/raid1/www/Hosts/bankrupt/CAR_Public/180614.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, June 14, 2018, Vol. 20, No. 119
Headlines
AETNA LIFE: Sues Consumer Advocacy Group, Class Action Firm
ALLSTATE FIRE: Class Claims in "Teodoro" Dismissed
AMERICAN MEDICAL: Faces Class Action in Massachusetts
APPLE INC: Aware of iPhone 6, 6 Plus Design Flaw, Suit Claims
ARIEL QUIROS: Attorney Files Motion to Intervene in Fraud Case
ASSET RECOVERY: "Vandehey" Suit Seeks to Certify Class
AUSTRALIA: Rudd, Tanner Emerge as Key Witnesses in Class Action
AUSTRALIA: ANZ Still Has Lending Appetite Despite PFAS Fears
BELGO BRP: Meladze Seeks Unpaid Overtime under NY Labor Law
BROOKDALE SENIOR: Fails to Pay Wages, Christ Claims
BURROUGHS INC: Fails to Pay Overtime Wages, Fernando Says
CALIFORNIA: Sued Over Failure to Provide Medi-Cal Services
CANADA: Faces Class Action Over Veterans' Disability Pensions
CANADA: Government Issues Apology to 60s Scoop Survivors
CANADA: Saint John Residents Call for Release of Water Data
CANADA: Sahotas, Vancouver Face Class Suit Over Derelict Housing
CARE PROFESSIONALS: Polyakov Seeks Overtime Pay under FLSA
CENGAGE UNLIMITED: Authors Sue Over Subscription Service
CENTERPLATE OF DELAWARE: Must Respond to Discovery in "Raquedan"
CENTRAL MAINE POWER: Ratepayers Group Mulls Class Action
CHEMOURS CO: Plaintiffs' Motion for Expedited Discovery OK'd
CHESAPEAKE OPERATING: Seeks Dismissal of Fracking Class Action
CHIPOTLE: Supreme Court Ruling Impacts Wage Theft Class Action
COMMONWEALTH BANK: In Negotiations with AUSTRAC Amid Class Action
COOK COUNTY, IL: Court Denies Bid to Dismiss "McFields" Suit
CORINTHIAN COLLEGES: Former Students Get Loan Debt Reprieve
DIVERSIFIED RESTAURANT: Certification of Collective Action Sought
DUKE UNIVERSITY: Court Certifies Class in "Clark" ERISA Suit
E-TELEQUOTE INSURANCE: Ross Seeks Unpaid Wages & OT under FLSA
E.N.T. ASSOCIATES: Underpays Medical Assistants, O'Keefe Says
ELECTROLUX HOME: Claims in "Stewart" Amended Suit Trimmed
EPIC SYSTEMS: Supreme Court Ruling May Also Benefit Workers
EPIC SYSTEMS: Impact of SCOTUS Ruling on #MeToo Movement Unclear
EPIC SYSTEMS: Stoel Rives Attorney Discusses Supreme Court Ruling
FACEBOOK INC: Faces Discrimination Class Action Over Ad Tools
FACEBOOK INC: Illinois Users Could Be Parties to Class Action
FACEBOOK INC: Files Emergency Motion to Stay BIPA Class Action
FAST TAX: Broomfield Seeks to Certify Class
FRITO-LAY: Couple Asks Judge Not to Reconsider Label Case Ruling
G&R COLLECTIONS: June 19 Final Settlement Hearing in "Tiernan"
GATEWAY REGIONAL: Abbiw Alleges Wrongful Termination
GETSWIFT LTD: William Roberts Attorneys Discuss Court Ruling
H.H. FRANCHISING: "Geiger" Suit Seeks to Certify Caregiver Class
HARTFORD CASUALTY: "Johnson" Settlement Has Initial Approval
HENRY D. BINFORD: Yeager Seeks to Certify Class
HERBS BY THE POUND: "Vega" Suit Moved to S.D. Florida
HSBC BANK: Faces Class Action Over Failure to Investigate Fraud
ILLINOIS: Ordered to Provide Mental Health Care to Prisoners
ILLINOIS: DOC May Appeal Ruling in Inmate Mental Health Care Case
INFORMATION RESOURCES: Bakhtiar Seeks to Certify FLSA Class
INPUT CAPITAL: Appeals Ruling in Lawsuit Over Farmers' Contracts
INTEL CORP: EEOC May Initiate Age Discrimination Class Action
INVITATION HOMES: Faces Class Action Over Illegal Late Fees
IPC INC: Physicians Healthsource Seeks to Certify Class
JACKSON NATIONAL: Smithson Moved to Western District of Michigan
JAGUARS CLUB: Faces Class Action Over Federal Wage Violations
JIM FISCHER: Court Certifies Class of Hourly Employees
JOSEPH MOLINARO: Neonatal Dismissed from "Rodriguez-Ocasio" Suit
JRC VENTURES: Court Denied Class Certification in "Smith" Suit
KENYA POWER: Faces Probe Over Massive Theft Amid Class Action
KOVITZ SHIFRIN: Motion to Certify Class Taken under Advisement
KROENKE ARENA: Settlement in "Kurlander" Has Final Approval
LANCASTER GENERAL: Faces Class Action Over Bogus Claims
LIVE NATION: Faces Investor Class Action in New York
LOUISIANA: Summary Judgment in Felons' Voting Rights Suit Upheld
LOWE'S: Requires Store Managers to Sign Arbitration Agreements
MACOVEN PHARMA: Medicine To Go Seeks to Certify Class Action
MANTECA, CA: Implements Changes Under Homeless Case Settlement
MARK GOBER: Court Denies Class Certification Bid in "Darrough"
MCGOWEN ENTERPRISES: Settlement Obtains Preliminary Court Nod
MDL 2741: "Frank" Suit vs Monsanto Consolidated in N.D. Cal.
MDL 2741: "Johnson" Suit vs Monsanto Consolidated in N.D. Cal.
MDL 2804: Gasconade County Considers Joining Opioid Class Action
MERRILL LYNCH: Lowe Sues over Unlawful Pay Deductions
MONSANTO COMPANY: Clark Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Leckvolds Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Luellens Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Moores Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Rievleys Sue over Sale of Herbicide Roundup
MONSANTO COMPANY: Tyson Sues over Sale of Herbicide Roundup
MONSANTO COMPANY: Court Narrows Claims in "Blitz" Pesticide Suit
MYGRANT GLASS: Padilla Seeks Unpaid Wages
NATIONAL HEALTH: Komerski Sues over Unauthorized Telephones Calls
NATIONAL HOCKEY: Commissioner Mum on Concussion-CTE Link Issue
NATIONSTAR MORTGAGE: Rigrodsky & Long Files Class Action in Texas
NATIONSTAR MORTGAGE: Wilde Sues over Interest on Escrow Balance
NATIONWIDE MUTUAL: Court Enters Judgment on Pleadings in "Allen"
NEW YORK: Preliminary Injunction Bid Denied in "Williams" Suit
NIANTIC INC: Pokemon GO Fest Attendees Notified of Settlement
NORTHWESTERN POLYTECHNIC: ACICS Issues Warning Amid Class Action
ONE FIFTY FIFTY: Court Grant Summary Judgment Bid in "Maor" Suit
PATHWAY TO HOPE: Court Denies Bid for Conditional Certification
PESSCO LLC: "Valdez" Suit Moved to Western District of Texas
PET FOOD: Fails to Pay Overtime and Minimum Wages, Quijas Says
PFIZER INC: Court Denies Bid to Strike Class Claims in "Haj" Suit
PHILADELPHIA PARKING: Summary Judgment in Taxicab Suit Reversed
PIGGLY WIGGLY: Settles Class Action for $8.7-Mil.
PINNACLE ENTERTAINMENT: Allen, et al. Seek to Certify 5 Classes
PRECISION MOTOR: Class Certification Denied without Prejudice
PREMIER HEALTH: Faces Class Action Over High Medical Bills
QUEENS VILLAGE: Reed et al. Sue over Pension Plan Contributions
QUEST DIAGNOSTICS: Corona Sues over Disability Discrimination
RD ENTERPRISES: Fails to Pay Minimum Wage & OT, Dube Says
RISTORANTE LA BUCA: Underpays Wait Staff, Wright Claims
RJ REYNOLDS: Not Liable for Cuban Immigrant's Lung Cancer
ROCKWOOD RECOVERY: Nathaniel Seeks to Certify Two Classes
RUSSELL P. GOLDMAN: Court Certifies New Jersey Consumers Class
SADDLE PEAK: Walters Seeks Minimum Wages for Manager Trainees
SANDBOX ENTERPRISES: Sykes Seeks Overtime Wages under FLSA
SANTA FE BAR: Settles Workers' Wage Class Action
SECURUS TECHNOLOGIES: Seeks to Certify Class of Attorneys
SHENANDOAH VALLEY: Child Detainees File Class Action Over Abuse
SPEEDAWAY LLC: Court Denies "Teggerdine" Class Certification
STATE STREET: Ark. Pension Fund Exec Ordered to Appear at Hearing
STEINHOFF INT'L: Sygnia Plans to Join Deminor Recovery's Suit
STEMILT AG: Owes Back Wages to Workers, Class Action Claims
STEPHEN JAMES: Judge Certifies Former Patients' Class Action
SUMMIT HEALTHCARE: Faces Class Action Over Lap Band Surgeries
SUNBELT RENTALS: Fails to Pay All Overtime Wages, Perez Says
TAKATA CORP: 1MM Cars Added to Future Recall List Over Airbags
TETRA TECH: Faces Class Action Over Hunters Point Contamination
TIM HORTONS: Denies License Renewal to Franchisee Amid Lawsuit
TOOTSIE ROLL: Underfills Junior Mints Box, Lawsuit Says
TRUE FOOD: Martinez Wants to Redeem Gift Card for Cash
U.S. ARMY: "Kennedy" Suit Seeks to Certify Army Veterans Class
UNITED COLLECTION: Court Denies Bid to Dismiss "Meredith"
UNITED STATES: Wiggin Dana Attorneys Discuss Sanchez-Gomez Ruling
UNITED STATES: Asylum-Seeking Parents Blamed for Losing Children
UNIVERSITY OF SOUTHERN CALIFORNIA: Vivier Alleges Harassment
VENTURE EXPRESS: Court Denies Class Certification in "Ratliff"
VEROS CREDIT: Court Issues Protective Order in "Cosper"
VICTIM SERVICES: "Solberg" Seeks to Certify Class of Consumers
WALGREENS BOOTS: Fails to Pay Wages & Overtime, Buado Says
WAL-MART: Faces Class Action Over Self-Service Checkout Kiosks
WILMINGTON TRUST: Settles Shareholder Lawsuit for $210-Mil.
WATERS OF CLINTON: Weaver Seeks Overtime Compensation under FLSA
WELLS FARGO: Lotsoff Sues over $35 Fee for Non-Sufficient Funds
WHOLE FOODS: Court Grants Partial Bid to Dismiss "Alston"
WYNDHAM HOTELS: Thyne Sues over Unsolicited Phone Calls
* Attorney Matt Funk Shares Opinions on SCOTUS Arbitration Ruling
* Australian Judgments Adopt Reforms to Class Action Settlements
* Bradley Arant Boult Attorneys Discuss Class Action Rulings
* Class Action Mulled Against Mortgage Lenders in Australia
*********
AETNA LIFE: Sues Consumer Advocacy Group, Class Action Firm
-----------------------------------------------------------
Evan Sweeney, writing for Fierce Healthcare, reports that Aetna
has launched a new round of litigation in a case involving the
exposure of members' HIV status, blaming a consumer advocacy
group and a law firm that brought the initial class-action
lawsuit.
The insurer claims the organizations should pay $20 million in
damages to make up for the settlements and fines Aetna has been
forced to pay so far, as well as additional civil penalties from
ongoing federal and state investigations.
The seemingly never-ending legal fiasco dates back to 2014 when
plaintiffs represented by Consumer Watchdog and Whatley Kallas
sued Aetna over a policy change that required HIV patients to
fill prescriptions via mail. The insurer ultimately settled the
suit and agreed to allow patients to fill prescriptions at a
pharmacy.
Aetna hired claims administrator Kurtzman Carson Consultants
(KCC) to notify 12,000 customers about the settlement last year.
In doing so, the HIV status of the customers was once again
exposed through a window in an envelope in which the words "HIV
medications" were visible.
In January, Aetna agreed to a pay $17 million to settle a class-
action lawsuit filed after the mailing debacle. Aetna also
agreed to pay a $1.15 million fine to the state of New York.
In its complaint, the insurer says 10 lawsuits have been filed as
a result of the breach. The company is also facing
investigations from the Department of Health and Human Services
and several state attorneys general.
Aetna has already sued KCC, but now it's turning its ire toward
Consumer Watchdog and Whatley Kallas, alleging the organizations
"worked with and/or supervised" the mailings coordinated by KCC.
In a letter (PDF) to Aetna dated May 22, Consumer Watchdog denied
any involvement in choosing the envelope and claimed the purpose
of the lawsuit was to "tarnish the credibility" of the attorneys
for the organization.
"Aetna's attempt to blame us is a frivolous waste of judicial
resources and Aetna knows it," said Harvey Rosenfield, founder of
Consumer Watchdog, in a statement. "We had no control over the
mailing process and had no idea that Aetna decided to use an
envelope with a giant window that exposed the recipient's HIV
status." [GN]
ALLSTATE FIRE: Class Claims in "Teodoro" Dismissed
--------------------------------------------------
In the case, TANYA TEODORO, individually, and on behalf of others
similarly situated, Plaintiff, v. ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY, Defendant, Case No. 217-cv-02135-APG-VCF (D.
Nev.), Judge Andrew P. Gordon of the U.S. District Court for the
District of Nevada granted both Allstate's motions to dismiss
both the individual and the class claims.
In March 2016, Teodoro was involved in an automobile accident.
As a result, she incurred medical and hospital charges of
approximately $85,000. She provided her automobile insurer,
Defendant Allstate, with her bills. Her Allstate policy included
medical payments coverage of $100,000. Allstate paid
approximately $45,000 of the bills.
Now, Teodoro sues Allstate, in her individual capacity and on
behalf of a proposed class. She claims that the terms of her
insurance policy require Allstate to pay the entirety of her
medical expenses. She brings claims for breach of contract,
breach of the implied covenant of good faith and fair dealing,
violation of Nevada's Deceptive Trade Practices Act, violation of
Nevada's Unfair Claims Practices Act, and unjust enrichment.
Allstate moves to dismiss both the individual and class claims,
arguing that Teodoro does not have standing because she has not
alleged an actual injury, that her claims fall under the
exclusive jurisdiction of the Nevada Division of Insurance
("NDOI"), and that she has failed to sufficiently allege the
elements of her claims. Allstate also contends that class action
treatment is inappropriate because individualized factual issues
would predominate.
Judge Gordon finds that Teodoro alleges no facts allowing the
inference that the "reasonable and necessary" language in her
insurance policy requires the payment of the "entirety" of billed
medical expenses. He dismisses breach of contract claim without
prejudice and grants Teodoro leave to amend her complaint to
plead facts plausibly alleging that the entirety of her billed
medical expenses were reasonable and necessary such that Allstate
breached the insurance policy by not paying the full amount.
Teodoro's second cause of action alleges Allstate breached the
implied covenant of good faith and fair dealing by arbitrarily
and unreasonably refusing to pay the entirety of her billed
medical expenses and concealing the fact that Teodoro was
entitled to such a payment. The Judge finds that to the extent
that Teodoro alleges a contractual breach of the covenant of good
faith, her claim fails. Teodoro's claim relies on Allstate's
breach of the express terms of her insurance policy, thereby
negating the possibility of a valid claim for breach of the
contractual covenant of good faith. To the extent Teodoro
alleges a tortious breach of the covenant, her claim also fails.
To establish such a cause of action, the Plaintiff must allege
facts showing an insurer denied her claim without any reasonable
basis and the insurer knew or recklessly disregarded the lack of
a reasonable basis. Therefore, the Judge dismissed this claim
without prejudice and grants Teodoro leave to amend.
Teodoro's third cause of action alleges that Allstate violated
Nevada's Deceptive Trade Practices Act ("DTPA") by breaching the
insurance contract, breaching the implied covenant of good faith
and fair dealing, and violating Nevada's Unfair Claims Practices
Act. The Judge finds that Teodoro does not allege a violation of
a particular section of the statute, and the lack of alleged
facts does not allow him to infer what her claim is. She has not
given Allstate fair notice of her claim and the grounds for that
claim. Therefore, he grants the motion to dismiss this claim
without prejudice and grants Teodoro leave to amend to plead
facts sufficient to show violation of specific sections of the
DTPA.
Teodoro's fourth cause of action is for violation of Nevada's
Unfair Claims Practices Act. As with all of her claims, the
Judge finds that Teodoro's unfair claims practice claim is based
on Allstate's alleged breach of the insurance policy. She
alleges no facts showing why a payment of less than the entirety
of her billed expenses was fraudulent, or how any
misrepresentation was made to her about this payment. Teodoro
provides insufficient factual context to raise a claim under this
statute. Therefore, he dismissed this claim without prejudice
and grants Teodoro leave to amend to plead sufficient facts to
show a violation of the statute.
Teodoro's final claim is for unjust enrichment. Her entire
complaint, including her claim for unjust enrichment, relies on
her written insurance contract with Allstate and its
enforceability. Allstate has not denied the existence or
validity of the contract. Nor, on the face of the complaint, did
Teodoro plead this claim in the alternative. Therefore, the
Judge holds that an action based on a theory of unjust enrichment
is unavailable and he grants Allstate's motion to dismiss this
claim.
Finally, because Teodoro's putative class fails as to
predominance and superiority, it cannot be certified as a matter
of law. The Judge therefore grants Allstate's motion to dismiss
Teodoro's class claims with prejudice.
For these reasons, Judge Gordon granted the Allstate's motions to
dismiss. He dismissed without prejudice Teodoro's individual
claims and dismissed with prejudice her class claims. Teodoro
may file any amended complaint within 30 days of entry of the
Order. If she does not, the case will be closed.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/5GgoLf from Leagle.com.
Tanya Teodoro, Plaintiff, represented by Ines Olevic-Saleh, Jesse
Sbaih & Associates, LTD. & Jesse M. Sbaih, Jesse Sbaih &
Associates, Ltd.
Allstate Fire and Casualty Insurance Company, Defendant,
represented by Abran E. Vigil -- VIGILA BALLARDSPAHR.COM --
Ballard Spahr & Mark L. Hanover -- mark.hanover@dentons.com --
Dentons US LLP, pro hac vice.
AMERICAN MEDICAL: Faces Class Action in Massachusetts
-----------------------------------------------------
Alison Noon, writing for Law360, reports that a Massachusetts
woman who was contacted by an allegedly unregistered debt
collector about a clinical laboratory payment filed a class
action lawsuit against the collector on May 29, claiming the
company lacked proper licensure to try to seek payments from
several thousand Bay State patients with outstanding medical
bills.
Tatyana Shulman claimed American Medical Collection Agency, doing
business as AMCA, broke state and federal law by failing to
register as a debt collector in Massachusetts, so the company
should be barred from collecting in Massachusetts.
The case is Shulman v. American Medical Collection Agency d/b/a
AMCA, Case No. 1:18-cv-11116. The case was filed May 29, 2018.
[GN]
APPLE INC: Aware of iPhone 6, 6 Plus Design Flaw, Suit Claims
-------------------------------------------------------------
Jean Baptiste Su, writing for Forbes, reports that Apple knew
about the iPhone 6 and 6 Plus design flaw before launch.
According to new documents, which were revealed as part of a
class-action lawsuit filed in 2015, the iPhone 6 and 6 plus were
3.3 times and 7.2 times, respectively, more likely to bend than
the iPhone 5s. Despite publicly saying that there were no
engineering issues, Apple made design changes to the phone, a
year-and-a-half after it was released, to strengthen the iPhone.
[GN]
ARIEL QUIROS: Attorney Files Motion to Intervene in Fraud Case
--------------------------------------------------------------
Alan J. Keays, writing for VT Digger, reports that an attorney
for a group of EB-5 investors has taken a new legal tack since a
judge threw out his case in April.
Russell Barr, of the Stowe-based Barr Law Group, filed a recent
motion in Washington County Superior civil court to intervene in
a lawsuit brought by the state more than two years ago against
Jay Peak's former owner Ariel Quiros.
That filing is part of a flurry of legal activity that has
happened in Vermont and Florida in recent weeks as a series of
investor fraud cases related to Mr. Quiros, a Miami businessman
turned Green Mountain State ski resort mogul, wend their way
through state and federal courts.
Barr claims in his filing that he and his firm are in a better
position than the state to represent the investors who say they
were defrauded by Mr. Quiros and his former business partner
Bill Stenger, the resort's former CEO and president.
"The suggestion that the State can adequately represent the
interests of our clients is absurd," Mr. Barr said in a
statement, adding that his clients "understandably do not trust
the state."
Nearly a year ago, Mr. Barr filed a lawsuit in Lamoille County
Superior civil court in Vermont on behalf of a handful of
investors, including Tony Sutton, a British investor, against 10
state officials and two agencies, claiming they were complicit in
the alleged fraud carried out over an eight-year period by the
two Jay Peak developers.
Judge Thomas Carlson granted a motion in April brought by the
Vermont Attorney General's Office in that case to dismiss the
case, citing the state's absolute immunity from third party civil
claims.
That 16-count lawsuit brought by the investors included
allegations against the state of negligence, fraud, willful
misconduct, breach of fiduciary duty and breach of contract.
In the new filing, Barr is seeking to represent the interest of
investors in a state lawsuit against Mr. Quiros and Mr. Stenger.
The state accuses the two developers of misusing $200 million of
the more than $350 million they raised through federal EB-5
immigrant investor program. That money was meant to fund massive
upgrades at Jay Peak as well as developments in the other
Northeast Kingdom communities of Burke and Newport. The state
lawsuit was filed against Mr. Quiros and Mr. Stenger after the
Securities and Exchange Commission charged the two men with 52
counts of fraud.
Mr. Barr says the state has taken "positions directly adverse to
our clients and the public trust of our State," and have
"completely failed to be forthright with public disclosure of
evidence."
He wrote in the 10-page filing that he is seeking to intervene to
ensure that the investors interests are "adequately" represented.
Barr points to a $5.95 million settlement the state reached in
2016 with Raymond James & Associates Inc., a financial
institution which was used by Mr. Quiros in Florida with branches
in Vermont, as an example of how the state has misrepresented the
investors.
According to the terms of the settlement, $4.5 million will be
used to reimburse investors who lost money in the Jay Peak
scandal, $200,000 that will go toward the cost of the
investigation, and a $1.25 million administrative penalty will be
directed to the state general fund.
Mr. Barr says state officials did not adequately protect
investors in the eight Jay Peak projects in the first place and
therefore the state shouldn't have pocketed $1.25 million
penalty. If the state was looking out for the interests of the
investors that money would have been made available to the
defrauded investors, he says.
"The Jay Peak investors possess rights and interests in the
recovery of any judgment in this action because any alleged money
misappropriated by defendant Quiros, or any other defendants, was
initially invested by the Jay Peak investors and not by the state
of Vermont," Mr. Barr wrote in the filing.
Assistant Attorney General Kate Gallagher, who is representing
the state in the action against Mr. Quiros and Mr. Stenger, said
in an interview that the state will be opposing Mr. Barr's motion
to intervene in the case.
"We understand and appreciate that they want to represent their
clients zealously, we get that, but we feel that an enforcement
action is an inappropriate mechanism or vehicle to do that," she
said. "We don't think it's necessary."
Mr. Quiros and Mr. Stenger earlier this year settled claims with
the SEC. Mr. Quiros agreed to surrender $81 million in assets to
the federal government, including his interest in Jay Peak.
Mr. Stenger agreed to pay a $75,000 penalty to SEC.
Both the SEC case against the two developers and the enforcement
action brought by the state of Vermont were filed in April 2016.
While scores of filings took place in the federal case prior to
the settlements earlier this year, the state did not actively
pursue the case until after the SEC settlements.
Much of the legal battling in the state case since the SEC
settlements has centered on a bid by the state to freeze
Mr. Quiros' remaining assets, valued at between $5 million and
$10 million.
Judge Mary Miles Teachout granted the state's request in April,
following a fiery hearing in which Mr. Quiros' Florida-based
attorney, Melissa Visconti, strongly opposed the freeze.
Ms. Visconti said freezing Mr. Quiros' assets would hinder his
ability pay for legal representation in the civil lawsuit, as
well as any potential criminal charges.
Federal prosecutors in Vermont have not filed criminal charges in
the case after two years of investigation, and it's unclear,
when, or if, any ever will be brought. In other EB-5 fraud cases
of this magnitude, criminal charges have been brought against
perpetrators. The Jay Peak fraud is the largest in the history
of the EB-5 program.
Visconti has since filed a motion asking Judge Teachout to
reconsider her ruling, or allow for appeal of that decision to
the Vermont Supreme Court.
On behalf of the state, Ms. Gallagher submitted a filing on
May 25 calling on the judge to uphold the ruling and not allow an
appeal to the state's highest court.
Ms. Visconti could not be reached for comment.
Meanwhile, in other legal action associated with cases involving
the EB-5 related scandal that has played out in northern Vermont.
Barr appeals
Mr. Barr is appealing to the Vermont Supreme Court the ruling by
Lamoille County Judge Thomas Carlson who dismissed the action
brought by the group of EB-5 investors against the 10 state
officials and two state agencies. He is also asking that the
matter be taken up by the full five-member court, not just a
three-justice panel, citing the "novel" nature of the case.
"The novel fact situation is premised on a state agency engaging
in a near-exclusive private enterprise without state statutory
authority to do so," Mr. Barr wrote.
"These novel facts present a situation that may establish a new
rule of law or modify an existing rule," according to the filing,
"which includes, but is not limited to applying the private
analog analysis of sovereign immunity to individuals that operate
an immigration program under a federal license, how sovereign
immunity applies to a breach of contract by state government, and
the application of state securities laws to government
employees."
In his ruling dismissing the case, Carlson wrote that he
recognized "the scale of the alleged harm done to investors" as a
result of the $200 million fraud at Jay Peak Resort under the
auspices of the state-run Vermont EB-5 Regional Center. However,
he added, that the five investors in the case have recouped their
losses through a lawsuit brought by the receiver in the Jay Peak
case.
People's Bank case thrown out
A federal judge in Florida in April threw out a proposed class-
action investor fraud lawsuit against Mr. Quiros and a bank he
used.
The lawsuit, led by Brazilian investor Alexander Daccache,
accused Mr. Quiros and People's United Bank in an alleged scheme
to improperly use millions of dollars in investor funds meant to
pay for developments at Jay Peak and Burke Mountain ski resorts,
as well as projects in Newport.
The case had been on hold for months when one of the defendants,
Raymond James & Associates Inc., reached a nearly $150 million
settlement with Michael Goldberg, a court-appointed receiver now
overseeing the assets at the center of investor fraud allegations
brought by federal and state regulators.
Raymond James was another financial institution used by
Mr. Quiros.
The lawsuit by Mr. Daccache and other investors alleged People's
played a role in a scheme to defraud them.
"People's Bank transferred investors' escrow funds in flagrant
violation of the terms of the offering documents and escrow
agreements, and in doing so, breached its agreements as well as
fiduciary duties it owed to the investors," Thomas Tucker
Ronzetti, an attorney for the investors, wrote in a motion
earlier in the case opposing the bank's bid to be dismissed from
the proceeding.
The attorney added, "People's Bank was a substantial and active
participant in a massive fraud that caused millions of dollars in
damages to Plaintiffs and the Class."
People's, in court filings, denied wrongdoing, and had argued in
part that the federal court in Miami lacked jurisdiction over the
bank, a non-Florida resident which does no business in the state
and has no offices there. People's is headquartered in
Bridgeport, Connecticut.
Judge Federico A. Moreno, in dismissing the case, agreed with the
argument that it lacked jurisdiction over People's, suggesting
that Vermont may be more a appropriate venue for such a case.
The judge added that the lawsuit contained "conflicting
allegations" as to which parties took part in the alleged fraud,
and lacked specifics, such as dates of actions.
Moreno also wrote that the investors lacked standing to bring
such a lawsuit, adding that doing so would allow them to "double
dip" on recouping losses, citing previous settlements reached in
other cases tied to the scandal. [GN]
ASSET RECOVERY: "Vandehey" Suit Seeks to Certify Class
------------------------------------------------------
In the lawsuit styled JACQUELYN A. VANDEHEY, and MICHELLE L.
O'LAIRE, on behalf of themselves and all others similarly
situated, the Plaintiffs, v. ASSET RECOVERY SOLUTIONS, LLC, an
Illinois Limited Liability Company; VELOCITY INVESTMENTS LLC, a
New Jersey limited liability Company; and, JOHN AND JANE DOES
NUMBERS 1 THROUGH 25, the Defendants, Case No. 1:18-cv-00144-WCG
(E.D. Wisc.), the Plaintiffs ask the Court to certify a class of:
"all persons with addresses in the State of Wisconsin to whom
Asset Recovery Solutions, LLC mailed an initial written
communication between January 29, 2017 and February 19, 2018,
which sought to collect a debt on behalf of Velocity
Investments LLC, and which stated, the account balance may
periodically increase due to the addition of accrued
interest."
The Plaintiffs further ask the Court to appoint themselves to
represent the putative class members, and that their attorneys,
Stern Thomasson LLP, be appointed counsel for the class.
The Plaintiffs assert claims against Defendants under the Fair
Debt Collection Practices Act.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=FHptyzv8
Attorneys for Plaintiffs:
Andrew T. Thomasson, Esq.
Philip D. Stern, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379 7500
Facsimile: (973) 532 5868
E-mail: andrew@sternthomasson.com
philip@sternthomasson.com
AUSTRALIA: Rudd, Tanner Emerge as Key Witnesses in Class Action
---------------------------------------------------------------
Rebecca Urban, writing for The Australian, reports that
Kevin Rudd faces a potential courtroom showdown against former
ALP minister Lindsay Tanner and former Treasury secretary Ken
Henry as the federal government defends a $150 million class
action stemming from Labor's bungled home insulation program.
Mr Tanner and Dr Henry have emerged as key witnesses for the
government, putting them on a potential collision course with
Mr Rudd, who was recently subpoenaed by the plaintiff in the
civil action and will give evidence from New York via a
videolink.
More than 140 business owners and tradesmen are suing the
government over losses they claim were incurred when the Rudd
government scrapped the program, following four deaths and claims
of rorting. While Mr Rudd is expected to reiterate his previous
evidence to the royal commission into the matter, it is not
immediately clear why the government would call Mr Tanner, who
was finance minister under Mr Rudd, or Dr Henry.
Mr Tanner was a member of cabinet's strategic priorities and
budget committee -- the so-called "Gang of Four" -- but he had no
specific oversight or role in the home insulation program.
Neither did Dr Henry, despite his involvement in Labor's multi-
billion-dollar economic stimulus plans, under which the program
was rolled out. In the wake of the global financial crisis, Dr
Henry had urged Mr Rudd to "go hard, go early, go households"
with stimulus packages to boost the flagging economy.
Senior counsel for the government, Rachel Doyle, told the
Victorian Supreme Court on May 25 she intended to call Mr Tanner
and Dr Henry on June 11, a week after Mr Rudd's June 4
appearance.
The Rudd government's home insulation scheme was announced in
2009 as part of a raft of measures designed to stimulate the
economy in the wake of the global financial crisis.
It was suspended the following year after four workers died, and
it was later scrapped.
The program also became a target for rorting by fly-by-night
installers, with thousands of cases of suspected fraud later
uncovered.
The class action, launched in 2016, alleges that the federal
government's mismanagement of the scheme resulted in significant
business losses, forcing many operators into liquidation.
Plaintiffs, led by Roo Roofing, claim that the Labor government,
by introducing the program, interfered with an existing market,
forcing them to invest to expand their businesses only to have
the program abruptly suspended.
In May 2014, Mr Rudd told the Royal Commission into the Home
Insulation Program that he accepted ultimate responsibility for
the disastrous program.
"As prime minister, you accept responsibility for the good and
the bad," he said.
"And for those reasons, as I've said repeatedly before, I have
accepted ultimate responsibility for what was not just bad, but
in this case was a deep tragedy."
However, he also pointed the finger at the failures of the public
service for the scheme, claiming that it had not raised any
safety issues with the government.
He also claimed that the scheme had been the brainchild of the
public service, and not ministers.
Mr Rudd said the program could have been delayed had the public
service raised issues.
"Had a delay been requested on safety grounds, I have no doubt
ministers would have granted it immediately," Mr Rudd said in his
statement to the royal commission.
It is possible that Mr Tanner and Dr Henry could be questioned on
Mr Rudd's claims and asked for their views on what could have
transpired if the risks had been passed on to cabinet ministers.
Mr Tanner did not return calls and Dr Henry could not be
contacted.
It is understood that Mr Rudd's lawyer, Patrick George, was set
to fly to New York to be by his side as he gives evidence via
videolink. [GN]
AUSTRALIA: ANZ Still Has Lending Appetite Despite PFAS Fears
------------------------------------------------------------
Chris McLennan, writing for Katherine Times, reports that at
least one major bank says it "still has an appetite" to lend in
Katherine despite the fears over PFAS contamination.
The ANZ Bank, while agreeing property values may have fallen,
says PFAS is in itself not a reason to decline a loan.
Indeed, cheaper homes might present an opportunity for first home
buyers.
ANZ district manager Philip Brown said his bank was one of the
major lenders for commercial and property loans in Katherine.
"We still have an appetite for lending there," Mr Brown said.
He said the bank had "sensed" concern in Katherine whether the
bank want to do business there or not.
"We haven't changed our lending practices in town."
In a 2017 report on the Tindal PFAS contamination, the Australian
Property Institute recommended Katherine should be ranked a "3"
or more probably a "4" on the five-tier credit system used by
most banks.
Three is said to be a "good risk" while four was "above average
credit risk".
"It is recommended that each member detail their own risk rating
in accord with their individual research, however, that at a
minimum it should be a "3" but more probable a "4" or where PFAS
has been identified as a specific concern then maybe a "5" is
appropriate, however, the assigned risk rating is to be an
individual Valuers responsibility," the API report said.
"Whilst the values applied reflect the current sales, activity
within the general area the prices could fluctuate suddenly
depending on further investigation, publicity and buyer
perception of proposed risks of individual properties," the
report said.
Mr Brown said the bank used its own valuers to determine property
fluctuations in town but he was aware prices right across the NT
had fallen.
He said they were looking at 3 and 4 rankings for Katherine, not
fives.
Hundreds of Katherine residents have signed up for a class action
against the Department of Defence claiming their property values
have fallen as result of contamination from the Tindal RAAF Base.
Mr Brown said the impacts of PFAS were not just on health but
also on property.
"There is still a reasonably healthy demand for loans in
Katherine," he said.
He agreed property sales "were not where they were two years
ago".
He said the NT Government's first home buyers scheme was still
encouraging people to enter the market, in Katherine as well.
If you want to buy or build a new home in the NT, you can apply
for a First Home Owner Grant of up to $26,000.
Big stamp duty reductions are available on existing homes.
Mr Brown suggested a first home buyer had the time to allow the
market to rebound and capitalise on their investment. [GN]
BELGO BRP: Meladze Seeks Unpaid Overtime under NY Labor Law
-----------------------------------------------------------
MTKHETE MELADZE, individually and on behalf of all other persons
similarly situated, the Plaintiffs, v. BELGO BRP LLC, BELGO CRT
LLC, BELGO HSQ LLC, BELGO MOBILE LLC, BELGO OFFICE LLC, BELGO PPR
LLC, BELGO TMS LLC, BELGO WAFFLE INC., DEGEEST LLC, and THOMAS
DEGEEST, individually, the Defendants, Case No. 155044/2018 (N.Y.
Sup. Ct., May 30, 2018), seeks to recover wages and benefits,
unpaid overtime compensation, spread-of-hours wages, and uniform
maintenance pay under the New York Labor Law.
According to the complaint, beginning in approximately May 2012,
continuing through the present, the Defendants did not pay
Plaintiffs overtime compensation or spread-of-hours wages.
Additionally, the Defendants required Plaintiffs to wear uniforms
but did not offer to launder them or provide the uniform
maintenance pay.
The Defendants own and operate Wafles & Dinges locations in New
York.[BN]
Attorneys for Plaintiffs:
Lloyd Ambinder, Esq.
Jack Newhouse, Esq.
Joel Goldenberg, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Telephone: (212) 943 9080
Facsimile: (212) 943 9082
E-mail: jnewhouse@vandallp.com
BROOKDALE SENIOR: Fails to Pay Wages, Christ Claims
---------------------------------------------------
STEPHANIE CHRIST, the Plaintiff, v. BROOKDALE SENIOR LIVING
COMMUNITIES, INC.; and JOHN DOES 1-5 AND 6-10, the Defendants,
Case No. CAM-L-001933-18 (N.J. Super. Ct., May 23, 2018), seeks
judgment against the Defendants jointly, severally and in the
alternative, together with compensatory damages, punitive
damages, interest, cost of suit, attorneys' fees, enhanced
attorneys' fees, equitable back pay, equitable front pay,
equitable reinstatement, and any other relief the Court deems
equitable and just. The Plaintiff asks that the Court order the
Defendants to cease and desist all conduct inconsistent with the
claims, both as to the specific plaintiff and as to all other
individuals similarly situated.
According to the complaint, in early August of 2017, the
Plaintiff noticed a resident complaining of chest pains. No
medical staff assisted the resident concerning the chest pains.
Instead, the Plaintiff was told that the resident was "faking
it." The Plaintiff was told that the practice in the building was
to give medications early so that the technician could leave
early for the day. Despite Plaintiff's misgivings at what she
saw, she was advised by other staff members not to complain, or
she could face retaliation. Despite this admonition, almost
immediately after noticing what was occurring, the Plaintiff
complained to Debra Pantone, who was the administrator of the
Marlton facility.
Ms. Pantone stated that they had an idea that something was wrong
and they would find Plaintiff another placement. After Ms.
Pantone stated that she would find plaintiff another placement,
plaintiff began to pick up shifts at different locations within
the Brookdale network in Southern New Jersey. Immediately after
her complaints about the issues with patient care, the
Plaintiff's bonuses began to be paid late.
Brookdale offers senior living options, including assisted living
facilities.[BN]
The Plaintiff is represented by:
Kevin M. Costello, Esq.
COSTELLO & MAINS, LLC
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
Telephone: (856) 727 9700
BURROUGHS INC: Fails to Pay Overtime Wages, Fernando Says
---------------------------------------------------------
ANTON FERNANDO on behalf of himself, all others similarly
situated, and the general public, the Plaintiff, v. BURROUGHS,
INC., a California Corporation, and DOES 1 through 100,
inclusive, the Defendant, Case No. RG18906875 (Cal. Super. Ct.,
May 30, 2018), seeks to recover overtime wages and minimum wage
under the California Labor Code.
According to the complaint, the Plaintiff and Class Members were
not properly paid for overtime hours worked, despite routinely
and consistently logging more than 8 hours per day and 40 hours
per week. For example, the Defendant "reset" the wage clock at
midnight everyday, thus depriving Plaintiff and Class Members of
the double-time pay owing to them for working shifts in excess of
12 hours. In addition, the Defendant routinely required that
Plaintiff and Class Members work "on-call" throughout the night
without properly paying for these hours worked.
Burroughs, Inc., a technology product and services company,
provides cash and check automation products and services.[BN]
The Plaintiff is represented by:
Michael Hoffman, Esq.
Leonard Emma, Esq.
Cody Stroman, Esq.
HOFFMAN EMPLOYMENT LAWYERS
1999 Harrison Street, 18th Floor
Oakland, CA 94612
Telephone: (415) 362 1111
Facsimile: (415) 362 1112
E-mail: mhoffman@employment-lawyers.com
lemma@employment-lawyers.com
cstroman@employment-lawyers.com
CALIFORNIA: Sued Over Failure to Provide Medi-Cal Services
----------------------------------------------------------
Adam Racusin, writing for KGTV, reports that thousands of kids
across California approved for in-home nursing care are
struggling to get the help they desperately need.
On May 24 two children filed a class-action lawsuit against the
California Department of Health Care Services and its director
claiming the state has failed to fulfill its commitment to
provide them with sufficient Medi-Cal in-home nursing services.
It says, "this class action lawsuit asks the Court to order
Defendants to take all steps necessary to arrange for previously-
approved, medically necessary in-home shift nursing services for
Plaintiffs and Class members."
According to the lawsuit plaintiff, Ivory N. is a seven-year-old
and a Medi-Cal beneficiary. It says the child needs 63 hours per
week of skilled nursing at home but only receives about 56 hours
per week.
The non-profit group, Disability Rights California, says more
than 4,000 Medi-Cal eligible children have been approved by the
state to receive Medi-Cal in-home nursing care, but the state
lacks an effective system for arranging for needed nursing.
"It's too bad that a lawsuit had to be filed, but they are right
to file it because right now that need is not being met," said
California State Assemblyman Brian Maienschein.
In 2017 Maienschein tried to get the problem fixed through
legislation. He believes the state is not following through on
its promises to the kids.
"It was a significant victory last year that we were able to get
money in the budget, but they are still not following through on
the promises they made," he said.
According to a news release from Disability Rights California,
"29 percent of authorized Medi-Cal nursing hours go unstaffed."
[GN]
CANADA: Faces Class Action Over Veterans' Disability Pensions
-------------------------------------------------------------
Jon Hendricks, writing for CTV News, reports that Mike Salway
joined the Canadian Armed Forces when he was 18 years old. In
time, he was sent overseas, including Kosovo during Canada's
peacekeeping mission.
"We were the first ones in to cleanup," remembers Mr. Salway.
"And it wasn't a nice cleanup."
Mr. Salway returned home a changed man. He couldn't sleep,
couldn't work.
He couldn't bear to even look at pictures of his military
service.
Diagnosed with post-traumatic stress disorder, he's lived on a
disability pension ever since. And that led him to his current
battle.
"All I know is, I owe a pile of money," he said.
Mr. Salway is one of thousands of military veterans who took part
in a successful class action lawsuit against the federal
government. For decades, Ottawa was clawing back soldiers'
pensions based on the disability payments they received.
The settlement in 2013 included millions of dollars in retro-
active payments to veterans like Mr. Salway.
"And then, all of a sudden, I'm getting money coming from every
direction," says Mr. Salway. "I don't even have any paperwork
telling me where it's from."
Then earlier in May, he did receive some paperwork from Manulife
saying he'd been overpaid.
"I owe 10 thousand plus," he said.
In a statement to CTV News, Manulife writes in part that judging
a claim involves the veteran, insurer, government and doctors.
"We assess all group benefits claims carefully and do our very
best to both adhere to our obligations as an insurer and make
these decisions in a fair and timely manner."
Peter Driscoll, who was one of the lead attorneys in the class
action lawsuit, says his firm hears regularly from veterans about
overpayments.
"We've looked at this issue very closely," said Mr. Driscoll.
"And we've tried to come up with a way to obtain legal redress
for such an offset, and overpayments. But we've been unable to
come up with a legal fix or a legal solution."
Instead, Driscoll feels a legislative fix will be necessary to
address the problem.
In the meantime, Mr. Salway has been given a choice: pay the
money in full or $500 will be deducted from his monthly benefits.
But he wants the debt forgiven.
"Because it's not my fault they overpaid me," said Mr. Salway.
"I didn't even know what I was supposed to be getting in the
first place."
Mr. Salway says he's already endured much for our country. And
if he must, he'll go into survival mode to get through this too.
[GN]
CANADA: Government Issues Apology to 60s Scoop Survivors
--------------------------------------------------------
Kathleen Martens, writing for APTN News, reports that for only
the second time in Canada, a provincial government has apologized
for its role in the '60s Scoop, when thousands of Indigenous
children were taken from their homes and placed in foster care.
"The decisions that led to that personal trauma, many of those
decisions were made right here on this floor, in this chamber,"
Premier Rachel Notley told the Alberta Legislature on May 28.
Ms. Notley follows then-premier Greg Selinger of Manitoba, who
was the first provincial leader to apologize in 2015.
Both were NDP governments.
"For this trauma, this pain, this suffering, alienation and
sadness, we are sorry," Ms. Notley told scoop survivors,
Indigenous leaders and provincial politicians in the House.
Ms. Notley acknowledged the historic event wouldn't have happened
without the lobbying efforts of the Sixties Scoop Indigenous
Society of Alberta.
The Society, comprised of scoop survivors, spent the past two
years educating politicians and the public about who was scooped
and why.
"It's one thing to acknowledge the damage that's been done," said
former Society director and survivor Lew Jobs of Edmonton.
"And, yes, you're going to stand up and you're going to make a
public apology and say all the right things. But I want to know
what's going to happen afterwards."
Jobs was a baby when he was seized from his Inuit mother in
Northwest Territories and raised by a white teacher in Edmonton.
He was cut off from his culture, language and people. He is one
of an estimated 20,000 Indigenous children Canada-wide
apprehended from their birth families by provincial officials
during the 1960s, '70s and '80s and raised by strangers.
Compensation is on the table in a proposed settlement offered by
the federal government that would pay each survivor between
$25,000 and $50,000 to a maximum of $750 million.
But the settlement, which has cleared one legal hurdle in federal
court and awaits a second in Toronto, is controversial.
It does not have unanimous support and could still be scuttled if
2,000 or more survivors opt out.
Saskatoon lawyer Doug Racine represents about 150 survivors from
across Canada who, he says, may also launch an appeal.
"There are unhappy with the lack of consultation, restrictions on
being able to file future lawsuits, and the difficulty obtaining
their social service records," Mr. Racine said in a telephone
interview on May 28.
Colleen Rajotte, of Winnipeg, is president of the Manitoba '60s
Scoop Survivors Association. She says her group is poised to file
a new, national, class-action lawsuit against the federal
government if the settlement proposal fails.
"The number of survivors objecting is growing," she said. "It's
really encouraging."
The Alberta apology kicked off with a pipe ceremony, grand entry
into the Legislature, and smudging ceremony.
Jobs was there to hear Ms. Notley's words in person and said she
very nearly didn't apologize on the record. He says the
government wanted to do it in the rotunda instead of in the
House.
"We pushed for it to be in the Legislature, recorded on Hansard,"
Jobs said in a telephone interview.
Ms. Notley followed up her apology by pledging to work with
Alberta's Indigenous people and reflect their needs in its
decisions.
"Saying sorry is one thing," said Jobs, who has decided to opt in
to the settlement agreement even though it's not perfect.
"There has to be action." [GN]
CANADA: Saint John Residents Call for Release of Water Data
-----------------------------------------------------------
Bobbi-Jean MacKinnon, writing for CBC News, reports that a group
of residents in west Saint John is calling on the province's
integrity commissioner to order the city and the Department of
Environment to immediately release documents related to their new
water source as many continue to deal with hard water, leaking
pipes and costly repairs.
The West Side Ratepayers Association had previously requested
water quality data from the city and environmental impact
assessment information from the province, said spokesperson
Paul Groody.
"This is public information; information we all have every right
to see," he said.
"It is needed urgently to help restore confidence in our water
system."
About 5,600 customers in west Saint John were switched over to
water drawn from the South Bay well field instead of the Spruce
Lake reservoir in September, as part of the Safe Clean Drinking
Water project.
Since then, residents and business owners have faced burst pipes,
water heaters breaking down, discoloured water and irritated
skin, prompting the creation of the association in February "as a
forum for information and dialogue and . . . as a voice for
ratepayers."
Mr. Groody, who served as the city's commissioner of municipal
operations, including water, for 13 years before he retired in
2011, and has lived on the west side for about 30 years, is now
chairman for the group.
On May 23, he wrote to Integrity Commissioner Alexandre
Deschenes, requesting the release of all public documents related
to the South Bay well field "without delay."
"We trust that you will understand the urgency of our request and
will instruct both the province and the city to do what is
right."
Mr. Deschenes could not immediately be reached for comment on May
28.
The city is required to monitor water quality, but has not
released any results since switching to the well field last fall
and refuses to speak with the association or any west side
residents about their concerns, said Mr. Groody.
Meanwhile, the association filed a Right to Information request
with the Department of Environment and asked the minister to
intervene, but has been told environmental impact information may
not be released until late July, he said.
"This does nothing to ease the concerns of west side residents,
many of whom continue to suffer emotionally, physically and
financially," said Mr. Groody.
Many people have resorted to drinking bottled water and investing
in water-softening systems, while already paying the highest
water rates in the province, he said.
Communication, not litigation
The city has said it is following legal advice to restrict its
dealings with west side ratepayers, given a class-action lawsuit
filed on behalf of some west side residents alleging negligence
and breach of contract. But Mr. Groody stressed that the
association is not involved in the lawsuit.
"We are working to try to find resolution to a problem," he said,
describing drinking water as the "lifeblood" of every community.
"We believe that there are options and we think if people come to
the table that we can work out solutions that are in everybody's
best interest."
Mr. Groody contends going through the courts will be very
expensive and take a long time, and he doesn't believe it's in
the best interest of the city, ratepayers or council.
More than 350 people have signed up to be part of the class
action so far. None of the allegations have been proven in court
and the lawsuit has not yet been certified. [GN]
CANADA: Sahotas, Vancouver Face Class Suit Over Derelict Housing
----------------------------------------------------------------
Wendy Stueck, Mike Hager and Stephanie Chambers writing for The
Globe and Mail, report that bathrooms aren't the only problem at
the Regent, a single-room occupancy (SRO) hotel on Vancouver's
Downtown Eastside owned by the Sahota family, three reclusive,
elderly siblings who own and operate some of the city's most
derelict housing. Bedbugs and rats are constant concerns. In
some rooms, walls are damp to the touch, hinting at leaks behind
them.
Such decrepit, unsanitary housing might seem in stark contrast
with the image of Vancouver, which routinely tops global
livability rankings and is known for its verdant parks and
majestic mountain views. But these deplorable conditions are
routine in many SROs -- particularly those owned by the Sahota
family, some housing advocates say -- and are well known to city
officials. Last December, citing its continuing efforts to step-
up enforcement in SROs, the city flagged 426 bylaw violations
against the owners of the Regent.
Yet it's unlikely the citations will change much. In a pattern
dating back decades, the family, who own five Vancouver SROs,
tends to respond slowly to violation notices, if at all. Many
repair orders are followed by fines for bylaw violations. City
officials have touted various efforts to bring the Sahota-owned
buildings into line over the past 20 years, including fines and
court injunctions to force necessary repairs. More recently, the
city has stepped up the frequency of inspections in an attempt to
identify problems early and address them. But the steady stream
of bylaw violations has continued.
"It's a travesty that they [SROs] have been allowed to continue
to rot . . . for at least four or five decades," says John
Shayler, who worked with the Downtown Eastside Residents'
Association, a housing advocacy group, in the 1970s and 80s.
Mr. Shayler says that owners get away with providing
reprehensible living conditions because the city ultimately
doesn't want to shut down their buildings, potentially displacing
hundreds of residents who would otherwise be on the street.
With support from housing advocates, tenants of two Sahota-owned
SROs, the Regent and the Balmoral, have launched proposed class-
action lawsuits that name the Sahotas and the City of Vancouver
as defendants and allege that municipal officials have ignored
problems with properties owned by the family. (The Sahotas have
challenged the suits, arguing that the proper venue to hear such
disputes is B.C.'s Residential Tenancy Branch and a decision on
that jurisdictional matter is pending.)
A non-profit housing organization struck a deal with the Sahotas
in February to manage the Regent and, given its dilapidated
condition, has been boarding up rooms and quietly moving tenants
out of the building.
Ms. Ingram and her partner don't know when -- or whether --
they'll be asked to move. All they know is that, for now, living
conditions at the Regent remain grim, as they do at other Sahota
properties in Vancouver. And the Sahotas, who keep a low profile
in Vancouver and who refused to talk to The Globe and Mail for
this piece, show no sign of loosening their grip on the city's
SRO market.
"This is a Sahota building"
Parkash, Gurdyal and Pal Sahota aren't the city's only landlords
with problem buildings. Other SRO owners, as well as non-profit
agencies and the province's own rental units, show up on the
city's database of bylaw violations for issues such as blocked
fire escapes, rats and missing smoke alarms.
But the number of SRO units the Sahota family controls -- nearly
500, or about 16 per cent of the roughly 3,000 privately held
units in the city's stock -- and the volume of violations, make
the Sahotas stand out. A large portion of Vancouver's poorest
residents live cheek-to-jowl in these rooming houses, many of
which were built a century ago for single loggers and fishermen -
- blue-collar workers who adorn either side of the city's
official coat of arms.
The Sahota family entered the SRO business in the 1970s, at a
time when single-resident units were emerging as one of the few
housing options available to the city's most vulnerable
residents: pensioners, people on social assistance and
individuals living with mental illness or substance-abuse issues.
(A 2013 study of about 3,000 SRO tenants in the Downtown Eastside
found 95 per cent had substance dependence and nearly half
suffered from psychosis.)
Family patriarch Ranjit Sahota, who died in 1999, launched the
business by buying distressed assets and renting them to tenants
at the lowest rung of the market.
In addition to five SRO hotels -- composed primarily of three-
meter by three-meter units that typically feature a sink, a table
and a bed -- the Sahotas have accumulated a portfolio of single-
family homes and apartment blocks over the years, all of which
have skyrocketed in value as Vancouver housing has turned into a
global commodity.
The family's holdings -- about 40 properties in and around the
city, worth an estimated $218-million -- are controlled by a
network of companies that all trace back to the address of the
home shared by siblings Parkash, 88, Gurdyal, 80 and Pal, 79.
As their portfolio has grown, the Sahotas have embraced the buy-
and-hold philosophy. To cite two examples, The Regent, which the
family bought in 1989 for $1.5-million, today has an assessed
value of $12.2-million; another property, Rosemary Mansion in
tony Shaughnessy, was acquired for $2.1-million in 1999 and sold
five years later for $11-million. Yet, despite the value of their
holdings, they appear to spend little on their properties.
At City Hall, where records document hundreds of complaints
against Sahota properties, the family's name has become entwined
with problems.
"As you are well aware, we have been dealing with the 140-unit
Balmoral for quite some time," city manager Sadhu Johnston wrote
in a May 26, 2017, e-mail to Mayor and Council. "This is a
Sahota building."
Yet despite their poor conditions, demand for the Sahotas' SROs
has grown, largely owing to dwindling supply. Development in
downtown Vancouver and rising real estate prices have been
pushing SROs out of the market for decades, dating back to the
lead-up to Expo 1986, when some owners evicted long-term tenants
in the hope of landing higher-paying guests.
In 2003, with the 2010 Olympics on the horizon, the city passed a
bylaw designed to prevent the loss of low-income housing by
fining landlords $5,000 for each room taken out of existing SRO
stock. In 2007, the city raised the fee to $15,000, then hiked
it again in 2015 to $125,000.
But the fines haven't prevented some landlords from quietly doing
so-called "stealth" conversions and offering lightly improved
units to students and young working people in Vancouver's
overheated rental market.
And rents in remaining SROs have edged up, reflecting tight
vacancy rates in the city and the shortage of lower-cost
affordable housing.
Wendy Pedersen, a long-time community activist who has fought to
keep SROs affordable for people on social assistance -- the
monthly shelter allowance for a single person is currently set at
$375 -- feels the city has failed to use the tools at its
disposal to hold landlords of problem buildings accountable and
allowed them to profit at tenants' expense.
"Decades and decades of . . . not taking people's complaints
seriously, not answering their police calls, their cries for help
in every which way," is how she described the city's response to
the continuing deterioration of housing in the low-income
neighbourhood, home to about 15,000 people.
Maintenance on the cheap
Most days, the three elderly Sahota siblings can be found
visiting their various rental buildings or working in the garden
of the ramshackle home they share in Vancouver's upscale
Kerrisdale neighbourhood. Dressed in thrift-store clothes, they
could easily be mistaken for their tenants.
Since they began amassing properties, the Sahotas have appeared
to skimp on long-term maintenance. When they've done repairs to
buildings, they've often relied on tenants or unqualified
contractors to do the work.
A front-page story in the Vancouver Sun in 1987 reported that Pal
Sahota had exploited refugees by hiring them to do repair and
maintenance jobs at the Balmoral Hotel, another of the family's
SROs, for wages of 32 cents an hour. He pleaded guilty to five
counts of violating the Immigration Act and was fined $2,500.
In 1999, a lawyer for the city recommended near-constant
vigilance over repair and maintenance issues with three low-rent
apartment buildings in East Vancouver that the Sahotas had owned
since 1976. But she advised against revoking the Sahotas'
business licence because doing so could put "a large number of
people out on the street." In an inter-office memo, she referred
to potential political fallout if enforcement were to result in
buildings being closed and people losing their homes.
In 2007, long-time residents of the 50-unit Sahota-owned Pandora
SRO were forced to grab everything they could and flee their
homes after the roof collapsed and flooded hallways and several
rooms. The tenants were awarded $170,000 in total damages, which
was upheld by a B.C. Supreme Court judge who found the Sahotas'
actions "transcended simple negligence and amounted to a reckless
disregard for the welfare of the tenants."
Ten years later, in June 2017, city officials grew so alarmed by
fire and structural problems at the Balmoral, they deemed it
unsafe to occupy, giving tenants 12 days to vacate. That move
triggered a scramble by city, non-profit housing groups and the
province to find new homes for about 150 people who had been
living in the crumbling building.
The Sahotas' lack of responsiveness to maintenance concerns
places city officials in a bind. Under Vancouver bylaws, the
city could do the necessary repairs to their SROs and bill the
family, but it has avoided doing so out of concern that the bills
wouldn't be paid. That would leave the city with a portfolio of
aging, neglected buildings -- and city taxpayers on the hook for
repair bills.
City managers recognize Sahota-owned buildings are in poor shape
and say they are trying to work with the owners to tackle the
problems.
"We are on the ground, in the buildings, on a regular basis,"
Kaye Krishna, Vancouver's general manager of development, said in
an April interview.
"Some buildings are worse than others and the two Sahota
buildings are consistently at the top of the worst," she said,
adding that the Regent and Balmoral are "by far and away" the
worst buildings in the city.
The city is conducting more inspections, filing more charges and
ordered them to use qualified contractors, Ms. Krishna said.
"We are actively managing and trying to hold them accountable to
actually deliver the work," she added.
Ben Afful says the Sahotas hired him in November to make city-
mandated repairs at the Regent. Mr. Afful's company, Linea
Construction, gave the family a quote of $1.6-million to repair
the basement, main-floor bar and dozens of rooms at the shuttered
Balmoral -- vacated under city orders two months prior -- but he
never heard back.
Then, a month later, Gudy Sahota asked if he could do some work
at the Regent two weeks before an inspector was scheduled to
return to the premises. With his eyes on eventually winning the
larger Balmoral contract, Mr. Afful agreed to do the work for
$56,000 with a $12,000 deposit.
The odour of urine mixed with garbage on his first walk through
the eight-storey hotel shocked Mr. Afful, who has renovated
single-family homes and luxury condos in and around Vancouver for
the past 19 years.
With only $4,000 of the promised $12,000 deposit in hand, Mr.
Afful and an associate began replacing sinks and doors. Over two
weeks, they fixed seven rooms.
One woman on the seventh floor told him she had felt sick for
months from making tea in her room. "I said, 'First of all, you
[should] never drink hot water because it comes from a rusty
boiler downstairs, but the other thing is the faucets are
corroded so you get all this bacteria that loves to feed off the
mould and you're drinking this,'" he said. "So we replaced it
with a new vanity and sink and faucet -- she couldn't stop
talking about it any time we saw her in the hallways.
"They're not asking for gold toilets -- they're just asking for
fresh water."
The night before the December city inspection, Pal Sahota asked
Mr. Afful to accompany the official on their tour of the Regent
-- an odd request that is not an industry norm for contractors,
Mr. Afful said.
As he walked through the building the next morning, he says he
was surprised to see the inspector checking a list of
deficiencies twice as large as the one the Sahotas had given him.
Gudy was pointedly glaring at him, meanwhile, he says, as if he
hadn't bothered to do all the necessary work. When he left the
property, Mr. Afful says he told the Sahotas he was going to
double the cost of the job to cover the vastly expanded scope of
work needed to be done.
He says never heard back from either Pal or Gudy and now feels as
if he was used to create the impression of a "flurry of
activity."
That approach, he says, enables a landlord to suggest to city
inspectors, "We are doing what we can. We're trying to get the
guys to do the work."
Problem buildings, troubled tenants
Poorly maintained buildings such as the Balmoral and Regent are
just part of the story. Advocates say some private SRO owners,
including the Sahotas, fuel a cycle of violence, poverty and
addiction in the neighbourhood.
Back in 2005, the Vancouver Police Department (VPD) tried to
disrupt that cycle with an undercover program they called Project
Haven. The VPD said its project -- in which undercover officers
posed as drug users and used welfare cheques to rent rooms in
three SROs, including one, the Astoria, owned by the Sahotas --
determined that owners, managers or desk clerks at all of the
sites were complicit in drug trafficking, the movement of stolen
property and welfare fraud.
"The criminal networking in each premise was elaborate," the VPD
said at the time.
More than a decade later, similar concerns have emerged in the
Regent class action suit and in a second suit launched on behalf
of tenants of the Balmoral.
Ajantha "Sam" Dharmapala worked for the Sahotas as a desk clerk
and bookkeeper from 2008 until 2016. Since then, he has been a
vocal critic of his former employers and become a driving force
behind the Vancouver Tenants' Union. Mr. Dharmapala describes
conditions in Sahota SROs as "third-world."
In an affidavit filed as part of the proposed class-action suit
by Regent tenants, Mr. Dharmapala alleged Gurdyal Sahota has been
involved in "numerous" criminal activities in and around the
Regent Hotel, including systemically receiving goods known to be
stolen from Home Depot and local hospitals.
"Gurdyal Sahota would not directly tell people to steal these
items . . . but he would ask the 'right' people whether they had
any pillows or sheets to sell right now, and then those people
would come back a few hours later with pillows or sheets,"
Mr. Dharmapala alleged in the affidavit.
Records reviewed by The Globe include a receipt from Jan. 5,
2014, stamped with the Regent Hotel's information and signed by
Gudy Sahota. It states $17 was paid to someone who "acquired" 34
sheets and towels from the laundry room at St. Paul's Hospital.
To date, the Sahotas have not directly responded to those
allegations, says lawyer Jason Gratl, who is representing the
class-action plaintiffs. None of the allegations have been
proven in court.
Housing activists also express concerns about hotel managers and
clerks exploiting residents by buying social-assistance cheques
at less than their face value, a practice documented in Project
Haven.
A 2007 Hotel Analysis project -- which involved the city, the
VPD, as well as provincial ministries of labour and employment --
uncovered similar scenarios. At one building, inspectors found
43 client cheques went to the hotel, but only 33 ministry clients
were living there -- indicating the hotel owner had pocketed
provincial funds without providing housing in return.
Activities at Sahota-owned SROs remain a concern for the VPD.
According to figures released through a freedom of information
request, there were 845 calls for service to the Regent from the
beginning of 2017 to February 22, 2018. The biggest proportion
of those, 105 calls, involved an unspecified disturbance. There
were three calls related to overdoses, seven involving a sudden
death and one related to shots fired.
At the Balmoral, there were 248 calls over the same period --
during which, for more than half the time, the hotel was closed
on city orders. Thirteen calls involved a weapon, one an overdose
and six reports of assault.
The problems are not lost on Janice Abbott. She's the chief
executive officer of Atira, the non-profit housing group hired in
February by the Sahotas to manage the Regent. Because Ms. Abbott
is wary of being responsible for a building that is beyond her
organization's capacity to fix, she opted to sign only a short-
term six-month contract. Ms. Abbott says she can't explain why
the Sahotas suddenly handed over management of the property to a
third-party operator, but she and her staff hope to address as
many issues as they can while the Regent is in Atira's hands. In
the weeks since the contract began, she has been in touch with
city, health and police officials. She alerted them to suspected
drug dealing and health concerns, including what appeared to be
sewage leaks in some rooms, as well as to the presence of an
underage girl she'd seen hanging around the building.
SROs can be magnets for vulnerable young people, who may be drawn
to the buildings to see parents or other family members and are
then exploited or assaulted. One long-time tenant, Jack Gates,
says he has seen rooms rented out by the hour, for what appears
to be sex work or other transactions.
If Sahota-owned SROs are known as the worst of a bad lot, the
other end of the spectrum can be found at Ross House, a small
privately owned SRO owned by architect Charles Haynes.
After his 19-year-old son, Ross, died of a drug overdose in 2000,
Mr. Haynes wanted to help people struggling with drug addiction.
He bought a run-down rooming house and turned it into an SRO.
Today, he takes pride in ownership of Ross House, replacing cheap
wooden doors with fire-proof doors he bought from a demolition
sale at UBC. Hallways gleam with fresh paint and bathrooms are
spotless. A communal kitchen is bright and clean.
Mr. Haynes charges rents in the $400 to $660 a month range --
higher than what most welfare recipients receive, but
significantly lower than average rental prices in the city.
Many of his tenants have significant mental- and physical-health
issues. "These people are hard to house and if they went out of
my building, I think they would die," Mr. Haynes says. Recently,
citing burnout and other business interests he wanted to pursue,
he put the building up for sale.
The future of SROs
The city's long-term goal, set out in various documents including
a 10-year housing plan released last year, is to replace aging
SROs with social-housing units that have private bathrooms.
Housing advocates say all three levels of government need to be
engaged to help fix the problems presented by the city's SROs.
Under the former Liberal government, the province spent millions
to buy and renovate SROs. The federal government also got
involved, chipping in nearly $30-million for a $147-million SRO
Renewal Initiative that renovated a dozen or so buildings over
the past five years.
Last year, the federal Liberal government announced a 10-year,
$40-billion national housing program. But the plan counts on the
provinces to kick in billions and some elements won't take effect
until after the 2019 federal election.
The city says it will seek money from provincial and federal
governments for a new SRO fund. In its October budget
submissions, it asked the province for $80-million for this. The
province didn't come up with SRO funds in its February budget,
but the federal housing money could still come into play.
Meanwhile, the squeeze on existing SRO rooms remains intense.
"The combination of increased development interest in SROs and
the rising costs of properly managing and maintaining 100-year-
old private SROs at rents affordable to those on income
assistance has created an untenable situation for many SRO
owners," a 2017 city report says.
Nathan Edelson, a former city planner, says it's time for the
city to consider much larger penalties or even expropriation to
deal with problem SROs.
"Ideally, the units should be in public hands or owned by non-
profits or at the very least, managed by non-profits and having
the books open," Mr. Edelson says.
Mr. Dharmapala, the former Sahota employee, believes that aging
SROs should be taken out of the hands of private citizens and run
by non-profits that are better equipped to help the down and out.
"These people need more support, the government has to take care
of these people," he says.
The Sahotas "take advantage of the tenants because nobody cares.
The system creates people like the Sahotas." [GN]
CARE PROFESSIONALS: Polyakov Seeks Overtime Pay under FLSA
----------------------------------------------------------
YEVGENIY POLYAKOV, on behalf of himself and all others similarly
situated, the Plaintiff, v. CARE PROFESSIONALS, INC., and CARE
PROFESSIONAL R.N., P.C., the Defendant, Case No. 510962/2018
(N.Y. Sup. Ct., May 29, 2018), seeks to recover overtime pay
under the Fair Labor Standards Act and the New York Labor Law.
According to the complaint, the Plaintiff worked for Defendants
as a Certified Home Health Aide, providing full-time patient care
that included more than 20% of general household work. The
Defendants required Plaintiff to work 24 hour shifts where
Plaintiff was unable to leave the patient's house. Likewise,
during a 24-hour shift, Plaintiff was unable to obtain 5 hours of
uninterrupted sleep or 3 uninterrupted mealtime hours due to his
duties. The Defendants failed to properly compensate Plaintiff
for all hours worked, and failed to pay him the statutory rate of
one-and-one-half times his hourly rate for all hours worked in
excess of 40 in a workweek. In addition, Defendants failed to
furnish Plaintiff with accurate and/or complete wage statements
as required under the NYLL on each payday.
Caring Professionals provides home health care and CDPAP services
throughout the NYC metro area.[BN]
The Plaintiff is represented by:
Chaya M. Gourarie, Esq.
JOSEPH & NORINSBERG, LLC
225 Broadway, Suite 2700
New York, NY 10007
Telephone: (212) 227 5700
Facsimile: (212) 406 6890
CENGAGE UNLIMITED: Authors Sue Over Subscription Service
--------------------------------------------------------
George H. Pike, writing for Information Today, reports that two
Cengage authors have filed a federal class action lawsuit against
the company, claiming that Cengage Unlimited -- a subscription
service that, upon launch, will provide on-demand access to
Cengage content -- violates the authors' publication contracts
and will significantly reduce their royalty income.
Cengage was established in 2007 and is a major publisher of
college and other academic textbooks. Accumulated debt from
corporate acquisitions, a shrinking textbook sales market, and a
slow move into digital platforms sent the company into bankruptcy
in 2013. Less than a year later, it emerged from bankruptcy
protection with reduced corporate debt and a pledge to
"reposition and reorient the company" with a focus on digital
delivery of integrated learning solutions that would bring
together textbook-based and other media materials.
A key part of that solution is Cengage Unlimited, which will
allow access to Cengage's digital learning platforms, as well as
ebooks, online homework, and study tools in 70-plus disciplines
for a single fee per semester. In addition, students will be
able to receive a rental copy of their print textbooks for a
small shipping and handling fee. The program launches in August
2018 for the fall academic semester. The authors who filed the
suit see Cengage Unlimited as a way for the company to shift its
financial challenges onto the backs of the authors by creating a
model that greatly reduces their royalty income.
What's at Stake
The shift from individual textbook sales to a subscription
platform required a modification in the publishing royalty income
due to the authors. While the actual contracts are proprietary
and unavailable, a typical publishing agreement provides for the
payment of a specific royalty based on sales of materials and may
or may not have anticipated a subscription-based service. In
March 2018, a Cengage press release announced a "new author
royalty framework" for the Unlimited product, which it described
as a "usage-based model" for which "every item used earns a
percentage of royalties" to be paid to the authors.
Authors David Knox and Caroline Schacht, unimpressed with the
Cengage proposal, filed their lawsuit on May 14, claiming that
the unilateral change amounted to a breach of contract and
tortious interference with contract (illegally interfering with
or causing others to interfere with a contract). They claim that
the Cengage "plan to overhaul its business model . . . trampled
on its authors rights."
Specifically, the authors assert that the royalty structure of
the Cengage Unlimited model converts the traditional "royalty-on-
sale" model that exists in most of the publishing agreements
between Cengage and their authors into a "relative use" royalty
structure in violation of the agreements. The relative use
structure pays the authors a fractional percentage of the
subscription fees based on the relative use of their work. This,
they claim, reduces their ability to earn royalties, and by
unilaterally imposing the new royalty structure, Cengage is
violating the good faith and fair dealing standards that are
applicable to all forms of contracts.
In addition, the authors claim that with the expansion of digital
distribution of content through and including the Cengage
Unlimited model, Cengage has developed other digital offerings
that have been derived from the authors' work, such as multimedia
displays, homework, tests, and other supplemental material.
Notably, the authors do not assert any copyright infringement
claim against these works, suggesting that the right to create
derivative works is permitted under the publishing agreements.
However, the authors claim that Cengage "arbitrarily and
improperly" values these supplemental materials and reduces the
base against which the royalty rate is determined, further
reducing royalties, in breach of the publishing agreements.
Finally, the authors claim that they have already experienced
"marked declines" in their royalties and that Cengage has
"adopted a policy of refusing to provide" any underlying data,
such as sales levels and royalty calculations. This too is a
breach of the publishing agreements, they claim.
The Impact of the Lawsuit
Prior to implementing the plan, Cengage acknowledged that it
needed to shift away from a traditional print model of textbook
sales to a solution that provides a digital substitute for a
textbook. In an interview with Inside Higher Ed published after
Cengage emerged from bankruptcy and heavily cited in the authors'
complaint, Cengage CEO Michael Hansen said that the company might
need to "push very aggressively on converting those" who are
"rightly reluctant" to accept the transition. The authors
grabbed onto the phrase "rightly reluctant" and used it
repeatedly in their complaint as they further asserted that the
lower royalty model could have a "lasting adverse impact on the
incentives for developing higher learning study materials."
As of this writing, Cengage has not formally responded to the
authors' complaint, which would be in the form of an "answer"
filed with the court. Cengage did issue a statement on the
complaint in which it asserts that the subscription service is
"consistent with the terms of [the authors'] contracts. . . ."
The statement goes on to say that the company's new business
model is "designed to address the decades-old problem of
affordability in higher education" and that the authors'
declining royalties are the "result of high prices that lower
demand." The authors' lawsuit, Cengage asserts, "seeks to
perpetuate a broken model of high costs and less access. . . ."
High costs for student learning materials are a very real
concern. Mr. Pike interviewed my son Jeremy, a rising junior
engineering student at Purdue University, and he reported that he
has paid as much as $250 for a single textbook. His textbooks
generally range in price from just less than $100 to more than
$200, although occasionally he has been able offset the cost by
selling the book to a friend or reseller after the class ended,
"if the book didn't change." He has also rented books for often
less than $100 per semester, but of course, could not resell
them. He did report using one digital solution called WebAssign
-- which happens to be a Cengage product -- that he found
helpful.
The lawsuit is still in its early stages and will likely take
several months or even years to resolve. An early test may be
whether the court is prepared to accept it as a class action
lawsuit, in which a small group files a suit on behalf of
everyone who is "similarly situated." A decision accepting the
class action would be seen as a blow to Cengage because of the
number of people that it could be liable to in a single lawsuit.
Similarly, a decision denying class action status would be seen
as blow to the authors, as it would require each author to sue
Cengage individually, which many are unlikely to do. The authors
have also asked for an injunction preventing Cengage from
including class action members' materials in the Cengage
Unlimited program unless they specifically opt in. A test on
that issue could come later this summer. [GN]
CENTERPLATE OF DELAWARE: Must Respond to Discovery in "Raquedan"
----------------------------------------------------------------
In the case, RODRIGO RAQUEDAN, on behalf of himself, all others
similarly situated, Plaintiff, v. CENTERPLATE OF DELAWARE INC., a
Delaware corporation; and DOES 1 through 50, inclusive,
Defendant, Case No. 5:17-cv-03828-LHK (HRL) (N.D. Cal.), Judge
Howard R. Lloyd of the U.S. District Court for the Northern
District of California, San Jose Division, has issued an order
regarding Discovery Dispute Joint Report No. 1 ("DDJR #1").
Raquedan in May 2017 filed in Santa Clara County Superior Court a
putative class action against his former employer, Centerplate.
Centerplate employees work at concessions located in various
California entertainment venues (i.e.: stadiums, theaters, etc.).
The suit alleges eight claims for relief based on violations of
the wage and hour provisions of the California Labor Code and one
claim for unfair competition under the California Business and
Professions Code. Broadly speaking, the claims seek damages for
Centerplate's failure to pay all amounts due to its California
workers with respect to security checks, meal and rest breaks,
vacation and sick time, and reimbursement for out-of-pocket
business expenses. Centerplate removed the case to the Court in
July 2017.
On Oct. 10, 2017, Raquedan propounded Special Interrogatories Set
#1, which asked for a "class list," the names, addresses, and
other pertinent information for the members of the defined
putative class, as well as separate lists for the various,
defined sub-classes. The Defendant declined to provide any
information.
Also on Oct. 10, 2017, Raquedan propounded Special
Interrogatories Set #2, which inquired about the kinds and types
of wage and hour records defendant kept on its employees, about
policies and documentation on meal and rest breaks, sick time,
wage statements, etc., and about people in defendant's
organization with knowledge of these matters. The Defendant
responded with a laundry list of objections and declined to
provide any information.
On Oct. 16, 2017, the Plaintiff propounded his Requests for
Production of Documents Set #1 ("RFPs"). Broadly speaking, these
asked for time and payroll records, copies of HR manuals and
employee handbooks, documents recording or accounting for meal
and rest breaks, management training material about meal and rest
breaks, sick time policy and calculations, reimbursement policies
on employee uniform purchases and out of pocket business
expenses, and documents about security check policies and
practice, including videos of actual security checks.
Centerplate responded by objecting to everything and producing
nothing.
Also on Oct. 16, 2017, the Plaintiff propounded Requests for
Admissions Set#1 ("RFAs"). The Defendant objected at length to
each Request and refused to admit or deny any of them.
On Jan. 24, 2018, the presiding judge in the case held a further
Case Management Conference ("CMC"). She began by observing she
did not want the substitution of named Plaintiffs (which had been
approved by the court the day before) to delay the case going
forward. She wanted to "keep the case on track." The deadline
for filing a class certification motion had been set in a
previous order at July 23, 2018.
On Feb. 23, 2018 Centerplate filed a FRCP 12(b)(1) and 12(b)(6)
motion to dismiss the Plaintiffs' Second Amended Complaint and
set the hearing for Aug. 8, 2018. Shortly after the filing, the
presiding judge advanced the hearing to July 5, 2018. The thrust
of this motion is that the settlement of a previous class action
against Centerplate released all the claims that are being
asserted in this case. The Plaintiffs, not surprisingly, contend
that the earlier release did no such thing. It remains to be
seen how the presiding judge will decide.
The meeting and conferring that took place between the attorneys
following the January 24th court hearing did not produce a
resolution of the discovery impasse. In fact, it produced no
substantive discovery responses at all.
On March 30, 2017, the parties filed DDJR #1. In DDJR #1, the
Plaintiffs tell the Court they have been denied any and all
discovery. The Defendant refused to produce anything. The
Defendant tells the Court that no discovery should be ordered
unless and until the Court determines that these Plaintiffs have
pled sufficient facts to make out a plausible claim for relief.
At the January 24th CMC, the defense counsel said nothing about
possibly asking for a stay on any discovery if it were to file a
motion to dismiss. Centerplate did not seek an order staying
discovery. Instead, it gave itself a stay on discovery, leaving
it to the Plaintiffs to shoulder the burden of looking to the
Court for relief. Especially because the clock keeps ticking
down to the filing deadline for a class certification motion,
Centerplate's conduct appears both presumptuous and improper.
The presiding judge was not asked to stay discovery and has not
done so. The Court was not asked to stay discovery (and would
not have the authority to do so without express direction from
the presiding judge). The only grounds asserted by the Defendant
in DDJR#1 for refusing to comply with the Plaintiffs' discovery
requests are that Centerplate was entitled to a discovery stay.
At this juncture, Judge Lloyd feels his choices are either to
retroactively approve a de facto stay (rewarding the Defendant's
conduct), or to order full compliance with the discovery
requests. He opts for ordering full compliance.
Accordingly, the Judge orders Centerplate to fully and completely
answer Special Interrogatories Set #1 and Special Interrogatories
Set #2, to produce the documents sought in Requests for
Production of Documents Set #1, and to respond to the Request for
Admissions Set #1. All objections are overruled except as to
information claimed protected by the attorney-client privilege or
work product doctrine (which must be identified in a proper
privilege log).
Since the deadline for filing a class certification motion
currently remains at July 23, 2018, discovery production must be
accomplished quickly. The Defendant has had many months to
prepare itself for such a possible eventuality. If it feels a
protective order is needed, the parties must meet and confer and
agree on a protective order to be submitted to the Court for its
approval no later than April 20, 2018. No later than April 27,
2018, the Defendant will provide its answers to the first set of
interrogatories. If an "opt-out" letter to class members is
contemplated, then the parties will agree on its language and
submit it for approval by May 4, 2018. The second set of
interrogatories will be answered by May 11, 2018. With respect
to the RFPs, the Defendant will begin a rolling production
starting now, to be completed by May 28, 2018. The RFAs will be
responded to by June 4, 2018.
If an appeal is taken from the Order, the Judge stayed the
compliance until the appeal is resolved.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/EJfPur from Leagle.com.
Rodrigo Raquedan, Plaintiff, represented by Chaim Shaun Setareh
-- Shaun Setareh -- Setareh Law Group & Thomas Alistair Segal --
thomas@setarehlaw.com -- Setareh Law Group.
Centerplate of Delaware Inc, Defendant, represented by Scott J.
Witlin -- scott.witlin@BTLaw.com -- Barnes & Thornburg, LLP,
Steve Lou Hernandez -- steve.hernandez@btlaw.com -- Barnes &
Thornburg LLP & Donald Patrick Sullivan --
donald.sullivan@wilsonelser.com -- Wilson Elser Moskowitz Edelman
& Dicker LLP.
CENTRAL MAINE POWER: Ratepayers Group Mulls Class Action
--------------------------------------------------------
Tux Turkel, writing for Press Herald, reports that a group of
Maine residents organized around fighting high electric bills
from Central Maine Power is seeking customers to join a planned
class action lawsuit against the company.
CMP Ratepayers Unite said on May 28 that two Maine-based
attorneys involved with the matter have retained a New York firm
to take the lead, on behalf of utility customers who believe they
have been overcharged. It said that Sumner H. Lipman and James
Belleau have retained Napoli Schkolnik PLLC, to prepare a class
action on behalf of these customers.
"We have been working very hard to hold CMP accountable for their
actions," the group said in a news release. "I am happy to
announce that our voices have been heard! Spread the word to
other ratepayers who are outraged and want ACTION!"
A class action lawsuit involves a group of people with the same
or similar injuries or complaints, caused by the same product or
action. They join together to sue a defendant as a group.
CMP Ratepayers Unite didn't say when the suit would be filed.
The planned suit has been hinted at for weeks. It's the latest
development in ongoing efforts to learn why some CMP customers
have received -- and continue to receive -- bills that seem out
of scale with the amount of power they've used.
Earlier in May, CMP Ratepayers Unite sent a letter to state
officials demanding a more thorough investigation into customer
complaints of inflated CMP electric bills. The group, which has
more than 3,300 members, said it sent the letter because the
Maine Public Utilities Commission's ongoing fact-finding probe
into the matter has raised more questions than it has answered.
The group also said Maine officials need to provide "immediate
relief" to CMP customers who believe they have been overcharged,
while the PUC probe continues.
The PUC responded by saying its investigation will be
comprehensive, and that it already has taken steps to offer
relief and protection to affected CMP customers. CMP has said
it's working internally and with the PUC to understand the
causes.
Further details about the planned suit are on the group's
Facebook page.
Customers also can contact Patrick Milligan by email at
milliganpm@gmail.com[GN]
CHEMOURS CO: Plaintiffs' Motion for Expedited Discovery OK'd
------------------------------------------------------------
Christina Haley O'Neal, writing for Wilmington Biz, reports that
a federal judge has ordered The Chemours Co. to allow outside
testing of potentially contaminated water to comply with a
discovery process involving several lawsuits against the company
filed in U.S. District Court.
On May 25, U.S. District Court Judge James Dever III granted the
plaintiffs' joint motion for expedited discovery. The order
affects a proposed class action case filed on behalf of North
Carolina residents, as well as two other lawsuits filed by
Brunswick County and Cape Fear Public Utility Authority (CFPUA).
Lawyers have previously said that different firms representing
various lawsuits against Chemours are working together in the
discovery process. The unregulated chemical GenX, and other
related compounds, have been linked to Chemours' operations at
the Fayetteville Works site in Bladen County. That facility is
located near the Cape Fear River, about 100 miles upstream from
Wilmington.
According to a news release by Cohen Milstein Sellers & Toll, a
law firm representing the proposed class action case, the order
would "allow outside testing of potentially contaminated water as
part of the discovery process in a lawsuit that names Chemours as
the defendant."
Ted Leopold of Cohen Milstein was appointed in January by the
federal judge as co-lead counsel in the case, along with
Stephen Morrissey of Susman Godfrey LLP.
"The first step in holding Chemours accountable to the people of
North Carolina is holding them accountable to the legal process,"
said Leopold in the release. "We're pleased that the judge is
ensuring accurate and transparent testing of drinking water and
putting a stop to Chemours' stonewalling."
Chemours did not immediately respond to requests for comment on
the judge's order.
The lawsuit, which has not yet been certified as a class action
case by a federal judge, was consolidated in U.S. District Court
in the Eastern District of North Carolina on Jan. 31. It
represents several named plaintiffs in the case, while
representing all North Carolina residents potentially affected by
Chemours' operations.
The lawsuit alleges that "Chemours disregarded internal test
results while illegally dumping hazardous chemicals into the
river and then misled government regulators about its conduct.
Researchers have revealed that GenX is far more toxic than
originally thought, may even be airborne and is known to cause
cancer and other life-threatening illnesses. Nonetheless,
Chemours is pressing regulators to raise the allowable amount of
GenX in the Cape Fear River from the current limit of 140 ppt,"
according to the release.
According to the order, the plaintiffs are seeking "limited"
access to Chemours' facility in Bladen County. The order grants
this access and states that "Chemours shall make the Fayetteville
works facility available to plaintiffs to gather water samples
from five individual wastewater streams at the facility during
normal production on three separate occasions between now and
July 13, 2018."
CFPUA and Brunswick County are specifically noted in the order
for seeking expedited discovery to incorporate appropriate
remediation technology into the ongoing redesign of their water
treatment systems to "remove fluoropollutants . . . to ensure
safe drinking water for local residents."
Earlier in May, Brunswick County's Board of Commissioners
approved construction of a $99 million low-pressure reverse
osmosis plant, with final design work slated to begin in
September.
CFPUA has previously said the purpose of its legal action against
Chemours is to recover related damages and costs, such as an
upgrade to the Sweeney Water Treatment Plant.
CFPUA's board of directors on May 9 voted to authorize the
utility to negotiate a design contract for treatment enhancements
at the Sweeney Water Treatment Plant to reduce per-fluorinated
compounds (PFCs), a class of chemicals that includes GenX, in the
finished water. CFPUA declined on May 29 to comment on the
judge's order.
"The judge has ordered that the plaintiffs can test wastewater at
the Chemours facility before the start of traditional discovery.
This is needed so that the public water providers in designing
treatment can know the full identity of chemicals that will need
to be treated," said Scott Summy, shareholder of Dallas-based
Baron & Budd, the firm that is representing Brunswick County in
its lawsuit against Chemours, in an email on May 29.
The firm is also representing private well owners in North
Carolina, as well as Wrightsville Beach and the Lower Cape Fear
Water & Sewer Authority.
In the order, the county and utility alleged that the redesign
would be less effective unless they know "precisely what
chemicals must be removed from untreated water."
The parties are ordered to meet and submit a proposed protective
order concerning the expedited discovery no later than June 1.
"It's another important step in the process to learn more about
the chemicals before their dilution -- to know what has gone into
the water stream before millions and millions of gallons of water
dilutes the chemical -- so we will know what chemicals and types
of chemicals are merged with the water that goes into the Cape
Fear River," Mr. Leopold said on May 29 of the expedited
discovery.
According to Mr. Leopold, the next step in the process would be
the testing. Cohen Milstein is also waiting for a federal
judge's ruling in Chemours' motion to dismiss the proposed class
action case, he said. Should the case continue, he said, all
plaintiffs involved would begin to work on a discovery schedule.
[GN]
CHESAPEAKE OPERATING: Seeks Dismissal of Fracking Class Action
--------------------------------------------------------------
Kyla Asbury, writing for Forbes, reports that the fracking
industry is defending itself against a class action lawsuit
blaming it for earthquakes in Oklahoma.
Class action attorneys are targeting a group of natural gas
companies in an Oklahoma state court, having successfully argued
that the case doesn't belong in federal court. Chesapeake
Operating and Special Energy are two of the companies that
recently filed their motions to dismiss in Logan County District
Court.
The plaintiffs are claiming the chemicals disposed of by the
defendants during the fracking process have increased the risk of
earthquakes in certain parts of the state. The chemicals
allegedly included saltwater that was produced during oil and gas
operations. They alleged there were nine earthquake clusters
between 2014 and 2017.
Chesapeake had previously filed a motion to dismiss when the
lawsuit was in federal court Dec. 18, but the case was remanded
to state court Dec. 28, so the company refiled.
Several of the defendants have also filed motions to stay the
action pending the outcome of a lawsuit filed in the U.S.
District Court for the Western District of Oklahoma involving
Chaparral Energy.
Chesapeake wrote that if the court were to grant the pending
motions to stay, the motions to dismiss would be stayed too.
In its motion to dismiss, Chesapeake wrote that Oklahoma law
requires the plaintiffs to demonstrate causation, which it
believes they have failed to do.
Chesapeake argues that the plaintiffs made vague and conclusory
allegations but that there was no causal link between the alleged
damages and the disposal wells.
The plaintiffs failed to identify any particular earthquake
clusters that purportedly caused damage to their or any other
putative class member's home, according to the motion.
Chesapeake also claims that Lisa Griggs, one of the plaintiffs,
is not a homeowner in Logan County and cannot suffer any damages
without an ownership interest, which it claims means she is not a
properly named plaintiff and not a member of the putative class.
Special Energy wrote in its January notice that it had also
previously filed a motion to dismiss on Dec. 18, when the case
was still in federal court.
Special Energy, along with EastOK Pipeline LLC, filed a motion to
stay the action pending the outcome of Lisa West, et al. v.
Chaparral Energy LLC in the U.S District Court for the Western
District of Oklahoma.
Ms. Griggs isn't the only plaintiff to take on the fracking
industry. A lawsuit by the Sierra Club and Public Justice
attempted to use the Resource Conservation and Recovering Act in
a way it had never been used before, but U.S. District Judge
Stephen Friot dismissed the case in last year.
The two groups had alleged fracking caused the amount of
earthquakes in the state to skyrocket -- from 167 in 2009 to
5,838 in 2015. But Mr. Friot dismissed the case under a doctrine
that allows the court to pass on deciding an issue when a state
court has greater expertise in the area.
"(I)t is plain that the Oklahoma Corporation Commission has
brought to bear a level of technical expertise that this court
could not hope to match," Mr. Friot wrote.
"The challenge of determining what it will take to meaningfully
reduce seismic activity in and near the producing areas of
Oklahoma is not an exact science, but it is no longer one of the
black arts.
"This court is ill-equipped to outperform the Oklahoma
Corporation Commission in advancing that science and putting the
growing body of technical knowledge to work in the service of
rational regulation."
In its motion to dismiss Ms. Griggs' case, Special Energy said
the plaintiffs have failed to state a claim for which relief can
be granted, as a complaint must do more than merely raise the
possibility of a claim.
Special Energy wrote that the complaint was deficient in other
respects that concern market share liability.
The strict liability, nuisance and trespassing claims should be
dismissed, according to the motion.
Special Energy also wrote that the Logan County court lacks
subject matter jurisdiction, as neither the Legislature nor the
Oklahoma Corporation Commission has imposed responsibility for
seismicity on operators of injection wells.
Chesapeake is represented by Phillip G. Whaley --
pwhaley@ryanwhaley.com -- and Matthew C. Kane --
MKane@ryanwhaley.com -- of Ryan Whaley Coldiron Jantzen Peter &
Webber in Oklahoma City.
Special Energy is represented by Michael J. McDaniel of Coffey,
Senger & McDaniel of Tulsa, OK.
In addition to Federman & Sherwood, three other firms are
representing Marler and Griggs. They are Weitz & Luxenberg of
New York City, Poynter Law Group and Steel, Wright, Gray &
Hutchinson. [GN]
CHIPOTLE: Supreme Court Ruling Impacts Wage Theft Class Action
--------------------------------------------------------------
David Z. Morris, writing for Fortune, reports that a Supreme
Court decision limiting the ability of some workers to join class
action lawsuits against their employers is already having a real-
world impact. Chipotle is attempting to keep thousands of
current and former workers out of a class-action wage theft case
against it, and the new ruling is likely to give the company an
edge.
The original suit, according to Huffington Post labor reporter
Dave Jamieson, involves around 10,000 workers who claim that
Chipotle forced them to work without pay before or after clocking
in. Chipotle, though, says that nearly 3,000 of those workers
signed class-action waivers as conditions of their employment,
which would prevent them from joining the suit.
The Chipotle case was first filed in 2014, but a Supreme Court
decision issued on May 21 fundamentally shifts the playing field.
Ruling on Epic Systems Corp. v. Lewis -- also an underpayment
case -- the Supreme Court upheld companies' right to make so-
called 'forced arbitration' a condition of employment, meaning
employees would have to pursue redress for mistreatment
individually, even when violations are systematic or widespread.
In addition to complaints about pay, the ruling will likely also
impact sexual harassment cases.
The decision, according to a minority dissent by Justice Ruth
Bader Ginsburg, will lead to "huge under-enforcement of federal
and state statutes designed to advance the well being of
vulnerable workers." That's in part because arbitration requires
each worker to hire and pay for legal representation
individually. The arbitration process itself may also be
inherently unfair because it was originally designed to settle
disputes between equally-powerful entities, as New York Times
Magazine legal reporter Emily Bazelon recently suggested.
Though there has not been a ruling on the exclusion request in
the Chipotle case yet, the judge invited the litigants to file
supplemental briefs addressing the impact of Epic Systems on the
status of the affected plaintiffs. According to Jamieson, the
Supreme Court's decision likely means that nearly 3,000 Chipotle
workers who accepted arbitration as a condition of their
employment will be excluded from the class action suit. They
would instead have to enter individual arbitration, with legal
costs that could easily exceed the wages they might recover. [GN]
COMMONWEALTH BANK: In Negotiations with AUSTRAC Amid Class Action
-----------------------------------------------------------------
Litigation Finance Journal reports that the Commonwealth Bank of
Australia (CBA) is negotiating with the Australian Transaction
Reports and Analysis Centre (AUSTRAC) over its "serious and
systemic non-compliance" with anti-money laundering and counter-
terrorism laws. The announcement comes as law firm Maurice
Blackburn and funder IMF Bentham pursue their shareholder class
action claim, which alleges the precipitous drop in CBA's share
price subsequent to the AUSTRAC investigation being made public
entitles shareholders to compensation. [GN]
COOK COUNTY, IL: Court Denies Bid to Dismiss "McFields" Suit
------------------------------------------------------------
In the case, COURTNEY McFIELDS, et al., Plaintiffs, v. SHERIFF
OF COOK COUNTY, and COOK COUNTY, ILLINOIS, Defendants, Case No.
17-cv-7424 (N.D. Ill.), Judge John Robert Blakey of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, denied the Sheriff's motion to dismiss.
The Defendants operate the Cook County Jail and share
responsibility for providing medical care to detainees. They
require that detainees with dental pain complete a health service
request form before receiving treatment. The appropriate
standard of care dictates that a registered nurse or similar
provider would review any complaints of dental pain and conduct a
face-to-face evaluation with a complaining detainee within 48
hours of the detainee submitting a request form. Prompt face-to-
face evaluations would allow nurses to give detainees antibiotics
and over-the-counter medications for pain relief before detainees
see a dentist. The Defendants follow a different practice at the
jail, however: nursing staff forward request forms for dental
pain to dental staff without evaluating patients or giving them
pain medication.
Plaintiffs McFields, Pierre Brunt, Tarik Page, and Anthony Dixon
sued the Defendants under 42 U.S.C. Section 1983. The
Plaintiffs, on behalf of a proposed class, allege that the
Defendants violated their Eighth Amendment rights by
demonstrating deliberate indifference to dental pain they
experienced while confined at the Cook County Jail. They allege
that the Defendants' failure to ensure timely screening and pain
relief caused them and others similarly situated to experience
gratuitous dental pain while confined at the jail.
McFields, Page, and Dixon originally belonged to the plaintiff
class in Smentek v. Sheriff of Cook County, a similar Section
1983 case. In August 2011, the Smentek court certified the class
under Federal Rule of Civil Procedure 23(b)(3) described as all
inmates housed at Cook County Department of Corrections on or
after Jan. 1, 2007, who have made a written request for dental
care because of acute pain and who suffered prolonged and
unnecessary pain because of lack of treatment.
In December 2014, the court ordered the parties to confer
regarding a closing date for the class period. Instead of
suggesting a single end date, the Smentek plaintiffs proposed
five subclasses for different periods of time. The court
rejected the proposed subclasses in an October 2016 opinion and
set a class closing date of Oct. 31, 2013. That closing date
excluded McFields, Page, and Dixon, who suffered untreated dental
pain in 2014. McFields, Page, Dixon, and Brunt filed this suit
in October 2017.
The Sheriff seeks to dismiss all claims except Brunt's as time-
barred. The Sheriff also argues that, even if the Plaintiffs'
claims proceed, they should not proceed as a class action.
Relying upon one case from outside this district, the Sheriff
argues that the Plaintiffs' claims, if they survive a motion to
dismiss, should not proceed as a class action because they cannot
stack one class action on top of another and continue to toll the
statute of limitations indefinitely.
Judge Blakey finds that the Plaintiffs timely filed the case
because their two-year limitations period did not start running
until October 2016, when they no longer belonged to the Smentek
class.
As to Sheriff's second argument, the Judge finds that the Western
District of Wisconsin in In re Copper Mkt. Antitrust Litig. held
only that the plaintiffs in that case could not stack the tolling
effect from multiple unsuccessful class actions in which courts
denied class certification. The Plaintiffs here belonged to a
successful class action until the Smentek court set a closing
date prior to when they experienced untreated dental pain.
Besides, the Seventh Circuit has rejected the argument that
successive suits that rely on American Pipe's tolling principle
never may proceed as class actions. The Plaintiffs have not yet
moved for class certification. When they do, the Defendants will
have the chance to address that issue if necessary.
For these reasons, Judge Blakey denied the Sheriff's motion to
dismiss. All dates and deadlines stand.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/M4IHMF from Leagle.com.
Courtney McFields, Pierre Brunt, Tarik J. Page & Anthony Dixon,
Plaintiffs, represented by Joel A. Flaxman, Kenneth N. Flaxman
P.C. & Kenneth N. Flaxman, Kenneth N. Flaxman, P.C.
Sheriff of Cook County, Defendant, represented by Elaine Cindy
Davenport -- EDavenport@SanchezDH.com -- Sanchez Daniels &
Hoffman LLP, Gerald Michael Dombrowski --
GDombrowski@SanchezDH.com -- Sanchez & Daniels, Meghan Domenica
White -- MWhite@SanchezDH.com -- Sanchez Daniels & Hoffman &
Yifan Xu Sanchez -- YSanchez@SanchezDH.com -- Sanchez Daniels &
Hoffman.
Cook County Illinois, Defendant, represented by Andrea Lynn Huff,
Cook County State's Attorney's Office & Anthony E. Zecchin, Cook
County State's Attorney's Office.
CORINTHIAN COLLEGES: Former Students Get Loan Debt Reprieve
-----------------------------------------------------------
Kevin McCoy, writing for USA TODAY, reports that thousands of
former Corinthian Colleges students have won a preliminary
victory in their court battle to cancel millions of dollars in
federal loan debt for their studies at the scandal-scarred, for-
profit schools.
A judge on May 25 temporarily barred the U.S. Department of
Education from continuing to collect loan debts from the students
based on allegations the agency violated the federal Privacy Act.
U.S. Magistrate Judge Sallie Kim ruled that the preliminary
injunction was justified because the students are likely to
prevail with some of their legal arguments. She also said some
of the students face "dire" financial circumstances and
irreparable economic harm,
"Given their financial situations, any additional dollar they are
required to repay takes away from basic need for food and
shelter," wrote Judge Kim.
Her ruling cited the plight of several former students, including
Jennifer Craig, who borrowed $9,010 in 2014 to enroll in a
medical insurance and billing program. Ms. Craig completed the
program but discovered that Corinthian had not provided the
practical experience required to land a job in her field.
"Craig and her husband have a very limited income or no income,"
the judge wrote. "They appear to live, by any definition, in
poverty."
The judge's interim decision marks at least a temporary legal
setback for the Trump administration and Education Secretary
Betsy DeVos. However, Judge Kim's decision offered a route for
the Department of Education to address the alleged privacy
violation and resume student loan collections from former
Corinthian students.
"This is an important ruling," said Toby Merrill, the director of
the Project on Predatory Student Lending, one of the agencies
that filed the lawsuit. "The notion that students got anything
other than negative value from Corinthian has been roundly
disproved by student experience and the judgment of employers and
the legitimate higher education sector.
The Department of Education said it would "carefully review the
court's decision as we assess next steps."
The legal fight focuses on Corinthian, a former Santa Ana,
Calif.-based company that primarily offered certificate and
associate degree programs nationwide through its Everest, Heald,
and WyoTech colleges. During 2009 and 2010, Corinthian operated
more than 100 campuses in 25 states, enrolled more than 110,00
students and collected $1.7 billion in federal student aid, court
filings show.
Corinthian ended operations and closed its remaining campuses in
2015. The shutdown came after the Department of Education
concluded that the company's Heald College system had misled
students and the federal government about job hiring rates for
graduates.
The department placed a hold on Corinthian's access to student
loans, essentially choking off much of the company's funding.
Education officials later said they would impose a $30 million
fine on the company.
The Consumer Financial Protection Bureau separately obtained a
more than $531 million default judgment against Corinthian in
late 2015. By then, however, the company had been liquidated in
bankruptcy court proceedings.
Thousands of Corinthian students, many unable to find jobs in
their fields of study, asked the Department of Education to
forgive their student loan debts in response to the company's
misrepresentations.
During the Obama administration, the federal agency created a
procedure that granted full loan discharges to nearly 25,000
Corinthian borrowers who attested that they either had attended
one of the company's colleges that closed in 2015 or believed
they had been defrauded by one of the schools.
However, the Corinthian loan forgiveness program changed last
year under the Trump administration. After reviewing student
loan borrower claims and other records, the department determined
51 Corinthian programs had met guidelines for instruction that
leads to gainful employment, while six had failed.
As a result, education officials in December established a new
procedure that would vary the loan forgiveness percentage for
former Corinthian students and similar borrowers. The system is
based on the programs the students attended and whether they
subsequently were able to earn as much as peers in programs that
satisfied the gainful employment guidelines.
"This improved process will allow claims to be adjudicated
quickly and harmed students to be treated fairly. It also
protects taxpayers from being forced to shoulder massive costs
that may be unjustified," Ms. DeVos said.
The change "left over 110,000 former Corinthian borrowers who
have applied for loan discharge in limbo," attorneys for the
students argued in an amended class-action complaint filed in
March.
Judge Kim's ruling said the Department of Education violated the
students' privacy by sharing their names, birth dates and Social
Security numbers with the Social Security Administration, and
then using additional SSA information to calculate what
percentage of the loans should be forgiven.
"Saving money does not justify a violation of the law -- the
Privacy Act," the judge wrote.
Kim also ruled that the students have also shown compelling
evidence that they have lost economic opportunities that can't be
recovered.
But the judge ruled against the students on other arguments
raised by their lawyers. Ms. DeVos may have authority to cancel
some but not all of the students' debts if the Department of
Education followed proper procedure, the ruling suggested. The
department said it was "encouraged" by that part of the ruling.
Additionally, Judge Kim said she was uncomfortable that there was
no evidence in the case thus far to show the exact process the
Department of Education used to erase debts of former Corinthian
students during the Obama administration.
She set a June 4 hearing on that issue as legal arguments in the
case continue. [GN]
DIVERSIFIED RESTAURANT: Certification of Collective Action Sought
-----------------------------------------------------------------
In the lawsuit captioned MONIQUE CROSS and AMERICA THOMAS, on
behalf of themselves and all other persons similarly situated,
known and unknown, the Plaintiffs, v. DIVERSIFIED RESTAURANT
HOLDINGS, INC., a Michigan for-profit corporation, the Defendant,
Case No. 2:18-cv-10771-NGE-SDD (E.D. Mich.), the Plaintiffs ask
the Court for an order:
1. conditionally certifying a collective action and
authorizing the dissemination of a written notice to all
similarly situated employees pursuant to the opt-in
mechanism authorized by the Fair Labor Standards Act, 29
U.S.C. section 216(b);
2. permitting a 60-day period for additional plaintiffs to
join this litigation;
3. directing Defendant to provide each employee's last known
telephone number, last known mailing address, and last
known e-mail address within 10 days from the entry of the
Court's Order; require the proposed notice to be posted in
Defendant's workplaces (away from view of customers but in
a common place for its employees to view); and
4. granting other relief.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=6bB0j17R
Attorneys for Plaintiffs:
Bryan Yaldou, Esq.
Omar Badr, Esq.
THE LAW OFFICES OF
BRYAN YALDOU, PLLC
23000 Telegraph, Suite 5
Brownstown, MI 48134
Telephone: (734) 692 9200
Facsimile: (734) 692 9201
E-mail: bryan@yaldoulaw.com
DUKE UNIVERSITY: Court Certifies Class in "Clark" ERISA Suit
------------------------------------------------------------
In the case, DAVID CLARK, et al., Plaintiffs, v. DUKE UNIVERSITY,
et al., Defendants, Case No. 1:16-CV-1044 (M.D. N.C.), Judge
Catherine C. Eagles of the U.S. District Court for the Middle
District of North Carolina granted the Plaintiffs' motion for
class certification.
In this Employee Retirement Income Security Act action, the
Plaintiffs contend that the Defendants breached their fiduciary
duties to the plan by failing to investigate and include low-cost
recordkeeping services and funds with reasonable fees and by
including imprudent investment funds.
The Plaintiffs are participants and beneficiaries in the Duke
Faculty and Staff Retirement Plan. The Defendants are Duke
University, the Duke Investment Advisory Committee, and
individuals members of the advisory committee.
The Plaintiffs assert that the defendants breached their
fiduciary duties to the Plan by failing to monitor and control
the Plan's recordkeeping services, allowing the Plan to engage in
related prohibited transactions with its recordkeepers, failing
to prudently monitor the Plan fund options resulting in the
inclusion of funds with overly high expenses and fees and of two
allegedly imprudent funds, and violating the Plan's Investment
Policy Statement by including and retaining the CREF Stock
Account fund in the Plan. They allege that the Defendants'
breach resulted in higher Plan recordkeeping costs and the
inclusion of lower performing, higher fee funds as compared to
available alternative investments, all of which reduced the value
of Plan's investments.
The Plaintiffs seek equitable and injunctive relief, including
that the Defendants: (i) make good to the Plan all losses to the
Plan resulting from each breach of fiduciary duty; (ii) reform
the plan to offer only prudent investments; (iii) obtain bids for
recordkeeping and pay only reasonable recordkeeping expenses; and
(iv) remove the fiduciaries who have breached their fiduciary
duties and enjoin them from future ERISA violations.
The Plaintiffs now move to certify the class of the Plaintiffs
under Federal Rule of Civil Procedure 23 described as all
participants and beneficiaries of the Duke Faculty and Staff
Retirement Plan from Aug. 10, 2010 through the date of judgment,
excluding the Defendants. They ask the Court to appoint them as
the class representatives and to appoint Schlichter, Bogard &
Denton, LLP as the class counsel under Federal Rule of Civil
Procedure 23(g).
Judge Eagles finds that (i) the named Plaintiffs are members of
the proposed class and have Article III standing; (ii) the
proposed class is numerous but ascertainable; (iii) many common
questions of law and fact have been identified; (iv) the named
Plaintiffs' claims are typical of the class claims; (v) the
Defendants' defenses are typical as applied to the named
Plaintiffs and proposed class; and (vi) the named Plaintiffs and
the proposed class counsel are capable of adequately representing
class interests. The minor differences that the Defendants
identified between the named Plaintiffs and the proposed class
and within the proposed class are not material to the Plaintiffs'
theories of liability. The Plaintiffs have met the standards for
class certification set forth in Rule 23(a) and Rule 23(b)(1).
Because the Plaintiffs have established Article III standing and
meet the class certification standards set forth in Rule 23(a)
and Rule 23(b)(1), the Judge granted the Plaintiffs' motion for
class certification. She appointed Schlichter, Bogard & Denton,
LLP as the class counsel.
The Judge certified the class of all participants and
beneficiaries of the Duke Faculty and Staff Retirement Plan from
Aug. 10, 2010 through the date of judgment, excluding the
Defendants.
A full-text copy of the Court's April 13, 2018 Memorandum Opinion
and Order is available at https://is.gd/SZMf7q from Leagle.com.
DAVID CLARK, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF
PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND
STAFF RETIREMENT PLAN, KEITH A FEATHER, INDIVIDUALLY AND AS A
REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON
BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN, JORGE
LOPEZ, INDIVIDUALLY AND AS A REPRESENTATIVE OF A CLASS OF
PARTICIPANTS AND BENEFICIARIES ON BEHALF OF THE DUKE FACULTY AND
STAFF RETIREMENT PLAN & THOMAS C MEHEN, INDIVIDUALLY AND AS A
REPRESENTATIVE OF A CLASS OF PARTICIPANTS AND BENEFICIARIES ON
BEHALF OF THE DUKE FACULTY AND STAFF RETIREMENT PLAN, Plaintiffs,
represented by JEROME J. SCHLICHTER -- jschlichter@uselaws.com --
SCHLICHTER BOGARD & DENTON, ETHAN D. HATCH -- ehatch@uselaws.com
-- SCHLICHTER BOGARD & DENTON, LLP, HEATHER LEA --
hlea@uselaws.com -- SCHLICHTER BOGARD & DENTON, KURT C.
STRUCKHOFF -- sbd@uselaws.com -- SCHLICHTER BOGARD & DENTON,
MICHAEL A. WOLFF, SCHLICHTER BOGARD & DENTON, SCOTT A. BUMB,
SCHLICHTER BOGARD & DENTON, LLP, SEAN E. SOYARS, SCHLICHTER
BOGARD & DENTON, STEPHEN M. HOEPLINGER, SCHLICHTER BOGARD &
DENTON, LLP, TROY A. DOLES -- tdoles@uselaws.com -- SCHLICHTER
BOGARD & DENTON & DAVID B. PURYEAR, Jr. --
puryear@puryearandlingle.com -- PURYEAR AND LINGLE, P.L.L.C.
KATHI LUCAS, Plaintiff, represented by HEATHER LEA, SCHLICHTER
BOGARD & DENTON, SCOTT A. BUMB, SCHLICHTER BOGARD & DENTON, LLP,
SEAN E. SOYARS, SCHLICHTER BOGARD & DENTON, STEPHEN M.
HOEPLINGER, SCHLICHTER BOGARD & DENTON, LLP, TROY A. DOLES,
SCHLICHTER BOGARD & DENTON & JEROME J. SCHLICHTER, SCHLICHTER
BOGARD & DENTON.
DUKE UNIVERSITY, DUKE INVESTMENT ADVISORY COMMITTEE, KYLE
CAVANAUGH, TIM WALSH, JAMES S. ROBERTS, RHONDA BRANDON & Steve
Smith, Defendants, represented by JEREMY P. BLUMENFELD --
jeremy.blumenfeld@morganlewis.com -- MORGAN, LEWIS & BOCKIUS,
LLP, STACY K. WOOD -- stacywood@parkerpoe.com -- PARKER POE ADAMS
& BERNSTEIN, ABBEY M. GLENN -- abbey.glenn@morganlewis.com --
MORGAN LEWIS & BOCKIUS, LLP, CHRISTOPHER A. WEALS --
christopher.weals@morganlewis.com -- MORGAN LEWIS & BOCKIUS, LLP,
DONALD L. HAVERMANN -- donald.havermann@morganlewis.com -- MORGAN
LEWIS & BOCKIUS, LLP & MIKAELA R. SHAW --
mikaela.shaw@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP.
Anders Hall, Richard Schmalbeck, Michael Lazar, Dr. Nan Jokerst,
Eric Koehrsen & Jean Shields, Defendants, represented by JEREMY
P. BLUMENFELD, MORGAN, LEWIS & BOCKIUS, LLP.
E-TELEQUOTE INSURANCE: Ross Seeks Unpaid Wages & OT under FLSA
--------------------------------------------------------------
JANNETTE ROSS, individually and on behalf of all others similarly
situated, the Plaintiff, v. E-TELEQUOTE INSURANCE, INC., the
Defendant, Case No. 8:18-cv-01292-JSM-JSS (M.D. Fla., May 30,
2018), seeks to recover unpaid wages and overtime under Fair
Labor Standards Act.
According to the Complaint, the Plaintiff was employed by
Defendants as an insurance sales representative. The Plaintiff
worked the number of hours required by Defendant, but was not
paid for each and every hour worked during work week. The
Plaintiff worked 40 hours in a work week for Defendant, but was
not paid overtime compensation at the proper overtime rate by
Defendant for all those hours worked over 40 in a work week.
e-TeleQuote Insurance is a digital insurance agency, selling
health and life insurance products nationwide via the internet
and fulfillment centers.[BN]
The Plaintiff is represented by:
Jeremiah J. Talbott, Esq.
Travis P. Lampert, Esq.
LAW OFFICE OF JEREMIAH J. TALBOTT, PA
900 E. Moreno Street
Pensacola, FL 32503
Telephone: (850) 437 9600
Facsimile: (850) 437 0906
E-mail: jjtalbot@talbotlawfirm.com
civilfilings@talbotlawfirm.com
E.N.T. ASSOCIATES: Underpays Medical Assistants, O'Keefe Says
-------------------------------------------------------------
Brittany O'Keefe, Index Individually, and on behalf of all others
similarly situated, the Plaintiff, v. E.N.T. Associates of
Greater New York, PLLC, the Defendant, Case No. 704857/2018 (N.Y.
Sup. Ct., May 29, 2018), seeks to recover unpaid wages under the
New York Labor Law.
According to the complaint, the Plaintiff was employed by the
Defendant as a medical assistant performing all manual, physical
and repetitive tasks within the capacity including handling
patients, cleaning instruments, moving equipment, filing etc.
throughout her workday. The Plaintiff was paid at a regular rate
of about $13 an hour. The Plaintiff and the putative class
members were paid on a biweekly basis in violation of NYLL. The
Defendant failed to pay Plaintiff for each and all hours worked
in each week during her employment with Defendant -- for example,
Plaintiff worked for Defendant for about 4 weeks at its Deer
Park, NY location and was not paid for about 12-18 overtime hours
a week, during this period of her employment -- Defendant
required Plaintiff to clock out and continue working for an
additional 2-3 hours daily during this 4 week period. Plaintiff
was also not paid any wages for work performed during the last
three days of her employment with Defendant.[BN]
The Plaintiff is represented by:
Abdul K. Hassan, Esq. Esq.
ABDUL HASSAN LAW GROUP, PLLC
215-28 Hillside Avenue
Queens Village, NY 11427
Telephone: (718) 740 1000
Facsimile: (718) 355 9668
E-mail: abdul@abdulhassan.com
The Defendant is represented by:
KAUFMAN DOLOWICH & VOLUCK, LLP
135 Crossways Park Dr. Ste 201
Woodbury, NY 11797
Telephone: (516) 681 1100
ELECTROLUX HOME: Claims in "Stewart" Amended Suit Trimmed
---------------------------------------------------------
In the case, SHELLY STEWART AND ROBERT STEWART, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
ELECTROLUX HOME PRODUCTS, INC., Defendant, Case No. 1:17-cv-
01213-LJO-SKO (E.D. Cal.), Judge Lawrence J. O'Neill of the U.S.
District Court for the Eastern District of California granted in
part and denied in part Electrolux's motion to dismiss claims IV
through VI of the Plaintiffs' First Amended Complaint ("FAC").
In September 2017, the Plaintiffs filed a putative class action
complaint against Electrolux alleging defects in a self-cleaning
oven Electrolux manufactures.
In June 2015, the Plaintiffs purchased a Kenmore Elite wall oven
that was manufactured by Electrolux and purchased from Sears for
$1,964.99. Prior to purchasing the oven, the Plaintiffs
conducted online and in-store research of various ovens before
purchasing their oven model in June 2015, allege they purchased
their Electrolux oven based, in part, on its self-cleaning
feature.
In September 2016, the Plaintiffs engaged the self-cleaning
feature of the oven for the first time. After two or three
hours, they discovered the oven had completely shut off during
the self-cleaning cycle and would not turn on at all. After the
oven's failure, the Plaintiffs contacted Sears and Kenmore about
the oven's failure, but neither responded. They then arranged a
repair through an authorized Sears-Kenmore customer service
number.
During a service inspection in September 2016, the Plaintiffs
were informed the oven's thermostat could not support the
temperature reached during the oven's self-cleaning function.
They were told by the service technician that the company was
aware of the defect, but that the oven had recently gone out of
the warranty period, and the Plaintiffs would have to pay for the
replacement thermostat themselves. Without a replacement
thermostat, the entire oven was inoperable. The technician also
informed them that all modern ovens fail when the self-cleaning
function is engaged because the thermostat is unable to withstand
the high temperatures of that feature. The technician advised
the Plaintiffs never to engage the self-cleaning function or they
would have to replace the thermostat again. The replacement of
the thermostat costs $184.37.
Since replacing the thermostat, the Plaintiffs have not used the
self-cleaning feature of the oven because of the defect, and they
forego use of the other features like the delayed baking start
timer because they no longer trust the oven and its thermostat
for anything other than its basic functions.
The Plaintiffs filed the putative class action alleging
Electrolux knew about the defect but intentionally misrepresented
the functionality of the self-cleaning feature and concealed from
consumers the defective thermostat. They stated claims, inter
alia, under the California Legal Remedies Act ("CLRA"),
California's Unfair Competition Law ("UCL"), and California's
False Advertising Law ("FAL").
Pending before the Court is Electrolux's motion to dismiss claims
IV through VI of the Plaintiffs' FAC. The Plaintiffs filed a
brief in opposition, Electrolux filed a reply brief, and the
matter was taken under submission.
Judge O'Neill finds that despite an opportunity to amend their
complaint, the Plaintiffs have been unable to marshal the facts
necessary to establish actual reliance for purposes of standing
or knowledge on the part of Electrolux to support their FAC, UCL,
and CLRA claims. Moreover, the Plaintiffs fail to allege a
safety defect to establish the materiality for purposes of an
omission theory. It is clear they do not currently possess
sufficient facts to cure these deficiencies. The Plaintiffs'
CLRA, FAL, and UCL claims will be dismissed.
For these reasons, the Judge granted in part and denied in part
Electrolux's motion to dismiss. The motion is granted as to the
Plaintiffs' CLRA, FAL, and UCL claims. He denied the motion as
to the Plaintiffs' Unjust Enrichment claim. This claim is
cognizable. The Plaintiffs allege that Electrolux failed to
disclose the defectively designed thermostat and, as a result,
obtained monies for the ovens that the Plaintiffs and class
members would not have otherwise paid had they known the self-
cleaning feature of the oven was defective. Pursuant to Astiana,
the Judge will construe this cause of action as one in quasi-
contract seeking restitution, which is viable and cognizable.
A full-text copy of the Court's April 13, 2018 Memorandum
Decision and Order is available at https://is.gd/AvnM2q from
Leagle.com.
Shelly Stewart, on behalf of herself and all others similarly
situated & Robert Stewart, on behalf of himself and all others
similarly situated, Plaintiffs, represented by Gregory F. Coleman
-- greg@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice,
Mitchell M. Breit -- mbreit@simmonsfirm.com -- Simmons Hanly
Conroy, pro hac vice & Crystal Gayle Foley --
cfoley@simmonsfirm.com -- Simmons, Hanly, Conroy, LLC.
Electrolux Home Products, Inc., Defendant, represented by Phillip
J. Eskenazi -- peskenazi@HuntonAK.com -- Hunton & Williams LLP.
EPIC SYSTEMS: Supreme Court Ruling May Also Benefit Workers
-----------------------------------------------------------
Samuel Estreicher, writing for Bloomberg View, reports that on
its surface, the Supreme Court's 5-4 decision in Epic Systems v.
Lewis looks like a significant defeat for workers. The court
limited the ability of workers to band together in court to
pursue overtime and other statutory claims. Yet Epic Systems may
well prove beneficial to workers, a qualified blessing in
disguise.
Class actions enable lawyers to bring suits on behalf of large
numbers of similarly situated claimants. The Epic Systems
decision rejects a 2010 attempt by the National Labor Relations
Board to prohibit non-union employers from using so-called "class
action waivers" in employment contracts. Justice Ruth Bader
Ginsburg's dissent called on Congress to step in to protect
workers' right to collective litigation.
For all the alarm expressed, some perspective is in order. Most
employment claims are unlikely to be brought as class-action
suits. People who get fired or denied agreed-upon wages will
almost always show up in court or arbitration. Moreover, federal
and state administrative agencies are not bound by private
arbitration agreements.
Perhaps paradoxically, workers as a class may gain from
employers' having renewed incentive to put in place fair
arbitration agreements. Arbitration, if certain safeguards are
provided, provides a cheaper, more informal mechanism for workers
to assert their claims. Most workers don't make enough money to
hire lawyers. The overwhelming majority of these "pro se" claims
are thrown out well before trial.
In arbitration, most claimants are likely to get a hearing. This
is an extremely valuable thing, especially in cases where
learning why the employer acted the way it did and being able to
tell your story is likely to promote dispute resolution.
Since the mid-1980s, when the Supreme Court first started its
cascade of pro-arbitration decisions, a great deal of progress
has been made to improve the fairness of the process. The court
has made clear that while arbitration involves a change of forum,
it does not change workers' substantive rights.
The American Bar Association, along with the American Arbitration
Association, and plaintiff and defense advocacy groups, have
issued a "Due Process Protocol" that sets out basic rules for
employment arbitrations, including requirements that arbitrators
be experienced in employment law and issue written opinions
explaining their awards, and limits on what claimants have to pay
in filing fees to get a hearing.
Private class-action lawsuits can serve a valuable role in law
enforcement, especially in consumer protection cases.
But employment law is different.
By removing a source of legal uncertainty regarding class action
waivers -- and thus encouraging employment arbitration -- the
Supreme Court has helped to reinforce a surprising reality: The
interests of most workers are better served through arbitration
than by searching for an attorney to take their case to court.
[GN]
* * *
Harvest Public Media's Esther Honig reports that a decision by
the U.S. Supreme Court says employers can bar workers from
settling disputes in court. Worker's rights advocates say that
could harm people who work on farms and in meat processing plants
in Kansas and other agricultural states. Those workers often
rely on class-action lawsuits to collect stolen wages. [GN]
EPIC SYSTEMS: Impact of SCOTUS Ruling on #MeToo Movement Unclear
----------------------------------------------------------------
Sarah Jamison and Evan Gibbs, Esq. -- evan.gibbs@troutman.com --
of Troutman Sanders, in an article for Above The Law, wrote that
on May 21, SCOTUS issued its decision in Epic Systems, Corp. v.
Lewis, holding 5-4 that employers don't violate the National
Labor Relations Act by requiring their employees to execute class
waivers in arbitration agreements. The majority concluded that,
under the Federal Arbitration Act, federal courts are to "enforce
arbitration agreements according to their terms -- including
terms providing for individualized proceedings."
Mandatory arbitration is far from a novel concept. A September
2017 report by the Economic Policy Institute estimated that
approximately 60.1 million employees are subject to mandatory
arbitration procedures. While there is consensus that class
waivers in arbitration agreements will likely proliferate in the
wake of the Epic Systems decision, there is less agreement as to
what impact the holding will have -- if any -- on the #MeToo
movement.
The Epic Systems Decision
Section 7 of the NLRA gives employees the right to bargain
collectively and "to engage in other concerted activities for the
purpose of collective bargaining." The appellee-employees in
Epic Systems argued that class-action waivers violated their
Section 7 rights because such waivers prevented them from
engaging in concerted activity.
The majority disagreed, saying, "The NLRA secures to employees
rights to organize unions and bargain collectively, but it says
nothing about how judges and arbitrators must try legal disputes
that leave the workplace and enter the courtroom or arbitral
forum."
The majority's decision thus turned, in part, on what it saw as
an absence of clear and manifest language in Section 7 of the
NLRA supporting the notion that collective rights pertaining to
the workplace trump the Federal Arbitration Act.
The Court juxtaposed the absence of "clear and manifest
congressional command" in the NLRA with the seemingly clear
directive of the FAA to treat arbitration agreements as "valid,
irrevocable, and enforceable," and do so according to their
terms. "The policy may be debatable but the law is clear:
Congress has instructed that arbitration agreements like those
before [the Court] must be enforced as written," penned Justice
Gorsuch.
While the law may be clear (per Justice Gorsuch), the impact the
decision may have on the #MeToo movement is not.
From #MeToo to #JustYou?
One of the main concerns about the Epic Systems decision is that
mandatory individual arbitration will undermine a movement
premised on collective action. While the movement dates back to
2006, it gained momentum when collective action arising from the
hashtag #MeToo brought the issues of sexual harassment and sexual
assault out of the shadows and into the spotlight. To RBG's
point in her dissent, "For workers striving to gain from their
employers decent terms and conditions of employment, there is
strength in numbers."
Opponents of the decision argue that it not only poses a problem
to the movement's reliance on collective action, but also
undermines the transparency that is central to the movement.
Arbitration agreements, almost always requiring non-public
resolution of disputes, are often coupled with nondisclosure
agreements, thereby taking the proceedings and any discussions of
same outside the public eye.
The Other Side of the Argument
While the decision upholds the legality of class waivers in
arbitration agreements, RBG's dissent and others highlight that
the decision shouldn't prohibit individuals subject to class
waivers from filing charges with the Equal Employment Opportunity
Commission, which could then sue on behalf of the individuals.
RBG, who does "not read the Court's opinion to place in jeopardy
discrimination complaints asserting disparate-impact and pattern-
or-practice claims that call for proof on a group-wide basis,"
argued it "would be exorbitant to read the FAA to devastate Title
VII." Supporters of this line of thinking argue that the EEOC --
as an independent third party -- would not be bound by class
waivers.
Further, supporters of the decision point out that employers may
voluntarily elect to exclude sexual harassment and sexual assault
when formulating their class waivers and arbitration agreements.
For example, in December 2017, Microsoft announced that would no
longer force employees to arbitrate sexual harassment claims.
Conclusion
SCOTUS concluded in Epic Systems that "the law is clear" that
arbitration agreements must be enforced as written, including any
class waivers, but we wondered how clear the law's impact would
be on the #MeToo movement. But if you've read this far, we may
have unfortunately left you with more questions than clarity. It
remains to be seen how the decision will ultimately impact the
#MeToo movement (if at all). [GN]
EPIC SYSTEMS: Stoel Rives Attorney Discusses Supreme Court Ruling
-----------------------------------------------------------------
James C. Dale, Esq. -- james.dale@stoel.com -- of Stoel Rives, in
an article for Idaho Business Review, reports that in a
significant win for employers, the United States Supreme Court
has issued a landmark decision upholding the use of class action
waivers in employment arbitration agreements. This ruling
permits employers across the country to enforce individual
arbitration agreements with employees, even where the agreement
requires an employee to pursue legal claims on an individualized,
rather than class or collective, basis.
The Court's decision in Epic Systems Corp. v. Lewis, No. 16-285
(U.S. May 21, 2018), returns to the status quo that existed for
decades until the National Labor Relations Board, or NLRB,
reversed course in 2012 and held that employment agreements that
require employees to individually arbitrate disputes violate the
National Labor Relations Act, or NLRA. The NLRB reasoned that
the right to join in a class or collective action against an
employer fell within the NLRA's guarantees to "the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively . . . and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection."
Some federal appellate courts followed the NLRB's reasoning,
while others disagreed and continued to permit class action
waivers. The Supreme Court has now resolved all uncertainty.
The Court's newest member, Justice Gorsuch, authored the 5-4
opinion. The Court held that "Congress has instructed federal
courts to enforce arbitration agreements according to their terms
-- including terms providing for individualized proceedings." It
reasoned that the "NLRA secures to employees rights to organize
unions and bargain collectively, but it says nothing about how
judges and arbitrators must try legal disputes that leave the
workplace and enter the courtroom or arbitral forum."
Requiring employees to submit class or collective claims to
arbitration on an individualized basis has become increasingly
common. The practice can be an effective means to curtail class
and collective actions (class-like claims usually brought to
recover unpaid overtime) that have proliferated in recent years.
By eliminating class arbitration, the employee must individually
arbitrate their claim. The chances an employee would pursue an
individual claim decrease substantially when the amount at issue
is small and it cannot be joined with others.
Requiring employees to arbitrate claims individually and not as a
class requires the employer to impose an arbitration clause
forgoing certain judicial relief. Employers would be wise to
consider the implications of such move before jumping on the
arbitration bandwagon.
Arbitration is a dispute resolution process that exists as an
alternative to a lawsuit and is brought outside of the judicial
system. While arbitration is often heralded as faster and less
expensive than going to court, the gap is narrowing.
Administrative expenses and the arbitrator's fees, which the
employer will usually pay along with the bill for its own lawyer,
can quickly mimic the costs of litigation. If several employees
choose to pursue individual arbitrations, a tactic employment
lawyers may utilize (and finance), the costs and demands on
management's time can increase exponentially and the claim can
still eventually end up in court.
On occasion, disputes arise about whether a claim is subject to
arbitration or the agreement is enforceable and a court may be
required to settle that issue first. Following arbitration, a
party can ask the court to throw out or modify the arbitrator's
decision. Like court cases, the arbitration process can include
a discovery and deposition phase, motion practice and ultimately
a hearing before an arbitrator paid to perform this service and
render an decision. Importantly, states can also impose some
restrictions on the requirement that employees pursue individual
arbitration. Generally speaking, requiring that employees pursue
individual arbitrations may be most effective and economical for
businesses with a sizeable number of employees.
Without question, the Supreme Court's Epic decision is just that:
epic, and it may provide a powerful hedge against the threat of a
prolonged and expensive class action lawsuit. Employers that
have not yet adopted such agreements should consult experienced
legal counsel to better understand the legal risks and rewards of
such a program. [GN]
FACEBOOK INC: Faces Discrimination Class Action Over Ad Tools
-------------------------------------------------------------
Josh Eidelson, writing for Insurance Journal, reports that a
proposed class action lawsuit alleging Facebook's ad placement
tools facilitate discrimination against older job-seekers has
been expanded to identify additional companies, further widening
the latest front in claims that candidates are being filtered out
by gender, geography, race and age.
"When Facebook's own algorithm disproportionately directs ads to
younger workers at the exclusion of older workers, Facebook and
the advertisers who are using Facebook as an agent to send their
advertisements are engaging in disparate treatment," a
communications union alleged in the amended complaint -- citing a
legal test for employment discrimination -- filed on May 29 in
San Francisco federal court.
The union added claims under California's fair employment and
unfair competition statutes to the lawsuit, which was initially
filed in December.
The Communications Workers of America is suing on behalf of union
members and other job seekers who allegedly missed out on
employment opportunities because companies used Facebook's ad
tools to target people of other ages. The original filing named
defendants are Amazon.com Inc., Cox Media Group, Cox
Communications Inc. and T-Mobile, as well as what the union
estimates to be hundreds of employers and employment agencies who
used Facebook's tools to filter out older job hunters when
seeking to fill positions.
The amended filing adds Ikea, Enterprise Rent-A-Car, and the
University of Maryland Medical System to its list of companies
that allegedly used Facebook's tools to filter by age. Those
three entities, as well as Facebook, aren't named defendants in
the lawsuit. Facebook and the companies added to the amended
complaint didn't immediately responded to requests for comment
made before regular business hours.
The union alleged in its amended complaint that Facebook also
uses age-filtering in ads intended to find its own employees. In
January, the union filed an Equal Employment Opportunity
Commission complaint about the alleged practice, according to a
copy obtained by Bloomberg News. An EEOC spokeswoman declined to
confirm or deny the complaint.
"It's important that the EEOC engages in a rigorous and
comprehensive investigation of Facebook, since Facebook is the
largest employment agency in the history of the world,"
Peter Romer-Friedman, a lawyer for the union, said in an
interview.
In a December statement, Facebook Vice President of
Advertisements Rob Goldman said "Facebook tailors our employment
ads by audience" and "we completely reject the allegation that
these advertisements are discriminatory." Regarding other
companies, he said the company helps educate advertisers about
their legal responsibilities and requires them to certify they
are complying with the law. Comparing age-targeted employment
ads to ads placed in magazines or on TV shows favored by people
of certain ages, Mr. Goldman wrote that, "Used responsibly, age-
based targeting for employment purposes is an accepted industry
practice and for good reason: it helps employers recruit and
people of all ages find work."
The debate over targeted online advertising has drawn the
attention of the U.S. Senate Special Committee on Aging, whose
Republican and Democratic leaders jointly requested Facebook hand
over information, including how many jobs have been advertised on
Facebook over the past five years using age-specific ads, and
what age criteria were used.
The CWA litigation may be a sign of things to come as hiring
increasingly migrates onto internet platforms, said
Ifeoma Ajunwa, a lawyer and sociologist who teaches at Cornell
University's Industrial and Labor Relations School.
"The same types of discrimination issues that you would see in
traditional hiring are now just being transferred over to the
platforms," she said. "You could even argue that the new way,
using platforms, is worse, because it's more solidified --
there's no wiggle room, there's no accidental meetings."
In the amended complaint, CWA alleged that Facebook encourages
advertisers to exclude some job-seekers by providing both age
filters and regularly updated data on how ads perform among
different age groups. The union also claims Facebook targets
employment ads to "lookalike audiences" chosen for their
demographic similarity to the people who already have a job at
the same company, a practice which further marginalizes older
job-seekers.
The union also alleged that, "in addition to encouraging and
allowing employers and employment agencies to restrict which
Facebook users will receive job ads based on their age,"
Facebook's algorithm further factors in age when determining
which users among the population chosen by the advertiser will
actually see the ad.
Federal law offers immunity for internet platforms acting as
"passive conduits" of information.
In a Q&A posted in its online Help Center, Facebook tells users
that, to "decide which ads to show you," it uses factors
including information from user accounts such as location, gender
and age.
How much discretion Facebook uses in serving up ads based on user
age could be a crucial question in the EEOC complaint and the CWA
lawsuit. The 1996 Communications Decency Act offers internet
companies a shield from being held liable "as the publisher or
speaker" of content placed on their site by other parties, such
as comments left in public forums. That law could be a potential
defense against the union's EEOC allegations, or in resisting
efforts to force disclosures about how advertisements were
targeted, and what role Facebook played, if any.
The U.S. Court of Appeals in San Francisco has previously ruled
that, while the law offers immunity for platforms acting as
"passive conduits," it doesn't shield a company which
"contributes materially to the alleged illegality of the
conduct." The circuit, which subsumes the CWA lawsuit's venue,
ruled in a 2008 case that the Communications Decency Act wouldn't
prevent liability for a company that specifically offered
prospective roommates drop-down menus from which to declare
preferences based on race.
Still, courts have generally interpreted the CDA's protections
very broadly, said University of Miami law professor Mary Anne
Franks, including in a series of rulings siding with the website
Backpage.com when it was sued for allegedly facilitating sex
trafficking. Those rulings spurred congressional passage of a
law meant to quash Backpage's defense against the CDA. While
that move to carve out an exception to the law's protections of
internet companies was tailored to punish alleged sex
trafficking, Franks says it could contribute to a climate of
greater skepticism about the breadth of the law's protections,
which could also influence judicial rulings.
Mr. Romer-Friedman said the plaintiffs' new allegations would
make it that much harder for Facebook to use the CDA as a shield.
"To the extent that Facebook's algorithm is using age to
determine who will get what ads, and that results in order
workers being excluded," he said, "those decisions are Facebook's
decisions." [GN]
FACEBOOK INC: Illinois Users Could Be Parties to Class Action
-------------------------------------------------------------
Ally Marotti, writing for Chicago Tribune, reports that millions
of Illinois Facebook users are being notified that they could be
involved in a lawsuit over the social media giant's use of its
facial tagging feature.
A court-appointed administrator on May 28 began sending emails to
users who resided in Illinois for at least 60 consecutive days
between June 7, 2011, and mid-April of this year, explaining that
they could be parties to a class-action lawsuit against the
social network, said Nikki Sokol, associate general counsel at
Facebook. Separately, Facebook is sending users who meet those
criteria a notification via their accounts, letting them know
they may be involved in the lawsuit, and an additional item also
will appear in their news feed. The notifications must be sent
by May 31.
"This is to help people understand what their rights are with
regard to the lawsuit and that they may be affected by it if they
are members of the class," Ms. Sokol said.
The lawsuit, which was filed in federal court in Chicago in 2015
and later moved to federal court in San Francisco, alleges
Facebook violated Illinois' Biometric Information Privacy Act by
failing to obtain written consent from users before creating
templates of their faces from photos and by not properly
notifying them about how the information would be used or how
long it would be kept.
The suit asks the court to award damages of $5,000 for each
reckless violation of the Illinois law and $1,000 for each
negligent violation. The judge hearing the case granted the suit
class-action status in April, and said in his order that damages
could amount to billions of dollars.
Facebook, which denies the allegations and is fighting them in
court, started rolling out its facial tagging feature for photos
in 2010. The social media platform has information on its
website regarding the feature and points users toward their
settings to disable it, and in December it introduced new tools
to help users better manage use of facial recognition.
Just because Facebook users receive a notification does not mean
they are involved in the suit, Ms. Sokol said. The notifications
are going out to potential class members, and users only will be
included in the lawsuit if Facebook created templates of their
faces from uploaded photos.
The class administrator plans to send out more than 28 million
emails, and Facebook notifications will go out to slightly fewer
users, Ms. Sokol said. That is more than twice the size of
Illinois' population. However, the notifications and emails will
go out to more than just permanent residents. Additionally,
Ms. Sokol said some users have multiple Facebook accounts or
multiple email addresses tied to their accounts.
The Facebook notifications will provide users a link to a website
that explains the allegations in the lawsuit and their rights as
potential class members. If users do nothing, they will continue
to be parties to the suit and remain eligible to receive money
that may be awarded in the case. If they ask to be excluded,
they will not be able to share in any money stemming from the
suit.
The Facebook case is expected to go to trial in July. [GN]
FACEBOOK INC: Files Emergency Motion to Stay BIPA Class Action
--------------------------------------------------------------
Chris Burt, writing for BiometicUpdate.com, reports that Facebook
has filed an emergency motion with the 9th Circuit Court of
Appeals to request a stay of a court order to notify all
potential members in a class action against the company in its
ongoing faceprints suit alleging violations of Illinois'
Biometric Information Protection Act (BIPA), MediaPost reports.
"The Court should stay the case so that it may address the
fundamental issues presented in the petition before Facebook and
tens of millions of its users are irreparably harmed," the
company wrote in the motion.
The 9th Circuit Court of Appeals is yet to rule on Facebook's
request to reverse a decision by U.S. District Court Judge James
Donato to allow the suit to be classified as a class action.
Judge Donato ordered the company to inform all potential parties
to the case by email, and through the News Feeds and notification
icons of their Facebook accounts, according to MediaPost.
Facebook says the reputational and economic costs of complying
with the order would be "irreparable," and that it has requested
Judge Donato stay the order himself, but received no response.
"If the Court does not grant a stay by May 30, over 20 million
people will receive class notice that may need to be retracted or
modified substantially," Facebook writes. "If class members
receive a notice that appears to be from Facebook notifying them
of an ongoing class action against Facebook, only to then receive
another notice appearing to be from Facebook telling them that
the class action no longer exists (or some variant thereof), they
will be understandably confused and uncertain as to whether they
can trust those mixed messages."
Judge Donato recently scolded the social media giant while ruling
against it on the definition of "biometric data". [GN]
FAST TAX: Broomfield Seeks to Certify Class
-------------------------------------------
In the lawsuit styled SABRINA BROOMFIELD, on behalf of herself
and other persons similarly situated, the Plaintiff, v. FAST TAX
SERVICE, INC., the Defendant, Case No. 2:18-cv-05403-SSV-KWR
(E.D. La.), the Plaintiff asks the Court to grant a motion for
class certification.
According to the complaint, the Plaintiff notes that this motion
is being submitted pursuant to Local Rule 23.1(B) and reserves
the right to supplement it after conducting class-related
discovery. The proposed class is legally and factually
appropriate and warranted, and Plaintiff's motion should be
granted.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=BTANYxyG
Attorneys for Plaintiff:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
Emily. A. Westermeier, Esq.
Jonathan Mille Kirkland, Esq.
BEAUMONT COSTALES LLC
3801 Canal Street, Suite 207
New Orleans, LA 70119
Telephone: (504) 534 5005
Facsimile: (504) 272 2956
FRITO-LAY: Couple Asks Judge Not to Reconsider Label Case Ruling
----------------------------------------------------------------
Karen Kidd, writing for Legal Newsline, reports that with a
hearing less than a month away, a San Diego couple have asked a
federal judge not to reconsider her previous decision to not
dismiss the couple's would-be class action against Frito-Lay over
the company's allegedly misleading potato chip label.
"Frito-Lay argues that new class action complaints that have been
filed alleging that malic acid is an artificial flavoring
ingredient constitute 'new circumstances' that plaintiffs'
allegations are implausible as a matter of law," Barry and Mandy
Allred said in their May 9 opposition to Frito-Lay's request for
reconsideration or clarification.
"However, this court correctly held that whether malic acid
functions as a flavoring ingredient in the Lay's Salt & Vinegar
flavored potato chips is 'a factual determination that would be
inappropriately resolved on a motion to dismiss."
The Allreds, in their lawsuit filed in July in U.S. District
Court for California's Southern District, allege that Frito-Lay's
Salt and Vinegar flavored potato chips are misleadingly labeled
as only containing natural ingredients. On March 7, U.S.
District Court Judge Janis Lynn Sammartino denied Frito-Lay's
motion for the case to be dismissed. In her denial, Judge
Sammartino said she could not yet determine if the Allred's
claims were implausible and preempted and ruled that the couple
had adequately pleaded its case for a continuing violation
exception for the statute of limitations to be tolled.
The following month, Frito-Lay asked Judge Sammartino to
reconsider her denial of their motion to dismiss, saying new
developments in the case "further demonstrating the
implausibility of plaintiffs' allegations regarding the function
of malic acid in Lay's Salt & Vinegar Flavored Potato Chips."
The Allreds have argued that Frito-Lay's "misrepresentations and
deception" continues to the present day, which triggers the
continuing violation doctrine and tolls statute of limitations
until "unlawful advertising and labeling is corrected." In March,
Judge Sammartino denied Frito-Lay's motion for summary judgment
to dismiss the class action, saying the continuing violation
doctrine does not apply to this case.
"It would be inequitable to hold the continuing violation
doctrine does not apply to this case," Judge Sammartino said in
her March order and then cited a relevant California Supreme
Court case. "Here, assuming the allegation of misbranding to be
true, it would be inequitable to allow defendants to obtain
immunity from this violation even for recent and ongoing
malfeasance."
In their opposition to Frito-Lay's motion for reconsideration,
the Allreds said that none Frito-Lay's arguments "are convincing"
and that "Frito-Lay fails to introduce any new facts that are
pertinent to the present matter."
"Indeed, the only 'new evidence' that Frito-Lay relies upon are
class action complaints that similarly allege that malic acid is
an artificial flavoring ingredient that should be conspicuously
disclosed as such on the product packaging," the Allreds
continued in their opposition. "The court's order denying
defendant's motion to dismiss is not clearly erroneous. In fact,
the court's order is consistent with the results that were
reached in a similar class action that is pending before this
district."
On May 23, Frito-Lay filed a joint motion for protective order in
the case.
Hearing in the case is scheduled for June 21. [GN]
G&R COLLECTIONS: June 19 Final Settlement Hearing in "Tiernan"
--------------------------------------------------------------
In the lawsuit captioned SHAWNDA TIERNAN, on behalf of herself
and all others similarly situated, the Plaintiff, v. G&R
COLLECTIONS and MBG, INC., the Defendants, Case No. 3:16-cv-02602
(M.D. Tenn.), the Plaintiff will move the Court on June 19, 2018,
for an order certifying the case to proceed as a class action and
granting final approval of the Parties' class settlement
agreement, on behalf of the following class:
"all Tennessee consumers who were sent an initial collection
letter from G&R, during the time period of September 27, 2015
to present, attempting to collect a debt or alleged debt for
A-1 Cash Advance, that contains the language "Unless you
notify this office within 30 days after receiving this notice
that you dispute the validity of this debt or any portion
thereof, this office will obtain verification of the debt or
obtain a copy of a judgment and mail you a copy of such
judgment or verification"."
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=aA5y6zNN
Attorneys for Plaintiff:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 695 3282
Facsimile: (732) 298 6256
E-mail: Ari@MarcusZelman.com
Counsel for G&R Collections, LLC and MBG, Inc.:
B.J. Brinkerhoff, Esq.
KATZ KORIN CUNNINGHAM PC
334 N. Senate Avenue
Indianapolis, IN 46204
Telephone: (317) 464 1100
Facsimile: (317) 464 1111
E-mail: bbrinkerhoff@kkclegal.com
GATEWAY REGIONAL: Abbiw Alleges Wrongful Termination
----------------------------------------------------
GREGORY ABBIW, the Plaintiff, v. GATEWAY REGIONAL HIGH SCHOOL,
GATEWAY REGIONAL HIGH SCHOOL DISTRICT and JOHN DOES 1-5 AND
6-10, the Defendants, Case No. CAM-L-001926-18 (N.J. Super. Ct.,
May 23, 2018), seeks to recover damages caused by Defendants'
violation of the New Jersey Law Against Discrimination. The
Plaintiff asks the Court to order the Defendants to cease and
desist all conduct inconsistent with the claims, both as to the
specific plaintiff and as to all other individuals similarly
situated.
The Plaintiff was employed by the Defendants through and
including his wrongful termination on or about March 21, 2018,
having begun his employment on or about August 17, 2016. Prior to
plaintiff's wrongful termination on March 21, 2018 he was
retaliatorily suspended pending that termination on or about
February 20, 2018. The Plaintiff was performing his work up to or
in excess of the legitimate expectations of his employer. The
Plaintiff contends that any reasons offered to justify his
termination in response to this suit are knowingly false and
misleading, represent an egregious desire to retaliate, and that,
in fact, a determinative and/or motivating factor in plaintiff's
discharge was his protected conduct. The Plaintiff's employment
was without appreciable incident until approximately July 2017.
At that time, co-worker Drew Hiller began to act in a way which
the plaintiff deemed sexually inappropriate and, in plaintiff's
reasonable belief, in a sexually harassing manner.
Examples of Hiller's conduct included statements "my wife doesn't
give me none," [referring to sex], suggestions that he [himself]
could not sexually please his wife, and other gratuitous comments
of a sexual nature. Feeling these comments to be harassing to
himself and/or potentially to others, plaintiff told Hiller to
stop that talk in the workplace; this conduct was protected
conduct under the New Jersey Law Against Discrimination.
Gateway Regional High School is a regional school district and
public high school serving students in seventh through twelfth
grades from the boroughs of National Park, Wenonah, Westville and
Woodbury.[BN]
The Plaintiff is represented by:
Kevin M. Costello, Esq.
COSTELLO & MAINS, LLC
18000 Horizon Way No. 800
Mt Laurel, NJ
GETSWIFT LTD: William Roberts Attorneys Discuss Court Ruling
------------------------------------------------------------
Bill Petrovski, Esq. -- bill.petrovski@williamroberts.com.au --
and Ding Pan, Esq. -- ding.pan@williamroberts.com.au -- of
William Roberts Lawyers, in an article for Lexology, wrote that
earlier this year, three overlapping open securities class action
were commenced against the same respondent, GetSwift Limited, in
the Federal Court of Australia. The lead applicants in each of
those class actions sought to represent essentially the same
investors in advancing cases that are substantially the same
against the respondent. The Federal Court was tasked with
deciding how best to resolve the overlap while protecting the
interest of the investors who are proposed to be the class
members.
Justice Lee permanently stayed two of the three class actions and
allowed one action (the Webb Class Action) to proceed. In doing
so, his Honour adopted a "multifactorial approach" to the
assessment as to which of the three class actions should proceed.
In summary, three key features of the Webb Class Action stood out
as being advantageous when compared with the others.
First, the Webb Class Action involved a proposed two-tiered
funding model (Two Tiered Model), under which the return to the
litigation funder (in the event of a settlement or judgment in
the applicant's favour) was on the lower of:
-- multiple of the expenses that the funder had paid in the
proceeding (being 2.2 times if the parties in the proceeding
enter into a settlement agreement on or before 12 April 2019, and
that settlement subsequently receives court approval; or 2.8
times if there is a successful resolution after 12 April 2019);
or
-- 20% of the net litigation proceeds (settlement or judgment
sum less approved professional fees and disbursements).
The Court considered that the Two Tiered Model had the following
advantages:
-- it recognised the reality that the risk of a funder
increases incrementally as legal costs increase;
-- it better reflects the fact that litigation funders are
promoting the provision of legal support and hence have become
indirectly engaged in the provision of legal services to a
client;
-- it prevents windfalls to litigation funders, where the net
litigation proceeds are high;
-- it also guards against disproportionality where the net
litigation proceeds are disproportionately low compared with the
legal costs expended; and
-- provision of commissions purely on "headline" percentages
may lead to a form of reverse auction where the funders'
proposals are not struck by reference to material assessments of
risk and proportionate and commensurate return, but by
competitive undercutting by press release or twitter.
Second, the Webb Class Action involved innovative ways of seeking
to reduce costs as follows:
-- a proposal that the Court appoints a referee who
progressively monitors legal costs, so that the multiple-based
commission is calculated by reference to costs that have been
scrutinised. In addition, having a referee control costs during
the course of proceedings is also likely to make the settlement
process more efficient when costs need to be assessed for any
ultimate settlement approval. As a cost control measure,
appointing a referee is also superior to cost capping, as the
latter may encourage a respondent to wear down the resources of
an applicant subject to a cap; and
-- it is open to the prospect of an appointment of a joint
expert on questions of loss causation and the quantification of
loss and damage, which would likely lead to a significant saving
of costs.
Third, based on a comparative analysis of the most likely returns
to class members in a range of different scenarios on the basis
of common costs assumptions, the Webb Class Action is very likely
to produce a better return for class members in the vast bulk of
realistic scenarios at all stages of the proceedings.
Whilst the Webb Class Action won the "beauty parade", the
ultimate winners from this decision are class members.
Based on early indications made to the Court, it is possible that
an appeal will follow. [GN]
H.H. FRANCHISING: "Geiger" Suit Seeks to Certify Caregiver Class
----------------------------------------------------------------
In the lawsuit captioned ROSEANN GEIGER and SHERRI HOLLEY,
individually and on behalf of all others similarly situated, the
Plaintiffs, v. H.H. FRANCHISING SYSTEMS, INC., d/b/a HOME
HELPERS, a foreign corporation; GLENKAT, INC.; KATHLEEN HOLDEN,
an individual; and GLENN HOLDEN, an individual, the Defendants,
Case No. 3:17-cv-00738-FDW-DSC (W.D.N.C.), the Plaintiffs ask the
Court for conditional certification of a collective action, and
authorization to send initial and subsequent Court-supervised
Notices to:
"all current and former in-home caregiver employees who
regularly worked 24-hour shifts and/or who worked more than 40
hours per week, are/were employed by H.H. Franchising Systems,
Inc. d/b/a Home Helpers; and/or Glenkat, Inc.; Kathleen Holden
and Glenn Holden in North Carolina from December 24, 2014 to
the present."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=2ZFVPFao
Attorney for Plaintiffs and Putative Class Members:
L. Michelle Gessner, Esq.
THE LAW OFFICES OF MICHELLE GESSNER, PLLC
435 East Morehead Street
Charlotte, NC 28202
Telephone: (704) 234 7442
E-mail: michelle@mgessnerlaw.com
Attorneys for Defendant:
Kimberly Sullivan, Esq.
ORACK, TALLEY, PHARR & LOWNDES, P.A.
301 South College Street, Suite 2600
Charlotte, NC 28202-6006
E-mail: ksullivan@HorackTalley.com
- and -
William S. Cherry, III, Esq.
MANNING, FULTON & SKINNER, P.A.
3605 Glenwood Avenue, Suite 500
Raleigh, NC 27619
E-mail: cherry@manningfulton.com
- and -
Fredric A. Cohen, Esq.
Marlen Cortez Morris, Esq.
CHENG COHEN, LLC
311 North Aberdeen Street, Suite 400
Chicago, IL 60607
E-mail: marlen.cortez@chengcohen.com
HARTFORD CASUALTY: "Johnson" Settlement Has Initial Approval
------------------------------------------------------------
In the case, G. GRANT JOHNSON, Plaintiff, v. HARTFORD CASUALTY
INSURANCE COMPANY, et al., Defendants, Case No. 15-cv-04138-WHO
(N.D. Cal.), Judge William H. Orrick of the U.S. District Court
for the Northern District of California granted the Plaintiff's
Motion for Preliminary Approval of Class Action Settlement.
The Plaintiff's Motion came before the Court on April 11, 2018.
Judge Orrick, having considered the proposed Class Action
Settlement Agreement and Release and the Exhibits attached
thereto; the Motion for Preliminary Approval; the respective
points and authorities and the Declaration submitted by the
Plaintiff's counsel in support thereof, granted conditional
certification of the class of all policyholders (including both
natural persons and entities) insured by an insurance policy
underwritten by Hartford that insured one or more structures
located in California who suffered a partial loss to a covered
structure in California between Aug. 13, 2011 and the date of the
entry of the Order, and made an insurance claim with Hartford
seeking coverage for that loss.
Further, for settlement purposes only, the Judge granted
conditional certification of the Component Subclass of all
members of the Class whose actual cash value payment was reduced
by depreciation to one or more of the following structural
components and who did not fully recover all depreciation in a
subsequent claim for replacement class value: acoustical
ceilings, baseboards, basement floor systems, bath cabinets,
brick, ceilings and ceiling suspension, ceramic tile, cement,
cement posts, chimneys, closet doors, closet shelves, concrete
footings, concrete foundations, custom millwork, drywall,
electrical wiring and insulation, engineered wood, exterior
siding, fiber cement, fiberglass doors, fireplaces, floor
trusses, framing, insulation, laminated strand lumber, lath,
mantles, marble, natural stone, natural wood flooring, ornamental
iron, plaster, plumbing, poured concrete structural systems, roof
trusses, rough carpentry, rough structure, slate flagstone
floors, stone, stucco, terrazzo, timber frames, toilets, trim,
two-by-four studs, walls, wall panels, wood doors, and wood
shutters.
He appointed (i) G. Grant Johnson as the Settlement Class
Representative; (ii) Rust Consulting, Inc., as the Settlement
Administrator; (iii) the Plaintiff's counsel, Michael von
Loewenfeldt, Esq, Ivo Labor, Esq., and Daniel J. Veroff, Esq. as
the Settlement Class Counsel; and (iv) Peter S. Evans of Mill
Valley, California as the Neutral Evaluator.
Judge Orrick approved on a preliminary basis the compensation to
the participating Settlement Class Members provided for in the
Settlement Agreement. He also approved the form and content of
the proposed Settlement Notice.
The Settlement Notice shall be mailed to the Class Members, and
the Settlement Administrator shall establish the settlement
website no later than May 16, 2018. If any Settlement Notice is
returned undeliverable, the Settlement Administrator shall make a
reasonable effort to find an updated address for the Class Member
and promptly re-mail the Settlement Notice to the new address. In
the event that any Mailed Notice is returned as undeliverable a
second time, no further mailing shall be required.
The Settlement Administrator is also directed to mail the
postcard reminder of the deadline to submit Claim Forms, opt-out
notices and objections no later than June 18, 2018. Any Class
Member may opt out of the Settlement by submitting an opt-out
request to the Settlement Administrator as instructed in the
Settlement Notice by mail, postmarked no later than July 30,
2018.
A Final Approval Hearing is scheduled for Sept. 19, 2018. The
Settlement Class Counsel shall file any papers in support of
their requested award of attorneys' fees and expenses and the
Settlement Class Representative's Enhancement Award no later than
July 13, 2018. The counsel for the Parties shall serve and file
any response to any objections to the Settlement, a Motion for
Final Approval, and any papers in support of final approval of
the Settlement by Aug. 22, 2018.
Pending the Final Approval Hearing, all proceedings in this
action, other than proceedings necessary to carry out or enforce
the terms and conditions of the Settlement Agreement and the
Order, are stayed.
Judge Orrick ordered the following Implementation Schedule for
further proceedings:
a. The Settlement Administrator will mail the Settlement
Notice to the Class Members and launch the Settlement website by
May 16, 2018.
b. The Settlement Administrator will mail to the Class
Members the postcard reminder of the deadline to submit Claim
Forms, Opt-Out notices, and Objections no later than June 18,
2018.
c. The Settlement Class Counsel will file a motion for award
of attorneys' fees, reimbursement of litigation expenses, and a
Settlement Class Representative Enhancement Award by July 13,
2018.
d. Claim Forms, Opt-out notices, and Objections must be
mailed to the Settlement Administrator as provided in the
Settlement Notice and postmarked no later than July 30, 2018.
e. The Settlement Administrator shall contact Class Members
who submitted an illegible or otherwise invalid Claim Form no
later than Aug. 13, 2018.
f. The Class Members who submitted an illegible or otherwise
invalid Claim Form must resubmit a valid Claim Form no later than
Aug. 27, 2018.
g. The Settlement Administrator will file a declaration of
compliance regarding completion of notice, and the number and
names of opt outs, no later than Sept. 10, 2018.
h. The Parties will file a motion for Final Approval and
supporting documents thereto, and respond to objections no later
than Aug. 22, 2018.
i. The Final Approval Hearing will be held on Sept. 19, 2018
at 2:00 p.m.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/cwCXiJ from Leagle.com.
G Grant Johnson, an individual, on behalf of himself and a class
of similarly situated persons, Plaintiff, represented by Michael
John von Loewenfeldt -- mvl@kerrwagstaffe.com -- Kerr & Wagstaffe
LLP, Daniel Jack Veroff -- veroff@kerrwagstaffe.com -- Kerr &
Wagstaffe LLP, Ivo Michael Labar -- labar@kerrwagstaffe.com --
Kerr & Wagstaffe LLP & Jennifer Lorraine Freeland, Kerr &
Wagstaffe LLP.
Hartford Casualty Insurance Company, Defendant, represented by
Linda Beth Oliver -- loliver@maynardcooper.com -- Maynard Cooper
& Gale, LLP, Christopher Charles Frost --
cfrost@maynardcooper.com -- Maynard Cooper and Gale, pro hac
vice, Michael Douglas Mulvaney -- mmulvaney@maynardcooper.com --
Maynard Cooper and Gale, pro hac vice & Wystan M. Ackerman --
wackerman@rc.com -- Robinson and Cole LLP, pro hac vice.
Hartford Accident and Indemnity Company, Hartford Fire Insurance
Company, Hartford Insurance Company of the Midwest, Hartford Life
Insurance Company, Hartford Underwriters Insurance Company,
Property & Casualty Insurance Company of Hartford, Sentinel
Insurance Company, Ltd., Trumbull Insurance Company & Twin City
Fire Insurance Company, Defendants, represented by Christopher
Charles Frost, Maynard Cooper and Gale, Linda Beth Oliver,
Maynard Cooper & Gale, LLP, Michael Douglas Mulvaney, Maynard
Cooper and Gale, pro hac vice & Wystan M. Ackerman, Robinson and
Cole LLP, pro hac vice.
HENRY D. BINFORD: Yeager Seeks to Certify Class
-----------------------------------------------
In the lawsuit entitled RICHARD ALLEN YEAGER, the Plaintiff,
v. HENRY D. "BUTCH" BINFORD, et al., the Defendants, Case No.
1:18-cv-00526-WKW-SRW (M.D. Ala.), the Plaintiff asks the Court
for an order certifying the case as a class action on behalf of:
"disabled veterans and military service members pursuant to
Rule 23 (b)(2),Federal Rules of Procedure"
According to the complaint, the Defendants have acted or refused
to act or accommodate or provide access to Veterans Court in a
manner generally applicable to class, thereby making appropriate
injunctive and declaratory relief with response to the class as a
whole.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=yTo3gUtj
HERBS BY THE POUND: "Vega" Suit Moved to S.D. Florida
-----------------------------------------------------
The class action lawsuit titled Eugenia Isabel Vega, and other
similarly situated individuals, the Plaintiff, v. Herbs by the
Pound, LLC, A Florida Limited Liability Company AND Brian Murphy,
Individually, the Defendants, was removed to the U.S. District
Court for the Southern District of Florida (Miami) on May 30,
2018. The District Court Clerk assigned Case No. 1:18-cv-22132-
JEM to the proceeding. The case is assigned to the Hon. Judge
Jose E. Martinez.[BN]
The Plaintiff is represented by:
Jason Saul Remer, Esq.
REMER & GEORGES-PIERRE, PLLC
Court House Tower
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416 5000
Facsimile: (305) 416 5005
E-mail: jremer@rgpattorneys.com
Attorneys for Defendants:
Eric Andrew Gordon, Esq.
AKERMAN LLP
777 So. Flagler Drive
Suite 1100 West Tower
West Palm Beach, FL 33401
Telephone: (561) 671 3651
Facsimile: (561) 659 6313
E-mail: eric.gordon@akerman.com
HSBC BANK: Faces Class Action Over Failure to Investigate Fraud
---------------------------------------------------------------
Jane Seyd, writing for North Shore News, reports that lawyers
handling creditors' claims against bankrupt West Vancouver Ponzi
schemer Virginia Tan have filed a lawsuit against her son,
alleging the development property he owns was paid for with the
proceeds of fraud.
Bankruptcy trustee Boale, Wood and Co. filed a notice of claim
against Marcus Soon-Keen Tan of North Vancouver, alleging six
properties he acquired in connection with a real estate
development in Surrey since 2011 were bought with funds his
mother defrauded from investors.
The bankruptcy trustee is asking the court to transfer ownership
of the properties to the trustee for the creditors' benefit or
for Marcus Tan to pay back investors whose funds were allegedly
used to buy or make payments on the properties.
The trustee has also asked the court for records tracing money
received by Marcus Tan from either of his parents and for assets
bought by him with funds from either of them.
No statement of defence has been filed and none of the claims
have been proven in court.
A man who answered the door at the home of Marcus Tan said Tan
was sleeping and he would pass on a message.
The lawsuit, which focuses on six Surrey properties, is the
latest twist in attempts by creditors to get some of their cash
back from the former West Vancouver woman.
In April 2017, as part of a settlement agreement with the B.C.
Securities Commission, Virginia Tan admitted to fraudulently
raising at least $30 million from investors as part of a Ponzi
scheme.
According to securities commission documents, Virginia Tan ran a
business under the name Letan Investments Management. Ms. Tan
issued promissory notes to investors saying the money would be
used for "short-term financing." But instead, she paid interest
with money given to her from new investors -- a classic Ponzi
arrangement.
Between 2011 and 2015, Tan raised at least $30 million through
the Ponzi scheme, without actually investing that money in real
business, according to the securities commission.
A number of those bilked by Tan were West Vancouver friends and
acquaintances Ms. Tan and her husband knew through their church.
By late 2015, Tan stopped making payments to investors.
Many investors "suffered substantial losses as a result of their
investment with Tan," according to the securities commission.
Following the collapse of the Ponzi scheme, civil suits filed by
a number of those Tan defrauded forced Tan and her husband into
bankruptcy.
Since then, the legal company acting as the bankruptcy trustee
has been trying to get funds for creditors from the Tans' assets,
including a number of heavily mortgaged properties.
So far, the couple's former home at 955 Greenwood Dr. in West
Vancouver has been sold, Christopher Ramsay, a lawyer with Boale,
Wood and Company Ltd., confirmed. The trustee is also going
after a house at 410 29th St. in North Vancouver, which the
couple still own, Ramsay said.
The most recent legal case takes aim at six properties owned by
the couple's son, alleging that Marcus Tan either bought the
homes using money his parents received from their investors or
made mortgage payments on the properties with those funds.
The lawsuit alleges that when Marcus Tan received the money from
his parents, the Tans were on the brink of bankruptcy.
The transfers were made to avoid the Tans having to pay that
money to their creditors, the lawsuit alleges.
The trustee has also filed a certificate warning potential
property buyers of the pending legal case.
As part of the settlement agreement with the B.C. Securities
Commission, Virginia Tan has been permanently banned from dealing
in securities or promoting any activities connected to the stock
market. She also agreed to pay $3 million to the securities
commission but that penalty remains unpaid.
Jastram Properties Ltd., a North Vancouver company, also launched
a class action lawsuit in B.C. Supreme Court accusing HSBC bank,
which handled Ms. Tan's banking, for failing to investigate signs
of fraud, including depositing and withdrawing $1 million per
month from the accounts. [GN]
ILLINOIS: Ordered to Provide Mental Health Care to Prisoners
------------------------------------------------------------
According to an article posted by Rich Miller at Capitol Fax.com,
U.S. District Court Judge Michael M. Mihm issued an opinion on
May 25 in the class action case Rasho v. Baldwin ordering the
Illinois Department of Corrections to provide mental health
treatment to prisoners who are on "crisis watches" and in
segregation, as well as to provide medication management, mental
health evaluations and necessary mental health staff throughout
the system.
The judge ruled that IDOC's failure to provide mental health care
constitutes cruel and unusual punishment, in violation of the
U.S. Constitution, as well as violates the settlement agreement
that the department entered.
In a 42-page decision, Judge Mihm found that IDOC's deliberate
indifference to mentally ill prisoners is causing "irreparable
harm" that requires the court to issue injunctive relief. The
court decision states that the constraints faced by IDOC "are
dwarfed by the immense harm to the inmates."
"These are mentally ill individuals, who themselves are left, in
a very real way, at the mercy of the IDOC to provide them with
the constitutionally minimal level of health care. And this is
simply not being done, and based on the record presented, will
not be done unless there is a preliminary injunction issued by
this Court."
This order comes almost two years to the day after a settlement
agreement was reached by IDOC and lawyers representing the more-
than 12,000 prisoners with mental illness in Illinois. The
original class action challenge to the treatment of prisoners
with mental illness was filed in 2007.
The testimony during the hearing shows deficiencies in medical
treatment in segregation have created an extremely dangerous
situation. The length of time, sometimes staggering, that
inmates are put in segregation, without properly addressing their
mental health medical needs, furthers the mental decomposition of
the inmate. [GN]
ILLINOIS: DOC May Appeal Ruling in Inmate Mental Health Care Case
-----------------------------------------------------------------
The Associated Press reports that a spokeswoman for the Illinois
Department of Corrections says the agency will consider appealing
a federal judge's ruling that mentally ill inmates in segregated
cells get treatment and medication.
IDOC spokeswoman Lindsey Hess reacted on May 28 to a ruling by
U.S. District Judge Michael Mihm that the lack of treatment for
12,000 mentally ill inmates is unconstitutional "cruel and
unusual punishment." His ruling came on May 25.
Ms. Hess says a court-appointed monitor found "many significant
improvements" to the prison system's mental health program. The
monitor reviewed the system last year for compliance with a 2016
settlement on a class-action lawsuit. She says the court also
recognized that IDOC met settlement compliance with opening of a
Joliet treatment center and building a residential treatment unit
at the Dixon prison.
A federal judge has ordered the Illinois Department of
Corrections to provide mental health to inmates on "crisis
watches" in segregated cells.
U.S. District Court Judge Michael Mihm issued the order dated
May 25. He says thousands of seriously mentally ill inmates are
suffering "irreparable harm" by serving time in segregation for
behavior problems often linked to their mental illness.
Judge Mihm says the inmates are left "at the mercy of the IDOC to
provide them with the constitutionally minimal level of health
care" which is "simply not being done."
A Corrections spokeswoman did not immediately respond on May 28
to a request for comment.
IDOC and lawyers representing 12,000 mentally ill inmates settled
a lawsuit in 2016. A court-appointed monitor last year declared
IDOC's psychiatric care as "grossly insufficient" and "oftentimes
dangerous." [GN]
INFORMATION RESOURCES: Bakhtiar Seeks to Certify FLSA Class
-----------------------------------------------------------
In the lawsuit entitled IRAM BAKHTIAR, individually, and on
behalf of all others similarly situated, the Plaintiffs, v.
INFORMATION RESOURCES, INC., and DOES 1 through 50, inclusive,
the Defendants, Case No. 3:17-cv-04559-JST (N.D. Cal.), the
Plaintiff will ask the Court for an order on July 19, 2018:
1. conditionally certify this action to Collective Class
pursuant to the Fair Labor Standards Act, for purposes of
notice and discovery;
2. directing that the Notice of Collective Action and Consent
Form be sent to all putative collective class members;
3. approving the form, content, and method of transmission of
Plaintiffs' proposed Notice of Collective Action and
Consent Form;
4. directing Defendants to supplement the Class List with
contact information in Excel (.xls) format, for each
putative collective class member within 10 days of the
filing of the Order resolving this Motion, including last-
known home address, last-known personal email address, and
last-known personal cell phone; and
5. authorizing 60-day opt-in period for putative collective
action members to seek to opt into the case.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=qvqEcfR3
Attorneys for Plaintiffs and the Putative Class:
Bryan Schwartz, Esq.
Logan Starr, Esq.
BRYAN SCHWARTZ LAW
1330 Broadway, Suite 1630
Oakland, CA 94612
Telephone (510) 444 9300
Facsimile (510) 444 9301
E-mail: bryan@bryanschwartzlaw.com
logan@bryanschwartzlaw.com
INPUT CAPITAL: Appeals Ruling in Lawsuit Over Farmers' Contracts
----------------------------------------------------------------
Geoff Leo, writing for CBC News, reports that Regina-based Input
Capital is asking the Court of Appeal to overturn a verdict
issued earlier in May that said the company's contracts with a
Macoun-area farmer are "unconscionable" and "must be set aside."
In 2014 and 2015, Terry Gustafson entered into a series of
agreements with Input, which bills itself as a "low cost source
of capital for farmers." It paid him cash up front for a portion
of his future canola crop.
Justice Jeff Kalmakoff found that the contracts were "heavily
one-sided" where the risk was almost entirely borne by the farmer
while Input took very little risk. He concluded that, because of
that fundamental unfairness, "the entire contractual relationship
between Mr. Gustafson and ICC is substantially unfair and cannot
be permitted to stand.
In its appeal, filed on May 28, Input said in arriving at his
conclusion, the judge made a series of errors which led him to a
faulty conclusion.
Justice Kalmakoff used a three part test to determine the
contracts should be set aside.
Input argued that he made mistakes "in fact and in law" on each
point.
"The learned judge erred in fact and law in holding that the
cumulative effect of the agreements is substantially unfair,"
says the Notice of Appeal.
Input facing class action lawsuit
This case is being watched with great interest by a group of
farmers who launched a class action against Input earlier in May,
alleging the company has engaged in "predatory lending." The
class members are calling on the court to declare Input's
contracts illegal.
Their lawyer, Tony Merchant, said the ruling in the Gustafson
case "may mean the end of Input."
In a text message to CBC, he said the ruling "means every farmer
in the clutches of Input can get free and most can get back a lot
of money."
Justice Kalmakoff's ruling wasn't entirely in Mr. Gustafson's
favour. It found Input had given him $4.4 million in upfront
payments while failing to deliver canola in repayment.
The judge said Mr. Gustafson has to pay that money back.
Input is asking the Court of Appeal to allow the company to seize
money from one of Mr. Gustafson's bank accounts. [GN]
INTEL CORP: EEOC May Initiate Age Discrimination Class Action
-------------------------------------------------------------
Vlad Savov, writing for The Verge, reports that Intel, one of the
grand old statesmen of the tech world, is under investigation for
potential age discrimination in its approach to layoffs initiated
in 2016, according to a new Wall Street Journal report. At the
heart of the matter is the perception and allegation that Intel
sought to get rid of older employees and retain younger ones
instead. That benefits the company, as older workers tend to be
better paid, more aware and assertive of their rights, and more
likely to have families and make use of company benefits -- but
it's illegal, not to mention highly unethical.
Two years ago, when announcing its layoffs and restructuring,
Intel indicated that it would be a process that stretches into
2017 and would involve a mix of voluntary and involuntary
redundancies. The WSJ reports that "dozens of former employees
sought legal advice on whether they could sue" and some of them
lodged complaints with the US Equal Employment Opportunity
Commission (EEOC), whose documentation of the Journal has seen.
For its part, Intel maintains that "factors such as age, race,
national origin, gender, immigration status, or other personal
demographics were not part of the process when we made those
decisions." And yet, the WSJ's review of Intel's own internal
documents reveals that in one set of 2,300 layoffs, the median
age was 49 years old, seven years older than the median age of
the remaining staff.
It is now up to the EEOC to make a determination on the merits of
the complaints that it has received. If the federal watchdog
finds sufficient grounds to pursue the matter further, it can
initiate a class-action lawsuit against Intel.
Intel's age discrimination case is becoming public only a couple
of months after the publication of an exhaustive report into
allegedly widespread age discrimination within IBM. It's ironic
for companies like Intel and IBM, who are themselves among the
oldest in the still-young computer industry, to be treating their
more senior employees in this fashion. Then again, it's also
logical that age discrimination would manifest itself most
strongly at companies that have operated for many decades and
have a staff of employees that have aged along with their
employer. [GN]
INVITATION HOMES: Faces Class Action Over Illegal Late Fees
-----------------------------------------------------------
Jeff Andrews and Patrick Sisson, writing for Curbed, report that
single-family rental giant Invitation Homes was hit with a
potential class-action lawsuit in California on May 25 over what
the plaintiffs claim are excessive and illegal late fees charged
to tenants who fall behind on rent.
According to the lawsuit, Invitation Homes charges a late fee of
$95, even in cases when rent is only an hour late. In addition
to those late fees, the lawsuit alleges that Invitation Homes
stacks additional late fees of $95 or more on any accrued balance
of late fees, even if the tenant paid their most recent rent on
time.
An Invitation spokesperson contacted by Curbed declined to
comment on the pending litigation.
While the suit was filed in California, it claims that Invitation
Homes's late fees violate the law in each of the 12 states in
which the company does business.
"The penalty is illegal, and thus, void, because it is excessive
and bears no relation to any actual damages incurred by
[Invitation Homes] when rent or other fees are paid late," the
lawsuit reads. "Some people have been evicted purely as a result
of this late rent penalty, and in particular, this penalty
stacking practice."
The suit claims in some cases, Invitation Homes doesn't incur any
actual damage, due to the fact that a slightly late payment
doesn't cause the company financial harm.
Jose Rivera, the plaintiff in the case, paid $2,699 per month in
rent at one point, according to the lawsuit. According to the
complaint, a $95 late payment would represent a 642 percent
annual interest rate on Rivera's rent payment, which the suit
uses to paint late fees charged by Invitation Homes as "fee-
gouging."
With 82,570 single-family units across the country, Invitation
Homes is the largest single-family rental company. The rise of
corporate single-family landlords came after the 2008 financial
crisis, as private equity firms and institutional investors
bought single-family homes in bulk out of foreclosure in the
years following the housing bust.
These single-family rental home companies have amassed north of
200,000 homes, but they remain a small slice of the 14 million
single-family rental units in the United State. The bulk of
single-family rental owners remain "mom and pop" operations.
Invitation Homes specifically was privately owned by private
equity giant Blackstone prior to going public in 2017. American
Homes 4 Rent, the second largest single-family rental company
with 51,840 homes, has also gone public. Plaintiffs in the
lawsuit cite investor demand as providing undue influence on the
business practices of the companies.
"The residential rental industry has recently undergone a massive
transformation and consolidation out of the hands of small and
family landlord business . . . and into the large arms of private
equity, hedge fund, and other Wall Street giants whose
allegiances run solely to their investors, and whose motivations
are driven purely by stock price and by showing and growing those
all-important quarterly earnings," the suit reads. [GN]
IPC INC: Physicians Healthsource Seeks to Certify Class
-------------------------------------------------------
In the lawsuit styled PHYSICIANS HEALTHSOURCE INC., individually,
and as the representatives of a class of similarly-situated
persons, the Plaintiffs, v. IPC, INC d/b/a PLATINUMCODE, and JOHN
DOES 1-10, the Defendants, Case No. 1:16-cv-00301-MRB (S.D.
Ohio), the Plaintiff asks the Court for an order:
1. certifying a class of:
"all persons/entities who successfully received the IPC
Fax";
2. appointing Physicians Healthsource as representative and
Montgomery, Rennie & Jonson as counsel for this class.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=RtTZ2V1a
Counsel for Physicians Healthsource, Inc.:
Matthew E. Stubbs, Esq.
George D. Jonson, Esq.
MONTGOMERY, RENNIE & JONSON
36 East Seventh Street, Suite 2100
Cincinnati, OH 45202
Telephone: (513) 241 4722
Facsimile: (513) 241 8775
E-mail: gjonson@mrjlaw.com
mstubbs@mrjlaw.com
- and -
Brian J. Wanca, Esq.
Ross Good, Esq.
Ryan Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 760
Rolling Meadows, IL 60008
Telephone: (847) 368 1500
Facsimile: (847) 368-1501
E-mail: bwanca@andersonwanca.com
rgood@andersonwanca.com
rkelly@andersonwanca.com
JACKSON NATIONAL: Smithson Moved to Western District of Michigan
----------------------------------------------------------------
The class action lawsuit titled Roy H. Smithson, Individually and
on Behalf of All Others Similarly Situated, the Plaintiff, v.
Jackson National Life Insurance Company, a Michigan Corporation,
the Defendant, Case No. 2:17-cv-07485, was transferred from the
the U.S. District Court for Central District of California, to
the U.S. District Court for the Western District of Michigan on
May 30, 2018. The District Court Clerk assigned Case No. 1:18-
cv-00599-PLM-RSK to the proceeding. The case is assigned to the
Hon. Judge Paul L. Maloney.
Jackson National Life Insurance Company is a U.S. company that
offers annuities for retail investors and fixed income products
for institutional investors. [BN]
The Plaintiff is represented by:
Daniel C. Girard, Esq.
Angelica M Ornelas, Esq.
Elizabeth A Kramer, Esq.
GIRARD GIBBS LLP
601 California Street Suite 1400
San Francisco, CA 94108
Telephone: (415) 981 4800
Facsimile: (415) 981 4846
- and -
Bradley T Wilders, Esq.
Ethan M Lange, Esq.
Norman E Siegel, Esq.
Patrick J Stueve, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road Suite 200
Kansas City, MO 64112
Telephone: (816) 714 7100
Facsimile: (816) 714 7101
- and -
Jeff S Westerman, Esq.
Kenneth A Remson, Esq.
WESTERMAN LAW CORP
1875 Century Park East Suite 2200
Los Angeles, CA 90067
Telephone: (310) 698 7880
Facsimile: (310) 775 9777
- and -
John J Schirger, Esq.
Joseph M Feierabend, Esq.
Matthew W Lytle, Esq.
MILLER SCHIRGER LLC
4520 Main Street Suite 1570
Kansas City, MO 64111
Telephone: (816) 561 6500
Facsimile: (816) 561 6501
Attorneys for Defendant:
Shaunda Patterson-Strachan, Esq.
Waldemar J Pflepsen, Jr., Esq.
Mark A Neubauer, Esq.
CARLTON FIELDS JORDEN BURT PA
1025 Thomas Jefferson Street NW Suite 400 West
Washington, DC 20007
Telephone: (202) 965 8100
Facsimile: (202) 965 8104
JAGUARS CLUB: Faces Class Action Over Federal Wage Violations
-------------------------------------------------------------
Everything Lubbock reports that on May 25, two women sued the
parent company of Jaguars in Lubbock for allegations of federal
wage violations.
According to the lawsuit, "Jaguars is recorded in Texas as an
'Assumed Name' owned by JAI and is a restaurant and bar that
provides adult entertainment to its patrons."
The women, whose stage names are Kyoiee and Athena, claim Jaguars
violated federal wage law "by unlawfully designating their exotic
dancers as independent contractors." They claim they were denied
their right to federal minimum wage and overtime pay.
Kyoiee and Athena are the first two plaintiffs, but they are
seeking class-action status.
The lawsuit said, "[Kyoiee and Athena] presently believe and
allege that the class includes in excess of fifty (50) separate
individuals who have, since May 25, 2015, worked for . . .
Jaguars Club located at 12913 Highway 87, Lubbock . . ."
The lawsuit said Jaguars paid no compensation for the hours
worked.
"[Kyoiee, Athena] and others similarly situated only receive
compensation for the work they perform directly from the
customers in the form of tips," the lawsuit said.
It also said Kyoiee and Athena were required to pay Jaguars a
daily fee for getting on stage and also required to pay a fee for
skipping a rotation on stage.
It said they were also required to tip a DJ, bartender and the
"house mom" daily. [GN]
JIM FISCHER: Court Certifies Class of Hourly Employees
------------------------------------------------------
In the lawsuit captioned JOSHUA LAUGHLIN, et al., the Plaintiffs,
v. JIM FISCHER, INC., the Defendant, Case No. 1:16-cv-01342-WCG
(E.D. Wisc.), the Hon. Judge William C. Griesbach entered an
order on June 4, 2018:
1. granting Plaintiffs' motion for class certification of:
"all hourly employees of Jim Fischer, Inc., who performed
work for Jim Fischer, Inc., on a jobsite on or after
October 6, 2014, excluding owners";
2. appointing Plaintiffs' counsel as class counsel; and
3. denying Defendant's motion to decertify FLSA collective
class.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=6GaqQvAc
JOSEPH MOLINARO: Neonatal Dismissed from "Rodriguez-Ocasio" Suit
----------------------------------------------------------------
Judge Susan D. Wigenton of the U.S. District Court for the
District of New Jersey granted Neonatal Associates, LLC's Motion
to Dismiss the case, LUIS A. RODRIGUEZ-OCASIO and JOYCE R. LINIS-
MOREL, on behalf of themselves and those similarly situated,
Plaintiffs, v. LAW OFFICES OF JOSEPH MOLINARO, L.L.C., JOSEPH A.
MOLINARO, NEONATAL ASSOCIATES, LLC, and JOHN DOES 1-10,
Defendants, Case No. 17-11926 (SDW) (SCM) (D. N.J.).
The Plaintiffs instituted the suit in response to a separate
debt-collection action that Defendants Neonatal, the Molinaro
Firm, and Molinaro filed against the Plaintiffs in state court.
The Plaintiffs are former patients of Neonatal, a medical
practice group with an office in Paterson, New Jersey.
Neonatal assigned, placed, or transferred the Plaintiffs'
allegedly past-due account to the Molinaro Firm, a collection law
firm, and its principal attorney and managing member, Molinaro.
The Plaintiffs allege that in an attempt to collect the debt, the
Defendants filed a "Certification of Proof and Nonmilitary
Service" in the debt-collection action that contained highly
confidential and legally protected health information, and
intentionally disclosed private facts about the Plaintiffs and
their minor child to the general public. In particular, the
Certification included a statement of services from Neonatal that
contained the full account number, the Plaintiffs' minor's name,
dates of services, medical and/or insurance codes, and a
description of medical services.
On Oct. 3, 2017, the Plaintiffs filed a putative class action
against the Defendants in the Superior Court of New Jersey, Law
Division, Bergen County. Their six-count Complaint alleges:
breach of doctor-patient privilege, as against Neonatal (Count
One); violation of the Consumer Fraud Act, as against Neonatal
(Count Two); breach of a duty of care, as against Neonatal (Count
Three); violation of the Fair Debt Collection Practices Act, as
against the Debt-Collector Defendants (Count Four); invasion of
privacy (Count Five); and malicious use or abuse of process
(Count Six).
The Debt-Collector Defendants removed the suit to the Court on
Nov. 21, 2017. On Dec. 12, 2017, Neonatal filed the instant
Motion to Dismiss the Complaint. On Feb. 2, 2018, the Plaintiffs
filed a Notice of Dismissal as to Counts Two and Six, as well as
their opposition to the motion. Neonatal replied on Feb. 16,
2018.
As an initial matter, among the Plaintiffs' remaining causes of
action, only Counts One, Three, and Five contain allegations
against Neonatal.
Judge Wigenton finds that the Complaint alleges that Neonatal
authorized the Debt-Collector Defendants to act as its agents,
and that it voluntarily gave the Plaintiffs' highly confidential
and legally protected health information to the Debt Collector
Defendants in connection with their attempt to collect a debt.
Because a patient's right against disclosure is not absolute, to
maintain a claim for breach of doctor-patient confidentiality,
the Plaintiff must allege that Neonatal did more than send their
past-due account to a debt collector for payment. As such, she
granted Neonatal's Motion to Dismiss as to Count One.
In their Complaint, the Plaintiffs allege that they were
Neonatal's patients, Neonatal owed them a duty of care, and
Neonatal breached that duty of care. However, the Judge finds
that Rule 8 requires more than a recitation of the elements of a
cause of action. Because the Complaint does not specify the duty
of care that was allegedly breached, she says the Plaintiffs have
not sufficiently pled a claim for negligence. Therefore, she
granted Neonatal's Motion to Dismiss as to Count Three.
Finally, in the instant matter, the Plaintiffs allege that the
Defendants invaded their right to privacy and subjected them to
abuse, harassment, intimidation, and humiliation by publicly
disclosing their confidential and legally protected health
information. They further allege that the Defendants disclosed
the information in an attempt to gain unfair leverage over them.
However, the Judge finds that the facts contained in the
Complaint do not suggest that the information disclosed in the
Certification would be offensive and objectionable to a
reasonable man of ordinary sensibilities. Because the
Plaintiffs' claim for invasion of privacy has not been
sufficiently pled, she also granted Neonatal's Motion to Dismiss
as to Count Five.
For the reasons set forth, Judge Wigenton granted the Motion to
Dismiss, solely as to Neonatal. The Plaintiffs will have 30 days
to file an Amended Complaint. An appropriate Order follows.
A full-text copy of the Court's April 13, 2018 Opinion is
available at https://is.gd/Kglcjg from Leagle.com.
LUIS A RODRIGUEZ-OCASIO & JOYCE R LINIS-MOREL, on behalf of
themselves and those similarly situated, Plaintiffs, represented
by ANDREW T. THOMASSON, Stern Thomasson LLP, PHILIP D. STERN,
STERN THOMASSON LLP & YONGMOON KIM -- jhk@thekimlawfirm.com --
Kim Law Firm LLC.
LAW OFFICES OF JOSEPH MOLINARO, L.L.C. & JOSEPH A MOLINARO,
Defendants, represented by MEREDITH KAPLAN STOMA --
mstoma@morganlawfirm.com -- MORGAN MELHUISH ABRUTYN.
JRC VENTURES: Court Denied Class Certification in "Smith" Suit
--------------------------------------------------------------
In the lawsuit captioned MERRIE SMITH, individually and on behalf
of others similarly situated, JESSICA BROOKE RUSSELL,
individually and on behalf of others similarly situated, the
Plaintiff, v. JRC VENTURES, INC.; JACQUE R. COLLETT; and 24-7
BRIGHT STAR HEALTHCARE, LLC; BRIGHTSTAR GROUP HOLDINGS, INC.,
BRIGHTSTAR FRANCHISING, LLC; GRUBB & ASSOCIATES, INC.; and JOSEPH
GRUBB, Defendant, Case No. 1:16-cv-00499-CHS (E.D. Tenn.), the
Hon. Judge Christopher H. Steger entered an order:
1. denying Plaintiffs' motion for conditional class
certification without prejudice to refile;
2. directing Parties to have until September 28, 2018, in
which to conduct discovery related to the issue of
conditional certification of a collective action and, more
specifically, whether the Brightstar corporate entities are
joint employers with JRC Ventures Inc. and Grubb &
Associates Inc.;
3. directing Plaintiffs to have until October 26, 2018, in
which to refile their motion for conditional certification
of a collective action; and
4. granting Plaintiffs' motion for equitable tolling.
The statute of limitations for putative Plaintiffs' FLSA claims
shall be tolled: (a) from April 10, 2018, to a date thirty days
(30) after this Court rules upon Plaintiffs' refiled motion for
conditional certification of a collective action; or,
alternatively, until (b) the Court enters an Order notifying
counsel for the parties that such tolling is ending.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=4nj6SnCO
KENYA POWER: Faces Probe Over Massive Theft Amid Class Action
-------------------------------------------------------------
Jacqueline Kubania, writing for Daily Nation, reports that the
Director of Public Prosecutions Noordin Haji has ordered speedy
investigations into Kenya Power following an internal audit that
revealed massive theft through irregular awarding of contracts.
In a letter seen by the Nation, Mr Haji has given the Inspector
General of Police Joseph Boinnet 21 days to conclude
investigations in order to allow the prosecutor to take the case
to court.
The audit into the company revealed that unscrupulous employees
colluded to award contracts worth billions of shillings to
unregistered companies. Many of the tenders were for repair of
KP infrastructure.
PROXIES
By May 25, Kenya Power boss Ken Tarus had fired 23 employees
linked to companies that had been pre-qualified for the awarding
of tenders to circumvent the proper tendering process. Many of
these companies were found to be owned or associated with KP
employees who set them up as proxies, therefore essentially
awarding the contracts to themselves.
The scandal comes hot on the heels of a public relations
nightmare, where Kenya Power has had to defend itself against
allegations of fleecing customers through inflated power bills.
A class action suit against KP has been filed by former Law
Society of Kenya Chairman Apollo Mboya.
COLLUDED
Separately, the DPP has also asked the Ethics and Anti-Corruption
Commission to provide an update of the investigation into yet
another procurement scandal at the National Cereals and Produce
Board, where Sh1.9 billion was allegedly lost. "Due to the
nature, gravity and complexity of the matter, I propose that the
said investigations be undertaken by a multi-agency team of
investigators comprising officers from the commission,
Directorate of Criminal Investigations, Kenya Revenue Authority
and Asset Recovery Agency," said Mr Haji.
Agriculture PS Richard Lesiyampe on May 24 denied the involvement
of politicians and State officials in the scandal, and told the
National Assembly's Public Accounts Committee that 18 traders are
to blame, having colluded with brokers to block legitimate
farmers from selling their maize to NCPB. [GN]
KOVITZ SHIFRIN: Motion to Certify Class Taken under Advisement
--------------------------------------------------------------
In the lawsuit captioned Wendy Chacon, the Plaintiff, v. Kovitz
Shifrin Nesbit, A Professional Corporation, the Defendant, Case
No. 1:17-cv-02766 (N.D. Ill.), the Hon. Judge Robert M. Dow Jr.
entered an order taking a motion to certify class and motion for
summary judgment under advisement, according to the docket entry
made by the Clerk on May 31, 2018.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=QGXUeNe9
KROENKE ARENA: Settlement in "Kurlander" Has Final Approval
-----------------------------------------------------------
In the case, KIRSTIN KURLANDER, on behalf of herself and others
similarly situated, Plaintiff, v. KROENKE ARENA COMPANY, LLC,
Defendant, Civil Action No. 16-cv-02754-WYD-NYW (D. Colo.), Judge
Wiley Y. Daniel of the U.S. District Court for the District of
Colorado granted the Plaintiff's Unopposed Motion for Final
Approval of Class Action Settlement.
Kurlander, a deaf woman, brought the class action case to address
the lack of captioning at sporting events at the Pepsi Center,
which is owned and operated by Defendant KAC. She alleged that
KAC was in violation of Title III of the Americans with
Disabilities Act. KAC denied such liability.
On Aug. 31, 2017, the Court certified the class, pursuant to
Federal Rules of Civil Procedure 23(a) and 23(b)(2), of all Pepsi
Center patrons who are deaf or hard of hearing and unable to hear
using assistive listening devices, who have been, since Nov. 10,
2014, or in the future will be, denied full and equal enjoyment
of the goods, services, facilities, advantages, or accommodations
of the Pepsi Center based on Defendant's failure to provide open
captioning of aural content during non-concert events for which
the center-hung display is used.
The Court also appointed Kurlander as the class representative
and Amy Robertson of the Civil Rights Education and Enforcement
Center as the class counsel.
On Dec. 28, 2017, the parties reached a settlement in the matter,
memorialized in a proposed Consent Decree, which the Court
approved on a preliminary basis on Jan. 9, 2018.
Before the Court is the Plaintiff's Unopposed Motion for Final
Approval of Class Action Settlement filed on March 23, 2018. On
April 5, 2018, the Court held a hearing on the motion and the
Plaintiff's Unopposed Motion for Attorneys' Fees and Costs.
Because the settlement resulted from arm's-length negotiations
between an experienced counsel after significant discovery had
occurred, Judge Daniel holds that the settlement should be
presumed to be fair and adequate. Although it is not appropriate
at this stage of the litigation to evaluate the merits, he says
there are several potential issues that could significantly
impact the case if it were litigated. In addition, if this case
were to be fully litigated, it would likely be many years before
it would be resolved. Even if Plaintiff were to have prevailed,
Defendant could have appealed that result, and it could have been
many years before open captioning was provided at the Pepsi
Center.
Finally, the Judge finds that the Class Counsel -- an attorney
with extensive experience in class actions under Title III and
other civil rights statutes -- represents to the Court that she
believes the settlement is fair, reasonable, and adequate.
For the reasons set forth, Judge Daniel granted the Plaintiff's
Unopposed Motion for Final Approval of Class Action Settlement.
He ordered that the judgment is entered along with and in
accordance with the Consent Decree signed by the Court on April
12, 2018, which is incorporated in the Order by reference, and
the settlement reflected therein is given final approval.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/mbXaMX from Leagle.com.
Kirstin Kurlander, on behalf of herself and others similarly
situated, Plaintiff, represented by Amy Farr Robertson --
arobertson@creeclaw.org -- Civil Rights Education and Enforcement
Center.
Kroenke Arena Company, LLC, Defendant, Defendant, represented by
Laura J. Hazen -- lhazen@hklawllc.com -- H & K Law, LLC & Susan
Penniman Klopman -- sklopman@hklawllc.com -- H & K Law, LLC.
LANCASTER GENERAL: Faces Class Action Over Bogus Claims
-------------------------------------------------------
Wendy Solomon, writing for LVB.com, reports that St. Luke's
University Health Network, based in Fountain Hill, filed a class
action suit against Lancaster General Hospital alleging the
hospital submitted bogus claims to get $9 million from a tobacco
settlement fund set up by the state, which lowered reimbursements
to other hospitals -- including those in the St. Luke's system.
The complaint was filed May 23 in U.S. District Court for the
Eastern District of Pennsylvania.
Pennsylvania was among 46 states to receive money from The
Tobacco Settlement Act of 2001, and it established a program to
provide funding to hospitals that serve uninsured and low-income
residents.
The complaint alleges that from 2008 to 2012 Lancaster General
Hospital, Lancaster General Health and the University of
Pennsylvania Health System "established a scheme to dupe
Pennsylvania officials into misdirecting millions of dollars from
a pot of money that is supposed to help hospitals across the
commonwealth cover the cost of charity medical care they provide
to some of the commonwealth's sickest uninsured citizens."
The complaint said Lancaster General "submitted hundreds of
inaccurate and overstated claims" to the state's Extraordinary
Expense program.
The complaint cites a Pennsylvania auditor general's report that
found from 2010 to 2017, about 75 percent of all claims that
Lancaster General submitted to the EE program were invalid.
Lancaster General became part of the University of Pennsylvania
Health System in 2015.
St. Luke's said it lost out on more than $580,000 because of
Lancaster General's allocation from the fund, according to the
complaint.
Lancaster General and St. Luke's did not immediately respond to a
request for comment. [GN]
LIVE NATION: Faces Investor Class Action in New York
----------------------------------------------------
Pia Talwar, writing for Digital Music News, reports that on
May 23, Live Nation was hit with a putative class action by an
investor, Shiva Stein, in New York federal court. Now, that case
has been abruptly withdrawn -- with a foul odor left behind.
The investor initially claimed that the live concert giant
falsely inflated its 2017 adjusted operating income to trigger
$10.8 million in bonuses and stock awards to its top brass.
Turns out those calculations were technically wrong -- though
maybe Stein was trying to make a point.
Live Nation stated, "We are pleased that the Plaintiff withdrew
her frivolous lawsuit against Live Nation. The Plaintiff and her
attorneys wrongfully accused Live Nation of not meeting
performance targets tied to executive compensation when in point
of face, Live Nation is fully transparent on our pay practices,
and payment of executive bonuses was fully in line with those
practices which are clearly laid out in our 10-K and Proxy."
Stein originally claimed that Live Nation's 2018 proxy statement
reports a misleading adjusted operating income that is $5 million
short of what is required to trigger millions of dollars' worth
of bonuses and incentives for five of the company's executives.
Live Nation's 2017 Form-10 K notes that the company's AOI was
$625 million, which is less than 90 percent of the goal that the
company needed to reach to trigger the bonuses.
The suit also named Independent Directors Robert Ted Enloe II and
Mark S. Shapiro, both members of Live Nation's Compensation
Committee, as defendants.
"This is a frivolous lawsuit," the company told Billboard. "We
are fully transparent on our pay practices, and payment of the
bonuses was fully in line with those practices which are clearly
laid out in our 10-K and Proxy."
Live Nation representatives stated that the suit neglected to
factor in the how AOI is calculated for bonuses, and noted that
page 34 of the company's proxy statement explains that
calculations for "AOI for bonus is on a pro forma, consistent-
currency basis, adjusted for legal settlements." [GN]
LOUISIANA: Summary Judgment in Felons' Voting Rights Suit Upheld
----------------------------------------------------------------
In the case, VOICE OF THE EX-OFFENDER, KENNETH JOHNSON, BRUCE
REILLY, DWIGHT ANDERSON, RANDY TUCKER, BILL VO, HUY TRAN, CHECO
YANCY, ASHANTI WITHERSPOON, AND OTHERS SIMILARLY SITUATED, v.
STATE OF LOUISIANA; JOHN BEL EDWARDS, GOVERNOR OF LOUISIANA; AND
TOM SCHEDLER, SECRETARY OF STATE OF LOUISIANA, Case No. 2017 CA
1141 (La. App.), Judge Toni Higginbotham of the Court of Appeal
of Louisiana for the First Circuit affirmed the trial court's
judgment denying the Plaintiffs' cross-motion for summary
judgment motion, granting Secretary Schedler's motion for summary
judgment, and expressly dismissing the Plaintiffs' claims with
prejudice.
The appeal involves a constitutional challenge relating to
implementing statutes that restrict the voting rights of
convicted felons in Louisiana.
The pertinent constitutional provision at issue is found in
Article 1, Section 10(A) of the 1974 Louisiana Constitution,
providing that every citizen of the state, upon reaching eighteen
years of age, shall have the right to register and vote, except
that the right may be suspended while a person is interdicted and
judicially declared mentally incompetent or is under an order of
imprisonment for conviction of a felony.
The text of Section 10(A) was adopted by the Louisiana
Constitutional Convention on Sept. 8, 1973, ratified by the
people of will in an election held on April 20, 1974, and
became effective on Jan. 1, 1975. When the 1974 Constitution was
adopted, the former provisions of the 1921 Constitution, that had
permanently deprived persons of the right to vote upon the
conviction of a felony, were repealed. During the next few
years, the Louisiana Legislature enacted an Election Code as
authorized by La. Const. art. 11, sec. 1, to provide for the
permanent registration of voters and the conduct of elections.
It is the implementation of La. R.S. 18:102(A)(1) and La. R.S.
18:2(8) that is being challenged in the case, as an
unconstitutional infringement on the right to vote that is
guaranteed by La. Const. art. 1, sec. 10(A). The constitutional
challenge was brought by the Plaintiffs, a Louisiana-based
nonprofit advocacy group known as the Voice of the Ex-Offender
("VOTE"), along with formerly incarcerated felons, Kenneth
Johnson, Bruce Reilly, Dwight Anderson, Randy Tucker, Bill Vo,
Huy Tran, Checo Yancy, and Ashanti Witherspoon.
On July 1, 2016, the Plaintiffs filed a class action petition for
declaratory judgment and injunctive relief against defendants,
the State of Louisiana, Gov. Edwards, and the Louisiana Secretary
of State, Schedler, who is Louisiana's chief elections officer.
The State of Louisiana and Gov. Edwards were dismissed as the
Defendants after filing various exceptions, leaving Secretary
Schedler, in his official capacity, as the sole Defendant.
The petition alleged that the individual Plaintiffs are all
convicted felons on probation or parole, and that their
fundamental right to vote, guaranteed by La. Const. art. 1, Sec.
10(A), was being violated, in that they could not vote even
though they were no longer actually imprisoned. The Plaintiffs
also claimed that thousands of Louisiana citizens in similar
circumstances are being illegally disenfranchised by the
unconstitutional restrictions contained in Louisiana's
implementing statutes, La. R.S. 18:2(8) and La. R.S.
18:102(A)(1). Thus, in addition to declaratory and injunctive
relief, the Plaintiffs' petition requested that the trial court
certify a class of similarly situated convicted felons.
On Sept. 29, 2016, Secretary Schedler filed a motion for summary
judgment, relying on the transcripts of the 1973 Constitutional
Convention for support of the fact that the definition of the
phrase under an order of imprisonment for conviction of a felony,
as it is used in La. Const. art. 1, sec. 10(A), was intended to
include persons on probation and parole, and therefore, the
implementing statutes did not unconstitutionally restrict the
voting rights of convicted felons. On the same day, the
Plaintiffs also filed a motion for class certification. The
trial court dealt with the class certification issue first and,
after a hearing, the trial court signed a judgment denying class
certification on Nov. 15, 2016. No appeal was taken from that
interlocutory judgment.
On Jan. 13, 2017, the Plaintiffs filed a cross-motion for summary
judgment and submitted an affidavit by the founder of VOTE in
support of their motion, seeking a declaration claiming that they
are being unconstitutionally disenfranchised of their fundamental
right to vote. A hearing on the cross-motions for summary
judgment was held on March 13, 2017.
In an amended judgment signed by the trial court on Aug. 23,
2017, the trial court denied the Plaintiffs' motion, granted
Secretary Schedler's motion, and expressly dismissed the
Plaintiffs' claims with prejudice, ruling that under an order of
imprisonment is always there for convicted felons on probation or
parole and the plain language of the constitution and the
implementing statutes prohibits the Plaintiffs from voting.
The plaintiffs appealed, urging three assignments of error that:
(1) the trial court erred in failing to discern the plain meaning
of La. Const. art. 1, sec. 10(A) and harmonizing that provision
with La. Const. art. 1, sec. 20; (2) the trial court erred in
failing to find that La. R.S. 18:2(8) and La. R.S. 18:102(A)(1)
are unconstitutional because they fail the strict scrutiny test
and unconstitutionally infringe on the fundamental right to vote;
and (3) the trial court erred in failing to certify the class or
hear evidence in support of class certification.
In addition to the parties' briefs, several motions for leave to
file amicus curiae briefs were filed in the Court. The Court has
considered the amicus curiae briefs only to the extent that they
covered issues actually raised by the parties on appeal.
Judge Higginbotham finds that the Plaintiffs failed to meet their
heavy burden of proving that the implementing statutes are
unconstitutional. The plain and unambiguous language of La.
Const. art. 1, sec. 10(A) is clear that a convicted felon under
an order of imprisonment includes time spent on probation and
parole. The trial court was therefore correct to rule in favor
of Secretary Schedler and against the Plaintiffs on their cross-
motions for summary judgment. The Plaintiffs' understanding of
the constitutional phrase as meaning only physical imprisonment
would lead to absurd results, because it disregards that a person
can legally be under an order of imprisonment without being
physically in prison. For all these reasons, the Judge affirmed
the trial court's judgment. All costs of this appeal are
assessed to the Plaintiffs-Appellants.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/3DipYa from Leagle.com.
William P. Quigley -- quigley@loyno.edu -- Ronald Wilson --
cabral2@aol.com -- Anna Lellelid, Ilona Maria Prieto, New
Orleans, LA.
Denise Debra Lieberman -- denise@deniselieberman.com -- Donita
Judge, Jennifer Lai-Peterson, Andrew Hairston --
Andrew@andrewhairstonlaw.com -- Washington, DC, Attorneys for
Plaintiffs-Appellants, Voice of the Ex-Offender, et al.
Lani B. Durio -- ldurio@boyarmiller.com -- Merietta Spencer
Norton, Cecelia R. Cangelosi, Baton Rouge, LA, Attorneys for
Defendant-Appellee, Tom Schedler, in his official capacity as
Secretary of State.
LOWE'S: Requires Store Managers to Sign Arbitration Agreements
--------------------------------------------------------------
Dave Jamieson, writing for Huffington Post, reports that Lowe's
has a message for its store managers: Sign this or else.
Salaried managers and assistant managers at the big-box home
improvement retailer are being required to enter binding
arbitration agreements under the threat of losing their valuable
bonuses, according to a copy of the contract obtained by
HuffPost.
By signing the contract, managers agree they won't take Lowe's to
court with any claims or join in class-action lawsuits against
the company. Instead, any grievance they have must be taken
individually and in private to an arbitrator -- an arrangement
that could significantly cut back workers' legal claims of unpaid
work.
The contract, dated March of this year, makes clear that
declining to sign could come at a severe cost. "Your
participation in the 2018 Manager Bonus Program" hinges on the
signature, as well as "your continued employment at Lowe's," it
reads.
HuffPost does not know of any cases where a manager was fired for
refusing to sign the agreement. But internal emails reviewed by
HuffPost show a human resources officer instructing a manager to
submit the signed contract if the manager wants a bonus this
year.
Lowe's did not respond to questions about why the company
introduced the arbitration agreements and whether hourly
employees must sign them as well.
The bonuses for Lowe's store managers are based in part on store
performance and can be worth several thousand dollars apiece. As
at other U.S. retailers, the bonuses are a key piece of manager-
level compensation and one of the main reasons store managers put
up with the long hours and lack of overtime pay that are common
in the industry.
That helps explain why Lowe's would want managers to sign away
their right to join in a class-action lawsuit. Workers at Lowe's
and other retailers often claim their employers misclassify them
as managers to exempt them from the Fair Labor Standards Act,
thereby excluding them from minimum wage and overtime
protections. Many managers end up pursuing back wages in court.
Lowe's has been sued in the past for allegedly misclassifying
workers as managers so they could work well beyond 40 hours a
week without any additional pay. In 2014, the company agreed to
pay $9.5 million to a group of store human resources managers to
settle such claims.
"The bonus is why I work the 55-hour weeks," said one manager who
spoke on condition of anonymity for fear of being punished. The
manager said the arbitration agreement takes away the right to
sue while giving nothing new of value in return: "I gain nothing
with this."
According to the employer review site Glassdoor, salaries for
Lowe's assistant store managers range from $39,000 to $77,000,
with an average salary of $58,000 and an average bonus of
$10,000. Store managers have an average salary of $88,000 and an
average bonus of $30,000, according to the site. Those numbers
are based on figures submitted by current and former employees
and are not official.
If an assistant manager believed Lowe's had shorted her on pay,
she could still take the company to arbitration to settle the
dispute. But smaller claims from workers are often not worth a
lawyer's time unless they are bundled together in a larger
collective- or class-action lawsuit that lets the workers band
together. Many workers would also be afraid to individually take
their employer to arbitration for fear of being branded a
troublemaker.
The use of mandatory arbitration agreements has exploded in
recent years as employers try to stifle lawsuits from employees
and consumers. The Supreme Court gave the policy a big boost by
ruling 5-4 in Epic Systems v. Lewis that class-action waivers
included in employee arbitration contracts do not violate a
worker's right to mutual aid or protection. Worker advocates
expect the ruling to further spread the use of mandatory
arbitration.
Justice Ruth Bader Ginsburg wrote in her dissent that the
majority got the ruling "egregiously wrong."
"Employees' rights to band together to meet their employers'
superior strength would be worth precious little if employers
could condition employment on workers signing away those rights,"
she wrote.
Lowe's may well have instituted the arbitration agreements in
anticipation of the Epic Systems ruling under the employer-
friendly court. The decision was penned by Justice Neil Gorsuch,
whom Trump nominated to the court last year.
Although such arbitration agreements are described as voluntary,
the Lowe's contract shows how, in practice, the terms are really
dictated by the employer: "you and Lowe's agree that any
controversy between you and Lowe's arising out of your employment
or the termination of your employment shall be settled by binding
arbitration," the contract reads. It notes that the signatory
will have to pay a $150 filing fee if the employee wants to take
Lowe's to arbitration.
Such agreements are sometimes tucked into the onboarding
materials that employees must sign to start a new position. If a
worker does not sign it, she may not get the job. Many workers
don't understand what rights they are giving up by agreeing to
arbitration, if they bother to read the contract at all.
As HuffPost reported on May 27, the burrito chain Chipotle is
trying to exclude roughly 3,000 workers from a group of 10,000
who are suing under claims that managers forced them to work off
the clock. Due to the Supreme Court ruling, it's highly likely
that Chipotle will succeed in carving those workers out of the
lawsuit and forcing them individually into arbitration. [GN]
MACOVEN PHARMA: Medicine To Go Seeks to Certify Class Action
------------------------------------------------------------
In the lawsuit styled MEDICINE TO GO PHARMACIES, INC., on behalf
of plaintiff and the class members, the Plaintiff, v. MACOVEN
PHARMACEUTICALS, LLC, PERNIX THERAPEUTICS HOLDINGS, INC. and JOHN
DOES 1-10, Defendants/Third-Party Plaintiffs, and ODYSSEY
SERVICES, INC., Third-Party Defendant, Case No. 2:16-cv-07717-
CCC-MF (D.N.J.), the Plaintiff will move the Court on July 2,
2018, for an order certifying the case to proceed as a class
action pursuant to Fed. R. Civ. P. 23.
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=lEjCBqU6
Attorneys for Medicine to Go Pharmacies, Inc.:
Philip D. Stern, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone: (973) 379 7500
- and -
Andrew T. Thomasson, Esq.
Daniel A. Edelman, Esq.
Julie Clark, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
20 South Clark Street, Suite 1500
Chicago, IL 60603
Telephone: (312) 739 4200
MANTECA, CA: Implements Changes Under Homeless Case Settlement
--------------------------------------------------------------
Manteca/Ripon Bulletin reports that it's been nearly two years
since Manteca started actively engaging in trying to address
homeless issues that have plagued the community for years but
started to intensify in recent years as they have elsewhere in
California.
And to give credit to where credit is due, the most visible
outcome of that effort -- the community resource officers dealing
with the homeless that are finally the promised two officers
strong after the city struggled more than a year to fulfill the
City Council's directive -- is the result of the settlement of a
class action civil rights lawsuit brought against the city by the
homeless.
The city deserves credit for not only minimizing the financial
liability of taxpayers but for earnestly working with non-profits
that exist to help the homeless as well as finding ways to try
and minimize illegal acts committed by the homeless.
The use of CROs to nudge the homeless into seeking help as well
as working to reunite them with their families often a thousand
miles or more away is seen as a model effort by other cities
struggling with the same homeless issues. The CRO effort has also
led to passive enforcement efforts as witnessed by the liberation
of the library courtyard at night from being a sort of den of
inequity for illegal behavior by the homeless by the placement of
the wrought iron fencing.
That said all is not well. And to address issues with a concerted
effort should not require the "homed" in Manteca to file a class
action suit over their civil rights being violated to spur the
city into action.
No one is blaming the city for the homeless problem. But for them
to be overly sensitive to criticism is forgetting the fact they
signed on -- whether they were elected or hired and paid -- to
provide community leadership on problems such as dealing with the
homeless.
And with the next homeless summit looming June 21, there are at
least five things the city needs to seriously look at to improve
things for everybody and not just meet the minimum requirement of
a class action lawsuit settlement that from the perspective of
more than a few Manteca residents tipped the scales of justice
significantly in favor of the homeless engaged in criminal
activity.
Today, let's examine illegal panhandling.
Here's what the city needs to do: Amend the existing ordinance
panhandling ordinance to impose penalties for those who give
money to panhandlers in areas the city has deemed it is illegal
to do so as allowed under court rulings.
The city seems to be missing the point of this suggestion. No one
is asking the city to declare it illegal to panhandle per se.
It's a ridiculous comeback given such a law can't legally be
imposed.
What is being asked is for the city to fine people who give money
to the homeless in areas such as intersections where the city not
only has made it illegal to panhandle but has actually bothered
to place signs at a handful of such locations. Once in place,
have the police conduct sting operations much like crosswalk
sting operations. Word will get out after people are cited and
have to pay fines for illegally giving money to panhandlers in an
area that is clearly marked as off limits for such activity.
Given it takes two to tango, panhandlers won't waste much time
welcoming people home to Manteca at freeway off-ramps if the flow
of money dries up.
Keep in mind it would still be legal to panhandle on public
property and along public streets almost anywhere else in Manteca
as long as it's not in a threatening or aggressive manner. That
gives panhandlers more than 200 "lane miles" of streets to
legally panhandle.
The biggest reason for actually giving this section of the city
ordinance some teeth is that panhandling at such locations is
clearly a health and safety issue which is why the courts or OK
with such bans.
The practice backs up traffic on off ramps often when lights are
green. Some impatient drivers will start rolling forward when
they see the green even when cars ahead of them can't because a
panhandler has scored with some driver.
It is not usual to see some panhandlers walk down the shoulder of
off ramps flying signs while traffic is moving.
And let's be clear on another point. The city must stop carving
out exceptions for soliciting money at controlled intersections
whether it is the Manteca Firefighters Association at Main Street
and Mission Ridge Drive for non-profit burn centers or the
Manteca Mural Society at Main Street and Yosemite Avenue for
mural donations.
This is a small step that can pay big dividends.
Besides, as the ordinance sits now it is not worth byte space it
consumes on a server. [GN]
MARK GOBER: Court Denies Class Certification Bid in "Darrough"
--------------------------------------------------------------
In the lawsuit entitled PAUL DARROUGH, on behalf of himself and
all others similarly situated, the PLAINTIFF, v. MARK GOBER,
individually and in his official capacity; and JOHN DOES 1-10,
the DEFENDANTS, Case No. 4:18-cv-00113-JLH (E.D. Ark.), the Hon.
Judge J. Leon Holmes entered an order denying a motion for class
certification on June 1, 2018.
The Court said, "In response to the motion for class
certification, Gober has submitted the uncontested affidavit of
Susan Potts, along with records of Darrough's arrest and first
appearance. Pursuant to a bench warrant, Darrough was arrested on
May 10, 2017, at 12:30 p.m. He appeared before a judge for his
first appearance on May 12, 2017. Thus, he was provided a timely
first appearance. Cf. Hayes v. Faulkner County, Ark., 388 F.3d
669 (8th Cir. 2004), and Ark. R. Crim. P. 8.1. Based upon the
facts in the Potts' affidavit, Darrough is not a member of the
class that he seeks to represent and his claims are, therefore,
not typical of the class. In Re Milk Products Litigation, 195
F.3d 430, 436 (8th Cir. 1998). Nor can he adequately represent
the class."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=sXW3rXDd
MCGOWEN ENTERPRISES: Settlement Obtains Preliminary Court Nod
-------------------------------------------------------------
Kyla Asbury, writing for PennRecord, reports that a federal judge
has granted preliminary approval of a settlement in a class
action lawsuit over alleged warranty violations.
The lawsuit was initially filed in May 2017 and was amended in
July 2017 to include McGowen Enterprises Inc. as the sole
defendant.
The plaintiffs in the lawsuit allege that MEI violated the
Magnuson-Moss Warranty Act by allegedly including an illegal
tying provision in a written warranty. The case was filed in the
U.S. District Court for the Eastern District of Pennsylvania.
The settlement provides class members with both injunctive and
monetary relief, and MEI agreed that it will not void any class
members' warranty for failing to comply with the provision. It
also agreed to not include the provision in any future
warranties.
Attorneys would receive up to $290,000 in fees and costs.
MEI agreed to pay each class member $30 if the class member can
submit proof of one professional oil change -- with any brand of
motor oil -- done on a vehicle that was purchased from MEI during
the relevant time period.
The settlement meets the requirements for preliminary approval
because it appears to be "fair, reasonable and adequate,"
according to the court order.
The class in the suit is all consumers in the United States who,
between May 5, 2013 and Jan. 8, 2017, purchased a vehicle from
Car Sense Inc., which is now MEI, and accepted the lifetime
engine guarantee offered by the company.
Alison N. Leary and Timothy M. Leary claimed in their lawsuit
that the warranties stated that Car Sense would cover the engine
in the vehicles from oil-related mechanical failure or abnormal
wear for 10 years or 300,000 miles, whichever occurred first, so
long as consumers changed the motor oil in the vehicles every
four months or 4,000 miles.
When the Learys took the vehicle to get an oil change, they
allegedly were informed that in order to not void their warranty,
they needed to have their oil changed with Castrol Motor Oil,
which was approximately $40 more than an oil change with a
comparable non-Castrol synthetic product.
The Learys claimed that the defendant's actions created an
illegal tying arrangement by requiring them and other class
members to change the motor oil every four months or 4,000 miles
with only Castrol products.
U.S. District Court Judge Berle M. Schiller issued the
preliminary order on April 17. [GN]
MDL 2741: "Frank" Suit vs Monsanto Consolidated in N.D. Cal.
------------------------------------------------------------
The class action lawsuit titled LAURA AND WILLIAM FRANK, the
Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-
00668, was transferred from the U.S. District Court for the
Eastern District of Missouri to the U.S. District Court for the
Northern District of California (San Francisco) on May 29, 2018.
The District Court Clerk assigned Case No. 3:18-cv-03186-VC to
the proceeding.
This is an action for damages suffered by Plaintiff as a direct
and proximate result of Defendant negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Frank case is being consolidated with MDL 2741 in re: Roundup
Products Liability Litigation. The MDL was created by Order of
the United States Judicial Panel on Multidistrict Litigation on
October 3, 2016. These actions share common factual questions
arising out of allegations that Monsanto's Roundup herbicide,
particularly its active ingredient, glyphosate, causes non-
Hodgkin's lymphoma. Plaintiffs each allege that they or their
decedents developed non-Hodgkin's lymphoma after using Roundup
over the course of several or more years. Plaintiffs also allege
that the use of glyphosate in conjunction with other ingredients,
in particular the surfactant polyethoxylated tallow amine (POEA),
renders Roundup even more toxic than glyphosate on its own.
Issues concerning general causation, the background science, and
regulatory history will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the
actions in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-
VC.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MDL 2741: "Johnson" Suit vs Monsanto Consolidated in N.D. Cal.
--------------------------------------------------------------
The class action lawsuit titled, LUDIE JOHNSON, the Plaintiff, v.
MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-00673, was
transferred from the U.S. District Court for the Eastern District
of Missouri, to the U.S. District Court for the Northern District
of California (San Francisco) on May 29, 2018. The District Court
Clerk assigned Case No. 3:18-cv-03187-VC to the proceeding.
This is an action for damages suffered by Plaintiff as a direct
and proximate result of Defendant negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Johnson case is being consolidated with MDL 2741 in re:
Roundup Products Liability Litigation. The MDL was created by
Order of the United States Judicial Panel on Multidistrict
Litigation on October 3, 2016. These actions share common factual
questions arising out of allegations that Monsanto's Roundup
herbicide, particularly its active ingredient, glyphosate, causes
non-Hodgkin's lymphoma. Plaintiffs each allege that they or their
decedents developed non-Hodgkin's lymphoma after using Roundup
over the course of several or more years. Plaintiffs also allege
that the use of glyphosate in conjunction with other ingredients,
in particular the surfactant polyethoxylated tallow amine (POEA),
renders Roundup even more toxic than glyphosate on its own.
Issues concerning general causation, the background science, and
regulatory history will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the
actions in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-
VC.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MDL 2804: Gasconade County Considers Joining Opioid Class Action
----------------------------------------------------------------
The Hermann Advertiser-Courier reports that Gasconade County
government administrators will hear a request to join a national
class-action lawsuit against makers and marketers of opioid
medications.
Prosecuting Attorney Mary Weston on May 24 told the County
Commission that prosecutors' organizations are being asked to
outline the legal effort to officials of county governments
throughout the states.
The aim is to obtain funding to finance anti-opioid programs at
the county level, Ms. Weston said.
Ms. Weston said the addiction to opioid painkillers have led to
an increase in the use of heroin in the U.S.
"There are things we can do to help people, outside the criminal
justice system," Ms. Weston said, referring to such things as
community outreach programs, counseling services, educational
programs and other things.
How prevalent is the opioid crisis here? Ms. Weston said one
survey showed that in 2016 there 920,000 opioid pills prescribed
in Gasconade County.
It's not that bad now, she said, regarding opioid-based
medication because "it's transferred over to the heroin side."
That has occurred because doctors have recognized the addictive
nature of opioid painkillers and have significantly reduced the
number of prescriptions for the medication.
"I don't think it will be a bad thing to sit down and list to
what they are saying," Weston told the County Commission. "I
think it will be worth our while to spend a half-hour with them."
There are three or four legal firms looking at handling a class-
action lawsuit against makers and marketers of opioid drugs,
Ms. Weston noted. A representative of one of those likely would
speak with the County Commission. Similar discussions already
are scheduled with nearby counties, she said.
In other matters on May 24, Sheriff John Romanus met with the
County Commission in closed session. It's believed the subject
was personnel, as indicated by the citation of state statute
authorizing the closed session, but the members of the Commission
said they didn't know what the sheriff was wanting to talk about
behind closed doors. [GN]
MERRILL LYNCH: Lowe Sues over Unlawful Pay Deductions
-----------------------------------------------------
MARC D. LOWE, individually and on behalf of all others similarly
situated, Plaintiff, v. MERRILL LYNCH, PIERCE, FENNER & SMITH,
INCORPORA TED,úand Does 1 through 10, inclusive, Defendants, Case
No. RG18906865 (Cal. Super. Ct., May 30, 2018), seeks to recover
all damages and penalties pursuant to the California Labor Code.
The Plaintiff brings this lawsuit as a class action pursuant to
the California Code of Civil Procedure on behalf of current and
former employees of Defendant Merrill Lynch, Pierce, Fenner &
Smith, Incorporated, employed as Financial Advisors, or the
functional equivalent, however titled, (which position includes
the titles "Financial Consultant," "Securities Broker,"
"Stockbroker," "Investment Advisor," and/or "Investment
Representative") who worked in California at any time within the
last four years of the filing of this action and who suffered
damages as a result of the Defendant's violations of California
labor laws, including: (1) unlawful pay deductions; (2) failure
to reimburse reasonable and necessary business expenses; and, (3)
failure to provide accurate itemized wage statements.
Merrill Lynch is a wealth management division of Bank of America.
The firm is headquartered in New York City, and occupies the
entire 34 stories of 250 Vesey Street, part of the Brookfield
Place complex, in Manhattan.[BN]
The Plaintiff is represented by:
Edward J. Wynne, Esq.
WYNNE LAW FIRM
80 E. Sir Francis Drake Blvd., Ste. 3-G
Larkspur, CA 94939
Telephone: (415) 461 6400
Facsimile: (415) 461 3900
E-mail: qewynne@wynnelawfirm.com
- and -
James F. Clapp, Esq.
CLAPP & LAUINGER LLP
701 Palomar Airport Road, Suite 300
Carlsbad, CA 92011
Telephone: (760) 209 6565
Facsimile: (760) 209 6565
E-mail: jclapp@clapplegal.com
- and -
David S. Markun, Esq.
Jeffrey K. Compton, Esq.
MARKUN ZUSMAN FRENIERE & COMPTONLLP
17383 Sunset Boulevard, Suite A380
Pacific Palisades, CA 90272
Telephone: (310) 454 5900
Facsimile: (310) 454 5970
E-mail: dmarkun@mzclaw.com
jcompton@mzclaw.com
MONSANTO COMPANY: Clark Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
KIMBERLY K. CLARK, the Plaintiff, v. MONSANTO COMPANY, the
Defendant, Case No. 4:18-cv-00820 (E.D. Mo., May 30, 2018), seeks
to recover damages suffered by Plaintiff as a direct and
proximate result of Defendant negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Leckvolds Sue over Sale of Herbicide Roundup
--------------------------------------------------------------
KENNETH and JOAN LECKVOLD, the Plaintiffs, v. MONSANTO COMPANY,
the Defendant, Case No. 4:18-cv-00810 (E.D. Mo., May 30, 2018),
seeks to recover damages suffered by Plaintiff as a direct and
proximate result of Defendant negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiffs'
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Luellens Sue over Sale of Herbicide Roundup
-------------------------------------------------------------
JERRY and LOUISA LUELLEN, the Plaintiffs, v. MONSANTO COMPANY,
the Defendant, Case No. 4:18-cv-00809-SPM (E.D. Mo., May 30,
2018), seeks to recover damages suffered by Plaintiff as a direct
and proximate result of Defendant negligent and wrongful conduct
in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiffs'
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Moores Sue over Sale of Herbicide Roundup
-----------------------------------------------------------
BRUCE AND DELORES MOORE, the Plaintiffs, v. MONSANTO COMPANY, the
Defendant, Case No. 4:18-cv-00818 (E.D. Mo., May 30, 2018), seeks
to recover damages suffered by Plaintiff as a direct and
proximate result of Defendant negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiffs'
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Rievleys Sue over Sale of Herbicide Roundup
-------------------------------------------------------------
BILLY AND JUDITH RIEVLEY, the Plaintiffs, v. MONSANTO COMPANY,
the Defendant, Case No. 4:18-cv-00817 (E.D. Mo., May 30, 2018),
seeks to recover damages suffered by the Plaintiff as a direct
and proximate result of the Defendant negligent and wrongful
conduct in connection with the design, development, manufacture,
testing, packaging, promoting, marketing, advertising,
distribution, labeling, and/or sale of the herbicide Roundup
(TM), containing the active ingredient glyphosate.
The Plaintiffs maintain that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiffs'
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Tyson Sues over Sale of Herbicide Roundup
-----------------------------------------------------------
JANINE C. TYSON, the Plaintiff, v. MONSANTO COMPANY, the
Defendant, Case No. 4:18-cv-00815-JMB (E.D. Mo., May 30, 2018),
seeks to recover damages suffered by Plaintiff as a direct and
proximate result of Defendant negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing
the active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. Plaintiff's
injuries, like those striking thousands of similarly situated
victims across the country, were avoidable.
"Roundup" refers to all formulations of Defendant Roundup
products, including, but not limited to, Roundup Concentrate
Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide,
Roundup D-Pak herbicide, Roundup Dry Concentrate, Roundup Export
Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed
& Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide,
Roundup Original 2k herbicide, Roundup Original II Herbicide,
Roundup Pro Concentrate, and Roundup Prodry Herbicide.
Monsanto Company is a publicly traded American multinational
agrochemical and agricultural biotechnology corporation. It is
headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN]
The Plaintiff is represented by:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
Telephone: (314) 222 2222
Facsimile: (314) 421 0359
E-mail: sethw@getbc.com
MONSANTO COMPANY: Court Narrows Claims in "Blitz" Pesticide Suit
----------------------------------------------------------------
Judge William M. Conley of the U.S. District Court for the
Western District of Wisconsin granted in part and denied in part
the Defendant's motion to dismiss the case, THOMAS BLITZ,
Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 17-cv-473-wmc
(W.D. Wis.).
Monsanto manufactures Roundup, a weed and grass-killing product.
The active ingredient in Roundup is glyphosate, which kills weeds
and grasses by inhibiting the enzyme 5-enolpyruvylshikimate-3-
phosphate ("EPSP") synthase, thus disrupting one of the steps in
the so-called "shikimate pathway."
Roundup's label reads that glyphosate targets an enzyme found in
plants but not in people or pets. The Environmental Protection
Agency ("EPA") has registered glyphosate as a pesticide since
1974, and it renewed that registration in 1993. The EPA also
approved the Roundup labels at issue as (1) EPA Reg. No. 71995-
25; (2) EPA Reg. No. 71995-29; and (3) EPA Reg. No. 71995-33.
Each label includes the same statement that glyphosate targets an
enzyme found in plants but not in people or pets.
Blitz filed the putative class action against Monsanto, alleging
that the label on its product includes the following false,
misleading and deceptive statement that glyphosate targets an
enzyme found in plants but not in people or pets.
Blitz resides in Waunakee, Wisconsin. He purchased Roundup from
a Home Depot store. Blitz alleges that the statement on the
label intimating that Roundup was safe to use around people and
pets induced him to purchase the product, and that he suffered
pecuniary loss as a result.
The parties appear to agree that EPSP is not found in human and
animal cells as evidenced by the absence of the shikimate
pathway. Taking the Plaintiff's allegations as true, however,
EPSP is found in bacteria that inhabit the human and other
mammalian guts.
The Defendant seeks dismissal of the Plaintiff's claims for
failure to state a claim. It makes four arguments in support of
its motion to dismiss: (1) federal law expressly preempts the
Plaintiff's claims; (2) the Roundup label is not false or
misleading as a matter of law; (3) the breach of express warranty
claim fails because the Plaintiff failed to give proper notice;
and (4) the unjust enrichment claim fails because the Plaintiff
did not confer a benefit on the Defendant. The Defendant also
challenges the Plaintiff's request for certification of a
national class under Federal Rules of Civil Procedure 23(a) and
(b)(3).
Judge Conley finds that as to named-Plaintiff Blitz's claims, the
Court clearly has personal jurisdiction. He however will reserve
judgment on the question of whether it can exercise personal
jurisdiction over the claims of a nationwide class, at this time.
Although only the EPA may order a label change, the Judge finds
that the Defendant has overstated the legal effect of the EPA's
approval, as well as the import of the relief requested by the
Plaintiff, particularly since the Plaintiff seeks to recover
monetary damages for allegedly false statements that the Federal
Insecticide, Fungicide, and Rodenticide Act ("FIFRA") itself
prohibits. Accordingly, the Plaintiff's claims are not preempted
by FIFRA.
Next, the Judge rejects both the Defendant's arguments that the
Plaintiff cannot plead literal falsity unless supported by
unanimous expert opinion and that the Plaintiff's allegation that
the statement is false precludes an allegation that the statement
is deceptive or misleading. He finds that because the Plaintiffs
did not allege that all scientists agree that glucosamine and
chondroitin are ineffective at providing the promised joint
health benefits, they could not allege literal falsity. In
addition, the Judge cannot determine as a matter of law that a
misrepresentation did not cause pecuniary loss at the pleading
stage. Accordingly, he finds that the Plaintiff has sufficiently
pleaded a claim for deceptive or misleading representation under
Wis. Stat. Section 100.18.
As to breach of express warranty claim, the Judge finds that
Blitz does not allege that he provided individual notice to the
Defendant. Indeed, the complaint alleges only that a former
Plaintiff, Chick -- whose claims have been voluntarily dismissed
-- provided individual notice to the Defendant. Moreover, rather
than demonstrate how he provided actual notice under Wisconsin's
UCC, the Plaintiff addresses the timeliness requirement. In
fairness, whether the buyer provided notice "within a reasonable
time" is a question of fact for a jury to decide, but that
question is analytically distinct from whether notice was
provided at all. The Judge can find no exception under Wisconsin
law to this notice requirement, and therefore concludes that the
Plaintiff did not provide notice to the Defendant. Accordingly,
he dismissed the Plaintiff's breach of express warranty claim is
dismissed.
Finally, the Judge finds that the Plaintiff's allegation that he
purchased Roundup from Home Depot is insufficient to plead a
claim of unjust enrichment against the Defendant, since the
Plaintiff conferred a benefit on Home Depot, not the Defendant.
Furthermore, the Plaintiff's bald assertion that the Defendant
has been unjustly enriched through sales of Roundup Products at
the expense of the Plaintiffs and the National Class Members is
insufficient under Ashcroft v. Iqbal, and Bell Atl. Corp. v.
Twombly. Therefore, he dismissed the Plaintiff's unjust
enrichment claim.
Accordingly, Judge Conley granted in part and denied in part the
Defendant's motion to dismiss.
A full-text copy of the Court's April 13, 2018 Opinion and Order
is available at https://is.gd/ZlJrpT from Leagle.com.
Thomas Blitz, Plaintiff, represented by Aimee Wagstaff --
aimee.wagstaff@andruswagstaff.com -- Andrus Wagstaff, PC, Kim
Richman -- krichman@richmanlawgroup.com -- Richman Law Group,
Mary Carolyn Turke -- mary@turkestrauss.com -- Turke & Strauss,
LLP, Michael L. Baum -- mbaum@baumhedlund.co -- Baum Hedlund
Aristei Goldman, PC, Michael Joseph Gabrielli --
michael@gabriellilaw.com -- Gabrielli Levitt LLP, Michael J.
Miller -- mmiller@millerfirmllc.com -- Robert F. Kennedy , Robert
Brent Wisner -- bwisner@baumhedlund.com -- Baum Hedlund Aristei
Goldman, PC & Robin L. Greenwald .
Monsanto Company, Defendant, represented by Thomas Patrick
Heneghan -- tom.heneghan@huschblackwell.com -- Husch Blackwell,
LLP, Adam Seth Nadelhaft -- anadelhaft@winston.com -- Winston &
Strawn LLP, George Carter Lombardi -- glombard@winston.com --
Winston & Strawn, Jeff Scott Wilkerson -- jwilkerson@winston.com
-- Winston & Strawn LLP, John Rosenthal -- jrosenthal@winston.com
-- Winston & Strawn LLP & Paul D. Cranley --
paul.cranley@huschblackwell.com -- Husch Blackwell, LLP.
MYGRANT GLASS: Padilla Seeks Unpaid Wages
-----------------------------------------
CARLOS PADILLA, individually, and on behalf of other members of
the general public similarly situated, the Plaintiff, v. MYGRANT
GLASS CO., INC., a California corporation; and DOES 1 through
100, inclusive, the Defendants, Case No. RG18906877 (Cal. Super.
Ct., May 30, 2018), seeks to recover unpaid wages under the
California Labor Code.
According to the complaint, the Defendants vio1ated the
California Business and Professions Code sections 17200, et seq.
by failing to provide Plaintiff and the other class members all
overtime compensation due to them, failing to provide all meal
and rest periods to Plaintiff and the other class members,
failing to pay at least minimum wages to Plaintiff and the other
class members, failing to pay Plaintiff's and the other class
members' wages timely as required by the California Labor Code.
Mygrant Glass Company, Inc. wholesales and supplies auto glass
products in the United States. It also accepts online orders. It
was formerly known as R. Mygrant Glass & Glazing.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE, PC
11410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265 1020
Facsimile: (818) 265 1021
NATIONAL HEALTH: Komerski Sues over Unauthorized Telephones Calls
-----------------------------------------------------------------
MICHAEL KOMERSKI, Plaintiff, v. NATIONAL HEALTH DIRECT, LLC, a
Florida limited liability corporation, HEALTH CARE SERVICES
CORPORATION, a Delaware corporation, the Defendants, Case No.
2018CH07054 (Ill. Cir. Ct., Cook Cty., June 4, 2018), seeks to
stop Defendants' unlawful practice of causing unauthorized calls
to consumers' cellular telephones and to recover damages and
obtain injunctive relief on behalf of Plaintiff and a Class of
similarly situated individuals.
In an effort to promote the sale of its health insurance
products, Defendant Blue Cross engaged in an illegal form of
telemarketing by directing the placement of unauthorized
advertisements in the form of artificial and/or prerecorded calls
made by National Health Direct to the cellular telephones of
consumers throughout the nation.
The Defendants, and their agents, directed and/or initiated calls
to the wireless telephone numbers of Plaintiff and the other
Class members using an artificial and/or prerecorded voice to
deliver advertising messages without the prior express written
consent of the called party in violation of the Telephone
Consumer Protection Act.[BN]
Attorneys for Plaintiff and the Class:
Eugene Y. Turin, Esq.
William P.N. Kingston, Esq.
MCGUIRE LAW, P.C.
55 W. Wacker Drive, 9th Fl.
Chicago, IL 60601
Telephone: (312) 893 7002
E-mail: eturin@mcgpc.com
wkingston@mcgpc.com
NATIONAL HOCKEY: Commissioner Mum on Concussion-CTE Link Issue
--------------------------------------------------------------
Helene Elliott, writing for Los Angeles Times, reports that NHL
Commissioner Gary Bettman, who has stated in the past that there
is no proven link between repeated concussions and the
degenerative brain disease Chronic Traumatic Encephalopathy
(CTE), declined to respond on May 28 when asked if he still holds
that opinion.
CTE has become a major issue for the NHL and the NFL. At least
seven NHL players have been diagnosed with CTE, which has been
definitively identified only after death. A class-action lawsuit
filed by more than 100 former players alleges that the NHL
concealed information about the risks of head trauma in the
sport.
More than 100 NFL players have been diagnosed with CTE. In 2016
the NFL agreed to a $1 billion financial settlement with retired
players after a high-ranking league official acknowledged the
existence of a link between repetitive head trauma and CTE.
"I'm not going to start another news cycle. There's nothing new
on the subject," Mr. Bettman said during a news conference before
the Vegas Golden Knights hosted the Washington Capitals in Game 1
of the Stanley Cup Final.
Deputy Commissioner Bill Daly, sitting beside Mr. Bettman, added,
"This is not the commissioner's view. It's the science view. So
all we're doing is reiterating what the scientists have
concluded, which is there's not enough information to draw that
link."
Ann McKee, a neuropathologist who heads the CTE Center at Boston
University's School of Medicine and is considered an authority in
the field, has diagnosed CTE in several NHL players. "The NHL is
really in the dark ages," she recently told the Canadian TSN
network. "It's denial, obfuscation and the usual tap dance. You
ask any 7-year-old and they will tell you CTE is real. The NHL
is being ridiculous. It's almost laughable."
Speaking on a wide range of topics, Mr. Bettman said that the
success of the Golden Knights -- whose historically strong season
has set records on the ice and outpaced rivals' merchandise sales
-- proves "the magic of sports." He said owners of other teams
have not pushed back against giving prospective future expansion
teams the same generous terms that were given to Vegas in the
draft that stocked the team's roster. Those favorable terms have
been credited with launching the Golden Knights to unforeseen
heights, but that doesn't account for the adept management of
general manager George McPhee, who made several forward-thinking
trades and found gems among players who might not have gotten
chances with their previous teams.
Mr. Bettman also said the league had no regrets over deciding not
to take a break and allow players to represent their homelands at
the Pyeongchang Olympics in February. However, he repeated the
league's intent to stage exhibition games in China, which is the
site of the 2022 Winter Olympics, and it's entirely possible that
the NHL will let its players participate in that tournament.
Also, Mr. Bettman said the expansion application of a Seattle-
based group will not be discussed at the Board of Governors
meeting that is traditionally held during the Final. He said he
expects Seattle's application to be the NHL's 32nd team will be
taken up at a meeting this fall or early winter. [GN]
NATIONSTAR MORTGAGE: Rigrodsky & Long Files Class Action in Texas
-----------------------------------------------------------------
Rigrodsky & Long, P.A., on May 29 disclosed that it has filed a
class action complaint in the United States District Court for
the Northern District of Texas on behalf of holders of Nationstar
Mortgage Holdings Inc. ("Nationstar") (NYSE:NSM) common stock in
connection with the proposed acquisition of Nationstar by WMIH
Corp. and its affiliate ("WMIH") announced on February 13, 2018
(the "Complaint"). The Complaint, which alleges violations of
the Securities Exchange Act of 1934 against Nationstar, its Board
of Directors (the "Board"), and WMIH, is captioned Franchi v.
Nationstar Mortgage Holdings Inc., Case No. 3:18-cv-01170 (N.D.
Tex.).
If you wish to discuss this action or have any questions
concerning this notice or your rights or interests, please
contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra
at Rigrodsky & Long, P.A., 300 Delaware Avenue, Suite 1220,
Wilmington, DE 19801, by telephone at (888) 969-4242, by e-mail
at info@rl-legal.com, or at http://rigrodskylong.com/contact-us/.
On February 12, 2018, Nationstar entered into an agreement and
plan of merger (the "Merger Agreement") with WMIH. Pursuant to
the terms of the Merger Agreement, shareholders of Nationstar
will receive either $18.00 in cash or 12.7793 shares of WMIH
common stock for each share of Nationstar stock they own (the
"Proposed Transaction").
Among other things, the Complaint alleges that, in an attempt to
secure shareholder support for the Proposed Transaction,
defendants issued materially incomplete disclosures in a Form S-4
Registration Statement (the "Registration Statement") filed with
the United States Securities and Exchange Commission. The
Complaint alleges that the Registration Statement omits material
information with respect to, among other things, Nationstar's and
the combined company's financial projections, the analyses
performed by Nationstar's financial advisors, and potential
conflicts of interest. The Complaint seeks injunctive and
equitable relief and damages on behalf of holders of Nationstar
common stock.
If you wish to serve as lead plaintiff, you must move the Court
no later than July 30, 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.
With offices in Wilmington, Delaware, Garden City, New York, and
San Francisco, California, Rigrodsky & Long, P.A. --
http://www.rigrodskylong.com--has recovered hundreds of millions
of dollars on behalf of investors and achieved substantial
corporate governance reforms in numerous cases nationwide,
including federal securities fraud actions, shareholder class
actions, and shareholder derivative actions. [GN]
NATIONSTAR MORTGAGE: Wilde Sues over Interest on Escrow Balance
---------------------------------------------------------------
ROBERT WILDE, individually and on behalf of all others similarly
situated, the Plaintiff, v. NATIONSTAR MORTGAGE LLC, d/b/a MR.
COOPER, the Defendant, Case No. 3:18-cv-01043-WQH-AGS (S.D. Cal.,
May 25, 2018), contends that Mr. Cooper failed to pay interest on
Plaintiff's mortgage escrow balance as required by law. The
Federal Dodd-Frank Act directly and specifically expresses a
policy that consumers should retain the interest gained on their
escrow accounts. The Defendant systematically ignores the law and
fails to disburse the interest from escrow accounts back to its
customers.
The Plaintiff entered into mortgage contracts with Defendant,
wherein, based on the terms of the contracts, he was required to
deposit funds into an escrow account. Mr. Cooper was required to
pay interest on the escrow account back to Plaintiff if
applicable laws so required.
Nationstar Mortgage LLC provides mortgage services. It offers
various solutions to meet the reverse mortgage needs of its
customers.[BN]
Attorneys for Robert Wilde and the Putative Class:
Helen I. Zeldes, Esq.
Andrew J. Kubik, Esq.
COAST LAW GROUP, LLP
1140 S. Coast Hwy 101
Encinitas, CA 92024
Telephone: (760) 942 8505
Facsimile: (760) 942 8515
E-mail: helen@coastlaw.com
andy@coastlaw.com
- and -
Craig L. Briskin, Esq.
MEHRI & SKALET, PLLC
1250 Connecticut Avenue, Northwest, Suite 300
Washington, DC 20036
Telephone: (202) 822 5100
Facsimile: (202) 822 4997
E-mail: cbriskin@findjustice.com
NATIONWIDE MUTUAL: Court Enters Judgment on Pleadings in "Allen"
----------------------------------------------------------------
In the case, JOHN DALE ALLEN, Plaintiff, v. NATIONWIDE MUTUAL
INSURANCE COMPANY, et al., Defendants, Case No. 2:17-cv-561 (S.D.
Ohio), Judge George C. Smith of the U.S. District Court for the
Southern Distrixr of Ohio, Eastern Division, granted the
Defendants' Motion for Judgment on the Pleadings, and denied
Allen's Motion for Leave to File First Amended Complaint.
In December 2016, Allen, a citizen of Ohio, filed pro se a
purported nationwide class action in the Court against Nationwide
and Chase. In his 2016 Complaint, the Plaintiff claimed that the
Defendants violated the Stored Communication Act when Nationwide
allegedly issued a "bad check" that was subsequently refused by
Chase. On May 9, 2017, the Court dismissed that case for failure
to state a claim on which relief may be granted.
Following the Court's ruling, the Plaintiff filed the instant
case in state court, again pro se, alleging an identical set of
facts and purporting to bring another nationwide class action
against the Defendants. He now claims that the Defendants are
liable for fraudulent conversion, unjust enrichment, breach of
contract, and breach of fiduciary duty arising from a one-day
delay in cashing the Plaintiff's insurance check, during which
time Chase allegedly benefited from the overnight federal funds
rate to accrue interest on Nationwide's check.
On June 27, 2017, the Defendants removed the matter to federal
court pursuant to the provisions of the Class Action Fairness Act
of 2005 ("CAFA"). Allen attempted to amend his Complaint to
restrict the purported class to Ohio residents and sought remand
on the basis of the "home state controversy" exception to CAFA,
but never properly filed the amended complaint with the Court.
On Nov. 2, 2017, the Court denied Allen's motion for remand
because, even if Allen had properly amended his complaint,
federal subject matter jurisdiction existed at the time of
removal.
The Defendants have both filed Answers to Allen's original
Complaint and now move for judgment on the pleadings under
Federal Rule of Civil Procedure 12(c). Allen also seeks leave to
amend his original Complaint in order to restrict the purported
class to Ohio residents. The proposed Amended Complaint is
otherwise substantively unchanged from the original. Having
apparently mistakenly believed that the Defendants became
obligated to respond to Allen's proposed Amended Complaint when
he filed his motion for leave, Allen also now moves for default
judgment against the Defendants.
Judge Smith finds that even casting the facts in the light most
favorable to Allen, he has alleged no more than a routine banking
transaction that complied with all applicable statutes,
regulations, and common law duties. Allen's sole claimed injury
is therefore that the funds for a check issued by Nationwide were
not made available by Chase until one day after the check was
presented to Chase. Given that federal banking regulations
expressly permit banks to release check funds up to two days
after presentment, and that the check funds in question were
released within one day, the Judge holds that Allen cannot
establish that Nationwide or Chase were unjustly enriched,
breached a fiduciary duty, unlawfully converted any funds, or
issued a bad check. Nor has he identified any contract whose
provisions have been breached by the one-day delay in releasing
the funds. The Defendants are therefore entitled to judgment on
the pleadings on all of Allen's claims.
Finally, the Judge finds that Allen's proposed Amended Complaint
would not cure the deficiencies in his claims. The only proposed
substantive amendment is to limit the purported class to Ohio
residents. But this would not change the fact that none of his
claims are viable, whether brought on behalf of an Ohio-only or a
nationwide class. Moreover, as already stated by the Court in
Allen's previous case, Allen's pro se status renders him an
inadequate class representative. Therefore, because the proposed
amendment would be futile, he denied Allen's request to amend his
Complaint. And because the Defendants never became obligated to
respond to Allen's proposed Amended Complaint, Allen's motion for
default judgment is also denied.
For these reasons, Judge Smith granted the Defendants' Motion for
Judgment on the Pleadings, denied Allen's Motion for Leave to
File First Amended Complaint; and denied Allen's Motion for
Default Judgment. He directed the Clerk to remove Documents 23,
33, and 36 from the Court's pending motions list and close the
case.
A full-text copy of the Court's April 13, 2018 Opinion and Order
is available at https://is.gd/i9MsDm from Leagle.com.
John Dale Allen, Plaintiff, Pro Se.
Nationwide Mutual Insurance Company, Defendant, represented by
Albert Grant Lin -- albert.lin@icemiller.com -- Ice Miller &
Kristina S. Dahmann -- kristina.dahmann@icemiller.com.
JPMorgan Chase & Co., Defendant, represented by Michael N. Ungar
-- mungar@ulmer.com -- Ulmer and Berne LLP, Alexander M. Andrews
-- aandrews@ulmer.com -- Ulmer & Berne LLP & David D. Yeagley --
dyeagley@ulmer.com -- Ulmer & Berne LLP.
NEW YORK: Preliminary Injunction Bid Denied in "Williams" Suit
--------------------------------------------------------------
In the case, CHRISTOPHER WILLIAMS, v. THE CITY OF NEW YORK et
al., Defendants, Case No. 17 CV 2303 (RJD) (SMG) (E.D. N.Y),
Judge Raymond J. Dearie of the U.S. District Court for the
Eastern District of New York denied Williams' request for a
preliminary injunction.
Williams was a pre-trial detainee at the Anna M. Kross Center
("AMKC") on Rikers Island from approximately Jan. 7 to Jan. 17,
2016. Williams alleges that during that time, the City of New
York and the other related Defendants engaged in a practice at
the AMKC and other Department of Corrections ("DOC") facilities
known as "cross-tour" supervision. Cross-touring reduced the
level of correctional supervision over pre-trial detainees and
inmates housed in the DOC Facilities. Among other legal and
equitable remedies, Williams seeks a preliminary injunction
pursuant to 42 U.S.C. Section 1983 to prevent future cross-
touring.
Williams argues that by cross-touring, the Defendants have (1)
failed to ensure adequate supervision and protection for Williams
and similarly situated pre-trial detainees and inmates, (2)
caused an increase in inmate-on-inmate violence, and (3) created
unconstitutional conditions of confinement, in violation of the
Eighth and Fourteenth Amendments of the U.S. Constitution, as
well as under New York State law.
Williams alleges that from Jan. 7 to Jan. 17, 2016, DOC officers
assigned to his unit routinely abandoned their post. More
specifically, he alleges that on Jan. 17, 2016, Defendant Furrel
Canteen was assigned to a cross-tour duty in Williams' open
dormitory unit at the AMKC, which housed more than 20 inmates.
While Defendant Canteen was absent from Williams' unit, on a
cross-tour, Williams was brutally attacked by approximately six
inmates in the dormitory bathroom. Williams claims that his
resulting physical and emotional injuries were caused by the
City's cross-touring practice.
The Defendants assert that the harm Williams alleges does not
amount to a violation of the U.S. Constitution. They also note
that the violence Williams experienced cannot be linked to cross-
touring, because it occurred in one of the housing unit
bathrooms, which, according to DOC policy, are never patrolled by
corrections officers. The Defendants also assert that cross-
touring has been discontinued, as evidenced by recently submitted
DOC staffing charts.
The Court held a hearing and oral argument in the case on Dec.
20, 2017. The parties declined to present witness testimony.
Williams is skeptical that cross-touring has been permanently
eliminated. He insists that the City's recent staffing changes
were made in response to the litigation. He also suggests that
there is -- at minimum -- an unreasonable risk that cross-touring
will resume at any time.
Judge Dearie recognizes that the Defendants have failed to
provide records of "C" post staffing for all of the DOC
Facilities, or to demonstrate that funding has been allocated for
permanent, as opposed to temporary, "C" post staffing. Still,
while the potential gravity of the situation warranted greater
clarity from Defendants in their most recent submission, the
record is devoid of any evidence, statistics, or research
suggesting that -- absent the Court's intervention -- the
Defendants' discontinued cross-touring practices are likely to be
reinstated. The Judge is satisfied with the City's assurances
that cross-touring or any similar staffing reductions have been
discontinued.
The Judge holds that past practices, now abandoned, present no
risk of enhanced danger to residents of the DOC Facilities. He
is persuaded by the documentary evidence and representations of
the counsel that cross-touring has been permanently discontinued
and that an injunction is unnecessary to ensure that the City
does not reinstate cross-touring in its facilities. He cautions
the City and its corrections officials that the Courte will not
hesitate to reconsider the matter should the City's
representations made not be realized as indicated. Judicial
remedies are not foreclosed, should discovery reveal evidence
that cross-touring or any similar practice presents an
intolerable danger to the custodial population.
For these reasons, Judge Dearie finds that a preliminary
injunction is unwarranted. Accordingly, he denied Williams'
motion.
A full-text copy of the Court's April 13, 2018 Memorandum and
Order is available at https://is.gd/hYK1jo from Leagle.com.
Christopher Williams, Plaintiff, represented by Tina Wolfson --
twolfson@ahdootwolfson.com -- Ahdoot & Wolfson, PC, Vanessa T.
Shakib -- vshakib@ahdootwolfson.com -- Ahdoot & Wolfson, PC, pro
hac vice & Jason Leventhal -- JL@LLG.nyc.com -- Leventhal Law
Group, P.C.
City of New York, Furrel Canteen, Individually, Shaequana
Braithwaite, Individually, Joseph Ponte, Individually & Martin J
Murphy, Individually, Defendants, represented by Alan H.
Scheiner, NYC Law Department & Karl J. Ashanti, NYC Law
Department.
NIANTIC INC: Pokemon GO Fest Attendees Notified of Settlement
-------------------------------------------------------------
Karen Ressler, writing for Anime News Network, reports that
attendees of Niantic's Pokemon GO Fest received a notification on
May 25 regarding the settlement of the class-action lawsuit
brought against the company seeking monetary damages to recover
travel expenses for the event. The notice confirms that Niantic
is paying US$1,575,000 into a settlement fund for anyone who had
a valid ticket to the event.
Attendees who wish to receive a share of the settlement must
submit a claim form on or before July 24. Attendees may also
opt-out (if they wish to be part of any other lawsuit against
Niantic) or object to the settlement by July 9. The final
approval hearing will be held on September 6.
Any remaining money after all claims have been processed will be
split evenly as donations to the Illinois Bar foundation and the
non-profit organization Chicago Run. If the settlement fund is
insufficient to cover the attendee's expenses, then payment
amounts to each person "may be adjusted downward on a pro-rata
basis depending on the number of Claim Forms received and
documentation and substantiation provided."
Niantic had already offered to refund all ticket costs for
attendees, and offered attendees US$100 in in-game currency.
Niantic held the event for its Pokemon GO game at Grant Park in
Chicago on July 22. The event was hampered by cellular network
issues that prevented many attendees from participating in the
day's activities. Niantic clarified during the event that the
root cause for the issues was related to the game's servers, as
well as local cellular networks' inability to handle the number
of participants.
Niantic will host a new Pokemon GO Fest event in Chicago this
July 14-15. [GN]
NORTHWESTERN POLYTECHNIC: ACICS Issues Warning Amid Class Action
----------------------------------------------------------------
Ethan Baron, writing for Mercury News, reports that a Bay Area
university with strikingly high numbers of foreign students
receiving U.S. work permits has been slapped with a warning by
its accrediting agency and told to produce more detailed
information about its students and the employers that hire them.
If Northwestern Polytechnic University in Fremont fails to
comply, the school could lose its accreditation, according to the
Accrediting Council for Independent Colleges and Schools.
Northwestern Polytechnic has been targeted by critics who have
alleged it is a "visa mill" that provides an improper path to
U.S. employment -- a charge the school has denied. Two years
ago, news website Buzzfeed alleged the school used "a system of
fake grades" and barred professors from failing students.
The little-known school ranked first among all colleges of its
type in the number of foreign students receiving "optional
practical training" work permits, with 11,700 during a 12-year
period, according to an analysis released in April by Pew
Research. The number of participants in the OPT program has
increased 400 percent since 2008, and it is now larger than the
controversial H-1B program for highly skilled foreign workers.
Officials at the school, which is located in a nondescript
business park in Fremont and was founded in 1984, declined to
answer questions about the number of students enrolled or the
warning it received in April from the Accrediting Council. ACICS
gave the school until June 29 to provide missing information
about student demographics and satisfaction levels among students
and the employers who hire students and graduates. However,
officials did respond to allegations that Northwestern
Polytechnic is a visa mill.
"We believe an answer directly from NPU is not as important as
the approvals by numerous agencies that authorize NPU to fully
operate," the school said in a statement. "Since the start of
negative media about NPU in 2016, NPU has undergone the scrutiny
of a number of outside agencies. In all instances, NPU has
received appropriate approvals that allow the institution to
continue its mission."
Northwestern Polytechnic did not respond to a request to name
those outside agencies.
The type of warning Northwestern Polytechnic received, known as a
compliance warning, is typically one of the lowest-level negative
actions ACICS can take, said Ben Miller, senior director for
post-secondary education at the Center for American Progress, a
left-leaning think tank.
"This is a school that two years ago faced really serious
allegations, and that didn't result in getting its accreditation
yanked, so it's hard to look at anything else this agency does
with Northwestern Polytechnic and not think it's an empty
threat," said Mr. Miller, referring to allegations raised in
Buzzfeed's year-long investigation.
ACICS president and CEO Michelle Edwards said the agency would
"continue to take action, as appropriate, if NPU fails to address
concerns" by the deadline this month.
The accreditor has had its own troubles. It was stripped in 2016
of its federal recognition for failing to protect students from
fraudulent and under-performing colleges, said Michael Poliakoff,
president of the American Council of Trustees and Alumni, a group
dedicated to improving quality at colleges and universities. In
April, U.S. Secretary of Education Betsy DeVos reinstated ACICS'
federal recognition.
"It comes down very simply to whether ACICS will have the
toughness to blow the whistle, and blow the whistle decisively,
if -- and I stress that 'if' -- the institution is not living up
to the standards of educational integrity," Mr. Poliakoff said.
Most major U.S. colleges and universities are accredited by other
organizations than ACICS.
Jay Kumar, a 26-year-old graduate of Northwestern, said his
education was "fine" and he had some good professors. But
Mr. Kumar, who is from India, said his master's degree in
electrical engineering is "not worth anything" because he was
denied a two-year STEM extension for his OPT work permit after
ACICS lost its federal recognition. Mr. Kumar said many other
Northwestern Polytechnic grads had similar problems during that
time and lost their OPT work permits.
"I don't want any kind of green card," Mr. Kumar said. "I just
want to gain some experience and go back to my country."
Northwestern Polytechnic is facing a class-action lawsuit
alleging it falsely advertised itself as an accredited school
when it knew its accreditation was in jeopardy because of the
federal action against ACICS.
The suit was filed in Alameda County Superior Court in December
by a graduate of the school's electrical engineering master's
program, Rohit Kalakanti. He is seeking class action status to
include bring in anyone enrolled at Northwestern Polytechnic on
or after September 12, 2015. The suit pegs the number of
students at Northwestern Polytechnic at 6,000.
As a non-profit, Northwestern Polytechnic is required to report
financial information, including its revenue, to the IRS. In
2016, Northwestern Polytechnic reported $54 million in revenue
after expenses, and said it had $181 million in assets, including
$122 million in mutual fund investments, according to IRS data.
Peter Hsieh, the school's president, received $380,000 in
compensation. [GN]
ONE FIFTY FIFTY: Court Grant Summary Judgment Bid in "Maor" Suit
----------------------------------------------------------------
In the case, MARSHALL MAOR, on behalf of himself and others
similarly situated, Plaintiffs, v. ONE FIFTY FIFTY SEVEN CORP
d/b/a RUSSIAN TEA ROOM; RTR FUNDING GROUP, INC., GERALD LIEBLICH
and any other related entities, Defendants (N.Y. Sup.), Judge
Jennifer G. Schecter of the Supreme Court for the New York
County, (i) granted the Defendants' motion for summary judgment;
(ii) granted the Plaintiff's motion for leave to amend the
complaint to add Gina Garcia as a named Plaintiff; and (iii)
granted the Plaintiff's motion for class certification under CPLR
901 and 902.
The Defendants operate a restaurant and event venue known as The
Russian Tea Room. Permanent wait staff are employed for the main
dining room, which serves primarily as a restaurant. For all
banquets and catered events, the Defendants hire workers through
Ambitious Staffing. After the event, the Defendants pay
Ambitious a flat rate per waiter or waitress and Ambitious then
pays the wait staff. Banquet wait staff are paid three to four
times the tipped minimum wage amount.
Named Plaintiff Maor and proposed named Plaintiff Garcia are
professional banquet waiters. Maor worked at approximately three
events at The Russian Tea room over a two month period in 2009.
Garcia also worked as a banquet server at the Defendants' catered
events on numerous occasions from 2008 through 2010.
Maor commenced the action, on behalf of himself and others
similarly situated, seeking recovery of unpaid gratuities
pursuant to New York Labor Law Section 196-d. The Plaintiff
alleges that customers seeking a banquet or catered event are
provided a contract that includes a "service charge," typically
22%, without disclosing that the collected fees are not paid to
the wait staff. The Plaintiff maintains that without a
disclaimer on the Defendants' banquet "service charge," a
reasonable customer would presume that such a charge was, in
fact, a gratuity, and that, because he and other wait staff were
not paid these gratuities, the Defendants violated the Labor Law.
The Defendants move for summary judgment urging that the action
should be dismissed because Maor was an independent contractor,
not an employee; therefore, the statute does not apply to him.
The Plaintiff contends that because the Defendants maintained
sufficient control over banquet wait staff, a question of fact
precludes summary judgment particularly at this early stage
before discovery has been completed.
The Plaintiff moves for class certification and for leave to
amend the complaint to add Garcia as a named Plaintiff.
Judge Schecter finds that the Defendants have not met their
"heavy burden" of establishing that the Plaintiff was not an
employee covered by the Labor Law as a matter of law because
there is a question of fact as to the control Defendants
exercised over the results produced or the means used to achieve
the results. The Defendants, however, have demonstrated that the
unjust enrichment claim must be dismissed. Significantly, the
cause of action is based on the exact same allegations that form
the basis of the Labor-Law claim. If ultimately there is no
viable claim pursuant to Labor Law Section 196-d, it would be
because the Legislature did not intend for workers such as Maor
to receive a portion of the service charge as a gratuity and
there would be no injustice or inequity to be redressed.
The Judge also finds that the Plaintiffs have satisfied the
prerequisites of CPLR 901. The Plaintiffs' claims are typical of
the members of the class as they worked for the Defendants in
food service roles at various times from 2008 through the
present. Maor and Garcia allege that the Defendants imposed a
service charge at banquets and catered events that they would be
entitled to. Because Maor and Garcia seek to recover unpaid
gratuities for themselves and the members of the proposed class
and would be represented by competent counsel, they may
adequately and fairly represent the interests of the class. The
Judge says a class action is the most efficient method for the
fair adjudication of this controversy.
Finally, the Judge will grant leave to amend the complaint to add
Garcia pursuant to CPLR 3025(b) as she has sufficient knowledge
of the claims, is similarly situated to the class members and her
addition as a named representative in no way prejudices the
Defendant.
Accordingly, Judge Schecter granted the Defendants' motion for
summary judgment to the limited extent that the unjust enrichment
cause of action is dismissed. The breach of contract cause of
action, moreover, has been withdrawn and is therefore no longer
part of the action. She also granted the Plaintiff's motion for
leave to amend the complaint to add Garcia as a named Plaintiff
and the caption will be amended accordingly. The Plaintiffs are
to serve a copy of this order on the Clerk of the Court and the
Clerk of the Trial Support Office who are directed to amend the
Court's records. Lastly, the Judge granted the Plaintiff's
motion for class certification under CPLR 901 and 902.
A full-text copy of the Court's April 13, 2018 Decision and Order
is available at https://is.gd/0fHOZV from Leagle.com.
PATHWAY TO HOPE: Court Denies Bid for Conditional Certification
---------------------------------------------------------------
In the lawsuit styled CHARITY WAYMON-GAY, the Plaintiff, v.
PATHWAY TO HOPE COUNSELING, SERVICES, INC., and CELIA MITCHELL,
the Defendants, Case No. 7:17-cv-00159-WLS (M.D. Ga.), the Hon.
Judge W. Louis Sands entered an order on June 4, 2018, denying
without prejudice the Plaintiff's motion for conditional
certification because the Plaintiff failed to establish a
reasonable basis that other employees would be willing to opt-in.
The Court said, "Defendant PTH argues that the Court should not
grant conditional certification because Plaintiff's averment
regarding other utilization assistants' willingness to
participate in the present action is insufficient. The Court
agrees and finds that Plaintiff Waymon-Gay has failed to
establish a reasonable basis to conclude that other employees may
desire to 'opt-in.' There are multiple ways a Plaintiff can show
that other similarly situated persons desire to opt-in; such as
the filing of declarations or affidavits illustrating a person's
intent to join or other consents to sue which can be a persuasive
indication of the existence of other employees who desire to opt-
in. See Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d
1272, 1277 (M.D. Ala. 2004); Vondriska v. Premier Mortg. Funding,
Inc., 564 F.Supp.2d 1330, 1334 (M.D. Fla. 2007); Kerce, 575
F.Supp.2d at 1365-66. Here, Plaintiff has not provided any
additional evidence absent her own opinion that if given the
opportunity, other utilization assistants will be willing to opt-
in this action."
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=X3ECh4Zi
PESSCO LLC: "Valdez" Suit Moved to Western District of Texas
------------------------------------------------------------
The class action lawsuit titled ARTURO VALDEZ, Individually and
On Behalf of All Others Similarly Situated, the Plaintiff, v.
PESSCO, LLC d/b/a PRODUCTION EQUIPMENT SALES & SERVICES And GEN-
NAN RESOURCES & EQUIPMENT, L.P., the Defendants, Case No. 4:18-
cv-00734, was transferred from the U.S. District Court for
Southern District of Texas, to the U.S. District Court for the
Western District of Texas (Midland) on May 30, 2018. The Western
District Court Clerk assigned Case No. 7:18-cv-00094 to the
proceeding. The case is assigned to the Hon. Judge Nancy F Atlas.
The Plaintiff brought this collective action and lawsuit on
behalf of himself and all other similarly situated employees to
recover unpaid overtime wages Defendants.[BN]
The Plaintiff is represented by:
Bridget Dale Davidson, Esq.
Curt Hesse, Esq.
Melissa Moore, Esq.
MOORE AND ASSOCIATES
440 Louisiana St., Ste 675
Houston, TX 77377
Telephone: (713) 222 6775
E-mail: curt@mooreandassociates.net
melissa@mooreandassociates.net
Attorneys for PESSCO, LLC d/b/a Production Equipment Sales &
Service:
Clarence Harold Borckett, Jr.
24 Smith Road, Suite 400
Midland, TX 79705
Telephone: (432) 686 7743
PET FOOD: Fails to Pay Overtime and Minimum Wages, Quijas Says
--------------------------------------------------------------
ENEIDA QUIJAS, individually, and on behalf of other members of
the general public similarly situated, the Plaintiff, v. PET FOOD
EXPRESS, a California corporation; and DOES 1 through 100,
inclusive, the Defendant, Case No. RG18906712 (Cal. Super. Ct.,
May 29, 2018), seeks to recover unpaid Overtime, unpaid meal
period premiums, unpaid rest period premiums, and unpaid minimum
wages under the California Labor Code.
According to the complaint, the Defendants directly hired and
paid wages and benefits to Plaintiff and the other class members.
The Defendants continue to employ hourly-paid or pan-exempt
employees within the State of California. The Plaintiff and the
other class members worked over 8 hours in a day and/or 40 hours
in a week during their employment with Defendants.
The Plaintiff alleges that Defendants engaged in a pattern and
practice of wage abuse against their hourly-paid or non-exempt
employees within the State of California. This pattern and
practice involved, inter alia, failing to pay them for all
regular and/or overtime wages earned and for missed meal periods
and rest breaks in violation of California law.
Pet Food Express is a California chain of retail stores that
offers pet food, with a focus on premium brands, holistic, and
organic pet food, as well as other pet supplies, and self-service
dog washing facilities.[BN]
Attorneys for Plaintiff:
Edwin Aiwazian, Esq.
LA WYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265 1020
Facsimile: (818) 265 1021
PFIZER INC: Court Denies Bid to Strike Class Claims in "Haj" Suit
-----------------------------------------------------------------
In the case, KARMEL AL HAJ and TIMOTHY A. WOODHAMS, individually
and on behalf of all others similarly situated, Plaintiffs, v.
PFIZER INC., Defendant, Case No. 17 C 6730 (N.D. Ill.), Judge
Gary Feinerman of the U.S. District Court for the Northern
District of Illinois, Eastern Division, (i) granted Pfizer's
motion to dismiss Woodhams' claims for lack of personal
jurisdiction; and (ii) denied both Pfizer's motions to dismiss Al
Haj's claims under Rule 12(b)(6), and to strike the complaint's
class claims under Rule 12(f).
On behalf of themselves and a putative nationwide class, Haj and
Woodhams allege in this diversity suit that Pfizer, which markets
and distributes Robitussin cough syrup, deceives consumers by
charging more for "Maximum Strength" Robitussin even though it
contains a lower concentration of one of its two active
ingredients than does "Regular Strength" Robitussin.
Haj is a citizen and resident of Illinois. On April 16, 2017, he
purchased an 8-fluid ounce bottle of Maximum Strength Robitussin
at a Walmart in Illinois. Woodhams is a citizen and resident of
Michigan. On Dec. 23, 2016, he purchased an 8-fluid ounce bottle
of Maximum Strength Robitussin at a Harding's Market in Michigan.
Relying on what they believed to be Pfizer's representation that
the product -- by virtue of its being called "Maximum Strength"
-- contained a higher concentration of its two active ingredients
than did Regular Strength Robitussin, they paid more than they
would have for the same-sized bottle of Regular Strength
Robitussin.
Both Maximum Strength Robitussin and Regular Strength Robitussin
contain two active ingredients: dextromethorphan hydrobromide
("DXM Hbr") and guaifenesin. A bottle of Maximum Strength
Robitussin, with half as many doses as Regular Strength
Robitussin, is more expensive at retail than a bottle of Regular
Strength Robitussin. Using the prices alleged in the complaint,
a purchaser of Maximum Strength Robitussin is charged
approximately 20% more per mg of guaifenesin, and more than twice
as much per mg of DXM Hbr, than is a purchaser of Regular
Strength Robitussin.
The complaint contains three counts, each brought on behalf of
the Plaintiffs individually and a putative nationwide class of
all persons that paid for Maximum Strength Robitussin Cough+Chest
Congestion DM for personal, family or household uses. Count I
alleges that Pfizer has violated the New Jersey Consumer Fraud
Act ("NJCFA"). Count II alleges, in the alternative, that Pfizer
has violated all 50 States' consumer protection laws, including
the Illinois Consumer Fraud and Deceptive Business Practices Act
("ICFA"). Count III alleges that Pfizer has violated the unjust
enrichment laws of all 50 States.
Pfizer moves to dismiss Woodhams' claims for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2), to
dismiss Al Haj's claims under Rule 12(b)(6), and to strike the
complaint's class claims under Rule 12(f).
Judge Feinerman finds that Woodhams has failed to show that
Pfizer is subject to general jurisdiction in Illinois.
Woodhams's injury -- purchasing Maximum Strength Robitussin --
occurred in Michigan, where he lives, and the pleadings reveal no
links between that injury and Pfizer's efforts to distribute or
market Robitussin in Illinois. Applying Bristol-Myers Squibb Co.
v. Super. Ct. of Cal. to dismiss for want of personal
jurisdiction the claims of a nonresident plaintiff who did not
assert an injury in Illinois even though his claims were
identical to those of an Illinois plaintiff, the Judge finds that
the identity between Al Haj's and Woodhams' claims is not enough
to confer personal jurisdiction on an Illinois court over
Woodhams' claims. Accordingly, the identity between Woodhams'
claims and Al Haj's does not, on its own, confer personal
jurisdiction over Woodhams' claims on an Illinois court. Because
neither general jurisdiction nor specific jurisdiction lies over
Woodhams' claims, they will be dismissed for lack of personal
jurisdiction.
Turning to the merits of Al Haj's individual claims, Pfizer
argues that Al Haj's individual claims are governed by Illinois
law, while Al Haj contends that New Jersey law applies. The
Judge finds that because the complaint plausibly alleges that
designating the product as "Maximum Strength" Robitussin was
misleading, the ICFA's safe harbor provision does not shield
Pfizer from liability, at least at this stage of the lawsuit. In
sum, Haj's ICFA claim survives dismissal. And because Pfizer
seeks dismissal of Al Haj's unjust enrichment claim solely on the
ground that the ICFA claim fails, Al Haj's unjust enrichment
claim survives as well.
Finally, as to the merits of the class allegations, Pfizer moves
to strike the complaint's class allegations, contending that
variation in state consumer protection and unjust enrichment law
categorically precludes class certification. The Judge finds
that the class certification analysis is necessarily contextual,
and the context -- including whether and how to create subclasses
-- is in this instance better explored under Rule 23, on a
developed record, than under Rule 12(f). Pfizer's motion to
strike the complaint's class allegations will therefore be
denied, without prejudice to Pfizer raising its arguments in
opposition to any Rule 23 motion filed by Al Haj or at some other
appropriate juncture.
For these reasons, Judge Feinerman granted Pfizer's motion to
dismiss Woodhams' claims for lack of personal jurisdiction; and
denied Pfizer's two other motions.
A full-text copy of the Court's April 13, 2018 Memorandum Opinion
and Order is available at https://is.gd/9O6mh5 from Leagle.com.
Karmel Al Haj, individually and on behalf of all others similarly
situated, Plaintiff, represented by Elizabeth A. Fegan --
beth@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Emily Rees
Brown -- emilyb@hbsslaw.com -- Hagens Berman Sobol Shapiro, LLP &
Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP.
Pfizer Inc, Defendant, represented by Gregory S. Bailey --
gregory.bailey@skadden.com -- Skadden Arps Slate Meagher & Flom,
LLP, Jessica Davidson Miller -- jessica.miller@skadden.com --
Skadden, Aprs, Slate, Meagher & Flom LLP, pro hac vice, John H.
Beisner -- john.beisner@skadden.com -- Skadden, Arps, Slate,
Meagher & Flom LLP, pro hac vice & Katherine Fletcher Morgan --
katherine.morgan@skadden.com -- Skadden, Arps, Slate, Meagher &
Flom Llp.
PHILADELPHIA PARKING: Summary Judgment in Taxicab Suit Reversed
---------------------------------------------------------------
In the cases, Z&R Cab, LLC, Zoro, Inc., Ronald Blount and Debra
Bell, Appellants, v. Philadelphia Parking Authority, Case Nos.
828 C.D. 2017, 938 C.D.2017 (Pa. Cmmw.), Judge Robert Simpson of
the Commonwealth Court of Pennsylvania reversed the Court of
Common Pleas of Philadelphia County's grant of summary judgment
in the Authority's favor, quashed the appeal, and remanded the
case for further proceedings.
Licensees Z&R Cab, Zoro, Blount, and Bell brought a class action
under 42 U.S.C. Section 1983, seeking refunds of all fees and
assessments paid to the Authority beginning in 2004, under a
state law the Court later declared unconstitutional.
Prior to 2004, the Pennsylvania Public Utility Commission was
responsible to regulate taxicab and limousine operations in
Pennsylvania. In 2004, however, the General Assembly transferred
some regulatory responsibility to the Authority in Chapter 57 of
the Parking Authority Law.
The Authority derived its operating revenue from fees and
assessments charged to regulated taxicab and limousine companies.
Under Section 5707(b) of the Parking Authority Law, the Authority
set its own budget and fee schedule by March 15 of each year.
The budget and fee schedule became effective automatically unless
either the House of Representatives or the Senate adopted a
disapproving resolution by April 15 of each year. Licensees had
no legal mechanism to challenge the Authority's fee schedule.
In 2012, several taxicab companies sued the Authority in the
Court, challenging the constitutionality of Former Section
5707(b). The Court declared Former Section 5707(b)
unconstitutional on two bases. First, by failing to establish
statutory standards directing the Authority in setting its budget
and fee schedule, the General Assembly impermissibly delegated
its legislative authority to the Authority. Doing so violated the
constitutional mandate of separation of powers among the branches
of government. Second, because the licensees could not challenge
the Authority's fees and assessments, Former Section 5707(b)
violated constitutional due process requirements.
The General Assembly subsequently amended the Parking Authority
Law in an attempt to cure its constitutional infirmities. The
amendments provided legislative oversight and an administrative
process for challenges to the Authority's fees and assessments.
In 2013, following the Court's decision in MCT Transp. v. Phila.
Parking Auth., the Licensees filed a civil rights class action in
the U.S. District Court for the Eastern District of Pennsylvania,
under Section 1983, Z&R Cab, LLC v. Phila. Parking Auth., ("Z&R
I"). The Licensees asserted claims on behalf of themselves and a
putative class consisting of taxicab owners and drivers, taxicab
medallion owners, and other members of the taxicab industry.
In Z&R I, the federal district court held that the Court's
decision in MCT must be applied retroactively to provide a
meaningful remedy to aggrieved parties. However, the federal
district court declined to exercise jurisdiction over the
determination of the appropriate remedy, deferring instead to
Pennsylvania state courts. Accordingly, the Licensees brought
this state court action to pursue remedies under Section 1983.
In their complaint in this litigation, the Licensees requested
that the trial court grant the following relief: (i) to order
that the action may proceed as a class action in which they act
as the class representatives and their counsel act as the class
counsel; (ii) to assess, in advance, against the Authority all
costs of the class notice; (iii) to enter a declaratory judgment
that all sums paid to (or to the use of) the Authority under
authority of the provisions of Former Section 5707(b), from and
including 2004 until the present, were paid in violation of the
Constitution of the United States and in violation of 42 U.S.C.
Section 1983, and are due and owing to the Licensees and to each
class member; (iv) to enjoin the Authority from assessing or
collecting payments from the Licensees and the class members
under authority of the provisions of Former Section 5707(b); (v)
to award the Licensees and each class member all sums paid to (or
to the use of) the Authority under authority of the provisions of
Former Section 5707(b), from and including 2004 until the
present, together with both pre- and post-judgment interest; and
(vi) to award them costs of the action and reasonable attorneys'
fees.
In 2016, the Licensees moved to certify the class. The Authority
opposed the motion for certification. While the motion to
certify the class was pending, the Authority filed a motion for
summary judgment. The trial court granted the Authority's
summary judgment motion and entered judgment in the Authority's
favor on the Licensees' refund claims.
The trial court never held a certification hearing, and never
ruled on the certification motion. The Licensees were therefore
the only Plaintiffs throughout the pendency of the action in the
trial court. Nonetheless, in its ruling on the Authority's
summary judgment motion, the trial court directed the Authority
to provide administrative relief to additional persons and
entities.
Although it expanded the timetable applicable under Section
5707.1(b), the trial court essentially directed the Authority to
afford the putative class members, retroactively, the review
process created by the enactment of Section 5707.1(b). The
Licensees appealed to the Court. The Authority did not cross-
appeal.
On appeal, the Licensees characterize their issues as follows:
(i) whether the trial court erred by proceeding to create a new
administrative procedure that purports to bind an entire class,
in violation of the political question doctrine, having dismissed
all existing claims; (ii) whether the trial court's
administrative procedure is constitutionally infirm because it is
based upon an unconstitutional statute that continues to lack
standards to guide the Authority's fee assessments; (iii) whether
the trial court erred by failing to address lack of fee-setting
standards, the most significant due process violation; (iv) the
awards monetary relief for constitutional violations by relying
on a vacated district court opinion did the trial court err in
holding that the Licensees and putative class members were not
entitled to recover money damages under 42 U.S.C. Section 1983;
and (v) whether the trial court's May 31, 2017 order, which
dismissed all claims of the parties but which nevertheless
continued to bind the Authority, was a final order under Pa.
R.A.P. 341.
Judge Simpson finds that the trial court apparently concluded
that a full refund was not the appropriate remedy for the
Licensees, and it tried to formulate an administrative process
that would allow them to seek properly limited retroactive
relief. However, the trial court lacked authority to impose the
remedy it created in this action. As to the putative class
members, they were not parties to the action, and the trial
court's decision could not affect them. As to the Licensees,
they did not request relief other than a refund, and they did not
plead a general prayer for relief that would have allowed the
trial court to grant relief different in kind from what Licensees
sought.
The Judge holds that the summary judgment was not appropriate in
the case, because fact issues remain to be determined. The trial
court's formulated remedy itself anticipated fact determinations
during the administrative review process; this demonstrates that
questions of fact remain concerning the amount of any refunds
Licensees may receive. There are also unresolved issues of mixed
fact and law concerning how far back in time Licensees can reach
in seeking relief.
By simply denying all refund claims and directing an
administrative review, the Judge the trial court abdicated its
duty to resolve the Licensees' claims under Section 1983 and
sought to transfer that responsibility to the Authority. In so
doing, the trial court committed an error of law. Further, he
says the trial court erred by creating and imposing its own
remedy without notice to or input from the parties.
Accordingly, Judge Simpson reversed the trial court's grant of
summary judgment in the Authority's favor, quashed the appeal,
and remanded the case for further proceedings consistent with his
Opinion.
A full-text copy of the Court's April 13, 2018 Opinion is
available at https://is.gd/BC09OA from Leagle.com.
John Kerry Weston -- jweston@sackslaw.com -- Jeremy Edward Abay
-- jabay@sackslaw.com -- Sacks Weston Diamond, LLC, for
Appellants, Zoro, Inc., Z&R Cab, LLC, Ronald Blount and Debra
Bell.
Patrick J. Doran -- pdoran@archerlaw.com -- Gary Dean Fry --
gfry@archerlaw.com -- Archer & Greiner, P.C., Dennis Gerard
Weldon, Jr., Philadelphia Parking Authority, for Appellees,
Philadelphia Parking Authority.
PIGGLY WIGGLY: Settles Class Action for $8.7-Mil.
-------------------------------------------------
The Post and Courier reports that several thousand former Piggly
Wiggly Carolina Co. Inc. workers would split up to $8.7 million
to settle a federal class-action lawsuit that alleged senior
executives carted away millions as the Charleston-based
supermarket chain collapsed.
Founded in 1947 by Joseph T. Newton Jr., Piggly Wiggly Carolina
became the largest franchise operator of Piggly Wiggly stores in
the nation, with more than 100 spread across the Carolinas and
Georgia. Over time, the Newton family sold shares to the
employees.
Piggly Wiggly Carolina's fortunes went south in the mid-2000s as
the second-generation managers turned over the reins to the
third. Employees watched their stock-ownership accounts shrivel.
The defendants, including senior management, denied any
wrongdoing. The settlement didn't identify the number of
employees who might be eligible for the money, but the employee
stock plan has had upwards of 4,000 participants, documents show.
The employees' lawyers could be awarded up to one-third of the
total settlement. [GN]
PINNACLE ENTERTAINMENT: Allen, et al. Seek to Certify 5 Classes
---------------------------------------------------------------
In the lawsuit captioned RICHARD L. ALLEN, et al., the Plaintiff,
v. PINNACLE ENTERTAINMENT, INC., et al., the Defendants, Case No.
4:17-cv-00374-GAF (W.D. Mo.), the Plaintiff seeks to certify five
classes of employees working at the Defendant's casinos within
the State of Missouri:
a. MMWL Time-Clock Rounding Class:
"all persons currently and formerly employed by Defendants
within the state of Missouri in hourly positions who worked
at any time during the two-year period preceding the filing
of the instant lawsuit";
b. MMWL Unlawful Tip Pool Class:
"all persons currently and formerly employed by Defendants
within the state of Missouri in hourly positions who
participated in a tip pool at any time during the two-year
period preceding the filing of the instant lawsuit";
c. MMWL Table Games Supervisor Class:
"all persons currently and formerly employed by Defendants
within the state of Missouri as Table Games Supervisors,
and others with similar job titles, duties, and
compensation structures who were subjected to a policy of
denying compensation at a rate of one and one-half times
their regular rate of pay for all hours worked in excess of
forty in a workweek, who worked at any time during the two-
year period preceding the filing of the instant lawsuit";
d. Missouri Unjust Enrichment Class:
"all persons currently and formerly employed by Defendants
within the state of Missouri in hourly positions or as a
Table Games Supervisor who worked at any time during the
five-year period preceding the filing of the instant
lawsuit"; and
e. Missouri Breach of Contract Class:
"all persons currently and formerly employed by Defendants
within the state of Missouri in hourly positions or as a
Table Games Supervisor who worked at any time during the
five-year period preceding the filing of the instant
lawsuit"
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=bLUIhY7Y
The Plaintiff is represented by:
Matthew E. Osman, Esq.
Kathryn S. Rickley, Esq.
OSMAN & SMAY LLP
8500 W. 110th Street, Suite 330
Overland Park, KS 66210
Telephone: (913) 667 9243
Facsimile: (866) 470 9243
E-mail: mosman@workerwagerights.com
krickley@workerwagerights.com
- and -
Ryan L. McClelland, Esq.
McCLELLAND LAW FIRM
The Flagship Building
200 Westwoods Drive
Liberty, MO 64068-1170
Telephone: (816) 781 0002
Facsimile: (816) 781 1984
E-mail: ryan@mcclellandlawfirm.com
PRECISION MOTOR: Class Certification Denied without Prejudice
-------------------------------------------------------------
In the lawsuit captioned Jerome Ratliff Jr., the Plaintiff, v.
Precision Motor Transport Group, LLC, the Defendant, Case No.
1:17-cv-07196 (N.D. Ill.), the Honorable Gary Feinerman entered
an order denying the Plaintiff's motion for class certification
without prejudice.
According to the docket entry made by the Clerk on June 4, 2018,
the Plaintiff's motion for class certification is denied without
prejudice to renewal after the stay is lifted. The Defendant
shall not in any way attempt to "buy off" or otherwise moot
Plaintiff's claim until 28 days have passed after the stay is
lifted.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=wgHyfn5T
PREMIER HEALTH: Faces Class Action Over High Medical Bills
----------------------------------------------------------
Kaitlin Schroeder, writing for Dayton Daily News, reports that an
Oakwood man and parents of a Shelby County teen have filed a
lawsuit arguing they were unfairly charged high medical bills
when they went to an in-network hospital for care but were
unknowingly given an out-of-network plastic surgeon who did the
work.
The patients are seeking class action status in a suit filed
May 2 in Montgomery County Common Pleas Court. The suit is
against the hospital operator, Premier Health, and the on-call
plastic surgeon, Dr. Kenneth Christman.
The plaintiffs, represented by Sadlowski & Besse, are asking the
court to declare their case a class action lawsuit. They are
also asking the court to declare the acts alleged in the lawsuit
to be unlawful and for the court to stop Premier and Christman
from "engaging in further unlawful activity." The plaintiffs are
seeking damages to be determined at trial, as well as attorneys
fees paid for.
"We have no comment on this case at this time," Premier Health
said in a statement.
Dr. Christman deferred to his attorney, Caroline Gentry, with
Porter Wright, who did not return requests for comment.
The first plaintiff, Reid Rupp, 20, of Oakwood, was taken by
ambulance to Miami Valley Hospital after a bicycle accident
December 2016 at Miami University, where he is a student. He
received plastic surgery for injuries to his face and jaw, the
lawsuit states.
Dr. Christman and Miami Valley Hospital officials did not
disclose prior to performing the surgery that he was not in-
network with any insurance company, the lawsuit states.
If Dr. Christman was in network with Rupp's insurance, Anthem,
Dr. Christman's practice and the insurer would have a pre-agreed
discounted rate.
Since there was not an in-network deal, the lawsuit said the
insurer paid Dr. Christman about $1,823, which the insurer
considered to be a fair price. Dr. Christman said a fair price
was $19,108. Rupp was eventually named responsible for a $17,031
balance.
Mr. Rupp's medical bills at Miami Valley Hospital totaled more
than of $70,000 and his insurer paid for all services except the
balance of the bill from Dr. Christman, the lawsuit states.
The other plaintiffs are the Sidney parents of a 17-year-old,
Ed Garrett. Their son, covered under their insurance policy, was
flown by helicopter to Miami Valley Hospital October 2016
following a car crash, according to the suit.
The suit says the insurer paid Dr. Christman $13,140, which the
insurer considered the amount that it would have paid if
Dr. Christman was in-network. The Garretts were billed by
Dr. Christman for a $9,458 balance.
In total, the Garretts' medical bills at Miami Valley Hospital
were more than $200,000, the suit says. The Garretts' insurer
paid for all services except the balance of the bill they
received from Christman because he did not accept insurance and
was considered out-of-network.
"Upon information and belief, both Premier and Dr. Christman have
received numerous complaints and grievances from patients over
the course of years regarding their illegal and unethical
conduct," the lawsuit states. "Nonetheless, Defendants have
knowingly and willfully continued the foregoing scheme because
both Defendants gain financially by continuing to generate
increased medical fees." [GN]
QUEENS VILLAGE: Reed et al. Sue over Pension Plan Contributions
---------------------------------------------------------------
MADELINE REED, RONALD SUMTER, AND STEPHANIE PEMBERTON, on behalf
of themselves and all other similarly situated pension plan
participants, and on behalf of the J-CAP PENSION PLAN, the
Plaintiffs, v. QUEENS VILLAGE COMMITTEE FOR MENTAL HEALTH FOR
JAMAICACOMMUNITY ADOLESCENT PROGRAM, INC., Plan Administrator,
The J-Cap Pension Plan; DIANE GONZALEZ, NILDA RUIZ, NANCY BRINN,
Fiduciaries, The J-Cap Pension Plan, the Defendants, Case No.
1:18-cv-03114 (E.D.N.Y., May 25, 2018), seeks preliminary and
permanent injunctions against (i) Plan Administrator Queens
Village, forbidding it from authorizing Diane Gonzalez, Nancy
Brinn and Nilda Ruiz from having any authority or responsibility
of any kind with respect to the pension plan, and (ii) Diane
Gonzalez, Nancy Brinn and Nilda Ruiz, forbidding them from taking
any action of any kind with respect to the pension plan, pending
further order of the Court.
This civil action is brought by the plaintiffs on behalf of
themselves and all participants in the pension plan eligible for
a contribution during the 2008, 2009 or 2010 plan years, and on
behalf of the pension plan itself, against the plan's
administrator and named fiduciary, the Queens Village Committee
for Mental Health, and plan fiduciaries Diane Gonzalez, Nancy
Brinnand Nilda Ruiz.
According to the complaint, Queens Village failed to make the
contributions to the pension plan for each of the 2008, 2009 and
2010 pension plan years that were required by the terms of the
pension plan. Effective for the pension plan year starting on
July 1, 2011, the pension plan was amended to reduce the
employer's contribution from 7% to 1%.[BN]
The Plaintiff is represented by:
Robert L. Liebross, Esq.
LAW OFFICE OF ROBERT L. LIEBROSS
39 Broadway, Suite 1620
New York, NY 10006
Telephone: (212) 566 2151
E-mail: rliebross@liebrosslaw.com
QUEST DIAGNOSTICS: Corona Sues over Disability Discrimination
-------------------------------------------------------------
JUDITH VAZQUEZ CORONA, the Plaintiff, v. QUEST DIAGNOSTICS
INCORPORATED; and JOHN DOES 1-5 AND 6-10, the Defendants, Case
No. CAM-L-001932-18 (N.J. Super. Ct., May 23, 2018), seeks to
recover damages caused by Defendant's violation of the New Jersey
Law Against Discrimination, alleging disability discrimination,
perception of disability discrimination and/or unlawful
retaliation. The Plaintiff asks the Court to order the
Defendants to cease and desist all conduct inconsistent with the
claims, both as to the specific plaintiff and as to all other
individuals similarly situated.
According to the complaint, the Plaintiff attempted to work
through the pain in her shoulder, but on August 23, 2017, advised
Mr. Bouchard that she was in too much pain to work. Mr. Bouchard
then issued plaintiff written discipline. The Plaintiff
complained about that written discipline to Defendant's human
resources department and the write-up was removed from her file.
The Plaintiff visited with her surgeon on September 7, 2017, at
which time she was advised that he surgery may have been
complicated by the injury caused by the patient. The Plaintiff
returned to work the following day and filed a workers'
compensation claim. That same day, Joy Lemba, who worked in
Defendant's employee health services department and who plaintiff
had never met, falsely accused plaintiff of having disrupted the
work environment by swearing at her and other individuals. The
allegation was false as plaintiff had never engaged in such
conduct. The Plaintiff then began a medical leave from September
8, 2017 until December 11, 2017. By taking a medical leave,
plaintiff engaged in protected conduct under the LAD. During
plaintiff's medical leave, Ms. Lemba hounded plaintiff several
times to return to work. Upon plaintiff's return to work,
defendant assigned plaintiff to its office located at 1225
Whitehorse Mercerville Road, Suite 201, Hamilton Township, New
Jersey. The following day, December 12, 2017, defendant
terminated Plaintiff's employment.
Quest Diagnostics Incorporated is an American clinical laboratory
with headquarters in Madison, New Jersey. Founded in 1967 as
Metropolitan Pathology Laboratory, Inc., it became an independent
corporation with the Quest name on December 31, 1996.[BN]
The Plaintiff is represented by:
Daniel T. Silverman, Esq.
COSTELLO & MAINS, LLC
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
Telephone: (856) 727 9700
RD ENTERPRISES: Fails to Pay Minimum Wage & OT, Dube Says
---------------------------------------------------------
KATHRYN DUBE, Individually and on behalf of all others similarly
situated, the Plaintiff, v. RD ENTERPRISES LLC, and THOMAS E
DORFMAN, the Defendants, Case No. 18-1584 (Mass. Super., June 1,
2018), seeks to recover minimum wage and overtime pay under
Weekly Payment of Wages Act.
The Plaintiff brings this class action against her former
employer, RD Enterprises LLC, and its manager, Thomas Dorfman,
for the non-payment of earned wages in violation of state law.
The Defendants operate a telecommunications company, employing
salespeople who sell telecommunications packages. These employees
routinely work in excess of 40 hours each work, but the
Defendants do not pay them overtime wages. Moreover, the
Defendants routinely fail to pay these salespeople the applicable
minimum wage for all hours worked.
RD Enterprises, LLC specializes in marketing and consulting.[BN]
The Plaintiff is represented by:
Stephanie C. Ozahowski, Esq.
Raven Moeslinger, Esq.
Nicholas F. Ortiz, Esq.
LAW OFFICE OF NICHOLAS F. ORTIZ,
PC 99 High Street, Suite 304
Boston, MA 02110 (617) 338 9400
E-mail: rm@mass-legal.com
RISTORANTE LA BUCA: Underpays Wait Staff, Wright Claims
-------------------------------------------------------
NICHOLAS J. WRIGHT, on behalf of himself and all others similarly
situated, the Plaintiff, v. RISTORANTE LA BUCA INC. d/b/a
RISTORANTE LA BUCA; JEANIE GIULIANI; RICHARD GIULIANI; and DOE
DEFENDANTS 1-10, the Defendant(s), Case No. 2:18-cv-02207-MAK
(E.D. Pa., May 25, 2018), seeks to recover minimum wages pursuant
to the Fair Labor Standards Act, the Pennsylvania Minimum Wage
Act, the Pennsylvania Wage Payment Collection Law.
According to the complaint, La Buca employs individuals as
"servers" ("waiters" and "waitresses"), "bartenders," "bussers,"
and "food runners", who are and/or were subjected to Defendants'
unlawful pay practices. Due to Defendants' unlawful failure to
properly inform Tipped Employees of its intention to utilize a
"tip credit," Defendants have improperly applied a "tip credit"
against the wages paid to Plaintiff and current and former Tipped
Employees, thus paying them less than the mandated minimum
wage.[BN]
Counsel for Plaintiff(s) and the Proposed Class:
Arkady "Eric" Rayz, Esq.
Demetri A. Braynin, Esq.
KALIKHMAN & RAYZ, LLC
1051 County Line Road, Suite "A"
Huntingdon Valley, PA 19006
Telephone: (215) 364 5030
Facsimile: (215) 364 5029
E-mail: erayz@kalraylaw.com
dbraynin@kalraylaw.com
- and -
Gerald D. Wells, III, Esq.
Robert J. Gray, Esq.
CONNOLLY WELLS & GRAY, LLP
2200 Renaissance Blvd., Suite 275
King of Prussia, PA 19406
Telephone: (610) 822 3700
Facsimile: (610) 822 3800
E-mail: gwells@cwglaw.com
rgray@cwglaw.com
RJ REYNOLDS: Not Liable for Cuban Immigrant's Lung Cancer
---------------------------------------------------------
Florida Record reports that lawyers for two big tobacco companies
defending themselves against charges that they were responsible
for the lung cancer of an individual are arguing that a Cuban
native began smoking long before he came to the United States and
used their brands.
The widow of Cuban-born Juan Lopez, who died in 1994, is suing
Phillip Morris and RJ Reynolds, claiming the tobacco companies
were responsible for the man's lung cancer because they
suppressed information and continued to deny cigarettes were
dangerous and defective as late as 2000.
Mr. Lopez's family sued under the Engle class ruling, which has
led to the filing of thousands of individual lawsuits in Florida.
The trial began on May 25 in Miami-Dade County Court.
It stems from the 1994 filing of a class action that ultimately
led to a jury awarding $145 billion in punitive damages against
the companies. An appellate court reversed the award, a finding
to which the state Supreme Court agreed, but crucially made clear
that those issues decided in the class action could be argued
against in the individual cases.
And that means the juries begin their deliberations understanding
the fact that cigarettes are addictive, dangerous, and the cause
of multiple diseases, and that the tobacco companies were
negligent, and committed fraud and conspiracy. It leaves little
room to maneuver for the defense in the 2,700 individual cases
still pending.
In opening arguments, lawyers for RJ Reynolds and Philip Morris
both argued that Lopez was smoking for 20 years before arriving
in the U.S. in 1979, and that therefore he cannot claim damages
under the Engel principles.
There was an important culture of smoking cigarettes in Cuba --
indeed more popular earlier in that country than in the U.S., the
jury was told.
That was where Lopez began to smoke, continued to smoke, and that
was sufficient to cause his lung cancer long before he ever
smoked U.S. brands, it was argued.
The plaintiff must prove causation, the attorney for RJ Reynolds
said, adding that the jury should remember this is about one
smoker, that it is an individual case.
Further, it was well known in Cuba that cigarettes were dangerous
and addictive, and that Lopez was surrounded by warnings in both
countries.
An attorney for Mr. Lopez walked the jury through the history of
cigarette smoking in the U.S., and the "conspiracy" by the
tobacco companies that led to the aggressive campaign to counter
information regarding cigarettes' dangers beginning in the mid
1950s.
He also pointed out that cigarettes were the most heavily
marketed products in the U.S. from the 1960s through the 1980s.
When Mr. Lopez got off that plane in 1979, he walked into a
culture, walked into a society, and walked into the new world,
the attorney said.
The plaintiff's team will, however, be focusing on those years
from 1979 to 1993, when the Cuban native contracted cancer.
They will argue that the marketing continued to be hugely
aggressive during the 1980s, and will focus on advertising to the
Hispanic community, including the Cuban population of south
Florida.
Even after the surgeon general definitively stated in 1988 that
nicotine was a drug and highly addictive, the tobacco companies
remained in denial, it was argued in opening statements.
Mr. Lopez comes under the Engle class because he contracted
cancer prior to the 1996, the cut-off point, the jury heard.
Earlier, another Florida jury, in Sarasota, awarded a $10 million
punitive award against Philip Morris and $4 million against RJ
Reynolds. It was the second damages phase of the trial over the
death of Fred Theis. With compensatory, total damages awarded
were $21 million.
The jury found Philip Morris to be 60 percent responsible for
Mr. Theis' lung cancer, with Reynolds at 15 percent and 25
percent to the deceased.
While there have been a number of recent large multimillion
dollar awards against tobacco companies, one trial in March ended
with the jury awarding no money to the smoker's widow despite
that RJ Reynolds was partially responsible,
The jury, however, attributed 95 percent of the blame for the
fatal cancer on the smoker. [GN]
ROCKWOOD RECOVERY: Nathaniel Seeks to Certify Two Classes
---------------------------------------------------------
In the lawsuit captioned SANDY NATHANIEL and all others similarly
situated, the Plaintiffs, v. ROCKWOOD RECOVERY INC., the
Defendant, Case No. 2:17-cv-12365-GCS-DRG (E.D. Mich.), the
Plaintiff asks the Court for certification of two classes:
Fair Debt Collection Practices Act Class:
"all persons who, within one year prior to the filing of this
lawsuit, had a vehicle repossessed by theDefendant and were
told by the Defendant that they could not recover personal
property left in the repossessed vehicle unless they paid a
fee to the Defendant"; and
State Law Class:
"all persons who, within six years prior to the filing of this
lawsuit, had a vehicle repossessed by the Defendant and were
told by the Defendant that they could not recover personal
property left in the repossessed vehicle unless they paid a
fee to the Defendant.
The Plaintiff also asks the Court for her appointment as the
class representative, and her counsel as class counsel.
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=3RKaiGsq
Attorneys for Plaintiff:
Adam G. Taub, Esq.
ADAM G. TAUB & ASSOCIATES
CONSUMER LAWGROUP, PLC
17200 West 10 Mile Rd. Suite 200
Southfield, MI 48075
Telephone: (248) 746 3790
E-mail: adamgtaub@clgplc.net
- and -
Michael O. Nelson, Esq.
1104 Fuller NE
Grand Rapids, MI 49503
Telephone: (616) 559-2665
E-mail: mnelson@michconsumerlaw.com
RUSSELL P. GOLDMAN: Court Certifies New Jersey Consumers Class
--------------------------------------------------------------
In the lawsuit captioned BRIAN P. CARNEY and WILLIAM C. GUMPPER,
JR., the Plaintiffs, v. RUSSELL P. GOLDMAN, P.C. and JOHN DOES
1-25, the Defendants, Case No. 3:15-cv-00260-BRM-DEA (D.N.J.),
the Hon. Judge Brian R. Martinotti entered an order:
1. denying Goldman's motion for summary judgment;
2. granting Plaintiffs' motion to certify a class of:
"all New Jersey Consumers who were sent notices or letters
from [Goldman] prior to [Goldman] obtaining a judgment,
against the such consumer, during the period between
January 13, 2014 and March 20, 2017, concerning a debt
allegedly owed to New Jersey Higher Education Student
Assistance Authority, which stated in part: There remains
due a balance as show above, which includes interest and
collection costs."
3. designating Plaintiffs as Class Representatives for the
Class;
4. certifying Joseph K. Jones, Esq., and Benjamin J. Wold,
Esq. of Jones, Wolf & Kapasi, LLC as Class Counsel for the
Class; and
5. directing Plaintiffs' counsel to submit an appropriate
motion for approval of class notification for the Court's
approval within 30 days of entry of the accompanying Order.
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=3hwTHqPm
SADDLE PEAK: Walters Seeks Minimum Wages for Manager Trainees
-------------------------------------------------------------
JAZMINE WALTERS, Individually and on Behalf of All Others
Similarly Situated, the Plaintiff, v. SADDLE PEAK, LLC, d/b/a
HARDEE'S, the Defendant, Case No. 4:18-cv-00354-BSM (E.D. Ark.,
May 25, 2018), seeks to recover declaratory judgment, monetary
damages, liquidated damages, prejudgment interest, and costs,
including reasonable attorneys' fees, as a result of Defendant's
failure to pay Plaintiff and other Managers lawful minimum wages
and overtime compensation for hours worked in excess of 40 hours
per week under the Fair Labor Standards Act, and the Arkansas
Minimum Wage Act.
According to the complaint, the Defendant has practices requiring
minimum staffing levels at its restaurants that make it necessary
for employees who train for Manager positions to work more than
40 hours per week during their training period. The Defendant
directly hired Plaintiff and other Managers, paid them wages and
benefits, controlled their work schedules, duties, protocols,
applications, assignments and employment conditions, and kept at
least some records regarding their employment. The Plaintiff and
other Managers regularly worked in excess of 40 hours per week
during their training period.
Defendant is a fast food eatery company having its principal
place of business in Little Rock.[BN]
The Plaintiff is represented by:
Steve Rauls, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221 0088
Facsimile: (888) 787 2040
E-mail: steve@sanfordlawfirm.com
josh@sanfordlawfirm.com
SANDBOX ENTERPRISES: Sykes Seeks Overtime Wages under FLSA
----------------------------------------------------------
JARVIS SYKES, individually and on behalf of all similarly
situated employees, the Plaintiff, v. SANDBOX ENTERPRISES, LLC,
SANDBOX TRANSPORTATION, LLC, AND SANDBOX LOGISTICS, LLC, the
Defendants, Case No. 4:18-cv-01748 (S.D. Tex., May 25, 2018),
seeks to recover overtime wages, liquidated damages, attorneys'
fees, costs, and interest under the Fair Labor Standards Act.
According to the complaint, the Plaintiff regularly worked 14
consecutive days, 14 hours each day, with approximately 7 days of
rest before the next 14-day work period. The Plaintiff frequently
worked more than 40 hours per week while employed by Defendants.
The Defendants owe Plaintiff liquidated damages in the same
amount as the overtime wages they owe him. The Defendants are
also responsible for paying Plaintiff's attorneys' fees and costs
associated with prosecuting this lawsuit.
Sandbox Enterprises, LLC operates in energy industry.[BN]
Attorney-in-Charge for Plaintiff Jarvice Sykes and all named and
Opt-In Plaintiffs:
Dennis A. Clifford, Esq.
THE CLIFFORD LAW FIRM, PLLC
712 Main Street, Suite 900
Houston, TX 77002
Telephone: (713) 999 1833
Facsimile: (866) 232 0999
E-mail: dennis@cliffordemploymentlaw.com
SANTA FE BAR: Settles Workers' Wage Class Action
------------------------------------------------
The New Mexican reports that five workers from the Santa Fe Bar &
Grille recently finalized a settlement for an undisclosed amount
over complaints regarding overtime, minimum wage and retaliation
they filed with the city of Santa Fe, the New Mexico Department
of Workforce Solutions and the National Labor Relations Board.
The workers, two of whom still work at the restaurant, filed the
wage claims March 9 at the Department of Workforce Solutions.
They filed the claims after First Judicial District Judge David
K. Thomson approved a class-action settlement between Workforce
Solutions, Somos Un Pueblo Unido and several other worker
organizations that called for stronger enforcement of state wage
and hour laws, according to Somos Un Pueblo Unido.
The workers -- Yessenia Sanchez, Iliana Garcia, Jesus Salas
Torres, Maudelia Ordo¤ez and Mar¡a Siliezar Sanchez -- withdrew
their complaints after reaching an agreement with Santa Fe Bar &
Grille in the DeVargas Center mall on Paseo de Peralta. The
agreement came through mediation, according to Somos Un Pueblo
Unido.
"I think everybody's happy now," Santa Fe Bar & Grille owner
Robbie Day said on May 25. "All of the complaints and issues
have been resolved." [GN]
SECURUS TECHNOLOGIES: Seeks to Certify Class of Attorneys
---------------------------------------------------------
In the lawsuit entitled David Johnson, individually and on behalf
of all others similarly situated, the Plaintiff, v. Corecivic,
and Securus Technologies, Inc., the Defendants, Case No. 4:16-cv-
00947-SRB (W.D. Mo.), the Plaintiff asks the Court for class
certification of:
"all attorneys who were, are, or will represent
clients/detainees who are detained at CCA-Leavenworth, from
August 31, 2013 to the present, plus periods of tolling, who
communicated with clients, and whose communications have been
intercepted, disclosed or used by Defendant and/or its
affiliates."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=V7oClkHI
Attorneys for Plaintiff:
Michael Hodgson, Esq.
THE HODGSON LAW FIRM, LLC
3699 SW Pryor Road
Lee's Summit, MO 64082
Telephone: (816) 600 0117
Facsimile: (816) 600 0137
E-mail: mike@thehodgsonlawfirm.com
- and -
Lance Sandage, Esq.
SANDAGE LAW LLC
1600 Genessee Street, Suite 314
Kansas City, MO 64102
Telephone: (816) 753 0800
Facsimile: (816) 735 4602
E-mail: lance@sandagelaw.com
- and -
Joseph K. Eischens, Esq.
LAW OFFICE OF JOSEPH K. EISCHENS
1321 Burlington St., Suite 202
North Kansas City, MO 64116
Telephone: (816) 945-6393
E-mail: joe@jkemediation.com
Attorneys for Corecivic:
Hal Meltzer, Esq.
BAKER STERCHI COWDEN & RICE, L.L.C.:
2400 Pershing Road, Suite 500
Kansas City, MO 64108
Telephone: (816) 471 2121
Facsimile: (816) 472 0288
E-mail: meltzer@bscr-law.com
Attorneys for SECURUS TECHNOLOGIES, INC.:
Lowell D. Pearson, Esq.
R. Ryan Harding, Esq.
Taylor B. Concannon, Esq.
HUSCH BLACKWELL LLP
235 East High Street, Suite 200
P.O. Box 1251
Jefferson City, MO 65102
Telephone: (573) 635 9118
Facsimile: (573) 634 7854
E-mail: lowell.pearson@huschblackwell.com
ryan.harding@huschblackwell.com
taylor.concannon@huschblackwell.com
SHENANDOAH VALLEY: Child Detainees File Class Action Over Abuse
---------------------------------------------------------------
Alex Kotch, writing for TYT Network, reports that the U.S.
government has paid at least four private companies that have
been accused of physical or sexual abuse, or discrimination, to
help transport or house undocumented children from Central and
South America, federal contracts show. One case was fatal.
Recent policy changes and statements by the administration have
brought the government's handling of these children into sharp
focus.
On May 26, President Trump erroneously tweeted, "Put pressure on
the Democrats to end the horrible law that separates children
from there [sic] parents once they cross the Border." It was not
immediately clear to which law President Trump was referring, but
on May 7, Attorney General Jeff Sessions announced a new
prosecution policy that could lead to the separation of virtually
all undocumented families arriving with children.
"If you cross the border unlawfully, even a first offense, we're
going to prosecute you," Mr. Sessions said. "If you're smuggling
a child, we're going to prosecute you, and that child will be
separated from you, probably, as required by law."
The new policy ignited public interest in the fate of such
children and in Senate testimony this April by the head of the
Office of Refugee Resettlement (ORR), Steven Wagner, that in the
final three months of 2017, the office was unable to locate
nearly 1,500 undocumented children it had placed in private
homes. Mr. Wagner said the agency is not legally responsible for
the children once they've left an ORR shelter for foster care,
adding that his office is "taking a fresh look at that question."
ORR, part of the Department of Health and Human Services (HHS),
contracts with public and private agencies and companies to
shelter undocumented kids who entered the United States alone or
who were separated from their parents by the Department of
Homeland Security (DHS). Businesses contracted by ORR were
identified in a TYT review of government spending data. Attempts
to reach the businesses for comment were unsuccessful.
It's unclear whether any of the ORR-funded companies dealt with
children HHS has been unable to locate. The contractors that
have been subject to complaints include three shelters and one
company involved in transporting detained children. The
companies have won contracts worth tens of millions of dollars.
Complaints against them range from as far back as 2001 to as
recently as this year.
The Shiloh Treatment Center of Manvel, Texas, received over $9.1
million in "unaccompanied alien children program" HHS contracts
that began in February 2017 and conclude in January 2020. During
the Obama Administration, Shiloh got a similar $16.6 million
contract that ended in 2017.
Prior to these contracts, Texas officials documented a host of
physical abuses by Shiloh staff. One child died in 2001 due to
exertion from being restrained. ORR reportedly later found
Shiloh to be "in compliance" with state requirements.
(Shiloh's owner, Clay Dean Hill, owned another company, Daystar
Residential, where at least two children died. A 15-year-old
girl died of asphyxiation in 2002 at Daystar, and the death was
ruled a homicide. Another teen died in 2010 while being
restrained inside a closet, and it was also ruled a homicide,
after which Texas officials shut down Daystar. Hill told the
Houston Chronicle he took the incidents seriously and sought to
make improvements afterward.)
Another shelter business, International Educational Services
(IES), is headquartered in Los Fresnos, Texas, roughly 15 miles
from the Mexican border. IES operates a number of shelters in
southern Texas and has received tens of millions of dollars worth
of HHS grants, including a $9.3 million contract in April 2017
for the care and placement of undocumented children.
The company closed down two Los Fresnos shelters in March after
HHS did not renew its funding for them. Neither the company nor
HHS commented publicly on the decision at the time. However, The
Monitor newspaper of Texas reported in March that, "during the
past two years, the Texas Department of Health and Human Services
has inspected the facilities 349 times and discovered a total of
116 deficiencies that include a range of inappropriate sexual
behavior, lapses in foster care home oversight, problems with
administering medical care and the improper punishment of
children." According to public records, HHS has revised all
grant amounts to $0. It's unclear whether this means these
agreements were terminated. TYT was unable to reach IES for
comment.
Allegations of child and employee abuse have been leveled against
federally funded companies operating far from the border, as
well.
In February 2017, the Shenandoah Valley Juvenile Center got two
three-year contracts totaling $8 million to shelter undocumented
kids in Virginia. It is reportedly one of two U.S. maximum
security facilities that house unaccompanied, undocumented
children. In October, child detainees filed a class-action
lawsuit against the shelter alleging "brutal, inhumane
conditions" and abuse. In another lawsuit, a former employee
alleges that he was fired from Shenandoah because of his race.
Executive Director Timothy Smith was unavailable for comment on
May 28. Shenandoah officials previously told Frontline that the
abuse allegations were "without merit" and they planned to
"present evidence at trial that will allow a jury to reach the
same conclusion."
Virginia-based private security contractor MVM has received large
payments from Immigration and Customs Enforcement (ICE) for
transportation of "unaccompanied alien children" in Texas,
including an ongoing $52 million contract. The contracts have
come even as multiple lawsuits accuse the company of racial
discrimination and sexual harassment of employees. In
October, MVM had to pay a fine for racial and religious
discrimination against a Muslim security guard. ICE told TYT
that it "does not handle unaccompanied minor issues" and did not
explain the contract.
According to the Arizona Daily Star, once an undocumented child
is separated from their parents, the child is considered an
"unaccompanied minor." According to the ORR website, "The
majority of unaccompanied alien children are cared for through a
network of state licensed ORR-funded care providers, most of
which are located close to areas where immigration officials
apprehend large numbers of aliens."
ORR states on its website, "HHS is engaging with state officials
to address concerns they may have about the care or impact of
unaccompanied alien children in their states, while making sure
the children are treated humanely and consistent with the law as
they go through immigration court proceedings that will determine
whether they will be removed and repatriated, or qualify for some
form of relief."
It's not clear how many children may have been or currently are
in custody of private contractors with histories of complaints.
ORR did not respond to questions by press time. [GN]
SPEEDAWAY LLC: Court Denies "Teggerdine" Class Certification
------------------------------------------------------------
In the lawsuit styled KARA TEGGERDINE, individually and on behalf
of all others similarly situated, the Plaintiff, v. SPEEDAWAY LLC
and WORLDPAY US, INC., the Defendants, Case No. 8:16-cv-03280-
JDW-TGW (M.D. Fla.), the Court denied Plaintiff's motion to
certify class of:
"all persons residing in the United States who made a gasoline
purchase with Visa payment card at a Speedway station from
November 1, 2016 through and including December 31, 2016 and
has a $125 authorization hold placed on their personal
financial account".
A copy of the Order is available at no charge at
http://d.classactionreporternewsletter.com/u?f=bwUroP8H
STATE STREET: Ark. Pension Fund Exec Ordered to Appear at Hearing
-----------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that in an ominous
order on May 25, U.S. District Judge Mark Wolf of Boston
instructed the executive director of the Arkansas Teacher
Retirement System to appear at a hearing May 30 to defend the
pension fund's conduct as lead plaintiff in a $300 million class
action against State Street Bank. This is no ordinary adequacy
hearing: Judge Wolf said he has questions for fund officials
based on a still-confidential report by a special master he
appointed to investigate $75 million in fees awarded to
plaintiffs' lawyers from Labaton Sucharow, Lieff Cabraser Heimann
& Bernstein and Thornton Law Firm. The judge wants to know
whether the pension fund failed to safeguard the interests of
State Street customers and whether the fund and its lawyers
should be bounced from the case.
The May 30 hearing was likely to expose "substantial
shenanigans," said class action activist Ted Frank of the
Competitive Enterprise Institute, an amicus in the State Street
case. It's rare, he said, for courts to examine the mechanics of
relationships between institutional lead plaintiffs and their
counsel, but Judge Wolf's order suggests the State Street special
master did. "Somebody did the digging and it's apparently
explosive," Mr. Frank said.
A Labaton spokesman responded to my email to the Arkansas pension
fund's executive director, George Hopkins, with an email
statement. "George Hopkins, the executive director of the
Arkansas Teacher Retirement System -- the lead plaintiff in this
case -- was instrumental in securing an excellent result for the
class, reportedly the largest recovery under Massachusetts
consumer statutes and one of the largest settlements achieved in
the 1st Circuit," the statement said. "We continue to have every
confidence in George Hopkins and ATRS' integrity in serving as
lead plaintiff in this successfully resolved case." Richard
Heimann of Lieff Cabraser said in an email that he is traveling
and unable to comment ahead of the May 30 hearing.
Judge Wolf appointed retired federal judge Gerald Rosen of
Detroit in 2017 to investigate the billing records submitted by
Labaton, Thornton and Lieff after a blockbuster 2016 Boston Globe
story revealed apparent overbilling in the case, in which State
Street customers claimed the bank inflated fees for foreign
exchange transactions. (In a letter to the judge before the Globe
story appeared, Labaton conceded that its review of timesheets in
response to Globe inquiries showed $4 million in inadvertent
double-billings, but contended the reduced lodestar should not
impact the fee award, which was based on a percentage of the $300
million settlement.) Judge Wolf ordered Labaton to put up $2
million to cover the cost of the special master's investigation.
Judge Rosen, as special master, did not restrict the
investigation to a mere review of billing records. In a request
in February for a third extension of time to file a report, Judge
Rosen revealed "unexpected developments" in the investigation.
He said he had hired an ethics expert, Stephen Gillers of New
York University, to respond to an expert opinion submitted by the
plaintiffs' firms. Mr. Gillers' 85-page report, Judge Rosen
said, reached conclusions with potentially "serious and far-
reaching adverse ramifications" -- not just for the plaintiffs'
firms in the State Street case but for the entire class action
bar and even judges overseeing the cases. Labaton, Lieff and
Thornton, Rosen said, wanted time to respond to Mr. Gillers,
considering that "the stakes for their clients are
extraordinarily high in this matter."
That's pretty tantalizing stuff. So is the revelation in Judge
Wolf's order on May 25 that the full Rosen report, which was
submitted under seal on May 14, totals at least 371 pages. The
executive summary alone is more than 50 pages. And at least some
parts of the report "raise questions concerning whether ATRS
properly discharged its duties as lead plaintiff." Judge Wolf
has not set a date for the release of a redacted version of the
Rosen report, which makes the May 30 hearing with pension fund
officials all the more intriguing.
The Arkansas folks had better be prepared for a grilling, if
Judge Wolf's recent history is a guide. As the judge noted in
his order on May 25, he recently cut no slack to a prospective
lead plaintiff in a securities class action against the
pharmaceutical company Tokai. When the lead plaintiff candidate,
an individual investor, showed confusion about his contacts with
the many law firms purporting to represent him, the judge
actually raised the specter of perjury. Unsurprisingly, the
prospective lead plaintiff withdrew his application. No other
candidates stepped up so plaintiffs' lawyers ended up dropping
the case in federal court.
The Arkansas teachers' fund is infinitely more sophisticated than
the Tokai investor, of course. According to records from the
Stanford Securities Class Action Clearinghouse, ATRS has been
named a lead plaintiff in three securities class actions in just
the first six months of 2018 (in cases against OSI Systems, GE
and Frontier Communications), after at least three lead plaintiff
appointments last year (against Aaron's, Babcock & Wilcox and
RH).
If defense lawyers in those cases are smart, they ought to be
waiting to see what happens in Judge Wolf's courtroom. [GN]
STEINHOFF INT'L: Sygnia Plans to Join Deminor Recovery's Suit
-------------------------------------------------------------
Hanna Ziady, writing for Business Live, reports that Sygnia plans
to join the class action to be instituted by Deminor Recovery
Services against Steinhoff, after it lost R316m on the stock's
collapse.
Sygnia is the third South African-based asset manager to announce
legal action against Steinhoff. The Public Investment
Corporation and Coronation, which lost about R17bn and R14bn,
respectively, on the retailer's collapse will also pursue
lawsuits against the group.
Investors in Steinhoff lost about 98% of their investments in a
share plunge when CEO Markus Jooste admitted to having made some
"mistakes", which Steinhoff later confirmed as "accounting
irregularities". Mr. Jooste resigned in early December, leaving
the board to conduct a forensic investigation to determine the
nature of the widespread accounting fraud.
Brussels-based Deminor says on its website that it "assists
private individuals, corporations and institutional investors
from across the globe with recovering economic losses caused by
various types of misconduct".
Deminor's lawsuit is not mentioned in the "litigation and claims
update" contained in Steinhoff's most recent presentation to
lenders. Class actions that are mentioned include those being
brought by the Dutch Investors' Association (VEB) and German law
firm TILP. VEB has told Business Day that "a significant group of
South African parties have already joined our class action and we
are in talks with many more".
A representative of TILP told CNBC Africa in April that about 800
investors, including retail and institutional investors from SA
and abroad, had joined its class action. It had calculated R7.3bn
in claims at the time.
Sygnia, which for the most part manages passive rather than
active funds, had "radically" changed its engagement with company
management, CEO Magda Wierzycka told Business Day on May 25.
There would be "no more sitting on the fence". "We are actually
going to take an active interest in the companies listed on the
indices we track."
Sygnia would launch an activist hedge fund in June.
The fund would identify opportunities to effect change at
companies that had "weak governance, weak management and weak
strategy".
Sygnia also planned to launch SygniaCoin, a cryptocurrency
exchange, in the third quarter of 2018. The exchange would list
products that harnessed blockchain technology, Ms. Wierzycka
said. It would also give Sygnia the opportunity to be involved
in the regulation of cryptocurrency in SA, she said.
Sygnia had clashed with the JSE over attempts to list a bitcoin
exchange-traded fund (ETF). While it was not abandoning these
plans, it would launch a "multi-crypto" fund on SygniaCoin.
Anthony Clark, an analyst at Vunani Securities, said on May 25:
"The cryptocurrency ETF may not generate huge profit but will
generate good asset flows, media coverage for innovation and will
continue to align Sygnia as a visionary in asset management."
[GN]
STEMILT AG: Owes Back Wages to Workers, Class Action Claims
-----------------------------------------------------------
Jefferson Robbins, writing for iFIBERONE, reports that a new
class action lawsuit claims Stemilt Ag Services owes back wages
to more than 4,300 current and former fieldworkers dating back to
2015.
The suit by key plaintiff Omar Palma Renteria, filed in Chelan
County Superior Court, seeks reimbursement that Renteria and
fellow workers are allegedly owed for tasks other than fruit
picking, carried out during harvest and pruning seasons for the
last three years.
The workers were paid on a "piece rate" system, rewarded for the
volume of fruit they produced. Mr. Renteria's suit alleges
neither he nor his coworkers were properly compensated for other
tasks or time spent at job sites.
If certified for class action, the suit seeks to represent all
piece-rate employees who worked "in the position of harvester,
pruner, picker, thinner, farm worker, or any other similar
position" dating back to May 2015.
It's the latest suit against Stemilt Ag, a subsidiary of the
massive Stemilt Growers tree-fruit firm, after a series of court
decisions that have sought to better define Washington growers'
piece rate system of pay. A state Supreme Court decision May 10
found that agricultural workers paid for what they pick on a
piece rate are also entitled to hourly compensation for other
aspects of their jobs, such as work meetings, traveling between
orchards and moving equipment.
Stemilt has not yet filed a response to Mr. Renteria's lawsuit.
In February, the company agreed to pay nearly $394,000 to 690
former workers to reimburse them for rest breaks they were owed
while working piece-rate contracts in 2014 and 2015. That
agreement settled a class action suit brought on workers' behalf
in 2017.[GN]
STEPHEN JAMES: Judge Certifies Former Patients' Class Action
------------------------------------------------------------
Harte Law PC on May 28 disclosed that on February 23, 2018, Mr.
Justice Edward M. Morgan of the Ontario Superior Court of Justice
certified a class action on behalf of certain former patients of
Toronto physician Stephen James. These individuals received pain
injections performed by Dr. James at the Rothbart Centre for Pain
Care Ltd. over a two-year period starting on January 1, 2010.
Members of the class are represented by the law firm Harte Law
PC.
The lawsuit alleges that Dr. James performed the injections at
the pain clinic without adequate infection control, infecting
certain patients with Staph aureus. It is alleged that a number
of patients developed bacterial meningitis, abscesses, skin
and/or blood infections after receiving an injection into their
backs. In addition to claiming damages for injuries suffered,
the lawsuit also makes a claim for punitive damages. In addition
to Dr. James, the lawsuit names the pain clinic, clinic director
Peter Rothbart and a number of nurses who worked at the Clinic.
An investigation of Dr. James' practice undertaken in December of
2012 by Toronto Public Health found that Dr. James was colonized
with Staph aureus, which it is alleged was spread to patients as
a result of breaches in infection prevention and control.
A trial of the class action will determine whether any of the
named defendants were negligent in their infection prevention and
control practices.
Anne Levac is the representative plaintiff for the class. Within
days of receiving an injection at the pain clinic, the 68-year
old resident of Fenelon Falls developed a bacterial infection in
her spine. She was rushed to hospital by ambulance, falling in
and out of consciousness and suffering excruciating pain. She
spent 10 weeks in hospital and alleges that she was left
permanently disabled.
Ms. Levac is pleased that the action is finally certified. "It
has been 5 1/2 years since I was infected. I am grateful that
the case has finally been given the green light to proceed to
court."
The certification decision was not a ruling on the merits of the
lawsuit, and the allegations raised in the claim have not yet
been proven in court.
If Dr. James provided you with a pain injection in your back and
you developed an infection, or would like further information
about the lawsuit, please contact lawyer Maria Damiano at (289)
695-2452 or mdamiano@hartelaw.com. [GN]
SUMMIT HEALTHCARE: Faces Class Action Over Lap Band Surgeries
-------------------------------------------------------------
Laura Singleton, writing for The Independent, reports that on
April 3, Gregory Law Group of Gilbert officially filed a $100
million class-action lawsuit and a stand-alone $15 million
lawsuit in Maricopa County Superior Court that involves several
White Mountain people and organizations that were allegedly
involved in recruiting patients for surgeries in Mexico.
Some former patients are now involved in a lawsuit, saying the
information they received about the surgeries was fraudulent, and
the care they received was dangerously negligent.
The case involves people who say they have been injured as a
result of weight loss surgery referred to as lap band surgery
which they received in Mexico, but was promoted and organized by
Arizona residents and companies, some who were based in the White
Mountains. Described by many providers as a "quick, minimally
invasive surgery," it comes with inherent risks as do all
surgeries.
Justin Blackburn, Jessica Ballandby, Carson Miller and
Michelle Stoddart allege they "have suffered significant health
problems and complications arising from the surgical procedures
itself and/or the aftercare services, including but not limited
to, unhealthy weight loss, required corrective surgeries, severe
infections, prolonged illness, chronic vomiting and nausea,
depression, anxiety, and, in some instances, death."
Justin Blackburn alleges that his stepmother, Elizabeth "Liz"
Erickson, died in 2013 as a result of the poor care she received
after the surgery.
Jessica Ballandby lives in Show Low; the other claimants, Justin
Blackburn, Michelle Stoddart and Carson Miller all reside in
Maricopa County at this time.
The suit seeks, "declaratory and injunction relief, equitable
relief and monetary damages," based on allegations that the
defendants "engage in a uniform and fraudulent course of conduct,
and they knowingly misrepresent and have knowingly misrepresented
the nature, quality, and safety of bariatric procedures.
Defendants are also negligent in the hiring, retention,
credentialing, and supervision of person who allegedly are
qualified to perform bariatric procedures, who, in fact are not,"
reads the claim document.
Named in both suits are Summit Healthcare Regional Medical
Center, Sandra Brimhall, the estate of the late Kevin Brackney,
(former SLUSD Superintendent), Michael Seaman also a former
employees of SLUSD, Fill Centers USA, the Heber Women's Clinic,
the Snowflake Medical Clinic, Dr. Mario Almanza and several other
corporations involved in the weight loss pipeline that funneled
patients to Tijuana for lap band surgery. Patients were charged
highly discounted prices when compared to the same surgery
performed by licensed surgeons in the United States.
Lap band and gastric sleeve surgery are two examples of the
growing popularity of a practice called medical tourism --
traveling to another country for medical care. Thousands of
Americans travel abroad for care each year, often because
treatment is cheaper in another country. Others travel to
receive a procedure or therapy not available in the U.S. The
most common procedures that people undergo on medical tourism
trips include cosmetic surgery, dentistry and heart surgery.
"The gastric band procedure (commonly known as lap band) is a
restrictive weight loss surgery. The lap band was FDA approved
for the treatment of morbid obesity in 2001 in the United
States," according to ObesityCoverage.com. "Next to gastric
bypass surgery, gastric banding is the second most frequently
performed bariatric surgery," explains the site.
The four individuals received lap band surgery which was
performed by Dr. Almanza in Tijuana, Mexico. Their stories share
a common thread with ties to the White Mountains through their
surgery after-care provider, Gwendolyn "Wendy" Hall, a certified
nurse midwife affiliated that was practicing under the
supervision of Dr. William Lawson of Summit Healthcare Regional
Medical Center.
Ms. Hall was allegedly treating lap band patients in conjunction
with a company called Fill Centers USA, now defunct. According
to the official Notice of Claim of the lawsuit, filed last fall,
Ms. Hall did not have the proper training to conduct the after-
care procedures and was not certified for this work.
Ms. Hall's nursing license was revoked by the Arizona Board of
Nursing in May, 2017. The Arizona Board of Nursing discovered
that Hall was over overprescribing an FDA-controlled amphetamine
and placed her on a 10-month probation under the supervision of
Summit Healthcare Regional Medical Center.
"Gwendolyn Hall was still allowed to see weight loss patients, a
clear violation of the intent of the probation agreement . . ."
according to the claim.
According to Blackburn, Hall has settled a case for wrongful
death related to his stepmother, Elizabeth "Liz" Erickson, who
Blackburn says died as a result of the lap band adjustment she
received from Hall after her surgery in Mexico.
Another connection to the White Mountains in the lap band
lawsuits relates to former Whipple Ranch Elementary School
principal, Sandy Brimhall, who apparently worked as a recruiter
for Mexican physcians who performed lap band surgery. She
allegedly sent out recruitment emails and consultations via her
Show Low Unified School District (SLUSD) email during school
hours. The claimants say they have pages of Ms. Brimhall's
school emails obtained by Justin Blackburn and his attorney
through public records requests. They claim that, in one case a
patient's medical records were sent to Ms. Brimhall at her school
email address, in violation of federal health privacy laws.
The suit also claims that, over the years, Ms. Brimhall brought
at least four other SLUSD staff members into the recruitment
practice. She was paid for each patient recruited and transported
to Dr. Almanza in Tijuana for lap band surgery.
The stand-alone suit filed by Jessica "Jessie" Ballandby alleges
violations of A.R.S. 44-1521 through fraud, negligent
misrepresentation and negligent supervision. Ms. Ballandby,
originally interviewed by The Independent in 2015 when the
"Notice of Claim" was in process, has since garnered state-wide
and national attention though a Phoenix-based news outlet.
To date, no responses have been filed by the parties named in the
suits. The Independent has made multiple attempts to contact the
named individuals and associated organizations with no response
except in the case of Summit Healthcare Regional Medical Center
and Show Low Unified School District who both provided official
"no comment" statements.
"We had no idea how absolutely unprecedented this class action
litigation is because it remains to be seen how many patients
were recruited by Ms. Brimahall and her local counterparts,"
explained claimant Justin Blackburn. "From the second that ABC
15 news ran the story a month ago, we have been inundated with
media requests. We have also been contacted by the Baja,
California tourism board and the tourism board on both sides of
the border," he added.
"Like any business that is out there, there are good business and
bad business, said Mr. Blackburn. "We want to know how an
elementary school principal was able to run this racket for so
long."
"The women that went down there [for lap band surgery] that were
injured did not have a voice until now," says Robert M. Gregory,
Esq. -- robert@gregorylawaz.com -- an attorney of the Gregory Law
Group representing the claimants.
"My office is getting flooded with calls since Jessica "Jessie"
Ballandby appeared on the Phoenix news in April," explained
Gregory. A Florida news station now wants to file the same
lawsuit as Ballandby, Blackburn, Miller and Stoddart said
Gregory. ". . . The media have given a voice to people that have
been injured. A year or two from now, I honestly believe that
there will be five to 10 class actions suits around the US,"
assures Mr. Gregory.
Since Ms. Ballandby's appearance on Phoenix station ABC15
Arizona, she, Mr. Blackburn and Mr. Miller via their attorney,
have received overwhelming support and outreach from people who
have had similar experiences with bariatric surgery done south of
the border.
Since then, their story has garnered national attention.
Ms. Ballandby, Mr. Blackburn and Mr. Miller appeared on NBC's
Today Show with Meghan Kelley on May 24, to further share their
experiences. On the show they discussed how the lawsuit focuses
on those that recruited them and other groups on individuals to
travel to Tiajuana, Mexico for the significantly reduced cost
procedure.
Ms. Ballandby gave a first-hand account of how her spleen was
allegedly nicked and her stomach left open, eventually causing
her system to become septic.
Mr. Blackburn emphasize how the recruiters allegedly didn't
provide full disclosure about the risks, the aftercare and long-
term side effects that some experience.
"I regret doing the lap-band surgery," said Mr. Miller on the
Today Show. "I want people to know that there are other options.
Do your research. There are healthier ways to lose weight
safely." [GN]
SUNBELT RENTALS: Fails to Pay All Overtime Wages, Perez Says
------------------------------------------------------------
FRANCISCO PEREZ, as an individual and on behalf of all others
similarly situated, the Plaintiff, v. SUNBELT RENTALS, INC., a
North Carolina Corporation; and DOES 1 through 100, the
Defendant, Case No. 37-2018-00026405-CU-0E-CTL (Cal. Super. Ct.,
May 29, 2018), seeks to recover overtime wages under the
California Labor Code.
According to the complaint, during his employment with the
Defendants, the Plaintiff routinely worked in excess of eight
hours per workday and/or forty hours per workweek, but did not
receive overtime compensation equal to one and one half times her
regular rate of pay for all overtime hours worked. Specifically,
Defendants paid Plaintiff performance bonus, "PS Monthly"
bonuses, and other forms of non-discretionary incentive pay.
However, as a result of Plaintiffs receipt of Incentive Pay, the
Defendants failed to properly calculate Plaintiffs regular rate
of pay for overtime purposes. Instead, the Plaintiff was paid
less than one and one half times (or two times in the case of
double-time hours) the legal regular rate of pay for all overtime
hours worked. The Defendants' systematic underpayment of
Plaintiffs overtime wages occurred during time periods in which
he both earned Incentive Pay and worked overtime hours.
Sunbelt Rentals provides equipment rental solutions. The Company
offers aerial work platforms, ladders, air compressors,
forklifts, and specialty tools.[BN]
The Plaintiff is represented by:
Paul K. Haines, Esq.
Tuvia Korobkin, Esq.
Stacey M. Shim, 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
tkorobkin@haineslawgroup.com
sshim@haineslawgroup.com
TAKATA CORP: 1MM Cars Added to Future Recall List Over Airbags
--------------------------------------------------------------
Jonathan Hair, writing for The World Today, reports that one
million new cars have been added to a future recall list by the
ACCC, over concerns about the safety of airbags.
It bring the total number of vehicles affected by the Takata
scandal to four million.
The law firm running a class action against manufacturers say
they'll expand the suit to include the new additions. [GN]
TETRA TECH: Faces Class Action Over Hunters Point Contamination
---------------------------------------------------------------
Ahimsa Porter Sumchai MD, writing for SF Bay View, reports that
in 1991, delegates to the First National People of Color
Environmental Leadership Summit in Washington, D.C., defined
environmental justice in the preamble to their "Principles of
Environmental Justice," which states in part: "Environmental
justice calls for universal protection from nuclear testing,
extraction, production and disposal of toxic and hazardous wastes
and poisons and nuclear testing that threaten the fundamental
right to clean air, land, water and food . . . . Environmental
justice demands the cessation of the production of all toxins,
hazardous wastes and radioactive materials, and that all past and
current producers be held accountable to the people for
detoxification of the contaminants at the point of production .
. . . Environmental justice protects the right of victims of
environmental injustice to receive full compensation and
reparations for damages as well as quality health care."
In adopting the San Francisco Precautionary Principle Ordinance
in 2003, the Board of Supervisors declared: "Every San Franciscan
has an equal right to a healthy and safe environment. This
requires that our air, water, earth, and food be of sufficiently
high standard that individuals and communities can live healthy,
fulfilling and dignified lives. The duty to enhance, protect and
preserve San Francisco's environment rests on the shoulders of
government, residents, citizen groups and businesses alike."
The Precautionary Principle requires careful analysis based on
the best available science when threats of serious or
irreversible damage to people exist and lack of full scientific
certainty about cause and effect shall not be viewed as
sufficient reason for the city to postpone effective measure to
prevent degradation of the environment and protect the health of
its citizens.
The first high profile test of the power of the Precautionary
Principle in Bayview Hunters Point came on Sept. 25, 2007, when
the San Francisco Board of Education unanimously adopted
Resolution 79-25A1 In Opposition to Lennar Corporation's Hunters
Point Naval Shipyard Development and in Support of the
Community's Demand for a Temporary Stoppage and Independent
Health and Safety Assessment to Protect Our Students and Their
Families.
That courageous stance taken by elected government officials came
as the direct result of the actions of a young worker who, in
October 2006, blew the whistle on Lennar's shipyard development,
galvanizing a coalition of students, teachers, educators,
workers, activists and families who stood unified in opposition
to the toxic dust generated by grading and demolition activities
at a federal Superfund site.
The National Priorities List is the list of sites of national
priority among the known releases or threatened releases of
hazardous substances, pollutants or contaminants eligible for
long-term remedial action financed under the federal Superfund
program established in 1980 as the Comprehensive Environmental
Response, Compensation, and Liability Act or CERCLA.
That young worker was named Christopher Carpenter and, as we
reported, he gave his life in duty to community. Carpenter died
slowly of a rare cancer not previously reported in an African
American and at his death in 2016 believed it was the result of
numerous unprotected exposures to toxic dust while working on
Parcel A of the Hunters Point Shipyard.
But the shipyard development rolled forward like a bulldozer
blade and never stopped. The Board of Supervisors abandoned the
Precautionary Principle and bowed to the corporate greed and
tractor power of the master developer, its puppets and corrupt
overlords seated in City Hall and within the upper echelons of
the federal government. Today there are 300 homes with families
on former shipyard Parcel A.
The shipyard development plowed forward dragging with it a
declining population of African Americans who by 2018 represented
3 percent of the city's population and nearly 40 percent of its
homeless. In 2009 the San Francisco Department of Public Health
stopped tracking health surveillance data on its public website
for the 94124 zip code in the face of mounting evidence the
chronic exposure to particle pollution due to development of a
federal Superfund site was contributing to an enormous excess
burden of cardiopulmonary disease evident in excess years of life
lost due to lung, trachea and bronchial cancers, congestive heart
failure, heart attacks and an inexplicably high rate of emergency
department visits due to adult asthma.
The shipyard development plowed forward -- and on May Day, May 1,
2018, the Day of Reckoning arrived.
A media advisory, headed, "Victims of Hunters Point Shipyard File
$27 Billion Class Action Lawsuit," announced: "On behalf of named
plaintiffs and thousands of other victims to be named including
residents, deceased family members and unborn children, renowned
civil rights attorney Charles Bonner has filed a $27 billion
lawsuit for damages arising from generational threats of cancer
and other incurable illnesses relating to the documented fraud
perpetrated by U.S. Navy contractor Tetra Tech in assuring
Hunters Point residents and the City of San Francisco that
the radiated land at the Hunters Point Shipyard had been
cleaned. . . .
"Black, brown and other people of color who have resided in
Hunters Point since World War II have long complained of the
unusually high incidences of cancer, chronic diseases and death
they have suffered and witnessed, believing this excess burden of
disease was rooted in the toxins and radiation generated by the
nuclear bomb and war ships made, serviced, launched and
deconstructed at the Hunters Point Naval Shipyard. Over the last
decade, community groups led by Nation of Islam Minister
Christopher Muhammad have demanded the truth about the health
risks to the community arising from the toxicity in and adjacent
to the Superfund site. Concerned citizens including Dr. Ahimsa
Sumchai have spent decades investigating the impacts of radiation
exposure at the shipyard and documenting patterns of illness
peculiar to this community.
"Scientists, environmentalists and the people of Bayview Hunters
Point have been pushed back and discredited by government
officials beholden to the master developer -- until now. Tetra
Tech whistleblowers have opened the floodgates of truth, and the
plaintiffs in this lawsuit will prove that they have suffered
irreparable, generational harm because the Hunters Point Naval
Shipyard has remained toxic with radiation and a host of toxic
substances since World War II."
The attorneys who filed the suit are Charles A. Bonner and his
son, A. Cabral Bonner of Bonner & Bonner, a firm with an
impressive list of outcomes on many challenging lawsuits.
Principle plaintiffs in the class action suit filed in Superior
Court of California County of San Francisco on May 1, 2018, are
Bayview Hunters Point residents and Danielle Carpenter, widow of
deceased community hero and Parcel A worker and whistleblower
Christopher Carpenter. May he rest in peace!
How you can join the lawsuit
Attorneys Charles and Cabral Bonner are holding meetings where
residents can learn more about the class action lawsuit and get
help filling out an information packet to join it. They ask that
everyone spread the word that all people living, working or
studying in the community of Bayview Hunters Point from 2004 to
the present are eligible to join the suit.
The first meeting was held May 25, and more will take place on
June 9 and 22. Watch the Facebook page, Hunters Point Community
Lawsuit for details. M ore information is also available by
emailing HuntersPointLawsuit@gmail.com. The next townhall is
Saturday, June 9, 1-3 p.m., at the Joseph Lee Rec Center, 1395
Mendell St. in Bayview Hunters Point. [GN]
TIM HORTONS: Denies License Renewal to Franchisee Amid Lawsuit
--------------------------------------------------------------
Tara Deschamps, writing for The Canadian Press, reports that a
Tim Hortons franchisee who is being denied a licence renewal
after the company accused him of violating food safety and
operating-standards has passed most of such reviews, internal
documents obtained by The Canadian Press indicate.
The documents show Mark Kuziora, who has been critical of Tim
Hortons' operating practices and was involved in a class-action
lawsuit against its parent company, failed only one review over
three years to March 2018 and passed others with scores of
between 70 and 95 per cent.
The Great White North Franchisee Association, which claims to
represent at least half of Tim Hortons franchisees, said in a
letter to the company defending Mr. Kuziora that the failures
were caused by a change in requirements around the approval and
purchase of small wares that they say was faced by "many other
Tim Hortons store owners across the country."
GWNFA has been fighting Tim Hortons on behalf of Mr. Kuziora
since April, when the association said Mr. Kuziora was told he
wouldn't have the opportunity to renew his licence for one of the
two Toronto locations he owns, when the licence expires on Aug.
31.
At the time, Tim Hortons did not offer a reason for the denial,
but its president of Canadian operations, Sami Siddiqui, told the
Globe and Mail that among other issues, Mr. Kuziora's restaurant
has "a documented history of problems . . . including food-safety
violations and not meeting a number of other Tim Hortons
operating standards."
Mr. Siddiqui stood by his comments in an emailed statement on May
28.
"Any decision to not approve a new restaurant agreement can
sometimes result in strong emotions," Mr. Siddiqui said. "It is
not something that we take lightly and is not something we
usually address publicly. We firmly stand by our previous
statements publicly and to Mr. Kuziora on this matter."
Mr. Kuziora has had a strained relationship with Tim Hortons, in
part because he was involved in a class-action lawsuit last year
that alleged RBI used money from a national advertising fund
improperly.
The lawsuit accused RBI of funnelling nearly $700 million to be
used for advertising, marketing and sales promotions to itself
and TDL Group, a Tim Hortons subsidiary. At the time, RBI said it
"vehemently" disagreed with and denied all the allegations.
GWNFA said Mr. Kuziora had been renegotiating with RBI for
months, trusting that the negotiations were being done "in good
faith," so when he was contacted in April and told the company
would be in touch to discuss the transfer of the restaurant to a
new owner, it was "out of the blue."
"We have to wonder if not renewing his licence has anything to do
with his being a member of the board of GWNFA and having his name
on the ad fund lawsuit," GWNFA said in a previous news release.
"As far as we are concerned, this is nothing more than
intimidation tactic."
At the time, Tim Hortons told The Canadian Press that Mr. Kuziora
didn't have any renewal rights through his licence agreement for
the restaurant and said, "we regularly onboard new restaurant
owners and transition restaurants as part of our normal course of
business activity."
The statements and Mr. Kuziora's licence denial riled up GWNFA,
which has been sparring with the company over everything from
cost-cutting measures to delays in supply deliveries to a $700-
million renovation plan that they say will cost store owners
$450,000 per restaurant.
In the wake of the unrest, the company's brand reputation
rankings have plummeted and RBI president Alex Macedo has started
doing damage control, criss-crossing the country to meet with
thousands of franchisees in a bid to regain their trust. [GN]
TOOTSIE ROLL: Underfills Junior Mints Box, Lawsuit Says
-------------------------------------------------------
Chicago Tribune reports that a lawsuit was filed against Tootsie
Roll over Junior Mints.
Paige Stemm complains that a box of Junior Mints was not filled
to the brim. Stemm took her grievance to court. Her lawyers
claim that the Junior Mint box is "misleading, deceptive and
unlawful conduct" of the mint-maker, Chicago-based Tootsie Roll
Industries. "They have created this oversized theater box, and
it misleads consumers because consumers believe they're getting
more candy when they purchase a box of Junior Mints than they're
actually getting," says attorney Christopher Moon, who seeks
undisclosed damages and an order that Tootsie Roll either fill
the box more or reduce the size of the packaging. The case was
scheduled for an initial hearing on May 31.
Junior Mints lawyers argue that breathing room in the box
protects the candy. Mr. Moon asserts that too much space
"actually can increase the chances that the candies will be
damaged because they move around quite a bit inside the hard
cardboard box." [GN]
TRUE FOOD: Martinez Wants to Redeem Gift Card for Cash
------------------------------------------------------
JON MARTINEZ, on behalf of himself, the General Public, and all
others similarly situated, the Plaintiff, v. TRUE FOOD KITCHEN
and DOES 1 through 20, the Defendant, Case No. 37-2018-00026559-
CU-BT-CTL (Cal. Super. Ct., May 30, 2018), seeks statutory right
to redeem any of the Defendant's gift card for cash in
California, upon request, when the balance is less than $10.
According to the complaint, the Defendant sells gift cards in
California to consumers that contain various stored values, which
represent the "balance" on the gift card. Within the last 12
months, the Plaintiff visited a California True Food location
with a True Food gift card and Plaintiff purchased items
Plaintiff wanted using the True Food gift card to pay for the
items. After paying for the items selected using the True Food
gift card, Plaintiffs gift card balance was less than $10. The
Plaintiff did not want any other items offered by Defendant;
instead, Plaintiff wanted the cash value of the gift card. The
Plaintiff asked the True Food employee if Plaintiff could obtain
the cash balance of the card. The employee informed Plaintiff
that Plaintiff could not get the balance in cash and the balance
had to remain on the card for future use at True Food. The
Plaintiff was denied the cash balance of his gift card despite
the fact that the balance on the card was less than $10 and
Defendant's employee was aware of the balance on the card at the
time of the request.
True Food is a seasonal food restaurant.[BN]
The Plaintiff is represented by:
Phillip R. Poliner, Esq.
Neil B. Fineman, Esq.
FINEMAN | POLINER LLP
155 North Riverview Drive
Anaheim Hills, CA 92808-1225
Telephone: (714) 620 1125
Facsimile: (714) 701 0155
E-mail: Phillip@FinemanPoliner.com
Neil@FinemanPoliner.com
U.S. ARMY: "Kennedy" Suit Seeks to Certify Army Veterans Class
--------------------------------------------------------------
In the lawsuit entitled STEPHEN M. KENNEDY and ALICIA J. CARSON,
on behalf of themselves and all others similarly situated, the
Plaintiffs, v. MARK T. ESPER, Secretary of the Army, the
Defendant, Case No. 3:16-cv-02010-WWE (D. Conn.), the Plaintiffs
ask the Court to certify a proposed class consisting of:
"all Army, Army Reserve, and Army National Guard veterans of
the Iraq and Afghanistan Era who: (a) were discharged with a
status of General, Under Honorable conditions or Other-than-
Honorable; (b) have not received discharge upgrades to
Honorable; and (c) have diagnoses of PTSD or PTSD-related
conditions, or records documenting one or more symptoms of
PTSD or PTSD-related conditions at the time of their
discharge, attributable to their military service."
A copy of the Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=FTRCHbCh
Attorneys for the Plaintiffs:
Susan J. Kohlmann, Esq.
Jeremy M. Creelan, Esq.
Sean D. Nelson, Esq.
Jacob L. Tracer, Esq.
JENNER & BLOCK LLP
919 Third Avenue
New York, NY 10022-3908
Telephone: (212) 891 1678
E-mail: JCreelan@jenner.com
- and -
Sam Frizell, Esq.
Jordan R. Goldberg, Esq.
Meredith N. Healy, Esq.
Catherine E. McCarthy, Esq.
Helen E. White, Esq.
Aaron P. Wenzloff, Esq.
Michael J. Wishnie, Esq.
VETERANS LEGAL SERVICES CLINIC
Jerome N. Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
Telephone: (203) 432 4800
E-mail: michael.wishnie@ylsclinics.org
UNITED COLLECTION: Court Denies Bid to Dismiss "Meredith"
---------------------------------------------------------
In the case, Deborah Meredith, Plaintiff, v. United Collection
Bureau, Inc., Defendant, Case No. 1:16 CV 1102 (N.D. Ohio), Judge
Patricia A. Gaughan of the U.S. District Court for the Northern
District of Ohio, Eastern Division, denied the Defendant's Motion
to Dismiss Complaint.
Meredith filed the putative class action lawsuit, alleging that
the Defendant violated the Telephone Consumer Protection Act
("TCPA"). She alleges that UCB, a debt collection service,
initiated multiple telephone calls to her cellular telephone in
an attempt to collect a debt. She alleges that she was unable to
answer the calls and that UCB left multiple voicemail messages
for her.
Meredith claims that she and the class have been harmed by UCB's
calls. Specifically, she alleges that their privacy was
improperly invaded, they were charged for the calls, and they
were annoyed. In her deposition, Meredith testified that the
calls wasted her time, including the time that she spent
listening and responding to the voicemail messages. She
testified that she listened to the three messages that she
received "numerous times" because she did not understand why she
was receiving them and because she was "afraid." The messages
did not identify whom they were for, but Meredith believed they
were for her because they were on her phone. The calls "shocked
and surprised her" and caused her stress. Listening to the
messages took time away from her work and upset her to the point
that she was not able to make phone calls for work.
UCB now moves to dismiss Meredith's Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(1) on the basis that Meredith lacks
Article III standing. Meredith opposes the motion.
Judge Gaughan finds that Meredith has done more than allege a
technical violation of the TCPA. Her Complaint alleges that the
calls invaded her privacy and annoyed her. Her deposition
testimony demonstrates that the calls wasted her time, caused her
distress, and impeded her ability to work. Under Spokeo, Inc. v.
Robins, she has both alleged and shown that UCB's calls caused
her a concrete harm sufficient to meet the Article III injury-in-
fact requirement.
UCB also argues that the class claims must be dismissed because
the class members have suffered no concrete and particularized
harm and that any attempt to demonstrate such harm would create
individualized inquiries and mini-trails that preclude
certification under Rule 23. The Judge finds that USB's argument
is essentially a disguised argument against the class
certification, and as such, is premature.
For the foregoing reasons, Judge Gaughan denied the Defendant's
Motion to Dismiss Complaint.
A full-text copy of the Court's April 13, 2018 Memorandum of
Opinion and Order is available at https://is.gd/xYc8tH from
Leagle.com.
Deborah Meredith, Plaintiff, represented by Alexander H. Burke,
David M. Marco -- dmarco@smithmarco.com -- Smith Marco, Larry P.
Smith -- lsmith@smithmarco.com -- Smith Marco & Mitchel E.
Luxenburg .
United Collection Bureau, Inc., Defendant, represented by Ethan
G. Ostroff -- ethan.ostroff@troutman.com -- Troutman Sanders,
Lindsey B. Mann -- lindsey.mann@troutman.com -- Troutman Sanders,
Jason P. Ferrante -- JPFerrante@mdwcg.com -- Marshall, Dennehey,
Warner, Coleman & Goggin & Keith J. Barnett --
keith.barnett@troutman.com -- Troutman Sanders.
UNITED STATES: Wiggin Dana Attorneys Discuss Sanchez-Gomez Ruling
-----------------------------------------------------------------
Tadhg A.J. Dooley, Esq. -- tdooley@wiggin.com -- and David Roth,
Esq. -- droth@wiggin.com -- of Wiggin and Dana LLP, in an article
for The National Law Review, wrote that two new decisions this
morning, including a major win for employers in Epic Systems
Corp. v. Lewis (No. 16-285), which held (5-4) that neither the
Federal Arbitration Act nor the National Labor Relations Act
prohibits employers from requiring employees to submit to
arbitration agreements that waive class-action rights. Not to
give it short shrift, the Court's second opinion, Upper Skagit
Indian Tribe v. Lundgren (No. 17-387), clarified that the Court's
decision in County of Yakima v. Confederated Tribes and Bands of
Yakima Nation (1992) did not hold that tribal sovereign immunity
doesn't apply to suits in rem. Or something like that.
In the meantime, we owe you four more summaries from last. Here
goes!
First up, in McCoy v. Louisiana (No. 16-8255), the Court answered
a question that you might have assumed answered itself: Can a
defense attorney concede his client's guilt against the client's
wishes? What makes the question slightly more nuanced is the
context: What if the attorney believed that conceding guilt was
the best, or only, way to spare his client from the death
penalty?
Robert McCoy was charged with three counts of first-degree
capital murder for the killing of his estranged wife's mother,
stepfather, and son. His parents hired an attorney, Larry
English, to represent him at trial. Mr. English concluded that
the evidence against Mr. McCoy was so overwhelming that it would
be impossible to avoid the death penalty unless he conceded
guilt. When Mr. McCoy learned of Mr. English's intentions two
weeks before trial, he voiced a forceful objection and sought new
counsel. But the trial court refused to terminate English's
representation of him so close to trial. Mr. English thus
proceeded with his intended strategy, stating to the jury that
Mr. McCoy committed the murders while urging mercy during the
penalty phase in light of what English characterized as McCoy's
emotional issues. Mr. English did permit Mr. McCoy to testify,
however, and the defendant used the opportunity to maintain his
innocence. The jury didn't buy it and convicted Mr. McCoy on all
three capital counts. The Louisiana Supreme Court rejected
Mr. McCoy's appeal, finding that English's strategy was
reasonable under the circumstances in that it provided Mr. McCoy
with the best chance of avoiding the death penalty.
The Supreme Court disagreed, in a 6-3 decision authored by
Justice Ginsburg. Although the Court had held, in Florida v.
Nixon (2004), that the Sixth Amendment permits counsel to concede
a capital defendant's guilt where the defendant was silent on the
matter, Mr. McCoy's case was materially different in light of his
"intransigent and unambiguous objection" to English's strategy.
That implicated the individual autonomy that is at the heart of
the Sixth Amendment, which empowers a defendant to make the
ultimate choice of asserting innocence or guilt. The Court was
not persuaded by Louisiana's argument that presenting Mr. McCoy's
unlikely alibi defense would have placed English in an ethical
dilemma of choosing between honoring his client's wishes and
assisting in the commission of perjury in violation of the Rules
of Professional Conduct. Mr. McCoy never vowed to lie on the
stand and English did not objectively know that Mr. McCoy's
testimony, however implausible, would constitute perjury. His
goal in conceding guilt was not to avoid an ethical dilemma but
to build credibility with the jury -- a worthy goal, but not one
that could override Mr. McCoy's "Sixth Amendment-secured
autonomy." Because this interest was so fundamental, the majority
found that the violation of Mr. McCoy's Sixth Amendment right
constituted structural error requiring a new trial, regardless of
whether McCoy could show he was actually prejudiced by the error.
Justice Alito dissented, joined by Thomas and Gorsuch. The
dissenters came at the question from English's perspective,
rather than Mr. McCoy's. "What was English supposed to do?"
Justice Alito repeated. Given the compelling evidence of McCoy's
guilt (which Justice Alito described in far more detail than did
Ginsburg), the incoherence of Mr. McCoy's alibi (a "conspiracy
defense," in Justice Alito's view), and the fact there was no
time to permit Mr. English to withdraw before the trial, Mr.
English was left with a Hobson's choice, and could not be blamed
in hindsight for making the decision that he believed most
benefitted his client. The dissenters pointed out that the issue
in this case is unlikely to recur with any frequency and
therefore questioned the wisdom of the Court weighing in
definitively. Justice Alito feared that this could open a
Pandora's Box of get-out-of-jail (or execution) free cards. What
if a prior felony conviction was an element of the offense? Would
counsel really be constitutionally deficient for stipulating to a
prior conviction over the defendant's vehement objection? That
the majority couched this as a structural error -- an issue not
reached by the Louisiana Supreme Court -- irked the dissenters
all the more.
The Court answered another seemingly easy question in Byrd v.
United States (No. 16-1371), unanimously holding (with some
disagreement over the rationale) that an individual driver does
not lose his reasonable expectation of privacy in a rental car
that he lawfully possesses or controls merely because the rental
agreement does not list him as an authorized driver.
The driver in this instance was Terrence Byrd, who was pulled
over by a state trooper on Interstate 81 near Harrisburg, PA.
The car Mr. Byrd was driving had been rented for him by his
friend, Latasha Reed, while he waited outside the rental
facility. Though Ms. Reed had given Mr. Byrd the keys to the
rental car as soon as she left the building, her rental agreement
specifically precluded unauthorized drivers from operating the
vehicle, and Mr. Byrd was not listed as an authorized driver.
When the police officers learned that Mr. Byrd was not the
authorized driver on the rental agreement, they had themselves a
look around and discovered 49 bricks of heroin and some body
armor in the trunk. (Mr. Byrd had also admitted to having a
marijuana cigarette in the car.) Mr. Byrd sought to suppress the
evidence, but both the District Court and the Court of Appeals
concluded that, because he was not listed on the rental
agreement, he lacked a reasonable expectation of privacy in the
car.
The Supreme Court reversed, 9-0. Writing for the Court, Justice
Kennedy acknowledged that there is a diminished expectation of
privacy in automobiles, which often permits officers to dispense
with obtaining a warrant before conducting a search. However,
the issue here was whether Mr. Byrd had any reasonable
expectation of privacy in the rental car, given that he was
technically not an authorized driver. To answer that question,
Justice Kennedy looked to principles of property law to conclude
that a driver's lack of authorization on the rental agreement is
irrelevant to the Fourth Amendment question.
Relying on Rakas v. Illinois (1978), which held that a passenger
in a vehicle owned by another person does not have an expectation
of privacy in the glove compartment or similar places, the
Government urged the Court to adopt a per se rule that
unauthorized rental-car drivers never have a reasonable
expectation of privacy. But Justice Kennedy found the syllogism
inapt because Mr. Byrd had sole control over the vehicle from the
onset. Therefore, the situation was more analogous to Jones v.
United States (1960), in which the Court found an individual had
a reasonable expectation of privacy in his friend's apartment,
given his complete dominion and control and ability to exclude
others from it. Just as it did not matter in Jones whether the
defendant's friend owned or rented his apartment, Justice Kennedy
rejected the notion that Byrd's Fourth Amendment protection was
contingent on whether the car he was exclusively operating was
rented or privately owned. Justice Kennedy also rejected the
Government's argument that the breach of the rental agreement
rendered the agreement void and therefore eliminated any
expectation of privacy that Mr. Byrd could otherwise claim in the
vehicle. A breach of contract alone has no bearing on the
expectation of privacy as far as the Fourth Amendment is
concerned.
Meanwhile, Justice Kennedy also rejected Mr. Byrd's proposed per
se rule, that the sole occupant of a rental car always has a
reasonable expectation of privacy, based on mere possession and
control. Instead, the central inquiry ought to be whether the
driver was in lawful possession of the car. Here, while there
may be factual disputes about whether Mr. Byrd (who essentially
used Reed as a straw person to rent him a car that he would not
have qualified for) possessed the rental car unlawfully, the
Court reserved those question for the lower courts to address on
remand. It also reserved the issue of whether -- even if Mr. Byrd
did have a legitimate expectation of privacy, the search was
nevertheless justified under the automobile exception to the
warrant requirement. That issue was not addressed by the courts
below, which appeared to view the "standing" question as somehow
distinct from the overarching issue of whether the search was
reasonable. Justice Kennedy clarified that "[b]ecause Fourth
Amendment standing is subsumed under substantive Fourth Amendment
doctrine, it is not a jurisdictional question and hence need not
be addressed before addressing other aspects of the merits of a
Fourth Amendment claim."
Justice Thomas wrote a concurrence joined by Justice Gorsuch, in
which he briefly argued that the real issue was whether Byrd
could prove that the rental car was his "effect" within the
meaning of the Fourth Amendment, which guarantees individuals the
right to be free from unreasonable searches of "their persons,
houses, papers and effects." He noted that he would welcome
briefing and argument on the relevant issues arising from this
inquiry in an appropriate case. Justice Alito also concurred in
a single paragraph in which he helpfully laid out all the reasons
why Byrd should lose on remand.
Next up, in Dahda v. United States (No. 17-43), a unanimous Court
(with Gorsuch recused) declined to suppress a wiretap even though
the district court issued a wiretap order that exceeded its
power. A federal judge in Kansas had authorized multiple
wiretaps as part of an investigation of a suspected drug
distribution ring. Most of the calls the government intercepted
were in Kansas. However, the wiretap orders contained a sentence
that ostensibly authorized the government to intercept calls
outside of Kansas. The government, therefore, listened to a
handful of calls made in California, despite Title III's
limitation of judges' power to order wiretaps to within their own
territorial jurisdiction. The Government agreed not to use any
calls intercepted outside of Kansas, but Dahda argued that all
the calls should be suppressed because they were derived from a
"facially insufficient" wiretap order. The District Court, and
the Tenth Circuit, sided with the Government, holding that the
"facially insufficient" provision of Title III applies only when
the defect in the wiretap order implicates a core concern of
Title III, i.e. (1) protecting the privacy of wire and oral
communications, and (2) creating a uniform basis for authorizing
wiretaps. Because neither of those concerns were implicated by
the incidental interception of California conversations, the
lower courts refused to suppress all of the evidence.
The Supreme Court disagreed with the Tenth Circuit's reasoning,
but agreed with the result. In a unanimous opinion, Justice
Breyer explained that the "core concern" test used by the Tenth
Circuit did not apply to deciding whether a wiretap order was
"facially insufficient." That test came from United States v.
Giordano (1974), which evaluated another provision of Title III -
- the use of calls that are "unlawfully intercepted." The Court
saw no reason to import the core concern test into this case.
However, that does not mean that every defect makes a wiretap
order "facially insufficient." In this case, while the wiretap
orders contained a defect -- allowing interception of calls
beyond the borders of Kansas -- that part of the order was
irrelevant because none of those calls were used. The Court
recognized that if that provision was struck, the remainder of
the order would still be valid. Thus, suppression was
unwarranted.
Finally, on May 27, in United States v. Sanchez-Gomez (No. 17-
312), the Court unanimously declined to review a challenge to the
Southern District of California's policy of using full restraints
on most in-custody defendants present in court for nonjury
proceedings, finding that the case was moot in light of the
release of the named plaintiffs from custody.
The case was brought by four former criminal defendants in the
Southern District of California, who objected to that district
court's policy allowing the U.S. Marshals to put criminal
defendants in "full restraints" (i.e. handcuffs chained to
shackles) without individualized consideration of whether the
defendants pose a threat. The District Court rejected their
challenge and the plaintiffs appealed, but by the time the Ninth
Circuit heard the case, the defendants' criminal cases were all
over, so they were no longer subject to the shackling policy.
Undeterred, the Ninth Circuit invoked the exception to the
mootness doctrine from wrongs capable of repetition but evading
review. Although that exception had previously applied only in
the class-action context, the Ninth Circuit reasoned that the
plaintiffs' challenge was "a functional class action" involving
"class-like claims" and seeking "class-like relief." The Ninth
Circuit proceeded to address the merits and hold the shackling
policy unconstitutional.
Whoa there, said the Court in a unanimous opinion authored by the
Chief. There's no freestanding mootness exception for "class-
like claims." Either a case is a class action under Rule 23 or
it isn't, and the "mere presence of allegations that might, if
resolved in respondents' favor, benefit other similarly situated
individuals cannot save respondents' suit from mootness once
their individual claims have dissipated." The Court also
rejected the challengers argument that their claims weren't
actually moot since they, themselves, might well end up in
shackles again. Unlike in other cases where parties were unable,
"for reasons beyond their control, to prevent themselves from
transgressing and avoid recurrence of the challenged conduct,"
there was no "reasonable expectation" that these respondents
would engage in criminal conduct and be subjected to the policy
again. [GN]
UNITED STATES: Asylum-Seeking Parents Blamed for Losing Children
----------------------------------------------------------------
Danielle McLean, writing for Think Progress, reports that CNN
commentator Rick Santorum on May 27 defended the Trump
administration's policy of tearing children away from families
seeking refuge in America, addressing recent reports that noted
federal agencies had lost track of around 1,500 immigrant
children placed with approved sponsors or family members by
claiming that the government "lose[s] people all the time."
Mr. Santorum, a former U.S. senator from Pennsylvania, blamed the
parents for putting their kids at risk by seeking refuge in a
first-world nation that proclaims on its most famous statue,
"Give me your tired, your poor, your huddled masses yearning to
breathe free."
Migrants arriving at the U.S. border with Mexico are mostly from
Honduras, El Salvador and Guatemala, and are fleeing violence,
crime and drug cartels in their home countries.
Mr. Santorum said parents have a "moral obligation" to make sure
that their children don't end up being taken away by immigration
authorities, putting the onus back on them for the
administration's policy.
"At some point the parents have to take responsibility for their
children," Mr. Santorum said on CNN's State of the Union program.
Santorum explained that the children -- some of whom are infants
barely 1 year old -- were placed with "qualified" sponsors and
were not actually lost, noting that many of the sponsors may have
purposely chosen not to check in with officials from the Office
of Refugee Resettlement, which had placed them.
However, Mr. Santorum then fueled anxieties further by adding
casually, "We lose people all the time in a lot of other
government programs."
"The question is, they haven't had communication with these
previously vetted sponsors," Mr. Santorum continued. "Does that
mean that they are lost? No, that means there is a process that
is going on right now to try and find why these sponsors haven't
checked back in. But the idea that 100 percent of the sponsors
are going to check in, of course that's never going to be the
case."
The Department of Health and Human Services' Office of Refugee
Resettlement (ORR) is unable to determine the whereabouts of
1,475 children who showed up at the U.S. southern border alone
between October and December, according to Steven Wagner, the
assistant secretary of the agency at a Senate hearing in April.
According to the Times, "Officials learned that 6,075 children
remained with their sponsors. Twenty-eight had run away, five
had been removed from the United States and 52 had relocated to
live with a nonsponsor."
The exact whereabouts of the 1,475 remaining children remain
unknown, though as immigration advocates, reporters, and lawyers
note, it's possible, as Mr. Santorum stated, that many chose to
stop communicating with ORR out of fear that the immigrant
children might be subjected to further draconian immigration
policies instituted by the Trump administration.
The administration has said it will criminally prosecute people
who cross the southern U.S. border, placing parents in the
criminal justice system and placing their children in the ORR
system. In March, the American Civil Liberties Union filed a
class action lawsuit against the Trump administration, for
removing young children from hundreds of parents who are awaiting
asylum hearings.
Public outcry over the policies reached fever pitch on May 25 and
May 26 after MSNBC Host Chris Hayes ran a segment about the
practice and the lawsuit on his show.
Earlier in May, White House chief of staff John Kelly defended
the policy of separating families saying that while the vast
majority of the people moving into the United States illegally
"are not bad people," they don't assimilate well because they
don't speak English and that it acts as a "tough deterrent."
"The children will be taken care of -- put into foster care or
whatever," Mr. Kelly said. [GN]
UNIVERSITY OF SOUTHERN CALIFORNIA: Vivier Alleges Harassment
------------------------------------------------------------
ELIANA VIVIER, on behalf of herself and all others similarly
situated, the Plaintiff, v. UNIVERSITY OF SOUTHERN CALIFORNIA, a
California Corporation, BOARD OF TRUSTEES OF THE UNIVERSITY OF
SOUTHERN CALIFORNIA, an entity, form unknown; and GEORGE TYNDALL,
M.D., an individual, and DOES 1 to 100, inclusive, the
Defendants, Case No. BC70788 (Cal. Super. Ct., May 30, 2018),
seeks to recover damages caused by the Defendant's alleged sexual
abuse and harassment acts.
According to the complaint, during Dr. George Tyndall's medical
examinations of Ms. Vivier, he molested, sexually abused, and
sexually harassed her, including but not limited to by an
unnecessarily slow and intense inspection of every part of Ms.
Vivier's body, down to the area between her buttocks. Dr. Tyndall
also made grossly inappropriate remarks while he had his fingers
inside her private part and would do the same thing while
touching other parts of her body. Dr. Tyndall would insert his
fingers in her private part as a pretense for ensuring that his
speculum would "fit." He also went into great detail about the
different sizes of specula available to accommodate different-
sized women.[BN]
Attorneys for Plaintiff, on behalf of herself and all others
similarly situated
Kevin T. Bames, Esq.
Gregg Lander, Esq.
LAW OFFICES OF KEVIN T. BARNES
1635 Pontius Avenue, Second Floor
Los Angeles, CA 90025-3361
Telephone: (323) 549 9100
Facsimile: (323) 549 0101
E-mail: Bames@kbames.com
- and -
Joseph Tojarieh, Esq.
TOJARIEH LAW FIRM, PC
10250 Constellation Boulevard, Suite 100
Los Angeles, CA 90067
Telephone: (310) 553 5533
Facsimile: (310) 553 5536
E-mail: JFT@tojariehlaw.com
VENTURE EXPRESS: Court Denies Class Certification in "Ratliff"
--------------------------------------------------------------
In the lawsuit styled Jerome Ratliff Jr., the Plaintiff, v.
Venture Express, Inc., the Defendant, Case No. 1:17-cv-07214
(N.D. Ill.), the Honorable Gary Feinerman entered an order
denying the Plaintiff's motion for class certification denied
without prejudice.
According to the docket entry made by the Clerk on June 4, 2018,
the Plaintiff's motion for class certification is denied without
prejudice to renewal after the stay is lifted. The Defendant
shall not in any way attempt to "buy off" or otherwise moot
Plaintiff's claim until 28 days have passed after the stay is
lifted.
A copy of the Docket Entry is available at no charge at
http://d.classactionreporternewsletter.com/u?f=jiTAzt5f
VEROS CREDIT: Court Issues Protective Order in "Cosper"
-------------------------------------------------------
Magistrate Judge Carolyn D. Delaney of the U.S. District Court
for the Eastern District of California, Sacramento Division, has
issued a Stipulated Protective Order in the case, YOLANDA COSPER,
FRED LUMPKIN, and SEBASTIAN MCGHEE, individually and on behalf of
all others similarly situated, Plaintiffs, v. VEROS CREDIT, LLC,
Defendant, Case No. 2:15-cv-01752 MCE CKD (E.D. Cal.).
Discovery in the action is likely to involve production of
confidential, proprietary, or private information for which
special protection from public disclosure and from use for any
purpose other than prosecuting the litigation may be warranted.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by the Parties or
their Counsel that might reveal Protected Material.
The Stipulation noted that any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent
with the Court's Scheduling Order. Unless the Designating Party
has waived or withdrawn the confidentiality designation, all
parties shall continue to afford the material in question the
level of protection to which it is entitled under the Producing
Party's designation until the Court rules on the challenge.
The Stipulation provided that even after final disposition of
this litigation, the confidentiality obligations imposed by the
Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final
disposition shall be deemed to be the later of (1) dismissal of
all claims and defenses in the Action, with or without prejudice;
and (2) final judgment after the completion and exhaustion of all
appeals, rehearings, remands, trials, or reviews of this Action,
including the time limits for filing any motions or applications
for extension of time pursuant to applicable law.
A full-text copy of the Court's April 13, 2018 Stipulated
Protective Order is available at https://is.gd/ML51TP from
Leagle.com.
Yolanda Cosper & Fred Lumpkin, Plaintiffs, represented by Bryan
Kemnitzer, Kemnitzer Barron & Krieg, PC, Kristin Kemnitzer,
Kemnitzer, Barron & Krieg & Nancy Barron, Kemnitzer, Barron &
Krieg, Llp.
Sebastian McGhee, Plaintiff, represented by Elliot Jason Conn,
Kemnitzer Anderson Barron and Ogilvie LLP, Kristin Kemnitzer,
Kemnitzer, Barron & Krieg & Bryan Kemnitzer, Kemnitzer Barron &
Krieg, PC.
Veros Credit, LLC, Defendant, represented by Rebecca Snavely
Saelao -- rss@severson.com -- Severson & Werson & Scott James
Hyman -- sjh@severson.com -- Severson & Werson.
VICTIM SERVICES: "Solberg" Seeks to Certify Class of Consumers
---------------------------------------------------------------
In the lawsuit captioned KAREN SOLBERG, NANCY MORIN, and
NARISHA BONAKDAR, on their own behalf and on behalf of others
similarly situated, the Plaintiffs, v. VICTIM SERVICES, INC.,
d/b/a CorrectiveSolutions, NATIONAL CORRECTIVE GROUP, INC., d/b/a
CorrectiveSolutions, AMERICAN JUSTICE SOLUTIONS, INC., d/b/a/
CorrectiveSolutions, BIRCH GROVE HOLDINGS, INC., MATS JONSSON and
KARL THOMAS JONSSON, the Defendants, Case No. 3:14-cv-05266-VC
(N.D. Cal.), the Plaintiff will move the Court for an order on
August 9, 2018, certifying a class of:
"all California consumers who received similar letters or made
payments to Defendants from May 11, 2012 to the present. Class
certification is appropriate because Defendants followed a
standardized set of collection procedures and treated the
Plaintiffs and members of the class in the same way."
A copy of the Notice of Motion is available at no charge at
http://d.classactionreporternewsletter.com/u?f=C9mdHlkO
Attorneys for Plaintiff:
Michael F. Ram, Esq.
Susan S. Brown, Esq.
ROBINS KAPLAN LLP
2440 West El Camino Real, Suite 100
Mountain View, CA 94040
Telephone: (650) 784 4040
Facsimile: (650) 784 4041
E-mail: mram@robinskaplan.com
sbrown@robinskaplan.com
- and -
Beth E. Terrell, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, WA 98103-8869
Telephone: (206) 816 6603
Facsimile: (206) 319 5450
E-mail: bterrell@terrellmarshall.com
- and -
Paul Arons, Esq.
LAW OFFICE OF PAUL ARONS
685 Spring Street, Suite 104
Friday Harbor, Washington 98250
Telephone: (360) 378-6496
Facsimile: (360) 378-6498
E-mail: lopa@rockisland.com
- and -
Deepak Gupta, Esq.
GUPTA WESSLER PLLC
1735 20th Street, NW
Washington, DC 20009
Telephone: (202) 888-1741
Facsimile: (202) 888-7792
E-mail: deepak@guptawessler.com
Attorneys for Victim Services, Inc., National Corrective Group,
Inc., and Mats Jonsson
Michael A. Taitelman, Esq.
Sean M. Hardy, Esq.
FREEDMAN & TAITELMAN, LLP
1901 Avenue of the Stars, Suite 500
Los Angeles, CA 90067
Telephone: (310) 201 0005
Facsimile: (310) 201 0045
E-mail: mtaitelman@ftllp.com
smhardy@ftllp.com
WALGREENS BOOTS: Fails to Pay Wages & Overtime, Buado Says
----------------------------------------------------------
NATHANIEL BUADO, individually and on behalf of all others
similarly situated, the Plaintiff, v. WALGREENS BOOTS ALLIANCE,
INC., OPTION CARE ENTERPRISES, INC., WALGREENS-OPTIONCARE, INC.,
and DOES 1-50, inclusive, the Defendant, Case No.BC707528(Cal.
Super. Ct., June 1, 2018), seeks to recover unpaid wages and
overtime pay under the California Labor Code.
This case concerns Defendants' alleged failure to pay Plaintiff
and other current and former employees controlled standby time,
including hourly regular and overtime pay, for periods of time
when Plaintiff and other current and former employees were
required to be under the control of Defendants.
Walgreens Boots is a global pharmacy-led, health and wellbeing
enterprise.[BN]
The Plaintiff is represented by:
Blake J. Woodhall, Esq.
Bradley K. Moores, Esq.
ELITE LEGAL GROUP, A.P.C.
550 West C Street, Suite 700
San Diego, CA 92101
Telephone: (858) 342 3245
Facsimile: (619) 908 1901
WAL-MART: Faces Class Action Over Self-Service Checkout Kiosks
--------------------------------------------------------------
David J. Bender, Esq. -- dbender@cov.com -- and Yaron Dori, Esq.
-- ydori@cov.com -- of Covington & Burling LLP, in an article for
The National Law Review, wrote that a class-action lawsuit filed
in April alleges that Wal-Mart's video recording technology at
its self-service checkout kiosks collects "personal
identification information" in violation of the California Song-
Beverly Act Credit Card Act of 1971 ("Song-Beverly Act"). The
Song-Beverly Act, like analogous statutes in several other
states, generally prohibits businesses from recording customers'
"personal identification information" as a condition of accepting
a credit card payment.
The Complaint alleges that video recordings of a person's eye
color, hair color, and facial features constitute "personal
identification information" under the Song-Beverly Act, and that
clearer recordings of these features require different treatment
than those made using ordinary security cameras. The Complaint
further alleges that because this information allegedly is
captured "throughout the entire duration of the customer's credit
card transaction," the recording violates the statute. The
Complaint characterizes the recordings as "valuable biometric
data" that allegedly is collected for Wal-Mart's "prospective
business purposes, including but not limited to targeted
marketing campaigns."
Wal-Mart has removed the lawsuit to federal district court. It
remains to be seen whether these novel allegations prove accurate
or gain traction under the Song-Beverly Act, which to this point
has not been applied to video recording technologies like those
used at self-checkout kiosks. [GN]
WILMINGTON TRUST: Settles Shareholder Lawsuit for $210-Mil.
-----------------------------------------------------------
Randall Chase, writing for The Associated Press, reports that
Wilmington Trust has agreed to a $210 million cash settlement in
a shareholder lawsuit alleging the bank fraudulently concealed
billions of dollars in bad loans, according to court documents.
Plaintiffs' attorneys filed court papers asking a federal judge
to approve the proposed settlement, which calls for Wilmington
Trust to pay $200 million and auditing firm KPMG to pay $10
million.
The proposed settlement comes just three weeks after four former
executives of Wilmington Trust, the only financial institution to
be criminally charged in connection with the federal bank bailout
program, were convicted on federal fraud and conspiracy charges.
The criminal case and civil lawsuit both alleged bank officials
misled regulators and investors about Wilmington Trust's massive
amount of past-due commercial real estate loans before the
century-old institution was hastily sold in 2011.
According to court documents, a term sheet outlining the
components of the civil settlement was signed by Wilmington Trust
representatives on April 9, one day before prosecutors rested
their case in the criminal trial. A settlement stipulation was
signed May 15, 12 days after the guilty verdicts.
KPMG reached a settlement agreement on May 21 and executed a
stipulation four days later.
While the class-action suit closely paralleled the criminal case,
plaintiffs' attorneys said the lawsuit alleged wrongdoing over a
longer period of time and encompassed a larger number of issues.
It was not dependent on the guilty verdicts, they said.
"The majority of damages allegedly suffered by the class are
attributable to the alleged conduct that occurred before the
period of time encompassed by the criminal action," attorneys
wrote. "Accordingly, lead plaintiffs and lead counsel could not
simply rely on guilty verdicts, even if such verdicts were
returned before the settlements were secured."
At the same time, attorneys noted that developments in the
criminal investigation prompted them to amend their civil
complaint twice.
"This case is extraordinarily complex and turns on highly
technical banking and accounting issues. Having been already
litigated for nearly eight years, it would undoubtedly require at
least another year of hard-fought litigation (including expert
discovery and summary judgment) before trial, to say nothing of
the inevitable post-verdict motions and appeals," attorneys wrote
in seeking approval of the settlement.
Plaintiffs' attorneys also noted the proposed settlement
represents a recovery of nearly 40 percent of the maximum likely
recoverable damages. In contrast, the median recovery of damages
against financial institutions over the past decade was 2.4
percent in the Third Circuit and only 2 percent nationwide, they
wrote. Attorneys said maximum possible damages for the class
were offset by a settlement agreement reached by Wilmington Trust
Corp. and prosecutors on the eve of a scheduled criminal trial
last year. The agreement includes a civil forfeiture of $44
million that is expected to be distributed among the bank's
shareholders.
If the judge agrees to enter a preliminary approval order,
notices would be sent to class members and a final settlement
hearing would be scheduled.
Meanwhile, the four former executives have asked a judge to
overturn their fraud and conspiracy convictions, arguing that the
prosecution evidence wasn't strong enough to support the jury's
guilty verdicts. The judge has directed defense attorneys to
submit written briefs by June 1. Prosecutors will have two weeks
to file an answer.
Former Wilmington Trust president Robert Harra Jr., former chief
credit officer William North, former chief financial officer
David Gibson and former controller Kevyn Rakowski were convicted
after a six-week trial on charges of fraud, conspiracy and making
false statements to federal regulators.
Defense attorneys initially filed motions for acquittal after
prosecutors finished presenting their case, but the judge did not
rule on them. They now say that if the judge won't acquit their
clients, he should at least grant them a new trial.
Prosecutors alleged that in the wake of the 2008 financial
crisis, bank executives misled regulators and investors about
Wilmington Trust's massive amount of past-due commercial real
estate loans. Founded by members of the DuPont family in 1903,
the bank imploded despite receiving $330 million from the federal
government's Troubled Asset Relief Program. [GN]
WATERS OF CLINTON: Weaver Seeks Overtime Compensation under FLSA
----------------------------------------------------------------
BRANDY WEAVER, on behalf of herself and all other similarly
situated employees, the Plaintiffs, v. THE WATERS OF CLINTON,
LLC, the Defendant, Case No. 3:18-cv-00203 (E.D. Tenn., May 25,
2018), seeks to recover unpaid straight time, overtime
compensation, liquidated damages, interest, and attorneys' fees
and costs pursuant to the Fair Labor Standards Act of 1938
The case is a collective action under the FLSA, brought on behalf
of all persons who, at any time during the past three years and
up until the date of entry of judgment are or were employed by
Defendant as non-exempt employees and who were worked off-the-
clock without receiving compensation for all of their hours
worked as a result of Defendant's automatic meal break deduction
policy.
Waters Of Clinton, LLC started providing nursing home service
since 1980.[BN]
The Plaintiff is represented by:
Gilbert Mcwherter, Esq.
Emily S. Alcorn, Esq.
SCOTT BOBBITT PLC
341 Cool Springs Blvd, Suite 230
Franklin, TN 37067
Telephone: (615) 354 1144
E-mail: ealcorn@gilbertfirm.com
WELLS FARGO: Lotsoff Sues over $35 Fee for Non-Sufficient Funds
---------------------------------------------------------------
HELEN LOTSOFF, on behalf of herself and all others similarly
situated, the Plaintiff, v. WELLS FARGO & COMPANY, WELLS FARGO
BANK, N.A., and DOES 1-50, inclusive, the Defendant, Case No.
37-2018-00026392-CU-CO-CTL (Cal. Super. Ct., May 29, 2018),
complains that Wells Fargo charges account holders a $35 non-
sufficient funds fee when there are insufficient funds to pay a
transaction and it rejects the charge. Wells Fargo charges
account holders a $35 overdraft fee when there are insufficient
funds to pay a requested transaction and it accepts the charge.
Through the imposition of NSF and OD fees, Wells Fargo makes
several hundred million dollars a year. These fees are by
definition often assessed on consumers struggling to make ends
meet with minimal funds in their accounts.
Wells Fargo & Company is an American multinational financial
services company headquartered in San Francisco, California.[BN]
Attorneys for Plaintiff:
Todd D. Carpenter, Esq.
CARLSON LYNCH SWEET
KILPELA & CARPENTER. LLP
1350 Columbia St., Ste. 603
San Diego, CA 92101
Telephone: (619) 762 1900
Facsimile: (619) 756 6991
E-mail: tcarpenter@carlsonlynch.com
WHOLE FOODS: Court Grants Partial Bid to Dismiss "Alston"
---------------------------------------------------------
Judge Emmet G. Sullivan of the U.S. District Court for the
District of Columbia granted the Defendant's partial motion to
dismiss the case, THOMAS ALSTON, Plaintiff, v. WHOLE FOODS MARKET
GROUP, Defendant, Civ. Action No. 17-2580 (EGS) (D. D.C.).
On Jan. 23, 2018, Mr. Alston, proceeding pro se, filed an amended
complaint against defendant Whole Foods. He sues Whole Foods on
behalf of himself and all others similarly situated for
violations of the District of Columbia Consumer Protection
Procedures Act ("DCCPPA"), and common law fraud. Mr. Alston
alleges that Whole Foods deceptively advertised certain products
known as "Larabars" as being on sale, while charging a non-sale
price.
On Feb. 7, 2018, Whole Foods filed a partial motion to dismiss as
to Mr. Alston's class action claims, arguing that Mr. Alston does
not have standing to pursue the rights of others by way of his
class action claims because he is not represented by an attorney.
When he did not respond within fourteen days, pursuant to Local
Rule 7(b), the Court sua sponte extended his time to respond by a
month, reminding him that failure to respond could result in his
claim being dismissed. The Order was sent to Mr. Alston's
address of record by first-class mail, certified receipt.
Almost two months have passed, and Mr. Alston has not filed a
response. Notwithstanding the fact that the Court may treat
Whole Food's motion as conceded, Judge Sullivan independently
finds that Mr. Alston may not bring class claims as a pro se
Plaintiff.
The Judge therefore granted the Defendant's partial motion to
dismiss; and dismissed with prejudice the Plaintiff's class
action claims against the Defendant for common law fraud and
violations of the DCCPPA.
A full-text copy of the Court's April 13, 2018 Order is available
at https://is.gd/OxkYSl from Leagle.com.
THOMAS ALSTON, Plaintiff, pro se.
WHOLE FOODS MARKET GROUP, Defendant, represented by Christopher
E. Humber -- christopher.humber@ogletree.com -- OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C..
WYNDHAM HOTELS: Thyne Sues over Unsolicited Phone Calls
-------------------------------------------------------
KATHRYN THYNE, individually and on behalf of all others similarly
situated, the Plaintiff, v. WYNDHAM HOTELS AND RESORTS, LLC d/b/a
VIVA GREAT VACATIONS, and DOES 1 through 10, inclusive, and each
of them, the Defendants, the Defendant, Case No. 2:18-cv-04556
(C.D. Cal., May 25, 2018), seeks to recover damages and any other
available legal or equitable remedies resulting from the illegal
actions of Defendant in negligently, knowingly, and/or willfully
contacting Plaintiff on Plaintiff's cellular telephone in
violation of the Telephone Consumer Protection Act, thereby
invading Plaintiff's privacy.
According to the complaint, beginning in or around December 26,
2017, the Defendants contacted Plaintiff on Plaintiff's cellular
telephone numbers ending in -2196, in an attempt to solicit
Plaintiff to purchase Defendants' services. When Plaintiff picked
up a call from Defendants, there was a long delay prior to an
audible clicking noise and Defendants' agent coming on the phone.
At this point, Defendants' agents indicated that she was calling
from Viva Great Vacations, which is a timeshare brand of Wyndham.
The Defendants used an 'automatic telephone dialing system", as
defined by 47 U.S.C. section 227(a)(1) to place its call to
Plaintiff seeking to solicit its products.
Additionally, Plaintiff's telephone number ending in -2196 has
been registered on the National Do-Not-Call List since 2008.
Despite this, Defendants continued to call Plaintiff in an
attempt to solicit its services and in violation of the Do-Not-
Call provisions of the TCPA thus repeatedly violating Plaintiff's
privacy. Defendants' calls constituted calls that were not for
emergency purposes as defined by 47 U.S.C. section 227(b)(1)(A).
Wyndham Hotels and Resorts is an international hotel and resort
chain based in the United States. It has locations in Canada,
Mexico, Colombia, Ecuador, Turkey, Germany, the UK, the Caribbean
and Margarita Island In Venezuela.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Telephone: (877) 206 4741
Facsimile: (866) 633 0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
* Attorney Matt Funk Shares Opinions on SCOTUS Arbitration Ruling
-----------------------------------------------------------------
Susan DeSantis of The New York Law Journal asked Matt Funk,
president of the New York State Trial Lawyers Association and is
a senior partner at Pasternack Tilker Ziegler Walsh Stanton &
Romano, to share his opinions on the U.S. Supreme Court's recent
decision on employment contracts and new laws on sexual
harassment and scaffold protection.
Q: Do you think the Supreme Court's recent decision that
employment agreements that ban class actions do not violate
federal labor laws will have an impact on workers?
A: The Supreme Court decision is a blatant misinterpretation of
labor rights that will ultimately harm workers across the
country. Individual workers typically lack the resources to take
on major corporations by themselves. Through class-action
lawsuits, workers can join together to hold negligent employers
and bad actors accountable.
By allowing employers to strip this fundamental right away from
workers, the Supreme Court is forcing victims to take reported
violations to paid third-party arbitrators, usually from an
arbitration firm chosen by the employer, which creates a strong
potential for bias. It removes the dispute-resolution mechanism
from an independent court, and places it into the hands of
decision-makers in the pockets of the accused party, making it
difficult to hold employers responsible for misconduct and labor
violations.
Q: When did mandatory arbitration clauses really become so
entrenched in the agreements and contracts that consumers
regularly encounter?
A: Mandatory arbitration clauses have their roots in the Federal
Arbitration Act, a law passed in 1925 that granted businesses the
ability to resolve disputes outside of the courtroom through
third-party arbitrators. The law was designed for business-to-
business transactions but over the past 30 to 40 years, the
courts have made it easier for corporations to include these
clauses in contracts where the individual consumer or employee
has no real power to change the contract terms. Eventually,
these clauses became par for the course, often cloaked in
legalese unrecognizable to the untrained eye.
Consumers often overlook these clauses, unaware of how their
rights are being limited until it's too late to avoid them or
take action. The only way to level the playing field, and make
sure corporations take consumer safety seriously, is to ban
mandatory arbitration clauses in employment and consumer
contracts.
Q: What is the association's reaction to recent sexual harassment
legislation passed and signed into law in New York City?
A: The legislation is a major step in the right direction, at a
critical moment in the fight for gender equality. Over the past
year, women across the country have shared their experiences in
the workplace, demonstrating how institutions have reinforced
sexism to physically harm and intimidate women, discourage their
ambitions, prevent career advancement, and create hostile
workplaces.
The City Council recognized that it was imperative to do more
than just listen -- they needed to act and do something to change
the status quo. The legislation will help ensure that all
managers and employees are properly trained and educated,
creating a foundation for institutional reform that reverberates
across businesses and organizations of all stripes in New York
City.
Q: I know the association has taken a position on the Scaffold
Safety Law in New York. What are the concerns?
A: It's no secret that construction work is one of the most
dangerous jobs in New York. In 2016 alone, 71 construction
workers in New York State died in on-the-job incidents, the
highest total we've seen since 2002. The Scaffold Safety Law is
a much-needed source of justice and accountability that is
essential to protecting workers and making safety paramount.
Given the risks involved, it's up to owners and general
contractors who have ultimate control over the work site to
create a secure working environment, by following safety
guidelines and providing proper equipment. When owners and
general contractors ignore basic rules and fail to provide
adequate gear, they put workers at risk and create tragedies out
of sheer negligence and disregard for their employees' lives.
The Scaffold Safety Law offers workers and their families a way
to hold negligent owners and general contractors accountable. In
instances where workers are seriously injured or killed as a
result of unsafe working conditions, their families are forced to
take on the costs of lost wages, medical bills and other impacts
that are not adequately covered by workers' compensation, not to
mention the physical and emotional pain that results. The
Scaffold Safety Law can help mitigate the financial stresses and
devastation facing victims and their families, while delivering
them justice. At the same time, it insists that owners and
contractors follow safety guidelines and promote worker safety so
workers can return home to their families at the end of a hard
day's work.
Q: You're nearing the end of your term as NYSTLA president. What
achievements are you most proud of?
A: Over the last year, I'm particularly proud of NYSTLA's
leadership in expanding and strengthening the legal rights of
everyday New Yorkers. Working with a broad network of affected
residents and families, advocates, and legislators, NYSTLA has
been able to achieve legislative and regulatory victories that
deliver justice and practical, meaningful results.
In January, Lavern's Law was enacted, establishing legal rights
for patients harmed by negligent failure to diagnose cancer or a
malignant tumor by changing the statute of limitations to reflect
the date of discovery. And in 2017, legislation was passed that
expands access to SUM auto insurance, promoting better insurance
coverage for drivers. Elsewhere on the road, we successfully
fought for the implementation of a regulatory framework for ride-
share services that is the best in the nation when it comes to
protecting consumers, including proper insurance coverage. Not
to be forgotten, we also reinforced victims' legal rights through
a bill that allows lawsuits to proceed in the same county where
the violation occurred. And, finally, as a workers' compensation
attorney, I am particularly proud of our success working with the
labor movement to beat back harmful changes that were proposed
that would have gutted the workers' compensation system.
At the same time, NYSTLA has continued to help young lawyers
develop professionally and gain the knowledge they need to make a
significant impact through a continuing legal education program
that has repeatedly been voted the best in the state.
We believe in leading by example, and our efforts this year serve
as a reminder of how the legal community can make a difference on
behalf of the public interest. [GN]
* Australian Judgments Adopt Reforms to Class Action Settlements
----------------------------------------------------------------
John Emmerig, Esq. -- jemmerig@jonesday.com -- Michael Legg, Esq.
-- mlegg@jonesday.com -- and Samuel Hickey, Esq., of Jones Day,
in an article for Mondaq, wrote that a number of Federal Court of
Australia judgments in the first half of 2018 have adopted or
raised reforms to the mandatory approval process for class action
settlements. The reforms mean that the class action settlement
process is in a state of flux. While predominantly a concern for
applicants, their lawyers, and funders, the process also impacts
respondents who are seeking finality and wish to avoid the
uncertainty and cost of settlements being refused or challenged.
Four recent decisions of the Federal Court of Australia have
adopted or raised law reforms that are resulting in significant
changes to the mandatory approval process for class action
settlements required under Part IVA of the Federal Court of
Australia Act 1976 (Cth) ("FCAA"). The reform topics are as
follows:
-- The application of the overarching purpose in the FCAA,
which includes concerns about efficiency, to the powers under the
class actions regime in Part IVA;
-- The court's assessment of legal costs, in particular how
they may be assisted by the appointment of an independent
referee, rather than a costs expert retained by the applicant's
lawyers;
-- The appropriateness of appointing the applicant's lawyers
as administrators of a settlement distribution scheme;
-- The basis upon which payments may be made to applicants in
addition to the compensation they receive as group members; and
-- The court's power to vary a funding agreement while
simultaneously approving a settlement.
BACKGROUND
Pursuant to s 33V of the FCAA, Australian class action
settlements must be approved by the court. The approval process
considers whether the settlement is fair and reasonable,
including the payment of legal fees and litigation funding fees.
The conduct of Australian class action settlements has attracted
critique from commentators1 and is the subject of review by the
Victorian Law Reform Commission and Australian Law Reform
Commission. The Federal Court has also actively sought to engage
with the concerns raised about the settlement process. In
particular, four recent decisions have adopted or recommended
reforms that substantially change the class action settlement
process: Lifeplan Australia Friendly Society Limited v S&P Global
Inc [2018] FCA 379 ("Lifeplan"); Dillon v RBS Group (Australia)
Pty Limited (No 2) [2018] FCA 395 ("Dillion"); Clarke v Sandhurst
Trustees Limited (No 2) [2018] FCA 511 ("Clarke"); Caason
Investments Pty Limited v Cao (No 2) [2018] FCA 527 ("Caason").2
CASE MANAGEMENT
The Federal Court of Australia's enabling legislation contains an
overarching purpose (s 37M(1)), which is to facilitate the just
resolution of disputes: (i) according to law; and (ii) as
quickly, inexpensively, and efficiently as possible. The court is
required to interpret and apply civil practice and procedure
provisions, including the class actions regime, in a manner that
best promotes the overarching purpose.
Justice Lee in Lifeplan opined that the role of the overarching
purpose had received minimal attention from Australian courts in
settlement approval applications, but noted that an objective of
the settlement approval process was to achieve consistency with
the overarching purpose provision. That is to say, a settlement
distribution scheme must facilitate the distribution of the
settlement sum in a way that maximises efficiency and minimises
cost to group members. This comment is significant, as arguments
regarding economic efficiency are not regularly made in s 33V
applications.
In Caason, Murphy J found several practices of the applicants'
lawyers were inconsistent with s 37M. First, an excessive amount
of evidence was filed that was not referred to at trial. This
evidence needs to be reviewed by the court and the parties.
Justice Murphy noted that if parties continued this trend in the
future that "there are likely to be consequences". His Honour
did not go further, although it may be assumed that such
consequences may see lawyers bear their own costs for the
production of superfluous evidence. Section 37M again arose in
respect of a clause of the settlement agreement that stipulated
that the settlement would have no effect unless the court made a
common fund order. In Australia, common fund orders provide for
the litigation funder to recover a court-specified fee from all
group members, regardless of whether the group member entered
into a funding agreement. Although a common fund order was
ultimately made, his Honour found that this clause left open the
possibility that a court might hear and decide a settlement
approval application, only for that agreement to be rendered
null, which would in turn lead to the waste of court resources.5
COST ASSESSMENT
It has traditionally been common practice for practitioners to
provide an affidavit from an independent costs expert who
assesses the reasonableness of the legal costs and disbursements
incurred as part of seeking court approval of legal fees.
Justice Lee in Lifeplan did not approve of the traditional
practice; remarking that such evidence was "next to useless" and
that he had yet to see a costs assessor form the independent view
that the solicitor who retained them had charged unreasonable
fees. Seconding Lee J's concerns, Murphy J in Caason noted that
there was "a question as to whether costs experts routinely
engaged by solicitors that act for the applicants in class
actions are truly independent, and whether they are likely to
suffer from bias such as to be "tame" experts". Justice Murphy
also noted that the possibility of expert witness bias is
amplified when an independent costs expert provides an opinion on
a s 33V application because (i) the law firm is essentially
pursuing its own interests in seeking that costs be approved,
(ii) there is no opposing expert report, and (iii) there is
usually no contradictor. His Honour considered the use of court
officers and registrars, and noted that while it was a valid
option, it would be an ultimately unsustainable practice, and
that the appointment of an independent referee may be preferable.
Orders were then made under s 54A of the FCAA to appoint an
independent referee to assess the applicants' costs. His Honour
speculated that it may be apposite for the court to create "a
panel of competent and reputable independent costs consultants"
in order to reduce "the reasons for conscious or unconscious
bias" in the future.11
In Dillon, pursuant to a court order, a referral out to an
independent referee was made for the inquiry and reporting of
whether the legal fees incurred were fair and reasonable. The
referee reported that the claimed costs of the proceeding were
fair and reasonable, but the proposed administration costs were
too high. Lee J adopted the report and commented:
-- the reference process is a very considerable improvement on
the self-serving process of applicants engaging cost consultants
to provide expert opinion evidence as to the reasonableness of
costs (a practice which, in my view, is less than satisfactory
and should be consigned to the dustbin of procedural history).
However, in Clarke, it was originally proposed that an
independent referee would be appointed to assess the applicants'
legal fees, but the step was not taken due to concerns that the
cost of the reference process would outweigh any benefit in the
augmentation of the amounts paid to group members. Lee J simply
approved the legal costs in that case.
The assessment of legal costs is improved through the use of an
independent, court-appointed referee, but at present the practice
is still uncertain.
SETTLEMENT ADMINISTRATION
In Lifeplan, Justice Lee appointed the applicants' lawyers as
administrators of the settlement distribution scheme, but went on
to note that practitioners should cease expecting that courts
will appoint solicitors as scheme administrators. Instead, it
may be appropriate in future matters to appoint a service
provider who charges a lower rate for remuneration. However, his
Honour was ready to appoint the applicants' solicitors as
administrators in this case due to the small size of the group
and the efficiency with which the applicants had thus far acted.
Nonetheless, practitioners wishing to act as administrators may
find they are subject to greater scrutiny and may need to adduce
evidence showing why their appointment will be cost-effective.
The settlement agreement in Caason appointed a partner of the
applicants' law firm as administrator of the settlement
distribution scheme. Justice Murphy sought to ensure greater
oversight and accountability of the administrator by requiring
the administrator to provide reports to the court as to the
progress and costs of the settlement administration. Further, if
any requirement under the scheme was not complied with within 14
days of the due date, then the administrator had to notify the
court of the occurrence and provide an explanation as well as an
estimate as to when the requirement would be met and why that
amount of time would be necessary. Murphy J's approach is
consistent with the Federal Court's Class Actions Practice Note
that, since its reissue on 25 October 2016, requires that the
court be advised at regular intervals of the progress of a SDS to
ensure "that distribution of settlement monies to the applicant
and class members occurs as efficiently and expeditiously as
practicable".
REIMBURSEMENT PAYMENTS FOR APPLICANTS
It has become standard practice for applicants to seek, and a
court to award, a payment to compensate an applicant for the time
the applicant has spent representing group members.
However, in two of the recent cases the basis for reimbursement
has changed.
The applicants in Lifeplan sought an additional $250,000 in
addition to their recovery as group members to compensate them
for funding the litigation. Previously, reimbursement has not
been awarded on the basis of an applicant having funded the
litigation. Lee J permitted the payment, which marked an
expansion of the basis upon which such payments may be made,
although his Honour went on to say that he did not reach this
conclusion without misgivings and that his acquiescence on this
issue should not be taken as precedent for future cases.
The applicants in Dillon sought $80,000 in fees, not as a payment
to compensate them for their time, but rather as an incentive to
act as applicants in the proceedings. While incentivisation
payments had not previously been made, the Federal Court in Farey
v National Australia Bank Ltd [2016] FCA 340 had indicated that
such payments may be possible. There was no litigation funder in
Dillon and, therefore, no protection from an adverse costs order
for the applicants if the class action was unsuccessful.
Consequently, "[g]iven the great risk that was taken by the
applicants" Lee J made orders for the payments to be made.23
However, his Honour noted that if incentivisation payments were
to be sought they should be raised with the court at the earliest
possible time, typically at commencement.
The availability of reimbursement and incentivatisation payments
may be crucial to class actions lawyers and funders being able to
attract applicants to commence proceedings. An applicant that is
out-of-pocket or exposed to the risk of a large costs awards may
be reluctant to take on the role. However, such payments are not
without risks. For example, the payment to an applicant beyond
the compensation they are able to receive like all other group
members, can create a conflict of interest as the applicant may
agree to a settlement to obtain the additional fee, rather than
acting in the interests of the group.
POWER TO ALTER LITIGATION FUNDER'S FEES
Justice Lee expressed some concern in Clarke regarding the
difference between the amount of the settlement sum and the
amount actually dispersed to group members. In doing so, his
Honour raised the prospect of reducing the amount payable to the
funder. His Honour resolved that this was not a necessary course
to take, but noted that this might be an area of future reform.25
Previous federal court judgments have addressed this issue, with
reliance being placed on FCAA ss 33V(2) (if the court makes an
order approving a settlement "it may make such orders as are just
with respect to the distribution of any money paid under a
settlement") and 33ZF ("the Court may, of its own motion or on
application by a party or a group member, make any order the
Court thinks appropriate or necessary to ensure that justice is
done in the proceeding"). Nonetheless, the existence and scope
of the power is not without controversy. Indeed in Clarke
counsel for the litigation funder submitted that the power does
not exist. However, a power for the courts to review litigation
funding fees undeniably acts as a protection for group members,
especially those who lack bargaining power. The issue may
require an amendment to the FCAA to clearly grant the court power
to review and set a litigation funder's fee.
CONCLUDING REMARKS
The Federal Court's willingness to address law reform means that
the class action settlement process is in a state of flux. It is
crucial that respondents understand the above developments so
that they can be factored into class action settlement
negotiations and structures. [GN]
* Bradley Arant Boult Attorneys Discuss Class Action Rulings
------------------------------------------------------------
John Goodman, Esq. -- jgoodman@bradley.com -- of Bradley Arant
Boult Cummings LLP, in an article for JDSupra, wrote that Spokeo
v. Robins -- which confirmed that a plaintiff's allegation of a
defendant's statutory violation without accompanying concrete
harm fails to satisfy Article III's "case or controversy"
requirement -- has brought the issue of standing to the forefront
in a variety of class action cases. Standing has become a
frequent weapon in the defense's arsenal, both as an initial
hurdle for a class plaintiff to overcome, and as a basis for
resisting class certification by demanding that each putative
class member demonstrate actual, concrete injury. A recent
decision by the Seventh Circuit, however, reminds us that there
can be a downside to a successful standing challenge: the
permanent loss of a federal forum for adjudication of the claim.
Collier v. SP Plus Corporation involved a class action brought
against the operator of public parking facilities, claiming that
the receipts generated by the defendant contained the expiration
dates of consumers' credit and debit cards, in violation of the
Fair and Accurate Credit Transaction Act (FACTA). Plaintiffs
alleged willful violation of FACTA and sought statutory and
actual damages. Their complaint, however, did not describe any
concrete harm resulting from the alleged statutory violation. SP
Plus removed the case to federal court, invoking the court's
federal question jurisdiction under FACTA, and then moved to
dismiss under Fed. R. Civ. P. 12(b)(1), contending that
plaintiffs lacked Article III standing because they alleged no
injury in fact. Plaintiffs responded by moving to remand the
case to state court, contending that SP Plus had failed to
establish subject matter jurisdiction. The district court denied
the motion to remand, and granted plaintiffs leave to amend to
make factual allegations in support of their request for actual
damages. When plaintiffs did not amend their complaint, the
trial court dismissed the case with prejudice. Plaintiffs
appealed to the Seventh Circuit.
The appeals court reversed. The court agreed that plaintiffs'
complaint did not allege an actual injury sufficient to establish
Article III standing under Spokeo. Nonetheless, relying on the
mandatory language of 28 U.S.C. Sec. 1447(c), the court held that
remand to state court was the only permissible option upon a
finding of lack of subject matter jurisdiction. The court also
noted that even if a dismissal had been proper, it should have
been one without prejudice, as a jurisdictional dismissal is not
an adjudication on the merits. In a parting shot, the court
expressed displeasure that the defendant had removed the case to
federal court and then promptly attacked federal jurisdiction; SP
Plus's "dubious strategy has resulted in a significant waste of
federal judicial resources, much of which was avoidable."
There are several takeaways from this decision:
* From the defense perspective, seeking a Rule 12(b)(1)
jurisdictional dismissal in a case removed from state court is
strategically risky. The weight of authority (which Collier
reflects) and the language of 28 U.S.C. Sec. 1447(c) instruct
that a successful challenge to plaintiff's standing will result
in a remand to state court. And the benefit of a federal court's
ruling of "no Article III standing" is far from clear, unless the
state court's standing jurisprudence mirrors Article III. Even
then, as a non-final (and, at best, appealable by permission
only) ruling, it is difficult to imagine that a state court would
consider the remand order to be preclusive. There is authority
in some circuits that a district court can dismiss rather than
remand to state court if remand would be futile, i.e., if it is
clear that the state court would likewise dismiss for lack of
standing. But making that showing is likely to be difficult, as
many states' standing rules differ from federal standards. And
-- as Collier also teaches -- a jurisdictional dismissal by the
federal court should be one without prejudice, leaving the
plaintiff free to refile the case in state court anyway.
* Of course, ignoring standing altogether does not eliminates
the trap. The plaintiff himself can raise the issue in an effort
to have the case remanded. And as the late, great Dan Meador
taught many of us in his Federal Courts class, "even the janitor
can raise subject matter jurisdiction." But beyond those
scenarios, the defendant is better served by saving its standing
arguments for class certification, in particular the argument
that each class member must show actual injury, thus defeating
commonality, typicality and predominance. Not all courts have
bought into the concept that every member of the class must have
standing, but arguing these issues under the Rule 23 factors can
create traction for the defense while minimizing the risk of
remand.
* Collier also serves as a reminder that federal
jurisdictional statutes (including the Class Action Fairness Act)
may be of limited utility to the defendant facing a class action
involving statutory violations without actual injury. Federal
district courts have a duty independent of any Congressional
enactment to determine whether an action involves an actual "case
or controversy" under Article III.
* Defense counsel's natural instinct in "touch foul" class
actions is to argue early and often that "plaintiff hasn't been
hurt at all." In class cases removed from state court, however,
it may be wise to curb that instinct. Attacking standing can
result in the defendant being left to the tender mercies of the
state court where plaintiff's counsel initially chose to bring
the suit. [GN]
* Class Action Mulled Against Mortgage Lenders in Australia
-----------------------------------------------------------
Duncan Hughes, writing for Australian Financial Review, reports
that lawyers' representing up to 300,000 litigants are planning
an $80 billion action against mortgage lenders, mortgage brokers
and financial regulators in a class action that would dwarf
previous actions.
Sydney-based Chamberlains has been appointed counsel for the
action that is expected to commence preliminary proceedings by
November and could run for several years.
Roger Brown, a former Lloyds of London insurance broker, said he
already has about 200,000 borrowers ready to join the action and
has $75 million backing from UK and European investors.
Mr Brown, 77, is confident he will be able to raise another $25
million.
"There has been a scam," he said about mortgage lending to
Australian property buyers. "But the train has hit the buffers
and there needs to be recompense," he said.
Stipe Vuleta, a partner with Chamberlains, said the law firm has
extensive experience handling big, complex class actions
involving large numbers of parties and claims involving several
hundred million dollars.
But the mortgage claim, if successful, would be 160-times more
than the $500 million paid out by SPAusNet following the 2009
bushfires in which 119 people died and more than 100,000 homes
were destroyed.
It would be more than eight-times payments to investors in failed
US telecom's giant Enron.
Mr Brown, who said he has spent six years researching the action,
claims borrowers have been mis-sold mortgage products during the
property boom, particularly interest-only loans that allow
borrowers to postpone repaying principal.
Tougher lending standards, falling property prices and out-of-
cycle rate increases are increasing borrower stress, particularly
in Melbourne and Sydney were growth has been the highest.
He said the scale of the problem is being highlighted by the
current banking royal commission.
"Banks and other lenders are running for cover," he said.
"Regulators who should have been responsible for prudent lending
practices were asleep at the wheel."
Mr Brown, who has been generating interest on
mortgagedeception.com, said he is a share holder in the company
created to bring the action.
Other class actions are being planned by other law firms on
issues ranging from the performance of AMP, the nation's largest
diversified financial services conglomerate, through to
negligence claims for cladding againsts developers, planners and
builders.
For example, a $4.2 billion class action on behalf of about
250,000 owners and residents of about 1400 apartments is being
planned in Victoria as the first stage in a national campaign
against construction companies to compensate for the costs of
replacing combustible cladding.
Law firm Adley Burstyner and Roscon Property Services is
preparing the first round of legal actions on behalf of Victorian
owners, which is expected to roll on to NSW, non-residential
buildings, then other states and territories. The law firm is
seeking registrations of interest to establish whether there is
enough backing to make the case worthwhile. [GN]
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