the Class Period and still hold Molina, and wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact Seth D. Rigrodsky or Timothy J. MacFall at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220, Wilmington, Delaware 19801, by telephone at (888) 969-4242, or by e-mail at info@rl-legal.com. The Complaint alleges that throughout the Class Period, defendants made materially false and misleading statements, and omitted materially adverse facts, about the Company's business, operations and prospects. Specifically, the Complaint alleges that the defendants concealed from the investing public that: (1) Molina's administrative infrastructure was never designed to handle the size and complexity of the Company's rapid growth strategy; (2) Molina failed to remediate systemic issues and costly disruptions with critical administrative infrastructure functions including provider payment and utilization management; and (3) as a result, Molina common stock traded at artificially inflated prices during the Class Period. As a result of defendants' alleged false and misleading statements, the Company's stock traded at artificially inflated prices during the Class Period. According to the Complaint, on August 2, 2017, the Company withdrew its 2017 earnings outlook and announced that it will eliminate 1,500 jobs, and exit certain Obamacare markets after the health insurer posted a steep second quarter loss. On this news, shares of Molina declined almost 6%, closing at $62.32 per share on August 3, 2017, on heavy trading volume. If you wish to serve as lead plaintiff, you must move the Court no later than June 29, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Any member of the proposed 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. [GN] NATIONAL RAILROAD: Campbell's Bid for Class Certification Denied ---------------------------------------------------------------- The Hon. Emmet G. Sullivan entered an order in the consolidated lawsuits captioned KENNETH CAMPBELL, et al. v. NATIONAL RAILROAD PASSENGER CORPORATION, Case No. 1:99-cv-02979-EGS (D.D.C.), and LORETTA K. BETHEA v. AMTRAK POLICE DEPARTMENT, Case No. 1:01-cv- 01513-EGS (D.D.C.), -- granting Amtrak's motion to exclude the report and testimony of Jay M. Finkelman; -- denying Amtrak's motion to exclude the report and testimony of Thomas Roth; -- denying Amtrak's motion to exclude the report and testimony of Edwin Bradley and Liesl Fox; -- granting in part Amtrak's motion to strike portions of the declarations filed by the Plaintiffs in support of class certification; -- granting in part and denying in part Amtrak's motion to strike the Plaintiffs' reply in further support of their motion for class certification; -- denying the Plaintiffs' motion for class certification; -- granting Amtrak's motion for partial summary judgment; -- dismissing the Plaintiffs' disparate-impact claims are; -- directing the parties to submit a joint status report, setting forth their recommendations for further proceedings in the case, by no later than June 14, 2018; and -- vacating the motion hearing that was scheduled for May 11, 2018, at 10:30 a.m. Copies of the Order are available at no charge at: * http://d.classactionreporternewsletter.com/u?f=EmvwdGwB * http://d.classactionreporternewsletter.com/u?f=5jyDRTdD NATIONAL UNION: Bid to Enjoin "Zebersky" Suit Granted ----------------------------------------------------- In the case captioned STEPHEN GIERCYK, et al., Plaintiffs, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, et al., Defendants, Civil Action No. 13-6272 (D.N.J.), the United States District Court for the District of New Jersey granted in part and denied in part Class Counsel Golomb & Honik, P.C., The Aughtman Law Firm, and Hemmings & Stevens, PLLC's (Class Counsel) motion to enjoin a Florida state action brought by Zebersky Payne LLP (Zebersky) against Class Counsel. Zebersky has initiated the Florida State Court Action challenging Class Counsel's fee allocation and seeking declaratory judgment that Class Counsel and Zebersky are required to mediate the dispute over attorneys' fees under the first Joint Prosecution Agreement. Zebersky argues that, even if the Court has retained jurisdiction over fee-related disputes, the Court cannot enjoin the Florida State Action under the All Writs Act. Zebersky notes that in In re Linerboard, the Third Circuit relied on the "in aid of jurisdiction" exception to the Anti-Injunction Act because the multi-district litigation in that case was ongoing and thus a parallel action threatened to disrupt the orderly resolution of the federal litigation. The Court finds that Zebersky is correct that in this case, the litigation is complete. Even if the Court were to accept Zebersky's argument that the case is concluded, the Court would still find that an injunction is appropriate to protect the finality of its judgment and prevent relitigation. Here, the Court issued an Order which, by approving the Settlement Agreement, delegated to Class Counsel the responsibility for allocating attorneys' fees "based on the expenses incurred and the contributions of counsel." Rather than challenge the Settlement Agreement or Order, Zebersky chose to initiate a new proceeding in Florida state court seeking monetary damages from Class Counsel. Zebersky argues that the Florida State Action concerns a private contractual dispute between Zebersky and Class Counsel, but ignores the fact that the dispute concerns the allocation of attorneys' fees in the litigation, a matter on which the Court has already ruled. The Florida State Action threatens the finality of the Court's Order and cannot go forward. An injunction is necessary to protect or effectuate the Court's judgment. Accordingly, the Court granted Class Counsel's motion to enjoin the Florida State Action. As the parties have not briefed Class Counsel's motion to approve the fee allocation recommendation as to Zebersky, that request is denied without prejudice. A full-text copy of the District Court's March 26, 2018 Opinion is available at https://tinyurl.com/y92kcqvv from Leagle.com. STEPHEN GIERCYK, Plaintiff, represented by RICHARD M. GOLOMB- rgolomb@golombhonik.com -- GOLOMB & HONIK, P.C.,KENNETH J. GRUNFELD -- kgrunfeld@golombhonik.com -- GOLOMB & HONIK, P.C., KEVIN WILLIAM FAY -- kfay@eckertseamans.com -- ECKERT SEAMANS CHERIN & MELLOTT & RUBEN HONIK -- rhonik@golombhonik.com -- GOLUMB & HONIK, P.C. Ajay Das, Plaintiff, represented by KENNETH J. GRUNFELD, GOLOMB & HONIK, P.C. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, doing business as NATIONAL UNION FIRE INSURANCE COMPANY, A DIVISION OF AMERICAN INTERNATIONAL GROUP, INC. (AIG), Defendant, represented by BRIAN M. ENGLISH -- benglish@tompkinsmcguire.com -- TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP, WILLIAM B. MCGUIRE, TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP & GRANT W. MCGUIRE, TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP, 3 Becker Farm Rd #402, Roseland, NJ 07068, USA. NEVADA: Court Narrows Claims in "Walden" Wage & Hour Suit --------------------------------------------------------- The United States District Court for the District of Nevada granted in part and denied in part Defendant's Motion to Dismiss Plaintiffs' First Amended Collective and Class Action Complaint in the case captioned DONALD WALDEN JR., et al., Plaintiffs, v. STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF CORRECTIONS, and DOES 1-50, Defendants, Case No. 3:14-cv-00320-MMD-WGC (D. Nev.). The Plaintiffs are individuals who were or are employed with NDOC as non-exempt hourly correctional officers. The Plaintiffs were required to and did work a forty-hour workweek. If the Plaintiffs worked an alternative variable workweek schedule, they were required to work and did work eighty hours in a two-week period. As a matter of policy, the Plaintiffs were only compensated for regularly scheduled shift times at their work stations. However, the Plaintiffs were required to perform tasks before and after their shifts (commonly referred to as preliminary and postliminary activities. They claim that they were not compensated for these activities. The Defendant makes five arguments in support of dismissing the FAC: (1) accepting the Plaintiffs' allegations as true, each earned more than $7.25 per hour and therefore the FAC fails to state a violation of the FLSA's minimum wage requirement; (2) the Plaintiffs failed to plead any facts to establish a nexus between assertions that they were uncompensated for 45 minutes of pre- and post-shift activities, especially in light of the uniqueness of their jobs, the different size of the NDOC facilities, and the different tools each had to use for their positions; (3) the Nevada Constitution's Minimum Wage Amendment ("MWA") does not apply to government employees; (4) the Plaintiffs' NRS Section 284.180 claim lacks merit because the Plaintiffs failed to exhaust their administrative remedies prior to filing suit; and (5) the Plaintiffs' breach of contract claim should be dismissed because Plaintiffs' employment with NDOC is statutory, not contractual, and no actual contract is identified as having been breached. Straight Time Claim In responding to the Defendant's contention that the FAC fails to state a violation of the FLSA's minimum wage requirement, the Plaintiffs point out that their first claim is not a minimum wage claim; rather, it is a straight time claim. The Defendant does not address whether a straight time claim should be dismissed in its reply and instead states that "Plaintiffs are improperly seeking to amend their complaint via their opposition, as the Court's prior order granting leave to amend did not include language permitting a new straight time claim." However, in light of the Plaintiffs' clarification that they are asserting a failure to pay wages claim, the Court will permit the claim to proceed. The Defendant's Motion to Dismiss is therefore denied as to Plaintiffs' first claim. Overtime Claim The Defendant makes two independent arguments: first, the FAC's allegations regarding the Defendant's failure to pay overtime does not meet the specificity requirements of Landers; and second, the facts as alleged are insufficient to demonstrate that the pre- and post-shift tasks are compensable under the FLSA. In Landers, the Ninth Circuit stated that at a minimum, a plaintiff asserting a violation of the FLSA overtime provisions must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week, and that a plaintiff may establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate at which she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility. The Plaintiffs remedied the previous deficiencies in their complaint by identifying the applicable time period, identifying a given workweek with the hours above forty hours for which each Plaintiff was not compensated, and the amount each Plaintiff believes they are owed in overtime wages for each year worked. This is sufficient to satisfy Landers. The Motion to Dismiss is therefore denied as to the Plaintiff's claim for failure to pay wages in violation of the FLSA. Pre- and Post-Shift Activities as Compensable Work It is axiomatic, under the FLSA, that employers must pay employees for all hours worked. The Defendant first argues that the FAC's allegations fail to show that the Plaintiffs' pre- and post-shift activities are work under the FLSA. While the FLSA does not define the term work, the Supreme Court has defined work as physical or mental exertion, whether burdensome or not, controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer. The Defendant argues that the Plaintiffs: do not allege that NDOC requires when each officer is required to perform the identified activities or that NDOC required them to do these activities off- the-clock; do not allege in the FAC that there are differences in the time when the Plaintiffs are required to report to the prison [versus] when they are required to report to their assigned posts for the day; arrive early for their own convenience or the convenience of fellow employees; and fail to allege sufficient facts to show that NDOC derives any benefits from these activities because presumably, NDOC's respective prisons still have officers on duty. However, the Court is able to reasonably infer from the allegations in the FAC that NDOC required these activities to be performed without compensation and therefore off the clock; that these activities were required to be performed before the start of regularly scheduled shifts and after the end of regularly scheduled shifts; and that the Plaintiffs arrived early to complete these preliminary tasks because NDOC required them to do so. The Defendant also argues that these activities are de minimus and again asserts that the factual allegations in the FAC are implausible. The Court, however, does not quibble about the plausibility of facts when doing so would require this Court to look at evidence outside the pleadings. What is sufficient at this stage of the litigation is that there is a scope of activities that employees must perform, that these activities are integral and indispensable to their positions as prison guards, and that the factual allegations are that these activities generally take 45 minutes to perform off the clock. The Court therefore finds that the FAC's allegations permit this Court to make the reasonable inference that these activities, as alleged, are not de minimis. The Defendant's Motion to Dismiss is therefore denied as to the Plaintiff's claim for violation of the FLSA's overtime provision. Minimum Wage Amendment Claim It is unclear from the plain language of the MWA whether other entity applies to the state government. The MWA states in relevant part that an employer is any other entity that may employ individuals. The Court therefore denies the Defendant's Motion to Dismiss as to this claim without prejudice and directs supplemental briefing as to whether this issue should be certified and the effect of certification on the remaining claims in this action. NRS Section 284.180 Claim The Defendant argues that the Plaintiff has failed to plead facts demonstrating they have exhausted the administrative requirements of NRS Chapter 284. The Plaintiffs are wrong. NRS Section 284.195 applies where an employee has been appointed to a position of employment by an appointing authority where the appointment of the employee is contrary to law and regulation and payroll certification does not occur. That unlawfully appointed employee then may sue the appointing authority and not the State of Nevada, for the amount that employee is owed based on any work she performed, and she may initiate a private right of action without going through the administrative grievance process normally required of state employees. Therefore, the claim for violation of NRS Section 284.180 is dismissed without prejudice. Breach of Contract The Defendant argues in relevant part that NDOC's Variable Work Schedule Request form (Variable Request Form) is not an employment agreement and is instead a document simply giving employees the choice of working either a forty-hour workweek over the course of five days or an eighty-hour workweek over the course of fourteen days. The Plaintiffs state that their breach of contract claim is premised upon the determination that the pre- and post-shift work is compensable under federal and state law. The Variable Request Form, however, is clearly an agreement to work a variable schedule in a workweek, not an agreement or contract to pay overtime. To the extent the Variable Request Form states that overtime will be paid under NRS Section 284.180, this is merely a statement of what the law requires of the Defendant. The Court therefore finds that the Variable Request Form is not a contract to pay overtime wages to the Plaintiffs. The Court therefore dismisses the breach of contract claim. Accordingly, the Defendant's Motion to Dismiss is granted in part and denied in part. It is granted as to the Plaintiffs' claim for violation of NRS Section 284.180 and the Plaintiffs' claim for breach of contract. It is denied as to the Plaintiff's remaining claims and is denied without prejudice as to the Plaintiffs' claim for violation of the Minimum Wage Amendment. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/ycflqeml from Leagle.com. Nathan Echeverria, Aaron Dicus, Brent Everist, Daniel Tracy, Martin Gaura, Added by FLSA Consent see document, Terry Greene, FLSA Consent, Eric Hood, FLSA Consent, John Hurt, FLSA Consent, Edward Inwood, FLSA Consent, James Kelly, FLSA Consent, Floyd Miller, FLSA Consent, Curtis Smith, FLSA Consent, Kenneth Webb, FLSA Consent, Ingrid White, FLSA Consent, Johnathan R. Allen- Ricksecker, FLSA Consent, Josep Allison, FLSA Consent, Yesenia Aviles, FLSA Consent, Robert P. Barker, FLSA Consent, Rocky Baros, FLSA Consent, Francisco Bautista, FLSA Consent, Kathleen E. Beaver, FLSA Consent, Taerik Berry, FLSA Consent, Erica Brown, FLSA Consent, Mark Brown, FLSA Consent, Wendall Bunting, FLSA Consent, Karen Chislett, FLSA Consent, Kenneth J. Clark, FLSA Consent, William M. Clarke, FLSA Consent, Willie Clayton, FLSA Consent, Kenneth F. Corzine, FLSA Consent, Tirome Dale, FLSA Consent, Terry Day, FLSA Consent, Kevin Dennis, FLSA Consent, John J. Dibari, FLSA Consent, Franklin E. Dickens, FLSA Consent, Michael Fuscarino, FLSA Consent, Anthony Garcia, FLSA Consent, Jeffrey R. Gilbert, FLSA Consent, Douglas Hamilton, FLSA Consent, Tejay Harvey, FLSA Consent, Robert D. Hendricks, FLSA Consent, Johnny Raymond Isum, FLSA Consent, Martin P. Kelly, FLSA Consent, Nathan Kennet, FLSA Consent, Dariusz Krol, FLSA Consent, Efrain Lona, FLSA Consent, David J. Luce, FLSA Consent, Mark S. Mooberry, FLSA Consent, Walter Oilar, FLSA Consent, Burch M. Perry, FLSA Consent, Jeremy D. Peterson, FLSA Consent, Mark David Poland, FLSA Consent, Domingo J. Quintanilla, FLSA Consent, Jonathan Rivera, FLSA Consent, Christian Ruchel, FLSA Consent, Aaron Ryer, FLSA Consent, Danilo Santos, FLSA Consent, Justin Scarano, FLSA Consent, Chris Schaeffer, FLSA Consent, Shannon Shelton, FLSA Consent, Frank M. Sherman, FLSA Consent, Brian Shultz, FLSA Consent, Daniel Tedesco, FLSA Consent, Joel E. Tyning, FLSA Consent, Claye Vogelsang, FLSA Consent, Jacob Walden, FLSA Consent, Sandra Walker, FLSA Consent, Bruce C. Welsch, FLSA Consent, Daniel Zurschiede, FLSA Consent, Robert Ahmad, FLSA Consent [12], Tania Arguello, FLSA Consent [12], Richard Bogue, FLSA Consent [12], Sean J. Brooks, FLSA Consent [12], Timothy Carlman, FLSA Consent [12], Loren G. Chupulin, FLSA Consent [12], Rashay Crosswhile, FLSA Consent [12], Ronald Davis, FLSA Consent [12], Finley Cornelius, FLSA Consent [12], Rick Giancola, FLSA Consent [12], Greg Gillam, FLSA Consent [12], Kristopher Ledingham, FLSA Consent [12], Mark Marangi, FLSA Consent [12], Shalon Marangi, FLSA Consent [12], Perry Mikel, FLSA Consent [12], Daniel L. Mondragon, FLSA Consent [12], Jason N. Nelson, FLSA Consent [12], Cory Newton, FLSA Consent [12], Jorge Olague, FLSA Consent [12], Curtis Welby Peery, FLSA Consent [12], Dshamba Prater, FLSA Consent [12], Charles Ratcliff, FLSA Consent [12], Timothy Ridenour, FLSA Consent [12], Luis A. Rodriguez, FLSA Consent [12], William Sevier, FLSA Consent [12], William Tobin, FLSA Consent [12], Kirk Darrell Valdez, FLSA Consent [12], Emilio Vignapiano, FLSA Consent [12], Eric A. Ward, FLSA Consent [12], Aaron C. White, FLSA Consent [12], Brenda Williams, FLSA Consent [12], Omar Bass, FLSA Consent [15], Johnny Bilavarn, FLSA Consent [15], Efren De Jesus, FLSA Consent [15], Terrel A. Gregory, FLSA Consent [15], Mark Grimaldi, FLSA Consent [15], Jimmy Jones, FLSA Consent [15], Joseph Lewis, FLSA Consent [15], Paul Lunkwltz, FLSA Consent [15], Ronald A. Mirador, FLSA Consent [15], Danielle Money, FLSA Consent [15], Michael Naylor, FLSA Consent [15], Larry W. Roberts, FLSA Consent [15], Christopher Sloan, FLSA Consent [15], Shawn Thorne, FLSA Consent [15], Robert D. Varay, FLSA Consent [15], Cuong Vo, FLSA Consent [15], Robert Ashcraft, FLSA Consent [18], James Barnett, FLSA Consent [18], Giovanni Capra, FLSA Consent [18], Willie Clayton, FLSA Consent [18], James T. Cook, FLSA Consent [18], Huston Crutchfield, FLSA Consent [18], Radek Dvorak, FLSA Consent [18], Michael A. Flores-Nava, FLSA Consent [18], Michael Ford, FLSA Consent [18], Michael P. Gavin, FLSA Consent [18], Tony Lai, FLSA Consent [18], Cory Lee, FLSA Consent [18], Robert Baker, FLSA Consent [19], John Bankston, FLSA Consent [19], Christopher Caggiano, FLSA Consent [19], Lonnie Crose, FLSA Consent [19], Gilber Fuentes, FLSA Consent [19], Steven Indiveri, FLSA Consent [19], Colby Ingram, FLSA Consent [19], Christopher Jones, FLSA Consent [19], Emory King, FLSA Consent [19], Christopher Neville, FLSA Consent [19], Donald Pierce, FLSA Consent [19], Jan Michael Shultz, FLSA Consent [19], Jamie Stevens, FLSA Consent [19], Emery Williams, FLSA Consent [19], Richard Atherton, FLSA Consent [24], Russel Atkins, FLSA Consent [24], Joseph Baros, FLSA Consent [24], Nickey Brooks, FLSA Consent [24], Vincent Brooks, FLSA Consent [24], Timothy Calderone, FLSA Consent [24], Michael Chavez, FLSA Consent [24], Todd Drake, FLSA Consent [24], James Hogan, FLSA Consent [24], Abdi S. Ismail, FLSA Consent [24], Chais Vee Jenkins, FLSA Consent [24], Sarkis Jopalian, FLSA Consent [24], Felix J. Kreskey, FLSA Consent [24], Todd Ludwig, FLSA Consent [24], Nicholas McGahuey, FLSA Consent [24], Antoine Norman, FLSA Consent [24], Vincent Saladino, FLSA Consent [24], Mitchell Villegas, FLSA Consent [24], Gregory Bennett, FLSA Consent [34], Benitez Christian, FLSA Consent [34], Gerald Collette, FLSA Consent [34], Donald W. Davis, FLSA Consent [34], Lukas Ferris, FLSA Consent [34], Michael Gaskins, FLSA Consent [34], Bradley Hansen, FLSA Consent [34], Julio Mesa, FLSA Consent [34], Gilbert J. Ramirez, FLSA Consent [34], Donald Thorpe, FLSA Consent [34], Adrian Arias, FLSA consent[35], Tanya Armerdariz, FLSA consent [35], Ben Eric V. Calvez, FLSA consent [35], Gerald Clarett, FLSA consent [35], Detlin Georgiev, FLSA consent [35], Eric Mark, FLSA consent [35], Charles J. Razmic, FLSA consent [35], David Soley, FLSA consent [35], Jeremy Summers, FLSA consent [35], Diego Torres, FLSA consent [35], Jesse Vargas, FLSA consent [35], Stewart Whalum, FLSA consent [35], Curtis Willhite, FLSA consent [35], Jurea A. Williams, FLSA consent [35], Bryan E. Wilson, FLSA consent [35], :;pud Brewster, FLSA consent [37], Hector Carrillo, FLSA consent [37], Benjamin R. Fehr, FLSA consent [37], Gary Garrison, FLSA consent [37], Sean Horlacher, FLSA consent [37], Eric Jones, FLSA consent [37], Sean Olsen, FLSA consent [37], David K. Magnum, FLSA consent [37], Teresa G McCastle, FLSA consent [37], Richard Martin, FLSA consent [37], Michael A. Ramos, FLSA consent [37], Edwin Segovia, FLSA consent [37], Stanley Thomas Shinault, FLSA consent [37], Phillip Travis, FLSA consent [37], Derland Blake, FLSA consent [38], Canute Brown, FLSA consent [38], Taham Castillo, FLSA consent [38], Russell Garvin, FLSA consent [38], Brian Gentile, FLSA consent [38], Judith Gibson, FLSA consent [38], Britney Harris, FLSA consent [38], Jonathan Lara, FLSA consent [38], Jack Maurer, FLSA consent [38], Charles May, FLSA consent [38], Gustavo Sanchez, FLSA consent [38], Bret Sandborn, FLSA consent [38], Dory Vesperas, FLSA consent [38], Carl Arnold, FLSA consent [40], Timothy Dressler, FLSA consent [40], Martin K. Freeman, FLSA consent [40], Pedro Guerra, FLSA consent [40], Charles May, FLSA consent [40], Andre Shawn Natali, FLSA consent [40], Jose Navarrete, FLSA consent [40], Teresa Radke, FLSA consent [40], Alonzo Romero, FLSA consent [40], Cameron Seisan, FLSA consent [40], Scott J. Smith, FLSA consent [40], Darin Statton, FLSA consent [40], Dennis M. Stuckey, FLSA consent [40], David Wilson, FLSA consent [40], Jonathan Binder, FLSA consent [44], Michael Dane, FLSA consent [44], Scott Gilbert, FLSA consent [43], Jose Haros, FLSA consent [44], Floyd Marshall, FLSA consent [43], Todd Miller, FLSA consent [41], Jason Saing, FLSA consent [41], Mark Tansey, FLSA consent [44], Anthony Vaccaro, FLSA consent [43], Cresencio Zamora, FLSA consent [43], Jeremy Ambler, FSLA consent [46], Rama Akash, [55] FLSA consent, Jonathan Allen-Ricksecker, [55] FLSA consent, Adrian Arias, [55] FLSA consent, Ysenia Aviles, [55] FLSA consent, Almon Bame, [55] FLSA consent, Derland Blake, [55] FLSA consent, Kenneth Clark, [55] FLSA consent, Michael Covington, [55] FLSA consent, Taham Cristilli, [55] FLSA consent, Juan Cruz, [55] FLSA consent, Shawn Elder, [55] FLSA consent, Luke Gardner, [55] FLSA consent, Rick Giancola, [55] FLSA consent, Reggie Goins, [55] FLSA consent, Britney Harris, [55] FLSA consent, Nicole Crowley Jones, [55] FLSA consent, Maria Kinsey, [55] FLSA consent, William Kirste, [55] FLSA consent, Paul Kluever, [55] FLSA consent, Efrain Lona, [55] FLSA consent, Jesus Meranza, [55] FLSA consent, Mark Mooberry, [55] FLSA consent, Cory Newton, [55] FLSA consent, Lawrence Panozzo, [55] FLSA consent, Jeffrey Peeler, [55] FLSA consent, Larry Puckett, [55] FLSA consent, Charles Razmic, [55] FLSA consent, Jonathan Rivera, [55] FLSA consent, Joe Roberts, [55] FLSA consent, Jason Saing, [55] FLSA consent, Gustavo Sanchez, [55] FLSA consent, Cameron Seisan, [55] FLSA consent, Shannon Shelton, [55] FLSA consent, Kenneth Thackwell, [55] FLSA consent, Ashley Thomason, [55] FLSA consent, Phillip Travis, [55] FLSA consent, Michael Val, [55] FLSA consent, Kirk Valdez, [55] FLSA consent, Emilio Vignapiano, [55] FLSA consent, Audy Viloria, [55] FLSA consent, John Williams, [55] FLSA consent, Donald Walden, Jr. & Travis Zufelt, Plaintiffs, represented by Joshua D. Buck -- josh@thiermanbuck.com --, Thierman Buck, LLP, Leah Lin Jones -- leah@thiermanbuck.com -- Thierman Buck, LLP & Mark R. Thierman -- mark@thiermanbuck.com -- Thierman Buck, LLP. State Of Nevada, Defendant, represented by Ann McDermott, Office of the Attorney General, Richard Dreitzer -- Richard.Dreitzer@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Theresa M. Haar, Cara Teresa Laursen, Wilson Elser Moscowitz Edelman & Dicker LLP, David S. Kahn, Wilson Elser Moskowitz Edelman & Dicker LLP & James T. Tucker, Wilson Elser Moskowitz Edelman & Dicke, 150 East 42nd Street. New York, NY 10017 Nevada Department of Corrections, Defendant, represented by Theresa M. Haar, Cara Teresa Laursen, Wilson Elser Moscowitz Edelman & Dicker LLP, David S. Kahn, Wilson Elser Moskowitz Edelman & Dicker LLP, James T. Tucker, Wilson Elser Moskowitz Edelman & Dicker, Karissa D. Neff, Wilson Elser Moskowitz Edelman & Dicker LLP & Richard Dreitzer, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 150 East 42nd Street. New York, NY 10017 NEW ENTERPRISE: Court Narrows Claims in "Carr" ---------------------------------------------- The Court of Chancery of Delaware granted in part and denied in part Defendant's Motion to Dismiss the case captioned KENNETH CARR, individually and on behalf of all others similarly situated, and derivatively on behalf of nominal defendant ADVANCED CARDIAC THERAPEUTICS, INC., Plaintiff, v. NEW ENTERPRISE ASSOCIATES, INC., PETER JUSTIN KLEIN, ROY T. TANAKA, DUKE S. ROHLEN, ARIS CONSTANTINIDES, WILLIAM OLSON, MICHAEL J. PEDERSON, NEW ENTERPRISE ASSOCIATES 14, L.P., NEA PARTNERS 14, LIMITED PARTNERSHIP, NEA 14 GP, LIMITED PARTNERSHIP, NEA VENTURES 2014, LIMITED PARTNERSHIP, AND DUKE ROHLEN AND KENDALL SIMPSON ROHLEN, AS TRUSTEES OR SUCCESSOR TRUSTEE, OF THE ROHLEN REVOCABLE TRUST DATED U/A/D 6/12/98, Defendants, and ADVANCED CARDIAC THERAPEUTICS, INC. Nominal Defendant, C.A. No. 2017-0381-AGB (Del Ch.). The action involves a dispute between Kenneth Carr, a co-founder of Advanced Cardiac Therapeutics, Inc. (ACT), and its controlling stockholder, New Enterprise Associates, Inc. (NEA). NEA became ACT's controlling stockholder as a result of the sale of Series A-2 preferred stock that was offered to a select group of investors. Carr was not among them. The Series A-2 offering implied a value for ACT of approximately $15 million. In October 2014, ACT sold a warrant to Abbott Laboratories (Abbott) for $25 million, giving it the option to purchase all of ACT's equity for a 30-month period for up to $185 million. In the interim between the Series A-2 offering and the warrant sale to Abbott, another medical device company made a proposal to acquire ACT for up to $300 million, but that overture was not pursued. In 2016, ACT repurchased the warrant from Abbott for $25 million in cash and a note as part of a settlement agreement. The gravamen of Carr's complaint is twofold: (1) that the Series A-2 offering that allowed NEA to become ACT's controlling stockholder was approved by a conflicted board and severely undervalued ACT; and (2) that NEA orchestrated the potential sale of ACT to Abbott on the cheap as part of a strategy to optimize the value of its portfolio by inducing Abbott to acquire Topera and invest in VytronUS. Carr's complaint asserts various claims on behalf of a putative class of stockholders (and, alternatively, derivatively) for breach of fiduciary duty and/or aiding and abetting against ACT's directors at the time of the challenged transactions and NEA. The Series A-2 Financing and the Warrant Transaction Shall Be Treated as Separate Transactions First, under the end result test, the doctrine will be invoked if it appears that a series of separate transactions were prearranged parts of what was a single transaction, cast from the outset to achieve the ultimate result. Second, under the interdependence test, separate transactions will be treated as one if the steps are so interdependent that the legal relations created by one transaction would have been fruitless without a completion of the series. The third and most restrictive alternative is the binding-commitment test under which a series of transactions are combined only if, at the time the first step is entered into, there was a binding commitment to undertake the later steps. The Court decline to view the Series A-2 Financing and the Warrant Transaction as a single transaction because, under the facts alleged, none of the three tests has been met. The Warrant Transaction Claims are not Moot Under Delaware law, a plaintiff's cause of action accrues at the moment of the wrongful act not when the harmful effects of the act are felt even if the plaintiff is unaware of the wrong. Any challenge to the Warrant Transaction thus accrued upon the execution of the underlying transaction, and not upon a later exercise of the Warrant. Accordingly, even if the Warrant was never exercised, any claims relating to its issuance would not be rendered moot. The Series A-2 Financing Claims are Derivative and the Warrant Transaction Claims are Direct In every case the court must determine from the complaint whether the claims are direct or derivative. Whether a claim is direct or derivative must turn solely on the following questions: (1) who suffered the alleged harm (the corporation or the suing stockholders, individually); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders, individually)? The Court conclude that Carr's claims with respect to the Series A-2 Financing are derivative and his claims with respect to the Warrant Transaction are direct. The Series A-2 Financing Carr contends that defendants executed the Series A-2 Financing to dilute unfairly certain other ACT stockholders, including himself. Here, Carr's invocation of Gentile to characterize as direct his claims challenging the Series A-2 Financing fails because the Complaint is devoid of any well-pled facts supporting the assertion that there was a controlling stockholder at the time of that transaction. The Complaint does not allege that NEA was a controlling stockholder before the Series A-2 Financing but rather that the Series A-2 Financing resulted in NEA gaining ownership of more than 65% of ACT's stock an as-converted basis. Carr also has failed to plead facts supporting his assertion that NEA and the Trust together constituted a controlling stockholder group before the Series A-2 Financing. Because Carr has not adequately pled that there was a controller at the time of the Series A-2 Financing, the transaction does not meet the paradigm described in Gentile, and his claims for improper dilution resulting from the Series A-2 Financing are derivative. Parenthetically, because the Complaint's allegations that the Trust was part of a control group with NEA are not well- plead, the Trust will be dismissed from this case because the only claims asserted against the Trust flow from this unsubstantiated premise. The Warrant Transaction Carr argues that the sale of the Warrant and the process or lack of process it were the equivalent of an end-stage transaction in which a plaintiff alleges that breaches of fiduciary duty resulted in a change-of-control despite inadequate merger consideration and without adequate protections for individual stockholders who thus may bring claims directly. Here, in exchange for $25 million, Abbott purchased the right to buy ACT for a period of time for an up-front payment of $75 million plus potential milestone payments capped at total consideration of $185 million. Thus, the operative question is whether Carr suffered harm independent of any injury to the corporation that would entitle him to an individualized recovery due to the Warrant Transaction. In Court's view, he has, so his claim is direct. Based on the conclusions the Court have reached so far, many of the claims in the Complaint can be disposed of in whole or in part. First, given the Court's conclusion that the transactions must be analyzed separately and that the claims challenging the Series A-2 Financing are derivative while the claims challenging the Warrant Transaction are direct, Counts I-III must be dismissed insofar as they challenge the Series A-2 Financing and Counts IV-VI must be dismissed insofar as they challenge the Warrant Transaction. Second, given the Court's conclusion that NEA was not a controlling stockholder at the time of the Series A-2 Financing, Count IV fails to state a claim for breach of fiduciary duty against NEA with respect to that transaction and thus Count IV must be dismissed in its entirety. Third, given the Court's conclusion that NEA was a controlling stockholder at the time of the Warrant Transaction, Count III fails to state a claim for aiding and abetting a breach of fiduciary duty against NEA with respect to that transaction and thus Count III must be dismissed its entirety. This leaves parts of four claims to be analyzed, specifically Counts V and VI with respect to the Series A-2 Financing, which occurred first in time, and Counts I and II with respect to the Warrant Transaction. Counts V and VI of the Complaint State Viable Claims for Relief Concerning the Series A-2 Financing Demand Is Excused for the Series A-2 Financing Claims Here, the Board experienced turnover between its approval of the Series A-2 Financing and when Carr filed suit over three years later. On April 2, 2014, when the Series A-2 Financing was approved, the Board consisted of six members: Klein, Rohlen, Tanaka, Olson, Pederson, and Constantinides. On May 18, 2017, when Carr filed the Complaint, the Board consisted of four members: Klein, Rohlen, Tanaka, and Drant. Thus, between these two events, three of six members (Olson, Pederson, and Constantinides) left the Board and a new director (Drant) was added. Because there was turnover of less than a majority of the directors on the Board between the Series A-2 Financing and when the Complaint was filed, the Aronson test applies for claims concerning that transaction. To survive a motion to dismiss under the Aronson test, a plaintiff must plead facts that "raise a reasonable doubt as to (i) director disinterest or independence or (ii) whether the directors exercised proper business judgment in approving the challenged transaction. In any event, the defendants concede that Klein would not be independent for purposes of evaluating a demand,92 and Rohlen's status as the CEO of NEA-controlled ACT, in addition to his service on other NEA portfolio companies, creates a reasonable doubt about his independence from NEA.93Accordingly, demand is excused as to Count VI for aiding and abetting against NEA. Count V States a Claim for Breach of Fiduciary Duty Against the Director Defendants Regarding the Series A-2 Financing The standards governing a motion to dismiss for failure to state a claim for relief under Court of Chancery Rule 12(b)(6) are well settled: (i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and ([iv]) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Here, it is alleged that the Series A-2 Financing placed an approximately $15 million valuation on ACT, yet the Warrant exercise price ($75 million) proposed less than three months later in Abbott's June 30, 2014 LOI was five-times that amount. Such a gap in value in the span of just a few months, without any allegations about intervening events that increased ACT's value meaningfully, supports an inference that NEA was able to gain control on the cheap through the Series A-2 Financing. Given the specific facts pled in the Complaint about the process and price of the Series A-2 Financing, it is certainly reasonably conceivable that the Series A-2 Financing was not entirely fair. Accordingly, Count V states a claim for breach of fiduciary duty against the Director Defendants with respect to their approval of the Series A-2 Financing. Count VI States a Claim for Aiding and Abetting Against NEA Regarding the Series A-2 Financing In Count VI of his Complaint, Carr alleges that NEA aided and abetted the Board's breach of its fiduciary duty by approving the Series A-2 Financing. Viewing the facts alleged in the light most favorable to Carr, as the Court must at this stage of the proceedings, the Court find that Carr has adequately pled that NEA knowingly participated in the Board's breach. Klein served as both an ACT director and an NEA partner, so his alleged knowing participation in the Board's breach of its fiduciary duty with respect to the Series A-2 Financing may be imputed to NEA. The Complaint alleges that both NEA and Klein had a financial incentive to dilute cheaply ACT stockholders to gain control of the Company at an unfairly low price, and that NEA exploited conflicts of interest on the Board by deploying Klein to facilitate a transaction purportedly unfair to the existing ACT stockholders. These interactions between ACT and NEA, which acquired 90% of the Series A-2 Preferred Stock, amount to more than simple arm's-length negotiations, since Klein's venture capital firm, where he is a partner, wanted NEA to acquire the preferred stock at the lowest possible valuation. Accordingly, the Court find it reasonably conceivable that NEA aided and abetted the Board's breach of fiduciary duty. In sum, with respect to Carr's allegations regarding the Series A-2 Financing, the Court finds that demand is excused with respect to these claims, and that the Complaint states claims of breach of fiduciary duty against the Director Defendants and aiding and abetting a breach of fiduciary duty against NEA. Thus, defendants' motion to dismiss Counts V and VI is denied insofar as those claims concern the Series A-2 Financing. Counts I and II of the Complaint State Viable Claims for Relief Concerning the Warrant Transaction Count II States a Claim for Breach of Fiduciary Duty Against the Director Defendants Regarding the Warrant Transaction A complaint can survive a motion to dismiss if a plaintiff has adequately pled that the directors breached their duty of care or loyalty in coming to that determination. Here, Carr has pled facts such that it is reasonably conceivable that the Director Defendants breached both of these duties in connection with their approval of the Warrant Transaction so as to rebut the business judgment rule. With respect to the duty of care, Carr has pled that Medtronic's letter of intent was objectively superior to Abbott's proposal, yet the Board did not pursue a transaction with Medtronic or use Medtronic's proposal to attempt to extract a higher price from Abbott before approving the Warrant Transaction several months later, after Abbott's letter of intent's 60-day exclusivity period had expired. With respect to the duty of loyalty, Carr has rebutted the business judgment rule because he has pled facts showing that at least half of the six-person board that approved the Warrant Transaction was not disinterested or independent. At the time of the transaction, ACT itself represented that both Klein and Pederson were tainted, because Klein was an NEA partner and Pederson was the President and CEO of VytronUS and was discussing potential employment with Abbott. Rohlen also was not independent and disinterested in my view, because he was the CEO of the NEA- controlled Company. The director's conflicts arising from their relationships with NEA are salient because, as discussed below, NEA itself allegedly was motivated to accept less than fair value for its shares of ACT in order to benefit from Abbott's acquisition of Topera and investment in VytronUS. Thus, the directors' conflicts of interest provide a sufficient and independent basis for Carr's claims against the Director Defendants regarding the Warrant Transaction to survive a motion to dismiss. Count I States a Claim for Breach of Fiduciary Duty Against NEA as a Controlling Stockholder Regarding the Warrant Transaction Carr alleges that NEA breached its fiduciary duty as a controller by taking advantage of its dominant position and engaging in self-dealing. Specifically, the Complaint alleges that NEA engaged in a form of portfolio optimization by selling the Warrant to acquire ACT on the cheap to Abbott in order to incentivize Abbott to undertake transactions favorable to NEA with respect to two of its other portfolio companies; namely for Abbott to acquire Topera and invest in VytronUS. Carr alleges, in essence, that NEA prioritized its fund's overall rate of return over maximizing value for ACT's stockholders. This is precisely the kind of behavior that controllers may not engage in under Delaware law. Accordingly, Count I of the Complaint states a claim that NEA breached its fiduciary duty as a controller with respect to the Warrant Transaction. In sum, with respect to Carr's allegation regarding the Warrant Transaction, the Court find that the Complaint has stated claims of breach of fiduciary duty against the Director Defendants and NEA as ACT's controlling stockholder. Thus, defendants' motion to dismiss Counts I and II is denied. The Complaint Fails to Plead Non-Exculpated Claims Against Certain Director Defendants Tanaka and Olson Here, Carr has not pled facts such that it would be reasonable to infer that Tanaka's compensation as a VytronUS director or Olson's stock options in ACT were material to them so as to taint their decision-making. Thus, Tanaka and Olson will be dismissed from this action because of the Complaint's failure to plead a non-exculpated claim against them with respect to either the Series A-2 Financing or the Warrant Transaction. Constantinides and Rohlen Carr contends that Constantinides was tainted with respect to the Warrant Transaction because of a series of events involving economic dependency between NEA and Constantinides's employer at the time, NBGI, as well as the structure of their plan that contemplated distributions to both of them out of the warrant purchase money from Abbott. This argument fails because Carr does not plead sufficient facts permitting an inference that the ties between NEA and NBGI reach the threshold required for materiality as to Constantinides. For these reasons, the Court granted the Defendants' motion to dismiss Counts III and IV and denied the motion as to Counts I, II, V, and VI. A full-text copy of the Chancery Court's March 26, 2018 Memorandum Opinion is available at https://tinyurl.com/yd3k375g from Leagle.com. T. Brad Davey -- bdavey@potteranderson.com -- and Matthew A. Golden -- mgolden@potteranderson.com -- of POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Barry S. Pollack -- bpollack@psdfirm.com -- and Joshua L. Solomon -- jsolomon@psdfirm.com -- of POLLACK SOLOMON DUFFY LLP, Boston, Massachusetts; Counsel for Plaintiff. Herbert W. Mondros -- hmondros@margolisedelstein.com -- and Krista R. Samis -- ksamis@margolisedelstein.com -- of MARGOLIS EDELSTEIN, Wilmington, Delaware; Counsel for Defendants Peter Justin Klein, Roy Tanka, Duke Rohlen, Aris Constantinides, William Olson, Michael Pederson, Duke Rohlen and Kendall Simpson Rohlen, as Trustees or Successor Trustee of the Rohlen Revocable Trust Dated U/A/D 6/12/98, and Nominal Defendant Advanced Cardiac Therapeutics, Inc. Michael F. Bonkowski -- mbonkowski@coleschotz.com -- and Nicholas J. Brannick -- nbrannick@coleschotz.com -- of COLE SCHOTZ P.C. Wilmington, Delaware; Roger A. Lane -- rlane@foley.com -- Courtney Worcester -- cworcester@foley.com -- and Jasmine D. Coo -- jcoo@foley.com -- of FOLEY & LARDNER LLP, Boston, Massachusetts; Angelica Boutwell of FOLEY & LARDNER LLP, Miami, Florida; Counsel for Defendants New Enterprise Associates, Inc., New Enterprise Associates 14, L.P., NEA Partners 14, Limited Partnership, NEA 14 GP, Limited Partnership, NEA Ventures 2014 Limited Partnership. NISSAN NORTH: Judge Dismisses Some Claims in Timing Chain Suit -------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a Nissan timing chain class-action lawsuit is working its way through the court system as the automaker succeeded in getting some claims dismissed while the judge allowed other allegations to continue. The class-action lawsuit includes the following Nissan models: -- 2004-2006 Nissan Altima -- 2004-2008 Nissan Maxima -- 2004-2009 Nissan Quest -- 2005-2010 Nissan Frontier -- 2005-2010 Nissan Pathfinder -- 2005-2010 Nissan Xterra Plaintiff Sarah Duncan says she purchased a 2007 Nissan Maxima in Massachusetts in 2010. Six years later in 2016 when the car had about 127,000 miles on it, a Nissan technician allegedly told her the timing chain needed to be replaced at a cost of $1,500. Nissan told the plaintiff she would have to pay the entire amount because the car was beyond its warranties. Plaintiffs Anthony and Judy Weissenburger say they purchased a 2004 Nissan Maxima in 2004, but in 2011 a Nissan technician told them the timing chain should be replaced, leaving the couple to pay $1,400 of their own money for repairs. Additional named plaintiffs make similar allegations about their timing chains, and they claim when Nissan agreed to settle a previous timing chain lawsuit, that was proof the automaker knew the systems were defective. The plaintiffs filed the lawsuit in October 2016 alleging the timing chain tensioning systems damage the engines and pose safety hazards to occupants. The plaintiffs also claim Nissan knew or should have known the timing chains were defective at the time the vehicles were sold or leased. Instead, consumers weren't informed about the alleged defects, but Nissan did send dealerships technical service bulletins (TSBs) about the timing chains. One plaintiff alleges a Nissan technician told her the systems are equipped with a component made of inferior plastic that wears away, allegedly a component that should "last the lifetime of the car." According to the lawsuit, Nissan realized the plastic part wouldn't last forever so the automaker improved the material used in later models. Nissan offers two warranties on the vehicles, a basic warranty and a powertrain warranty. The basic covers repairs during the first 36,000 miles or 36 months, whichever occurs first, and the powertrain warranty covers repairs during the first 60,000 miles or 60 months. However, the plaintiffs argue Nissan intentionally set the warranty limits where they are because the automaker knew the timing chains would fail after the warranties expired. In filing the motion to dismiss, Nissan argues dealers have every right to refuse warranty work when a vehicle is no longer under warranty, but the plaintiffs claim the warranty limits should be ignored because the warranties are "unconscionable" considering the automaker concealed the defects. The class-action lawsuit will proceed after the judge refused to dismiss express warranty and breach of contract claims, along with one state (Massachusetts) claim. However, Nissan was successful in getting certain claims tossed out, including claims of violating the Oregon Unlawful Trade Practices Act, the Colorado Consumer Protection Act, the Texas Deceptive Trade Practices Consumer Protection Act, the North Carolina Unfair and Deceptive Trade Practices Act and implied warranty of merchantability claims. Although Nissan did agree to settle a previous timing chain class-action lawsuit, the judge says that California lawsuit has no relation to laws that govern Massachusetts. The Nissan timing chain class-action lawsuit was filed in the U.S. District Court for the District of Massachusetts - Duncan, et al., v. Nissan North American, Inc., et al. The plaintiffs are represented by Shapiro Haber & Urmy LLP, Kantrowitz, Goldhamer & Graifman, P.C., Stull, Stull & Brody. CarComplaints.com has complaints from drivers of the Nissan vehicles listed in the lawsuit: -- Nissan Altima -- Nissan Maxima -- Nissan Quest -- Nissan Frontier -- Nissan Pathfinder -- Nissan Xterra [GN] NOVARTIS PHARMA: Drogueria Sues over Exforge Non-Compete Deal ------------------------------------------------------------- DROGUERIA BETANCES, LLC, on behalf of itself and all others similarly situated, the Plaintiff, v. NOVARTIS PHARMACEUTICALS CORPORATION, NOVARTIS AG, NOVARTIS CORPORATION, ENDO PHARMACEUTICALS, INC., PAR PHARMACEUTICAL, INC., PAR PHARMACEUTICALS, INC., and PAR PHARMACEUTICAL INDUSTRIES, INC., the Defendants, Case No. 1:18-cv-04361 (S.D.N.Y., May 16, 2018), seeks overcharge damages arising out of Novartis's unlawful agreement with Par not to compete in the market for Exforge and corresponding AB-rated generic drug products. This antitrust action challenges Defendants' anticompetitive conduct that delayed generic competition in the United States and its territories for Exforge, an FDA-approved prescription drug product for the treatment of hypertension comprising the active ingredients amlodipine and valsartan. Prior to the market entry of generic equivalents of Exforge, Novartis's U.S. sales of branded Exforge exceeded $400 million annually. Generic manufacturers Par and Synthon Pharmaceuticals Inc. recognized the huge market potential for Exforge and, in or about October and November, 2007, became the first generic drug makers to file ANDAs with the FDA seeking approval to market generic amlodipine and valsartan tablets, with Exforge as their Reference Listed Drug. Par was the first to file an ANDA for the 10/160, 5/160 and 10/320 milligram strengths of amlodipine and valsartan, respectively, while Synthon was the first to file an ANDA for the 5/320 milligram strength. On information and belief, in their ANDAs, Par and Synthon addressed the three Novartis patents listed in the FDA Orange Book for Exforge by indicating that: (1) they would not seek final FDA approval until the September 21, 2012 expiration of exclusivities associated with U.S. Patent No. 5,399,578 ("the '578 Patent"), which covered the active ingredient valsartan; but (2) they would seek final FDA approval to market, and intended to launch, their ANDA products prior to the expiration of the follow-on patents, U.S. Patent Nos. 6,294,197 ("the '197 Patent") and 6,395,728 (the '728 Patent), which they claimed were invalid and/or would not be infringed by Par's and Synthon's proposed generic equivalents. On November 30, 2011, Par entered into an asset purchase agreement with Synthon under which Par would acquire Synthon's ANDA for a generic version of Exforge (5 mg/320 mg and 10 mg/320 mg of amlodipine and valsartan, respectively). On December 30, 2011, Par closed on this asset purchase agreement. In or around 2011 and following receipt of notice of Par's ANDA containing challenges to the '197 and '728 Patents, Par and Novartis reached an agreement under which (1) Par agreed not to compete in the market for fixed combinations of amlodipine and valsartan until September 30, 2014, thereby allocating the entire Exforge market to Novartis until that date, and (2) Novartis agreed not to compete in the generic Exforge market from September 30, 2014 to March 30, 2015, thereby allocating the entire market for generic versions of Exforge to Par for six months. According to the complaint, the Agreement contained a promise by Novartis to refrain from launching an "authorized generic" version of Exforge for the first six months after Par's launch, thereby depriving the market of an additional competitor and lower prices. On March 19, 2010, the FDA granted tentative approval to Par's ANDA for a generic version of Exforge, determining that Par's ANDA for generic Exforge was approvable and satisfied all bioequivalence, chemistry, manufacturing, and controls ("CMC"), and labeling requirements. On March 28, 2013, the FDA granted final approval to Par's ANDA for a generic version of Exforge. The FDA granted tentative approval to Synthon's ANDA for a generic version of Exforge prior to March 28, 2013, determining that Synthon's ANDA for generic Exforge was approvable and satisfied all bioequivalence, CMC, and labeling requirements. Novartis is a Swiss multinational pharmaceutical company based in Basel, Switzerland. It is one of the largest pharmaceutical companies by both market capitalization and sales.[BN] The Plaintiff is represented by: David Raphael, Esq. Erin Leger, Esq. Susan Segura, Esq. SMITH SEGURA & RAPHAEL, LLP 3600 Jackson St., Ste. 111 Alexandria, LA 71303 Telephone: (318) 445 4480 Facsimile: (318) 487 1741 - and - John Gregory Odom, Esq. Stuart Des Roches, Esq. Andrew Kelly, Esq. Dan Chiorean, Esq. ODOM & DES ROCHES Poydras Center 650 Poydras Street, Suite 2020 New Orleans, LA 70130 Telephone: (504) 522 0077 Facsimile: (504) 522 0078 - and - Bruce E. Gerstein, Esq. Joseph Opper, Esq. Dan Litvin, Esq. GARWIN GERSTEIN & FISHER LLP 88 Pine Street, 10th Floor New York, NY 10005 Telephone: (212) 398 0055 Facsimile: (212) 764 6620 - and - Russell A. Chorush, Esq. Miranda Jones, Esq. HEIM PAYNE & CHORUSH LLP 1111 Bagby, Suite 2100 Houston, TX 77002 Telephone: (713) 221 2000 Facsimile: (713) 221 2021 NYKO: Nintendo Switch Owners File Class Action Over Dock Defect --------------------------------------------------------------- Cecilia D'Anastasio, writing for Kotaku, reports that several Nintendo Switch owners who purchased a third-party dock from Nyko were furious last March when the dock apparently bricked their $300 console. On April 27, one brought a class action lawsuit against Nyko alleging that the company wasn't vocal enough about the dock's manufacturing defect. Nyko's portable Switch docking kit is a cheaper alternative to Nintendo's official $90 dock. Late last year, users raved about how portable and convenient it was. Until the Switch's 5.0 update on March 12, many say it worked perfectly fine. Over the next few weeks, dozens of owners complained on Reddit and Nintendo forums that their Switches began losing functionality. Some stopped turning on entirely. The third-party dock issue wasn't just limited to the Nyko?Switch owners who had purchased the FastSnail or Insignia docking kit reported problems, too. Reached for comment in March, Nyko told Kotaku that they are "aware of the issue some Portable Docking Kit owners are facing after updating the firmware on their Nintendo Switch to version 5.0," adding, "we believe it is related to the way the Switch handles AV output for an external TV/monitor while the console is docked on the Portable Docking Kit." A disgruntled Nyko Switch dock owner named Michael Skiathitis filed a class action lawsuit in the U.S. district court of central California. The dock, which he purchased at a Walmart in Jacksonville, Florida, apparently messed up his Switch. In April, he sent it to Nintendo for repair and told Nyko about his issue -- but in the meantime, he'll probably lose all his save data. (The Switch, unlike Nintendo's 3DS system and the rival Xbox One and PS4 consoles, doesn't let users back up their saves, so a destroyed or lost system means that one's save files are all gone, too). The lawsuit alleges that, "unbeknownst to consumers, the Nyko Portable Docking Kits for Nintendo Switch are prone to causing numerous problems to the devices that they are intended to support," adding that Nyko did not go far out of its way to disclose the bug. Nintendo told Kotaku back in March that Switch owners probably shouldn't buy unlicensed product and accessories. Asked about how many people are participating in the lawsuit, Skiathitis' lawyers did not provide comment. [GN] PALACIOS, TX: "Hubanek" Suit Seeks Overtime Wages under FLSA ------------------------------------------------------------ STERLING HUBANEK, Individually and on behalf of all others Similarly Situated, the Plaintiff, v. CITY OF PALACIOS, TEXAS, the Defendant, Case No. 3:18-cv-00149 (S.D. Tex., May 16, 2018), seeks to recover unpaid overtime wages under the Fair Labor Standards Act of 1938. According to the complaint, Palacios is a municipality located in the territorial jurisdiction of this Court. Palacios employed Hubanek as a peace officer during the events made this basis of this action. During Hubanek's employment with Palacios, he was covered by the FLSA. Palacios paid Hubanek on an hourly basis. During Hurricane Harvey, Palacios police officers and other personnel were required to work. The employees, including Hubanek, physically worked 12 hours shifts. During the twelve "off' hours, the employees were required to remain "on call" on specific premises designated by Palacios, thereby making that time compensable hours. Palacios did not pay Hubanek, or the other similarly situated employees for the hours required to remain on the premises designated by Palacios during the Hurricane. Instead, Palacios altered the timesheets of Hubanek, and others, changing the hours submitted on the "City Timesheet", removing the compensable "on call" hours. Palacios failed to compensate Hubanek for all of his compensable hours of work, including overtime, from August 20, 2017 to September 2, 2017. Palacios failed to maintain accurate time and pay records for Hubanek and other similarly situated nonexempt employees. Palacios knew or showed a reckless disregard for whether its pay practices violated the FLSA. Palacios is a city in Matagorda County, Texas, United States. The population was 5,153 at the 2000 census.[BN] The Plaintiff is represented by: Gregory Cagle, Esq. 1602B State St. Houston, TX 77007 Telephone: (713) 489 4789 Facsimile: (713) 489 4792 PHILIP MORRIS: Two Attorneys in Tobacco Litigation Suspended ------------------------------------------------------------ Samantha Joseph, writing for Daily Business Review, reports that the Florida Supreme Court disagreed with a court-appointed referee's recommendation to admonish prominent attorney Philip M. Gerson and co-counsel Steven K. Hunter, instead imposed a harsher punishment, suspending both Miami attorneys for 30 days. Miami-Dade Circuit Judge Michael Hanzman, who served as referee, found the attorneys violated one, not two, Florida Bar rules governing attorneys conflicts of interest involving current and former clients. He found the attorneys violated Florida Bar Rule 4-1.7, which governs conflicts with current clients, but not Rule 4-1.9, which deals with former clients. "The case was -- in the court's opinion -- a proverbial black swan and outlier, both procedurally and substantively," Judge Hanzman wrote in his referee's report. "And while this court does not condone counsel's conduct, and finds that they exercised poor judgment, it concludes that given the totality of the circumstances presented, the sanction of 'admonishment' is warranted and appropriate." The high court disagreed, and found the attorneys had violated both rules. Messrs. Gerson and Hunter had represented flight attendants in bringing suits as part of what has been called "Broin progeny" litigation, in the wake of Broin v. Philip Morris, a class action against tobacco companies over exposure to smoke in airline cabins, which was settled in 1997. Broin was among the first class actions to hold cigarette companies companies accountable for smoking-related illnesses. It did not result in direct compensation for class members, but included a settlement agreement that required the tobacco companies to provide $300 million to a foundation dedicated to scientific research about cigarette-related diseases. That foundation, the Flight Attendant Medical Research Institute, later became part of the litigation. After individual suits against the tobacco defendants stalled, Mr. Gerson, Mr. Hunter and other attorneys sought to have the court monitor the Flight Attendant Medical Research Institute's expenses, and allocate a portion of the $300 million to flight attendants. Two members of the foundation's board of trustees filed a motion to remove the attorneys from the case, claiming the lawyers acted against current and former clients' best interests. They said some clients had objected to attorneys' petition, and had not provided informed consent. "While respondents forcefully deny these charges, this case -- like many brought by the bar -- is far from nascent, arriving with a highly unusual, lengthy and tangled history," Judge Hanzman wrote. The Florida Bar started disciplinary action. It accused Messrs. Hunter and Gerson of violating Florida Bar Rules 4-1.7 and 4-1.9, which deal with conflicts of interest in representing current and former clients, respectively. Miami-Dade Circuit Judge Jerald Bagley granted the foundation trustees' motion to disqualify the attorneys, after finding a conflict of interests. Messrs. Hunter and Gerson challenged the ruling, but the other attorneys did not seek appellate review. They filed a petition for certiorari in the Third District Court of Appeal, which quashed the disqualification order. The appellate panel found the case presented "a common dilemma," in which a minority of class members disagree with the legal strategy. It also found the bar rule inadequate in addressing this issue. But the Florida Supreme Court reversed the state appellate panel, and upheld Judge Bagley's ruling. More bad news for Messrs. Hunter and Gerson from the high court: Justices also sided the bar in its ethics case. "The court disapproves the referee's recommended discipline and instead imposes 30 days' suspensions from the practice of law," it ruled on April 11. Mr. Hunter and his attorney Christopher Lynch did not respond to a request for comment by press time. Public records indicate he notified the court on April 12 that he was no longer practicing law. Mr. Gerson has been a member of the bar since 1970 and served on its committees over the years. He has stepped away for his practice, and intends to return when the suspension expires. His attorney, David Pollack of Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, said the ruling disappointed the long-time attorney. "It's just a shame that 40 years on, he has this one blight on his not just spotless ethical record, but his record of service to the bar and the broader community," Mr. Pollack said. Mr. Gerson, in an email to Daily Business Review, said "if readers want more information they should read the report of the referee, Hon. Michael Hanzman." [GN] PROPARK AMERICA: "Sadino" Remanded to Calif. State Court -------------------------------------------------------- The United States District Court for the Northern District of California granted Plaintiffs' Motion to Remand the case captioned AARON SADINO, Plaintiff, v. PROPARK AMERICA WEST, LLC, et al., Defendants, Case No. 17-cv-06018-JST (N.D. Cal.), to the San Francisco Superior Court. Sadino was employed by Propark as an hourly valet/parking attendant in San Francisco County. Propark is a parking management company that operates hundreds of parking management services throughout California. Sadino alleges that Propark failed to provide him with meal periods, rest breaks, or itemized wage statements. The Defendants allege that Sadino's meal period claims are pre- empted by section 301 of the Labor Management Relations Act (LMRA) and that the Court has supplemental jurisdiction over the remaining state law claims. Nonnegotiable rights are not subject to section 301 pre-emption, the Court said, citing Livadas, 512 U.S. at 123. In California, the right to meal periods is plainly nonnegotiable, as held in Valles v. Ivy Hill Corp., 410 F.3d at 1082. Here, Sadino and the other putative class members are parking/valet attendants. Valet/parking attendants are not eligible for exemption under Section 512 Cal. Lab. Code., the Court concluded. Section 512(f) (subdivision (e) applies to each of the following employees: (1) an employee employed in a construction occupation; (2) [a]n employee employed as a commercial driver; (3) [a]n employee employed in the security services industry as a security officer and (4) an employee employed by an electrical corporation, a gas corporation, or a local publicly owned electric utility. Thus, Sadino is ineligible for an exemption. Sadino's rights to a meal period and a rest break are nonnegotiable and are not preempted by section 301 of the LRMA. Sadino's meal period and rest break claims are not pre-empted by section 301. Therefore, the Court does not have supplemental jurisdiction over the remaining claims. Federal court jurisdiction based on 28 U.S.C. Section 1332 requires complete diversity of citizenship between the parties. Here, there is a question of whether the individual defendants qualify as employers, particularly given the definition of employer from Martinez. However, this case is only at the pleading stage. Sadino makes allegations that, if true, would potentially support a finding that defendants Steele, Hewitt, and Dreisbach exercised control over Sadino's working conditions. Defendants have not met their burden to show that Sadino could not possibly recover from defendants Steele, Hewitt, or Dreisbach. Therefore, the Court does not find that these defendants were fraudulently joined. Because complete diversity is lacking, the Court need not reach the question of whether the amount in controversy is satisfied. The Defendants have failed to meet their burden to show that removal is proper. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/ybx8hjdv from Leagle.com. Aaron Sadino, Plaintiff, represented by Matthew Righetti -- matt@righettilaw.com -- Righetti Glugoski, P.C. & Michael C. Righetti, Righetti Glugoski, P.C., 456 Montgomery St Ste 1400. San Francisco, CA 94104. Propark America West, LLC, John Steele, Michael Hewitt & Ryan Dreisbach, Defendants, represented by Joanne Madden -- joanne.madden@leclairryan.com -- LeClairRyan, LLP & Charles H. Horn -- Charles.horn@leclairryan.com -- LeClairRyan, LLP. QUINSTREET INC: Faces Securities Class Action in California ----------------------------------------------------------- The law firm of Kirby McInerney LLP on April 30 disclosed that a class action lawsuit has been filed in the United States District Court for the Northern District of California, against QuinStreet, Inc. ("QuinStreet" or the "Company") (NASDAQ: QNST) on behalf of investors that acquired QuinStreet securities during the period from February 10, 2016 through April 10, 2018 (the "Class Period"), seeking recovery of damages for alleged violations of the federal securities laws. Pursuant to applicable law, investors have until June 26, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that on April 11, 2018, as the market opened, Kerrisdale Capital published a report entitled "QuinStreet, Inc. (QNST) Leading Nowhere" which suggested that QuinStreet was generating fake web traffic and poor-quality clicks for its customers. On this news, shares of QuinStreet fell from $12.32 to close at $10.14 per share on April 11, 2018 (a decline of $2.18). If you acquired QuinStreet securities, have information or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at telrod@kmllp.com, or by filling out this contact form to discuss your rights or interests in this litigation. Kirby McInerney LLP -- http://www.kmllp.com-- is a New York- based plaintiffs' law firm concentrating in securities, antitrust, whistleblower and consumer litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Contacts: Kirby McInerney LLP Thomas W. Elrod, 212-371-6600 http://www.kmllp.com Email: telrod@kmllp.com [GN] RELIABLE REPORTS: Court Dismisses Non-Ohio Residents' FLSA Suit --------------------------------------------------------------- The United States District Court for the Northern District of Ohio, Eastern Division, granted Defendant's Motion to Dismiss the Federal Overtime Claims of Non-Ohio Residents for Lack of Personal Jurisdiction Under Fed. R. Civ. P. 12(b)(2) and denied Defendant's Motion to Dismiss the State and Federal Overtime Claims for Failure to State a Claim Under Rule 12(b)(6) in the case captioned HAROLD MACLIN, on behalf of himself and all others similarly situated, Plaintiffs, v. RELIABLE REPORTS OF TEXAS, INC., d/b/a Reliable Reports, Inc., Defendant, Case No. 1:17 CV 2612 (N.E. Ohio). Plaintiff Harold Maclin is a resident of Cuyahoga County, Ohio. He alleges that he worked as an Inspector for Reliable from July 2016 to 2017. He asserts that the day-to-day duties of an Inspector involve traveling to the property in question to conduct an inspection, completing a report, and then forwarding the report to his/her manager where it is reviewed for accuracy and completeness. Maclin asserts that it was common for him and others to work more than 50-60 hours per week absent overtime pay. More specifically, Reliable would pay inspectors the piece- work rate for hours worked in a week over 40, and not the overtime premium. Additionally, Maclin alleges that Reliable failed to make and preserve accurate records of time worked, much less overtime worked. The Defendant argues that the Court does not have personal jurisdiction over the Fair Labor Standard Act claims asserted by non-Ohio plaintiffs under Rule 12(b)(2) claim, and the additional state and federal overtime factual allegations still do not pass Iqbal/Twombly muster under Rule 12(b)(6). Reliable does not dispute that the Court has specific jurisdiction over the FLSA claim of Ohio plaintiffs; it contends only that the Court does not have specific jurisdiction over that claim brought by non-Ohio plaintiffs. In support of its position that the Court does not have specific jurisdiction over the FLSA claims of non-Ohio plaintiffs, Reliable cites Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017). The Court finds that Bristol-Myers applies to FLSA claims, in that it divests courts of specific jurisdiction over the FLSA claims of non-Ohio plaintiffs against Reliable. The federal overtime claims of non-Ohio Inspectors against Reliable have less of a connection to the State of Ohio than the non-California plaintiffs' claims had to the State of California in Bristol- Myers. Only 14 of Reliable's employees live and work in Ohio. The other 424 employees live and work outside Ohio and their claims have no connection whatsoever to this State. For these reasons, the Court grants the motion to dismiss the FLSA claim of non-Ohio plaintiffs for lack of personal jurisdiction. Here, Maclin has asserted the dates of his employment, that he and others normally worked 50-60 hours per week and the reason for working so many overtime hours, that Reliable failed to keep accurate time records, and that he and others were compensated for overtime hours at the non-overtime piece-work rate. Reliable argues that it did not classify Maclin as exempt from overtime laws and that it did, in fact, pay Maclin for hundreds of overtime hours. This does not sound like a case where the defendant is in the dark and has no notice of the state and federal overtime claims against it. The same analysis applies equally to the state overtime claim. Accordingly, the Court declines to follow cases in other jurisdictions that require explicitly detailed factual allegations in order to state overtime claims and, thus, denies Reliable's Rule 12(b)(6) motion to dismiss the state and federal overtime claims. A full-text copy of the District Court's March 26, 2018 Opinion and Order is available at https://tinyurl.com/y9b2lqxu from Leagle.com. Harold Maclin, on behalf of himself and all others similarly situated, Plaintiff, represented by Anthony J. Lazzaro -- anthony@lazzarolawfirm.com -- Lazzaro Law Firm, Chastity L. Christy -- chastity@lazzarolawfirm.com -- Lazzaro Law Firm, Don J. Foty, Kennedy Hodges & Lori M. Griffin -- lori@lazzarolawfirm.com -- Lazzaro Law Firm. Reliable Reports of Texas, Inc., doing business as Reliable Reports, Inc., Defendant, represented by Gregory V. Mersol -- gmersol@bakerlaw.com -- Baker & Hostetler & Jeffrey R. Vlasek -- jvlasek@bakerlaw.com -- Baker & Hostetler. RM GALICIA: Court Approves $1.5MM TCPA Class Action Settlement -------------------------------------------------------------- The United States District Court for the Southern District of California granted Plaintiffs' Motion for Final Approval of Class Action Settlement in the case captioned BELINDA GUTIERREZ- RODRIGUEZ, on behalf of herself and all others similarly situated, Plaintiff, v. R.M. GALICIA, INC. DBA PROGRESSIVE MANAGEMENT SYSTEMS, Defendant, Case No. 16-CV-00182-H-BLM (S.D. Cal.). The Plaintiff alleges that, beginning around March 2015, the Defendant violated the Telephone Consumer Protection Act (TCPA), by using an automatic telephone dialing system (ATDS) or artificial/pre-recorded voice system to call cellular telephones without prior express consent. Under the Proposed Settlement, the Defendant will establish a settlement fund of $1,500,000 (Settlement Fund) to resolve the litigation involving Damages Settlement Subclass members. This amount will pay approved claims on a pro rata basis and any and all settlement costs, defined as all costs incurred in the litigation by the Plaintiff, including but not limited to the Plaintiff's attorneys' fees, costs of suit, cost of litigation, cost of notice and claims administration. For its attorneys' fees and costs, the Plaintiff's counsel agrees to requests no more than 30% of the Settlement Fund. The Settlement Fund will also be used to pay the class representative an incentive award of $7,500. The Court finds that the settlement class meets the numerosity, commonality, typicality, and adequacy of representation requirements of Rule 23(a). The class is sufficiently numerous because the Damages Settlement Subclass alone contains 61,939 members, 44,744 of whom were sent Postcard Notices regarding the Proposed Settlement via U.S. mail. Common questions predominate because the primary common issue is whether the Defendant used an ATDS or an artificial or pre- recorded voice system to call cellular phones without recipients' prior express consent in violation of the TCPA. There is no evidence that any purported class members gave prior express consent to the Defendant's placement of the calls at issue, or that the Defendant obtained the persons' cell phone numbers in the course of the underlying healthcare transactions in which the alleged debts were incurred. Thus, the Court is satisfied that individualized issues of consent do not preclude a finding of commonality. Furthermore, typicality is satisfied because both the Plaintiff and the purported class members held the same position and claim the same injury namely, that they received calls on their cell phones that were placed by the Defendant using LiveVox or TCN and/or featuring a pre-recorded or artificial voice messages without their prior express consent. Because the Plaintiff's claims are reasonably co-extensive with those of absent class members, the typicality prerequisite is met. And finally, the adequacy requirement is satisfied because the Plaintiff and her counsel have vigorously prosecuted the interests of the class and class counsel has extensive experience in class actions and complex litigation, including TCPA cases. Although the Plaintiff is confident that she would prevail if this litigation continued, she acknowledges several not- insignificant obstacles to her doing so, including issues related to consent, the Defendant's anticipated motion for summary judgment, the Plaintiff's anticipated motion for class certification, and the likelihood of appeals. Balancing the continuing risks of litigation (including the strengths and weaknesses of the Plaintiff's case), with the benefits afforded to members of the class, and the immediacy and certainty of a substantial recovery, the Court concludes that these factors favor approval of the Proposed Settlement. The discovery process in this case involved extensive party and third-party discovery, extensive meet and confer efforts by counsel, and the development of a mutually agreed-upon sampling protocol to identify the unique telephone numbers constituting the Damages Settlement Subclass. Based on the record before the Court, there is no indication of collusion. The requested attorneys' fee award 28.8% of the Settlement Fund is close to the benchmark percentage and does not signify a disproportionate distribution to class counsel. This factor supports approval. Class counsel is experienced with TCPA actions and believes that the Plaintiff's claims are meritorious, but also believes that the Proposed Settlement offers meaningful relief and is in the class's best interests. This factor also supports approval. No class member has objected to the Proposed Settlement, and one class member has requested exclusion. The complete lack of objections is indicative of the adequacy of the settlement. Thus, the class members' reaction favors granting final approval. The Court finds that the Proposed Settlement is fair, adequate, and reasonable pursuant to Federal Rule of Civil Procedure 23(e), and therefore grants the Plaintiff's motion for final approval of the class action settlement. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/yb5f325q from Leagle.com. Belinda Gutierrez-Rodriguez, on behalf of herself, and all others similarly situated, Plaintiff, represented by Alexis M. Wood -- alexis@consumersadvocates.com -- Law Offices of Ronald A. Marron, Kas L. Gallucci -- kas@consumersadvocates.com -- Law Offices of Ronald A. Marron & Ronald Marron -- ron@consumersadvocates.com -- Law Office of Ronald Marron. R.M. Galicia, Inc., doing business as, Defendant, represented by Bryan C. Shartle -- bshartle@sessions.legal -- Sessions, Fishman, Nathan & Israel, L.L.P., pro hac vice, David Israel- disrael@sessions.legal -- Sessions, Fishman, Nathan & Israel, L.L.P., pro hac vice, Debbie P. Kirkpatrick -- dkirkpatrick@sessions.legal -- Sessions Fishman Nathan and Israel & James Kevin Schultz -- jschultz@sessions.legal -- Sessions Fishman Nathan and Israel LLP. SCHNUCK MARKETS: 7th Cir. Rules on Economic Loss Rule Issue ----------------------------------------------------------- James F. Bogan III, ESq., of Kilpatrick Townsend & Stockton LLP, in an article for Lexology, wrote that data breaches are now a fact of life, whether for card-carrying consumers or commercial entities that are either victims of hacking or otherwise required to deal with the consequences. Class action litigation often ensues, not only on behalf of the impacted consumers, but also by affected financial institutions, including, for example, card- issuing banks. In Community Bank of Trenton v. Schnuck Markets, Inc., -- F.3d --, No. 17-2146, 2018 WL 1737126 (7th Cir. Apr. 11, 2018), the Seventh Circuit breathed new life into the economic loss doctrine, holding as a matter of state (Illinois and Missouri) law that the commercial participants in the card payment system -- a system governed by a network of contracts allocating risk for data breaches -- could not sue another participant (a merchant that suffered a breach) in tort to supplement existing contractual remedies. This decision emphasizes the need for any participant in a contractual network to scrutinize the remedies provided in the contractual framework, because tort liability might otherwise be foreclosed. In Schnuck, Midwestern grocery store chain Schnuck Markets (Schnucks) suffered a data breach in 2012. Cybercriminals gained access to the Missouri-based Schnucks' computer system, ultimately stealing data pertaining to over two million credit and debit cards. The breach affected 79 of Schnucks' 100 stores in the Midwest, many of which are in Illinois and Missouri. Data breach litigation ensued. One of the cases was filed not by consumers but by financial institutions (card-issuing banks) that bore the costs of reissuing credit and debit cards and otherwise providing financial indemnity for the cybercriminals' fraud. A network of contracts connects all of the participants in the card payment system -- merchants such as Schnucks, card- processors, banks, and card brands -- to facilitate credit and debit card payments. In these contracts, all participating parties agree to assume certain responsibilities and be subject to certain contractual remedies. One of the responsibilities is to abide by data security rules called PCI DSS (Payment Card Industry Data Security Standards). And one of the contractual remedies provides for the sharing among the participants of the costs arising from any data breach. Under this network of contracts, the card networks eventually imposed over $1.5 million in reimbursement charges and other fees against Schnucks, which liability was later split between Schnucks and other network participants (Schnuck's card processor and acquiring bank). The central issues in the case arose under Illinois and Missouri law, where many of the affected Schnucks stores are located, and "present[ed] fairly new variations on the economic loss rule in tort cases." Id. at *1. That is because network participants -- the plaintiff banks -- brought a putative class action against Schnucks seeking to impose tort liability for the data breach in the form of claims for negligence and negligence per se. The plaintiff banks further alleged that they suffered tens of millions of dollars of damages that were not covered by the existing contractual remedies, arising from lost employee time, indemnity payments, and transaction fees and lost interest. As the Seventh Circuit observed, "the banks seek reimbursement for their losses above and beyond the remedies provided under the card network contracts." Id. at *4. In its analysis of the common law claims, the panel examined the economic loss doctrine in commercial litigation. As the court observed, "state courts have generally refused to recognize tort liabilities for purely economic losses inflicted by one business on another where those businesses have already ordered their duties, rights, and remedies by contract." Id. The main issue, according to the court, was one of duty, "in the sense that tort law generally does not supply additional liabilities on top of specified contractual remedies." Id. The plaintiff banks argued forcefully they had no direct contractual relationship with Schnucks and therefore should not be bound by the economic loss doctrine. That argument did not persuade the panel: "[P]arties to the card payment system are not ships passing (or colliding) in the night. All parties involved in the complicated network of contracts that establish the card payment system have voluntarily decided to participate and to accept responsibility for the risks inherent in their participation. This includes at least some risk of not being fully reimbursed for the costs of another party's mistake." Id. at *7. While the specifics of the contractual remedies were not readily apparent from the record excerpts of the relevant contracts, "what matters is not the details of the remedies but their existence." Id. (emphasis in original). According to the panel, the banks could not seek additional recovery in tort just "because they are disappointed by the reimbursement they received through the contractual card payment systems they joined voluntarily." Id. The court concluded: "we do not see either a paradigmatic or doctrinal reason why either Illinois or Missouri would recognize a tort claim by the issuing banks in this case, where the claimed conduct and losses are subject to these networks of contracts." Id. at *8. [GN] SAMSUNG ELECTRONICS: Faces DRAM Class Action in California ---------------------------------------------------------- Pulse reports that the world's dominant DRAM makers Samsung Electronics Co., SK Hynix Inc. and Micron Technology Inc. face a joint class action lawsuit for allegedly colluding to keep supplies tight and send memory chip prices high. U.S. law firm Hagens Berman has invited consumers to sign up for its class action case against the two Korean chipmakers plus one of their own by accusing them of collectively raising the price of DRAMs used to power mobile phones and computers that could help in reparations for set manufacturers and consumers. The antitrust litigation was filed with the U.S. District Court for the Northern District of California against Micron, Samsung Electronics and SK Hynix and their U.S. units on behalf of American consumers who purchased smartphones or computing products from July 2016 to February 2017. According to Hagens Berman attorneys, the three chipmakers that dominate 96 percent of the highly exclusive DRAM market agreed "to limit the supply of DRAM, a critical component of phones and computers, to drive up prices." Due to tight supply on top of heated demand for memory chips in increasing big data and smart application, DRAM prices jumped 47 percent in price per bit in 2017, the largest gain in 30 years. The prices jumped 130 percent in the period cited in the class action, helping to more than double revenues for the three dominant suppliers, the firm said. According to DRAMeXchange, DRAM revenue expanded 76 percent for full 2017. Samsung dominated the market with a 46 percent share as of the end of December and SK Hynix, with a 28.7 percent share, ended last year with its best-ever bottom line. Micron accounted for 20.8 percent. The law firm claimed "illegal price-fixing scheme has led to consumers overpaying for their electronic devices" and believes "those who unknowingly paid high prices for their computers and mobile devices deserve compensation for the greed and wrongdoings of these major electronics corporations." "What we've uncovered in the DRAM market is a classic antitrust, price-fixing scheme in which a small number of kingpin corporations hold the lion's share of the market," said Steve Berman, managing partner of Hagens Berman. "Instead of playing by the rules, Samsung, Micron and Hynix chose to put consumers in a chokehold, wringing the market for more profit." The law firm won a $300 million settlement in a similar case in 2006 against 18 DRAM manufacturers, including Samsung Electronics and SK Hynix. The two Korean companies plan to strongly refute the charge on grounds that the prices of DRAM and other memory chips had strengthened not because of fixing and capacity control, but because demand had far exceeded supply. On April 30, shares of SK Hynix closed 2.99 percent down at 84,500 won. Samsung Electronics shares are suspended for the stock-split procedure. [GN] SAN DIEGO GAS: Faces Lawsuits Over Powerline Easements ------------------------------------------------------ Miriam Raftery, writing for East County Magazine, reports that several property owners have filed lawsuits against San Diego Gas & Electric (SDG&E) over negative impacts from the utility's plan to widen easements to 15 feet on each side of power lines in communities including Pine Valley, Descanso and Alpine. "The issue is the impact that it will have on a person's ability to use their own property," attorney Vince Bartolotta with Thorsnes, Bartolotta, McGuire, a law firm specializing in civil law and consumer advocacy cases. SDG&E has indicated that it has notified approximately 100 property owners of the expanded easements for the purpose of fire-hardening power lines and equipment to prevent more devastating wildfires. The company is offering compensation for the easements, but some property owners contend that the amounts are inadequate. In some cases, Mr. Bartolotta says, "That homeowner is basically precluded from using that property." He adds that some easements include wells, ingress and egress to properties, and "some go right through the house." One such case was recently featured in a two-part series on KUSI's Turko Files. (View part 1 and part 2.) Part 1, titled "Worthless," documented issues faced by a Pine Valley couple who discovered the easement ran right through their house, including two thirds of their home as well as a patio addition and shed. They raised concerns that they could not remodel, expand, or even rebuild after a fire. In Part II, SDG&E spokesperson Allison Torres assured that the utility would write protection into easements giving all homeowners the right to rebuilt after a fire. But the homeowners indicated there are concerns over potential loss of insurance due to the easement, which they view as a land grab. Turko asked why the utility couldn't simply route around some homes, or put power lines underground. The Pine Valley couple is among the clients now represented by Mr. Bartolotta. "Our position is that in that case, they are impacting the entire house." The attorney says a class action wasn't filed because each situation is different. "In some cases, we may as well fight the take itself, saying this is unnecessary," he says, adding that lines "could be moved or not be there at all." In other cases, property owners may be fine with having a portion of property taken but that SDG&E "is not valuing the property appropriately. They get a lowball appraisal and then offer less than that." SDG&E's Torres has contested this point, claiming the utility is offering fair market value. Mr. Bartolotta says that some homeowners want more money, while in others "we want them [SDG&E] to take the entire property because the easement makes the property unusable." Some property owners may be willing to move and have the utility buy the entire property at fair market value 'for its highest and best use," according to Mr. Bartolotta. For other clients who want to keep their homes and land, he says, "Then we have to prevent the taking of the easement where it is." Like Turko, Mr. Bartolotta contends that the utility could reroute around some properties or move the line and easement a few feet to avoid creating such negative impacts. "They are a big bureaucracy and power corrupts," he observes. "They think that they are big and can just do whatever they want . . . Sometimes they ignore the ordinary citizen they are supposed to be serving, and that's not right. That's where I come in." Some homeowners might be able to negotiate with SDG&E directly, if the impact is slight. But in most cases, Bartolotta cautions, "They're going against SDG&E, who has done this tens of thousands of times through the years and has a stable of expert witnesses. The average homeowners don't know a good appraiser from a bad one. They don't have the money to go up against SDG&E. They need lawyers like us who have the experience to go up against SDG&E and get SDG&E to pay the highest and best use for that property." The firm has a track record of legal actions against SDG&E in the past on issues ranging from power poles to damage from wildfires linked to power lines, as well as a case in which a child was electrocuted by a power line and lost an arm. "SDG&E knows us well," Mr. Bartolotta says. His aim is to get property owners compensated fairly or rectify some of the harm. The process could move quickly or take a year or so for final resolution after a suit is filed, depending on whether the utility is willing to work an agreement out with the property owners, the attorney adds. The law firm has indicated it is eager to speak with other property owners who have received notices from SDG&E regarding taking of property for the easements. Vince Bartolotta can be reached at (619) 236-9363 or via the law firm's website at www.tbmlawyers.com. [GN] SEMPRA ENERGY: Court Dismisses "Plumley" Securities Fraud Suit -------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (SAC) in the case captioned CRAIG M. PLUMLEY, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. SEMPRA ENERGY, et al., Defendants, Case No. 3:16-cv-00512-BEN-AGS (S.D. Cal.). This putative securities class action arises out of an October 23, 2015 natural gas leak from a well identified as SS-25 at Aliso Canyon ("the Aliso Canyon gas leak"). The leak was sealed on February 18, 2016. The crux of Plaintiffs' Complaint for securities fraud is that Sempra made false and/or materially misleading statements in its 2010 and 2014 rate increase applications to the California Public Utilities Commission (CPUC) and in various public statements prior to and following the Aliso Canyon gas leak regarding Sempra's commitment to safety, the scope of the Aliso Canyon gas leak, and the risks the Aliso Canyon gas leak posed, primarily because none of these statements disclosed that SS-25 lacked a safety valve and/or sliding sleeve valve. The Plaintiffs essentially re-plead the same scienter allegations that Defendant Reed's January 4, 2016 stock sales evidence her scienter because she would not have received as much money for that sale if she had waited until after Governor Jerry Brown declared the Aliso Canyon gas leak to be a state of emergency. The Plaintiffs' allegations regarding Reed's scienter suffer from the same flaws identified in the Court's June 20, 2017 Order, which it finds applicable to its current analysis of the Defendants' instant motion to dismiss and incorporates by reference in this Order. In particular, the Plaintiffs' opposition again fails to rebut the Defendants' prima facie evidence of Reed's consistent stock trading history. More importantly, the Plaintiffs' have not plausibly alleged particularized facts to support the inferences they wish the Court to draw, that Governor Brown told Ms. Brown that he was going to declare a state of emergency, that Ms. Brown advised Reed of the same, that Reed sold her stock based on this information, and that Reed therefore must have known the omission of SS-25's lack of safety valve was false or misleading. Once again, the Court concludes these inferences are neither reasonable nor compelling based on the complete lack of facts, other than Ms. Brown's position on Sempra's board and her alleged lack of natural gas or utility background, to support the Plaintiffs' many accusations. The Plaintiffs' re-pleaded allegations that the Defendants made false and misleading statements in their 2014 CPUC rate increase application because they failed to disclose that Well SS-25, like the other wells at Aliso Canyon, were materially deficient and lacked any safety or shutoff valve and lacked any sliding sleeve valve still fails to plausibly establish a strong inference of the Defendants' scienter. Assuming the Plaintiffs' allegations that the 2014 application contained false and misleading statements are true, the Court agrees with the Defendants that the Plaintiffs have not met their pleading burden because they did not identify any specific persons responsible for the application's statements who had knowledge of the falsity and who intended to deceive investors or was deliberately reckless in deceiving investors. Indeed, the Plaintiffs' opposition does not even address this issue, it merely recites its unfounded conclusion that Sempra's/SCG's securing CPUC rate increases via deficient applications evidences the Defendants' scienter. In sum, reviewing the SAC's scienter allegations individually and holistically, the Court is not convinced that the Plaintiffs have met their pleading burden to establish a strong inference of scienter for any the Defendant. Similar to the First Amended Complaint, at best, the SAC alleges Sempra and/or SCG knew that SS-25 lacked a safety valve and had a financial motive and opportunity to omit this information from: 1) the 2014 CPUC rate increase application, 2) public statements regarding the scope and health effects of the Aliso Canyon gas leak, 3) public statements regarding estimated time to stop the leak, and 4) the November 13, 2015 prospectus. The Court finds these allegations, without more, are not sufficient to support an inference of scienter, and therefore the Plaintiffs have failed to state a claim for violation of Section 10(b). Having determined the Plaintiffs have not met their pleading burden to adequately plead a violation of Section 10(b), the Court also finds the Plaintiffs cannot maintain their Section 20(a) claims against Defendants Reed and Arriola. Accordingly, the SAC is dismissed. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/y787wme9 from Leagle.com. Craig M Plumley, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by J. Alexander Hood, II -- ahood@ pomlaw.com -- Pomerantz LLP, pro hac vice, Jennifer Banner Sobers, Pomerantz LLP, pro hac vice, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice, Matthew L. Tuccillo -- mltuccillo@pomlaw.com -- Pomerantz LLP, pro hac vice & Adam C. McCall -- amccall@zlk.com -- Levi & Korsinsky, LLP. Sempra Energy & Southern California Gas Company, Defendants, represented by Robert E. Gooding, Jr. -- robert.gooding@morganlewis.com -- Morgan, Lewis & Bockius LLP. SOUTH CAROLINA ELECTRIC: Sued Over Bungled Fairfield Project ------------------------------------------------------------ John Monk, writing for The State, reports that lawyers suing South Carolina Electric & Gas (SCE&G) told a S.C. Circuit Court judge on April 30 that all of the utility's ratepayers should be eligible for refunds because of a bungled multibillion-dollar nuclear reactor construction project. The lawyers want their lawsuits against the utility to be declared class actions representing all SCE&G customers, not just their clients. Lawyers representing SCE&G and the plaintiffs suing it also argued on April 30 over whether a controversial 2007 law -- the Base Load Review Act -- is constitutional. That law allowed SCE&G to charge its ratepayers for construction of two nuclear reactors. SCE&G's customers already have paid $2 billion toward the Fairfield County project, which the utility abandoned last year. Its customers also are paying an additional $37 million a month toward the project's cost, even though it never will be finished. If Judge John Hayes grants the class-action motion and the plaintiffs suing SCE&G win their case, all of the utility's approximately 700,000 S.C. ratepayers would be eligible for a refund. If Judge Hayes denies the motion, only those people who have filed individual lawsuits against the utility could get refunds -- if they win their case. But SCE&G attorney David Balser -- dbalser@kslaw.com -- fired back, telling Judge Hayes the lawyers who are seeking class- action status are involved in multiple lawsuits against the utility in state and federal court. Those lawsuits pit the interests of the lawyers' clients and SCE&G's other customers against each other, Mr. Balser said. As a result, the lawyers suing SCE&G have multiple conflicts of interests, said Mr. Balser, an attorney with the Atlanta-based King & Spalding law firm. Mr. Balser showed the court a large chart of the law firms suing SCE&G, with lines that he said showed the conflicts of interest. He said those conflicts pose numerous "fatal flaws and fatal problems." But lawyer Gibson Solomons, who is suing SCE&G, told Judge Hayes there were so many similarities in the various state court lawsuits against the utility that the judge quickly should grant class-action status. "This day, as we sit here, SCE&G will collect another $1.2 million," Mr. Solomons told Judge Hayes, referring to the $37 million a month that SCE&G continues to charge its customers for the failed nuclear project. The lawyers also argued over whether the Base Load Review Act was constitutional when the Legislature passed it. That law also allowed SCE&G to increase its rates for construction at the nuclear project and, the utility argues, allows it to continue to recover its costs, even though the project has been abandoned. Bob Cook, a top lawyer with the S.C. attorney general's office, told Hayes the money that ratepayers keep paying to SCE&G doesn't benefit anyone but the utility's stockholders, who get dividends every three months paid for from customers' bills. "You can also refer to the Base Load Review Act as the 'Stockholders' Protection Act,'" Mr. Cook said. "It is for the stockholders, by the stockholders and serves the stockholders." Since 2007, SCE&G's customers have been held captive by the Base Load Review Act, Mr. Cook said. SCE&G raised electric rates while its customers could not challenge the hikes or question the viability of the "plant that was never built." In all, ratepayers have paid some $2 billion for the nuclear fiasco, Mr. Cook said. "The Base Load Review Act is the gift that keeps on giving to the utility and keeps on taking from utility customers," Mr. Cook said, arguing the law is unconstitutional because it takes property -- money for customers' monthly bills -- without due process. Ashley Parrish, Esq. -- aparrish@kslaw.com -- a King & Spalding attorney representing SCE&G, disputed Mr. Cook's assertions. The Base Law Review Act requires the utility to give its customers notice of rate hikes, and they can request a hearing before any hike goes into effect, Ms. Parrish said. Dissatisfied ratepayers also had the option of going to the Legislature and trying to change the Base Load Review Act, the attorney said. In any case, monthly utility bills "are not constitutionally property," Ms. Parrish contended. Judge Hayes is not expected to make a ruling soon. The April 30 hearing took place at the Richland County Courthouse. Last July, SCE&G, its parent company SCANA and its junior partner, the state-owned Santee Cooper utility, abandoned the nuclear project, having spent $9 billion over a decade of construction attempting to build two reactors. Critics contend SCE&G had known for years the reactors could not be finished. Despite that, they contend, the utility continued to charge its customers for the project. [GN] SQUAW VALLEY: Court Extends Time to Respond in "Pinto" ------------------------------------------------------ The United States District Court for the Eastern District of California extended the time to Respond to First Amended Complaint in the case captioned JOAO GABRIEL PINTO, an individual, on behalf of himself and all others similarly situated, Plaintiff, v. SQUAW VALLEY RESORT, LLC, a Delaware corporation; and DOES 1 through 50, inclusive, Defendants, Case No. 2:17-cv-02281-MCE-CKD (E.D. Cal.). The Plaintiff filed this action against defendant Squaw Valley and defendant KSL Resorts, alleging the following: (1) Failure to Pay Minimum Wages; (2) Failure to Pay Wages and Overtime Under Labor Code Section 510. The Parties stipulate and request that Squaw Valley's deadline to respond to the FAC be extended by forty-five (45) days, from April 9, 2018, until May 24, 2018. The Court, having reviewed the Stipulation of the Parties and finding good cause, ordered that the deadline for Squaw Valley to file a responsive pleading to the Plaintiff's First Amended Complaint is extended until May 24, 2018. A full-text copy of the District Court's April 9, 2018 Order is available at https://tinyurl.com/ybsvpu24 from Leagle.com. Joao Gabriel Pinto, Plaintiff, represented by Alvin B. Lindsay -- alvin@yeremianlaw.com -- David Yeremian & Associates, Inc. & David Harmik Yeremian -- david@yeremianlaw.com -- David Yeremian & Associates, Inc. Squaw Valley Resort, LLC, Defendant, represented by Alexander M. Chemers -- alexander.chemers@ogletreedeakins.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Lori A. Bowman -- lori.bowman@ogletreedeakins.com -- Ogletree Deakins Nash Smoak and Stewart PC & Kelsey A. Webber -- kelsey.webber@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, PC. SUGAR TRANSPORT: Court Extends Discovery Deadlines in "Guinn" ------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order for Limited Extension of Discovery Related Deadlines in the captioned RYAN GUINN, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiffs, v. SUGAR TRANSPORT OF THE NORTHWEST, INC.; BRONCO WINE COMPANY, a California corporation; CLASSIC WINES OF CALIFORNIA, a California corporation, a California corporation, and DOES 1 through 100, Defendants, Case No. 2:16-cv-00325-WBS- EFB (E.D. Pa.). The Parties have engaged in discovery, and Defendant Sugar Transport propounded Requests for Production, Set One on Bronco on February 28, 2018. The Requests were designed to allow Sugar Transport to obtain documents relevant to its defense that it does not owe the Plaintiff overtime under the Motor Carrier Exemption to the Fair Labor Standards Act. Bronco served responses on April 2, 2018, objecting on the grounds that the requests were overbroad, unduly burdensome, and not proportional to the needs of the case, amongst other objections. After meeting and conferring, the Parties have agreed to narrow the scope of the requests. Even so narrowed, Bronco represents that the responsive documents are voluminous (Bronco Production). Sugar Transport has noticed the depositions of Byron Baker and Larry Mitts for April 16 and 17, 2018 respectively. Sugar Transport requires the documents in the Bronco Production in enough advance of these depositions to both copy and analyze them. The Parties further agree that the deadline to complete the Document Inspection will be extended. A full-text copy of the District Court's April 16, 2018 Order is available at https://tinyurl.com/y9bwnwk4 from Leagle.com. Ryan Guinn, an individual, on behalf of himself, and on behalf of all other persons similarly situated, Plaintiff, represented by Ian A. Kass, Pagano & Kass APC & James L. Pagano, Pagano & Kass APC,. 96 North Third Street, Suite 525. San Jose, CA 95112 Sugar Transport of the Northwest, Inc., a California corporation, Defendant, represented by Cassandra M. Ferrannini -- cferrannini@downeybrand.com -- Downey Brand LLP & Alexandra K. LaFountain -- alafountain@downeybrand.com -- Downey Brand LLP. Bronco Wine Company, a California corporation & Classic Wines of California, a California corporation, Defendants, represented by Eric J. Sousa, Rodarakis & Sousa, APC & Brandy Barnes, Rodarakis & Sousa, APC., 1024 J. Street,Suite 425, Modesto, CA 95354 SUNRISE SENIOR: Court Grants Final OK of "Johnson" Class Deal ------------------------------------------------------------- The United States District Court for the Central District of California dismissed with prejudice the case captioned JANEE JOHNSON, on behalf of herself and all those similarly situated and/or aggrieved, Plaintiff, v. SUNRISE SENIOR LIVING MANAGEMENT, INC., a corporation; SUNRISE ASSISTED LIVING, an entity unknown; and DOES 1 through 100, inclusive, Defendants, Case No. 2:16-cv- 00443-AB-RAOx (C.D. Cal.). A full-text copy of the District Court's March 26, 2018 Order and Judgment is available at https://tinyurl.com/y7gpcdce from Leagle.com. Janee Johnson, on behalf if herself and all those similarly situated and/or aggrieved, Plaintiff, represented by Natasha R. Chesler -- nrc@cmlegal.com -- Chesler McCaffrey LLP & Timothy B. McCaffrey, Jr. -- tbm@cmlegal.com -- Chesler McCaffrey LLP. Sunrise Senior Living Management, Inc., a corporation, Defendant, represented by Jason C. Schwartz -- jschwartz@gibsondunn.com -- Gibson Dunn and Crutcher LLP, pro hac vice, Anna M. McKenzie -- amckenzie@gibsondunn.com -- Gibson Dunn and Crutcher LLP, pro hac vice, Dustin Gary May -- dmay@gibsondunn.com -- Gibson Dunn and Crutcher LLP & Michele L. Maryott -- mmaryott@gibsondunn.com -- Gibson Dunn and Crutcher LLP. SUNTRUST BANK: Fails to Secure Classified Info, LeRoy et al. Say ---------------------------------------------------------------- Angelica LeRoy, Curtis Smith, and Loretta Smith, the Plaintiffs, v. SunTrust Bank, Inc., the Defendant, Case No. 1:18-cv-02200-MHC (N.D. Ga., May 16, 2018), seeks equitable relief enjoining SunTrust from engaging in wrongful conduct pertaining to misuse and/or disclosure of Plaintiffs' and Class members' personally identifiable information, and from refusing to issue prompt, complete, and accurate disclosures to Plaintiffs and Class members. The Plaintiffs bring this class action case against SunTrust for its failures to secure and safeguard its customers' personal and highly private and confidential information, including names, addresses, account balances, and other PII which SunTrust maintains in connection with its banking relationships with its customers, and for failing to provide timely, accurate, and adequate notice to Plaintiffs and other Class members that their PII had been compromised. SunTrust has acknowledged that approximately 1.5 million Customers' PII were compromised; what is presently unknown is for what period of time this information was compromised and being taken for malicious purposes. In any event, Plaintiffs' and the Class members' PII was compromised due to SunTrust's acts, omissions, and its failure to properly protect the PII. In addition to SunTrust's failure to prevent the compromise of the PII, it also failed to notify its customers when the compromise was detected in February of 2018, thereby preventing Plaintiffs and the Class members from taking action to protect themselves, and it wasn't until April 20, 2018 -- when SunTrust finally acknowledged the compromise -- that Plaintiffs and the Class members could take any action to prevent the consequences of the compromise of their PII loss and the damages which might follow. SunTrust Banks is an American bank holding company. The largest subsidiary is SunTrust Bank. It had US$175 billion in assets as of December 31, 2013.[BN] The Plaintiff is represented by: Adian R. Miller, Esq. John Yanchunis, Esq. Ryan McGee, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, GA 30343-1007 Telephone: (404) 496 7332 Facsimile: (404) 496 7428 E-mail: armiller@forthepeople.com jyanchunis@forthepeople.com rmcgee@forthepeople.com SYNGENTA: Lawyers Misled Corn Growners, Lawsuit Claims ------------------------------------------------------ Madison-St. Clair Record reports that sixty thousand corn growers fell for a racket that Texas lawyer Mikal Watts led, lawyer Douglas Nill of Minneapolis claims in U.S. district court. Mr. Nill sued Mr. Watts, partner Fernando Guerra, the Watts Guerra firm of San Antonio, and 14 other firms on April 24, seeking to void every contract. The lawsuit identifies former Illinois Congressman Bill Enyart as a member of Watts Guerra, and alleges that Enyart misled growers. According to the suit, Mr. Watts is alleged to have secretly opted his 60,000 clients out of a federal class action against seed producer Syngenta, in order to receive 40 percent fees. He allegedly litigated the corn suits in Minnesota state court rather than federal courts because federal courts act as fiduciaries. And, after criticizing class actions to his clients, Mr. Watts allegedly reached an agreement with class counsel but didn't tell his clients about it. Judges have not approved the settlements, which involve $1.5 billion. Mr. Nill wrote that Mr. Watts misled judges through misrepresentations and omissions. He wrote that U.S. district judge John Lungstrum of Kansas might exercise his authority to cap the contracts. "However, the court will have to cap the contract at zero to prevent a situation where farmers are not assessed more fees and expenses than of the merits of those proceedings and what is in the best interest of farmers," Mr. Nill wrote. He wrote that growers were told again and again that a mass tort individual suit is better than a class action, because class actions recover only coupons for plaintiffs. He attributed such a statement to Mr. Enyart, quoting the Champaign News-Gazette about a meeting in Champaign on Sept. 23, 2015. The newspaper stated, "Additionally, the firm is filing suits in Minnesota, where Syngenta Seeds is located, as opposed to filing in a federal court." The newspaper stated, "Enyart said the advantage to this was that instead of getting a discount for seed corn in the future, as in a class action case, there would be a gross settlement fee and the firm would simply send the farmer a check." "The statement is misleading and a fraud of omission," Mr. Nill wrote. Mr. Enyart's registration shows his place of business at Eckert Enyart, in Belleville. [GN] TARGET CORP: Settles Criminal Background Check Case for $3.4MM -------------------------------------------------------------- Alex Bolchi and Sue Davis, writing for Workers World, report that in a victory for a select group of jobseekers, Target Corp. is being forced to get rid of its racist criminal background checks. As part of a class action lawsuit won by the NAACP Legal Defense and Education Fund, Target will pay a total of $3.4 million to individuals and donate $600,000 to five organizations that help people with criminal records find work. According to court documents, 41,000 African-American and Latinx applicants with records were denied jobs between May 2008 and December 2016. Applicants expressed frustration with the broken criminal justice system -- disqualification because of misdemeanor convictions going back 10 years, conditional offers turned down based on decades-old drug convictions, and more. The settlement, filed April 5, will now allow those applicants to be eligible for priority hiring or interviewing, with restitution for each one of up to $1,000. Consultants will recommend changes to Target's background check guidelines, reducing the list of convictions that bar workers from jobs and allowing jobseekers to appeal. (Minnesota Star Tribune, April 5) This settlement has massive ramifications. With 1,800 stores, Target's new hiring practices will allow access to thousands of steady, stable jobs. In order for jobs in the U.S. to be a human right -- as they are in Revolutionary Cuba -- all barriers need to be removed. [GN] TEZOS SECURITIES: Securities Suit Briefing Schedule Set ------------------------------------------------------- The United States District Court for the Northern District of California set a Briefing Schedules for the Defendants' anticipated motions in response to the consolidated complaint in the case captioned IN RE TEZOS SECURITIES LITIGATION. This document relates to: ALL ACTIONS. No. 17-cv-06779-RS. (N.D. Cal.) In the March 16, Order, the Court directed the parties to meet and confer and file a stipulation and proposed order setting forth a proposed schedule for filing of a consolidated complaint and a briefing schedule for Defendants' anticipated motions in response to the consolidated complaint. A full-text copy of the District Court's March 26, 2018 Order is available at https://tinyurl.com/y9cbto3b from Leagle.com. GGCC, LLC, an Illinois Limited Liability Company, individually and on behalf of all others similarly situated, Plaintiff, represented by William Richard Restis -- support@restislaw.com -- The Restis Law Firm, P.C., Bruce Daniel Greenberg -- bgreenberg@litedepalma.com -- Lite Depalma Greenberg LLC, Jeremy Nash -- jnash@litedepalma.com -- Lite DePalma Greenberg, LLC & Joseph J. DePalma -- jdepalma@litedepalma.com -- Lite DePalma Greenberg, LLC. Tezos Stiftung, A Swiss Foundation, Defendant, represented by Andrew S. Gehring -- andrew.gehring@davispolk.com -- Davis Polk and Wardwell LLP, Edmund Polubinski, III -- edmund.polubinski@davispolk.com -- Davis Polk and Wardwell LLP, Neal Alan Potischman -- neal.potischman@davispolk.com -- Davis Polk & Wardwell & Serge Alexander Voronov -- serge.voronov@davispolk.com -- Davis Polk & Wardwell LLP. TIGER BRANDS: Confirms Presence of Listeria Strain in Facilities ---------------------------------------------------------------- Chisom Jenniffer Okoye, writing for The Citizen, reports that Tiger Brands recently released a statement that confirmed the presence of the listeria strain that caused the outbreak in its facilities. Two law firms representing victims of the deadly listeriosis outbreak have commended food giant Tiger Brands on their transparency in releasing listeria testing information to shareholders. Tiger Brands recently released a statement that confirmed the presence of the listeria strain that caused the outbreak at its facilities. This meant that their factories in Polokwane, Limpopo, and in Germiston, Gauteng, would remain closed until the problem is resolved. The company said: "The purpose of this announcement [was] to update shareholders on the results of the independent laboratory retesting which was carried out in respect of the presence of LST6 in the above samples." Human rights lawyer Richard Spoor said: "This confirmation of what the National Institute for Communicable Diseases (NICD) reported that this outbreak of listeria came from the Polokwane factory of Enterprise Foods and what [the] statement amounts to is the acknowledgement by the company that indeed this outbreak does come from their factory . . . "We look forward to working with Tiger Brands' lawyers and insurers to find an equitable solution for its injured consumers." Zain Lundell from LHL Attorneys said the announcement was helpful and he hoped it would lead to a "speedy and just" settlement for the individuals affected by the outbreak. The two firms agreed to consolidate their class actions in partnership with the US-based food safety law firm Marler Clark, against Tiger Brands. The class action currently represents 140 victims affected by the listeria outbreak. The firms are in the process of collecting medical records and evidence related to the case. [GN] TIM DRAPER: Investors Bring Suit Over Sale of Digital Currency -------------------------------------------------------------- Anna Schuessler, writing for The Daily Journal, reports that with claims those running a cryptocurrency fundraising operation attempted to skirt U.S. securities laws, a set of investors in a digital currency called Tezos are asking for their investments to be repaid, according to a class action lawsuit filed in the San Mateo County Superior Court. The plaintiffs in the suit are claiming that by setting up a Swiss foundation tasked with handling an initial coin offering for Tezos tokens in July, a Mountain View-based corporation named Dynamic Ledger Solutions and its shareholders, which include San Mateo-based venture capitalist Tim Draper, facilitated the illegal sale of unregistered securities, according to the suit. The suit outlines a scheme by which Dynamic Ledger Solutions, owned by Kathleen and Arthur Breitman as well as Draper, allegedly took advantage of growing interest in digital cryptocurrencies to stoke enthusiasm for Tezos, a currency the company enabled by creating the blockchain technology behind it. A digital ledger that can record transactions, blockchain has enabled exchanges of bitcoin, and the lawsuit said the Breitmans attempted to expand the types of applications available on blockchain in the technology they developed for Tezos. Though the price of digital currencies such as bitcoin have surpassed the predictions of many -- stopping just shy of $20,000 in December -- its value has proven to be highly volatile, plunging to under $7,000 in recent weeks and landing at a little more than $9,000 on April 27. In an effort to promote use of the Tezos blockchain, a nonprofit called the Tezos Foundation was founded in Switzerland in April of 2017 and a contract allegedly outlining the sale of Dynamic Ledger Solutions to the foundation was signed by the company and the foundation in June, according to the suit. At around the same time, Draper is believed to have invested $1.5 million in Tezos and publicly announced his investment in May, which the plaintiffs say caused interest in the currency's impending initial coin offering, or ICO, in July to skyrocket, according to the suit. Draper did not respond to requests for comment on this story. For some two weeks in July, the Tezos ICO was open, it allegedly raised 65,627 bitcoin and 361,122 of the digital cryptocurrency Ethereum, the combined total of which were valued at the time at an estimated $232 million. The digital currencies invested in the Tezos ICO were worth an estimated $1.2 billion as of Dec. 11, according to the suit. Because those who participated in the ICO had a reasonable expectation that the Tezos token would appreciate in value and both Draper and Kathleen Breitman made public statements about the anticipated appreciation of the token, they were involved in the selling of securities that were never registered with the U.S. Securities and Exchange Commission, according to the suit. The plaintiffs, which include Australian entity Trigon Trading Pty. Ltd. and California resident Bruce MacDonald, also take issue with the positioning of the exchanges made during the ICO as a non-refundable donation and not an investment. They allege that since the ICO, the Breitmans have engaged in public disagreements with the foundation's president, Johann Gevers, and that the foundation has been liquidating assets collected during the ICO, at least $60,000 they say has been paid to Dynamic Ledger Solutions, according to the suit. The class is requesting members are repaid their investments and any appreciation of them as well as compensation of legal fees, according to the suit.[GN] TOTAL QUALITY: Two Plaintiffs No Longer Part of Class Action ------------------------------------------------------------ Karen Kidd, writing for Cook County Record, reports that two plaintiffs who joined a class action suit against an Ohio-based shipping services provider over accusations of not paying overtime to employees are no longer part of the case and their claims could be heading into arbitration, despite the company's tardiness in presenting the court with the employment agreements containing the arbitration requirements. A defense motion to dismiss the claims of the two plaintiffs, Ryan Azeem and Richard Smith, who joined the suit after it was filed against Total Quality Logistics (TQL), was granted, according to a memorandum and order handed down in the U.S. District Court for the Northern District of Illinois on April 9 by U.S. District Judge Matthew F. Kennelly. Kennelly dismissed the two plaintiffs' claims with prejudice and also ordered the statute of limitations of their claims be tolled from the date they opted into the lawsuit until the day of his order. "Having considered the totality of the circumstances, the court concludes that TQL has not acted inconsistently with its right to arbitrate the claims of plaintiffs Ryan Azeem and Richard Smith," Kennelly wrote in the order. "The court therefore overrules Azeem and Smith's waiver argument and grants TQL's motion to dismiss their claims." Messrs. Azeem and Smith joined the collective action suit against TQL, accusing the company of violating the Fair Labor Standards Act by not paying them overtime, according to the background portion of Kennelly's order. When the plaintiffs asked for conditional certification of two classes, TQL asked to compel arbitration or dismiss the claims of nine of the original plaintiffs, who had arbitration agreements. TQL, which is based in Cincinnati, provided the court with varying lists of employees without arbitration agreements, which initially included Messr. Azeem and Smith. However, that changed in October when TQL said it had located arbitration agreements in Mr. Azeem's and Mr. Smith's personnel files. "Why did it take so long to find Azeem and Smith's personnel files?" Judge Kennelly wrote in his order. "TQL has not provided much of an explanation. It has submitted an affidavit from Lindsay Elliott, a TQL human resources employee, who says that all personnel files from its seven Florida offices (both Azeem and Smith worked for TQL in Florida) are retained solely in hard copy and are stored at the company's Tampa office. Elliott states, somewhat vaguely, that upon receiving the request for the personnel files of opt-in plaintiffs in April 2017, TQL 'began working methodically' to collect the files. There is no explanation of what this means -- for example, was it just one employee working on this? More than that? Where did she have to look? Were the files in storage? Rather, Ms. Elliott offers only a general statement that each file had to be located among the files of other employees. She says that '[i]n or around October 2017,' she found Smith and Azeem's files and sent them to TQL's counsel." When the attorneys for the plaintiffs said they did not want to drop Messrs. Azeem and Smith for fear that the statute of limitations might bar their claims, TQL offered to toll the statute of limitations for both to make up for the time they have been part of the litigation. Kennelly agreed that that would be the right course of action. "To be sure, TQL should have identified Azeem and Smith membership much sooner," he said in the order. "But once TQL became aware they had signed arbitration agreements, it promptly requested arbitration of their claims: It was not 'assessing its options,' and it did not 'drop a bombshell' by insisting upon arbitration. And TQL did not materially benefit from its delay. The discovery requests it served resulted in production of only minimal information by Azeem and Smith, and it likely was the type of information they would have had to turn over even had their claims been sent to arbitration before that." Plaintiffs are represented in the action by attorneys Ryan F Stephan, of the firm of Stephan Zouras LLP, of Chicago, and Kimberly De Arcangelis, Charles R. Morgan and Matthew R. Gunter, of Morgan & Morgan P.A., of Orlando. TQL is represented by Matthew A. Bills -- matthew.bills@bfkn.com -- of the firm of Barack Ferrazzano Kirschbaum & Nagelberg LLP, of Chicago, and Meaghan K. Fitzgerald, Gregory M. Utter, Bryce J. Yoder -- byoder@kmklaw.com -- and Sophia R. Holley -- sholley@kmklaw.com -- of Keating Muething & Klekamp PLL, of Cincinnati. [GN] UBER TECHNOLOGIES: 14 Women Seek Release from Arbitration --------------------------------------------------------- Jamie Hwang, writing for ABA Journal, reports that fourteen women sent a letter to the Uber's board of directors on April 26 requesting to be released from the arbitration provision in their consumer agreement to allow them to pursue a class-action lawsuit alleging Uber's inadequate driver screening procedures led to the sexual assault, rape, sexual harassment and gender-motivated violence they experienced at the hands of their drivers. The open letter was addressed to the Uber Technologies Inc. board of directors by women who write that confidential arbitration goes against Uber's declared mission to help "make streets safer" and takes away a woman's right to a trial by a jury of her peers, providing "a dark alley for Uber to hide from the justice system, the media and public scrutiny." The plea comes as the ride- hailing company faces a May 4 deadline to respond to the women's complaint against the company in court. Law360, Axios, ABC News and Bloomberg Technology had the story. "Secret arbitration is the opposite of transparency," the letter says. "Forcing female riders, as a condition of using Uber's app, to pursue claims of sexual assault and rape in secret arbitration proceedings does not 'make streets safer.' In fact, it does the opposite. Silencing our stories deprives customers and potential investors from the knowledge that our horrific experiences are part of a widespread problem at Uber. This is not doing the 'right thing.'" The women share their stories of being assaulted, groped and raped by their drivers in the letter. One said her driver "jumped into the backseat, groped my body and forcibly tried to kiss me" when she tried to exit the vehicle. Another said her driver "pulled out his penis and masturbated during the ride" and saw him "on five separate occasions lingering in his car on the street outside of my apartment complex." New York City-based Wigdor Law initially filed the class action in November on behalf of two unidentified women, arguing that Uber put thousands of women at risk and put profit over safety. When Uber moved for arbitration, the firm added seven more women to the case. Jeanne Christensen, the lawyer for the women, says she will add another five women, according to Bloomberg Technology. The women seek to represent a class of all individuals in the U.S. who were raped, sexually assaulted or sexually harassed by their Uber drivers dating back four years, according to Law360. They are seeking damages and implementation of safety measures by Uber. "If Uber is the great force of change it claims, then you, as the board of the directors, should jump at the opportunity to make positive changes for women who order rides with Uber," the letter says. "Our request to proceed with our case in an open, public forum, rather than behind the secret doors of arbitration, is just one such opportunity for Uber to 'do the right thing.'" Uber representatives did not respond to an ABA Journal request for comment. "Sexual assault has no place anywhere and we are committed to doing our part to end this violence," Uber said in a statement reported by ABC News and Bloomberg Technology. [GN] UBER TECHNOLOGIES: 103 Drivers Face Sexual Assault Complaints ------------------------------------------------------------- Sara Ashley O'Brien, Nelli Black, Curt Devine, Drew Griffin, Majlie de Puy Kamp, Collette Richards and Whitney Clegg, writing for CNNTech, report that in another case examined by CNN, a woman from Miami left her kids with their grandmother and went to a bar with a friend. She took an Uber home. She says she passed out along the way and woke up the next morning with her pants and underwear on the floor. The Uber driver allegedly carried her into her apartment, threw her onto the bed and sexually assaulted her. She is a plaintiff in a proposed class action lawsuit against Uber. "You are pretty much hitchhiking with strangers," she told CNN. "How many people is it going to take to get assaulted before something is done?" According to police, the driver told them he knew the victim had been drinking and was "wrong for what he did." He pleaded not guilty for sexual battery and awaits trial. A woman in Long Beach, California, who alleges she fell asleep intoxicated in the back of an Uber in 2016, told CNN that she woke up with the driver assaulting her. The driver, 47, was found the next day with her phone and later arrested. He claimed the sex was consensual and the district attorney dropped the criminal case against him. She is suing Uber over the incident and for representing its services as "safe." "You don't think it will happen to you," she told CNN. "I still feel ashamed . . . that's why I'm here. I want a voice. [I'm] tired of being quiet." Uber: 'We want to be part of the solution' Uber, which launched in 2010 in San Francisco as "everyone's private driver," is the most valuable privately-held tech startup in the world. It is valued at $70 billion and operates in 630 cities worldwide. Uber provides 15 million rides a day. The issue of sexual assault conflicts with Uber's brand messaging to provide a "safe ride home." Its print and digital ads show women taking Ubers for nights out, and a partnership with Mothers Against Drunk Driving includes a "designated rider" campaign urging users to take an Uber to avoid driving under the influence. In 2015, Uber set up a popup kiosk in Toronto to offer free rides to those who blew into breathalyzers. This is significant given many of the women raped or attacked by the 103 accused drivers uncovered as a part of CNN's investigation had been drinking, or were inebriated, at the time of the incidents. The majority of the police reports reviewed by CNN involved incidents that took place in or near major cities across the country. Uber did not provide numbers on how many of its drivers have been accused of sexual assaults. Five drivers across various states told CNN they were not provided any kind of sexual harassment or assault training. Drivers agree to the company's community guidelines when they sign up to work for the service. Uber said it updated its standards in December 2016 to specify no sexual contact is permitted when using its platform. The company posted a sexual assault prevention video on its website to inform drivers and riders "how to create a safer community." It also said it plans to host 50 community forums nationwide for advocates, leaders, drivers and riders across to talk about the issue. The changes came after CNN first contacted Uber about this story. Uber was made aware of CNN's reporting for this story months ago but the company failed to make any executives available to speak on the record. It canceled an on-camera interview with an Uber executive. On a call with CNN for an unrelated story, Uber CEO Dara Khosrowshahi said cracking down on sexual assault is a "new priority for us." "It is a priority that I expect to remain a priority for the foreseeable future," said Mr. Khosrowshahi, who joined the company in late August after cofounder Travis Kalanick stepped down. In a recent statement sent to CNN, an Uber spokesperson said safety is the company's top priority this year and cited recent protocol updates such as rerunning driver background checks on an annual basis moving forward. The company also said it plans to roll out a dedicated "safety center" within the Uber app where riders can designate contacts they want to share trip details with while they ride; it will also have an emergency button allowing users to call 911 from inside the app. "This is just a start and we are committed to doing more," the spokesperson said. "Sexual assault is a horrible crime that has no place anywhere. While Uber is not immune to this societal issue, we want to be part of the solution to end this violence forever." Lyft, an Uber competitor that provides one million rides daily in the United States and Canada, is also dealing with sexual assaults by its drivers. A similar CNN review using the same methodology found 18 cases of Lyft drivers accused in the past four years. Four drivers have been convicted. "The safety of the Lyft community is our top priority," said a Lyft spokesperson, adding it has "worked hard to design policies and features that protect our community." It's common for Uber and Lyft drivers to work for both services. But each company performs its own background checks. Both companies mostly conduct digital background checks via a startup called Checkr. Uber said it reviews the records of driver candidates that are surfaced to the company by its background check provider. It said any serious criminal convictions, like sexual assault, sex crimes against children and kidnapping, would disqualify candidates. The company previously didn't have a uniform policy on rerunning criminal background checks. But when pressed by CNN, a spokesperson said in January it started running screenings on drivers every two years in mid-2017. In addition to its recent announcement about annual background checks on drivers, Uber plans to monitor new criminal offenses (via public records or pending DUI charges) as they happen. CNN found two instances in which drivers pleaded guilty to sexual assaults while working for both Uber and Lyft. In one case, a Seattle driver began driving for Lyft after Uber discharged him, according to court documents. He later sexually assaulted a Lyft rider. In the other case, a driver pleaded guilty in San Diego to indecent exposure and the false imprisonment of an Uber passenger, as well as battery for a separate incident involving a Lyft passenger. Police are tracking reported crimes by drivers Of the 103 Uber drivers accused of sexual assault or abuse, for 18 of them, criminal cases did not move forward either because charges were dropped, cases were dismissed, or drivers were found not guilty. The district attorneys and police officers who spoke to CNN said cases don't move forward for several reasons, such as lacking a probable cause or witness cooperation. In addition to finding the 103 drivers accused of crimes or named in a civil lawsuit, CNN contacted more than 20 police departments to obtain data on complaints that involved Uber or Lyft drivers and sexual assault. Four police departments -- Austin, Boston, Denver and Los Angeles -- tracked crimes involving rideshare drivers and shared their data on sexual assault complaints. CNN did not include most of these complaints in its tally of cases, because they could not all be verified with incident reports. However, the numbers suggest that there may be many more overall incidents of sexual assault than the 103 cases found in the CNN investigation. The Boston Police Department received 24 complaints or reports of Uber drivers allegedly sexually assaulting passengers since 2016. The department received three assault-related complaints involving Lyft drivers during the same period. Since 2016, the Los Angeles Police Department has received at least 13 similar complaints about Uber drivers, eight regarding Lyft drivers and more than a dozen about ride-share drivers whose companies were unclear in data shared with CNN. Only one of those cases led to an arrest. In Austin, police have documented at least 16 sexual assault complaints about Uber drivers -- and at least ten about Lyft drivers -- since 2015. Meanwhile, the Denver police department has recorded at least nine sexual assault or abuse complaints about Uber drivers and at least 12 about Lyft drivers since 2015, but only two of those complaints resulted in criminal charges. Most of the other Denver cases became inactive due to lack of witness cooperation or were refused by the district attorney for lack of evidence. Lawyer: Uber has been 'keeping this story quiet' Jeanne Christensen, an attorney with law firm Wigdor LLP, has been pursuing Uber rape and assault cases since 2015 when her firm filed a lawsuit after a high-profile rape case in New Delhi. The Uber driver, who had a previous record that included rape and molestation, was sentenced to life in prison. The incident sparked protests and caused authorities to temporarily ban Uber from the city for six weeks. That case, and questions about how Uber handled it, thrust the issue into the spotlight. Most recently, Ms. Christensen's firm represents a proposed class action against Uber on behalf of nine plaintiffs, including the Miami woman CNN interviewed, who said they were assaulted by Uber drivers. Uber is trying to compel the women to carry out their case through arbitration per its legal terms of service. When users sign up for Uber, they agree to its terms, which includes resolving any claim "on an individual basis in arbitration." Ms. Christensen and the women are pushing back. In a letter to Uber's board, 14 women detailed their experiences and urged the company to remove its arbitration clause, saying it silences them and forces the issue underground. "We trusted a company operating in the space of transportation for hire to mean what it says, and we never thought that Uber would perpetuate physical violence against women," they wrote. An Uber spokesperson previously issued a statement to CNN about forcing the case into arbitration, calling it the "appropriate venue for this case because it allows the plaintiffs to publicly speak out as much as they want and have control over their individual privacy at the same time." Over the years, Ms. Christensen said she noticed a trend in those who've come to her firm for help: Victims tend to be female and petite, live alone, and were inebriated at the time of the alleged assault, she told CNN. "If a driver is going to enter her home, he has [likely] asked her enough questions and knows she lives alone," she said. Ms. Christensen -- who said she's currently representing 16 women who alleged they've been been raped or attacked by Uber drivers - - will not say how many cases against Uber her firm has handled, citing confidentiality. Multiple attorneys across the country were similarly silent about their cases against Uber. Like many large companies, Uber requires all parties to sign a confidentially agreement when a case is settled. "We aren't simply filing cases so Uber [can] pay women money and their lawyers to be quiet about it," she told CNN. "That was a conscious decision that we made. Uber has done a miraculous job at keeping this story quiet." [GN] UBER TECHNOLOGIES: Briefing Schedule Set in "Yucesoy" ----------------------------------------------------- The United States District Court for the Northern District of California issued an Order to Revise Briefing Schedule Regarding Plaintiffs' Fifth Amended Class Action Complaint in the case captioned HAKAN YUCESOY, ABDI MAHAMMED, MOKHTAR TALHA, BRIAN MORRIS, and PEDRO SANCHEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. UBER TECHNOLOGIES, INC. and TRAVIS KALANICK, Defendants, Case No. 3:15-cv-00262-EMC (N.D. Cal.). The hearing and case management conference will remain on calendar for June 14, 2018. A full-text copy of the District Court's April 9, 2018 Order is available at https://tinyurl.com/yb3eyfbc from Leagle.com. Hakan Yucesoy, on behalf of himself and others similarly situated, Plaintiff, represented by Shannon Liss-Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C., Adelaide Pagano -- apagano@llrlaw.com -- Lichten and Liss-Riordan, P.C., pro hac vice & Matthew David Carlson -- mdcarlson@llrlaw.com -- Lichten & Liss-Riordan, P.C. Abdi Mahammd, individually and on behalf of all others similarly situated,, Mokhtar Talha, individually and on behalf of all others similarly situated,, Brian Morris, individually and on behalf of all others similarly situated,, Pedro Sanchez, individually and on behalf of all others similarly situated,, Antonio Oliveira, individually and on behalf of all others similarly situated, & Aaron Dulles, individually and on behalf of all others similarly situated,, Plaintiffs, represented by Adelaide Pagano , Lichten and Liss-Riordan, P.C., pro hac vice & Shannon Liss-Riordan , Lichten & Liss-Riordan, P.C. Uber Technologies, Inc., Defendant, represented by Debra Wong Yang -- dwongyang@gibsondunn.com -- Gibson, Dunn Crutcher LLP, Marcellus Antonio McRae -- mmcrae@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law Gibson, Dunn & Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher, Joshua Seth Lipshutz -- jlipshutz@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Peter C. Squeri -- psqueri@gibsondunn.com -- Theane D. Evangelis, Gibson Dunn & Crutcher LLP & Theane Evangelis Kapur -- tevangelis@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. Travis Kalanick, Defendant, represented by Dhananjay Saikrishna Manthripragada, Gibson Dunn and Crutcher, Joshua Seth Lipshutz , Gibson, Dunn and Crutcher LLP, Peter C. Squeri ,Theane Evangelis Kapur , Gibson, Dunn & Crutcher LLP & Theodore J. Boutrous, Jr. , Attorney at Law Gibson, Dunn & Crutcher LLP. UNITED STATES: 9th Cir. Needs Supplemental Briefs in "Rodriguez" ---------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit, directed parties in the case captioned ALEJANDRO RODRIGUEZ, for himself and on behalf of a class of similarly-situated individuals; ABDIRIZAK ADEN FARAH, for himself and on behalf of a class of similarly-situated individuals; JOSE FARIAS CORNEJO; YUSSUF ABDIKADIR; ABEL PEREZ RUELAS, Petitioners-Appellees/Cross- Appellants, and EFREN OROZCO, Petitioner, v. DAVID JENNINGS, Field Office Director, Los Angeles District, Immigration and Customs Enforcement; KIRSTJEN M. NIELSEN, Secretary, Homeland Security; JEFFERSON B. SESSIONS III, Attorney General; WESLEY LEE, Assistant Field Office Director, Immigration and Customs Enforcement; RODNEY PENNER, Captain, Mira Loma Detention Center; SANDRA HUTCHENS, Sheriff of Orange County; NGUYEN, Officer, Officer-in-Charge, Theo Lacy Facility; DAVIS NIGHSWONGER, Captain, Commander, Theo Lacy Facility; MIKE KREUGER, Captain, Operations Manager, James A. Musick Facility; ARTHUR EDWARDS, Officer-in-Charge, Santa Ana City Jail; RUSSELL DAVIS, Jail Administrator, Santa Ana City Jail; JAMES MCHENRY, Director, Executive Office for Immigration Review, Respondents-Appellants. Nos. 13-56706, 13-56755. (9th Cir.), to File Supplemental Briefs addressing the following procedural questions: (1) whether this Court has jurisdiction over petitioners' constitutional claims despite 8 U.S.C. Sections 1252(f)(1), and if not, whether the Court may nonetheless issue declaratory relief for the Rule 23(b)(2) class; (2) whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for petitioners' claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011); and (3) whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve petitioners' claims. The supplemental briefs should also address the following constitutional questions: (1) whether the Constitution requires that aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. Sections 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts more than six months; (2) whether the Constitution requires that criminal or terrorist aliens who are subject to mandatory detention under U.S.C. Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts more than six months; and (3) whether the Constitution requires that, in bond hearings for aliens detained for more than six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community or rather whether the government's proof of flight risk or danger could be by only a preponderance of the evidence, whether the length of the alien's detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. A full-text copy of the Ninth Circuit's April 12, 2018 Order is available at https://tinyurl.com/yd5ryowt from Leagle.com. Sarah Stevens Wilson (argued), Theodore William Atkinson, Hans Harris Chen, Alisa Beth Klein, Robert I. Lester, Jaynie R. Lilley, Benjamin C. Mizer, Nicole Prairie, and Erez Reuveni, United States Department of Justice, Washington, D.C., for Respondents-Appellants/Cross-Appellees. Ahilan Thevanesan Arulanantham, Michael Kaufman, Peter Jay Eliasberg, ACLU Foundation of Southern California, Los Angeles, California; Judy Rabinovitz -- jrabinovitz@aclu.org -- and Michael K.T. Tan -- mtan@aclu.org -- ACLU Immigrants' Rights Project, New York, New York; Cecillia D. Wang, ACLU Immigrants' Rights Project, San Francisco, California; Jayashri Srikantiah, Stanford Law School Mills Legal Clinic, 559 Nathan Abbott Way Stanford, CA 94305-8610, Sean Ashley Commons -- scommons@sidley.com -- and Wen Shen -- LSHEN@SIDLEY.COM -- Sidley Austin LLP, Los Angeles, California; Steven Andrew Ellis -- sellis@goodwinprocter.com -- Goodwin Procter LLP, Los Angeles, California, for Petitioners-Appellees/Cross-Appellants. UNITED STATES: VA to Build Housing Units Following Class Action --------------------------------------------------------------- Sara Rashidi, writing for Daily Bruin, reports that the Department of Veterans Affairs plans to build more than 1,000 housing units at its West Los Angeles campus. The VA held a public hearing on April 26 to gauge public opinion for its plans to provide permanent supportive housing for veterans who are homeless or at risk of being homeless. James Sullivan, director of the Office of Asset Enterprise Management, said the proposed enhanced-use lease initiative would allow a developer to finance, build and operate permanent supportive housing and related services. The VA first plans to renovate Building 207, located in the northern portion of its West LA campus near Westwood, to provide supportive housing for veterans in the area, Sullivan added. Meghan Flanz, the executive director of the VA overseeing the West LA campus Master Plan, said the department reached an agreement with the American Civil Liberties Union of Southern California after the ACLU filed a class-action lawsuit alleging the department was violating an agreement to provide more services for homeless veterans with disabilities. The VA agreed in 2014 to engage with local community members in drafting its Master Plan for housing homeless veterans in the future, Ms. Flanz said. The department completed the Master Plan, which outlines housing building proposals for 1,200 units in 2016. "The Master Plan . . . uses the campus for the purpose of housing homeless and vulnerable veterans and meeting the needs of underserved veteran populations to include women veterans, aging veterans and those who are severely or mentally disabled," Ms. Flanz said. The West Los Angeles Leasing Act of 2016 that Congress passed enables the VA to enter into enhanced-use leases so vendors it selects can build and operate on the campus, Ms. Flanz said. "VA has no authority on its own to build or operate homeless housing, but the enhanced-use lease authority allows us to partner with others to get that done," he said. Some students and community members who attended the panel said they think the public hearing was important in bringing together the directors and community members to make suggestions and have their questions answered. Jesse Flores, a graduate student studying urban planning, said he supports the proposal because it will help address homelessness in Los Angeles. "I think it is important to address the large homelessness issue that is in LA -- especially with veteran homelessness, where it is nearly at 5,000," he said. "We have this real estate here, this land here at the West LA VA campus to actually do something about it, so let's do something." Bryan Dean, a fourth-year political science student who also works at the UCLA Veteran Research Center, said he thinks the campus could eventually expand its services to help student veterans, including getting them into university housing. "There are many student veterans that would need housing, so this could fill that gap," he said. "I am sure there are numerous ways that student veterans can get involved." Jerry Orlemann, a former veteran who served for 14 years in the U.S. Army, said he thinks leasing part of the campus to a developer will help get housing built faster. He added he thinks building projects can usually be slow and it is important to get homeless veterans off the streets as quickly as possible. "When you have got people literally out on the streets, you are talking about sheltering them -- it is whatever you can do, the sooner the better," he said. [GN] UNIVERSAL TAX: Judge Rejects D&B's Attempt to Reopen Class Action ----------------------------------------------------------------- Karen Kidd, writing for Cook County Record, reports that a judge has deleted a tax accounting firm's attempt to reopen a class action lawsuit in Chicago federal court against a tax software provider for claims of fraud, saying the accountant can't demonstrate any of the alleged fraud actually took place in Illinois. U.S. District Judge Rebecca R. Pallmeyer granted a motion for summary judgment sought by defendant Universal Tax Systems, which does business as CCH Small Firm Services, according to a memorandum and order handed down March 31. In the same order, Judge Pallmeyer denied a motion by plaintiff D&B II Enterprises, which does business as Bain Accounting Tax, that fraud claims in the case should be reconsidered. Additionally, she terminated as moot D&B Enterprises' motion for class action certification. "[D&B] has asked the court to reconsider Judge [James] Zagel's decision to grant summary judgment for [Universal Tax Systems] on [D&B]'s claim under the Illinois Consumer Fraud and Deceptive Business Practices Act," Judge Pallmeyer said in the order. "[D&B]'s motion is denied because D&B has not presented any evidence that any of the circumstances relating to its allegations of fraud took place primarily and substantially in Illinois." D&B brought its putative class action against Universal Tax Systems, asserting performance issues with Universal's tax software for the 2012 tax year amounted to consumer fraud. After fraud counts were dismissed earlier by Judge Zagel, D&B added "several contract and quasi-contract claims," and then filed a motion to certify a class to include people who purchased Universal Tax Systems' software during the 2012 tax year. Universal Tax Systems, however, objected to the claims, arguing it had used a disclaimer allowed under Illinois state law, according to Judge Pallmeyer's order. "The Illinois Uniform Commercial Code allows merchants to disclaim the implied warranty of merchantability, provided they do so using 'conspicuous' language that 'mention[s]' merchantability," Judge Pallmeyer wrote. "The parties may disclaim all implied warranties by expressions like 'as is,' 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty. [Universal Tax Systems] contends it made such a disclaimer in this case, and [D&B] does not argue that the disclaimer of warranties in the 2012 SSLA [standard software license agreement] is insufficient as written." D&B claimed the 2012 SSLA was unenforceable because it never agreed to the 2012 SSLA, and that the deferred payment agreement to which D&B did agree, did not include a reference to the 2012 SSLA. D&B also claimed that enforcing the 2012 SSLA "would be procedurally unconscionable." D&B also argued the deferred payment agreement's description of the SSLA as an 'other' agreement made it clear that the deferred payment agreement did not incorporate any 'other' agreements by reference. "This argument is not persuasive," Judge Pallmeyer said. "Language distinguishing one document from another does not automatically preclude incorporation by reference. If anything, such language may be a prerequisite for incorporation by reference, as the concept of incorporation by reference implies the existence of an incorporating document that is distinguishable from the document being incorporated. In the absence of an 'other' document, there would be nothing for 'this' document to incorporate." D&B is represented by attorneys Elizabeth A. Fegan, Daniel J. Kurowski and Mark T. Vazquez, of the firm of Hagens Berman Sobol Shapiro Llp, of Chicago; and Don M Downing, Gretchen Garrison and Jason D. Sapp, of the firm of Gray, Ritter & Graham, P.C., of St. Louis. Universal Tax System is represented by attorneys Craig C. Martin -- cmartin@jenner.com -- Leah K. Casto -- LCasto@jenner.com -- Matthew R. Devine -- mdevine@jenner.com -- David E. Jimenez-Ekman -- djimenez-ekman@jenner.com -- Brienne M. Letourneau -- bletourneau@jenner.com -- and Caroline L. Meneau, of the firm of Jenner & Block, of Chicago. [GN] UNO RESTAURANT: Court Won't Certify Class of Tipped Employees ------------------------------------------------------------- In the lawsuit styled Jose Santos Alvarez, the Plaintiff, v. Uno Restaurant Associates, Inc. d/b/a Prime Italian and Myles Chefetz, the Defendants, Case No. 1:17-cv-24452-RNS (S.D. Fla.), the Hon. Judge Robert N. Scola, Jr. entered an order on May 21, 2018, denying Alvarez's motions for conditional class certification under 29 U.S.C. Sec. 216(b) and class certification under Fed.R.Civ.P. Rule 23: "all bussers and servers ("tipped employees") who worked for Defendants during the three (3) years preceding this lawsuit and who, as a result of Defendants' policy of requiring them to share their tips with non-tipped employees, earned less than the applicable minimum regular and overtime wage for one or more weeks during the Relevant Time Period." The Court concludes that class certification is improper at this time because Alvarez has failed to demonstrate that the numerosity and commonality requirements have been met. As a result, the Court need not evaluate the other Rule 23 requirements and must deny Alvarez's motion for class certification. Alvarez alleges that he and other tipped employees, and in particular, other bussers and servers, were forced to share their tips with non-tipped employees such as stockers and sweepers; denied minimum and overtime wages, and forced to perform non-tip- producing side work. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LZH6c6kw VOLKSWAGEN GROUP: Aspen Law Firms File Emissions Scandal Lawsuit ---------------------------------------------------------------- Rick Carroll, writing for Aspen Times, reports that fallout from the Volkswagen emissions scandal has veered into Aspen, where two associated law firms have taken legal action against the Germany- based parent company of Audi. Attorneys Title Insurance Agency of Aspen LLC and Wright Law Aspen, which have adjacent office suites at 715 W. Main St., transferred their lawsuits from Garfield County District Court to the U.S. District Court in Denver. The three suits -- two from Attorneys Title, one from Wright Law -- make a series of allegations against Volkswagen more than 21/2 years after the Environmental Protection Agency, in September 2015, said the automaker violated the Clean Air Act. Volkswagen committed the violations with its so-called defeat devices, software that manipulated emissions tests by falsely issuing positive results that met federal emissions standards. "By installing these 'defeat devices' and failing to disclose the true nature of emissions from the clean diesel cars, defendant willingly, knowingly and intentionally violated Colorado state law, lied to and defrauded consumers," says one of the suits from Attorneys Title. The complaints from Attorneys Title and Wright Law, which are both run by Aspen lawyer Gary Wright, allege that in August 2013, the two firms entered a three-year lease for a 2014 Audi Q5 A3, which was billed as a clean-diesel vehicle, from Audi Glenwood Springs. That Audi model is one of multiple Volkswagen products with turbocharged direct injection (TDI) diesel engines snared by what has been called "emissionsgate" and "dieselgate." Neither Wright nor attorneys from the Glenwood Springs-based firm Karp Neu Hanlon PC returned messages seeking comment. The complaints, however, say the plaintiffs "had no way of knowing about Audi of America's intentional and sophisticated deception with respect to the TDI fraud 'defeat device' until around the fall of 2016, when it became aware of the class action litigation" in federal court in the Northern District of California. On April 27, attorneys for Volkswagen filed a motion to stay the proceedings until a judicial panel's decision is made whether to fold the Aspen suits into similar proceedings in federal court in the Northern District of California, where a number of class actions by car purchasers against Volkswagen have been consolidated. "More than 2,400 actions have been filed against (Volkswagen Group of America Inc.) in courts across the United States based on those allegations, including 64 lawsuits filed in Colorado courts," wrote attorneys from the Denver firm Wheeler Trigg O'Donnell LLP, on behalf of Volkswagen. The motion also notes that both Attorneys Title and Wright Law lagged behind the class action and there is no sense of urgency to accelerate the litigation. "The EPA's notice of violation, which set off the Volkswagen controversy and constitutes the primary basis for plaintiff's action, was issued more than two years before plaintiff filed its complaint," the motion says. "Plaintiff even admits that it became aware of the resulting litigation -- and the MDL -- by 'the fall of 2016,' over a year before it eventually commenced this action. Plaintiff's delay clearly indicates that it would not be prejudiced by the short stay." The suits were originally filed in late March and early April in Garfield County District Court, before being transferred to the federal venue in Denver. [GN] VOLKSWAGEN GROUP: Class Action Over Defective Sunroofs Dismissed ---------------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a proposed class-action lawsuit that claims a Volkswagen sunroof shattered because of defects has been dismissed by a federal judge in New Jersey. Plaintiff Jonathan David says he purchased a new 2014 Volkswagen Touareg equipped with a panoramic sunroof with a movable front panel and fixed back panel. The plaintiff claims that before he bought the vehicle, he did extensive research by reading magazine reviews, speaking with owners and questioning VW service technicians. In addition, Mr. David says the panoramic sunroof was a "huge selling point" in his decision to purchase the Touareg. According to the lawsuit, Mr. David was driving on January 7, 2016, when he heard a sound he thought was a tire blowout or a gunshot, causing him to swerve and allegedly almost hit the highway barrier. Finding himself covered in glass, the plaintiff says he saw a hole in the sunroof (pictured above right) and reduced his speed to drive back to his home. Once back at home, the plaintiff says he noticed the sunroof glass had blown upwards with some pieces of glass caught in the rear section of the panoramic sunroof . Other pieces of glass had fallen into the back seat, front seats and onto the center console. VW roadside support towed the vehicle to a dealer where the plaintiff was informed the replacement sunroof would cost about $1,400, a cost the automaker wouldn't cover. Mr. David says he called Volkswagen and was told the decision by the dealer was final. The plaintiff says he paid an insurance deductible of $500 and his insurance company paid the remaining amount to replace the sunroof. According to the plaintiff, VW should have told him the sunroof could shatter because he wouldn't have paid what he did for the Touareg if Volkswagen wouldn't have concealed the alleged defect. The lawsuit references complaints made about shattered sunroofs in VW vehicles and also references problems other automakers have allegedly experienced with sunroofs that exploded. The plaintiff also references a 2014 recall of VW Beetle cars to replace sunroofs, although the recall was related to sunroofs that could break when the cars hit potholes or other rough surfaces. The Volkswagen models included in the proposed class-action lawsuit include the following vehicles equipped with factory- installed panoramic sunroofs: -- 2013 Volkswagen Beetle -- 2009-2017 Volkswagen CC -- 2008-2014 Volkswagen Eos -- 2010-present Volkswagen Golf -- 2009-present Volkswagen Jetta -- 2009-present Volkswagen Passat -- 2011-present Volkswagen Tiguan VW filed a motion to dismiss the entire lawsuit and the judge agreed to toss the suit by finding every claim made by the defendant couldn't be supported in court. The judge ruled the new vehicle limited warranty covers only a manufacturers defect in material or workmanship, but the lawsuit focuses entirely on how the sunroof was designed, not how it was manufactured. Concerning the serious allegation that VW fraudulently concealed information about the alleged sunroof defect, the court found the lawsuit doesn't say "what acts of concealment were taken, by whom, regarding which facts, and what, if any, information was directly withheld from Plaintiff." The judge determined the lawsuit contains only vague generalized allegations that some type of information was withheld at some point by someone, and weak allegations such as that aren't good enough in court. According to the lawsuit, the plaintiff purchased his car in February 2014 but did not file the lawsuit until November 2017, leaving his claim time-barred because the statute of limitations for a breach of express warranty claim is three years. The lawsuit was also dismissed because the plaintiff claims he discovered the sunroof problems in January 2016, giving him a year to file a lawsuit before the three-year period expired. In addition, the plaintiff never claims Volkswagen concealed facts that prevented him from filing the lawsuit before he did. As for the claim that VW violated the Magnuson-Moss Warranty Act, the judge dismissed that claim because to state a claim, the plaintiff must first adequately plead a claim for breach of express warranty. This isn't possible because the judge dismissed the express warranty claim. The Volkswagen shattered sunroof lawsuit was filed in the U.S. District Court for the District of New Jersey -- Jonathan David, et al., vs. Volkswagen Group of America, Inc., et al. The plaintiff is represented by Simmons Hanly Conroy LLC, and Greg Coleman Law. VOLVO CARS: Court Junks Suit Over Side Impact Protections Systems ----------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania granted Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint in the case captioned ANA WEBB, et al., Plaintiffs, v. VOLVO CARS OF N.A., LLC, VOLVO CAR CORPORATION, and VOLVO CARS OF N.A., INC., Defendants, Civil Action. No. 13- 2394 (E.D. Pa.). This putative class action asserts violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") (Count I), unjust enrichment (Count II), breach of express warranty and implied warranty of merchantability (Counts III and IV), and negligent misrepresentation and fraud (Counts V and VI) against Volvo Car Corporation ("VCC") and two of its subsidiaries, Volvo Cars of North America, Inc. ("VCNA") and Volvo Car UK Limited ("VCUK," and together with VCC and VCNA, "Volvo"). The Plaintiff's claims are based on Defendants' alleged failure to install a Side Impact Protection System (SIPS) equipped with steel door bars in the rear passenger-side doors of Volvo 850 vehicles. The named plaintiff, Ana Webb, alleges that she purchased one of these used vehicles based on advertising that touted Volvo as a leader in automobile safety and that claimed Volvo vehicles contained SIPS on all passenger doors. In their Motion to Dismiss, the Defendants contend that Counts I (UTPCPL), V (Negligent Misrepresentation), and VI (Fraud) should be dismissed because they lack allegations of justifiable reliance on any statement or advertising by Volvo. Moreover, the Defendants contend that Count II (Unjust Enrichment) should be dismissed because the Plaintiffs have not adequately alleged a benefit conferred on the Defendants by the Plaintiffs, knowledge or appreciation of those benefits by the Defendants, or inequitable acceptance and retention of these benefits. The Defendants also contend that Count III (Express Warranty) should be dismissed. To the extent that the claim is based on Volvo's 1997 New Car Limited Warranty (Volvo Limited Warranty), the warranty included a time and mileage limitation that expired long before Plaintiff Webb purchased her vehicle. To the extent that the claim is not based on the Volvo Limited Warranty, the Defendants assert, the Plaintiffs have not adequately alleged reliance on a specific misleading advertisement or other representation. The Defendants contend that, to the extent the Plaintiffs rely on a breach of express warranty for their UTPCPL claim (Count I), that should also be dismissed for the same reasons that Count III, mentioned immediately above, should be dismissed. The Defendants urge the Court to dismiss the Plaintiffs' Implied Warranty claim (Count IV) because the Volvo Limited Warranty confined any implied warranties to four years from the time of sale to the original retail purchaser, which expired long before Plaintiff purchased the used vehicle and the four-year statute of limitations expired. In response to Defendants' Motion to Dismiss, the Plaintiffs assert that they adequately pled justifiable reliance and thus provided sufficient notice to the Defendants as to Counts I (UTPCPL), V (Negligent Misrepresentation), and VI (Fraud). The Plaintiffs similarly disagree that their Unjust Enrichment (Count II) claim is inadequately pled, because they alleged that the Plaintiffs conferred both direct and indirect benefits on the Defendants, the Defendants knew that they obtained those benefits, and the Defendants acted inequitably in accepting and retaining such benefits. With respect to their Implied Warranty (Count IV) claim, as well as their Express Warranty (Count III) claim and the derivative UTPCPL claim the Plaintiffs assert that they adequately highlight the specific written warranties in Volvo's advertising and safety materials that Volvo violated. Fraudulent Misrepresentation/Inducement -- Count VI Under Pennsylvania law, claims for fraudulent misrepresentation or inducement have six elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. The Plaintiffs' original complaint also did not identify any specific misleading representation that was seen, heard, and relied upon to purchase the Volvo 850. The Defendants specifically moved for a more definite statement on this ground and the Plaintiffs submitted an amended complaint that identified an allegedly misleading representation, which specified a Volvo brochure which did not, on its face, pertain to the same Volvo model (850) which is the subject matter of this case. However, the First Amended Complaint's identified representation has been improperly altered by the Plaintiffs' prior counsel to make it appear relevant to this case in ways that it was not. This Court once again granted the Plaintiffs leave to amend, and the Plaintiffs removed the misleading exhibit. However, this left them again without any specific misleading representation alleged. In sum, the Plaintiffs have had three opportunities to properly allege fraudulent misrepresentation by the Defendants, and have repeatedly failed. Permitting the Plaintiffs a fourth opportunity would be futile. Negligent Misrepresentation -- Count V In Pennsylvania, a claim of negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. As with the Plaintiffs' fraud claim, and for the same reasons expressed above, their claim for negligent misrepresentation fails under Rule 12(b)(6). The Plaintiffs have failed to allege a single specific misrepresentation by the Defendants that the Plaintiffs justifiably relied upon. Breach of Express Warranty -- Count III A warranty is created by a seller through any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain.' Thus, to state a cognizable claim for breach of express warranty, a plaintiff must allege both that the defendant made an actual affirmation of fact or a promise, and that the affirmation of fact or promise formed the basis of the bargain between the defendant and the plaintiff. There is no allegation whatsoever in the Plaintiffs' SAC as to what express warranty was seen, heard, and believed by Plaintiff Webb. Having had three opportunities over the past four years to adequately plead such a warranty, the Plaintiffs will not have a fourth. Amendment of this claim would also be futile. Breach of Implied Warranty The Plaintiffs contend that, irrespective of the statute of limitations period, equitable estoppel serves as a bar to dismissal of this claim because Volvo caused the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. However, there is no allegation of unintentional deception, fraud, or concealment that meets the Twombley/Iqbal standard. The Webbs purchased the used 1997 Volvo in 2009. It is unclear how Volvo could have lulled [the Webbs] into a sense of false security as to timely institution of their action, because the Plaintiffs did not even own their Volvo during the applicable limitations period assuming, that is, that the 1997 car was purchased "new" from Volvo sometime prior to 2005. This is not a case where the Plaintiffs were deceived and therefore failed to bring their case during the limitations period. They never could have brought a case for breach of implied warranty of merchantability, seeing as they bought the 1997 Volvo in 2009 with 159,000 miles. Regardless of this particular assertion, the Plaintiffs do not allege any equitable estoppel in their SAC, and have failed to demonstrate that this is the rare case where the plaintiff in some extraordinary way has been prevented from asserting his or her rights. Because the Plaintiffs cannot overcome the statute of limitations defense, and separately, because the implied warranty of merchantability was no longer in effect at the time that the Webbs took possession of the vehicle, this claim must be dismissed. Unjust Enrichment -- Count II Under Pennsylvania law, the elements of unjust enrichment have been defined as, (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. What the Plaintiffs fail to address, however, is the fact that the Defendants concede this point. The Defendants do not dispute that, as a matter of law, indirect purchasers can establish claims for unjust enrichment. However, the present case does not present a legally cognizable benefit. Moreover, irrespective of the Defendants' intent, or lack thereof, in allegedly accepting and/or retaining such generalized benefits. The Plaintiffs have failed to demonstrate acceptance and retention of such benefits under circumstances in which it would be inequitable for defendant to retain the benefit without payment of value. This unjust enrichment claim relies on the same alleged conduct as the underlying fraud claim, which, for reasons stated earlier, will be dismissed. The unjust enrichment claim also fails. A full-text copy of the District Court's March 26, 2018 Memorandum is available at https://tinyurl.com/ybry5xda from Leagle.com. MARK WEBB, Plaintiff, represented by ALFRED JOSEPH FLUEHR, FRANCIS ALEXANDER LLC & FRANCIS MALOFIY, Francis Alexander, LLC, 280 N. Providence Road, Suite 1, Media, PA 19063 ANA WEBB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by ALFRED JOSEPH FLUEHR, FRANCIS ALEXANDER LLC. VOLVO CARS OF N.A., LLC, VOLVO CAR CORPORATION & VOLVO CARS OF N.A., INC., Defendants, represented by PETER W. HERZOG, III -- pherzog@wtotrial.com -- Wheeler Trigg O'Donnell LLP & RICHARD B. WICKERSHAM, Jr. -- rwickersham@postschell.com -- POST & SCHELL, P.C. WAL-MART STORES: Tye Moves to Certify Five Classes of Purchasers ---------------------------------------------------------------- The Plaintiffs in the lawsuit styled MATTHEW TYE, HARRY SCHMOLL, MICHAEL WILCOX, CRAIG LAMSTER and TANYA THOMPSON MULLINS, on behalf of themselves and all others similarly situated v. WAL- MART STORES, INC., and WAL-MART STORES EAST, L.P., Case No. 8:15- cv-01615-DOC-JCG (C.D. Cal.), seeks certification of these classes of purchasers: (a) All persons who, within the applicable statute of limitations, purchased one or more containers of "Great Value Pork & Beans in Tomato Sauce" (the "Product") at a Wal-Mart store located in California; (b) All persons who, within the applicable statute of limitations, purchased one or more containers of the Product at a Wal-Mart store located in New Jersey; (c) All persons who, within the applicable statute of limitations, purchased one or more containers of the Product at a Wal-Mart store located in Pennsylvania; (d) All persons who, within the applicable statute of limitations, purchased one or more containers of the Product at a Wal-Mart store located in New York; and (e) All persons who, within the applicable statute of limitations, purchased one or more containers of the "Product" at a Wal-Mart store located in Illinois. The Plaintiffs also ask the Court to designate them as representatives of their respective Classes, and to appoint Wolf Haldenstein Adler Freeman & Herz LLP and DeNittis Osefchen Prince, P.C., as Co-Class Counsel and the Law Offices of Todd M. Friedman, P.C., as Liaison Counsel, for each of the Classes. The Court will commence a hearing on July 16, 2018, at 8:30 a.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gAwfn8BP The Plaintiffs are represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com - and - Stephen P. DeNittis, Esq. DeNITTIS OSEFCHEN PRINCE, P.C. 5 Greentree Centre 525 Route 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 Facsimile: (856) 797-9978 E-mail: sdenittis@denittislaw.com - and - Janine L. Pollack, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4653 E-mail: pollack@whafh.com WALMART STORE: Judge Rejects Attempt to Dodge Class Action ---------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reports that Walmart "does not have a leg to stand on," a federal judge said on April 27 when he denied its motion to decertify a class of employees accusing it of violating state labor law by failing to provide them with chairs. Walmart has litigated the case, which has been held up in appeals court over the certification issue, for nine years. In 2012, U.S. District Judge Edward Davila certified a class of 80,000 cashiers, but Walmart appealed the ruling. The Ninth Circuit waited until 2016 to affirm, pending the outcome of another class action involving seating for employees, Kilby v. CVS. "[T]he proper question is whether Wal-Mart has identified a subsequent development in the law or the evidence to justify revisiting class certification on its merits," Davila wrote in his April 27 ruling. "Under that standard, Wal-Mart does not have a leg to stand on." Calling Walmart's motion "an exercise in futility," Davila found it did not present any new evidence to compel him to revisit his 2012 order, but merely rehashed its old argument that the work cashiers perform varies too much by store for the class to meet the typicality and commonality requirements for certification. "[T]he court specifically addressed and rejected this exact argument the first time around, explaining that Wal-Mart's 30(b)(6) witness Jackie Grube testified that all California cashiers perform the same essential tasks, which do not vary based on Wal-Mart's identified factors," Davila wrote. "To the extent Wal-Mart seeks to escape this admission with new evidence, the court's prior observation still stands: the testimony of Wal- Mart's 30(b)(6) witnesses is binding on Wal-Mart." He added, "Wal-Mart does not sufficiently describe how its newly raised evidence is meaningfully different than what was presented before." Davila said Walmart's argument stood in direct conflict not only with his prior order, but also with the California Supreme Court's decision in Kilby v. CVS, in which the state's high court unanimously ruled that employees are entitled to a seat when their jobs permit it. "If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for," Justice Carol Corrigan wrote for the court in 2016. In a separate order, Davila sanctioned Walmart by excluding parts of reports from two of its expert witnesses. The plaintiffs had argued that Walmart provided certain information to three witnesses for help with their testimony, but did not disclose that same information to the plaintiffs until a week after the Feb. 28, 2018 deadline to file their opening expert reports. Davila found Walmart provided ergonomist Dr. Jeffrey Fernandez with videos of cashiers performing their jobs and cashier transaction data, but did not give the plaintiffs the same videos and data until months later. "The only way to restore both parties to equal footing with respect to the videos and register pull data is to exclude them," Davila wrote in his sanctions order. Walmart also provided 357,450 daily productivity reports (known as SWAS reports) to economist Dr. Deborah Foster, who was retained to give her opinion on the average productivity of seated versus standing cashiers, but the plaintiffs only received 600 such reports from Walmart. He ordered Fernandez's and Foster's reports stricken to the extent that they relied on information not turned over to the plaintiffs, and also precluded Walmart from using those videos and register data.[GN] WEINSTEIN CO: Six Women Plaintiffs in Class Action Seek Court Nod ----------------------------------------------------------------- Dawn C. Chmielewski, writing for Deadline, reports that six women who are pursuing a class-action lawsuit against Harvey Weinstein and the studio that bears his name are seeking the bankruptcy court's permission to resume their case. Attorneys for the women on April 30 filed a request with U.S. Bankruptcy Court in Delaware to lift an automatic stay and allow the case to proceed in federal district court in New York. The women filed suit in December, saying they -- and potentially hundreds of other women like them -- found themselves with Mr. Weinstein on the proverbial "casting couch" at offices, in hotel rooms, in his homes or at industry functions. "Under the guise of meetings ostensibly to help further their careers, or to hire them, or to socialize at industry events, Weinstein isolated [these women] in an attempt to engage in unwanted sexual conduct that took many forms: flashing, groping, fondling, harassing, battering, false imprisonment, sexual assault, attempted rape and/or completed rape," the women allege in court documents. The women, whose suit followed the explosive allegations reported last fall by The New York Times and New Yorker, say Mr. Weinstein exploited his powerful position in the entertainment industry to wield the threat of blacklisting against the women who rebuffed his sexual advances. The suit seeks to hold Mr. Weinstein, The Weinstein Co. and its board of directors accountable for allegedly facilitating and concealing this pattern of unwanted sexual conduct -- including the destruction of incriminating documents, the suit claims. Proceedings paused on April 17, federal district court Judge Alvin Hellerstein stayed the case and instructed lawyers to get the bankruptcy court's blessing to proceed. In the April 30 court filing, lawyers for the accusers -- who include Louisette Geiss, a member of the Unsecured Creditors Committee in the bankruptcy proceedings -- say that allowing this case to go forward would not interfere with the ongoing sale of The Weinstein Co.'s assets. The attorneys argue the case is an urgent issue for women who say they endured Mr. Weinstein's unwanted sexual conduct. "It is imperative that the Geiss litigation proceed expeditiously in the district court so that [these women] can recover for Weinstein and The Weinstein Co.'s conduct, which has caused widespread damage, including personal injury and emotional distress . . . and damage to their careers," the attorneys argue. The lawyers say they're worried that evidence might not survive the sale of the studio. Although The Weinstein Co. has a duty to preserve documents, they say it has ignored or refused requests to describe the steps the company has taken to preserve evidence. The women also believe they're likely to win in court. [GN] WORTHINGTON PJ: Seeks Final OK of $35,250 Deal in "O'Connor" Suit ----------------------------------------------------------------- The parties in the lawsuit styled RONALD O'CONNOR, individually, and on behalf of others similarly situated v. WORTHINGTON PJ, INC., a Florida corporation, Case No. 2:16-cv-00608-SPC-MRM (M.D. Fla.), jointly move the Court for an order granting their Joint Motion for Final Approval of Settlement, Appointment of Class Representatives and Class Counsel, and Certification of Rule 23 Settlement Class. The proposed Class in this case is defined as: all current and former pizza delivery drivers employed by Defendant from August 4, 2012 through the date the Court enters an order of preliminary approval on this settlement. This included approximately 201 individuals. The settlement is comprised of a limited class-wide release of claims and dismissal of the instant cause of action in exchange for $35,250. The fees and expenses in administrating the Settlement are set at $3,000. A copy of the Joint Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=G0hf4DNY The Plaintiff is represented by: Charles R. Ash, IV, Esq. Jason J. Thompson, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: crash@sommerspc.com - and - Bradley W. Butcher, Esq. BUTCHER & ASSOCIATES, P.L. 6830 Porto Fino Circle, Suite 2 Fort Myers, FL 33912 Telephone: (239) 322-1650 Facsimile: (239) 322-1663 E-mail: bwb@b-a-law.com The Defendant is represented by: Ignacio J. Garcia, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 100 North Tampa Street, Suite 3600 Tampa, FL 33602 Telephone: (813) 289-1247 Facsimile: (813) 289-6530 E-mail: ignacio.garcia@ogletreedeakins.com - and - Patrick F. Hulla, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 4520 Main Street, Suite 400 Kansas City, MO 64111 Telephone: (816) 471-1301 Facsimile: (816) 471-1303 E-mail: patrick.hulla@ogletreedeakins.com jennifer.oldvader@ogletreedeakins.com WYNN RESORTS: Court Extends Deadlines in "Ferris" ------------------------------------------------- The United States District Court for the District of Nevada extended the Defendant's Time to Answer or Otherwise Respond to the Complaint and Continuing Case Management Conference and Associated Deadlines in the case captioned JOHN V. FERRIS and JOANN M. FERRIS, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. WYNN RESORTS LIMITED, STEPHEN A. WYNN, CRAIG SCOTT BILLINGS, STEPHEN COOTEY, and MATTHEW O. MADDOX, Defendants, Case No. 2:18-CV-00479-GMN-CWH (D. Nev.). The Plaintiffs situated, filed a putative class action captioned Ferris v. Wynn, et al., No. 18-cv-00479-GMN-CWH against Defendants Wynn Resorts Limited, Stephen A. Wynn, Craig Scott Billings, Stephen Cootey, and Matthew O. Maddox, alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, 17 C.F.R. 240 promulgated thereunder. The Parties agree that in the interests of judicial economy, conservation of time and resources, and orderly management of this action, no response to any pleading in this action by any the Defendant should occur until after (i) a lead plaintiff and lead counsel are appointed by the Court, and (ii) the lead plaintiff serves an operative complaint. The Defendants will not be required to answer, move, or otherwise substantively respond to the Complaint or any amended complaint until the date agreed upon by the Parties, if approved by the Court, or until other further order by the Court. A full-text copy of the District Court's April 2, 2018 Order is available at https://tinyurl.com/y96hnz3n from Leagle.com. John V. Ferris, individually and on behalf of all others similarly situated & JoAnn M. Ferris, individually and on behalf of all others similarly situated, Plaintiffs, represented by Andrew R. Muehlbauer -- andrew@mlolegal.com -- Muehlbauer Law Office, Ltd., Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com - - Pomerantz LLP. Wynn Resorts Limited, Craig Scott Billings, Stephen Cootey & Matthew O. Maddox, Defendants, represented by Alex Fugazzi -- afugazzi@swlaw.com -- Snell & Wilmer. * Australia's Mandatory NDB Legislation Takes Effect ---------------------------------------------------- Sara Barker, writing for Security Brief, reports that could your organisation effectively navigate a class-action lawsuit in the event of a data breach? That may now be a reality under Australia's mandatory notifiable data breach (NDB) legislation that is now in effect, according to Austbrokers. The firm says that there is more attention than ever on the impact data breaches have on organisations and individuals. Breaches may lead to increased costs, reputational damage, loss of customers, and even a class-action lawsuit. Austbrokers divisional chief executive Nigel Thomas says the United States is already facing class-action lawsuits as a result of data breaches, and it may only be a matter of time before Australian courts start seeing a similar pattern. The NDB legislation is designed to protect individual's personal information and minimise harm to people who have their personal information involved in a data breach such as unauthorised access or data theft. The NDB legislation definition of 'serious harm' to an individual not only includes financial loss but provides for emotional distress and reputational damage. "Organisations that fail to keep data secure and don't take the prescribed steps under the NDB legislation can be fined up to $2.1 million before an affected individual even considers taking legal action. The civil penalties could end up costing the business much more," comments Mr. Thomas. Organisations now have to report such eligible data breaches to the Office of the Australian Information Commissioner (OAIC) and the individuals whose information is involved in the breach. As a result, people will have more information about what's happened to their personal information, potentially giving them ammunition to take legal action against companies that haven't done enough to keep their information private and secure. "While most businesses have cybersecurity measures in place to mitigate the risk of a breach, the increasing sophistication and determination of cybercriminals mean it's not possible to guarantee that a breach won't occur. It's therefore essential, like any business risk, to mitigate it with the right risk management and insurance," Mr. Thomas says. According to the ASX, cyber insurance is a growing market in Australia. 80% of ASX-surveyed companies expect an increase in cyber risk over the next year. Firms that buy cyber insurance are 'well ahead of the curve' in mitigating business risk, Austbrokers says. 54% of surveyed ASX companies either have a cyber insurance policy or plan to implement one in the next 12 months. "Rejecting cyber insurance is as risky as refusing to insure business premises against fire. Businesses hope they won't have to deal with a data breach such as a cyberattack and smart organisations will take all possible steps to prevent a successful attack. However, if the worst-case scenario happens, the right cyber insurance policy can help businesses recoup the losses associated with the fallout of an attack, including legal action," Mr. Thomas adds. "While cyber insurance is in its relative infancy in Australia at the moment, it won't be long before it's considered as essential as any other business insurance. Businesses need to make sure they're covered so they can operate with confidence," he concludes. * Carlton Fields Releases 2018 Class Action Survey -------------------------------------------------- Julianna Thomas McCabe, Esq. -- jtmccabe@carltonfields.com -- of Carlton Fields, reported that that the seventh annual Carlton Fields Class Action Survey, released April 24, reveals important issues and trends related to class action matters and management based on interviews with general counsel or senior legal officers at 385 companies of all sizes and business types. The survey, reflects their thoughts about class action exposure and best practices for class action management. A copy of the survey is available at https://is.gd/JJwAyP [GN] * Citizen Petition for Regulation of Sugar May Lead to Lawsuit -------------------------------------------------------------- Dr. Lynn Webster, writing for The Hill, report that most people are aware of the types of drugs that are federally classified as substances with no medicinal benefit and high abuse potential: heroin, LSD and marijuana are examples of these drugs and they are indeed classified as illegal. The Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA) are the two government agencies responsible for classifying drugs. The FDA recently received a Citizen Petition for Stricter Regulation of Added Sugar "to amend the Drug Schedules to include added sugar to either Schedule I or Schedule II of the Controlled Substances Act." This idea is not new to many members of the medical community who believe that sugar is a poison. The implications of scheduling sugar may run deeper and command more gravitas, than one might think. According to the Centers for Disease Control and Prevention (CDC), the U.S. is experiencing an obesity epidemic that results in premature deaths and billions of added healthcare costs to manage diabetes, heart disease and obesity-induced joint destruction. Sugar unquestionably adds to the prevalence of obesity in America. Therefore, every food product that includes sugar may be contributing to the scope and costs of the obesity epidemic and is accelerating the volume of premature deaths among millions of Americans. Robert Lustig, a specialist on pediatric hormone disorders and a leading expert in childhood obesity, popularized the claim that sugar is a poison in his "Sugar: The Bitter Truth" lecture." According to a New York Times Magazine article, "Is Sugar Toxic?," Lustig has taken a leadership role in blaming sugar for the increase in obesity and diabetes. He holds sugar at least partly responsible for the prevalence of many diseases, implicating high-fructose corn syrup (which is actually fructose and glucose) as well sucrose (refined sugar). Studies with laboratory rats, the results of which may also hold true for humans, have convinced him that sugar is toxic. Time sums up this research, "Lustig and his colleagues think they've produced the 'hard and fast data that sugar is toxic irrespective of its calories and irrespective of weight.' " However, there has been controversy surrounding the toxicity of sugar. According to a EcoWatch article, for the past 50 years, the sugar industry has manipulated the science to exonerate sugar and shift the blame to fat for causing disease. The article contends academic scientists were complicit in persuading people to get more of their calories from sugar rather than from fats. Minimally, many people do seem to crave sugar. Dr. David Samadi, writing for the Huffington Post, says that sugar affects the brain in much the same way as heroin and cocaine. In that sense, he says, sugar is an addictive drug. In fact, sugar may be as addictive as other substances that are scheduled 1 by the FDA and DEA. Many of us experience great pleasure from eating sweets and continue to ingest them despite the harm they may cause. This is the classic definition of an addiction. For example, some people claim they are addicted to chocolate; maybe, in fact, they are. It's likely that some of us who would refuse to misuse -- or even use -- highly scheduled drugs continue to perceive the dangers of sugar in a different light than other risky substances. Maybe our perceptions should change. The CDC has estimated the number of deaths that are attributable to obesity each year to be between 112,000 and 365,000, depending on the calculation. Even if we conservatively take the lesser number, that still represents 3-4 times more deaths than the number of opioid-related deaths in the U.S. What the FDA and DEA will do with the Citizen Petition for Stricter Regulation of Added Sugar is unknown. However, it is possible that the petition may eventually lead to a class action lawsuit against sugar manufacturers and soft drink producers and their distributors. Has industry been forthright with the American public about the potential harm of sugar? Time will tell. Meanwhile, we know sugar is a rewarding substance that is abused by millions of Americans every day and has contributed to more than 1 million deaths in the past decade. It will be interesting to see how the debate will evolve and how political and social forces will influence the outcome. Fortunately, sugar affects all of us differently and for many people it is neither addictive or deadly. Just like many other substances that carry inherent risk, sugar can be safely used in moderation by most people without wreaking havoc on their lives or contributing to their premature deaths. Lynn R. Webster, M,D. is a vice president of scientific affairs for PRA Health Sciences and consults with Pharma. He is a former president of the American Academy of Pain Medicine. Dr. Webster is the author of "The Painful Truth: What Chronic Pain Is Really Like and Why It Matters to Each of Us." ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. * * * End of Transmission * * *