/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180808.mbx C L A S S A C T I O N R E P O R T E R Wednesday, August 8, 2018, Vol. 20, No. 158 Headlines ABAXIS INC: Rigrodsky & Long Files Securities Class Action ALLIED INTERSTATE: Court Won't Certify Massachusetts FDCPA Class ALLIED INTERSTATE: Second Circuit Appeal Filed in Franco Suit ALLSCRIPTS: Seeks Dismissal of Ransomware Attack Class Action AMERICAN BENEFIT: Racanati Sues Over Illegal Telemarketing Calls AMERICAN HONDA: Preston Appeals C.D. Cal. Ruling to 9th Circuit AMN HEALTHCARE: Court Certifies Class of Traveling Nurses ARIZONA: Corizon Appeals Order in Parsons Suit to 9th Cir. ASIANA AIRLINES: Shareholders Mull Class Action ATMOSPHERE DISCOUNT: Melara Sues Over Unpaid Overtime Premium AVENTURA, FL: Judge Dismisses Red Light Camera Class Action BELLINGHAM, WA: Robert Vandenbosch Suit Moved to W.D. Washington BHI ENERGY: Fails to Pay OT Wages Under FLSA/CMWA, Klapatch Says BIG HEART: FDA Pentobarbital Probe Ongoing Amid Class Action BOARDWALK PIPELINE: Mishal Seeks Damages for Breach of Contract CALIBER HOME: Court Dismisses S. Razuki's Security Breach Suit CALIFORNIA CEMETERY: Ortiz Seeks Overtime Pay under Labor Code CAMBRIDGE, MA: Bouley et al. Balk at Liquor Regulations CANADA: Ex-Manitoba Day School Students File Abuse Class Action CAPITAL MANAGEMENT: Sued by Kupczyk for Illegal Debt Collection CENTRAL TRANSPORT: Fails to Pay Wages & Overtime, Becerra Says COMMERCIAL RESEARCH: Williams Sued over Debt Collection Practices COPSYNC: Washington Co. Considers Joining Dashboard Camera Suit CSC SERVICEWORKS: Breached Laundry Service Contracts, RBB2 Says DEBT MANAGEMENT: "Fabec" Suit Moved to Northern District of Ohio DEVILLE ASSET: Ross Sues over Debt Collection Practices DIVERSIFIED CONSULTANTS: White Sues over Debt Collection DOWNTOWN TOWING: Petraglia Seeks to Recover OT Pay Under FLSA EDGE FITNESS: Court Certifies Class of Membership Advisors EGS FINANCIAL: 2nd Circuit Appeal Filed in Taubenfliegel Suit ELMER BUCHTA: Monroe Sues Trucking Co. Over FLSA Violations EMERALD EQUITY: Ortiz Seeks to Recover Wages Under FLSA and NYLL ENHANCED RECOVERY: Israelson Disputes Vague Collection Letter ESSEN22 LLC: Solares-Gonzaga Seeks Unpaid Wages & OT under FLSA F&A DRYWALL: Marquez Labor Suit Seeks to Recover Unpaid OT Wages FARMLAND PARTNERS: Sept. 10 Lead Plaintiff Deadline Set FEDERAL NATIONAL: Court Allows FHFA to Intervene in FCRA Suit FIDELITY BANK: McAlister Seeks to Recover Unpaid Overtime Wages FLOYD COUNTY, GA: Correctional Officers File Suit to Recover Wages FORD MOTOR: Settles Takata Airbag Class Action for US$299.1MM FORD MOTOR: Tacmed Says Driveshaft Flexible Couplings Defective FRIENDS OF FREDDIE: Judge Rules Class Action Lawsuit Can Proceed GAMESTOP CORP: Settles Customers' Data Breach Class Action GEORGE TYNDALL: Faces Sexual Abuse Class Action Suit GOOGLE LLC: AdX Publishers Can Amend Breach of Contract Suit HOMESERVE USA: Peker TCPA Suit Seeks to Stop Unsolicited Calls HOULIHAN LAWRENCE: Faces Class Action Over "Predatory Behavior" HSBC HOLDINGS: Blaney McMurtry Discusses Class Action Ruling ILLINOIS: Dismissal of Suit Over $50 Case Reinstatement Fee Upheld IOC-PA LLC: Tumpa Action Seeks to Recover Unpaid Overtime JEFFERSON PARISH, LA: Faces Class Suit Over Landfill Fumes JEHOVAH'S WITNESSES: Faces Class Actions Over Sexual Abuse KINCAID INC: Fails to Pay OT Wages Under FLSA, Portillo Claims KNORR-BREMSE AG: Marietta Files Suit Over No-Poach Conspiracy MDL 2624: Plaintiffs Must Show Cause re Prelim Deal Approval MERCURY SYSTEMS: Klein Law Firm Files Class Action Lawsuit MIAMI RESEARCH: Court Denies Bid to Approve TCPA Suit Settlement MIDLAND CREDIT: Schwartz Sues over Debt Collections Practices MONSANTO COMPANY: Morrison Sues over Sale of Herbicide Roundup MONSTER BEVERAGE: Settles Class Action Over "Natural" Labeling MYEXPERIAN INC: Court Conditionally Certifies Opt-in Classes NATIONAL BOARD: 4th Cir. Vacates Dismissal of Optometrists' Suit NEW DOMINION: Trial in Earthquake Class-Action Lawsuit Delayed NEW JERSEY: Edna Mahan Inmates Win Early Victory in Class Action NEW ZEALAND POST: Courier Drivers May Need Litigation Funding NHL: Federal Judge Denies Class-Action Status in Concussion Suit OKLAHOMA: Medical Marijuana Advocates Mull Class Action ORMAT TECH Cohen Milstein Investigates Possible SEC Violations ORNUA FOODS: Myers-Taylor Files Class Suit Over False Advertising OVATION CREDIT: Wagner Sues Over Illegal Telemarketing Calls PA FIRE RECOVERY: Accused by LaMonaca Suit of Violating FDCPA PENNSYLVANIA: HB 2025 to Order Lead Testing in Schools Amid Suit PERU: NAACP Chapter Mulls Class Action Against City of Lima PINNACLE A ROOFING: Paredes Suit Moved to S.D. Florida POLARITYTE INC: Faces Lawi Securities Suit Over Share Price Drop POLARITYTE INC: Pomerantz Law Firm Files Class Action Lawsuit PRICEWATERHOUSECOOPERS: Avoids Age Bias Class Action, For Now QUALCOMM ANTITRUST: Key et al. Seek Certification of Class QUALITY CARE: Settles Shareholder Class Action Over Merger RED EYE: Court Reconsiders Denial of Arbitration in Wage Suit REMINGTON RIFLES: Court OKs Class Accord Over Defective Triggers RHODE ISLAND: Court Dismisses J. Rodriguez's Suit RILEY HAYS: Harmon Action Seeks Unpaid Overtime Premium ROGERS WIRELESS: Sued Over System Access Fee SAMSUNG: Ice Maker Complaints Trigger Lawsuit SANDOZ CANADA: Class Action Launched Over Valsartan SANTA FE NATURAL: Pontusson Files Suit Over Deceptive Marketing SARBANAND FARMS: N. Perez Loses Bid to Dismiss FLCA Suit SCALZO INC: Hernandez Action to Recover Overtime Pay Under FLSA SCANA CORP: Dominion Energy Appeals Order in Warren Police Suit SCOTTSDALE HEALTHCARE: Dismissal A. Amari's Suit Affirmed SEAGATE TECHNOLOGY: Court Denies Bid to Certify Nationwide Class SHELBY COUNTY: 8th Cir. Affirms Judgment on Pleadings in "Robinett" ST. FRANCIS MEDICAL: Nguyen Seeks Overtime Pay under Labor Code STARBUCKS CORP: Must Pay Workers for Off-the-Clock Tasks STATE FARM: Wash. App. Affirms Denial of L. Daniels' Insurance Suit STATE STREET: ATRS Chief's Role in Class Action Lawsuits Flagged STATE STREET: Committee to Get Report on ATRS Plaintiff Role STEEL & TUBE: Homeowners Sign Up to Steel Mesh Class Action SUFFOLK, NY: Court Denies Certification of Taxpayers Class SUNWING VACATION: Faces Class Action on Use of Term "Champagne" SWAP.COM INC: Haefner Seeks Unpaid Wages, Benefits Under WARN Act T-MOBILE USA: Court Narrows Claims in P. Ames' RFDCPA Suit TECHTRONIC INDUSTRIES: Lakatosh Sues over Sale of Gravity Knives TEVA CANADA: Valsartan Class Action Commences TOSHIBA CORP: 9th Cir. Reverses Class Action Dismissal TRANSAMERICA LIFE: Bid to Certify Terminated Policy Classes Stayed TURNER OIL: Approval of FLSA Suit Settlement Recommended TWITTER INC: Court Certifies Securities Fraud Class U.S. XPRESS: I. Nunez's Suit Remains in District Court UBER TECHNOLOGIES: Class Action Not Subject to Arbitration UBER TECHNOLOGIES: London Taxi Drivers Mull Class Action UNITED PARCEL: Court Denies R. Holl's Writ of Mandamus UNITED STATES: Dismissal of VOA Contractors' FAC Affirmed UNITED STATES: Iraqi Files Citizenship Suit Amid Class Action UNITED STATES: Sheridan to Consider Joining PILT Class Action UNITED STATES: Wilmington City Joines PILT Class Action Suit UNIVERSITY HOSPITALS: Requests Gag Order v. Plaintiffs' Attorneys UNUM GROUP: Pomerantz Law Firm Files Securities Class Action USA DIVING: 2 Former Divers File Sexual Abuse Class Action VUZIX CORP: Faces Class Action Over Secondary Public Offering WAL-MART STORES: Must Face Cashiers' Seating Class Action WATERLOO, ON: Judge Rules on Jurisdictional Issue for WRPS Suit WESTERN POWER: Parkerville Bushfire Class Action Trial Ongoing WESTERN POWER: WA at Far More Risk of Bushfire from Electric Pole WESTJET AIRLINES: Former FA Protests Sexual Harassment WHOLE FOODS: Court Narrows Claims in S. Kellman's Suit WITHCOIN: Japanese Class Action Claims $12 Million Damages [*] VLRC Issues Final Report on Class Action Reform ********* ABAXIS INC: Rigrodsky & Long Files Securities Class Action ---------------------------------------------------------- Rigrodsky & Long, P.A. on July 17 disclosed that it has filed a class action complaint in the United States District Court for the Northern District of California on behalf of holders of Abaxis, Inc. ("Abaxis") (NasdaqGS:ABAX) common stock in connection with the proposed acquisition of Abaxis by Zoetis, Inc. and its affiliate ("Zoetis") announced on May 16, 2018 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against Abaxis and its Board of Directors (the "Board"), is captioned Kent v. Abaxis, Inc., Case No. 3:18-cv-03834 (N.D. Cal.). 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 May 15, 2018, Abaxis entered into an agreement and plan of merger (the "Merger Agreement") with Zoetis. Pursuant to the terms of the Merger Agreement, shareholders of Abaxis will receive $83.00 in cash for each share of Abaxis 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 proxy statement (the "Proxy Statement") filed with the United States Securities and Exchange Commission. The Complaint alleges that the Proxy Statement omits material information with respect to, among other things, Abaxis's financial projections and the analyses performed by Abaxis's financial advisor. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of Abaxis common stock. If you wish to serve as lead plaintiff, you must move the Court no later than September 17, 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] ALLIED INTERSTATE: Court Won't Certify Massachusetts FDCPA Class ---------------------------------------------------------------- The United States District Court for the Southern District of New York denied Plaintiffs' Motion for Class Certification in the case captioned GILBERTO FRANCO, on behalf of himself and all others similarly situated Plaintiff, v. ALLIED INTERSTATE LLC f/k/a ALLIED INTERSTATE, INC., Defendant, No. 13-cv-4053 (KBF)(S.D.N.Y.). The operative complaint alleges, in sum, that the defendant's collection practices violate the Fair Debt Collection Practices Act (FDCPA). Specifically, the plaintiff alleges that the defendant's written communications warned debtors that they may be subject to wage garnishment of 15% of their pay. The Plaintiff sought certification of a class consisting of all natural persons in the Commonwealth of Massachusetts to whom Allied Interstate sent a written communication in violation of the FDCPA during the period beginning June 13, 2012 and ending June 13, 2013. The Court concludes that the plaintiff is not an adequate representative of the proposed class, and that the plaintiff's motion for class certification under Rule 23 must be denied. The Court understands and agrees with the defendant's broader point that the plaintiff is not typical of the rest of the class, at least from a colloquial perspective. To wit, the plaintiff is the only potential class member to have been offered judgment in full satisfaction of his individual claims. Furthermore, the plaintiff is the only potential class member to have rejected such an offer. Thus, although the plaintiff may have "typical" claims, he appears likely to litigate those claims in a decidedly atypical way. Pursuant to Rule 23(a)(4) and relevant precedent, the Court may only certify a class action if it is satisfied, by a preponderance of the evidence, that the representative party will fairly and adequately protect the interests of the class. The plaintiff received and rejected a Rule 68 offer of judgment that would have fully compensated him for his individual claims. And the factual record is completely silent as to why he did so, or what kind of offer would have been acceptable. Indeed, there is no factual record as to this plaintiff on this issue at all. This is not an insignificant point. A class representative will be a decision-maker with regard to the acceptance or rejection of a settlement; that is, he will need to make judgments as to reasonableness. On this motion for class certification, it is the plaintiff's burden under Wal-Mart to demonstrate to the Court by a preponderance of the evidence that decisions of this type will be made reasonably, in good faith, and in the interests of the majority of the class members. The record currently before the Court consists of an unexplained rejection of an offer that would amount to full satisfaction of the plaintiff's individual claim. For these reasons, and keeping in mind the Supreme Court's clear recognition that class litigation is the exception rather than the rule, Wal-Mart, 564 U.S. at 348, the Court concludes by a preponderance of the evidence before it that the plaintiff is not an adequate representative of the proposed class under Rule 23(a)(4). Accordingly, the plaintiff's motion for class certification is denied. A full-text copy of the District Court's July 13, 2018 Opinion and Order is available at https://tinyurl.com/ydc4n8j4 from Leagle.com. Gilberto Franco, on behalf of himself and all others similarly situated, Plaintiff, represented by Andrew T. Thomasson , Stern & Thomasson Law, LLP, pro hac vice, William Franklin Horn , Law Office of William F. Horn & Craig Thor Kimmel , Kimmel & Silverman. Allied Interstate LLC, formerly known as Allied Interstate, Inc., Defendant, represented by Casey Devin Laffey -- claffey@reedsmith.com -- Reed Smith & Nana Japaridze -- njaparidze@reedsmith.com -- Reed Smith LLP. ALLIED INTERSTATE: Second Circuit Appeal Filed in Franco Suit ------------------------------------------------------------- Plaintiff Gilberto Franco filed an appeal from a court ruling in the lawsuit entitled GILBERTO FRANCO, on behalf of himself and all others similarly situated v. ALLIED INTERSTATE LLC, Case No. 13-cv-4053, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the Plaintiff brings this action against the Defendant, a national debt collection agency, alleging that its collection practices violate the Fair Debt Collection Practices Act. The Plaintiff alleges that the Defendant violated the FDCPA when it used false, deceptive, and misleading practices in its attempts to collect alleged debts from plaintiffs and other consumers in Massachusetts. Specifically, the Plaintiff alleges that the Defendant's written communications warned debtors that they may be subject to wage garnishment of 15% of their pay. The Plaintiff claims that the Defendant disseminated this communication in violation of Sections 1692e and 1692f of the FDCPA because the law only allows wage garnishment up to 15% of disposable income. The appellate case is captioned as In Re: Gilberto Franco, Case No. 18-2213, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Petitioner Gilberto Franco, on behalf of himself and all others similarly situated, is represented by: Philip D. Stern, Esq. Andrew T. Thomasson STERN THOMASSON LLP 150 Morris Avenue Springfield, NJ 07081 Telephone: (973) 379-7500 E-mail: philip@sternthomasson.com andrew@sternthomasson.com Defendant-Respondent Allied Interstate LLC, FKA Allied Interstate, Inc., is represented by: Nana Japaridze, Esq. Casey Devin Laffey, Esq. REED SMITH LLP 599 Lexington Avenue New York, NY 10022 Telephone: (212) 549-0282 E-mail: njaparidze@reedsmith.com claffey@reedsmith.com ALLSCRIPTS: Seeks Dismissal of Ransomware Attack Class Action ------------------------------------------------------------- Fred Donovan, writing for HealthIT Security, reports that EHR vendor Allscripts wants a district court judge in Illinois to dismiss a class-action lawsuit filed by Florida-based Surfside Non-Surgical Orthopedics over the SamSam ransomware attack that encrypted patient data and took Allscripts' servers offline in January. In its court filing obtained by HealthITSecurity.com, Allscripts argued that Surfside sued Allscripts Healthcare Solutions, Inc., the nonoperating holding company of Allscripts Healthcare, LLC, the EHR vendor that was hit by the ransomware attack, to avoid the arbitration clause in the contract Surfside signed with the vendor. "Even if Plaintiff had sued the right entity (though it did not), its claims would still fail for numerous reasons," Allscripts argued in its court filing. "Plaintiff asserts a breach-of-contract claim against an entity with which it has no contract (although it is now saying it is going to dismiss that claim after months of prodding). But no matter: because there is a valid contract governing the parties' relationship, Plaintiff's tort claims are foreclosed by the economic loss doctrine. Its claim for unjust enrichment is precluded by the existence of an express contract with LLC." Allscripts also argued that it was not negligent because the ransomware attack was a new variant of SamSam malware, which it could not have foreseen. On January 18, 2018, Allscripts Healthcare suffered a SamSam ransomware attack. According to a description of the attack by HHS, the ransomware attack prevented around 1,500 customers from accessing Allscripts' cloud EHR applications. Allscripts' InfoButton, regulatory reporting, clinical decision support, direct messaging, Payerpath, and the electronic prescription of controlled substances service were all taken down because of the attack. "The affected tools are part of a patient engagement platform and are used to support and connect 45,000 physician practices, 180,000 physicians, 19,000 post-acute agencies, 2,500 hospitals, 100,000 electronic prescribing physicians, 40,000 in-home clinicians, and 7.2 million patients," the HHS report stated. "Disruptions to these services are impacting secure patient communication with providers, electronic medical records access, and even bill payment via web portals," it added. Later in January, Surfside filed a class-action lawsuit against Allscripts, arguing that it suffered economic damage and other harm from the interruption in Allscripts services. "This attack hurt both patients and their healthcare providers using the Allscripts systems in that providers were unable to e-prescribe drugs, and patients were unable to obtain drugs e-prescribed for them by those providers," the lawsuit stated. "As of the date of the filing of this Complaint, Plaintiff and the Class continue to experience significant business interruption and disruption as a direct and proximate result of their inability to: access and transact with Allscripts' products and services; submit electronic prescriptions; and to access any patient records or any of the above modules," the lawsuit read. Allscripts' "wanton, willful, and reckless disregard caused a complete and total interruption of service, and further caused Plaintiff and the Class monetary and other damages." Surfside charged that Allscripts failed to take "adequate and reasonable measures" to secure its data systems. "Allscripts breached its duties by failing to implement, monitor, and audit the security of its data and systems, resulting in a ransomware attack that significantly impeded and/or prevented its clients' ability to conduct business," the class-action lawsuit stated, adding that failure to implement the necessary safeguards was also a breach of contract. "Allscripts agreed to provide its specialized services in a professional and workmanlike manner," said the lawsuit. "Implicit in performing these contractual duties is an obligation to reasonably safeguard its systems and data from cyberattack, including ransomware attacks, which can cause an interruption in the flow of an enterprise's routine and everyday provision of services to its clients." Surfside did not site a specific amount in damages being sought. However, it said that on behalf of all class members, it was asking "for an award of actual damages and compensatory damages, in an amount to be determined." [GN] AMERICAN BENEFIT: Racanati Sues Over Illegal Telemarketing Calls ---------------------------------------------------------------- SERGIO RACANATI, on behalf of himself and all others similarly situated v. AMERICAN BENEFIT SOLUTIONS LLC, Case No. 2:18-cv-12086 (D.N.J., July 26, 2018), arises out of the Defendant's alleged practice of placing autodialed telemarketing calls to individuals in the absence of prior express written consent, and in the absence of any "do not call" policy or training, in violation of two separate provisions of the Telephone Consumer Protection Act. American Benefit Solutions LLC is a Maryland corporation with its principal place of business located in Woodbine, Maryland. The Company sells health insurance.[BN] The Plaintiff is represented by: Jeremy M. Glapion, Esq. THE GLAPION LAW FIRM, LLC 1704 Maxwell Drive Wall, NJ 07719 Telephone: (732) 455-9737 Facsimile: (732) 709-5150 E-mail: jmg@glapionlaw.com AMERICAN HONDA: Preston Appeals C.D. Cal. Ruling to 9th Circuit --------------------------------------------------------------- Plaintiffs Michael Preston and Penelope Turgeon filed an appeal from a court ruling in their lawsuit styled Michael Preston, et al. v. American Honda Motor Company, Case No. 2:18-cv-00038-R-JC, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the Plaintiffs moved for certification of a class of: "all persons in the State of Illinois who, (a) between May 2014 and May 2017, (b) purchased or leased a new Honda vehicle at a Honda authorized dealership in Illinois and not for purposes of resale, (c) which Honda vehicle is equipped with a P.S. Gear Box (EPS), (d) which Honda vehicle experienced a power steering malfunction attributed to rodent damage to one of the parts contained within the P.S. Gear Box (EPS) during the applicable new vehicle warranty period, and (e) Honda denied warranty coverage for the service, repairs, and/or replacement parts needed to fix the power steering malfunction." The appellate case is captioned as Michael Preston, et al. v. American Honda Motor Company, Case No. 18-56023, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellants Michael Preston and Penelope Turgeon's opening brief is due on September 24, 2018; -- Appellee American Honda Motor Company, Inc.'s answering brief is due on October 24, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants MICHAEL PRESTON and PENELOPE TURGEON, individually and on behalf of all others similarly situated, are represented by: Stacy Bardo, Esq. BARDO LAW, P.C. 22 West Washington Street, Suite 1500 Chicago, IL 60602 Telephone: (312) 219-6980 Facsimile: (312) 219-6981 E-mail: stacy@bardolawpc.com - and - Larry P. Smith, Esq. SMITHMARCO, P.C. 55 W. Monroe Street, Suite 1200 Chicago, IL 60603 Telephone: (312) 324-3532 Facsimile: (888) 418-1277 E-mail: lsmith@smithmarco.com - and - Stephanie Tatar, Esq. TATAR LAW FIRM, APC 3500 West Olive Avenue, Suite 300 Burbank, CA 91505 Telephone: (323) 744-1146 Facsimile: (888) 778-5695 E-mail: stephanie@thetatarlawfirm.com Defendant-Appellee AMERICAN HONDA MOTOR COMPANY, INC., is represented by: Mark D. Campbell, Esq. Michael Lawrence Mallow, Esq. SIDLEY AUSTIN LLP 555 West 5th Street Los Angeles, CA 90013 Telephone: (713) 495-4500 E-mail: mcampbell@sidley.com mmallow@sidley.com - and - Darlene Mi-Hyung Cho, Esq. SIDLEY AUSTIN LLP 1999 Avenue of the Stars, 17th Floor Los Angeles, CA 90067 Telephone: (310) 595-9500 E-mail: dcho@sidley.com AMN HEALTHCARE: Court Certifies Class of Traveling Nurses --------------------------------------------------------- In the lawsuit styled ROBERT SHAW, et al., the Plaintiffs, v. AMN HEALTHCARE, INC., et al., the Defendants, Case No. 3:16-cv-02816-JCS (N.D. Cal.), the Hon. Judge Joseph Spero entered an order certifying a class of: "all traveling nurses who worked in the job position(s) of Registered Nurse, Licensed Practical Nurse, or another nursing position(s), for Defendant AMN and/or Defendant Kaiser, in one or more Kaiser facilities in California between September 11, 2013 and the date of class notice". The Court appoints Shaw, Kucharski and Corona Teitelbaum as class representatives and appoints the law firm of Schneider Wallace Cottrell Konecky Wotkyns LLP to serve as class counsel. The Court vacates the dispositive motions and trial dates previously set in this case, as well as all related dates. The parties are instructed to meet and confer and submit a proposed schedule for the remainder of the case no later than August 10, 2018. ARIZONA: Corizon Appeals Order in Parsons Suit to 9th Cir. ---------------------------------------------------------- Movant Corizon Health, Inc., filed an appeal from a court ruling in the lawsuit styled Victor Parsons, et al. v. Charles Ryan, et al., Case No. 2:12-cv-00601-ROS, in the U.S. District Court for the District of Arizona, Phoenix. The appellate case is captioned as Victor Parsons, et al. v. Charles Ryan, et al., Case No. 18-16398, in the United States Court of Appeals for the Ninth Circuit. As reported in the Class Action Reporter on July 31, 2018, Defendants Richard Pratt and Charles L. Ryan filed an appeal from a court ruling in the lawsuit. That appellate case is captioned as Victor Parsons, et al. v. Charles Ryan, et al., Case No. 18-16358. The District Court approved in 2015 a settlement agreement between the Arizona Department of Corrections and inmates in its 10 state-run prisons, which should improve medical care for prisoners. Under the settlement, the Arizona Department of Corrections ask the Legislature for increased funding for health care staffing and institute plans to treat prisoners with chronic diseases. The agency, which admitted no wrongdoing, will also give annual flu shots and provide colon cancer screenings and mammograms to inmates of a certain age. Corrections officers are to refrain from using pepper spray on prisoners unless there is an "imminent threat" present. The settlement comes after a 2012 class action in which inmates claimed they were subjected to "unnecessary pain and suffering, preventable injury, amputation, disfigurement and death" in Arizona prisons. They also claimed prison staff were ill-prepared and -trained to handle medical emergencies. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by August 23, 2018; -- Transcript is due on September 21, 2018; -- Appellant Corizon Health, Inc.'s opening brief is due on October 31, 2018; -- Appellees Arizona Center For Disability Law, Maryanne Chisholm, Robert Carrasco Gamez Jr., Joseph Hefner, Shawn Jensen, Desiree Licci, Victor Antonio Parsons, Joshua Polson, Richard Pratt, Sonia Rodriguez, Charles L. Ryan, Warden, Jeremy Smith, Stephen Swartz, Jackie Thomas, Christina Verduzco and Charlotte Wells' answering brief is due on November 30, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Movant-Appellant CORIZON HEALTH, INC., Prospective Defendant Intervenor, is represented by: Courtney Beller, Esq. Timothy Berg, Esq. Todd Stephen Kartchner, Esq. FENNEMORE CRAIG P.C. 2394 East Camelback Road Phoenix, AZ 85016 Telephone: (602) 916-5402 E-mail: cbeller@fclaw.com tberg@fclaw.com tkartchn@fclaw.com Plaintiffs-Appellees VICTOR ANTONIO PARSONS, et al., are represented by: Daniel Clayton Barr, Esq. Amelia M. Gerlicher, Esq. John H. Gray, Attorney, Esq. PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, AZ 85012-2788 Telephone: (602) 351-8085 E-mail: dbarr@perkinscoie.com agerlicher@perkinscoie.com jhgray@perkinscoie.com - and - Kathleen Erin Brody, Esq. ACLU OF ARIZONA 3707 N. 7th Street Phoenix, AZ 85014 Telephone: (602) 773-6011 E-mail: kbrody@acluaz.org - and - Kirstin Eidenbach, Esq. EIDENBACH LAW PLLC P.O. Box 91398 Tucson, AZ 85752 Telephone: (520) 477-1475 - and - David Cyrus Fathi, Esq. ACLU-AMERICAN CIVIL LIBERTIES UNION 915 15th St., NW Washington, DC 20005 Telephone: (202) 393-4930 E-mail: dfathi@aclu.org - and - Amy Fettig, Esq. NATIONAL PRISON PROJECT-ACLU 915 15th Street, NW Washington, DC 20005 Telephone: (202) 548-6608 E-mail: afettig@npp-aclu.org - and - Alison Hardy, Esq. Corene Thaedra Kendrick, Esq. Rita Katherine Lomio, Esq. Sara Norman, Esq. Donald Specter, Esq. PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710-1916 Telephone: (510) 280-2621 E-mail: ahardy@prisonlaw.com ckendrick@prisonlaw.com rlomio@prisonlaw.com snorman@prisonlaw.com dspecter@prisonlaw.com - and - Victoria A. Lopez, Esq. 3707 N. 7th Street Phoenix, AZ 85014 Telephone: (602) 773-6011 - and - Caroline Nason Mitchell, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 875-5712 E-mail: cnmitchell@jonesday.com - and - John Laurens Wilkes, Esq. JONES DAY 717 Texas Street Houston, TX 77002 Telephone: (832) 239-3796 E-mail: jlwilkes@jonesday.com Plaintiff-Appellee ARIZONA CENTER FOR DISABILITY LAW is represented by: Maya Abela, Esq. Rose Ann Daly-Rooney, Esq. Jose de Jesus Valdez Rico, Esq. ARIZONA CENTER FOR DISABILITY LAW 177 North Church Avenue, Suite 800 Tucson, AZ 85701 Telephone: (520) 327-9547 E-mail: mabela@azdisabilitylaw.org rdalyrooney@azdisabilitylaw.org jrico@azdisabilitylaw.org Defendants-Appellees CHARLES L. RYAN, Warden, Director, Arizona Department of Corrections, and RICHARD PRATT, Interim Division Director, Division of Health Services, Arizona Department of Corrections, are represented by: Nicholas D. Acedo, Esq. STRUCK LOVE BOJANOWSKI & ACEDO PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 Telephone: (480) 420-1600 E-mail: nacedo@swlfirm.com - and - Michael E. Gottfried, Esq. ARIZONA ATTORNEY GENERAL'S OFFICE 2005 N. Central Avenue Phoenix, AZ 85004 Telephone: (602) 542-7693 E-mail: Michael.Gottfried@azag.gov - and - Rachel Love, Esq. Daniel Patrick Struck, Esq. STRUCK, WIENEKE & LOVE, PLC 3100 W. Ray Road, Suite 300 Chandler, AZ 85226 Telephone: (480) 420-1600 E-mail: rlove@swlfirm.com dstruck@swlfirm.com ASIANA AIRLINES: Shareholders Mull Class Action ----------------------------------------------- Ch-Aviation reports that some shareholders of Asiana Airlines (OZ, Seoul Incheon) are mulling a class action lawsuit against the airline's board, including Chairman Park Sam-koo, for actions allegedly hurting the brand image, The Korea Herald has reported. The report comes in the wake of an in-flight catering scandal, wherein the carrier was unable to serve any meals to passengers for a few days in early July. Asiana had previously inked a contract with HNA Group owned Gate Gourmet Korea (GGK) to supply in-flight catering as of July 1, 2018, after the contract with the previous supplier, Lufthansa Group subsidiary LSG Sky Chef lapsed. In March, GGK suffered a fire in its facilities which forced the company to subcontract the Asiana deal to Sharp DO&CO. DO&CO, a much smaller company in Korea, has an average daily output of 3,000 meals in comparison to Asiana's requirement of 25,000 per day. As such, it was initially unable to meet the terms of the contract. Speaking during the crisis, Park had to deny that he and other executives were served hot meals onboard despite the lack of such a service for other passengers. Asiana's passengers were given USD30-50 vouchers and were advised to bring own food onboard during the crisis. The situation normalised after a few days. DO&CO's temporary contract with Asiana runs through the end of September. The local CEO of DO&CO was found dead after an apparent suicide on July 2, shortly after he had told a friend that he felt guilty, ashamed, and extremely overwhelmed by the situation. Asiana's largest domestic rival, Korean Air (KE, Seoul Incheon), has been battling its own scandals over the past few years. Among the more infamous was the "nut rage" incident in which one of the chairman's daughters forced a departing Asiana flight to return to the terminal and demanded the removal of a cabin crew member after she was served macadamia nuts in a package rather than on a plate. [GN] ATMOSPHERE DISCOUNT: Melara Sues Over Unpaid Overtime Premium ------------------------------------------------------------- Carol Merlos Melara and Christopher Castillo, individually and on behalf of others similarly situated, Plaintiffs, v. Atmosphere Discount Shoes Corp., Bronx Foot Fashion Inc., Graham Shoe Corp., It's Your Option, Corp., Jeffrey D. Imports Inc., Ladies Shoes Corp., Times Square Shoes Corp., $5 Shoe Warehouse Inc., Five Dollar Shoe Factory Corp., Abraham Hakim and Jeffrey Deutsch, Defendants, Case No. 18-cv-03109 (E.D. N.Y., May 25, 2018), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants operate under the trade name "Atmosphere Discount Shoes" where Plaintiffs were employed as a general assistant, retail assistant or assistant manager. Plaintiffs worked for Defendants in excess of 40 hours per week, without appropriate overtime compensation for the hours that they worked. Defendants failed to maintain accurate recordkeeping of the hours worked and repeatedly failed to pay Plaintiffs wages on a timely basis, asserts the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com AVENTURA, FL: Judge Dismisses Red Light Camera Class Action ----------------------------------------------------------- CBSMiami reports that following the lead of the Florida Supreme Court, a federal judge has dismissed a class-action lawsuit that challenged the way red-light camera programs have been operated throughout the state. U.S. District Judge Federico Moreno issued a two-page order dismissing the case, which was filed in 2014. In the decision, Moreno cited a May 3 ruling by the Florida Supreme Court that rejected a motorist's challenge to the red-light camera program in the city of Aventura. The federal and state cases focused heavily on questions about whether local governments had violated state law by giving too much authority to private red-light camera companies in operating the programs. But the Florida Supreme Court ruled that the "Legislature has permitted a local government's agent to review information from red light cameras for any purpose short of making the probable cause determination as to whether a traffic infraction was committed. We thus hold that (a section of state law) authorizes a local government to contract with a private third-party vendor to review and sort information from red light cameras, in accordance with written guidelines provided by the local government, before sending that information to a trained traffic enforcement officer, who determines whether probable cause exists and a citation should be issued." Red-light cameras have long been a controversial issue in Florida, with critics arguing that they have become a way for local governments and red-light camera companies to make money. Supporters, however, contend the cameras improve traffic safety and dissuade motorists from running red lights. [GN] BELLINGHAM, WA: Robert Vandenbosch Suit Moved to W.D. Washington ---------------------------------------------------------------- The class action lawsuit titled Robert Vandenbosch, and all persons similarly situated, the Plaintiff, v. City of Bellingham, a subdivision of the State of Washington; and AllianceOne Receivables Management Inc., a Washington corporation, the Defendants, Case No. 18-00002-01010-37, was removed from the Whatcom County Superior Court, to the U.S. District Court for the Western District of Washington (Seattle) on July 6, 2018. The District Court Clerk assigned Case No. 2:18-cv-00999-RAJ to the proceeding. The case is assigned to the Hon. Judge Richard A. Jones. Bellingham is a coastal city in Washington State, near the Canadian border. It is a port for ferries to Alaska.[BN] Attorneys for Robert Vandenbosch: William J. Johnston, Esq. 401 Central Ave Bellingham, WA 98225 Telephone: (360) 676 1931 Facsimile: (360) 676 1931 E-mail: wjtj47@gmail.com Attorneys for City of Bellingham: Shane P Brady, Esq. BELLINGHAM CITY ATTORNEY'S OFFICE 210 Lottie St Bellingham, WA 98225 Telephone: (360) 778 8270 Facsimile: (360) 778 8271 E-mail: sbrady@cob.org Attorneys for AllianceOne Receivables Management Inc.: Marc Rosenberg, Esq. LEE SMART PS INC 701 Pike St. Ste 1800 One Convention Pl Seattle, WA 98101-3929 Telephone: (206) 624 7990 E-mail: mr@leesmart.com BHI ENERGY: Fails to Pay OT Wages Under FLSA/CMWA, Klapatch Says ---------------------------------------------------------------- DENNIS KLAPATCH and RICHARD LEE, Individually and for Others Similarly Situated v. BHI ENERGY I POWER SERVICES, LLC, Case No. 1:18-cv-11581 (D. Mass., July 26, 2018), alleges that the Defendant failed to pay the Plaintiffs and other workers overtime wages as required by the Fair Labor Standards Act and the Connecticut Minimum Wage Act. BHI is headquartered in Weymouth, Massachusetts. BHI provides specialty services and staffing solutions to the power generation, energy, and government markets. BHI's workforce includes more than 8,500 experienced project management and technical, professional, and craft labor operating at over 130 global project locations.[BN] The Plaintiffs are represented by: Phillip J. Gordon, Esq. Kristen M. Hurley, Esq. GORDON LAW GROUP, LLP 585 Boylston St. Boston, MA 02116 Telephone: (617) 536-1800 Facsimile: (617) 536-1802 E-mail: pgordon@gordonllp.com khurley@gordonllp.com - and - Michael A. Josephson, Esq. Richard M. Schreiber, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com rschreiber@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com BIG HEART: FDA Pentobarbital Probe Ongoing Amid Class Action ------------------------------------------------------------ Phyllis Entis, writing for Food Safety News, reports that an investigation into pentobarbital adulteration in canned, wet pet food manufactured by Big Heart Pet Brands Inc. remains "open and ongoing" according to a spokesperson for the U.S. Food and Drug Administration. Big Heart is a wholly owned subsidiary of The J.M. Smucker Company Inc. On Feb. 16, FDA alerted pet owners to the possible presence of pentobarbital in certain canned dog foods, including Gravy Train, Kibbles 'N Bits, Ol' Roy and Skippy products, after a media outlet reported having found the chemical in several samples of Gravy Train canned, wet dog food. Upon learning of the findings, Smucker initiated a product withdrawal pending the outcome of an internal investigation. The withdrawal was upgraded to a voluntary recall after the company verified the presence of pentobarbital in its finished products and in beef tallow, an ingredient common to all of the affected products. Pentobarbital is a barbiturate used to euthanize animals. FDA considers a pet food to be adulterated if it contains even a trace amount of the drug. On Feb. 23, FDA initiated an inspection of the Big Heart manufacturing facility in Bloomsburg, PA. The inspection was conducted jointly with the Pennsylvania Department of Agriculture (PDA) and was completed on March 12th. According to information contained in the Establishment Inspection Report (EIR), obtained by Food Safety News in response to a Freedom of Information Act request, Big Heart produces dog food under contract for third-parties in addition to manufacturing the Gravy Train, Ol' Roy, Kibbles 'N Bits, and Skippy dog food brands as well as several brands of cat food. A spokesperson for FDA, citing the ongoing status of the investigation, declined to comment on whether any of the private-labeled products were evaluated for possible pentobarbital contamination. Nor would the spokesperson comment on whether FDA conducted its own independent analysis of any ingredients or finished products as part of its investigation. Big Heart did not test any other ingredients for pentobarbital once it found the chemical in the beef tallow ingredient. All of the beef tallow used in the adulterated pet food was obtained from a single supplier. Big Heart notified its supplier of the test results and followed up with an inspection of the supplier's facility. Concluding that the supplier did not have adequate controls over its supply chain, Big Heart management switched to a different tallow supplier. In addition, the company reconfigured some product formulas to eliminate beef tallow. A class action lawsuit filed in Northern California on May 1 against Big Heart Pet Brands Inc. alleges that the tallow was supplied by MOPAC, an eastern Pennsylvania rendering facility belonging to JBS USA Holdings Inc. JBS operates two facilities in eastern Pennsylvania, one in Souderton and the other in Elizabethville. FDA declined to comment on whether either or both of these facilities were included in the investigation. According to information contained in Establishment Inspection Reports obtained in response to a Freedom of Information Act request, the Elizabethville location manufactures poultry feed. JBS Souderton is a rendering operation. It receives bovine, porcine and avian trimmings, bone, hides, offal, and blood from its nearby slaughter/meat packing facility and from other slaughter facilities, and also receives used cooking oil and yellow grease from restaurants. Souderton produces a number of animal feed ingredients, including tallow, blood-meal, feather-meal, bone-meal and animal protein. During the February-March inspection of Big Heart, FDA and PDA investigators were denied access to several documents, according to the EIR. On instruction from the Smucker corporate headquarters, Big Heart management refused to furnish PDA and FDA investigators with qualitative or quantitative product formulae and refused to permit them to review either the company's consumer complaint files or its Standard Operating Procedures for retaining samples. The Plant Director, Dave Brookover, also declined to sign, or even to read, an FDA Affidavit (FDA Form 463a) setting out the information supplied by him during the course of the inspection. On instructions from the corporate office, Brookover left the room when the FDA investigator recited the contents of the Affidavit. Some companies have specific policies on what they will or will not share with FDA, a spokesperson for the agency explained, adding that the nature and number of refusals were not out of the ordinary and did not obstruct the investigation. [GN] BOARDWALK PIPELINE: Mishal Seeks Damages for Breach of Contract --------------------------------------------------------------- Tsemach Mishal and Paul Berger, on behalf of themselves and similarly situated Boardwalk Pipeline Partners, LP Unitholders, Plaintiffs, v. Boardwalk Pipeline Partners, LP, Boardwalk Pipelines Holding Corp., Boardwalk GP, LP and Boardwalk GP, LLC, Defendants, Case No. 2018-0372, (Del. Ch., May 24, 2018), seeks all available damages for breach of contract, breach of the implied covenant of good faith and fair dealing and/or tortious interference, costs, expenses and disbursements of this action, including attorneys' and experts' fees and such other and further relief. Boardwalk's General Partner and its affiliates attempted to depress the trading price of the Partnership's units and acquire all minority units at an artificially deflated price in violation of the Third Amended and Restated Agreement of Limited Partnership, dated June 17, 2008. Tsachy Mishal is a current holder of 529,938 Boardwalk common units with a market value of approximately $5,840,000, as of May 22, 2018. Paul Berger is a current holder of 4,000 Boardwalk common units with a market value of $44,080, as of May 22, 2018. Boardwalk, through its operating subsidiaries, owns and operates integrated natural gas and natural gas liquids and other hydrocarbons pipeline and storage systems. [BN] Plaintiff is represented by: Joel Friedlander, Esq. Jeffrey Gorris, Esq. Christopher M. Foulds, Esq. Christopher P. Quinn, Esq. FRIEDLANDER & GORRIS P.A. 1201 N. Market Street, Suite 2200 Wilmington, DE 19801 Tel: (302) 573-3500 - and - Laurence D. Paskowitz, Esq. PASKOWITZ LAW FIRM, P.C. 208 East 51st Street, Suite 380 New York, NY 10022 Tel: (212) 685-0969 CALIBER HOME: Court Dismisses S. Razuki's Security Breach Suit -------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendant's Motion to Dismiss the case captioned SALAM RAZUKI, individually and on behalf of others similarly situated, Plaintiff, v. CALIBER HOME LOANS, INC., et al., Defendants, Case No. 17cv1718-LAB (WVG) (S.D. Cal.). Caliber removed under the Class Action Fairness Act, and now asks the Court to dismiss for lack of standing and failure to state a claim. Salam Razuki sued Caliber Home Loans after hackers breached Caliber's security and stole sensitive customer information like social security numbers. Razuki alleges a cybercriminal attempted to open credit cards in his name after the hack, and he's spent money and suffered emotional distress as a result. He blames Caliber for deploying second-rate security and waiting too long to notify customers like him. Caliber argues Razuki's increased risk of identity theft isn't an injury in fact. But the Ninth Circuit recently held that data-breach-victims pled an injury in fact based on a substantial risk that hackers will commit identity fraud. Caliber's reply brief argued Razuki failed to allege the company still possessed his data during the breach, or that it was actually stolen. But Caliber admits it sent out notice to those individuals whose information could potentially be affected. Razuki alleges he received such a letter. That's sufficient. Caliber's opening brief also seems to acknowledge the point. And the argument is waived anyway—new counsel raised it for the first time in the reply. Caliber's motion to dismiss the complaint for lack of standing is denied. What's more, his allegations are too vague for the Court or Caliber to evaluate. He says he was informed that an unknown party attempted to make numerous fraudulent transactions in his name; he spent time, money, energy, and effort managing the fallout; and he took remedial measures. Who informed him and what fraudulent transactions were made? How did he manage the fallout? What remedial measures did he spend money on? Also, he sums up his damages in paragraph 22 by alleging, "Plaintiff and/or members of the Class" suffered harm. That's not good enough. This conjunctive-disjunctive formulation suggests class members may have suffered injuries Razuki didn't. As the class representative, he needs to allege his damages—not possible damages that happened to other, absent class members. Under Rule 8's short and plain statement standard, Razuki need not allege his allegations of harm in great specificity. And the Court must accept all allegations as true and draw inferences in Razuki's favor. But he needs to allege more than the cagey and indefinite allegations in his complaint. This claim is dismissed with leave to amend. Razuki argues Caliber violated his constitutional right to privacy by failing to protect his data. What matters here is whether Caliber committed a serious invasion of privacy; that is, an egregious breach of the social norms underlying the privacy right. The privacy damage here is serious. But Razuki's allegations don't suggest the type of intentional, egregious privacy invasion contemplated in Hill. Razuki didn't distinguish these cases, nor did he point to any authority besides Cope v. Davidson, a case interpreting willful misconduct within the meaning of section 403 of the Vehicle Code. 30 Cal. 2d at 195. This claim is dismissed with leave to amend. The Customer Records Act requires businesses to protect customers' personal information by maintaining reasonable security procedures and if a data breach occurs, to notify affected customer's without unreasonable delay. If Razuki amends, he needs to provide more facts to support his various theories for a CRA violation. The Court acknowledges Razuki probably can't make specific and definitive allegations about how Caliber's security was insufficient before discovery. But he needs to hum a few more bars about some of these allegations, like why mitigation was "inadequate" or disposal of customer information was improper. The Court must accept his factual allegations as true, but he needs more than threadbare recitals of the elements of a cause of action, supported by mere conclusory statements. This claim is dismissed with leave to amend. The California Supreme Court has held that ancillary services that insurers provide to actual and prospective purchasers of life insurance doesn't count as a service under the Act because the activity centers on a contractual obligation to pay money. If selling life insurance isn't a service, then neither is selling home loans both center on contractual obligations to pay money. Razuki says the Court should read the statute more broadly. But that reading would defeat the apparent legislative intent of the Act, since ancillary services are provided by the sellers of virtually all intangible goods, like those who provide loans. Other courts agree. This claim is dismissed without leave to amend. Razuki's complaint doesn't explain which theory he's advancing. His opposition suggests he's relying on the CLRA and CRA violations above as predicates for an unlawful theory. Since those claims are out, this one is too. Plus, he hasn't sufficiently alleged lost money or property. The motion to dismiss this claim is granted with leave to amend. The Court, accordingly, dismisses all of Razuki's claims with leave to amend, except his CLRA claim amendment would be futile since home loans aren't covered under the statute. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/y7hwq9h7 from Leagle.com. Salam Razuki, individually and on behalf of others similarly situated, Plaintiff, represented by Alex M. Tomasevic -- atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP, Craig McKenzie Nicholas -- cnicholas@nicholaslaw.org -- Nicholas and Tomasevic & David Gerald Greco -- dgreco@nicholaslaw.org -- Nicholas & Tomasevic, LLP. Caliber Home Loans, Inc., a Delaware corporation, Defendant, represented by Benjamin Kleine -- bkleine@cooley.com -- Cooley Godward Kronish LLP, Laura Marie Elliott -- bkleine@cooley.com -- Cooley LLP & Maurice Werter Trevor -- rtrevor@cooley.com -- Cooley LLP. CALIFORNIA CEMETERY: Ortiz Seeks Overtime Pay under Labor Code -------------------------------------------------------------- JOHN ORTIZ, on behalf of himself and all other aggrieved employees, the Plaintiffs, v. CALIFORNIA CEMETERY AND FUNERAL SERVICES LLC, and DOES 1-10, inclusive, the Defendants, Case No. CGC-18-567890 (Cal. Super. Ct., July 6, 2018), alleges an ongoing wrongful scheme by Defendants denying their employees the full benefits of California's Labor Code. According to the complaint, the Defendant has violated numerous provisions of the California Labor Code, including failure to compensate Plaintiff and other aggrieved employees for all overtime hours worked despite the fact that Plaintiff and other aggrieved employees regularly work overtime, failure to pay a minimum wage for all hours worked, failure to provide meal and rest periods, failure to pay all earned wages at the conclusion of employment, failure to adequately reimburse Plaintiff and all other aggrieved employees for business expenditures incurred and required by their jobs, failure to furnish timely statements accurately showing, among other things, the total hours Plaintiff and other aggrieved employees worked during each pay period. California Cemetery and Funeral Services, LLC operates as a subsidiary of ECI Capital, LLC.[BN] Attorneys for Plaintiff and Aggrieved Employees: Robert Ottinger, Esq. Ashley Pellouchoud, Esq. THE OTTINGER FIRM, P.C. 535 Mission Street San Francisco, CA 94133 Telephone: (415) 262 0096 Facsimile: (212) 571 0505 E-mail: robert@ottingerlaw.com CAMBRIDGE, MA: Bouley et al. Balk at Liquor Regulations ------------------------------------------------------- Harriet Bonney Bouley, Jeffrey R. Weingast, Gwyneth Trost, McCabe's Porter, LLC, Lanes & Games, Inc., on behalf of themselves and all others similarly situated, the Plaintiffs, v. City of Cambridge, Cambridge License Commission, the following individuals in their official capacities as employees of the city of Cambridge and in their individual capacities: Elizabeth Lint, Andrea Boyer, Henderson Headley, Christopher O'Neil, Nicole Murati Ferrer, Andrea Spears Jackson, Robert Haas, Gerald Reardon, Richard Rossi, Lisa Peterson, Louis DePasquale, Mary Calnan, James McDavitt, Michael P. Gardner, Benjamin Barnes, Richard Scali, the Defendants, Case No. 18CV2096 (Mass. Super. Ct., July 6, 2018), alleges that Cambridge businesses, whose owners sacrificed long hours and great devotion to the Cambridge community, were required by the Cambridge License Commission to make unnecessary and costly business decisions to operate their businesses under illegal and invalid local Regulations, and among other harms, to spend millions of dollars to purchase liquor licenses even though there was no quota in Cambridge and they should have been able to apply for a new one. According to the complaint, the Plaintiffs are dedicated businesses and business owners, who have worked hard for years to help create a thriving restaurant industry for the residents, workers, and visitors of Cambridge. They have all operated with liquor licenses that were issued to them by the City of Cambridge License Commission in order to serve the "public need" and to "protect the common good", as the state statute that governs liquor licenses provides. City of Cambridge is a body politic in the Commonwealth of Massachusetts with an address of City Hall, 795 Massachusetts Avenue in Cambridge, Massachusetts.[BN] CANADA: Ex-Manitoba Day School Students File Abuse Class Action --------------------------------------------------------------- Katie May, writing for Winnipeg Free Press, reports that they were left out of national settlements for residential school survivors, but former students at Manitoba day schools are asking the court to allow a class-action lawsuit seeking compensation for alleged abuse they suffered at schools on- and off-reserve. In a claim filed in Manitoba's Court of Queen's Bench, Winnipeg lawyers are asking the court to certify a class-action lawsuit on behalf of all students who attended day schools in the province. As part of the claim, two Manitobans who attended different day schools in the 1960s and '70s have detailed their alleged physical and sexual abuse. They're seeking damages from the federal and provincial governments and the Catholic Church, which they allege failed to protect Indigenous children who were forced to attend the schools. "As a result, those children suffered in many ways, including mentally, physically, sexually, emotionally, verbally, spiritually, and culturally. The day schools were destructive to the lives of the children who were made to attend," the claim states. Lawyer Israel Ludwig, who filed the claim along with lawyer William Percy, said he was approached by former day school students who questioned why they weren't included in compensation and settlement agreements reached federally in 2006, as part of the Indian Residential Schools Settlement Agreement. Mr. Ludwig said he initially thought about filing individual claims for each day school where students alleged abuse -- he said he knows of at least 10 such schools in Manitoba -- but decided instead to push for a class action. "Now we're noticing that the courts have become more generous in allowing the basis of one class action to cover a number of schools in a number of areas and on behalf of a large number of people who come from different cultural groups," he said. The archdiocese of Winnipeg, the archdiocese of St. Boniface, and the Missionary Oblate Sisters of St. Boniface are named in the statement of claim, along with the federal and provincial governments. No statements of defence have been filed. In the claim, Stanley Boucher, a 66-year-old Metis man from Duck Bay, and Corinna Kay Mintuck, a 57-year-old First Nations woman, both say they were abused while attending day schools in the province -- schools run either by the federal or provincial government that they were expected to attend during the day. Ms. Mintuck claims she was forced to perform oral sex on the principal of her school at Sagkeeng First Nation, starting when she was eight years old. She had her finger broken when a nun hit her with a ruler, and broke her right wrist when another student pushed her off a slide on school grounds the same year, according to the statement of claim. At a school in Duck Bay, which he started attending in 1958, Mr. Boucher claims a teacher threw him into a wood pile, causing a severe head injury for which he didn't receive immediate medical treatment. When he was in Grade 7, Boucher claims a teacher forced him to pull down his pants and walk around in each classroom with his genitals exposed to all of the teachers and students. Both Mr. Boucher and Ms. Mintuck have suffered depression, suicidal thoughts and addictions, along with other harms, according to the statement of claim. Ludwig said Mr. Boucher and Ms. Mintuck have chosen to come forward to represent other former day school students. "They realized when we spoke to them about them being a representative client, that it meant that their case would be in the claim and that the claim may cause some publicity. They have reconciled themselves to that. They feel that this is something that's been kept quiet too long, and that now's the time to go to court to do something about it," Mr. Ludwig said. The lawyers are hoping other former students will come forward, particularly those who weren't included in residential-school settlement agreements, whether they are Metis, First Nations or don't have treaty status. As of yet, there are no specifics about monetary compensation or the number of participants who could join the class action, if it's certified by the court. "We really haven't got a handle as to how big that group's going to be. We're hoping the publicity that our claim has started will bring them forward," Mr. Ludwig said. [GN] CAPITAL MANAGEMENT: Sued by Kupczyk for Illegal Debt Collection --------------------------------------------------------------- ESTER KUPCZYK on behalf of herself and all other similarly situated consumers v. CAPITAL MANAGEMENT SERVICES, L.P., Case No. 1:18-cv-03909-ARR-SMG (E.D.N.Y., July 6, 2018), alleges that the Defendant's collection practices violate the Fair Debt Collection Practices Act. Capital Management, with its principal place of business located within Buffalo, New York, is regularly engaged, for profit, in the collection of allegedly owed consumer debts.[BN] The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com CENTRAL TRANSPORT: Fails to Pay Wages & Overtime, Becerra Says -------------------------------------------------------------- JOSE BECERRA, an individual, on behalf of himself and others similarly situated, the Plaintiff, v. CENTRAL TRANSPORT, LLC; CENTRAL TRANSPORT INTERNATIONAL, INC.; and DOES 1 to 50, inclusive, the Defendants, Case No. BC712869 (Cal. Super. Ct., July 6, 2018), seeks to recover unpaid wages and/or overtime compensation under the California Labor Code. According to the complaint, the Defendants have had a consistent policy of failing to pay wages and/or overtime to Plaintiff and the Proposed Class. Plaintiff and other Proposed Class Members were not properly compensated for all hours worked. Also, Defendants do not provide paid rest periods to Plaintiff and the Proposed Class. As piece rate employees, when Plaintiff and the Proposed Class Members took their ten-minute ret periods, they were not compensated in any way. As such, they are entitled to wages for each and every rest period provided by Defendants. Central Transport International, Inc. offers transportation and logistics services in the United States, Canada, and Mexico. It offers regional, inter-regional, and long-haul less-than-truckload services. The company also provides cross-docking, consolidation, and pool distribution services, as well as customized supply chain services.[BN] Attorneys for Plaintiff and the Proposed Class: Darren M. Cohen, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990 8300 Facsimile: (818) 990 2903 E-mail: dcohen@kingsleykingsley.com COMMERCIAL RESEARCH: Williams Sued over Debt Collection Practices ----------------------------------------------------------------- KRISTEN WILLIAMS, individually and on behalf of all others similarly situated, the Plaintiff, v. COMMERCIAL RESEARCH & RECOVERY, INC. and JOHN DOES 1-25, the Defendants, Case No. 3:18-cv-00847-TJC-JRK (M.D. Fla., July 6, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to August 1, 2017, an obligation was allegedly incurred by Plaintiff. The alleged obligation arose out of a transaction involving a debt allegedly incurred by the Plaintiff with LAGO Funding Corp., in which the funding received from LAGO or a previous owner of the LAGO debt were used primarily for personal, family or household purposes. The owner of the obligation contracted with the Defendant to collect the alleged debt. Commercial Recovery Inc. provides debt collection services.[BN] The Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM, LLC 3475 Sheridan Street, Suite 310 Hollywood, FL 33021 Telephone: (754) 217 3084 Facsimile: (954) 272 7807 E-mail: Justin@zeiglawfirm.com COPSYNC: Washington Co. Considers Joining Dashboard Camera Suit --------------------------------------------------------------- Clay Falls, writing for KBTX, reports that Washington County Sheriff's deputies didn't have properly working dashboard cameras for the better part of two years. Washington County Commissioners are deciding whether to join a class action lawsuit against COPSync. The company went bankrupt in October. Sheriff Otto Hanak said they were left with equipment that didn't work right. The sheriff's office has since switched to a new dashcam vendor last year. Washington County Judge John Brieden said the county is out almost $50,000. The reason they are considering joining a class action lawsuit is to try and recoup some of the cost. Judge Brieden said the dash camera service went away when COPsync filed for bankruptcy. "They did leave us hanging. It was a situation where we saw that first of all the product was not as good as we felt. It should be and as advertised. And it was surprising because the others were and then the support was not what it should be and we were continuing to have problems," said Judge Brieden. Washington Sheriff Otto Hanak said they were glad to switch vendors for their patrol cars. He said the dashcam systems were replaced. Washington County still has two products from the former COPsync company, including a data terminal and panic button technology for courthouse employees. They said both of those products are working well. COPSync was bought out by another company, KOLOGIC. In March 2017, KBTX reported that Calvert Police were using a COPsync product. Police Chief Mike Hoyt said their product is still up and running without any issues. [GN] CSC SERVICEWORKS: Breached Laundry Service Contracts, RBB2 Says --------------------------------------------------------------- RBB2, LLC, a California limited liability company, individually and on behalf of all others similarly situated, the Plaintiff, v. CSC SERVICEWORKS, INC., a Delaware corporation, the Defendant, Case No. 1:18-cv-00915-LJO-JLT (E.D. Cal., July 6, 2018), alleges that Defendant unlawfully underpays Plaintiff and the putative Class on their laundry service contracts. According to the complaint, the Defendant CSC is one of the largest coin-operated laundry businesses in the country, largely providing services to multi-unit apartment buildings. CSC's market dominance is largely attributable to its practice of buying out its competition. Most notably, CSC has merged the operations of Coinmach, Mac-Grey, and Continental Laundry Services -- all major players in the coin-operated business -- under its current entity. After CSC acquired its competitors (and the existing customer contracts along with them) it disregarded the actual terms of those contracts and imposed a 9.75% "administrative fee" on its services, thereby systematically shortchanging building owners on contracted-for revenue shares. The Plaintiff and members of the Class never agreed to pay the so-called administrative fee and such a fee was never included in contracts with CSC (or the companies acquired by CSC).[BN] The Plaintiff is represented by: Rafey S. Balabanian, Esq. Todd Logan, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94109 Telephone: 415 212 9300 Facsimile: 415 373 9435 E-mail: rbalabanian@edelson.com tlogan@edelson.com DEBT MANAGEMENT: "Fabec" Suit Moved to Northern District of Ohio ---------------------------------------------------------------- The class action lawsuit titled Christina Fabec, on behalf of herself and all similarly-situated consumers, the Plaintiff, v. Debt Management Partners, LLC and Capital Management Holdings, the Defendant, Case No. 18-898852, was removed from the Cuyahoga County Common Pleas, to the U.S. District Court for the Northern District of Ohio (Cleveland) on July 6, 2018. The District Court Clerk assigned Case No. 1:18-cv-01537-DCN to the proceeding. The case is assigned to the Hon. Judge Donald C. Nugent.[BN] The Plaintiff is represented by: Michael L. Berler, Esq. Michael L. Fine, Esq. Ronald I. Frederick, Esq. FREDERICK & BERLER 767 East 185 Street Cleveland, OH 44119 Telephone: (216) 502 1055 Facsimile: (216) 566 9400 E-mail: mikeb@clevelandconsumerlaw.com michaelf@clevelandconsumerlaw.com ronf@clevelandconsumerlaw.com Attorneys for Debt Management Partners, LLC: Dennis M. Coyne, Esq. 1428 Hamilton Avenue Cleveland, OH 44114-1106 Telephone: (216) 781 9162 Facsimile: (216) 781 9160 E-mail: Denniscoyne@yahoo.com - and - Leslie E. Wargo, Esq. WARGO LAW Ste. 182 1501 North Marginal Road Cleveland, OH 44114 Telephone: (216) 403 3350 Facsimile: (216) 744 1816 E-mail: Leslie@Wargo-Law.com DEVILLE ASSET: Ross Sues over Debt Collection Practices ------------------------------------------------------- Monique Ross, individually and on behalf of all others similarly situated, the Plaintiff, v. DeVille Asset Management, Ltd. and John Does 1-25, Defendant(s), Case No. 1:18-cv-00455-MRB (S.D. Ohio, July 6, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to September 25, 2017, an obligation was allegedly incurred to JD Byrider CO-748. The JD Byrider obligation arose out of a transactions involving funding for an automobile, which Plaintiff used primarily for personal, family or household purposes. The alleged JD Byrider obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). JD Byrider is a "creditor" as defined by 15 U.S.C. section 1692a(4). JD Byrider or a subsequent owner of the JD Byrider debt contracted with the Defendant to collect the alleged debt. The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. DeVille Asset specializes in the acquisition of defaulted account receivable portfolios from consumer credit originators such as major banks.[BN] Attorneys for Plaintiff: Amichai E. Zukowsky, Esq. ZUKOWSKY LAW, LLC 23811 Chagrin Blvd., Ste 160 Beachwood, OH 44122 Telephone: (216) 800 5529 E-mail: ami@zukowskylaw.com DIVERSIFIED CONSULTANTS: White Sues over Debt Collection -------------------------------------------------------- NICOLE WHITE, individually and on behalf of all others similarly situated, the Plaintiff, v. DIVERSIFIED CONSULTANTS, INC., PINNACLE CREDIT SERVICES, LLC and JOHN DOES 1-25, the Defendants, Case No. 4:18-cv-00318-MW-CAS (N.D. Fla., July 6, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to December 24, 2017, an obligation was allegedly incurred to Verizon Wireless by the Plaintiff. The Verizon Wireless obligation arose out of a transaction for personal cellular phone services in which money, property, insurance or services, the subject of the transaction, were primarily for personal, family or household purposes. The alleged Verizon Wireless obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). Due to her financial constraints, the Plaintiff could not pay the alleged debt, and it went into default. Sometime thereafter, Defendant Pinnacle purportedly purchased the alleged debt. The Defendant Pinnacle is a "debt collector" as defined in 15 U.S.C. section 1692a(6) of the FDCPA. The Defendant, a subsequent owner of the Verizon Wireless debt, contracted with the Defendant Diversified to collect the alleged debt. Diversified collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet.[BN] The Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM, LLC 3475 Sheridan St, Ste. 310 Hollywood, FL 33021 Telephone: (754) 217 3084 Facsimile: (954) 272 7807 E-mail: justin@zeiglaw.com DOWNTOWN TOWING: Petraglia Seeks to Recover OT Pay Under FLSA ------------------------------------------------------------- GIOVANNA PETRAGLIA, and all others similarly situated v. DOWNTOWN TOWING COMPANY, a Florida Corporation, TIMOTHY RYAN DEL ROSAL, individually, BRANDON RAY DEL ROSAL, individually, and ZACHARY ROBERT DEL ROSAL, individually, Case No. 1:18-cv-22733-DPG (S.D. Fla., July 6, 2018), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for the Defendants' alleged willful violations of overtime wages under the Fair Labor Standards Act. Downtown Towing is a Florida corporation, which regularly conducted business within the Southern District of Florida as a tow truck company. The Individual Defendants are "employers" as defined in the FLSA, as they have operational control over the Defendant corporation.[BN] The Plaintiff is represented by: Daniel T. Feld, Esq. LAW OFFICE OF DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Telephone: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com - and - Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Telephone (305) 773-6661 E-mail: mamane@gmail.com EDGE FITNESS: Court Certifies Class of Membership Advisors ---------------------------------------------------------- In the lawsuit captioned MELISSA MCARTHUR, individually and on behalf of all other similarly situated individuals, the Plaintiff, v. EDGE FITNESS, LLC, the Defendant, Case No. 3:17-cv-01554-JAM (D. Conn.), the Hon. Judge Jeffrey Alker Meyer entered an order: 1. granting Plaintiff's motion for conditional certification of a Fair Labor Standards Act collective action: "all persons who have been employed as Membership Advisors in the previous three years"; and 2. directing Defendant to disclose to plaintiff the names and contact information for potential FLSA opt-in plaintiffs within 15 days. The notice period -- that is, the period during which individuals may "opt in" to the FLSA collective action -- began July 23, 2018, and concludes September 21, 2018, Court held. EGS FINANCIAL: 2nd Circuit Appeal Filed in Taubenfliegel Suit ------------------------------------------------------------- Plaintiff Menachem Taubenfliegel filed an appeal from the District Court's opinion and order dated June 21, 2018, and judgment dated June 25, 2018, in the lawsuit styled Taubenfliegel v. EGS Financial Care, Inc., Case No. 18-cv-1962, in the U.S. District Court for the Eastern District of New York (Brooklyn). The nature of suit is stated as consumer credit. The appellate case is captioned as Taubenfliegel v. EGS Financial Care, Inc., Case No. 18-2208, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Menachem Taubenfliegel, individually and on behalf of others similarly situated, is represented by: Adam J. Fishbein, Esq. ADAM J. FISHBEIN, P.C. 735 Central Avenue Woodmere, NY 11598 Telephone: (516) 791-4400 E-mail: fishbeinadamj@gmail.com Defendant-Appellee EGS Financial Care, Inc., is represented by: Aaron R. Easley, Esq. SESSIONS, FISHMAN, NATHAN & ISRAEL L.L.C. 3 Cross Creek Drive Flemington, NJ 08822 Telephone: (908) 237-1660 E-mail: aeasley@sessions.legal ELMER BUCHTA: Monroe Sues Trucking Co. Over FLSA Violations ----------------------------------------------------------- JAMES MONROE, individually and on behalf of all others similarly situated v. ELMER BUCHTA TRUCKING LLC; RAYMOND WRIGHT, individually and as officer, director, shareholder, and/or principal of ELMER BUCHTA TRUCKING LLC; J. KIRK WRIGHT, individually and as officer, director, shareholder, and/or principal of ELMER BUCHTA TRUCKING LLC; LEONARD MEHRINGER, individually and as officer, director, shareholder, and/or principal of ELMER BUCHTA TRUCKING LLC; and WRIGHT FAMILY INVESTMENT GROUP, INC., Case No. 3:18-cv-00132-RLY-MPB (S.D. Ind., July 26, 2018), alleges violations of the Fair Labor Standards Act, the Indiana Minimum Wage Law and the Indiana Deceptive Consumer Sales Act. Mr. Monroe contends that the Defendants compensate him and other truck drivers on a weight hauled percentage basis, which did not amount to the Federal and the Indiana State statutorily required minimum wage for all hours worked. He adds that the Defendants deduct, for their benefit, from the Drivers' paychecks for training, equipment, and drug test costs, which drove the Drivers' hourly rate below or further below the Federal and the Indiana State statutorily required minimum of $7.25 per hour. Elmer Buchta Trucking LLC is incorporated under the laws of Indiana and is headquartered in Otwell, Indiana. WFIG is incorporated under the laws of Indiana and is headquartered in Otwell. Elmer is a wholly owned subsidiary of WFIG. The Individual Defendants are principals, officers or managers of the Corporate Defendants. The Defendants own and operate a trucking company doing business as "Elmer Buchta Trucking." Particularly, they specialize in hauling coal, limestone, and aggregate across the Midwest. In addition to their trucking business, the Defendants operate a "professional driving school," which allegedly trains Drivers without a commercial driver's license ("CDL") for their CDL test.[BN] The Plaintiff is represented by: Irwin B. Levin, Esq. Richard E. Shevitz, Esq. Vess A. Miller, Esq. COHEN & MALAD, LLP 1 Indiana Square, #1400 Indianapolis, IN 46204 Telephone: (317) 636-6481 Facsimile: (317) 793-2252 E-mail: ilevin@cohenandmalad.com rshevitz@cohenandmalad.com vmiller@cohenandmalad.com - and - James Vagnini, Esq. Robert R. Barravecchio, Esq. VALLI KANE & VAGNINI LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Telephone: (516) 203-7180 Facsimile: (516) 706-0248 E-mail: jav@vkvlawyers.com rrb@vkvlawyers.com EMERALD EQUITY: Ortiz Seeks to Recover Wages Under FLSA and NYLL ---------------------------------------------------------------- JOAQUIN ORTIZ, JOSE TORRES, NEYL GARCIA, JOSE B. CABRERA GOMEZ, CLAUDIO A. PAULINO DIAZ, LEONARDO A. PACHECO-CEPEDA, and ISAUL HERNANDEZ, On Behalf of Themselves and All Others Similarly Situated v. EMERALD EQUITY GROUP, LLC, ARCHROCK, LLC D/B/A ARCHROCK MANAGEMENT, STAFF-RBX, LLC, STAFF-EUN, LLC, STAFF-EBX LLC, 147 BRUCKNER BOULEVARD REALTY, LLC, BRONX 495 EAST 188TH STREET, LLC, BRONX 495 EAST 188TH STREET, LP, BRONX 346 EAST 146 EAST 146TH STREET, LP, BRONX 2650 MARION AVENUE, LP, BRONX 232 CYPRESS AVENUE, LP, BRONX 214 EAST 168TH STREET LP, and MOSHE STAHL, Individually, Case No. 1:18-cv-04246 (E.D.N.Y., July 26, 2018), is brought on behalf of superintendents and handymen seeking to recover minimum and overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law. Emerald Equity Group, LLC, is a domestic business corporation with its principal places of business located in New York City and in Brooklyn, New York. Emerald is a real estate acquisition company with a portfolio comprising of over 3,000 residential units in buildings located throughout New York. Emerald designated all management responsibilities for its residential properties to its subsidiary, ArchRock, LLC, doing business as ArchRock Management. The other Corporate Defendants are domestic limited liability companies or domestic limited partnerships. Moshe Stahl is a property manager, supervisor, member or managing member of the Corporate Defendants. The Corporate Defendants are interrelated and operate as an enterprise, owning and managing over 3,000 residential units in buildings located throughout the City of New York.[BN] The Plaintiffs are represented by: Chaya M. Gourarie, Esq. Diego O. Barros, Esq. JOSEPH & NORINSBERG, LLC 225 Broadway, Suite 2700 New York, NY 10007 Telephone: (212) 227-5700 Facsimile: (212) 406-6890 ENHANCED RECOVERY: Israelson Disputes Vague Collection Letter ------------------------------------------------------------- Brian Israelson, individually and on behalf of all others similarly situated, Plaintiff, v. Enhanced Recovery Company, LLC, Defendant, Case No. 18-cv-80688, (S.D. Fla., May 25, 2018), seeks statutory and actual damages, declaratory and injunctive relief, costs of this action, including reasonable attorneys' fees and expenses, prejudgment interest and post-judgment interest and such other and further relief for violation of the Fair Debt Collection Practices Act. Enhanced Recovery is a debt collection agency who attempted to collect an obligation Israelson allegedly incurred to a Capital One Credit Card. On July 26, 2017, Defendant sent the Plaintiff a collection letter that deceptively failed to identify who the current creditor is to whom the alleged debt is owed, says the complaint. Said letter lists Kohl's Department Stores, Inc. as a creditor and Capital One, N.A. as the Original Creditor, but nowhere does the letter clearly identify who the current creditor is. [BN] Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM LLC 3475 Sheridan St., Suite 310 Hollywood, FL 33021 Tel: (954) 217-3084 Fax: (954) 272-7807 Email: justin@zeiglawfirm.com ESSEN22 LLC: Solares-Gonzaga Seeks Unpaid Wages & OT under FLSA --------------------------------------------------------------- JORGE SOLARES-GONZAGA, on his own behalf and on behalf of others similarly situated, the Plaintiff, v. ESSEN22 LLC d/b/a Essen Food; AMICI 519 LLC d/b/a Essen Food; BNP NY FOODS, INC d/b/a Essen Food; 27 MADISON AVENUE CORP d/b/a Essen Food; TEN WESTSIDE CORP d/b/a Essen Food; 100 BROAD STREET LLC d/b/a Essen Food; JANE DOE1, JANE DOE2, JOHN BYUN, CHONG WON BYUN, WILLIAM BYUN, MYONG AE BAEK BYUN, K.C. CHOI, SUNG CHOI, YOUNG CHOI, KYEONG T HWANG, JOSEPHINE KIM, ANGIE PARK f/k/a Eun Ju Park, and HAE YUNG PARK, the Defendants, Case No. 1:18-cv-06175 (S.D.N.Y., July 6, 2018), seeks to recover unpaid wages and/or minimum wage, unpaid overtime wages, liquidated damages, prejudgment and post-judgement interest; and or attorney's fees and cost under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in pattern and practice of failing to pay its employees, including Plaintiff, minimum wage for each hour worked and overtime compensation for all hours worked over 40 each workweek. The Defendants are in the food business industry.[BN] Attorney for the Plaintiff, proposed FLSA Collective and potential Rule 23 Class: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Telephone: (718) 762 1324 F&A DRYWALL: Marquez Labor Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------------- Carlos Marquez, Francisco Perez and Gustavo Rico, individually and on behalf of all others similarly situated, Plaintiff, v. F&A Drywall Construction Inc. and Francisco Lopez, Defendants, Case No. 18-cv-01731 (S.D. Tex., May 25, 2018), seeks all available relief, including compensation, liquidated damages, attorneys' fees and costs, pursuant to the provisions of the Fair Labor Standards Act of 1938. Defendants operate a construction and drywall services catering to customers throughout the State of Texas where Plaintiffs worked as a general laborers, routinely working in excess of 40 hours per workweek but was denied overtime pay. [BN] Plaintiff is represented by: Josef F. Buenker, Esq. Vijay A. Pattisapu, Esq. THE BUENKER LAW FIRM 2030 North Loop West, Suite 120 Houston, TX 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 Email: jbuenker@buenkerlaw.com vijay@buenkerlaw.com FARMLAND PARTNERS: Sept. 10 Lead Plaintiff Deadline Set ------------------------------------------------------- Kaskela Law LLC on July 16 disclosed that a shareholder class action complaint has been filed against Farmland Partners Inc. (NYSE: FPI) (NYSE: FPI-PB) ("Farmland" or the "Company") on behalf of certain investors who purchased the Company's securities between May 9, 2017 and July 10, 2018, inclusive (the "Class Period"). IMPORTANT DEADLINE: Investors who purchased Farmland's common or preferred stock during the Class Period may, no later than September 10, 2018, seek to be appointed as a lead plaintiff representative of the investor class. Farmland investors are encouraged to contact Kaskela Law LLC (David Seamus Kaskela, Esq.) at (484) 258–1585 or (888) 715–1740 and/or submit their information online at http://kaskelalaw.com/case/farmland-partners/. On July 11, 2018, Rota Fortunae published an online report alleging that Farmland artificially increased revenues "by making loans to related-party tenants who round-trip the cash back to FPI as rent." The report further detailed that "[w]e found evidence that strongly supports [Farmland] has significantly overpaid for properties; under normal circumstances, we estimate [Farmland] is worth $4.85/share, but we think the shares are un-investible." Additionally, the report stated that Farmland has "neglected to disclose that the majority of its loans have been made to two members of the management team." Following this report, Farmland's common stock fell $3.37 per share (39%) and its preferred shares fell $6.08 per share (25%). The shareholder class action complaint alleges that defendants made false and misleading statements and/or failed to disclose to investors that: (i) Farmland artificially increased its revenues by marking loans to related party tenants and (ii) Farmland's Class Period revenues were overstated. The complaint further alleges that, as a result of the foregoing, investors purchased Farmland's securities at artificially inflated prices during the Class Period and sustained significant investment losses. Farmland investors are encouraged to contact Kaskela Law LLC and/or submit their information online at http://kaskelalaw.com/case/farmland-partners/.Kaskela Law LLC exclusively represents investors in state and federal courts throughout the country. For additional information about Kaskela Law LLC please visit www.kaskelalaw.com. [GN] FEDERAL NATIONAL: Court Allows FHFA to Intervene in FCRA Suit ------------------------------------------------------------- The United States District Court for the Northern District of California granted Federal Housing Finance Agency (FHFA)'s Motion to Intervene in the case captioned JAMES BANNECK, Plaintiff, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant, Case No. 3:17-cv-04657-WHO (N.D. Cal.). Banneck filed this purported consumer class action against Federal National Mortgage Association (Fannie Mae) asserting two claims under the California Consumer Credit Reporting Agencies Act (CCRAA) and one claim under the federal Fair Credit Reporting Act (FCRA). Federal Rule of Civil Procedure 24 includes provisions for intervention of right and permissive intervention. On timely motion, the court must permit anyone to intervene as a matter of right who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. FHFA argues that its intervention is warranted under any of four grounds: (1) as a right under Rule 24(a)(1) because it has a statutory right to intervene as Fannie Mae's conservator in any action in which Fannie Mae is a party; (2) as a right under Rule 24(a)(2) because it meets those requirements as regulator and conservator; (3) because it meets the requirements for permissive intervention under Rule 24(b)(1) as regulator and conservator; and (4) because it meets the requirements for permissive intervention by a government agency under Rule 24(b)(2) in its capacity as regulator. On the first factor, he argues that the stage of the proceeding should be considered relative to the timeline underlying the motion to dismiss, since FHFA seeks to intervene for the limited purpose of appealing the Order on that motion. But the Ninth Circuit has found "a post-judgment motion to intervene to be timely if filed within the time limitations for filing an appeal." Moving on to the second factor, prejudice to existing parties is the most important consideration in deciding whether a motion for intervention is untimely. The only 'prejudice' that is relevant under this factor is that which flows from a prospective intervenor's failure to intervene after he knew, or reasonably should have known, that his interests were not being adequately represented and not from the fact that including another party in the case might make resolution more difficult. As for the third factor, Banneck contends that the FHFA provides no explanation for the unreasonable delay of its motion to intervene until after the Court's unfavorable decision. But FHFA counters that FHFA typically does not intervene in a case unless and until it is clear that the case could have significant consequences. And it insists that this approach benefits the judicial system as well. The Court find this reason justified and the length reasonable. A full-text copy of the District Court's July 13, 2018 Order is available at https://tinyurl.com/yadmfr9j from Leagle.com. James Banneck, individually and on behalf of all others similarly situated, Plaintiff, represented by Paul B. Mengedoth , Mengedoth Law PLLC, Casey Shannon Nash -- casey@kellyandcrandall.com -- Kelly & Crandall, PLC, pro hac vice, James A. Francis -- jfrancis@consumerlawfirm.com -- Francis and Mailman, P.C., pro hac vice, John Soumilas -- jsoumilas@consumerlawfirm.com -- Francis and Mailman, P.C., pro hac vice, Kristi Cahoon Kelly -- kkelly@kellyandcrandall.com -- Kelly and Crandall PLC, pro hac vice, Lauren K.W. Brennan -- lbrennan@consumerlawfirm.com -- Francis and Mailman PC, pro hac vice, Sylvia Antalis Goldsmith , Goldsmith and Associates, LLC, pro hac vice & Stephanie R. Tatar -- stephanie@thetatarlawfirm.com -- Tatar Law Firm, APC . Federal National Mortgage Association, Defendant, represented by Elizabeth Lemond McKeen -- emckeen@omm.com -- O'Melveny & Myers LLP, Benjamin Dean Brooks -- benbrooks@omm.com -- O'Melveny and Myers LLP & Danielle Nicole Oakley -- doakley@omm.com -- O'Melveny and Myers LLP. Federal Housing Finance Agency, Intervenor, represented by D. Eric Shapland -- eric.shapland@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP. FIDELITY BANK: McAlister Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Dustin McAlister on behalf of himself and others similarly situated, Plaintiff, vs. Fidelity Bank, Defendants, Case No. 18-cv-0405 (W.D. Mo., May 24, 2018), seeks overtime pay at the correct overtime rate, liquidated damages, all costs and attorneys' fees incurred prosecuting this claim, prejudgment interest and all further relief under the Fair Labor Standards Act. Defendant is a financial institution that, among other things, sells financial products to customers including mortgage products. McAlister worked for Fidelity as a mortgage loan originator, selling mortgage loan products. Plaintiff estimates that he worked on average 70 hours per workweek without being paid overtime premium. [BN] Plaintiff is represented by: Brendan J. Donelon, Esq. DONELON PC 420 Nichols Road, Suite 200 Kansas City, MO 64112 Tel: (816) 221-7100 Fax: (816) 709-1044 Email: brendan@donelonpc.com FLOYD COUNTY, GA: Correctional Officers File Suit to Recover Wages ------------------------------------------------------------------ Sarita Johnson, David Castro, Jason Johnson, Herbie Saade and Charles Smith, on behalf of themselves and others similarly situated, Plaintiffs, v. Floyd County, GA, Defendant, Case No. 18-cv-00127, (N.D. Ga., May 25, 2018), seeks to recover overtime compensation, damages, equitable and other relief available under the Fair Labor Standards Act of 1938. Plaintiffs are current or former employees of Floyd County, Georgia, who have worked in the position of "Correctional Officer" at Floyd County Corrections. Their duties as Correctional Officers often required them to stay beyond the end of their 12-hour shift to continue working and complete tasks. Defendant regularly adjusted the timecard entries to reflect only their scheduled 12-hour shift, and not the time each employee actually worked thereby concealing the true number of hours worked, notes the complaint. [BN] Plaintiff is represented by: Lance J. LoRusso, Esq. Tiffany R. McKenzie, Esq. LORUSSO LAW FIRM, P.C. 1827 Powers Ferry Road, SE Building 8, Suite 200 Atlanta, GA 30339 Phone: (770) 644-2378 Fax: (770) 644-2379 Email: lance@lorussolawfirm.com tiffany@lorussolawfirm.com FORD MOTOR: Settles Takata Airbag Class Action for US$299.1MM ------------------------------------------------------------- Proactiveinvestors reports that Ford Motor Company has agreed to a US$299.1 million class action settlement over its "potentially faulty" Takata airbags, according to a Reuters report. The settlement covers at least 6 million vehicles in the US that were equipped with the airbags. Known as an "economic loss settlement," it covers several forms of economic damage that occurred as a result of the airbags, including claims that the cars were not as safe as they were presented as being and that Ford customers had overpaid for cars with inadequate safety features. Ford isn't the first big-name automaker to pay out a hefty settlement. Honda Motor Co Ltd, Toyota Motor Corp, Nissan Motor Co, Mazda Motor Corp, Subaru Corp and BMW AG have paid a combined total of US$1.2bn, according to Reuters. [GN] FORD MOTOR: Tacmed Says Driveshaft Flexible Couplings Defective --------------------------------------------------------------- TACMED HOLDINGS, INC. and TACMED, INC., individually and on behalf of all others similarly situated, the Plaintiffs, v. FORD MOTOR COMPANY, the Defendant, Case No. 7:18-cv-00212 (S.D. Tex., July 6, 2018), seeks to recover damages caused by Ford Transit vans equipped with uniform and uniformly defective driveshaft flexible couplings manufactured, distributed, warranted, and sold/leased by Ford Motor Company and/or its related subsidiaries or affiliates. Ford engaged in the business of designing, manufacturing, distributing, assembling, marketing, warranting, selling, leasing, and servicing automobiles, including the Class Vehicles, and other motor vehicles and motor vehicle components in Texas and throughout the United State.[BN] The Plaintiffs are represented by: Walt D. Roper, Esq. THE ROPER FIRM, P.C. 3131 McKinney Avenue, Suite 600 Dallas, TX 75204 Telephone: (214) 420 4520 Facsimile: (214) 856 8480 E-mail: walt@roperfirm.com - and - Janice E. Cohen, Esq. JANICE COHEN LAW Two Turtle Creek 3838 Oak Lawn Avenue Suite 750 ~LB 20 Dallas, TX 75219 Telephone: (214) 528 7977 Facsimile: (214) 528 7986 E-mail: Jan@JaniceCohenLaw.com - and - Jim Mitchell, Esq. PAYNEMITCHELL LAW GROUP 3500 Maple Avenue, Suite 1250 Dallas, TX 75219 Telephone: (214) 252 1888 Facsimile: 214-252-1889 E-mail: JMitchell@PayneMitchell.com FRIENDS OF FREDDIE: Judge Rules Class Action Lawsuit Can Proceed ---------------------------------------------------------------- News 12 The Bronx reports that a judge has ruled the case against animal rescue group "Friends of Freddie" may proceed. Dozens of people are suing the rescue group, claiming they adopted sick pets. As News 12 has reported, Friends of Freddie's owner Barbara Sanelli was charged with neglect and is accused of failing to provide animals with proper medical care. In 2017, the State Attorney General's office also opened an investigation into the rescue group.[GN] GAMESTOP CORP: Settles Customers' Data Breach Class Action ---------------------------------------------------------- Tom McParland, writing for Law.com, reports that GameStop Corp. has reached a settlement agreement in a class action lawsuit from customers whose personal information was compromised in a six-month-long data breach at the Texas-based video game retailer. Plaintiffs attorneys said in court papers, filed on July 16 in the U.S. District Court for the District of Delaware, that GameStop has agreed to pay up to $235 to each plaintiff for a range of potential costs resulting from the breach, which exposed customers' credit and debit card numbers to fraud and identity theft. Under the proposed settlement, class members who suffered the most harm would receive as much as $10,000 to cover "extraordinary expenses." In exchange for the cash payments, GameStop would be released from all claims relating to the breach, according to the document. The filing was the first step toward resolving the nearly 10-month-old suit, which accused the Texas-based company of negligence in failing to protect sensitive card information online and in its stores. The settlement would need to receive preliminary approval from U.S. District Judge John E. Jones III before it could receive a fairness hearing. If approved, class members would be notified about the settlement and have the opportunity to decide whether to participate or to opt out. "The court should preliminarily approve the settlement because it incorporates fair, reasonable, and adequate relief for the class, includes a comprehensive notice plan that is the best means of providing notice under the circumstances," attorneys from Chimicles & Tikellis wrote. "Defendant does not oppose the relief requested in this motion." A spokesman for GameStop did not return a call on July 16 seeking comment on the proposed settlement. Edward J. McAndrew -- mcandrewe@ballardspahr.com -- a Ballard Spahr attorney representing the company, declined to comment, saying his client had not authorized him to speak to the media. Plaintiffs Crystal Bray and Samuel Cook filed their lawsuit last September. The 36-page complaint alleged that inadequate cybersecurity mechanisms directly led to the breach, which lasted from August 2016 to February 2017. Ms. Bray and Ms. Cook claimed that they made purchases online during the six-month period but were not notified about the breach until last June. According to the complaint, GameStop did not offer credit monitoring services or compensation for their losses. GameStop confirmed in April 2017 that it was investigating the breach, after a third party notified the company that card data was being offered for sale online. Judge Jones, who is visiting from the Middle District of Pennsylvania, dismissed the plaintiffs' negligence-based claims in March, but allowed claims for breach of implied contract and unjust enrichment to proceed. According to the July 16's filing, the sides had already been engaged in settlement talks prior to the March 16 decision, and finally reached an agreement May 2 during an all-day mediation session with Bennett Picker, a private mediator from Stradley Ronon Stevens & Young in Philadelphia. Under the agreement, the lawyers said, Ms. Bray and Ms. Cook would each receive $3,750 in incentive awards for bringing the case, as well as $557,500 in attorney fees and costs. The rest of the class would receive a maximum of $235 each for costs associated with the breach, including up to $120 for credit monitoring and identity-theft services they had purchased and $22 for each card used to make fraudulent purchases. They would also receive $15 per hour for up to three hours spent dealing with replacement card issues or reversing fraudulent charges. Chimicles & Tikellis partner Robert Kriner Jr. -- RobertKriner@chimicles.com -- who was listed as lead attorney for the plaintiffs, did not return a call on July 16 seeking comment on the agreement. The case is captioned Bray v. GameStop. [GN] GEORGE TYNDALL: Faces Sexual Abuse Class Action Suit ---------------------------------------------------- Jane Does 5-10, individually and on behalf of all others similarly situated, Plaintiff, v. University of Southern California, Board of Trustees of the University of Southern California and George Tyndall, M.D., Case No. 705677, (Cal. Super., May 25, 2018), seeks compensatory and punitive damages, attorneys' fees and costs resulting from gender violence, gross negligence, negligent supervision and retention, civil battery and violation of the Education Amendments Act of 1972, California Sex Equity in Education Act. Tyndall is a gynecologist at the University of Southern California (USC) student health center. He is accused of sexual abuse, molestation and unwanted touching by female students who sought examination by a gynecologist at the student health center. USC nurses, chaperones and other staff members were regularly present in the examination rooms, observed the inappropriate sexual molestation but took no steps to stop it as it occurred. [BN] Plaintiff is represented by: John C. Manly, Esq. Vince W. Finaldi, Esq. Alex E. Cunny, Esq. Jane E. Reilley, Esq. MANLY, STEWART & FINALDI 19100 Von Karman Ave., Suite 800 Irvine, CA 92612 Telephone: (949) 252-9990 Fax: (949) 252-9991 - and - Ronald T. Labriola, Esq. Thomas M. Moore, Esq. THE SENATORS (RET.) FIRM, LLP 19100 Von Karman Avenue, Suite 850 Irvine, CA 92612 Telephone: (949) 557-5800 Fax: (866) 676-6769 GOOGLE LLC: AdX Publishers Can Amend Breach of Contract Suit ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, granted Defendant's Motion to Dismiss the first amended complaint in the case captioned BULLETIN MARKETING LLC, Plaintiff, v. GOOGLE LLC, Defendant, Case No. 17-cv-07211-BLF (N.D. Cal.). The Google Services Agreement, which Bulletin Marketing entered into, governs the relationship between AdX publishers and Google. A few days before Google was due to pay Bulletin Marketing's accrued AdX earnings, Google disabled Bulletin Marketing's account for purported policy violations. Although Google never sent any notice to Bulletin Marketing that its AdX account was in violation of any policy, Google withheld payment of all of Bulletin Marketing's accrued AdX earnings for the last earnings period. Bulletin Marketing asserts four class action claims: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of implied duty to perform with reasonable care; and (4) violation of California's Unfair Competition Law. Google moves to dismiss claims 2 to 4. Second Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing The second cause of action asserts a claim for breach of the implied covenant of good faith and fair dealing. According to Google, the FAC alleges four theories in support of that claim: Google (1) fails to provide publishers a meaningful appeal after termination; (2) withheld accrued earnings directly tied to valid activity; (3) withheld publishers' earnings close to the earnings payout date; and (4) does not allow publishers to get relief from Google even when it withheld earnings that are tied to valid activity. The Court finds that the FAC does not adequately plead the second cause of action. The implied covenant of good faith and fair dealing's application is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract. However, as pled, the FAC's allegations attempt to add obligations that do not expressly appear in the Google Services Agreement. As such, the allegations which Bulletin Marketing relies on fail to support a claim for breach of the implied covenant of good faith and fair dealing. The Court therefore grants Google's motion to dismiss the second cause of action with leave to amend. Third Cause of Action: Breach of the Implied Duty to Perform with Reasonable Care The FAC's third cause of action asserts a claim for breach of the implied duty to perform with reasonable care. Google argues that the third cause of action is duplicative of Bulletin Marketing's claim for breach of contract because those two claims rely on the same allegations. The Court first turns to the FAC's second alternative situation. Bulletin Marketing seeks to assert its implied duty claim when the contract does impose an express contractual obligation upon Google. In this situation, the alleged implied duty does not exist because the contract at issue already expressly contains the purported obligation. Bulletin Marketing cannot assert a non-existent implied duty. The claim which Bulletin Marketing seeks to assert would be subsumed in its breach of contract claim. Thus, Google's motion to dismiss the third cause of action to the extent it is based on the FAC's second alternative situation is granted without leave to amend. Fourth Cause of Action: Violation of California's Unfair Competition Law Google argues that Bulletin Marketing lacks standing to assert a claim under California's Unfair Competition Law (UCL) on the grounds that it did not bring this case for "the public in general or individual consumers. Bulletin Marketing responds that Google's practice of disabling publisher's AdX accounts and withholding the entirety of their accrued earnings implicates the public interest. The Court is unpersuaded by Bulletin Marketing's arguments. The FAC does not contain adequate factual allegations showing that the named Plaintiff Bulletin Marketing is not a sophisticated corporate plaintiff. In fact, the FAC suggests the opposite. In contrast, the FAC contains no such allegations. As such, the Court finds that the FAC fails to plead that the named Plaintiff Bulletin Marketing has standing to bring the UCL claim. The FAC also raises a concern whether it sufficiently alleges that Google engaged in "unlawful, unfair or fraudulent business act or practice. The Court need not reach this issue because the FAC fails to allege that the named Plaintiff Bulletin Marketing has standing to pursue the UCL claim. The Court grants Google's motion to dismiss the fourth cause of action with leave to amend. A full-text copy of the District Court's July 13, 2018 Order is available at https://tinyurl.com/y9m3basw from Leagle.com. Bulletin Marketing LLC, Plaintiff, represented by Mark Weylin Poe -- mpoe@gawpoe.com -- Gaw & Poe LLP, Samuel S. Song -- ssong@gawpoe.com -- Gaw & Poe LLP, Victor Meng -- vmeng@gawpoe.com -- Gaw & Poe LLP & Randolph Gaw -- rgaw@gawpoe.com -- Gaw & Poe LLP. Google LLC, Defendant, represented by Jeffrey Gutkin -- jgutkin@cooley.com -- Cooley LLP, Michael Graham Rhodes -- rhodesmg@cooley.com -- Cooley LLP, Audrey Jane Mott-Smith -- amottsmith@cooley.com -- Cooley LLP & Kyle Christopher Wong, Cooley LLP. HOMESERVE USA: Peker TCPA Suit Seeks to Stop Unsolicited Calls -------------------------------------------------------------- MICHELINE PEKER, individually and on behalf of all others similarly situated v. HOMESERVE USA CORP., a Pennsylvania corporation, Case No. 2:18-cv-00517-UA-MRM (M.D. Fla., July 26, 2018), seeks to stop HomeServe from violating the Telephone Consumer Protection Act's prohibition on unsolicited calls to consumers whose phone numbers are registered with the National Do Not Call Registry by making calls to those consumers without their consent. HomeServe is a Pennsylvania corporation headquartered in Norwalk, Connecticut. HomeServe provides homeowners with insurance plans that cover repairs that might be needed for electric, gas, heating, cooling and water systems. HomeServe markets its services by calling consumers' phone numbers without consent, regardless of whether the phone numbers are listed on the DNC or the consumers have otherwise demanded that HomeServe stop calling, the Plaintiff alleges.[BN] The Plaintiff is represented by: Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com HOULIHAN LAWRENCE: Faces Class Action Over "Predatory Behavior" --------------------------------------------------------------- Rich Bockmann, writing for The Wall Street Journal, reports that a Westchester homebuyer is the lead plaintiff in a class-action lawsuit accusing Houlihan Lawrence of "predatory behavior" over its dual agency practices. The lawsuit claims that the 1,300-agent-strong residential brokerage makes dual agency part of its fundamental business plan and obscures its agents' roles, the Wall Street Journal reported. Houlihan Lawrence also provides less disclosure than other brokerages about its agents' dual roles, according to the lawsuit, which says the brokerage represented both sides of the deal in nine out of 10 of Houlihan Lawrence's biggest Westchester sales. A spokesperson for Houlihan Lawrence, which Warren Buffett's Berkshire Hathaway Inc.'s HomeServices of America bought last year, told the Journal that the company had just learned of the lawsuit and was still going over it, adding the brokerage "is confident in its business practices." Pamela Goldstein, the lead plaintiff in the case, bought a home in White Plains in 2017 for $637,000. She was surprised to find, though, that her broker at Houlihan Lawrence was part of the team that had listed the house for the seller. Her agent, Daniel Cezimbra, is also the brother-in-law of the listing agent. Brokers in New York are allowed to work on both sides of the deal, so long as they disclose their dual roles. Ms. Goldstein said her broker sent her a disclosure only three days after she submitted her initial bid, and that the pre-checked boxes on the form were incorrect. Mr. Cezimbra told the Journal that he worked "solely" on Goldstein's behalf. "She was well represented," he said. "I feel everything we did was up to par. She had every disclosure laid out to her." [GN] HSBC HOLDINGS: Blaney McMurtry Discusses Class Action Ruling ------------------------------------------------------------ John Polyzogopoulos, Esq., of Blaney McMurtry LLP, in an article for Lexology, reported that in Yip v HSBC Holdings plc, the Ontario Court of Appeal upheld the stay of a US$7 billion class action claim for secondary securities market misrepresentation on jurisdictional grounds. The securities at issue were bought by Canadians on foreign exchanges, as they did not trade on a Canadian stock exchange. The Court determined that Ontario securities law did not extend as far as to permit a claim for secondary market misrepresentation under the Securities Act to proceed in Ontario in such circumstances, and therefore upheld the stay of proceedings imposed by the motion judge. Yip v HSBC Holdings plc, 2018 ONCA 626 Keywords: Torts, Negligent Misrepresentation, Securities, Secondary Market Misrepresentations, Securities Act, RSO 1990, c S 5, s. 138.1, Definition of "Responsible Issuer", Abdula v Canadian Solar Inc, 2012 ONCA 211, Statutory Interpretation, Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, Civil Procedure, Class Actions, Jurisdiction Simpliciter, Real and Substantial Connection, Forum Non Conveniens, Club Resorts Ltd v Van Breda, 2012 SCC 17, Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393, Kaynes v. BP, PLC, 2014 ONCA 580, Kaynes v BP PLC, 2016 ONCA 601, Costs, Public Interest Litigation, Enterpreneurial Litigation, Disbursements, Experts, Proportionality, Fantl v Transamerica Life Canada, 2009 ONCA 377, 3664902 Canada Inc. v. Hudson's Bay Co. (2003), 169 O.A.C. 283 (C.A.), Class Proceedings Act, 1992, SO 1992, c 6, s. 31(1), Rules of Civil Procedure, Rule 1.04(1.1) Facts: This appeal concerns a proposed securities class action for negligent misrepresentation against HSBC Holdings ("HSBC Holdings"). HSBC Holdings is the parent holding company of an international banking conglomerate with its head office in London, UK. The securities have never traded or been listed on any Canadian stock exchange. They are traded on the London and Hong Kong Stock Exchanges with secondary listings on the Bermuda Stock Exchange and the Paris Euronext Stock Exchange. HSBC's American Depository Receipts (ADRs) traded on the New York Stock Exchange. HSBC Holdings has about 220,000 shareholders in 129 countries, including Canada. The appellant asserts that he and other purchasers of HSBC Holdings' shares or ADRs were misled by HSBC Holdings' continuous disclosure documents and public statements in two primary respects: (i) that it had complied with anti-money laundering and anti-terrorist financing laws; and (ii) that it had not participated in an illegal scheme to manipulate certain international benchmark rates. The motion judge proceeded on the assumption that these misrepresentations occurred. The appellant asserts that these misrepresentations caused investors in HSBC Holdings to suffer about US$7 billion in losses because they purchased shares and ADRs at artificially inflated prices. This is the basis of his statutory and common law tort claims for misrepresentation. The motion judge heard two motions. HSBC Holdings moved to dismiss or stay the appellant's action because the Ontario court lacks jurisdiction simpliciter and because Ontario is forum non conveniens. The appellant brought a cross-motion for a declaration that HSBC Holdings is a responsible issuer under s.138.8 of the Ontario Securities Act. The motion judge dismissed the appellant's action and stayed the common law misrepresentation claim. He dismissed the appellant's cross-motion. Issues: (1) Did the motion judge err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act? (2) Did the motion judge err in his application of the common law real and substantial connection test? (3) Did the motion judge err in his application of the doctrine of forum non conveniens? (4) Should leave to appeal the costs award be granted and should the costs award be varied? Holding: Appeal dismissed. Reasoning: (1) No, the motion judge did not err in his interpretation of the definition of responsible issuer in s. 138.1 of the Securities Act. The appellant's statutory tort claim is based on s. 138.3, which gives investors a statutory cause of action against a responsible issuer for a misrepresentation in a "document" released by it or contained in a public oral statement. Section 138.3 defines a responsible issuer to mean "(b) any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded" (emphasis added). The appellant relied on Abdula v Canadian Solar Inc, 2012 ONCA 211, and urged the court to find that: "An issuer that knows or ought to know that its investor information is being made available to Canadian investors has a securities regulatory nexus" with Ontario sufficient to establish a real and substantial connection. The appellant argued that this would be a purposive interpretation consistent with the goal of the Securities Act to protect investors from fraudulent practices. In the alternative, the appellant submitted that the court should identify a new presumptive connecting factor for cases of secondary market misrepresentation. The appellant argued that HSBC Holdings "ought to know both that" the putative class members "may well be injured and it [was] reasonably foreseeable that the misrepresentation" would be acted upon: Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393. The appellant therefore argued that the motion judge erred in declaring that HSBC Holdings is not a responsible issuer. The Court rejected this argument because the proposed formulation of the test might make Ontario a universal jurisdiction for secondary market misrepresentations made anywhere in the world. The Court reiterated that the words of an Act are to be read in their entire context and their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Legislature: Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, at para 26; and Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21. In analyzing the Legislature's intention, the Court found that by introducing civil liability for secondary market misrepresentations, the Legislature did not intend that Ontario would become the default jurisdiction for issuers around the world whose securities were purchased by residents of Ontario. The Court additionally found that the Legislature's adoption of the language in which the common law jurisdiction simpliciter test is framed was not accidental. Rather, it was well entrenched, and it specifically aimed at preventing jurisdictional overreach. The concern about jurisdictional overreach affects the assessment at three levels of the common law test for determining whether a Canadian court will assume jurisdiction: (i) requiring the presence of a presumptive connecting factor; (ii) determining whether the factor has been rebutted; and (iii) in applying the forum non conveniens doctrine. Further, in assessing the judicial history of the real and substantial connection test, the Court cited the Supreme Court's decision in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. Justice LeBel expressed similar concerns in his formulation of the factors a court is to consider in determining whether a real and substantial connection exists in a tort case. He repeatedly expressed one of the primary aims of the test: to reduce the "risk of jurisdictional overreach" (at para. 22); to "prevent improper assumptions of jurisdiction" (at para. 26); to prevent "courts from overreaching by entering into matters in which they had little or no interest" (at para. 38); and to reduce the risk of "sweeping into that jurisdiction [,] claims that have only a limited relationship with the forum" (at para. 89). In his view, a judicial approach that leads to "universal jurisdiction" should be avoided. Accordingly, the Court rejected the appellant's argument that, on purposive grounds, the interpretation of the expression "real and substantial connection" in the Securities Act must be different than its common law meaning in the jurisdiction simpliciter cases. Rather, a purposive interpretation led the Court to reject the appellant's proposed test and alternative argument that the court should recognize a new presumptive connecting factor for this type of statutory claim. The Court rejected that an issuer that knows or ought to know that its investor information is being made available to Canadian investors creates a securities regulatory nexus sufficient to establish a real and substantial connection to Ontario. In determining whether an issuer is a responsible issuer, the courts are generally to apply the common law test for a real and substantial connection. (2) No, the motion judge did not err in his application of the common law test for a real and substantial connection. The Ontario Superior Court of Justice has jurisdiction over a foreign defendant in a tort action if the plaintiff establishes that a real and substantial connection exists between the subject matter of the litigation and Ontario. In Van Breda, the Supreme Court formulated four rebuttable presumptive connective factors, at para 90: [I]n a case concerning a tort, the following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province. The appellant asserted that HSBC Holdings was caught by two of the presumptive connecting factors: it committed a tort in Ontario; and it carries on business in Ontario. The appellant contended that the motion judge erred by requiring HSBC Holdings to have a physical presence in Ontario. The Court of Appeal disagreed with this argument. The motion judge's finding that HSBC Holdings' business is that of managing a global enterprise of a group of commonly bannered banks to the extent of setting global standards for a global enterprise was correct and entitled to deference. The Court found that HSBC Holdings could not be said to have carried on business in Ontario simply because the appellant could access a non-reporting issuer's disclosure information using his home computer in Ontario. This would amount to an "extremely weak connection" to securities regulation in Ontario. It would also give rise to the universal jurisdiction that LeBel J. explicitly rejected in Van Breda. The Court distinguished Abdula, where the issuer was found to be a responsible issuer because there was a real and substantial connection to Ontario, at para. 88. The issuer in Abdula had been incorporated in Ontario; its executive offices as well as some business and governance operations were in Ontario; and it had held its annual meeting in Ontario. Here, HSBC Holdings' management business was distinct from the businesses it manages. Very few activities of HSBC Holdings' business had ever occurred in Ontario; it had no fixed place of business in Canada; and there was no agent of HSBC Holdings doing its management business in Ontario. Therefore, HSBC Holdings is not a responsible issuer under the Securities Act because it had no real and substantial connection to Ontario. (3) No, the motion judge accurately expressed and applied the principles in the forum non conveniens analysis and this determination attracts deference: see Van Breda, at para. 112. A court may decline jurisdiction on the basis that there is another more appropriate forum under the forum non conveniens doctrine, even if it finds it has jurisdiction simpliciter. Given the Court's conclusion that Ontario courts do not have jurisdiction simpliciter, it was unnecessary to consider the forum non conveniens doctrine. However, since the appellant raised arguments about the interaction between this court's decisions in Kaynes (2014) and Kaynes v BP PLC, 2016 ONCA 601, 133 O.R. (3d) 29, the Court found that a response would be helpful. The Court went on to extensively discuss the Kaynes decisions, in which the court had first stayed a securities class action in 2014 on jurisdictional grounds, and then lifted the stay in 2016 to permit the claim to proceed. The appellant's argument that there was inconsistency between the court's decisions in Kaynes (2014) and Kaynes (2016) was rejected. In Kaynes (2016), the court lifted the stay it imposed in Kaynes (2014) in order to allow the appellant to have his claim adjudicated on its merits. The panel did not suggest that the framework it set out in Kaynes (2014) was wrong. The law did not change in Kaynes (2016); the facts changed. The court in Kaynes (2016) stated, at para. 16: these developments, taken as a whole, are sufficient to justify lifting the stay. Comity was central in Kaynes (2014). The importance of comity did not change in Kaynes (2016). In Kaynes (2014), the court showed respect for the U.S. court, which was already adjudicating similar claims. When the U.S. District Court judge dismissed the claim on a "purely procedural barrier", there was no decision on the merits that the court could recognize: Kaynes (2016), at para. 16. In addition, given that Mr. Kaynes had commenced his claim in Ontario in time, it was unfair that this be a basis for preventing the claim from being heard on its merits. Thus, in Kaynes (2016), the court did not elevate the juridical advantage of asserting a claim as a class action to the status of an inviolable right. Rather, it applied the Kaynes (2014) framework to a new set of facts. The appellant argued that the motion judge failed to give due weight to the loss of juridical advantage he would suffer if Ontario declined jurisdiction, and he asserted: There is no authority for the proposition relied on by the motion judge that juridical advantage should be viewed as "a weak and problematic factor". This is incorrect. The Supreme Court noted that the juridical advantage factor is problematic in the forum non conveniens analysis, both as a matter of comity and as a practical matter: Breeden v Black, 2012 SCC 19, [2012] 1 SCR 666, at para 27; Van Breda, at para 112. As a matter of comity, secondary market trading is international and involves numerous jurisdictions. Comity is particularly important to maintain an orderly and predictable regime for dispute resolution. As stated by LeBel J. in Van Breda: "Comity cannot subsist in private international law without order, which requires a degree of stability and predictability in the development and application of the rules governing international or interprovincial relationships" (at para. 74). In this case, the motion judge properly expressed and applied the forum non conveniens principles. HSBC Holdings could not reasonably have expected that it would be subject to the securities regulation of the law of Ontario. Therefore, the motion judge was right to conclude that Ontario was forum non conveniens. (4) Yes and yes. The Court granted leave to appeal the costs award, and varied it by reducing it from $1,000,455.22 to $800,000. In reducing the award, the court did not accept the appellant's submission that this litigation should be considered public interest litigation in the costs context (Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427 (C.A.)). There was no such specific or special significance of this case beyond the putative class members. This was entrepreneurial litigation. The Court also found that this litigation did not raise a novel issue: the central issue was jurisdictional. The Court did disagree with the motion judge where he drew a distinction between "altruistic" and "entrepreneurial" litigation. Class actions are generally entrepreneurial litigation: Fantl v Transamerica Life Canada, 2009 ONCA 377 at para 66. However, the Court did not disagree with the motion judge's conclusion that the fees sought by the respondent were fair and reasonable in the circumstances and the expert evidence and fees were necessary for the motion. Expert fees are not to be arbitrarily reduced to reflect partial indemnity costs (3664902 Canada Inc. v. Hudson's Bay Co. (2003), 169 O.A.C. 283 (C.A.)). Proportionality is a matter of general principle in applying the Rules of Civil Procedure: see r. 1.04(1.1). The expert fees allowed must still be reasonable in terms of hours and rates charged in proportion to the matter. The motion judge referred to, but did not apply, this test. There was no information provided for three of the six experts in terms of the hours spent or the rates charged. That significantly constrained a review of the fees charged. While the court could have remitted the matter back to the motion judge, it decided to reduce the costs in respect of the expert fee disbursements incurred. [GN] ILLINOIS: Dismissal of Suit Over $50 Case Reinstatement Fee Upheld ------------------------------------------------------------------ The Appellate Court of Illinois, Second District, affirmed the trial court's judgment granting Defendant's Motion to Dismiss the case captioned RICHARD ALDERSON AND ANN ALDERSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. ERIN C. WEINSTEIN, in Her Official Capacity as Clerk of the Circuit Court of Lake County and as a Representative of All Illinois Circuit Court Clerks, Defendant-Appellee, No. 2-17-0498 (Ill. App.). Plaintiffs, Richard and Ann Alderson, brought suit seeking mandamus and other relief against defendant, Erin C. Weinstein, in her official capacity as clerk of the circuit court of Lake County and as a representative of all circuit court clerks in the state. The Aldersons filed a complaint in arbitration in the circuit court of Lake County. In January 2016, the Aldersons' complaint was dismissed for want of prosecution, a court order also known as a DWP. Two weeks later, when the Aldersons sought to vacate the dismissal and reinstate the case, Weinstein's office charged them a $50 fee. The Aldersons' attorney paid the fee; the arbitration case was reinstated, it proceeded to judgment, and it is now closed. A section of the Clerks of Courts Act, applicable to Lake County, authorizes the circuit clerk to charge a minimum of $50 and a maximum of $60 when a party files a petition to vacate or modify any final judgment or order of court in most civil cases. Under Barber, then, this is a simple case. The record is clear that the Aldersons had not formally sought class certification before Weinstein tendered them financial relief and filed her motion to dismiss. That was, more or less, the end of this matter; as Barber explains, a putative class action is moot where the named plaintiffs were granted the relief requested" prior to seeking class certification. Barber, 241 Ill. 2d at 459. But, the Aldersons maintain, they have not received the relief they requested. They point out that their complaint did not request $341 (a refund of the $50 fee plus the $291 filing fees for the instant case) or any specific amount of money or a policy declaration from the circuit clerk. Rather they sought a writ ordering the clerk to refund their fee ($50), as well as an accounting, as well as a similar order applicable to all other circuit clerks in the state. In this regard, the Aldersons have taken a snippet of Barber to an unreasonable extreme. Illinois law holds that a suit is moot where the defendant tenders to the plaintiff the essential relief demanded. Here, the complaint alleged that the Aldersons were charged a $50 fee by the circuit clerk in excess of the clerk's statutory authority; the circuit clerk issued the Aldersons a refund and stated in an affidavit that she had implemented a policy to ensure that others would not be erroneously charged a fee when filing a motion to vacate a DWP. By any reasonable measure, the Aldersons have received what they basically sought and more, considering that they never requested a refund of their filing fees for the instant case ($291) and yet have received a check for that amount. In addition, the Aldersons put the cart before the horse when they sought to treat Weinstein, in her official capacity, as a representative defendant. No allegation was made in the complaint as to why Weinstein is a representative for any other circuit clerk, let alone all other circuit clerks in the state, none of whom were joined as defendants. And, so, as we have said, the Aldersons have essentially received all that they are entitled to and then some. Their purported nonacceptance notwithstanding, pursuant to Barber, this case is indeed moot. Pursuant to Barber, the Aldersons' case is moot, and no exception applies to save it. Accordingly, the judgment of the circuit court of Lake County, which dismissed the complaint, is affirmed. A full-text copy of the Ill. App.'s July 13, 2018 Opinion is available at https://tinyurl.com/yb7q5az6 from Leagle.com. IOC-PA LLC: Tumpa Action Seeks to Recover Unpaid Overtime --------------------------------------------------------- Robert D. Tumpa, Sr., on behalf of himself as an individual and all other similarly situated employees, Plaintiff v. IOC-PA, LLC, Eldorado Resorts, Inc. and Mary Ann Rutherford, Director of Casino Operations, Defendants, Case No. 18-cv-00112, (W.D. Pa., May 24, 2018), seeks to recover unpaid wages, overtime wages, liquidated damages, pre-judgement interest and all other appropriate relief for violations of the Fair Labor Standards Act of 1938 and the Pennsylvania Minimum Wage Act of 1968, Pennsylvania's Wage Payment and Collection Law and under the common law doctrine of unjust enrichment. IOC-PA, LLC operates as the Lady Luck Casino in Fayette County, Pennsylvania where Tumpa was employed as a table game dealer and operator at the casino. Dealers are required to be at work or "punch in" at the Casino seven minutes prior to the start of their shift, for which they are not paid, says the complaint. [BN] Plaintiff is represented by: Edward J. Feinstein, Esq. Elizabeth Rabenold, Esq. Brendan R. Delaney, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Fourth Avenue Law and Finance Building, Suite 1300 Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 Email: efeinstein@fdpklaw.com erabenold@fdpklaw.com bdelaney@fdpklaw.com, Esq. JEFFERSON PARISH, LA: Faces Class Suit Over Landfill Fumes ---------------------------------------------------------- 4WWL TV, reports that a Jefferson Parish man has filed a class-action against the parish and the operator of a west bank landfill, whose noxious odors many residents say are making them sick. The lawsuit was filed on July 25 by Elias Jorge "George" Ictech-Bendeck. It names Jefferson Parish, Progressive Waste Solutions, Waste Connections, IESI Louisiana Landfill Corp., the Louisiana Regional Landfill Co. and Aptim Corp. as defendants. A Jefferson Parish spokesman said the parish has received the lawsuit but declined to comment. The parish plans to file a response to the lawsuit in court. While the landfill is on the west bank, neighbors across the river in Harahan and River Ridge have complained about a noxious odor coming from the facility in recent months. The parish has blamed the landfill's private operator in part for the odor and is holding the company in breach of contract. Parish President Mike Yenni earlier this week said the breach of contract was "for failing to maintain a uniform, immediate daily cover to prevent odors and failing to fully implement the leachate control and monitoring plan that would contain and prevent these odors." The landfill operator, IESI Louisiana, now called Louisiana Regional Landfill Company, disputed that claim. A statement from the company reads in part, "LRLC has at all times operated the landfill in accordance with the provisions of the landfill operating agreement and under the direction and supervision of Jefferson Parish. . . . Jefferson Parish operates and maintains the landfill gas collection system at the landfill, not LRLC." The company also claims it offered to take over that function and repair the system for the next 90 days at no extra cost to the parish. But, according to the contractor, the parish never responded to their offer. The contractor added, "LRLC, at its own expense, has hired a nationally known odor mitigation firm in order to assist the parish in identifying all sources of local odors, including the two River Birch landfills immediately adjacent to the Jefferson Parish landfill. A final report detailing those findings will be made public in the coming weeks." Yenni accused his predecessor, John Young, of cutting a side deal that let the landfill operator out of handling a portion of the liquid and gas containment systems. Young told WWL-TV that Yenni's claim is ridiculous. "It's wrong and irresponsible for them to try and point fingers at a prior administration when they've been on the job almost three years now," Young said. Young added his administration requested the landfill contractor to do more, not less. He presented as evidence a December 2014 parish council resolution amending the landfill contract that asked the contractor to fix and maintain broken pumps at the dump. "There were some things done to actually get IESI to do additional things in terms of the leachate and things like that," Young said. A Jefferson Parish spokesman said the Yenni administration stands by statements made about the landfill contractor and the former parish president on July 23 news conference.[GN] JEHOVAH'S WITNESSES: Faces Class Actions Over Sexual Abuse ---------------------------------------------------------- CBC News reports that a small group of protesters spoke out against alleged abuse within Jehovah's Witnesses at one of the religious group's annual conventions in Vancouver on July 15. Natasha Peeters was among them. Now 50, she says she was abused by an elder within the church when she lived in Belgium as a youth. "I was abused . . . since I was a baby until 13 years old," she said. Two-witness rule Ms. Peeters said when she came forward with the abuse she was dismissed. She says the church has a rule that wrongdoing can only be established on the basis of testimony from two or more eyewitnesses to the same incident. 'I was alone, it was my word against his, I can't do anything," she said. "He's an adult. He said nothing happened, so nothing happened." Two class-action lawsuits in Canada have been filed against Jehovah's Witnesses, one in Ontario and a second suit in Quebec. The suits accuse Jehovah's Witnesses of failing to protect victims of sexual abuse. In Vancouver on July 15, 8,500 church members attended a three-day conference at the Vancouver Convention Centre with the theme of being courageous. Jehovah's Witnesses spokesperson Chas Harrison says he is unaware of the two-witness rule but that the church, a denomination of Christianity that has 8.5 million members worldwide, takes allegations of abuse seriously. "Abuse, if that was the case, that would be a matter for the secular authorities, in which case we would hand it over to them," he said. In 2017, a royal commission in Australia investigated allegations of sexual abuse of children in institutions like churches. It highlighted the two-witness rule and found that as long as policies like it were in place, the relevant organization could not adequately respond to child sexual abuse and could not protect children. A 2016 report in Australia found Jehovah's Witnesses in that country failed to report 1,006 cases of child sexual abuse. Some dated back more than 60 years. Ms. Peeters, who now lives in Revelstoke, B.C., says she wants more victims to come forward to speak out about abuse in the church. [GN] KINCAID INC: Fails to Pay OT Wages Under FLSA, Portillo Claims -------------------------------------------------------------- ALONDRA PORTILLO, and all others similarly situated under 29 U.S.C. 216 (b) v. KINCAID, INC., CAMPUZANO MIDLOTHIAN, L.L.C., CAMPUZANO CEDAR HILL, L.L.C., and BRIAN HARDING, Case No. 3:18-cv-01759-C (N.D. Tex., July 6, 2018), alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act Kincaid, Inc., is a company that regularly transacts business within Dallas County. Campuzano Midlothian, L.L.C. is a company that regularly transacts business within Ellis County and Dallas County. Campuzano Cedar Hill, L.L.C. is a company that regularly transacts business within Dallas County. Brian Harding is a corporate officer, owner or manager of the Defendant Companies. The Defendant Companies are joint enterprises as the related activities between them, performed through unified operation and/or common control, are being done for a common business purpose. The Defendant Companies operate various "Campuzano" Mexican restaurants.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com KNORR-BREMSE AG: Marietta Files Suit Over No-Poach Conspiracy ------------------------------------------------------------- KORY MARIETTA individually and on behalf of all others similarly situated v. KNORR-BREMSE AG; KNORR BRAKE COMPANY; NEW YORK AIR BRAKE CORPORATION; WESTINGHOUSE AIR BRAKE TECHNOLOGIES CORPORATION; and FAIVELEY TRANSPORT NORTH AMERICA INC., Case No. 2:18-cv-00882 (W.D. Pa., July 6, 2018), challenges under the Sherman Act unlawful agreements between three of the world's largest rail equipment suppliers to restrain competition in the labor market in which they compete for employees. Specifically, the Plaintiff alleges, the Defendants and certain of their subsidiaries, collectively agreed not to solicit, recruit, or hire each other's employees without prior approval, or otherwise compete for employees (collectively, the "No-Poach Agreements" or the "No-Poach Conspiracy"). Knorr-Bremse AG is a privately-owned German company with its headquarters in Munich, Germany. Knorr is a global leader in the development, manufacture, and sale of equipment for rail and commercial vehicle systems. Knorr Brake Company is a wholly-owned subsidiary of Knorr incorporated in Delaware with its headquarters in Westminster, Maryland. KBC manufactures train control, HVAC, braking, and door systems used on passenger rail vehicles. New York Air Brake Corporation is a wholly-owned subsidiary of Knorr incorporated in Delaware with its headquarters in Watertown, New York. New York Air Brake manufactures railway air brakes and other rail equipment used on freight trains. Westinghouse Air Brake Technologies Corporation is a Delaware corporation with its headquarters in Wilmerding, Pennsylvania. Wabtec is a publicly-held company. With over 100 subsidiaries globally, Wabtec is the world's largest provider of rail equipment and services with global sales of $3.9 billion in 2017. Wabtec is an industry leader in the freight and passenger rail segments of the rail equipment industry, manufacturing and servicing products such as brake systems, positive train control systems, and new locomotives. Faiveley Transport North America, formerly a subsidiary of Faiveley Transport S.A., is now a wholly owned subsidiary of Wabtec, and is a New York corporation headquartered in Greenville, South Carolina. On November 30, 2016, Wabtec acquired majority ownership of Faiveley Transport S.A., which had been a French societe anonyme based in Gennevilliers, France. Faiveley develops, manufactures, and sells passenger and freight rail equipment to customers in Europe, Asia, and North America, including the United States.[BN] The Plaintiff is represented by: Joel R. Hurt, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC 429 Fourth Avenue Law & Finance Building, Suite 1300 Pittsburgh, PA 15219 Telephone: (412) 281-8400 Facsimile: (412) 281-1007 E-mail: jhurt@fdpklaw.com - and - John C. Evans, Esq. JCEVANS LAW, P.C. 436 7th Avenue Koppers Building, The 26th Floor Pittsburgh, PA 15219 Telephone: (412) 642-2300 Facsimile: (412) 642-2309 E-mail: jcevans@jcevanslaw.com - and - Hollis Salzman, Esq. Kellie Lerner, Esq. ROBINS KAPLAN LLP 399 Park Avenue, Suite 3600 New York, NY 10022 Telephone: (212) 980-7400 Facsimile: (212) 980-7499 E-mail: hsalzman@robinskaplan.com klerner@robinskaplan.com - and - Thomas J. Undlin, Esq. ROBINS KAPLAN LLP 800 LaSalle Avenue, Suite 2800 Minneapolis, MN 55 Telephone: (612) 349-8500 Facsimile: (612) 339-4181 E-mail: tundlin@robinskaplan.com - and - Tai S. Milder, Esq. Aaron M. Sheanin, Esq. ROBINS KAPLAN LLP 2440 West El Camino Real, Suite 100 Mountain View, CA 94040 Telephone: (650) 784-4024 Facsimile: (650) 784-4041 E-mail: tmilder@robinskaplan.com asheanin@robinskaplan.com MDL 2624: Plaintiffs Must Show Cause re Prelim Deal Approval ------------------------------------------------------------ The United States District Court for the Northern District of California, in the case captioned IN RE: LENOVO ADWARE LITIGATION. This Document Relates to All Cases, Case No. 15-md-02624-HSG (N.D. Cal.), orders the parties to show cause why their Motion for Preliminary Approval of Class Action Settlement with Defendant Superfish should not be denied as moot in light of Docket Number 230. A full-text copy of the District Court's July 13, 2018 Order is available at https://tinyurl.com/yat6w7eh from Leagle.com. In Re: Lenovo Adware Litigation, In Re, represented by Jonathan Krasne Levine -- jkl@pritzkerlevine.com -- Pritzker Levine, LLP. Sterling International Consulting Group, Plaintiff, represented by Elizabeth Cheryl Pritzker -- ecp@pritzkerlevine.com -- Pritzker Levine LLP & Jonathan Krasne Levine , Pritzker Levine, LLP. David Hunter, Plaintiff, represented by Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC, Jay Edelson , Edelson PC, Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC & Samuel Lasser -- samlasser@hotmail.com -- Law Office of Samuel Lasser. Lenovo Inc., Defendant, represented by Daniel James Stephenson -- dan.stephenson@klgates.com -- K&L Gates, Amanda G. Ray , Womble Carlyle Sandridge & Rice, PLLC, Betsy Cook Lanzen , Womble Carlyle Sandridge & Rice, PLLC, Hayden J. Silver, III , Womble Carlyle Sandridge & Rice, PLLC, Matthew N. Lowe -- matthew.love@klgates.com -- KL Gates LLP, pro hac vice, Raymond M. Bennett , Womble Carlyle Sandridge & Rice, PLLC, & Rebecca Liu -- Rebecca.liu@klgates.com -- KL Gates LLP. Superfish, Inc., defendant STAYED re Order, Defendant, represented by Rodger R. Cole -- rcole@fenwick.com -- Fenwick & West LLP, Annasara Guzzo Purcell -- apurcell@fenwick.com -- Fenwick and West LLP & Tyler Griffin Newby -- tnewby@fenwick.com -- Fenwick & West LLP. MERCURY SYSTEMS: Klein Law Firm Files Class Action Lawsuit ---------------------------------------------------------- The Klein Law Firm disclosed that class action complaints have been filed on behalf of shareholders of the following companies. If you suffered a loss you have until the lead plaintiff deadline to request that the court appoint you as lead plaintiff. Mercury Systems, Inc. (NASDAQGS: MRCY) Class Period: October 24, 2017 to April 24, 2018 Lead Plaintiff Deadline: September 10, 2018 The complaint alleges that during the class period Mercury Systems, Inc. made materially false and/or misleading statements and/or failed to disclose that: (i) Mercury's decision to in-source processing was adversely impacting Mercury's operating margins and free cash-flow generation and conversion; (ii) Mercury's model was becoming structurally more working capital intensive; (iii) as a result of the foregoing, Mercury's public statements were materially false and misleading at all relevant times. Get additional information about the MRCY lawsuit: http://www.kleinstocklaw.com/pslra-c/mercury-systems?wire=3 Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. There is no cost or obligation to you. If you suffered a loss during the class period and wish to obtain additional information, please; Joseph Klein, Esq. Empire State Building 350 Fifth Avenue 59th Floor New York, NY 10118 Telephone: (212) 616-4899 Fax: (347) 558-9665 Website: www.kleinstocklaw.com Email: jk@kleinstocklaw.com [GN] MIAMI RESEARCH: Court Denies Bid to Approve TCPA Suit Settlement ---------------------------------------------------------------- The United States District Court for the Southern District of Florida denied Plaintiff's Unopposed Motion for Approval of Settlement, Attorney Fees, and Expenses in the case captioned DESIREE MARENGO, Individually and on behalf of all Others similarly situated, Plaintiff, v. MIAMI RESEARCH ASSOCIATES, LLC, d/b/a QPS MIAMI RESEARCH ASSOCIATES, a Florida corporation, Defendant, Case No. 17-cv-20459-JLK (S.D. Fla.). The Plaintiff filed a class action complaint against Defendant MRA alleging that MRA violated the Telephone Consumer Protection Act (TCPA). The TCPA is a federal privacy statute which affords consumers a private right of action. The Plaintiff alleges that in January 2017 she received three automated text message advertisements on her cellular telephone from MRA. The Settlement Agreement provides for a settlement fund requiring the Defendant to pay $130 for each text message submitted by class members. The claims are subject to verification. The settlement requires the Defendant to make available up to $1,236,300 to pay timely and valid claim submissions, including $390,000 for attorneys' fees and costs associated with the notice program and settlement administration. The Court points out that counsel elected not to present adequate proof to enable the Court to approve the Settlement Agreement at this time. On these facts, the Court cannot make the essential finding that this Settlement Agreement is fair and reasonable to the Plaintiff class or that the record supports the Motion for Attorneys' Fees and Costs. The fairness hearing held on April 26, 2018, reflects reliance on conclusory statements from the plaintiff's motion that the plaintiff's lawyer had worked hard on the case and that since the defense counsel agreed, the $390,000 fee must be reasonable and should be ordered by the Court. The Plaintiff did not call an attorney fee expert (or submit an affidavit) regarding the number of hours spent by each counsel, or the hourly rates each of the Plaintiff's three counsel charged to demonstrate consistency with the fee usual and regular charges of the Bar for these services and costs. Judge Middlebrooks in Mahony v. TT of Pineridge, Inc., No. 1780029 Civ, required counsel to submit documentation and sworn declarations supporting a lockestar analysis, including information about the attorney experience for each of the Plaintiff's attorneys, the number of hours billed, and the hourly rate that each attorney charged after it had not been submitted by the plaintiff at his Fairness Hearing. Accordingly, the motion is denied without prejudice to refile after the parties furnish the court with expert witnesses, documents and/or affidavits giving the Court the necessary factual basis, to establish the fairness and reasonableness of the Settlement Agreement and motion for attorneys' fees. Accordingly, based on the totality of the circumstances, the Plaintiff's Motion for Attorney's Fees and for Final Approval of Settlement be and the same is denied without prejudice, to file again in accordance with this order. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/y8dzsph6 from Leagle.com. Desiree Marengo, individually and on behalf of all others simarily situated, Plaintiff, represented by Andrew John Shamis -- ashamis@shamisgentile.com -- Seth Michael Lehrman -- seth@eplllc.com -- Edwards Pottinger, LLC & Manuel Santiago Hiraldo , Hiraldo P.A. Miami Research Associates, LLC, a Florida corporation, Defendant, represented by Ezra D. Church -- ezra.church@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice, Robert Mark Brochin -- bobby.brochin@morganlewis.com -- Morgan, Lewis & Bockius LLP, Brian Michael Ercole -- brian.ercole@morganlewis.com -- Morgan Lewis, Bockius & Clay Matthew Carlton -- clay.carlton@morganlewis.com -- Morgan, Lewis, Bockius LLP. MIDLAND CREDIT: Schwartz Sues over Debt Collections Practices ------------------------------------------------------------- Angelique Schwartz, individually and on behalf of all others similarly situated, the Plaintiff, v. Midland Credit Management, Inc. and John Does 1-25, the Defendants, Case No. 1:18-cv-04675 (N.D. Ill., July 6, 2018), seeks to recover damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to April 11, 2018, an obligation was allegedly incurred to Citibank, N.A. by the Plaintiff. The Citibank obligation arose out of Citibank credit card transactions in which money, property, insurance or services, which were the subject of the transactions, were primarily for personal, family or household purposes. The alleged Citibank obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). Due to her financial constraints, Plaintiff could not pay the alleged debt, and it went into default. Sometime thereafter, the current creditor Midland Funding LLC purportedly purchased the alleged debt from the original creditor Citibank. Creditors Citibank or Midland Funding LLC contracted with the Defendant Midland to collect the alleged debt. Midland collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282 6500 Facsimile: (201) 282 6501 E-mail: ysaks@steinsakslegal.com MONSANTO COMPANY: Morrison Sues over Sale of Herbicide Roundup -------------------------------------------------------------- ALVIN F. MORRISON SR., the Plaintiffs, v. MONSANTO COMPANY, BAYER CORPORATION and BAYER AG, the Defendant, Case No. 4:18-cv-01097-JMB (E.D. Mo., July 6, 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, and Roundup Pro Concentrate. Monsanto Company is an agrochemical and agricultural biotechnology corporation. It was headquartered in Creve Coeur, Greater St. Louis, Missouri.[BN] Attorneys for Plaintiffs: 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 MONSTER BEVERAGE: Settles Class Action Over "Natural" Labeling -------------------------------------------------------------- CPT Group, Inc. on July 16 disclosed that a proposed settlement has been reached in the class action lawsuit Mayan Mooney and Chayla Clay v. Monster Beverage Corp. et al., No. 37-2014-20192-CU-BT-CTL (the "Action"), brought on behalf of the Class, and pending in the Superior Court of California, County of San Diego. The Action alleges that certain products were labeled as being "natural" even though they contained synthetic or artificial ingredients and/or added colors. Monster denies all claims and liability but has agreed to settle to avoid further expense, inconvenience, interference with its ongoing business operation, and burdensome litigation. 1. You are a class member if you fall into either category below: 2. All persons who made a purchase in California between June 19, 2010 and June 12, 2015 of Hansen's Natural Juices (64 oz. bottles or 6.75 oz. boxes) or Hansen's Smoothie Nectars (11.5 oz. cans); or All persons who made a purchase in California between June 19, 2010 and January 1, 2014 of Hubert's Lemonades or Hubert's Half & Half Lemonade Teas. Class Members who made eligible purchases have the right to submit a Claim and receive a Settlement Benefit, which includes a cash reimbursement. To receive a Settlement Benefit, you MUST complete a Claim Form online at www.naturalbeveragesettlement.com by October 12, 2018. This is only a summary. For complete details, including the Claim Form, detailed court documents, and other information, visit www.naturalbeveragesettlement.com or call toll-free 1-888-404-0507. Contact: CPT Group, Inc. Monster Beverage Corporation Class Action Settlement 50 Corporate Park Irvine, Calif. 92606 1-888-404-0507 [GN] MYEXPERIAN INC: Court Conditionally Certifies Opt-in Classes ------------------------------------------------------------ In the lawsuit captioned CHARLES VINSANT, Individually and on behalf of all others similarly situated, et al., the PLAINTIFFS, v. MYEXPERIAN, INC., the DEFENDANT, Case No. 2:18-cv-02056-PKH (W.D. Ark.), the Hon. Judge P.K. Holmes, III entered an order: 1. conditionally certifying case as a collective action pursuant to 29 U.S.C. section 216(b) and authorizing notice to be sent to two classes of potential opt-in plaintiffs: The first opt-in class will consist of: "each hourly-paid supervisor who worked for Defendant MyExperian, Inc., any time after April 13, 2015". The second opt-in class will consist of: "each hourly-paid Customer Care Specialist or Customer Service Representative who worked for Defendant MyExperian, Inc., any time after April 13, 2015. 2. directing Plaintiffs, within 90 days, to distribute notice and file opt-in plaintiffs' signed consent to join forms with the Court; 3. directing Defendant to provide Plaintiffs with the names of each putative class member, including any aliases they may have gone by or go by now and the last known home and work addresses of the worker for the same time period. 4. denying Plaintiffs' request for Defendant to provide cell phone numbers and email addresses for putative class members; 5. permitting Plaintiffs' counsel to mail notice and consent to join forms to all putative class members. 6. permitting Plaintiff's counsel to send follow-up postcard to potential plaintiffs who do not respond within thirty 30 days of sending the notice; 7. denying Plaintiffs' request to disseminate notice via text message or, in the alternative, via email; and 8. approving Plaintiffs' proposed notice, consent to join form, and follow-up postcard subject to the following changes: - Separate notices, consent forms, and postcards shall be sent to the two classes of potential opt-in plaintiffs. The first opt-in class will consist of each hourly-paid supervisor who worked for Defendant MyExperian, Inc., any time after April 13, 2015. The second opt-in class will consist of each hourly paid Customer Care Specialist or Customer Service Representative who worked for Defendant MyExperian, Inc., any time after April 13, 2015. - The follow-up postcard should be titled "Reminder of Right to Join Lawsuit" and should include a disclaimer stating, "The Court does not encourage or discourage participation in this case. NATIONAL BOARD: 4th Cir. Vacates Dismissal of Optometrists' Suit ---------------------------------------------------------------- In the cases, RHONDA L. HUTTON, O.D.; TAWNY P. KAEOCHINDA, O.D. on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. NATIONAL BOARD OF EXAMINERS IN OPTOMETRY, INC., Defendant-Appellee. NICOLE MIZRAHI, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. NATIONAL BOARD OF EXAMINERS IN OPTOMETRY, INC., Defendant-Appellee, Case Nos. 17-1506 and 17-1508 (4th Cir.), Judge Robert Bruce King of the U.S. Court of Appeals for the Fourth Circuit vacated the district court's order dismissing the Complaints for lack of subject-matter jurisdiction, and remanded. These consolidated appeals arise from a breach of personal information maintained in a database of the Defendant, the National Board of Examiners in Optometry, Inc. ("NBEO"). Three optometrists, Hutton, Kaeochinda, and Nicole Mizrahi, as the representatives of the putative class of victims, specify in two complaints that their personal information and that of the class members was stolen in the NBEO data breach. Hutton and Kaeochinda joined in the initial complaint -- which underlies appeal No. 17-1506 -- that was filed in the District of Maryland in August 2016. It alleges five claims, including negligence, breach of contract, and breach of implied contract. The complaint of plaintiff Mizrahi -- which underlies appeal No. 17-1508 -- was filed in that court in September 2016, and alleges claims of negligence, breach of contract, breach of implied contract, and unjust enrichment. All the claims arise from the NBEO's failure to adequately safeguard personal information of the Plaintiffs and the class members. The district court dismissed the Complaints for lack of subject-matter jurisdiction, based on a failure to establish that the Plaintiffs possessed Article III standing to sue. It reasoned, inter alia, that the Complaints had not sufficiently alleged the necessary injury-in-fact and that, in any event, they failed to sufficiently allege that any injuries suffered by the Plaintiffs were fairly traceable to conduct of the NBEO. The Plaintiffs have appealed the judgments of dismissal and the appeals have been consolidated. In these appeals, the Plaintiffs seek a reversal of the district court's dismissal of the Hutton and Mizrahi Complaints for lack of standing to sue. They primarily argue that the court erred by making factual determinations to support its ruling. More specifically, the Plaintiffs maintain that they made sufficient allegations of injury-in-fact deriving from the NBEO data breach that are not at all speculative. On the other hand, the NBEO asks the Court to affirm the dismissal ruling in the district court's Opinion. It contends that the Plaintiffs' assignment of blame to the NBEO is fatally flawed, in that their allegations derive from discussions in Facebook groups and assume that the personal information divulged in the NBEO data breach had a single source. The NBEO maintains that the Opinion was correctly decided, and that the allegations of an NBEO data breach are speculative and conclusory. Judge King is satisfied that the Plaintiffs have standing to sue. He finds that the Complaints contained sufficient allegations that the NBEO was a plausible source of the Plaintiffs' personal information. Accordingly, the Complaints contain sufficient factual matter to render the Plaintiffs' allegations plausible on their face with respect to traceability. In these circumstances, the standing elements of injury-in-fact and traceability are both sufficiently alleged in the Complaints. And the third standing element -- redressability -- has not been and is not contested by the NBEO. As a result, the district court erred in dismissing the Complaints for lack of standing to sue. For these reasons, Judge King vacated the judgment of the district court and remanded for such other and further proceedings as may be appropriate. A full-text copy of the Court's June 12, 2018 Order is available at https://is.gd/59FRHv from Leagle.com. ARGUED: Norman E. Siegel, STUEVE SIEGEL HANSON, LLP, Kansas City, Missouri, for Appellants. Claudia Drennen McCarron -- mccarron@mullen.law -- MULLEN COUGHLIN LLC, Wayne, Pennsylvania, for Appellee. ON BRIEF: Barrett J. Vahle -- vahle@stuevesiegel.com -- J. Austin Moore -- moore@stuevesiegel.com -- STUEVE SIEGEL HANSON, LLP, Kansas City, Missouri; Hassan A. Zavareei -- hzavareei@tzlegal.com -- TYCKO & ZAVEREEI LLP, Washington, D.C., for Appellants Rhonda L. Hutton and Tawny P. Kaeochinda, Michael Liskow, New York, New York, Carl Malmstrom -- malmstrom@whafh.com -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLP, Chicago, Illinois; Donald J. Enright -- denright@zlk.com -- LEVI & KORSINSKY LLP, Washington, D.C., for Appellant Nicole Mizrahi. NEW DOMINION: Trial in Earthquake Class-Action Lawsuit Delayed -------------------------------------------------------------- Adam Wilmoth, writing for NewsOK, reports that the trial in a class-action lawsuit over the 2011 earthquakes near Prague has been delayed pending an appeal. The lawsuit claims Tulsa-based oil company New Dominion LLC is responsible for damage caused by the 2011 earthquakes near Prague. Judge Lori Walkley in May ruled that the class includes Oklahoma citizens with residential or business property in nine central Oklahoma counties that sustained damage from the November 2011 earthquakes. The class includes properties in Cleveland, Creek, Lincoln, Logan, Oklahoma, Okfuskee, Payne, Pottawatomie and Seminole counties. A trial had been scheduled for September, but the judge and attorneys have agreed to the delay to allow New Dominion attorneys to appeal the class-action ruling. "This wasn't unexpected at all," said Scott Poynter, Esq. -- scott@poynterlawgroup.com -- the attorney representing the affected home and business owners. "Most state jurisdictions have an appellate rule on class certifications allowing either side to immediately appeal that order." The appeal process likely will take at least six to nine months, Poynter said. "No matter how that appeal comes out, we will come back to Judge Walkley after the appeal is decided and work with her on a new schedule," he said. Still, Poynter said he feels confident the case will continue as a class action.[GN] NEW JERSEY: Edna Mahan Inmates Win Early Victory in Class Action ---------------------------------------------------------------- Nick Muscavage, writing for My Central Jersey, reports that inmates of the Edna Mahan Correctional Faculty for Women (EMCFW) have won an early victory in their class action lawsuit against the New Jersey Department of Corrections (NJDOC). A motion for a partial summary judgment, granted July 6 by Mercer County Superior Court Judge Kay Walcott-Henderson, was announced by the law firm of Stark & Stark. The lawsuit alleges Edna Mahan is a place of public accommodation subject to the New Jersey Law Against Discrimination (LAD), which the judgment granted. The judgment marks the first time a state Superior Court has explicitly held that LAD extends to apply to prisoners, according the law firm. The lawsuit, filed in conjunction with the law firm of Barry, Corrado, Grassi & Gillin-Schwartz, alleges decades of "rampant and unchecked sexual assault and harassment of female inmates by prison employees," according to Stefanie Colella-Walsh, Esq. -- scolella-walsh@stark-stark.com -- of Stark & Stark. The lawsuit was filed in March on behalf of thousands of potential female class members. The state Department of Corrections declined to comment. Edna Mahan in Union Township (Hunterdon), the state's only prison for women, has been rocked by a sexual abuse scandal after seven employees were arrested and charged. Six of the seven were corrections officers and the other was a trade instructor. Of the seven, three corrections officers and the trade instructor have pleaded guilty. Most recently, Ahnwar Dixon, of East Orange, pleaded guilty on uly 10 to three counts of second-degree official misconduct. "Ahnwar Dixon's guilty plea comes on the heels of a jury convicting a fellow corrections officer for crimes based on sexual conduct with inmates," said Hunterdon County Prosecutor Anthony P. Kearns III, Esq. -- prosecutor@co.hunterdon.nj.us -- who prosecuted the case. "As a society, we hold corrections officers to the same high standard that we hold all public officials." In May, senior corrections officer Jason Mays was convicted by a jury of sexual assault, criminal sexual contact, official misconduct and pattern of official misconduct following a six-week trial. In 2017, senior corrections officer Thomas Seguine and institutional trade instructor Joel Herscap both pleaded guilty to, and were sentenced to prison for, official misconduct. In February, the Senate Law and Public Safety Committee held a hearing to hear testimony from former Edna Mahan inmates about abuse endured at the prison. In May, the U.S. Department of Justice announced a federal probe of the facility. "An environment of sexual terror pervaded the EMCFW grounds. Stark & Stark has sought to protect the rights of those injured, and force the NJDOC to take appropriate corrective action to end this widespread environment of harassment and discrimination against women at risk," Martin Schrama, Esq. -- mschrama@stark-stark.com -- of Stark & Stark, said. Pursuant to LAD, freedom from discrimination is a civil right. The class action complaint goes on to allege the environment at Edna Mahan is discriminatory based on the sex of the female inmates, and the sexual harassment and discrimination at the facility has been so severe and pervasive that it constitutes a hostile and abusive environment in violation of the LAD. "The NJDOC knew, or should have known, of the environment of rampant threats and sexual abuse at EMCFW, which was especially harmful, considering the vulnerable status of those women incarcerated there," said Oliver Barry, Esq. -- obarry@capelegal.com -- of Barry, Corrado, Grassi & Gillin-Schwartz. The attorneys representing the plaintiffs will continue to push forward. "We are prepared to be at the forefront of protecting women at risk in sexually abusive environments," Colella-Walsh said.[GN] NEW ZEALAND POST: Courier Drivers May Need Litigation Funding ------------------------------------------------------------- Litigation Finance Journal reports that numerous independent courier drivers in New Zealand are floating the idea of a class action against employers such as the New Zealand Post, for violating fair compensation laws. The group has the backing of a former Chief Judge of the Employment Court who said it would be "worthwhile" for the couriers to file a class action if they can prove they make less than the minimum wage.[GN] NHL: Federal Judge Denies Class-Action Status in Concussion Suit ---------------------------------------------------------------- ABC 5 Eyewitness News reports that former players suing the National Hockey League for promoting fighting and violence while downplaying the risks of concussions and repeated head hits suffered a significant setback in federal court on July 13 in St. Paul. Judge Susan Nelson denied the players' motion to have the lawsuit certified as a class action, which would have allowed all retired NHL players to join the case. More than 150 players -- including more than a dozen from Minnesota -- are seeking medical monitoring for long-term brain diseases such as Chronic Traumatic Encephalopathy (CTE). They claim those diseases are directly linked to the repeated head hits, collisions and punches they sustained during their playing careers. The ruling means the players will now have to challenge the league on a case-by-case basis. In her 45-page ruling, Nelson wrote, "The Court is sympathetic to the significant cost and the likelihood of duplicative proof in trying this case many times, for each individual player." She added, "....resolving these claims in a single class action would present significant case management difficulties." Minneapolis-based attorneys representing the players declined comment on July 13 ruling. The players first filed the lawsuit five years ago, and had anxiously been awaiting a ruling on their motion to form a class action for several months. 5 EYEWITNESS NEWS detailed the players' legal battle last year in a special series called "Fighting Back." A review of thousands of court records, league memos and internal emails found NHL executives had privately worried about the consequences of fighting and repeated head hits for decades. However, those executives have consistently denied the players' claims in public and in court, while maintaining it is too early to definitively link long-term health effects like CTE to hockey. An NHL spokesperson did not return messages seeking comment.[GN] OKLAHOMA: Medical Marijuana Advocates Mull Class Action ------------------------------------------------------- KFOR-TV reports that medical marijuana advocates say they are prepared to take their fight to court. "We will absolutely throw the book at them with class-action lawsuits on behalf of patients. We won't be railroaded," Chip Paul, with Oklahomans for Health, said. "We simply want our state question implemented and properly regulated." Now, the Oklahoma County and Tulsa Republic Parties are calling on state lawmakers to get involved to "reinstate the will of the people and do whatever is needed to oust the bureaucratic authoritarians within the Oklahoma State Board of Health," a news release from the group read. "We ask that they move as quickly as possible to resolve this matter. Our country is a constitutional republic, and state government, under the United States Constitution and its amendments, is supposed to respect the voice of the people and due process. The actions by the OSBH are truly repugnant. Not only did they show no regard for the will of the people, but that they are truly part of the governmental swamp that seeks to legislate outside the republican form of government," said Oklahoma County Republican Chairman Daren Ward. The group says the Oklahoma State Board of Health drafted rules that were "counter to the language in the ballot measure and created a compromised medical marijuana system that hinders access to patients and discourages qualified medical professionals from taking part." "The 'we know better attitude' expressed by the OSBH and the shocking approval by our current Governor shows contempt for the liberties and the rights we express at the ballot box as citizens," said Tulsa County Republican Chairman David McLain. "I call on all Republicans to contact your legislators, from either party, and ask for a quick resolution to this desecration of the citizens' voice." Republican leadership announced plans to create a bipartisan working group with House and Senate members who will work with medical marijuana stakeholders. "The Oklahoma Senate will not undo the will of voters, who spoke loudly by passing State Question 788," said Senate Majority flood leader Greg Treat, R-Oklahoma City. "While the Health Department and its commissioner did yeoman's work in drafting emergency rules, the Board of Health's adoption of last-minute amendments without public comments has undermined the public's confidence in the system. Lawmakers have the ability to amend this law as we move forward to address any issues which may arise. Republican groups calling on lawmakers to "reinstate the will of the people" for medical marijuana. A local GOP group is speaking out following a controversial decision by the state's Board of Health regarding the rules for medical marijuana. On July 17, the Board of Health approved emergency rules on medical marijuana, with two specific exceptions. Under the new emergency rules, smokable forms of medical marijuana would be banned from sale in dispensaries. According to Interim Health Commissioner Tom Bates, licensed medical marijuana users would still be allowed to use it if it was grown themselves. "To allow smokable forms would be a step back as protectors of public health in Oklahoma and certainly reasonable people can differ on that," Commissioner Bates said. [GN] ORMAT TECH Cohen Milstein Investigates Possible SEC Violations -------------------------------------------------------------- Cohen Milstein Sellers & Toll PLLC is conducting an investigation to determine whether Ormat Technologies, Inc. ("Ormat" or the "Company") and certain of its officers and directors made false and misleading statements and/or omissions in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. A class action lawsuit was filed in the U.S. District Court for the District of Nevada by another law firm on behalf of purchasers of the common stock of Ormat Technologies, Inc. (NYSE: ORA) between August 8, 2017 and May 15, 2018, inclusive (the "Class Period"). The complaint alleges that Ormat and certain of its officers and directors ("Defendants") misrepresented and/or failed to disclose that: (1) there were errors in the income tax provision related to Ormat's valuation allowance based on its ability to utilize foreign tax credits in the U.S. prior to their expiration; (2) Ormat netted certain deferred income tax assets and deferred income tax liabilities across different tax jurisdictions in violation of U.S. GAAP; (3) Ormat's internal controls over financial reporting were ineffective during the Class Period, (4) Ormat would need to restate its second, third, and fourth quarter 2017 financial statements, as well as its full-year 2017 financial statements; and (5) as a result, Defendants statements about Ormat's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On May 11, 2018, Ormat announced a delay in filing its first quarter 2018 Form 10-Q because "management has identified an error in the Company's financial statement presentation of deferred income tax assets and deferred income tax liabilities that affects the Company's balance sheets in previous reporting periods." Ormat continued: Specifically, the Company netted certain deferred income tax assets and deferred income tax liabilities across different tax jurisdictions that are not permitted to be netted pursuant to United States generally accepted accounting principles. The Company is evaluating the impact of this error on its consolidated financial statements and the extent to which the Company's annual and quarterly consolidated financial statements filed in previous periods require revision or amendment. Further, the Company is in the process of evaluating the control implications of this error as it relates to the material weakness disclosures previously made in the Annual Report on Form 10-K for the year ended December 31, 2017. The price of Ormat shares fell from $56.19 on May 11, 2018 to $52.77 on May 14, 2018. On May 16, 2018, Ormat announced "it will restate its second, third and fourth quarter 2017 financial statements and its full-year 2017 financial statements." Ormat continued: The decision to restate these financial statements is based on the Company's conclusion that there were errors in the income tax provision primarily relating to the Company's valuation allowance based on the Company's ability to utilize foreign tax credits in the U.S. prior to their expiration. Additionally, the Company netted certain deferred income tax assets and deferred income tax liabilities across different tax jurisdictions that are not permitted to be netted pursuant to United States generally accepted accounting principles. The restatement is expected to impact the "income tax (provision) benefit" line item in the Company's statements of operations, with associated impacts to net income and earnings per share and the "deferred income taxes" line items on its balance sheet. In connection with the restatement of the full-year 2017 financial statements, the Company will also make revisions to the same line items in certain quarterly financial statements for 2016 and its full-year 2016 and 2015 financial statements. The price of Ormat shares fell from $53.02 on May 15, 2018 to $52.35 on May 16, 2018. Cohen Milstein encourages all investors who purchased Ormat common stock between August 8, 2017 and May 15, 2018, or former employees with information concerning this matter to contact the firm. If you are an Ormat shareholder and would like to discuss your right to recover for your economic loss, you may, without any cost or obligation, call Cohen Milstein's Managing Partner, Steven J. Toll at (888) 240-0775 or (202) 408-4600, or email him at stoll@cohenmilstein.com. If you wish to serve as lead plaintiff, you must move the Court no later than August 10, 2018 to request appointment. Any member of the proposed class may retain Cohen Milstein or other attorneys to serve as your counsel in this action, or you may do nothing and remain an absent class member. Cohen Milstein has significant experience in prosecuting investor class actions and actions involving securities fraud, and is active in major litigation pending in federal and state courts throughout the nation. Cohen Milstein has taken a lead role in numerous important cases on behalf of defrauded investors, and has been responsible for a number of outstanding recoveries which, in the aggregate, total billions of dollars. Prior results do not guarantee a similar outcome. For more information visit www.cohenmilstein.com. If you have any questions about this notice or the action, or with regard to your rights, please contact either of the following: Steven J. Toll, Esq. Robin Bleiweis Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Fifth Floor Washington, D.C. 20005 Telephone: (888) 240-0775 (202) 408-4600 Email: stoll@cohenmilstein.com rbleiweis@cohenmilstein.com [GN] ORNUA FOODS: Myers-Taylor Files Class Suit Over False Advertising ----------------------------------------------------------------- Dyami Myers-Taylor, an individual on behalf of himself and all others similarly situated and the general public v. Ornua Foods North America, Inc.; Ornua Co-operative Limited; and DOES 1 through 25, inclusive, Case No. 3:18-cv-01538-H-MDD (S.D. Cal., July 6, 2018), is brought on behalf of consumers, who were allegedly misled into purchasing Kerrygold Products due to false and misleading advertising. The Kerrygold Products include: Salted Butter, Unsalted Butter, Naturally Softer Pure Irish Butter, Garlic & Herb Butter, Reduced Fat Irish Butter, Irish Butter With Canola Oil, which are manufactured, packaged, marketed, advertised, distributed and sold by the Defendants through supermarket chains and retail stores in California and throughout the United States. Mr. Myers-Taylor contends that he and the Proposed Class would not have purchased or paid a price premium for the Kerrygold Products had they known that the representations, "Milk From Grass-fed Cows", "Made with milk from grass-fed cows not treated with rBST or other growth hormones", "All Natural", and "100% Pure and Natural" were false, deceptive and/or misleading. Ornua Foods North America, Inc., is an New York corporation with its headquarters in Evanston, Illinois. Ornua Co-operative Limited is an Irish corporation with its headquarters in Dublin, Ireland. The true names and capacities of the Doe Defendants are unknown to the Plaintiff at this time.[BN] The Plaintiff is represented by: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 600 W Broadway, Suite 700 San Diego, CA 92101-3370 Telephone: (619) 272-7014 Facsimile: (619) 330-1819 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq. LAW OFFICES OF ROSS CORNELL APC 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Telephone: (562) 612-1708 Facsimile: (562) 394-9556 E-mail: ross.law@me.com OVATION CREDIT: Wagner Sues Over Illegal Telemarketing Calls ------------------------------------------------------------ Eric Wagner and Darlene Bauman, individually and on behalf of others similarly situated, Plaintiffs, v. Ovation Credit Services, Defendant, Case No. 18-cv-00681, (M.D. Fla., May 24, 2018), seeks actual and statutory damages, injunction requiring Defendant and Defendant's agents to cease all unsolicited telephone calling activities, prejudgment and post-judgment interest on monetary relief, reasonable attorneys' fees and court costs and all other and further relief pursuant to the Telephone Consumer Protection Act. Ovation Credit -- www.ovationcredit.com -- is a credit repair service in Jacksonville FL. It attempted to promote its services to the Plaintiffs via autodialed telephone calls. [BN] Plaintiffs are represented by: Scott Wellikoff, Esq. ADLER WELLIKOFF PLLC 1300 N. Federal Highway, Suite 107 Boca Raton, FL Tel: (561) 508-9591 Email: swellikoff@adwellgroup.com PA FIRE RECOVERY: Accused by LaMonaca Suit of Violating FDCPA ------------------------------------------------------------- VINCENT A. LAMONACA, on behalf of himself and all others similarly situated v. PA FIRE RECOVERY SERVICE, Case No. 1:18-cv-11419 (D.N.J., July 6, 2018), alleges that the Defendant's debt collection practices violate the Fair Debt Collection Practices Act. PA Fire Recovery Service is located in Macungie, Pennsylvania. Recovery regularly engages in the collection of consumer debt through the use of the mails.[BN] The Plaintiff is represented by: James A. Francis, Esq. David A. Searles, Esq. FRANCIS & MAILMAN, P.C. Land Title Building, Suite 1902 100 South Broad Street Philadelphia, PA 19110 Telephone: (215) 735-8600 E-mail: jfrancis@consumerlawfirm.com dsearles@consumerlawfirm.com PENNSYLVANIA: HB 2025 to Order Lead Testing in Schools Amid Suit ---------------------------------------------------------------- Altoona Mirror reports that whether or not state House Bill 2025 becomes law Pennsylvania school districts should comply with the proposed law's intent of having all school buildings' water tested for presence of lead, a neurotoxin interferes with children's ability to learn and develop. It's puzzling that the issue of lead in school water is only now getting the attention in Pennsylvania that it has long deserved. The dangers associated with lead-based paint were recognized many years ago. If the proposed measure is enacted, the state should consider reimbursing districts for the cost of the first round of mandated testing. That would serve two purposes: It presumably would help get the testing process started more quickly, and it would address the reality that most school districts, after they've drawn up their annual budget, have few extra dollars available for new mandates from Harrisburg or Washington, D.C. Delaying the testing until a new budget year would represent bad judgment. The current state budget passed in June encourages school districts to conduct testing for lead in water, without specifically mandating it. House Bill 2025 would require regular lead testing for all schools' drinking water, as well as a report to the public about the tests' findings. A statement attributed to Rep. Karen Boback, a Republican House member from Dallas, Luzerne County, says that the water-testing recommendation that passed in conjunction with the 2018-19 state budget "is not a substitute for comprehensive legislation" aimed at keeping children safe. HB 2025 has been referred to the House Education Committee, which hopefully will be expeditious in weighing the measure and forwarding it to the full House. The measure has attracted more than 70 co-sponsors and otherwise continues to receive strong bipartisan support. The reason why HB 2025 would be valuable is because it would focus on the condition of water once it has entered school buildings. It would answer the question of whether the school whose water is being tested has a problem on its property or within its walls that is compromising the safety of the water that students are drinking. Few people familiar with the Butler Area School District in western Pennsylvania would have envisioned a problem with the water in that district's schools. However, a class-action complaint filed last year in the U.S. District Court for the Western District of Pennsylvania alleged that the Butler district permitted students to consume drinking water from two of its wells that contained lead levels about 200 percent to 300 percent above what's acceptable. On a brighter note, the Tyrone Area School District is one of the school systems in this region that hasn't needed a recommendation or mandate from the state regarding water testing. All of Tyrone Area's buildings were tested two years ago, and no lead reportedly was detected. The statewide citizen-based environmental advocacy organization PennEnvironment says it's now not clear how many schools might have dangerous levels of lead in their water, but that where tests have been performed across the commonwealth, many of the results have been troubling. As now written, HB 2025 would have the power to shine some badly needed light. Lawmakers should make the bill's passage a priority. [GN] PERU: NAACP Chapter Mulls Class Action Against City of Lima ----------------------------------------------------------- Britt Salay, writing for Hometown Stations, reports that the Lima NAACP Chapter announced on July 15 that they plan to file a class action lawsuit against the City of Lima. In a press conference in front of the city offices, chapter president Ron Fails announced that the NAACP plans to file a class action lawsuit on behalf of at least six former city employees who have allegedly experienced discrimination in the form of racism, nepotism, and intimidation from people in power. Mr. Fails says the NAACP wants to make sure that every employee is being treated fairly, regardless of color. "These departments are not holding people accountable to ensure that people are treated fairly and people are given the support that they need to succeed," says Mr. Fails. Mr. Fails did not say when they plan on filing, and he declined to name any of the former employees involved or what departments they worked for. [GN] PINNACLE A ROOFING: Paredes Suit Moved to S.D. Florida ------------------------------------------------------ The class action lawsuit titled Daniel D. Paredes, and other similarly situated individuals, the Plaintiff, v. Pinnacle A Roofing Company, the Defendant, Case No. 18-014049-CA-01, was removed from the 11th Judicial Circuit, to the U.S. District Court for the Southern District of Florida (Miami) on July 6, 2018. The District Court Clerk assigned Case No. 1:18-cv-22719-DPG to the proceeding. The case is assigned to the Hon. Judge Darrin P. Gayles. Pinnacle A Roofing Company is an independently owned full-service roofing and waterproofing company that since its founding in 1996, has served South Florida as well as other areas in the state of Florida and the U.S. including New York, New Jersey, and Connecticut.[BN] The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, 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: agp@rgpattorneys.com The Defendant is represented by: Carlo D Marichal, Esq. LAW OFFICE OF LORRAINE LESTER 1200 South Pine Island Rd., Suite 750 Plantation, FL 33324 Telephone: (954) 424 4676 Facsimile: (866) 696 7828 E-mail: carlo.marichal@cna.com POLARITYTE INC: Faces Lawi Securities Suit Over Share Price Drop ---------------------------------------------------------------- YEDID LAWI, Individually and on Behalf of All Others Similarly Situated v. POLARITYTE, INC., DENVER LOUGH, and JEFF DYER, Case No. 2:18-cv-00541-PMW (D. Utah, July 6, 2018), seeks to recover compensable damages caused by the Defendants' alleged violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. On April 7, 2017, PolarityTE announced the closing of a transaction through which the Company purchased Dr. Denver Lough's pending Patent #14/954,335 in exchange for over $104 million of PolarityTE stock. Just one week prior to the closing of the transaction, on March 31, 2017, Dr. Lough received a notice of non-final rejection of the Patent by the U.S. Patent and Trademark Office ("USPTO"). On June 4, 2018, the USPTO issued a final rejection for the Patent. In June 2018, Citron Research published a report exposing the Defendants' failure to disclose the USPTO's March 31, 2017 notice of non-final rejection of the Patent and highlighting the USPTO's June 4, 2018 final rejection of the Patent. On this news, PolarityTE's share price fell $10.59, or 27.3%, to close at $28.14 on June 26, 2018, according to the complaint. PolarityTE is incorporated in Delaware, and its principal executive offices are located in Salt Lake City, Utah. The Individual Defendants are directors and officers of the Company. PolarityTE purports to be a commercial-stage biotechnology and regenerative biomaterials company focused on discovering, designing and developing a range of regenerative tissue products and biomaterials for the fields of medicine, biomedical engineering and material sciences. The Company's key development is SkinTE, which is intended to be used by physicians or other appropriate healthcare providers for homologous uses of skin tissues/integument.[BN] The Plaintiff is represented by: Jon V. Harper, Esq. HARPER LAW, PLC P.O. Box 581468 Salt Lake City, UT 84158 Telephone: (801) 910-4357 E-mail: jharper@jonharperlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Corey D. Holzer, Esq. HOLZER & HOLZER, LLC 1200 Ashwood Parkway, Suite 410 Atlanta, GA 30338 Telephone: (770) 392-0090 Facsimile: (770) 392-0029 E-mail: cholzer@holzerlaw.com POLARITYTE INC: Pomerantz Law Firm Files Class Action Lawsuit ------------------------------------------------------------- Pomerantz LLP announces that a class action lawsuit has been filed against PolarityTE ("PolarityTE" or the "Company") (NASDAQ:COOL) and certain of its officers. The class action, filed in United States District Court, District of Utah, and docketed under 18-cv-00541, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired PolarityTE securities between March 31, 2017 and June 22, 2018, both dates inclusive (the "Class Period"). Plaintiff seeks to recover compensable damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased PolarityTE securities between March 31, 2017, and June 22, 2018, both dates inclusive, you have until August 27, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. PolarityTE purports to be a commercial-stage biotechnology and regenerative biomaterials company focused on discovering, designing and developing a range of regenerative tissue products and biomaterials for the fields of medicine, biomedical engineering and material sciences. The Company's key development is SkinTE, which is intended to be used by physicians or other appropriate healthcare providers for homologous uses of skin tissues/integument. Patients who have suffered from an event, disease, process or acquired deficit that results in the functional loss or void of skin/integument systems can receive SkinTE as an adjunct and/or in place of split-thickness skin grafting, full-thickness grafting, temporizing skin coverage and/or skin substitute products. On April 7, 2017, PolarityTE announced the closing of a transaction through which the Company purchased Dr. Denver Lough's ("Lough") pending Patent #14/954,335 (the "Patent") in exchange for over $104 million of PolarityTE stock. Just one week prior to the closing of the transaction, on March 31, 2017, Dr. Lough received a notice of non-final rejection of the Patent by the U.S. Patent and Trademark Office ("USPTO"). The USPTO mailed Dr. Lough a letter indicating the non-final rejection of the Patent on April 7, 2017—the same day that the transaction closed. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, PolarityTE made false and/or misleading statements and/or failed to disclose that: (i) the USPTO issued a notice of non-final rejection of the Patent before PolarityTE acquired it in exchange for over $104 million of Company stock in April 2017; (ii) the USPTO issued a final rejection of the Patent on June 4, 2018; and (iii) as a result, PolarityTE's public statements were materially false and misleading at all relevant times. On June 25, 2018, Citron Research published a report exposing the Defendants' failure to disclose the USPTO's March 31, 2017 notice of non-final rejection of the Patent and highlighting the USPTO's June 4, 2018 final rejection of the Patent. On this news, PolarityTE's share price fell $10.59, or 27.3%, to close at $28.14 on June 26, 2018. Robert S. Willoughby,Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Email: rswilloughby@pomlaw.com [GN] PRICEWATERHOUSECOOPERS: Avoids Age Bias Class Action, For Now ------------------------------------------------------------- Patrick Dorrian, writing for Bloomberg BNA, reports that older applicants who were denied jobs by PricewaterhouseCoopers can't bring their age discrimination in hiring claims on behalf of a nationwide class, at least for now, a federal judge in San Francisco ruled. The case is the latest case to challenge the legality of the age-old practice of on-campus recruiting and similar hiring practices -- such as "maximum" experience limits for applicants -- that target younger workers. Lead plaintiffs Steve Rabin and John Chapman made the mistake of including in their proposed class job applicants who weren't qualified for the jobs they sought. Rabin and Chapman also included workers who didn't actually apply for jobs with PwC because they believed they were deterred from doing so. Rabin and Chapman, however, were both qualified for the jobs they wanted and actually applied for them. That meant the two men weren't similar enough to the class they sought to represent, the court said. The class proposed by Rabin and Chapman could have boasted as many as 14,000 members. Rabin and Chapman's bias allegations include accusations that the accounting giant discriminates against entry-level applicants over age 40 by focusing its recruiting efforts on college campuses and mostly hiring directly from colleges and universities. Rabin and Chapman say PwC uses a recruitment tool that can only be accessed by those with a current college affiliation. It's part of the company's plan to hire predominantly millennial age workers for its assurance and tax business lines and peg all older workers as a "bad fit," they say. PwC efforts to attract millennials extend to how the firm presents itself on social media and to the types of office events it hosts for workers, including trips to Disney World. The July 26 ruling by Judge Jon S. Tigar of the U.S. District Court for the Northern District of California, however, is "without prejudice." Rabin and Chapman have 30 days to file an amended class certification motion to see if they can join forces with other older job seekers across the country who believe PwC turned them away for employment because of their age. Plaintiffs Will Amend Class Bid A lawyer for Rabin and Chapman told Bloomberg Law July 26 that they will amend their motion and renew their class certification bid. Tigar may have suggested a quick way for Rabin and Chapman to at least partly salvage their original proposed class in finding that they aren't similar enough to rejected applicants who were unqualified to represent their interests in the case. The pair argued that not including unqualified applicants in the class means they'll be unable to challenge what they see as hiring bias in the process PwC uses to screen job candidates. "While there may be merit" to that argument, they'll have to "find another way to challenge discrimination in the initial screen," perhaps by adding a new named plaintiff to their case, the judge said. Inadvertent Bias? While on-campus recruiting isn't news, the case involves the novel legal question of whether workers 40 and over may sue for unintended age discrimination that occurs during the hiring process. The federal Age Discrimination in Employment Act makes clear that older workers are protected against intentional age bias in hiring and against intentional and unintentional bias after they've been hired. Tigar ruled in February 2017 that PwC must defend against Rabin and Chapman's allegations of unintentional age bias. But other federal courts have disagreed about whether the ADEA bans hiring policies that inadvertently favor younger workers. The U.S. Supreme Court recently declined to review whether the 40-plus crowd can sue for hiring bias when there is proof only of inadvertent mistreatment, not intentional unfairness. The justices may ultimately get another opportunity to look at the question depending on how Rabin, Chapman, and the other class members fare on their claims against PwC. The Bureau of Labor Statistics reports there are nearly 86 million people over 40 in the active labor force -- so the answer could affect many workers' prospects for finding a job in a new field should market shifts or other events make it necessary. While unemployment rates for workers 40 and over generally are lower than for their under-40 counterparts, BLS also reported in 2014 that those 40 and over tend to stay unemployed longer when they lose their jobs. In addition, another 94 million-plus Americans currently aren't in the labor force, and 70 percent of those potential workers are 40 or over. Moreover, the BLS reported in May 2017 that the labor force participation rate is expected to increase fastest for people ages 65 to 74, and 75 and older, through 2024 as poor planning or other limitations of retiring are forcing more and more people to work into their later years. Outten & Golden LLP, Liu Law Firm P.C., and AARP Foundation Litigation represent Rabin and Chapman. Kirkland & Ellis LLP represents PricewaterhouseCoopers. The case is Rabin v. PricewaterhouseCoopers LLP, N.D. Cal., No. 3:16-cv-02276, motion for conditional class certification denied 7/26/18.[GN] QUALCOMM ANTITRUST: Key et al. Seek Certification of Class ---------------------------------------------------------- In the lawsuit RE: QUALCOMM ANTITRUST LITIGATION, Case No. 5:17-md-02773-LHK (N.D. Cal.), a group of Plaintiffs will move the Court on September 27, 2018, for certification of a class consisting of: "all natural persons and entities in the United States who purchased, paid for, and/or provided reimbursement for some or all of the purchase price for all UMTS, CDMA (including CDMAone and cdma2000) and/or LTE cellular phones ("Relevant Cellular Phones") for their own use and not for resale from February 11, 2011, through the present (the “Class Period") in the United States. This class excludes (a) Defendant, its officers, directors, management, employees, subsidiaries, and affiliates; (b) all federal and state governmental entities; (c) all persons or entities who purchased Relevant Cellular Phones for purposes of resale; and (d) any judges or justices involved in this action and any members of their immediate families or their staff. The Plaintiffs also move the Court for appointment of Sarah Key, Terese Russell, Carra Abernathy, Leonidas Miras, and James Clark as Class Representatives, and for appointment of Kalpana Srinivasan of Susman Godfrey L.L.P. and Joseph W. Cotchett of Cotchett, Pitre & McCarthy, LLP as Class Counsel. Attorneys for Plaintiffs: Kalpana Srinivasan, Esq. SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067-6029 Telephone: (310) 789 3100 Facsimile: (310) 789 3150 E-mail: ksrinivasan@susmangodfrey.com - and - Joseph W. Cotchett, Esq. COTCHETT, PITRE & McCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697 6000 Facsimile: (650) 697 0577 E-mail: jcotchett@cpmlegal.com QUALITY CARE: Settles Shareholder Class Action Over Merger ---------------------------------------------------------- Lois A. Bowers, writing for McKnight's Senior Living, reports that less than two weeks before a special meeting at which shareholders will vote on whether to merge with fellow real estate investment trust Welltower, Quality Care Properties announced on July 13 that it had reached an agreement to resolve two related class action lawsuits against the company and members of its board of directors. The resolutions occurred on July 11, the company said in a filing with the Securities and Exchange Commission. Bethesda, MD-based QCP had revealed the lawsuits, filed in late June in U.S. District Court for the District of Maryland by Todd Sanderson and Michael Kent, in a July 2 SEC filing, saying the actions were "without merit." Sanderson and Kent, described by QCP as "purported" shareholders, claimed that QCP and its directors violated the Exchange Act because some public disclosures contained in a June 21 proxy statement related to the merger allegedly were "false and misleading," the company said. On July 13, the company said that it agreed to amend its proxy statement to ensure that the lawsuits did not delay the special meeting and to "minimize the substantial expense, burden, distraction and inconvenience of continued litigation." The added information includes financial projections for the company as well as some information regarding the sale process leading up to the merger agreement. It also clarifies whether QCP financial adviser Lazard Freres & Co. LLC has a conflict of interest related to the merger. "The resolution of the actions is not, and should not be construed as, an admission of wrongdoing or liability by any defendant," QCP said. "Furthermore, nothing in this report or the resolution of the actions shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth in this report." [GN] RED EYE: Court Reconsiders Denial of Arbitration in Wage Suit ------------------------------------------------------------- The United States District Court for the Southern District of California granted Defendant's Motion for Reconsideration in the case captioned CIERRA DAVIS, on behalf of herself and on behalf of other current and former employees similarly situated et al., Plaintiffs, v. RED EYE JACK'S SPORTS BAR, INC., a Nevada Corporation doing business as Cheetahs Gentleman's Club, doing business as Cheetahs Nightclub, et al., Defendants, Case No. 3:17-cv-01111-BEN-JMA (S.D. Cal.). Davis asserts claims against the Defendants for: (1) violation of 29 U.S.C. Section 206(a) failure to pay minimum wage under the Fair Labor Standards Act (FLSA); (2) violation of multiple sections of the California Labor Code for failure to pay wages, overtime, provide adequate rest and meal breaks, and reimbursement of necessary work expenditures; and (3) conversion. The Defendants previously moved for arbitration on the grounds that Davis agreed to submit the claims she alleges in the Third Amended Complaint (TAC) to binding arbitration. The Court's May 9, 2018 Order denied the Defendants' motion because the arbitration agreement they relied upon contained a concerted action waiver, which under Ninth Circuit authority at that time rendered it invalid and unenforceable. The Court also stayed the action as to Davis's claims pending the Supreme Court's decision in Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), which it relied upon in denying the Defendants' motion to compel arbitration, and granted the Defendants leave to file a motion for reconsideration once Morris was decided. The Supreme Court has issued its decision in Morris, where it reversed the Ninth Circuit's determination that the mere inclusion of a concerted action waiver in an arbitration agreement rendered said agreement invalid and unenforceable as a standalone defense to arbitration. The Court agrees with the Defendants that this constitutes an intervening change in the law which justifies reconsideration of their motion to compel arbitration. Therefore, the Defendants' motion for reconsideration is granted. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/y7yv3od4 from Leagle.com. Cierra Davis, on behalf of herself and on behalf of other current and former employees similarly situated, Plaintiff, represented by Alex M. Tomasevic -- atomasevic@nicholaslaw.org -- Nicholas and Tomasevic LLP, Craig McKenzie Nicholas -- cnicholas@nicholaslaw.org -- Nicholas and Tomasevic, David Gerald Greco -- dgreco@nicholaslaw.org -- Nicholas & Tomasevic, LLP & Noam Glick -- noam@glicklawgroup.com -- Glick Law Group, P.C. Amber Moore, on behalf of herself and on behalf of other current and former employees similarly situated, Plaintiff, represented by Alex M. Tomasevic , Nicholas and Tomasevic LLP, David Gerald Greco , Nicholas & Tomasevic, LLP & Noam Glick , Glick Law Group, P.C. Red Eyed Jack's Sports Bar, Inc., a Nevada Corporation & Suzanne Coe, an individual, Defendants, represented by Jason P. Saccuzzo -- jsaccuzzo@vivolilaw.com -- Vivoli & Associates & Michael Louis Federici -- mfederici@vivolilaw.com -- VIVOLI SACCUZZO, LLP. Rich Buonantony, an individual, Defendant, represented by Steve Hoffman , Law Office of Steve Hoffman. REMINGTON RIFLES: Court OKs Class Accord Over Defective Triggers ---------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that an appeals court has approved a class action settlement about allegedly defective Remington rifles—one that attorneys general in 10 states opposed for offering what they saw as inadequate notice to potential claimants. The U.S. Court of Appeals for the Eighth Circuit disagreed with the arguments from two objectors that a claims rate of less than 0.3 justified rejecting approval of the settlement, which provides retrofits and rebates to about 7.5 million owners of Remington Model 700 rifles with allegedly defective triggers. In an order on July 25, the panel found that the objectors failed to consider that class members got the notice—but just didn't want to make a claim. "In the end, the low claim submission rate, while not ideal, is not necessarily indicative of a deficient notice plan," wrote Judge Ralph Erickson. "It is apparent that many class members received notice, but opted not to participate for any number of reasons." Among those reasons, the panel cited: Class members found nothing wrong with their guns, didn't think a $10 voucher was worth the effort, didn't want to part with their guns, or didn't "trust the government or lawyers" or want to "become part of any firearm registry." Attorneys general in 10 states, including New York and Pennsylvania, had raised public safety concerns in an amicus brief, given that, under the notice plan, the vast majority of class members wouldn't be aware that their guns could accidentally injure or kill someone. But a competing amicus brief from 11 attorneys general supported the deal for protecting the rights of gun owners while offering them benefits. The settlement does not resolve lawsuits filed over injuries or deaths. The case also attracted critics of electronic notice plans, often involving social media or emails, which cost less than postcards sent through U.S. mail. Todd Hilsee of The Hilsee Group in Philadelphia, who has worked with the Federal Judicial Center to develop class action notice standards, has criticized such plans for being ineffective and has opposed the Remington settlement. Under Federal Rule 23 of Civil Procedure, lawyers are supposed to use the "best notice that is practicable" in reaching out to class members. The U.S. Judicial Conference's Committee on Rules of Practice and Procedure pushed through amendments to Rule 23, effective later this year, that would encourage electronic notice plans. In February, Remington attorney John Sherk, Esq. -- jsherk@shb.com -- a partner at Shook, Hardy & Bacon in San Francisco, and lead plaintiffs attorney Kevin Parker, Esq. -- info@lanierlawfirm.com -- of The Lanier Law Firm in Houston, defended the revised notice plan at oral arguments before a panel that appeared dubious about rejecting the deal. "It is time to start getting these guns fixed!," said Mark Lanier, Esq. -- info@lanierlawfirm.com -- of The Lanier Law Firm in an email to the National Law Journal. "Safety was the victor in this decision!" The panel noted that, in 2015, Judge Ortrie Smith of the U.S. District Court for the Western District of Missouri, who oversaw the Remington case, ordered lawyers back to the drawing table after the notice plan attracted only 2,327 claims -- what he called an "appalling claims rate." A revised notice plan boosted the total claims to 22,000. "The court took great care to ensure the best notice that was practical was provided to class members," wrote Erickson, a President Donald Trump appointee to the bench who began his service in October 2017. "After reviewing the record, we find that the supplemental notice plan was far-reaching and utilized several types of mediums to communicate with potential class members and was clearly more effective than the initial plan, as evidenced by the increase in the claim submission rate."[GN] RHODE ISLAND: Court Dismisses J. Rodriguez's Suit ------------------------------------------------- Magistrate Judge Lincoln D. Almond issued a Report and Recommendation granting Plaintiff's Motion To Proceed in Forma Pauperis and dismiss Plaintiff's Complaint pursuant to 28 U.S.C. Sections 1915(e)(2)(B) in the case captioned JOSE A. RODRIGUEZ, JR., Plaintiff, v. COURTNEY E. HAWKINS, in her official capacity as Director of the Rhode Island Department of HumanServices, Defendant, C.A. No. 18-243 WES (D. R.I.). Having reviewed the R&R and relevant filings, and having heard no objections, the United States District Court for the District of Rhode Island accepts the R&R and adopts its recommendations and reasoning. Plaintiff Jose A. Rodriguez, Jr. filed this pro se Class Action against Courtney E. Hawkins, in her official capacity as Director of the Rhode Island Department of Human Services. The Plaintiff's Class Action Complaint alleges that the State of Rhode Island is failing to process Supplemental Nutrition Assistance Program ("SNAP") applications within the time frame mandated by federal law. The Plaintiff's pro se handwritten Complaint is substantially copied from the Class Action Complaint pending before this Court as Gemmell v. Affigne, C.A. No. 1:16-CV-00650-WES. The Gemmell case was filed on December 8, 2016 by experienced class counsel from the National Center for Law and Economic Justice. On February 28, 2017, Chief Judge Smith entered a Stipulation and Order of Settlement resolving the Gemmell case and obligating the Defendant to comply with the timely processing requirements for food stamps and to accurately report this processing to the Plaintiffs. Compliance with the Order of Settlement in Gemmell is currently under the active supervision of a Court-appointed Special Master. The Plaintiff has cited no legal grounds to reopen or relitigate the class allegations made and settled in the Gemmell case in this new litigation. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/ydbmap3v from Leagle.com. Jose A. Rodriguez, Jr., Plaintiff, pro se. RILEY HAYS: Harmon Action Seeks Unpaid Overtime Premium ------------------------------------------------------- Quenton Harmon, individually and on behalf of all others similarly situated v. Riley Hays Roofing and Construction, LLC and Riley Hays, Case No. 18-cv-00355, (E.D. Ark., May 25, 2018), seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Defendant provides on-site construction and roofing services where Harmon worked as a manual laborer. He regularly worked in excess of forty hours per week without being paid overtime premium, says the complaint. [BN] Plaintiff is represented by: Josh Sanford, Esq. Chris Burks, Esq. Daniel Ford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com chris@sanfordlawfirm.com daniel@sanfordlawfirm.com ROGERS WIRELESS: Sued Over System Access Fee -------------------------------------------- Sophia Harris, writing for CBC News, reports that lawsuit alleges companies misled cellphone customers into thinking fee was a government charge. Thought that annoying system access fee was a thing of the past? It turns out the saga isn't over. Some people are still paying the controversial wireless phone charge, even as a class action lawsuit targeting the fee makes its way to trial. For years, phone companies -- including the big three: Bell, Rogers and Telus, charged the monthly fee -- typically $6.95 -- as an extra cost on top of the price of a regular cellular plan. The big three each dropped the fee in 2009, facing competition from new providers who didn't charge it. The telcos were also named in a class action lawsuit certified in 2007. The lawsuit alleges Rogers, Bell and Telus plus some smaller players misled customers into thinking the system access fee (SAF) was a tax levied by the federal government, when in fact most of it was flowing into the companies' coffers. "The whole process was designed to give the impression of a government fee," claims Regina-based lawyer Tony Merchant, Esq. -- info@merchantlaw.com -- whose firm is heading up the lawsuit. "The companies were unjustly enriched, so they received money for providing nothing extra." It's not over Despite the lawsuit, Bell, Rogers and Telus haven't entirely eliminated the fee. Harry Sivalingam in Toronto recently discovered this when he checked out his father's wireless bill. To his surprise, his dad, 70-year-old Shanmugam, is still being charged a monthly $6.95 SAF by his provider, Telus. "I was shocked," said Sivalingam. "Why and how this is possible?" It turns out, when the telcos dropped the charge, existing customers who didn't migrate to a new plan continued to pay it -- a small number of people by this point. Sivalingam also discovered that if he switched his father to a different plan, he'd be worse off because all the ones currently on offer are more expensive -- even without the added SAF. Even so, Sivalingam says he doesn't understand how the telcos can continue to charge such a contentious fee. "I don't think it's fair." Telus was the first phone company to drop the SAF, a decision it made "based on customer feedback requesting greater simplicity," said spokesperson Jacinthe Beaulieu. She added that the company made it clear to all customers that they could switch to new plans that excluded the charge. Rogers and Bell also said that anyone still paying the fee has always had the option of choosing a different plan. But switching hasn't necessarily translated into cost savings. When Bell, Rogers and Telus scrapped SAFs in 2009, they each raised the price of most of their new monthly plans by $5. Rogers also added a government regulatory recovery fee ranging from $2 to $3 a month. That fee also faced criticism, and the company eventually dropped it in 2012. 'They were deceived' Lawyer Merchant suggests the telcos didn't completely discard the SAF in 2009 because it would have been a blatant admission of wrongdoing. "They came down in-between. They didn't immediately abandon [it] and they didn't continue, either." His suit alleges that between 1982 and 1987, Canadian cellphone users had to pay an individual licensing fee to the federal government. In 1987, the rules changed and the telcos were instead charged a licence fee. Merchant claims that even though that fee eventually worked out to "pennies" per customer, the telcos kept charging customers an added SAF and pocketing most of the profit. "People were used to paying these amounts and they were used to seeing the charge," said Merchant. "They were deceived." Bell, Rogers, Telus and the Canadian Wireless Telecommunications Association each declined to comment on the lawsuit. However, Bell takes a position on its Bell MTS website for Manitoba customers, stating that it "denies that it has improperly or illegally charged the SAF." Bell MTS also makes it clear to customers still paying the charge that the SAF isn't a government fee. Instead, it says the charge helps "recover the costs associated with operating and maintaining a wireless network." What difference does it make? Consumer advocate John Lawford says added fees on a bill do a disservice to customers, even if eliminating them results in no cost savings. He says consumers need to understand the full price of their service, something that's difficult to do when a bill includes a variety of separate charges. "You can't compare service prices across providers, because they break their bills up into a million different forms," said Lawford, executive director of the Public Interest Advocacy Centre. "You don't know exactly what you're paying and whether your bill went up." He would like to see Canada's telecom regulator, the Canadian Radio-television and Telecommunications Commission, explore ways to mandate more clear billing for telecom customers. "What you want is more detail on what you're buying and less detail -- more like one price -- on what you're paying for."[GN] SAMSUNG: Ice Maker Complaints Trigger Lawsuit --------------------------------------------- John Matarese, writing for 9 WCPO Cincinnati, reports that Pam Coy's Samsung stainless steel refrigerator looks great, but looks can be deceiving. "It doesn't make ice," she said. "Doesn't make any ice." Like dozens of people who've posted similar complaints at the site ConsumerAffairs.com, Coy says the ice maker has been trouble since almost the beginning. "After about a year, the ice maker quit working," she said. Repair teams have replaced it, and replaced it and replaced it again. "Four times, and it still doesn't work," she said. And now, with her warranty expired, the next repair is on her. Coy says every time a repair person comes to fix the ice maker it works fine for a few weeks, and then the mechanism inside starts to fail all over again. "It works for a week, maybe two weeks, and then it doesn't work," she said. "The ice is very wet, it drips out of the ice maker, out the door, and out onto the floor." Class-action suit seeks help for owners Now, a Philadelphia law firm has filed a class-action suit, stating the problem is widespread, resulting in "leaking and slush, and over freezing," Samsung wont comment on the suit, but after we contacted the company's US appliance division, it agreed to replace Coy's fridge. Pam Coy is hoping so, as the freezer door has gone bad as a result. "Because we have to keep ice in our freezer, we need ice bags to get ice, we've opened the freezer so much that the handle has broken and had to be replaced," she said. In the meantime, if you are buying any new appliances, read reviews and complaints about it online before you buy, so you don't waste your money.[GN] SANDOZ CANADA: Class Action Launched Over Valsartan --------------------------------------------------- Merchant Law Group LLP has launched national class action litigation on behalf of all Canadian residents who have been prescribed and ingested valsartan, a common blood pressure/heart prescription drug made by generic manufacturers, including Teva Canada Limited, Sandoz Canada Incorporated, Pro Doc Limitee, Sanis Health Inc., and Sivem Pharmaceuticals ULC. These drugs have been recalled by Health Canada due to the alleged presence of a cancer-causing contaminant, known as NDMA. It is alleged that the five defendant pharmaceutical companies who produced contaminated valsartan for Canadians patients across the country, were negligent in their manufacturing of the drugs and in their failure to implement appropriate quality control testing when they received raw material from their foreign suppliers. These drugs have been recalled due to the presence of a cancer-causing contaminant, known as NDMA. According to the Health Canada bulletin, that ingredient (NDMA) is a potential human carcinogen which means that it could cause cancer for patients. According to Health Canada, generic valsartan made with the NDMA impurity was supplied by a Chinese manufacturer. The defendants in the proposed class action are five pharmaceutical companies whose products appear on the Health Canada recall bulletin. For patients seeking more info, please visit www.merchantlaw.com Copies of the issued class action litigation are available, upon media request.[GN] SANTA FE NATURAL: Pontusson Files Suit Over Deceptive Marketing --------------------------------------------------------------- CLIVE PONTUSSON, on behalf of himself and all others similarly situated v. SANTA FE NATURAL TOBACCO COMPANY, INC., REYNOLDS AMERICAN INC., and R.J. REYNOLDS TOBACCO COMPANY, Case No. 1:18-cv-00594-LCB-LPA (M.D.N.C., July 6, 2018), seeks redress for the Defendants' alleged deceptive marketing of their "Natural American Spirit" brand cigarettes as "Natural" and "Additive-Free." Santa Fe Natural Tobacco Company, Inc., is a New Mexico corporation whose principal place of business is in Santa Fe, New Mexico. Reynolds American Inc. is a North Carolina corporation whose principal place of business is in Winston-Salem, North Carolina. SFNT is an operating subsidiary of Reynolds. R.J. Reynolds Tobacco Company is a North Carolina corporation whose principal place of business is in Winston-Salem, North Carolina. Like SFNT, RJR is an operating subsidiary of Reynolds. The Defendants sell Natural American Spirit cigarettes in differently-colored packs, all of which the Defendants uniformly and prominently label and advertise with representations that the cigarettes are "Natural" and "100% Additive-Free."[BN] The Plaintiff is represented by: Joel R. Rhine, Esq. RHINE LAW FIRM, PC 1612 Military Cutoff Rd, Suite 300 Wilmington, NC 28403 Telephone: (910) 772-9960 Facsimile: (910) 772-9062 E-mail: jrr@rhinelawfirm.com - and - Scott P. Schlesinger, Esq. Jonathan R. Gdanski, Esq. Jeffrey L. Haberman, Esq. SCHLESINGER LAW OFFICES, P.A. 1212 SE 3rd Avenue Fort Lauderdale, FL 33316 Telephone: (954) 467-8800 Facsimile: (954) 320-9509 E-mail: scott@schlesingerlaw.com jgdanski@schlesingerlaw.com jhaberman@schlesingerlaw.com - and - Melissa Wolchansky, Esq. Amy E. Boyle, Esq. HALUNEN LAW 1650 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 605-4098 Facsimile: (612) 605-4099 E-mail: wolchansky@halunenlaw.com boyle@halunenlaw.com - and - Caleb Marker, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90254 Telephone: (877) 500-8780 E-mail: caleb.marker@zimmreed.com - and - Hart L. Robinovitch, Esq. 14646 N. Kierland Blvd., Suite 145 Scottsdale, AZ 85254 Telephone: (800) 493-2827 E-mail: hart.robinovitch@zimmreed.com - and - Charles J. LaDuca, Esq. CUNEO GILBERT & LADUCA, LLP 8120 Woodmont Avenue - Suite 810 Bethesda, MD 20814 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: charles@cuneolaw.com - and - Samuel J. Strauss, Esq. TURK & STRAUSS LLP 613 Williamson Street, #201 Madison, WI 53703 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 E-mail: sam@turkestrauss.com - and - D. Greg Blankinship, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue - Suite 605 White Plains, NY 10605 Telephone: (914) 298-3281 Facsimile: (914) 824-1561 E-mail: gblankinship@fbfglaw.com jfrei-pearson@fbfglaw.com tgarber@fbfglaw.com - and - Daniel L. Warshaw, Esq. Alexander R. Safyan, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: dwarshaw@pswlaw.com asafyan@pswlaw.com - and - James W. Gustafson, Esq. SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 517 N. Calhoun St. Tallahassee, FL 32301 Telephone: (850) 224-7600 Facsimile: (561) 383-9454 E-mail: jwg@searcylaw.com - and - Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reesellp.com - and - Matthew D. Schultz, Esq. LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR, P.A. 316 S. Baylen St., Suite 600 Pensacola, FL 32502 Telephone: (850) 435-7140 Facsimile: (850) 436-7141 E-mail: mschultz@levinlaw.com - and - Ronald A. Marron, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com SARBANAND FARMS: N. Perez Loses Bid to Dismiss FLCA Suit -------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, denied Defendant's Motion to Dismiss the case captioned BARBARO ROSAS, et al., Plaintiffs, v. SARBANAND FARMS LLC, et al., Defendants, Case No. C18-0112-JCC (W.D. Wash.). The Plaintiffs bring this employment class action arising out of the Defendants' recruitment, employment, and treatment of foreign H-2A farm workers. The sole claim against Defendant Nidia Perez is for violation of the Washington Farm Labor Contractor Act (FLCA). A defendant may move to dismiss when a plaintiff fails to state a claim upon which relief can be granted. Under Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and construes them in the light most favorable to the non-moving party. Ms. Perez argues that FLCA exempts employees of agricultural employers, thus, the statute does not apply to her. She relies on the FCLA exception for persons working within the scope of their employment for one agricultural employer who are not paid a fee based on the number of workers recruited. The fact that Ms. Perez is an agricultural employee does not, by itself, bring her under the FLCA exception. The Plaintiffs' first amended complaint alleges that Ms. Perez was employed by Munger, that she recruited workers to harvest and package blueberries on behalf of three entities in both California and Washington, and that Sarbanand paid her a separate fee to recruit workers for its harvest. The Court finds the Plaintiffs have alleged sufficient facts for the Court to infer that Ms. Perez performed labor contracting activities on behalf of more than one agricultural employer. A full-text copy of the District Court's June 7, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yagv3zra from Leagle.com. Barbaro Rosas & Guadalupe Tapia, Plaintiffs, represented by Adam J. Berger -- berger@sgb-law.com -- SCHROETER GOLDMARK & BENDER, Joachim Morrison , COLUMBIA LEGAL SERVICES, Bernardo Rafael Cruz , COLUMBIA LEGAL SERVICES, Lindsay Halm, SCHROETER GOLDMARK & BENDER, Lori Isley , COLUMBIA LEGAL SERVICES & Tony Gonzalez , COLUMBIA LEGAL SERVICES. Sarbanand Farms LLC, Munger Bros LLC & Nidia Perez, Defendants, represented by Christopher E. Hawk -- chawk@grsm.com -- GORDON REES SCULLY MANSUKHANI & Derek Allan Bishop -- dbishop@grsm.com -- GORDON REES SCULLY MANSUKHANI LLP. CSI Visa Processing, S.C., Defendant, represented by Adam S. Belzberg -- adam.belzberg@stoel.com -- STOEL RIVES & Christopher T. Wall -- Christopher.wall@stoel.com -- STOEL RIVES. SCALZO INC: Hernandez Action to Recover Overtime Pay Under FLSA --------------------------------------------------------------- Martin Reynoso Hernandez (a/k/a Martin Reynoso), on behalf of himself and all other Plaintiffs similarly situated, known and unknown, Plaintiff, v. Scalzo, Inc., an Illinois corporation and John Scalzo, Defendants, Case No. 18-cv-03705, (N.D. Ill., May 25, 2018), seeks to recover unpaid overtime compensation under the Fair Labor Standards Act, the Illinois Minimum Wage Law and the Chicago Minimum Wage Ordinance of the Municipal Code of Chicago. Hernandez worked as a cook at Defendants' "Via Carducci" restaurant located at 1928 W. Division Street in Chicago, Illinois, from 2009 through May 4, 2018. He claims to have worked at least 51 hours in individual workweeks without being paid overtime. [BN] Plaintiff is represented by: Timothy M. Nolan, Esq. NOLAN LAW OFFICE 53 West Jackson Blvd., Ste. 1137 Chicago, IL 60604 Tel: (312) 322-1100 Fax: (312) 322-1106 Email: tnolan@nolanwagelaw.com SCANA CORP: Dominion Energy Appeals Order in Warren Police Suit --------------------------------------------------------------- Defendants Dominion Energy, Inc., and Sedona Corp. filed an appeal from a court ruling in the lawsuit titled City of Warren Police and Fire Retirement System, individually and on behalf of all others similarly situated v. SCANA Corporation, et al., Case No. 3:18-cv-509-MBS, in the U.S. District Court for the District of South Carolina at Columbia. As previously reported in the Class Action Reporter, the lawsuit was filed on January 23, 2018, against SCANA Corporation, Dominion Energy, Inc., Sedona Corp., Jimmy E. Addison, Gregory E. Aliff, James A. Bennett, John F.A.V. Cecil, Sharon A. Decker, D. Maybank Hagood, Lynne M. Miller, James W. Roquemore, Maceo K. Sloan, and Alfredo Trujillo, in the Court of Common Pleas for the Eleventh Judicial Circuit, County of Lexington, State of South Carolina (Case No. 2018-CP-32-0268). The lawsuit was removed on February 21, 2018, to the District Court. The Plaintiff alleges, among other things, that the Defendants violated their fiduciary duties to shareholders by executing a merger agreement that would unfairly deprive the Plaintiff of the true value of their SCANA stock, and that Dominion Energy and Sedona aided and abetted these actions. Among other remedies, the Plaintiff seeks to enjoin and/or rescind the proposed merger, as well as seek unspecified monetary damages, attorneys' fees, costs and any other relief the court deems proper. The appellate case is captioned as Warren Police & Fire Ret. Sys. v. Dominion Energy, Inc., Case No. 18-1844, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening Brief and Appendix are due on September 4, 2018; and -- Response Brief is due on October 4, 2018.[BN] Plaintiff-Appellee CITY OF WARREN POLICE AND FIRE RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, is represented by: Richard Harpootlian, Esq. RICHARD A. HARPOOTLIAN, PA 1410 Laurel Street P. O. Box 1090 Columbia, SC 29201 Telephone: (803) 252-4848 E-mail: rah@harpootlianlaw.com Defendants-Appellants DOMINION ENERGY, INC., and SEDONA CORP. are represented by: Andrew A. Mathias, Esq. William Walter Wilkins, Esq. Burl F. Williams, Esq. NEXSEN PRUET, LLC 55 East Camperdown Way P. O. Box 10648 Greenville, SC 29603 Telephone: (864) 282-1195 Facsimile: (864) 282-1177 E-mail: AMathias@nexsenpruet.com BWilkins@nexsenpruet.com BWilliams@nexsenpruet.com - and - Brian Emory Pumphrey, Esq. Brian David Schmalzbach, Esq. MCGUIREWOODS, LLP 800 East Canal Street P. O. Box 3916 Richmond, VA 23219 Telephone: (804) 775-7745 Facsimile: (804) 698-2018 E-mail: bpumphrey@mcguirewoods.com bschmalzbach@mcguirewoods.com Defendants SCANA Corporation, Gregory E Aliff, James A Bennett, John F.A.V. Cecil, Sharon A Decker, D Maybank Hagood, Lynne M Miller, James W Roquemore, Maceo K Sloan, Jimmy E. Addison and Alfredo Trujillo are represented by: William Alexander Coates, Esq. ROE, CASSIDY, COATES & PRICE, PA 1052 North Church Street P. O. Box 10529 Greenville, SC 29603-0000 Telephone: (864) 349-2600 E-mail: wac@roecassidy.com Defendants SCANA Corporation, Gregory E Aliff, James A Bennett, John F.A.V. Cecil, Sharon A Decker, D Maybank Hagood, Lynne M Miller, James W Roquemore, Maceo K Sloan and Alfredo Trujillo are represented by: Benjamin Palmer Carlton, Esq. Steven J. Pugh, Esq. RICHARDSON PLOWDEN & ROBINSON, PA P. O. Drawer 7788 Columbia, SC 29202-0000 Telephone: (803) 771-4400 E-mail: bcarlton@richardsonplowden.com spugh@richardsonplowden.com SCOTTSDALE HEALTHCARE: Dismissal A. Amari's Suit Affirmed --------------------------------------------------------- In the case, AMY AMARI, Plaintiff/Appellant, v. SCOTTSDALE HEALTHCARE HOSPITALS, et al., Defendants/Appellees, Case No. 1 CA-CV 17-0443 (Ariz. App.), Judge Paul J. McMurdie of the Court of Appeals of Arizona, Division One, affirmed the superior court's orders (i) dismissing Amari's complaint with prejudice and without leave to amend, and (ii) denying her post-judgment motion under Arizona Rule of Civil Procedure 59. Amari filed a class action complaint against Scottsdale Healthcare Hospitals ("HonorHealth"), alleging negligence, negligent hiring, and vicarious liability. In September 2014, Amari had inpatient surgery at HonorHealth. HonorHealth later learned a surgical technician employed by the hospital at the time of Amari's surgery was under investigation in another state for the misuse of drugs intended for patient use. On Feb. 29, 2016, HonorHealth thus notified Amari by letter she had possibly been exposed to HIV or hepatitis B and C during the surgery and should have her blood tested. On March 8, 2016, Amari had her blood tested and two days later learned the results were negative. In May 2016, Amari filed a complaint against HonorHealth, alleging HonorHealth breached the duty of care it owed Amari by negligently hiring the surgical technician and that HonorHealth is vicariously liable for the harm caused by the technician. Approximately one week later, Amari filed an amended complaint to correct HonorHealth's name. Amari's first amended complaint alleged HonorHealth's letter caused her "unavoidable concern and anxiety" and did not allege any additional emotional distress. On June 7, 2016, HonorHealth moved to dismiss Amari's first amended complaint under Rule 12(b)(6) for failure to state a claim, arguing in part that there can be no recovery for mental disturbance unless physical injury, illness or other physical consequences accompany it, or physical harm develops as a result of the plaintiff's emotional distress. The parties then agreed to allow Amari to file a second amended complaint, and Amari filed her second amended complaint on July 1, 2016. In her second amended complaint, Amari sought to hold HonorHealth liable for their failure to conduct a proper and reasonable investigation into the background and character of their employees prior to hiring them and the resulting physical and emotional harm that their failure to do so caused Amari. Amari alleged negligence, negligent hiring, and vicarious liability claims and that HonorHealth's breach of duty caused Amari to suffer foreseeable and unavoidable concern, anxiety, annoyance, and inconvenience. HonorHealth again moved to dismiss Amari's then-second amended complaint. HonorHealth argued Amari failed to plead facts showing that she suffered any actual, recoverable emotional or physical damages and that, accordingly, Amari could not state a viable claim against HonorHealth. At oral argument on HonorHealth's motion, the superior court stated it was concerned about whether Amari had alleged recoverable damages because the court did not "think losing a couple nights' sleep is enough." Amari asked for permission to amend her complaint again to allege with more specificity the damages she suffered. The court dismissed the vicarious liability claim at the close of oral argument and, after taking the matter under advisement, dismissed the remaining claims without granting Amari leave to amend, finding amendment would be futile. Amari then moved to alter or amend the judgment pursuant to Rule 59. She argued the superior court erred by dismissing her complaint without granting her leave to amend based on the court's conclusion that further amendment would be futile. Amari attached a detailed affidavit to her Rule 59 motion describing the emotional distress she suffered from when she received the letter until approximately one month after getting the negative test results, which included sleeplessness, difficulty concentrating, hyperventilating, sweating, anxiousness, nausea, headaches, and anger. Amari also stated she experienced similar distress a few months later when she learned the surgical technician tested positive for HIV. After receiving HonorHealth's response and holding oral argument on Amari's Rule 59 motion, the superior court denied the motion, explaining Amari's second amended complaint was dismissed based upon the lack of a physical intrusion and the lack of any attendant bodily harm and that allowing Amari to further amend her complaint would be an exercise in futility. Amari timely appealed. Judge McMurdie agrees with the superior court's finding that Amari's blood test was an insufficient "physical invasion" to support a claim for emotional distress damages. The superior court did not err by finding the blood test did not satisfy the physical impact test. After his review of the Rule 59 motion and the affidavit, the Judge concludes Amari has not alleged her emotional distress resulted in long-term physical illness or mental disturbance or that her distress gave rise to more than transitory physical phenomena. Therefore, he holds Amari has not stated a claim for emotional distress damages or shown that further amendment would not be futile. For these reasons, Judge McMurdie affirmed. A full-text copy of the Court's June 12, 2018 Memorandum Decision is available at https://is.gd/qIPBi6 from Leagle.com. Keller Rohrback LLP, Phoenix, By Mark D. Samson -- msamson@KellerRohrback.com -- Alison E. Chase -- achase@KellerRohrback.com -- (argued), Counsel for Plaintiff/Appellant. Snell & Wilmer L.L.P., Phoenix, By Barry D. Halpern -- bhalpern@swlaw.com -- Colin P. Ahler -- cahler@swlaw.com -- (argued), Counsel for Defendants/Appellees. SEAGATE TECHNOLOGY: Court Denies Bid to Certify Nationwide Class ---------------------------------------------------------------- In the lawsuit RE: SEAGATE TECHNOLOGY LLC LITIGATION, Case No. 3:16-cv-00523-JCS (N.D. Cal.), the Hon. Judge Joseph C. Spero entered an order: 1. denying Plaintiffs' motion for certification of nationwide class without prejudice to filing a second motion to certify a narrower class or subclasses; 2. denying as moot Seagate's motion to strike portions of Plaintiffs' reply brief or to file a surreply; 3. granting Plaintiffs' motion to file supplemental materials, which the Court considered in reaching its conclusion on class certification; and 4. denying all pending motions to file documents under seal without prejudice to Seagate filing a consolidated motion identifying compelling reasons for such documents, or portions thereof, to remain under seal no later than July 26, 2018. The Court said, "The Plaintiffs have not demonstrated that common issues predominate among their proposed class as required for certification under Rule 23(b)(3) of the Federal Rules of Civil Procedure. It is not obvious, however, that there is no way to manage at least some subset of the currently proposed class as a Rule 23(b)(3) class action, or that some such class would not be the most efficient way to resolve the claims of at least some of the currently proposed class members. If Plaintiffs intend to file a second motion for class certification, the parties are instructed to file a stipulated briefing schedule no later than July 26, 2018." On July 6, the Court held that a Case Management Conference will be held August 31 at 2:00 p.m. in San Francisco, Courtroom G, 15th Floor. On July 26, Seagate filed an Administrative Motion to File Under Seal Certain Documents or Portions Thereof Filed in Connection with Plaintiffs Motion for Class Certification. Plaintiffs bring this putative class action against Seagate, alleging that the Company misrepresented certain hard drives and delivered defective drives to consumers. SHELBY COUNTY: 8th Cir. Affirms Judgment on Pleadings in "Robinett" ------------------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, affirmed the District Court's judgment granting Defendant's Judgment on the Pleadings in the case captioned Lacey Robinett, Individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. Shelby County Healthcare Corporation, doing business as Regional One Health, doing business as Regional Medical Center; Avectus Healthcare Solutions LLC, Defendants-Appellees. No. 17-1336. (8th Cir.) Lacey Robinett appeals the district court's grant of judgment on the pleadings to Shelby County Healthcare Corporation (Med) and Avectus Healthcare Solutions, LLC. Lacey Robinett was severely injured in an automobile accident in Arkansas. Another vehicle's driver was at fault. An air ambulance transported Robinett to the Med, the nearest trauma center, in Memphis, Tennessee, for immediate treatment. However, subsequent to treating Robinett, the Med chose not to bill Arkansas Medicaid for its services. Instead, pursuant to Tenn. Code Ann. Section 29-22-101, the Med pursued a lien against Robinett's third-party claim against the tortfeasor for all reasonable and necessary charges for hospital care, treatment and maintenance. Robinett contends that the district court erroneously concluded that the federal and Arkansas Medicaid laws do not bar a medical services provider from billing patients directly until and unless the provider bills Medicaid. Federal Medicaid law precludes direct patient billing in two specific instances. Section 1396a(a)(25)(C) prohibits medical providers from substitute billing and balance billing. A medical provider engages in substitute billing when it already has accepted payment from Medicaid but tries to refund the payment in order to bill the patient directly, usually because Medicaid reimbursements are often much lower than the provider's customary fees. Thus, Section 1396a(a)(25)(C) only becomes relevant once the provider has billed Medicaid and accepted payment for services provided to a beneficiary. The provision does not bar a provider from taking a chance that a Medicaid-eligible patient has a non-Medicaid source of payment for the medical services rendered. The provider thus may opt to attempt collection directly from the patient or a liable third party instead of seeking a certain but likely reduced payment from Medicaid. Not only does the plain language of the statute dictate this interpretation, this reading comports with Medicaid's role as the payer of last resort. The federal Medicaid statutory scheme is designed to ensure that where there are liable third parties, Medicaid's expenses are reimbursed. Other federal regulations reinforce Section 1396a(a)(25)(C)'s mandate. Section 433.139(b)(1) of 42 C.F.R. requires that if a Medicaid agency has established the probable existence of third party liability at the time the claim is filed, the agency must reject the claim and return it to the provider. This method of payment is called cost avoiding; it entails shifting to the provider the burden of securing payment from third parties. Alternatively, Medicaid may pay and chase, where the state Medicaid agency pays the total amount allowed under the agency's payment schedule and then seeks reimbursement from the liable third party Thus, federal Medicaid regulations run counter to Robinett's suggestion, because the cost avoidance measure requires medical providers to bill liable third parties, or they may bill the patient directly. Robinett next argues that even if federal law permits the Med to bill her directly, Arkansas law does not. She asserts that the district court erroneously concluded otherwise. In legal contexts, payable means a sum of money that is to be paid. An amount may be payable without being due. In Robinett's case, nothing was payable by Medicaid, because prior to the Med billing Medicaid, the amount to be paid is zero. But, if and when the Med bills Medicaid, then the Med must accept what Medicaid pays as payable in full. This interpretation comports with the Medicaid payment scheme. Medicaid, by design, does not pay the full price for medical services, nor does it pay for every service provided. Until the medical provider bills for services rendered, Medicaid owes the provider nothing. As such, nothing is capable of being paid until the provider bills for it. Thus, Ark. Code Ann. Section 20-77-104(a) simply reinforces the federal ban on substitute billing. Likewise, Ark. Code Ann. Section 20-77-104(c) codifies into Arkansas law the federal ban on balance billing. A full-text copy of the Eighth Circuit's July 13, 2018 Opinion is available at https://tinyurl.com/yay8wmkm from Leagle.com. Jeff Puryear -- jpuryear@wpmfirm.com -- for Defendant-Appellee. Mark Mayfield -- mmayfield@wpmfirm.com -- for Defendant-Appellee. Jeffrey Scriber , for Plaintiff-Appellant. Brandon W. Lacy, for Plaintiff-Appellant. Ryan Michael Wilson -- rwilson@wpmfirm.com -- for Defendant-Appellee. John Irving Houseal, III, for Defendant-Appellee. Don L. Hearn, Jr. -- dhearn@glankler.com -- for Defendant-Appellee. John I. Houseal, Jr. -- jhouseal@glankler.com -- for Defendant-Appellee. ST. FRANCIS MEDICAL: Nguyen Seeks Overtime Pay under Labor Code --------------------------------------------------------------- DIANE NGUYEN, on behalf of herself and all others similarly situated, and on behalf of the general public, the Plaintiff, v. ST. FRANCIS MEDICAL CENTER, a California Corporation and DOES 1 through 10, inclusive, the Defendant, Case No. BC713041 (Cal. Super. Ct., July 6, 2018), alleges that Defendants willfully deny their California employees their rest periods, and fail to timely provide such, or compensation in lieu thereof, as required by the California Labor Code. According to the complaint, the Plaintiff and all other aggrieved employees were required to work off the clock for Defendants. Defendants did not compensate Plaintiff and the aggrieved employees if these tasks were completed outside of her regular work hours. Plaintiff and all other aggrieved employees worked in excess of 40 hours in one week and in excess of eight hours in one day, requiring the payment of overtime wages at a premium rate of one and one half the regular rate of pay. The Defendants willfully failed to compensate Plaintiff the premium rate for all overtime worked. The Defendants fail to properly itemize the wage statement of Plaintiff and all other aggrieved employees, in violation of Labor Code section 226(a)(e). The Defendants failed to provide Plaintiff and all other aggrieved employees their final wages on the day of termination or if the employee resigns, within 72 hours of separation. St. Francis Medical Center is a not-for-profit hospital in Lynwood, California.[BN] The Plaintiff is represented by: Roman Otkupman, Esq. Meghan Maertz, Esq. OTKUPMAN LAW FIRM, A LAW CORPORATION 28632 Roadside Dr., Suite 203 Agoura Hills, CA, 91301 Telephone: (818) 293 5623 Facsimile: (888) 850 1310 E-mail: Roman@OLFLA.com Meghan@OLFLA.com STARBUCKS CORP: Must Pay Workers for Off-the-Clock Tasks -------------------------------------------------------- Maura Dolan, writing for the Los Angeles Times, reports that the California Supreme Court decided unanimously on July 26 that employers must pay workers for the minutes they spend on brief tasks off the clock. The ruling came in a response to a federal appeals court request to clarify California labor law. California's laws "do not allow employers to require employees to routinely work for minutes off-the-clock without compensation," Justice Goodwin Liu wrote for the state Supreme Court. The U.S. 9th Circuit Court of Appeals, which asked the state high court to clarify the law, is considering a proposed class-action lawsuit against Starbucks brought by a supervisor who spent several minutes each night closing the store and walking workers to their cars after clocking out. A federal district judge had thrown out the case, citing a federal "de minimis" rule that bans suits for compensation for small bits of time. The 9th Circuit asked the California court to determine whether the federal rule applied to claims for wages under California law. The court said they did not. California's laws require compensation for "all" time worked, the court said. "A few extra minutes of work each day can add up," Liu wrote. He noted that the former Starbucks employee who sued worked 12 hours and 50 minutes off the clock over a 17-month period. At $8 an hour, that amounted to $102.67. "That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares," Liu wrote. Bryan Lazarski, Esq. -- bryan@lazarskilaw.com -- a Century City lawyer who represents workers in employment disputes, called the decision "an excellent ruling for employees." He said the impact may be large because many jobs require workers to spend a few minutes on small tasks before or after their workday officially starts or ends. "There are a lot of places that have policies like Starbucks," he said. He stressed that not all time down to a split second would have to be paid, but if the tasks are regular and anticipated, the employer must compensate the worker's time. Stanley D. Saltzman, who represents the Starbucks workers, said federal judges have been throwing out these kinds of lawsuits, a practice that will now end. The 9th Circuit also is expected to revive the Starbucks suit as a result of the July 26 decision. "I think employers will just pay more attention now to getting people paid properly, which is the ultimate goal," Saltzman said. Eve Wagner, Esq. -- ewagner@swattys.com -- an employment lawyer who also arbitrates and mediates workplace disputes, said the next legal fight is likely to be over compensation for time spent at home reading emails and responding to them. "The California Supreme Court left open that question," she said. Justice Mariano-Florentino Cuéllar wrote separately to stress that the ruling "does not consign employers or their workers to measure every last morsel of employees' time." "California law stops well short of requiring employer analysis of every fractional second as part of an unsparing effort to discern what time is compensable," Cuéllar said. Justice Leondra R. Kruger, in another concurrence, said California law would not apply to claims "for negligible periods of time that cannot reasonably be measured or estimated with a fair degree of accuracy." She cited the example of an employer occasionally notifying a worker by text or email of a schedule change that required an acknowledgement from the worker. "There may be some periods of time that are so brief, irregular of occurrence, or difficult to accurately measure or estimate, that it would [not] be reasonable to require the employer to account for them," wrote Kruger, joined by Court of Appeal Justice Elizabeth A. Grimes, who filled a vacancy on the court for the case. Rex S. Heinke, who argued the case for Starbucks, referred a request for comment to a Starbucks spokesperson. "We are disappointed with the court's decision," the spokesperson said in an email. "We will await further disposition of the case before the 9th Circuit as the appeal process continues."[GN] STATE FARM: Wash. App. Affirms Denial of L. Daniels' Insurance Suit ------------------------------------------------------------------- The Court of Appeals of Washington, Division One, affirmed the trial court's judgment granting Defendant's Motion to Dismiss the case captioned LAZURI DANIELS, individually, and on behalf of all those similarly situated Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent, No. 75727-0-I (Wash. App.). When Daniels' vehicle was damaged in a collision, she paid the deductible and State Farm paid the remaining amount of the cost to repair her car. When State Farm recovered 70 percent of the amount it paid for the repair from the tortfeasor's insurance company, it also recovered 70 percent of Daniels' deductible payment and paid it to her. Daniels contends State Farm violated the policy because it did not pay her the full amount of the deductible. She claims that before State Farm could exercise its right to recover the payments it made, the policy requires that she be fully compensated for her loss which she argues includes the full amount of the deductible. Daniels argues that the trial court erred in dismissing her complaint. She contends that State Farm did not comply with the terms of its policy when it failed to return her full deductible before retaining money it received in subrogation. Dismissal is warranted if the court concludes beyond a doubt that the plaintiff cannot prove any set of facts which would justify recovery. A contract of insurance should be given a fair, reasonable and sensible construction, consonant with the apparent object and intent of the parties, a construction such as would be given the contract by the average person purchasing insurance. The policy language at issue here states: "12. Our Right to Recover Our Payments. c. Underinsured Motor Vehicle Property Damage Coverage and Physical Damage Coverages. If we are obligated under this policy to make payment to or for a party who has a legal right to collect from another, then the right of recovery of such party passes to us. Such party must help us recover our payments by, inter alia: (1) keeping our right to recover our payment in trust for us and doing nothing to impair that legal right." Daniels reading of the insurance contract is flawed in a number of respects. First, Daniels asserts that under the contract, State Farm has no right to seek recovery at all, unless and until its insured obtains a full refund of his or her deductible. Whatever rights State Farm may have to recover its payments, it does not have those rights until after its insured has been fully compensated for the loss. And to the extent State Farm has a right to seek recovery, it has no such rights until its insured receives full compensation. But reading the contract to preclude State Farm's subrogation unless Daniels first obtains a full refund of her deductible leads to absurd results. Under Daniels reading of the contract, before State Farm could assert a subrogation claim against a third party, one of two things would have to occur. First, State Farm would have to refund the deductible that Daniels paid, which would make the provision requiring the payment of the deductible meaningless. Or, second, Daniels would have to obtain reimbursement from the third party on her own. And if she failed to do so for any reason, or simply chose not to, State Farm would be barred from seeking recovery of the payments it made from the responsible third party. State Farm complied with WAC 284-30-393. It included Daniels' deductible with its subrogation demand and originally reimbursed her 70 percent based on Geico's initial determination that its insured was 70 percent at fault. It then fully reimbursed her when an arbitrator concluded that she was not at fault. Daniels relies on hindsight to argue that, because she was ultimately found not at fault, she should have been originally reimbursed her full deductible. But State Farm's incremental implementation of WAC 284-30-393 was reasonable and complied with the plain language of the regulation. The Court finds that the trial court did not err in finding that there was no violation. A full-text copy of the Wash. App.'s July 16, 2018 Opinion is available at https://tinyurl.com/ydeugyjm from Leagle.com. Matthew James Ide , Ide Law Office, 7900 Se 28th St Ste 500, Mercer Island, WA, 98040-6004, Counsel for Appellant(s). Joseph D. Hampton , Betts, Patterson & Mines, P.S., 701 Pike St Ste 1400, Seattle, WA, 98101-3927. Kathryn Naegeli Boling , Betts, Patterson, & Mines, P.S., 701 Pike St Ste 1400, Seattle, WA, 98101-3927. Frank Falzetta , Shephard Mullin Richter & Hampton LLC, 333 South Hope Street 43rd Floor, Los Angeles, CA, 90071. Jennifer Hoffman , Shephard Mullin Richter & Hampton LLC, 333 South Hope Street 43rd Floor, Los Angeles, CA, 90071, Counsel for Respondent(s). STATE STREET: ATRS Chief's Role in Class Action Lawsuits Flagged ---------------------------------------------------------------- Arkansas Online reported that some state lawmakers are raising questions and seeking more information about the Arkansas Teacher Retirement System's participation in class-action lawsuits. The impetus for their interest is the system's role as the class representative in a class-action lawsuit against financial services provider State Street Corp. in which there has been a $300 million settlement. The federal judge in the case has asked whether the system should remain the lead plaintiff and about possible corruption. System Executive Director George Hopkins decided five weeks ago to remain as a class representative in the lawsuit, even after the system's trustees recommended that he withdraw from that position. The trustees' recommendation and Hopkins' decision came after the Boston-based federal judge, Mark L. Wolf, said he was considering a special master's then-sealed report recommending that three law firms in the case repay a significant part of the $75 million in attorneys' fees awarded as part of the settlement. The three law firms are Labaton Sucharow LLP, Thornton Law Firm LLP and Lieff Cabraser Heimann & Bernstein. They took the case on a contingency-fee basis. A good estimate of how much the teacher retirement system will receive from the settlement is not available at this time because of the nature and stage of the case, said Rod Graves, the system's associate director of operations. But "if we were trying to get a ballpark estimate, it would likely fall in the $300,000 range," he said Friday. In his 377-page report unsealed June 28, Special Master Gerald Rosen recommended that the three law firms disgorge more than $10 million in attorney fees -- including a $4.1 million payment to a Texas attorney, Damon Chargois, who introduced Labaton Sucharow, the lead law firm, to the Arkansas agency. But Labaton Sucharow sharply criticized the special master's report. The law firm said Rosen, having been unsuccessful in identifying anything more than an inadvertent billing error self-reported by Labaton, elected to divert his investigation into one costing nearly $4 million. Rosen suggests that the class counsel engaged in "questionable conduct" by paying a referral fee to another lawyer, even though that payment was permissible under the well-established law in Massachusetts, according to the law firm. On June 28, federal judge Wolf rejected Labaton Sucharow's request that he recuse from this case. The law firm has appealed his ruling to the 1st U.S. Circuit Court of Appeals. Among the issues is a private sidebar on May 30 in which Wolf suggested that when Rosen's report became public, "there are going to be questions about the origin of this relationship and whether all of those millions of dollars stopped with Mr. Chargois." System Reaps Millions The Arkansas system has collected more than $40 million as a result of securities class-action lawsuits, including those in which the system is lead plaintiff, over the past 10 years, Hopkins said. Hopkins has been the system's executive director since December 2008. The Arkansas Teacher Retirement System is state government's largest retirement system with roughly $17 billion in investments and more than 100,000 working and retired members. The system is seeking to recover more than $21 million in financial losses through about a dozen class-action lawsuits, he told the trustees recently. Labaton Sucharow filed a class-action securities lawsuit against State Street, the nation's second-largest custodian bank, on behalf of the system in 2011. Wolf approved the settlement and the award of attorneys' fees in 2016. The underlying suit alleged that State Street swindled millions of dollars a year from its clients on their indirect foreign exchange trades over the course of a decade. Hopkins estimated that he spent several hundred hours on this case over its five-year history, according to court records. Legislative Review The special master's report is on the agenda for a combined meeting of the Joint Committee on Public Retirement and Social Security Programs and the Joint Performance Review Committee. The committee's leaders have requested records about state retirement systems' participation in class-action lawsuits. The meeting is at 9 a.m. in Room 151 at the state Capitol. Rep. Doug House, R-North Little Rock, who is co-chairman of the retirement committee, said his primary concern is that the teacher retirement system's retirees get every dollar they have been promised. House also said the Legislature shouldn't run state retirement systems because that's the job of the systems' trustees. But "it is apparent that there is a lot of information those [teacher retirement system] trustees didn't have [about the State Street case] because they chose not to know, and that's a concern," he said. He said Hopkins has indicated that he didn't want to know how the attorneys' fees were divided in the settlement, and the trustees didn't know either. House said the trustees should be evaluating the contracts of the securities-monitoring firms each year. The chairman of the system's board of trustees, Jeff Stubblefield, said, "I don't know that that's a bad idea. "I don't think that's asking too much," said Stubblefield, who is superintendent of Charleston Public Schools. "I do appreciate Mr. Hopkins and his financial team trying to get financial recovery of people taking financial advantage of us." Hopkins said Friday in a written statement that all of the system's contracts, including the securities monitoring contracts, go before the trustees at least once every two years. "ATRS staff would have no problem pulling the legal contracts out for separate consideration," he wrote. INNUENDO AND RUMORS Rep. Mark Lowery, R-Maumelle, said he's worried about the negative exposure that the teacher retirement system is being subjected to, based on speculation about potential kickbacks and payoffs. Lowery, who is co-chairman of the Joint Performance Review Committee, said he wants more information to determine what has transpired. Five weeks ago, Hopkins told his trustees that he wished Rosen's report was unsealed at that time because "I think any innuendos put out will be shown to be incorrect." At that time, Hopkins said he told the federal judge that then-Sen. Steve Faris, D-Malvern, introduced the Labaton Sucharow law firm to then-system Executive Director Paul Doane in 2007, based on documents that he has reviewed. Hopkins served as a former Democratic senator from Malvern before Faris. Labaton Sucharow is one of five securities monitoring firms for the retirement system. It was selected to monitor securities for the Arkansas system under a request for qualification process before Hopkins became executive director in December 2008. Hopkins said he became aware of the $4.1 million payment to Chargois after the special master's report came out. Faris, who serves on the board of trustees for the Arkansas Public Employees Retirement System, said in an interview last week that he called Doane at the request of a friend, Tim Herron, on behalf of Labaton Sucharow and indicated the New York firm's interest in becoming a securities monitoring firm for the system. Faris said he told Doane, "What you decide is your business." Faris said he made many similar phone calls to state agencies on behalf of many other people during his tenure in the Legislature. He noted that Herron's uncle is Gordon Powell, who formerly worked for the state House of Representatives during sessions. He said Powell formerly served as board president for Central Arkansas Telephone Cooperative, where Faris was manager. Hopkins formerly represented the company as an attorney. Faris said he has been paid no funds by Chargois, Herron or Labaton Sucharow. Labaton Sucharow said the "referral payment discussed in the master's report was made to Mr. Chargois, a Texas-based lawyer, who first introduced our firm to Arkansas Teacher Retirement System in 2007 ... before George Hopkins was hired by the Arkansas Teacher Retirement System. "No referral payments were made to anyone in Arkansas," the law firm said in a written statement. Chargois and Herron, who are in a law firm together, could not be reached for comment by telephone last week. Labaton Sucharow said that "the State Street case has nothing whatsoever to do with kickbacks or payoffs or bribes or influence peddling or anything of that ilk. "The 'speculation' stems from the presiding judge's improper comments in the courtroom during a May 30 hearing in which he made both public and sidebar statements that in part prompted the law firms to seek his recusal from the case [and] that effort is now on appeal in the First Circuit," the firm said a statement. Praise For Settlement The special master, Rosen, said in his report that "after much work, dedication and exceptional effort in the discovery and mediation process, the parties ultimately reached a $300 million settlement. "Given the risks, complexities and legal challenges inherent in the litigation, it must be said that the $300 million settlement, procured by skilled and dedicated plaintiffs' counsel, was an excellent result for the class," he said. Rosen said the most significant issue raised during his investigation was the nondisclosure of the $4.1 million payment to Chargois, who neither appeared in the State Street case nor worked on it. He said the Labaton firm and Chargois & Herron law firm submitted a joint response to the retirement system's request for qualifications in July 2008. The report said the system's then-chief legal counsel, Christa Clark, informed Labaton that it had been selected as an additional monitoring counsel, but Chargois & Herron was not approved as part of the proposal. Clark also wrote, however, that Labaton could use Chargois & Herron on a case-by-case basis if it was "a necessary and appropriate expense." Labaton didn't seek Hopkins' approval to share information or remit payments to Chargois, and Hopkins was not informed of the agreement between Labaton and Damon Chargois that entitled Chargois to 20 percent of any attorney fee recovered on behalf of the Arkansas Teacher Retirement System, Rosen said. Hopkins instructed a Labaton official not to inform him about attorney fee allocations in the State Street or any other case in which the system is a class representative, Rosen said. Attorneys' Fees Shared Labaton has paid Chargois a percentage of Labaton's total fee award on at least nine cases, including the State Street case, since this arrangement began in 2008, Rosen said. In each of these cases, Labaton paid Chargois an amount that more often amounted to 10 percent to 15 percent rather than the originally agreed-upon 20 percent, and neither Chargois nor any of Chargois & Herron's attorneys appeared in court or did any work on the cases, Rosen said. In response to this newspaper's questions about the total amount Chargois was paid in these cases, Labaton Sucharow said, "In each case cited in the master's report, the court granted lead plaintiff counsel a percentage of the settlement amounts awarded to the respective class," and "all of those settlement amounts and attorney's fees are part of the public record. "The resulting distribution of those approved fees -- including allocation among co-counsel and referring counsel -- are not public; our firm, consistent with practice by other law firms, does not disclose how it distributes its fees," the law firm said in a written statement. Rosen said the federal judge wasn't informed about the $4.1 million payment to Chargois and that's "a material omission." But Labaton Sucharow said Massachusetts state law "is crystal clear" and class counsel is not required to disclose a referral payment absent an explicit order from the court, and the court made no order. "Moreover, ATRS has reaffirmed its consent to the issuance of this referral payment, which is adequate under clear and controlling precedent from the Massachusetts Supreme Judicial Court," the law firm said in a written statement. Hopkins' Role Questioned In his report, Rosen said Hopkins' statement that he was not concerned with how the aggregate attorney fees are distributed among lawyers or law firms in any way raises "serious questions about Hopkins' adequacy to serve as a class representative moving forward. "The class had a right to know that lead counsel intended to and did, pay $4 million out of settlement funds to a person who performed no work in the case, as a result of lead counsel's own pre-existing obligation, whether or not payment itself was permitted under Massachusetts ethical rules," Rosen said. "We cannot see how in the light of clear dereliction of his fiduciary duties to the class, Hopkins can fairly and adequately protect the class's interests moving forward," Rosen said. Hopkins, who is an attorney, said Friday in a written statement that he "was really surprised to see that the special master said this about me." He said the class representative is not supposed to oversee fee allocations between attorneys, and the special master cites no case, law or rule that places that duty on him. "I believe the special master is confused about this and just comes down on the wrong side of the law. He has spent almost $4 million so far to get to this point. So his statement about a 'clear dereliction' of my fiduciary duties to the class is just based on a false legal premise," Hopkins said. "The ultimately irony of the special master's position on my duty here is that he recommends clawing back attorney fees from the attorneys representing institutional investors and reallocating much of those same fees to ERISA attorneys in the case and NOT back to the class," Hopkins said. ERISA refers to the Employee Retirement Income Security Act of 1974, which applies to virtually all private sector benefit plans. Attorneys representing Employee Retirement Income Security Act plaintiffs also participated in the class-action lawsuit that started out as three separate suits that were later consolidated. Hopkins said, "I decided to stay in the case specifically to argue that if attorney fees are clawed back, the class members and not attorneys should be the beneficiary of any clawed back fees." Hopkins said all participants in this case have learned lessons. "I now inquire about referral fees and require much more transparency in fee petitions," he said. "Although I had tried to stay out of how attorneys worked together on cases, I now do so while still ensuring the attorneys engage the best legal firms to protect the class." [GN] STATE STREET: Committee to Get Report on ATRS Plaintiff Role ------------------------------------------------------------ Max Brantley, writing for Arkansas Times, reports that the legislature's joint retirement committee was set to get a report on July 17 on the Arkansas Teacher Retirement System's involvement as plaintiff in about a dozen class-action lawsuits. It is a topic of interest since a court in Massachusetts noted possible political connections in payment of a $4 million finder's fee out of $75 million in attorney fees awarded in a $300 million judgment against State Street Corp., an investment firm. That settlement is worth about $40 million to the Arkansas retirement system, compensation for a swindle in foreign exchange trading. Did somebody say politics, Arkansas style? See what you think. Here's what we know, from a report to the court in Massachusetts and reporting by Michael Wickline of the Arkansas Democrat-Gazette and here at the Arkansas Blog. ATRS' involvement dates back to at least 2008, when George Hopkins, a former state senator from Malvern, became director. He's told the Massachusetts court he wants the system to remain lead plaintiff -- and thus eligible for enhanced recovery -- despite a vote of the ATRS Board that he drop that role. Questions on that were expected on July 17. In preparation, ATRS has filed papers on all the cases in which it is involved, reimbursements from law firms so far, and the recently unsealed Massachusetts court report reviewing attorney fees in the case. A judge has said the Labaton, Sucharow law firm did a good job and won a good settlement. But questions were nonetheless raised about a $4.1 million finder's fee paid by Labaton to a Texas attorney, Damon Chargois, who introduced Labaton Sucharow, the lead law firm, to the ATRS. Labaton says finders' fees are legal and didn't come out of the settlement and it disputes ethical concerns raised by a special master. The presiding judge nonetheless suggested questions linger about whether payments stopped at Chargois. Who is Chargois and how did he come to be an intermediary between Arkansas and Labaton? Hopkins has testified that Steve Faris, who succeeded Hopkins as a senator from Malvern, had introduced Labaton to Paul Doane, then-director of ATRS in 2007. It was selected as a securities monitoring firm in 2008, before Hopkins became director. Mr. Faris, a one-time Democrat recently put on the Arkansas Public Employees Retirement System Board by Republican Gov. Asa Hutchinson, told the Democrat-Gazette that he called Doane at the request of a friend, Tim Herron, who is associated with the Mr. Chargois' law firm. He said he made many calls on behalf of many people as a legislators. Herron's uncle is Gordon Powell, who once worked for the House of Representatives during sessions. He was also board president for Central Arkansas Telephone Cooperative, where Mr. Faris once was employed as a manager. Hopkins once did legal work for the company. All insist nobody in Arkansas got money from money paid to Mr. Chargois. The Labaton firm bristled at suggestions by a special master of potential political influence peddling, disputing even a hint of kickbacks or payoffs. Still, Hopkins himself had told the judge in the case that he'd gotten encouragement from "political leaders" to get involved in class action cases, something he previously hadn't considered. Though not listed as attorney in the case, Mr. Chargois got a percentage of the Labaton award in the State Street case, as it has on at least nine more cases. The special master in the case has faulted Hopkins for the plaintiffs' lack of knowledge of the side payment to Chargois. But Mr. Hopkins said that wasn't his responsibility. Still, the presiding judge had concerns. As I wrote: Among other materials Labaton later turned over was a 2014 e-mail in which Mr. Chargois complained about being undercompensated in some of the other cases where Labaton represented ATRS. "We got you ATRS as a client after considerable favors, money spent and time dedicated in Arkansas," Mr. Chargois said in that e-mail. Mr. Faris is a Zelig figure in Arkansas politics. He first rose to my attention as gatekeeper for Secretary of State Bill McCuen, who died in prison after conviction of public corruption. He went on to the Senate and, then, despite being a Democrat, got brought on after he left office as right-hand man to Republican Senate President Pro Tem Michael Lamoureux. Mr. Lamoureux's career was marked by the disclosure that he wsas paid while a legislature by special interest groups. He left abruptly as Gov. Asa Hutchinson's chief of staff after a short tenure to become a lobbyist. He has since has been identified among the legislators who shipped state surplus money to the scandal-enmeshed Preferred Family Healthcare and affiliates, now suspended from $43 million in state contracts because of multiple fraud charges and convictions (unrelated to Mr. Lamoureux). While working for the Senate, Mr. Faris managed to obtain Little Rock living quarters in a pied a terre created out of a former state utility facility on Capitol grounds during Mr. McCuen's time in office. Mr. Faris also once hooked up State Treasurer Martha Shoffner with a free apartment in Little Rock. Owner: Tim Herron. Chad Day reported extensively on this deal in 2013 for the Democrat-Gazette after Ms. Shoffner's arrest for taking kickbacks on state bond business. (By the time of that article, Mr. Faris was a member of the state Lottery Commission.) By that account, Ms. Shoffner lived in the house at 2nd and Ringo for about four years, paying only utilities. She then moved to another Herron apartment but had to pay $800 a month rent. That obligation, according to the FBI, led to her need to get cash payments from a bond salesman to pay the rent. The National Review, in reporting on the finder's fee question in the State Street case, said Labaton's contributions to political candidates were minimal. In Arkansas, however, a little goes a long way. During Ms. Shoffner's runs for treasurer she netted more than $30,000 in contributions from Herron and his wife, Hopkins and his wife, Mr. Chargois and various members of the Labaton firm. She also came under fire during her service for taking a $10,000 check from a different New York law firm, rather than checks written for the maximum $2,000 from individual members. She said it was a clerical error. She was a member of the Teacher Retirement System Board at the time and voted on the firms hired for security monitoring work. Oh, and speaking of that Hot Spring County connection between Arkansas and a New York law firm: Eight members of the New York law firm gave $500 contributions in 2012 to a successful Democratic legislative candidate. David Kizzia. Of Malvern. It is shocking someone would speculate pay-to-play happens in Arkansas. [GN] STEEL & TUBE: Homeowners Sign Up to Steel Mesh Class Action ----------------------------------------------------------- Susan Edmunds, writing for the Stuff, reports that more homeowners have signed up to a class action against Steel & Tube after it pleaded guilty to making misleading claims about its steel mesh. The company pleaded guilty in November to 24 charges from the Commerce Commission relating to false and misleading representations. This mesh was sold between 2012 and 2016. But while it was marketed as being earthquake-grade, it did not meet testing standards. The 500E steel mesh standard was brought in by the government after the Canterbury earthquakes. It allows more movement of buildings so foundations do not crack. Steel mesh is typically used as reinforcement in concrete floor slabs, driveways or pathways to make them stronger and more able to withstand ground movement. The mesh is meant to be able to stretch by at least 10 per cent. The standard was increased from 2 per cent after the Christchurch earthquake. Lack of stretch was a reason the CTV Building collapsed, killing 115 people. Lawyer Adina Thorn, Esq. -- enquiries@adinathorn.co.nz -- is now proposing a class action to seek compensation for homeowners who have ended up with non-compliant steel mesh in their properties. "The mesh is there forever. Everyone wants to know their home is compliant. Steel & Tube cannot give that assurance -- we know the mesh is non-compliant -- what we don't know enough about is performance of that non-complaint mesh in an earthquake. That uncertainty is stressful and unacceptable. We are seeking for owners to be compensated for that." She said registrations of interest for the class action, which would be funded so owners did not have to pay the court costs, were running at a high level. Sentencing would bring more homeowners forward, she said. If the action is successful, the funder would receive a share of any payout. Mark Malpass, chief executive of Steel & Tube, said: "Steel & Tube acknowledged in the Commerce Commission prosecution that prior to April 2016 there were deficiencies in the testing of its steel mesh. Based on information presented at the sentencing hearing, Steel & Tube believes the mesh will perform in materially the same way as mesh tested in full compliance with the requirements of the standard."[GN] SUFFOLK, NY: Court Denies Certification of Taxpayers Class ---------------------------------------------------------- The Supreme Court, Suffolk County, denied Plaintiffs' Motion for Class Certification in the case captioned BRUCE W. BROWNYARD, ANTON BONDY, HARBOR CLUB, LLC, and those persons whose identities were unknown at the time of this action was commenced and who are also aggrieved as taxpayers of the Southwest Sewer District #3, herein named as Plaintiffs listed in Schedules A and B annexed to the Amended Complaint, Plaintiff(s), v. THE COUNTY OF SUFFOLK AND THE SOUTHWEST SEWER DISTRICT NO. 3, Defendant(s), Docket No. 1596-2015, Mot. Seq. Nos. 005-MD; 006-MG; 007-MD; 008-MD (Sup. Ct. Nassau County). In this putative class action, the plaintiffs' counsel alleges that the plaintiffs are comprised of over 340,000 residents and over 75,000 taxpayers/ratepayers of the Suffolk County Southwest Sewer District #3, who have been overtaxed and overcharged by the defendants in the collective amount of more than $259,000,000.00 as of the adopted 2017 Suffolk County Operating Budget and the County's adopted 2017-2019 Capital Budget and Program. According to plaintiffs' counsel, an average taxpayer in the District is entitled to a refund of $3,419.16. Pursuant to CPLR Section 901(a), one or more members of a plaintiff class may act in a representative capacity on behalf of all other members if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class which predominate over any questions affecting only individual members; (3) the claims of the representative parties are typical of the claims of the class; (4) the representative parties will fairly and adequately protect the interests of the class; and (5) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The plaintiff class representative has the burden of establishing compliance with the statutory requirements for class action certification under CPLR 901 and 902, and mere general or conclusory allegations in the pleadings or affidavits are insufficient to sustain this burden. In support of plaintiffs' motion, counsel submits an attorney affirmation with no affidavit from a party plaintiff. Since the plaintiffs' motion is supported merely by an attorney's affirmation, and since the plaintiffs' pleadings are unverified by a party and consist of general and conclusory allegations, the plaintiffs have failed to sustain the burden of establishing compliance with the statutory requirements for class action certification Therefore, plaintiffs' motion for class action status is denied. A full-text copy of the Nassau County Supreme Court's July 13, 2018 Opinion is available at https://tinyurl.com/ycudkzf7 from Leagle.com. Reilly, Like & Tenety, Paul Sabatino, II, Esq., Attorneys for Plaintiff. Arnold & Porter Kay Scholer LLP, Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Attorneys for Defendants. SUNWING VACATION: Faces Class Action on Use of Term "Champagne" --------------------------------------------------------------- On April 16, 2018, the Superior Court of Quebec authorized a class action brought by the Plaintiff against Sunwing Vacations Inc. and Sunwing Airlines Inc. on behalf of all Quebec consumers alleging the use of the word "champagne" in various ways without serving Champagne, engaging in an alleged deceptive commercial practice in contravention of the Consumer Protection Act. These allegations have not been proven in Court. The class action includes all consumers in Quebec who purchased (or obtained) tickets or travelled with Sunwing Vacations Inc., also doing business as Signature Vacations, or Sunwing Airlines Inc. for a flight or vacation package presented, publicized or described using the word "champagne" between February 10, 2014 and April 16, 2018. Contact: Mtre Sebastien A. Paquette,Esq. Mtre Jeremie Martin,Esq. Email: spaquette@champlainlawyers.com jmartin@champlainlawyers.com [GN] SWAP.COM INC: Haefner Seeks Unpaid Wages, Benefits Under WARN Act ----------------------------------------------------------------- Delaney Haefner on behalf of herself and all others similarly situated, Plaintiff, v. Swap.Com, Inc., Defendant, Case No. 18-cv-03682, (N.D. Ill., May 25, 2018), seeks collection of unpaid wages and benefits for sixty calendar days pursuant to the Worker Adjustment and Retraining Notification Act of 1988. Defendant was a Delaware corporation which maintains a facility at 850 Veterans Parkway, Bolingbrook, IL, where Haefner was an employee until she was terminated as part of, or as a result of a mass layoff in March 30, 2018. Swap.com failed to provide at least 60 days' advance written notice of termination, says the complaint. [BN] Plaintiff is represented by: Stuart J. Miller, Esq. LANKENAU & MILLER, LLP 132 Nassau Street, Suite 1100 New York, NY 10038 Tel: (212) 581-5005 Fax: (212) 581-2122 - and - Mary E. Olsen, Esq. M. Vance McCrary, Esq. THE GARDNER FIRM, PC 210 S. Washington Ave. Mobile, AL 36602 Tel: (251) 433-8100 Fax: (251) 433-8181 - and - Blair R. Zanzig, Esq. John F. Hiltz, Esq. HILTZ & ZANZIG LLC 53 West Jackson Blvd., Suite 205 Chicago, IL 60604 Tel: (312) 566-9008 Fax: (312) 566-9015 Email: bzanzig@hzlawgroup.com T-MOBILE USA: Court Narrows Claims in P. Ames' RFDCPA Suit ---------------------------------------------------------- The United States District Court for the Southern District of California granted in part and denied in part Defendant's Motion to Dismiss Plaintiff Patrick Ames' (Plaintiff) First Amended Complaint in the case captioned PATRICK AMES, Plaintiff, v. T-MOBILE USA, INC., Defendant, Case No. 3:17-cv-01666-L-AGS (S.D. Cal.). This case arises out of T-Mobile's alleged practice of soliciting personal information from potential customers and using it to open unauthorized cell phone service accounts. The alleged purpose of this practice is to generate revenue by billing the unauthorized accounts. The Plaintiff filed a putative class action complaint with the Superior Court of California, County of San Diego, alleging (1) violation of the Rosenthal Fair Debt Collection Practices Act (RFDCPA), (2) violation of the Consumer Legal Remedies Act (CLRA), (3) violation of Cal. Bus. Code Section 17200, (UCL); (4) common law fraud; and (5) invasion of privacy. RFDCPA CLAIM T-Mobile argues that the Plaintiff's RFDCPA claim fails because the Plaintiff does not allege a consumer debt. The existence of a consumer debt is a necessary element of the Plaintiff's RFDCPA claim. Consumer debt, for purposes of the RFDCPA, means debt stemming from a "consumer credit transaction." Because the Plaintiff thus fails to allege a consumer credit transaction, the Court grants T-Mobile's motion to dismiss as to the RFDCPA claim. Given that the Plaintiff has already amended his complaint once and he explicitly alleges that he did not purchase any goods or services from T-Mobile, it is clear that the Plaintiff cannot cure this defect through further amendment. This dismissal is therefore with prejudice. CLRA CLAIM To state a CLRA claim, a plaintiff must allege that a defendant caused him harm by employing a statutorily enumerated deceptive act or practice in connection with a consumer transactionfor the sale or lease of goods or services. Here, the Plaintiff argues in his opposition that T-Mobile forced the Plaintiff into a transaction and agreement without his permission. This argument is unpersuasive. The premise that the Plaintiff did not grant T-Mobile permission to charge him for telephone services is logically inconsistent with the idea that the Plaintiff and T-Mobile agreed to exchange telephone services for money. By thus alleging that he never entered into an agreement with T-Mobile, the Plaintiff has negated the transaction element of his CLRA claim. The Court therefore grants T-Mobile's motion with respect to the CLRA claim. UCL CLAIM T-Mobile argues that the Plaintiff lacks standing to bring his UCL claim. Standing under the UCL requires (1) a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) a showing that the economic injury was the result of, i.e., caused by, the unfair business practice. The Plaintiff here is subject to an imminent threat of injury from the allegedly enforceable $46.66 debt. T-Mobile cites no authority and presents no argument to the effect that the Court of Appeal in Hale (Hale v. Sharp Healthcare, 183 Cal.App.4th 1373, 1383-84 (2010), erred in holding that enforceable debt is independently sufficient to qualify as economic injury. Accordingly, the Court finds the Plaintiff has sufficiently alleged economic injury and therefore denies T-Mobile's motion to dismiss as to the UCL claim. COMMON LAW FRAUD CLAIM T-Mobile argues the Plaintiff fails to allege a misrepresentation because (1) he does not claim a credit report application was unnecessary to obtain a price quote on T-Mobile's services; (2) he fails to allege the representation of not being charged for a credit report application was false; and (3) his claim that he would not be charged for anything was implausible because telephone companies do not provide free phones. T-Mobile's arguments are problematic in that they ignore some of the Plaintiff's central allegations. The Plaintiff clearly alleges that T-Mobile represented to him that filling out the credit check application, without more, would not cause the Plaintiff to incur any charges. The Plaintiff alleges this representation was false because, after he filled out the application, T-Mobile used the information he provided to charge him for its services, despite the fact that he never agreed to such charges. This allegation is sufficient to state a misrepresentation. Accordingly, the Court denies T-Mobile's motion to dismiss as to the fraud claim. A full-text copy of the District Court's July 13, 2018 Order is available at https://tinyurl.com/ycmgf7gr from Leagle.com. Patrick Ames, individually and on behalf of all others similarly situated, Plaintiff, represented by Todd M. Friedman -- tfriedman@attorneysforconsumers.com -- Law Offices of Todd M. Friedman, P.C. T-Mobile USA, Inc., Defendant, represented by David Baird Carpenter -- david.carpenter@alston.com -- Alston & Bird, LLP, pro hac vice, Elizabeth Anne Sperling -- elizabeth.sperling@alston.com -- Alston & Bird LLP & Kristine M. Brown -- kristy.brown@alston.com -- Alston & Bird, LLP, pro hac vice. TECHTRONIC INDUSTRIES: Lakatosh Sues over Sale of Gravity Knives ---------------------------------------------------------------- GABRIEL LAKATOSH, on behalf of himself and all others similarly situated, the Plaintiff, v. TECHTRONIC INDUSTRIES COMPANY, LTD.; MILWAUKEE ELECTRIC TOOL CORPORATION; THE HOME DEPOT, INC.; and DOES 1-10, inclusive, the Defendant, Case No. BC713875 (Cal. Super. Ct., July 6, 2018), alleges that Defendants have uniformly marketed and offered for sale illegal gravity knives despite their illegality and without representing them as such to consumers. Techtronic, through its Milwaukee brand, manufactures, markets and sells a popular model of utility knife known as Milwaukee Fastback "Press and Flip" Knife. According to the Milwaukee brand's own publicity pieces, the Milwaukee Fastback Products are "[djesigned to activate the blade 3X faster than a 2-handed opening [utility knife]." The resulting "easy activation" confirms Techtronic's "relentless commitment to provide innovative solutions to the end user that will increase productivity." The glaring trouble with Milwaukee Fastback Products, however, is that they are illegal to possess or carry in many jurisdictions. Defendants nevertheless market and sell Milwaukee Fastback Products virtually everywhere, including through Defendant The Home Depot, Inc. stores and various other retail outlets, including Amazon.com and other online vendors. Defendant The Home Depot, Inc., sells its own house-branded knives under the "Husky" name that operate similarly to the Milwaukee Fastback Products, and are similarly illegal in many jurisdictions. Collectively, the Milwaukee Fastback Products and the similar Husky knives, are referred to herein as the "Illegal Gravity Knives." Techtronic, through Milwaukee, manufactures in China and sells in the United States a series of foldable knives under the brand name "Fastback." Some Fastbacks, referred to generally as "folding knives," are more akin to a traditional folding-blade pocketknife, while others are described as "utility knives." The Milwaukee Fastback Products, and the similar Husky knives, may be activated (meaning the blade is exposed and locked in an open, operable position) by holding the knife in one hand, cocking the wrist, depressing a button in the handle, and quickly uncocking or flipping the wrist outward.[BN] The Plaintiff is represented by: Paul R. Kiesel, Esq. Jeffrey A. Koncius, Esq. Nicole Ramirez, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211-2910 Telephone: (310) 854 4444 Facsimile: (310) 854 0812 E-mail: kiesel@kiesel.law koncius@kiesel.law ramirez@kiesel.law - and - Joseph J. Zonies, Esq. Anthony L. Giacomini, Esq. Gregory D. Bentley, Esq. ZONIES LAW LLC 1700 Lincoln Street, Suite 2400 Denver, CO 80203 Telephone: (720) 464 5300 Facsimile: (720) 961 9252 E-mail: jzonies@zonieslaw.com agiacomini@zonieslaw.com gbentley@zonieslaw.com - and - Benjamin B. Lieb TALUS LAW GROUP LLC 816 South Adams Streets Denver, CO 80203 Telephone: (303) 246 4767 E-mail: ben@taluslaw.com TEVA CANADA: Valsartan Class Action Commences --------------------------------------------- A proposed national class action has been commenced on behalf of all Canadians who purchased or ingested one or more of the valsartan medications which have been recalled. For more information go to http://valsartanclassaction.com. In the proposed class action, the plaintiff alleges that the five defendant pharmaceutical companies who supplied contaminated valsartan to Canadians across the country, were negligent in their manufacturing of the drugs and in their failure to implement appropriate quality control testing when they received raw material from their supplier in China. According to the Health Canada bulletin, NDMA is a potential human carcinogen which means that it could cause cancer with long-term exposure. According to Health Canada, the valsartan with the NDMA impurity was supplied by a Chinese manufacturer Zhejiang Huahai Pharmaceuticals. The defendants in the proposed class action are five pharmaceutical companies whose products appear on the Health Canada recall bulletin. The defendants are Teva Canada Limited, Sandoz Canada Inc., Pro Doc Limitee, Sanis Health Inc., and Sivem Pharmaceuticals ULC. "It is horrifying that Canadians can never be sure what ingredients are going into their medication. We have no way of knowing where pharmaceutical companies are sourcing their ingredients, whether it is China or other countries around the world who may not have proper quality control measures in place. Maybe the time has come to identify the country of origin for drugs being sold to Canadians," said Ted Charney of Charney Lawyers PC. Contact: Ted Charney,Esq. Charney Lawyers PC Telephone: 416.964.7950 ext. 225 Email: tedc@charneylawyers.com [GN] TOSHIBA CORP: 9th Cir. Reverses Class Action Dismissal ------------------------------------------------------ Shearman & Sterling LLP on July 24 disclosed that on July 17, 2018, the United States Court of Appeals for the Ninth Circuit reversed the dismissal of a putative securities class action, which alleged that a technology company (the "Company") and its current and former chief executive officers engaged in fraudulent accounting in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as Japanese securities law. Automotive Industries Pension Trust Fund, et al. v. Toshiba Corp., No. 16-56058 (9th Cir. July 17, 2018). In its ruling, the Ninth Circuit analyzed the second prong of the transaction test articulated in Morrison v. National Australia Bank, 561 U.S. 247 (2010) and adopted the Second and Third Circuits' "irrevocable liability" test, which evaluates where the purchasers incurred the liability to take and pay for securities, and where the seller incurred the liability to deliver the securities. The Ninth Circuit remanded the case to the district court so that plaintiffs could amend their complaint to try to meet this standard. The Company is based in Tokyo, Japan and its ordinary shares trade on the Tokyo Stock Exchange. Lead plaintiff is a U.S.-based pension fund that purchased the Company's American Depository Receipts ("ADRs") on an over-the-counter market. At issue in the case is the scope of the Supreme Court's decision in Morrison, where the Court held that the Exchange Act did not apply extraterritorially and thus is limited to deceptive conduct in connection with the purchase or sales of any securities (i) registered on a national securities exchange, or (ii) domestic transactions in other securities not so registered. In the district court, defendants argued that, under Morrison, the putative securities fraud class action should be dismissed because the over-the-counter market on which the ADRs were sold is not a "national exchange" within the meaning of Morrison, and there was not a domestic transaction between the ADR purchaser and the Company. The district court agreed and dismissed the case. On appeal, the Ninth Circuit first ruled that lead plaintiff could not satisfy the first prong of the Morrison test because the over-the-counter market on which the Company's ADRs traded is not an "exchange" under the Exchange Act. With regard to the second prong of the Morrison test (i.e., domestic transactions in other securities not so registered), the Ninth Circuit adopted the Second and Third Circuits' "irrevocable liability" test, which looks to where purchasers incurred liability to take and pay for securities, and where sellers incurred the liability to deliver the securities. The Court noted that lead plaintiff purchased the ADRs in the United States and the depositary bank sold the ADRs in the United States. Missing from the complaint, however, were specific factual allegations regarding where the parties to the transaction incurred irrevocable liability. As a result, the Ninth Circuit remanded the case to the district court to allow plaintiffs to file an amended complaint. This decision is significant because it establishes in the Ninth Circuit that non-U.S. companies can be subject to liability under the Exchange Act in connection with the purchase and sale of ADRs, even when the ADRs do not trade on a U.S. exchange. The case is AUTO INDUS PENSION TRUST FUND V TOSHIBA [GN] TRANSAMERICA LIFE: Bid to Certify Terminated Policy Classes Stayed ------------------------------------------------------------------ In the lawsuit captioned GORDON AND MARY FELLER ET AL., the Plaintiffs, v. TRANSAMERICA LIFE INSURANCE COMPANY, the Defendant, Case No. 2:16-cv-01378-CAS-GJS (C.D. Cal.), the Hon. Judge Christina A. Snyder entered an order staying Plaintiffs' motion for class certification of terminated policy classes, pending the outcome of the Ninth Circuit's decision of an appeal. Once the Ninth Circuit has ruled, the parties shall submit a stipulated briefing schedule. The Court said, "On March 27, 2018, the Court of Appeals for the Ninth Circuit granted defendant Transamerica Life Insurance Company's petition for permission to appeal the Court's December 11, 2017 order granting class certification for classes of policyholders with polices that remained in-force. On May 24, 2018, plaintiffs Gordon and Mary Feller, et al., filed a motion for class certification for classes of policyholders with terminated policies. Plaintiffs seek to certify a national class and California subclasses encompassing policies that were subjected to MDR increases and thereafter terminated due to lapse or surrender. Plaintiffs contend that the legal analysis required to address plaintiffs' motion is "essentially the same" as the analysis used in the Court's December 11, 2017 order. Given that the owners of the terminated policies assert "legal claims identical to those alleged with respect to the in-force [p]olicies," the Court declines to rule on plaintiffs' motion for class certification for classes of policyholders with terminated policies until the Ninth Circuit has ruled on the pending appeal." TURNER OIL: Approval of FLSA Suit Settlement Recommended -------------------------------------------------------- In the case, JONATHAN STANLEY, et al., Plaintiffs, v. TURNER OIL & GAS PROPERTIES, INC., Defendant, Case No. 2:16-cv-386 (S.D. Ohio), Magistrate Judge Elizabeth A. Preston Deavers of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommended that the Court grants (i) the parties' Joint Motion for Approval of Class Action Settlement, and (ii) the Plaintiffs' counsel' motion for attorney's fees and reimbursement of costs. This is a collective action under the Fair Labor Standards Act ("FLSA"), and a class action under Rule 23 of the Federal Rules of Civil Procedure, in which the Plaintiffs allege that Turner failed to compensate individuals it employed in the Landman position with overtime pay in violation of the FLSA and, for each Landman working in Ohio, the Ohio Minimum Fair Wage Standards Act ("OMFWSA"). The Plaintiffs maintain that Turner misclassified each Landman as an independent contractor, rather than an employee, and required them to work overtime without being properly paid. Among other defenses, Turner asserts that the Plaintiffs-Landmen were property classified, treated, and paid as independent contractors. On Jan. 13, 2017, the Court granted in part the Plaintiffs' motion to conditionally certify an opt-in class under 29 U.S.C. Section 216(b), preliminarily certified the case as a collective action, and authorized notice to be sent to the potential opt-in Plaintiffs. Thereafter, the parties reached a settlement of the collective-action claims and moved the Court to approve their settlement. On Oct. 2, 2017, the Court granted the parties' joint motion for approval of the collective action settlement, which included the class representatives as well as 25 other individuals who filed opt-in notices ("the Section 216(b) class"). Pursuant to the parties' agreement, Turner would pay a settlement fund of $344,850, with $241,895 of that total amount paid to the individual opt-in Plaintiffs and $102,955 of the total payment paid to the Plaintiffs' attorneys for fees, expenses, and costs. The parties also moved for preliminary approval of the Rule 23 class action claim. In response to the Court's Order, the parties submitted a revised class notice. On March 6, 2018, the Court preliminarily approved the parties' settlement and conditionally certified the following settlement class of 106 individuals for settlement purposes only: all individuals who provided contract Landman abstract title and related services to Turner between May 20, 2014, and March 27, 2016 ("the Rule 23 settlement class"). The Court directed that notice be provided to the class members and referred the matter to Magistrate Judge Deavers to conduct a fairness hearing and to issue a report and recommendation. Consistent with Section 4 of the Joint Stipulation of Class Action Settlement and Release, Turner, as the claims administrator, provided notice to the members of the Rule 23 settlement class. The notice period ran from March 27, 2018, through April 26, 2018. No objections to the proposed settlement have been filed. On June 5, 2018, the Magistrate Judge conducted a fairness hearing. The counsel for both parties appeared. Other than named Plaintiff Stanley, no class members or objectors appeared personally. The parties have moved for final approval of the class action settlement. The Plaintiff's counsel has filed a motion for attorney's fees and reimbursement of costs as well as supplements to that request. Magistrate Judge Deavers finds that the Plaintiffs have met their burden of showing that the prerequisites for the certification of a class action pursuant to Rule 23(a) and Rule 23(b)(3) have been satisfied in the case, that the Settlement Agreement is fair, reasonable, and adequate, and, if certain conditions are met, that the Plaintiffs' counsel's requested award of fees and expenses is fair and reasonable. Accordingly, she recommended that (1) because the proposed settlement of the action on the terms and conditions set forth in the Settlement Agreement is fair, reasonable, adequate, and in the best interest of the Class, that the Joint Motion for Approval be granted, and that the Settlement Agreement be finally approved by the Court only on the condition that the counsel submits the information identified in subparts (5)(a)-(c) (2) the Rule 23 class be finally certified for settlement purposes; (3) the action be dismissed with prejudice pursuant to the terms of the Settlement Agreement; (4) the Rule 23 settlement class, the Representative Plaintiffs, and Turner be bound by the release as set forth in the Settlement Agreement; and (5) the Plaintiffs' counsel's Motion for Fees and Costs be granted, and that the Plaintiffs' counsel be awarded reasonable attorneys' fees in the amount of $49,105.30, and reimbursement of expenses in the amount of $431.37, for a total combined amount of $49,536.67, only on the condition that counsel file the following information with the Court within seven days of the Report and Recommendation: (a) a breakdown of the calculation reflecting how counsel determined the proportionate reduction to the settlement fund, including details of the amount of lost overtime for each of the 55 class members who opted-out of the settlement; (b)atotal list of anticipated payouts to the class members; and (c) clarification of the dollar amount in the cy pres fund and the name of the charity, if one has been mutually selected by the parties. If any party seeks review by the District Judge of the Report and Recommendation, that party may, within 14 days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part in question, as well as the basis for objection. The response to objections must be filed within 14 days after being served with a copy. The Magistrate Judge specifically advised the parties that the failure to object to the Report and Recommendation will result in a waiver of the right to de novo review of by the District Judge and waiver of the right to appeal the judgment of the District Court. Even when timely objections are filed, the appellate review of issues not raised in those objections is waived. A full-text copy of the Court's June 12, 2018 Report & Recommendation is available at https://is.gd/2QwtWS from Leagle.com. Jonathan Stanley, Mary Elliott, Mark C. Ramach, Joshua Foote, Sean Barber, Jason Wiemann, Michael W. Babin, Robert Stovall, Patti Stovall, Sarabeth Yoder, Derek Dierkes, Maria Rizkall-Gerguis, Shaun Weidman, Diana Carman, Catherine Sakla, Jason Bigley, Emily Sullivan, Christina Hanna, Caroline Chesher & Heather Atkinson, Plaintiffs, represented by Edward Reilley Forman -- eforman@marshallandmorrow.com -- Marshall and Forman LLC, John Spenceley Marshall -- jmarshall@marshallandmorrow.com -- Marshall and Forman, LLC, Louis Abraham Jacobs , Marshall and Morrow LLC, Samuel Micah Schlein -- sschlein@marshallandmorrow.com -- Marshall and Forman LLC & Matthew A. Schwartz -- MSchwartzLaw@Gmail.com -- Law Office of Matthew A. Schwartz. Turner Oil & Gas Properties, Inc, Defendant, represented by Jonathan Rea Secrest -- jsecrest@dickinsonwright.com -- Dickinson Wright PLLC & Sara H. Jodka -- sjodka@dickinsonwright.com -- Dickinson Wright PLLC. TWITTER INC: Court Certifies Securities Fraud Class --------------------------------------------------- The United States District Court for the Northern District of California granted Plaintiffs' Motion for Class Certification in the case captioned In Re TWITTER INC. SECURITIES LITIGATION. Case No. 16-cv-05314-JST. (N.D. Cal.) This is a securities class action on behalf of all persons who purchased or otherwise acquired Twitter common stock between February 6, 2015 and July 28, 2015 against Twitter and two of its officers for violations of Sections 10 and 20(a) of the Securities Exchange Act of 1934. Plaintiff Doris Shenwick alleges that the Defendants made materially false and misleading statements during the Class Period in press releases and filings with the SEC and in oral statements to the media, securities analysts and investors. Rule 23(a) provides: One or more members of a class may sue or be sued as representative parties on behalf of all members only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Class certification is proper only if the trial court has concluded, after a rigorous analysis, that Rule 23(a) has been satisfied. Second, a plaintiff must also establish that one of the bases for certification in Rule 23(b) is met. Here, the Plaintiffs invoke Rule 23(b)(3), which requires that the Plaintiffs show that the presence of questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. PROPOSED CLASS DEFINITION The Plaintiffs seek to certify a class of all persons and entities that, during the period from February 6, 2015, through July 28, 2015, inclusive, purchased or otherwise acquired shares of the publicly traded common stock of Twitter, Inc. and were damaged thereby. Rule 23(a) Requirements Numerosity The numerosity requirement is satisfied when a plaintiff shows that the class is so numerous that joinder of all members is impracticable. The Plaintiffs contend that Twitter had an average of 659.2 million shares outstanding and actively trading on the New York Stock Exchange (NYSE) during the Class Period. The Plaintiffs have satisfied their burden to show the number of putative class members is sufficiently numerous that their joinder would be impracticable. Commonality The commonality requirement is satisfied when a plaintiff shows that there are questions of law or fact common to the class. The Plaintiffs contend, and the Defendants do not dispute, that questions of law or fact common to the putative class include: (1) whether the Defendants' statements to the investing public during the Class Period misrepresented material facts about Twitter (2) whether the Defendants' statements omitted material facts necessary to make the statements, in light of the circumstances under which they were made, not misleading; (3) whether the Defendants acted with the requisite state of mind and (4) whether Twitter's stock price was artificially inflated as a result of the Defendants' misrepresentations and/or omissions. These questions are sufficient to fulfill the commonality requirement. Adequacy of Representation To determine whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? The Plaintiffs argue KBC and National Elevator are adequate co-class representatives because they were injured by Twitter's misstatements and omissions in the same way as other class members, and will vigorously represent the class. KBC is an asset management company which purchased 647,544 Twitter shares, held 344,410 shares on the date of Twitter's 1Q15 earnings call, and held 20,870 shares at the end of the class period. KBC suffered substantial losses as a result of Twitter's omissions and misstatements. KBC reviewed the complaint, did not purchase shares at the direction of counsel, is willing to serve as a representative, and will not accept payment beyond that ordered by the Court. National Elevator provides retirement benefits for members for the International Union of Elevator Constructors. National Elevator purchased and held 91,700 Twitter shares during the class period including during the 1Q15 earnings call, then held 16,920 at the end of the class period. National Elevator is similarly involved in the case. Motley Rice and Robbins Geller seek appointment as co-class counsel. In appointing class counsel, the Court considers counsel's work in identifying or investigating potential claims in the action, experience in handling class actions, knowledge of the applicable law and the resources that counsel will commit to representing the class. Both firms have extensive class action securities litigation experience. Motley Rice and Robbins Geller have both vigorously prosecuted this case by investigating claims, preparing the complaint, defending the complaint against dismissal, conducting discovery, and pursuing class certification. Twitter argues it is unnecessary to appoint Robbins Geller because Motley Rice is adequate on its own. This argument is not persuasive. First, Twitter cites an out-of-circuit district court case for the proposition that the Court should reject Plaintiffs' request for co-lead counsel. Even that case, however, recognized that in certain situations, the appointment of multiple lead counsel may better protect the interests of the plaintiff class. Second, to state the obvious, Twitter's interests in this litigation are not aligned with those of the class. Thus, it is unlikely that Twitter has the class's interests in mind when it argues against the appointment of additional counsel. Lastly, courts in this district and circuit have appointed co-class counsel in PSLRA cases. This is a large securities case defended by experienced, knowledgeable counsel, and it is appropriate for Motley Rice to call upon additional resources. The appointment of co-class counsel is appropriate. The Court finds that KBC and National Elevator are adequate class representatives, and Motley Rice and Robbins Geller are adequate class counsel. Typicality Typicality exists if the claims or defenses of the representative parties are typical of the claims or defenses of the class. The Plaintiffs contend that typicality is satisfied because both KBC's and National Elevator's claims and injuries arise from the same events and conduct that gave rise to the claims of other Class members. Defendants do not contest typicality, nor does it appear that KBC and National Elevator are subject to unique defenses which would threaten to become the focus of the litigation. Accordingly, the typicality requirement is satisfied. Rule 23(b)(3) Requirements Predominance The predominance analysis under Rule 23(b)(3) focuses on the relationship between the common and individual issues' in the case and tests whether the proposed class is sufficiently cohesive to warrant adjudication by representation. The Defendants attack not the methodology of the proposed model, but the fact that the Plaintiffs' expert has not yet calculated damages for the Class's alleged claims. But the Plaintiffs' burden at this stage is only to demonstrate that the questions of law or fact common to the class members predominate over any questions affecting only individual members. Similarly, the Plaintiffs' measure of damages here constitutes a sound methodology and they have satisfied the predominance requirement of Rule 23(b)(3). Superiority The second Rule 23(b)(3) requirement is superiority. In determining superiority, courts must consider the four factors of Rule 23(b)(3): (1) the class members' interests in individually controlling a separate action; (2) the extent and nature of litigation concerning the controversy already begun by or against class members; (3) the desirability of concentrating the litigation in the particular forum; and (4) the manageability of a class action. Courts in this district have recognized the utility of the class action device in securities cases. Not only are all factors met here, but Defendants also do not contest superiority. The Court therefore concludes that a class action is superior to other methods for resolving this controversy. CONCLUSION For these reasons, the Court certifies a class defined as follows: all persons and entities that, during the period from February 6, 2015, through July 28, 2015, inclusive, purchased or otherwise acquired shares of the publicly traded common stock of Twitter, Inc. and were damaged thereby. A full-text copy of the District Court's July 16, 2018 Order is available at https://tinyurl.com/y84xqbao from Leagle.com. Doris Shenwick, as Trustee for the Doris Shenwick Trust, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Daniel S. Drosman -- dand@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Danielle Suzanne Myers -- denim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, David Conrad Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jeffrey S. Abraham -- jabraham@aftlaw.com - Abraham, Fruchter & Twersky, LLP, Juan Carlos Sanchez -- jsanchez@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Lesley Elizabeth Weaver -- lweaver@bfalaw.com -- Bleichmar Fonti & Auld LLP, Matthew Sinclair Weiler -- mweiler@bfalaw.com -- Bleichmar Fonti & Auld LLP, Scott H. Saham -- scotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Susannah Ruth Conn -- scoon@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Twitter, Inc., Richard Costolo & Anthony Noto, Defendants, represented by James Glenn Kreissman -- jkreissman@stblaw.com -- Simpson Thacher & Bartlett LLP, Alexis Susan Coll-Very -- acoll-very@stblaw.com -- Simpson Thacher & Bartlett LLP, Dean Michael McGee , Simpson Thacher Bartlett LLP, pro hac vice, Janet A. Gochman -- jgochman@stblaw.com -- Simpson Thacher & Bartlett, LLP, pro hac vice, Jonathan K. Youngwood -- jyoungwood@stblaw.com -- Simpson Thacher & Bartlett LLP & Simona Gurevich Strauss -- sstrauss@stblaw.com -- Simpson Thacher & Bartlett LLP. John P. Norton, Movant, represented by Michael Walter Stocker -- mikes@hbsslaw.com -- Labaton Sucharow LLP, Christopher J. Keller , Labaton Sucharow LLP & Francis P. McConville , Labaton Sucharow LLP. U.S. XPRESS: I. Nunez's Suit Remains in District Court ------------------------------------------------------ The United States District Court for the Western District of Louisiana, Lake Charles Division, adopts the Report and Recommendation of the Magistrate Judge on Plaintiff's Motion to Remand in the case captioned ISA NUNEZ, v. U.S. XPRESS LEASING, INC., ET AL, Civil Action No. 2:17-1322 (W.D. La.). The Plaintiff argues that removal is untimely under 28 U.S.C. Section 1446(c)(1). Under the removal statute, a case that is not initially removable may be removed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. As the Magistrate Judge correctly found, Defendant Mountain Lake Risk Retention Group, Inc., removed the action pursuant to 28 U.S.C. Section 1446(b)(1). Under this provision, a defendant may remove an action within thirty days of service of the initial pleading. The Fifth Circuit has held that this provision also allows an unserved defendant to remove a commenced action prior to being served. The instant action commenced when the Plaintiff filed her petition in state court in January 2016, but the Plaintiff never served Mountain Lake. Under Delgado v. Shell Oil Co., 231 F.3d 165, 177 (5th Cir. 2000), Mountain Lake could thus remove the action at any time. Because removal in this case occurred pursuant to the right of removal in advance of service and not the right of removal following receipt of a document indicating the existence of grounds for removal the one-year time bar in Section 1446(c)(1) does not apply. This Court may properly exercise removal jurisdiction. Because Mountain Lake's notice of removal was timely, the Plaintiff's Motion to Remand and for Attorney Fees is denied. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/yapslz49 from Leagle.com. Lisa Nunez, Plaintiff, represented by Erin M. Alley , Baggett McCall et al. U S Xpress Leasing Inc, Total Transportation of Mississippi L L C, Wallace Dalton Graham & Mountain Lake Risk Retention Group Inc, Defendants, represented by James M. Dill , Dill Law Firm. UBER TECHNOLOGIES: Class Action Not Subject to Arbitration ---------------------------------------------------------- Eric T. Beckman, writing for BridgeTower Media Newswire, reports that a putative class-action accusing the ride-share service Uber of imposing fictitious fees was not subject to arbitration, the 1st U.S. Circuit Court of Appeals has ruled. [GN] UBER TECHNOLOGIES: London Taxi Drivers Mull Class Action -------------------------------------------------------- Kate Holton, writing for Reuters, reports that London taxi drivers are exploring whether they could bring a class action lawsuit against Uber, their trade body confirmed on July 24, after the mobile app was granted a temporary licence renewal to operate in Britain's capital. "We've been approached by a number of members to help them explore whether there would be grounds for a potential class action on behalf of all taxi drivers against Uber," Steve McNamara, General Secretary of the Licensed Taxi Drivers' Association, said in a statement. "We are in the very early stages of obtaining legal advice from leading law firm Mishcon de Reya on whether this is a possibility," he added. Sky News had previously reported the plan. [GN] UNITED PARCEL: Court Denies R. Holl's Writ of Mandamus ------------------------------------------------------ The United States District Court for the Northern District of California denied Plaintiffs' Writ of Mandamus in the case captioned RANDALL HOLL, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant, Case No. 16-cv-05856-HSG (N.D. Cal.). Plaintiff Randall Holl filed a putative class action complaint against Defendant United Parcel Service, Inc. The complaint alleges that the Defendant violated the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Interstate Commerce Act, 49 U.S.C. Section 13708(b), and asserts federal and state law unjust enrichment claims. The Plaintiff seeks a writ of mandamus directing the district court to vacate its order compelling arbitration and enter an order denying defendant United Parcel Service, Inc.'s motion to compel arbitration. The Court does wish to respond to the Plaintiff's assertions that (1) the Court's exercise of its discretion to stay rather than dismiss the case was based on an incorrect reading of the law, and (2) the Court's statement that a party challenging an order compelling arbitration and staying the action may proceed immediately to a direct appeal by simply dismissing his claims under Rule 41 is legally incorrect. As to the first point, the Court's order denying leave to seek reconsideration, which cited Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014), did not make a claim. Instead, it quoted, verbatim, binding circuit precedent. Plaintiff does not argue that the Court inaccurately quoted Nguyen, or that Nguyen in turn inaccurately cited Section 3 of the FAA. In any event, the Court recognized that dismissal could be granted as a matter of discretion, but found that Plaintiff failed to show any manifest failure to consider his argument raised in passing in a footnote at the very end of his opposition brief) so as to warrant reconsideration. The Court's order compelling arbitration was unambiguous, and granted the precise relief that the moving party had requested: a stay. The Court thus found that Plaintiff failed to meet his burden of showing that reconsideration was warranted under this district's local rules. As to the second point, the Court submits that a close reading of Plaintiff's footnote 21, and the cases cited in it, does not establish that the statement that Plaintiff could have voluntarily dismissed his case if he wanted to appeal immediately was legally incorrect. The Ninth Circuit has repeatedly recognized that voluntary dismissals with prejudice that produce an adverse final judgment may be appealed. A full-text copy of the District Court's June 7, 2018 Order is available at https://tinyurl.com/yaq9cvcf from Leagle.com. Randall Holl, individually, on behalf of others similarly situated, and as a representative of the class,, Plaintiff, represented by Matthew C. Helland -- helland@nka.com -- Nichols Kaster, LLP, Adam William Hansen -- atadam@apollo-law.com -- Apollo Law, LLC, Brock J. Specht -- bspecht@nka.com -- Nichols Kaster, LLP, pro hac vice & Kai Richter -- KRichter@nka.com -- Nichols Kaster, PLLP, pro hac vice. United Parcel Service, Inc., Defendant, represented by Stacey Michelle Sprenkel -- ssprenkel@mofo.com -- Morrison & Foerster LLP & Gregory Bryant Koltun -- gkoltun@mofo.com -- Morrison & Foerster LLP. UNITED STATES: Dismissal of VOA Contractors' FAC Affirmed --------------------------------------------------------- The United States Court of Appeals, Federal Circuit, affirmed the Court of Federal Claims' judgment granting Defendants' Motion to Dismiss the First Amended Complaint in the case captioned SEH AHN LEE, IRINA RYAN, AHMAD NARIMAN, MARK PEACH, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, No. 2017-1643 (Fed. Cir.). The Plaintiffs each entered into agreements to provide services to Voice of America (VOA), a U.S. government funded broadcast service. The agreements were in the form of a series of individual purchase order vendor (POV) contracts. Unhappy with the terms of their contracts, the plaintiffs filed a class action complaint alleging that, along with other individuals who have served as independent contractors for VOA, they should have been retained through personal services contracts or appointed to positions in the civil service. On appeal, the plaintiffs raise several contract-based claims, seeking damages for the loss of the additional compensation and benefits to which they contend they were entitled. In support of the breach of express contract theory presented in their first amended complaint, the plaintiffs argue on appeal that the scope of their work was materially limited by the use of terms such as independent contracting and non-personal services in their contracts. In asserting that the breach of their contract rights consisted of the failure to compensate them for providing personal services, the plaintiffs ignored the fact that their contracts specifically designated them as independent contractors who were not providing personal services and set forth their compensation accordingly. For that reason, the trial court properly concluded that the BBG did not breach any contractual obligations with respect to the plaintiffs' compensation, and that the alleged contract breaches were necessarily based on an implied contract to provide and be compensated for personal services, rather than on their express contracts. The Claims Court therefore properly dismissed the allegations of breach of express contract contained in Count II of the first amended complaint. The plaintiffs next argue that the trial court erred in concluding that the proposed second amended complaint failed to state a claim for breach of express contract, and that the proposed amendments were therefore futile. The Court discerns no error in the trial court's assessment of the proposed second amended complaint and the language of the plaintiffs' express contracts. On appeal, the plaintiffs fail to identify any specific provision of the representative contracts that was breached, instead, they rely on general allegations regarding the rights normally enjoyed by independent contractors. The plaintiffs' argument that the government breached the contracts by requiring the plaintiffs to provide services that were integral to its governmental mission and to perform services of the type performed by federal employees is general in nature and is not based on any particular provision in the contracts. The plaintiffs' only allegation on that score is that independent contracts do not allow for such work, according to provisions of the Federal Acquisition Regulation (FAR). That allegation, however, is directed to the requirements of the regulation, not the provisions of the plaintiffs' contracts. The proposed second amended complaint contains no allegation that any provision in the plaintiffs' express contracts specifically prohibited such arrangements or that the government breached any such provision in the course of administering the contracts. The Claims Court correctly held that the proposed second amended complaint failed to set forth a cognizable theory of breach of express contract. The plaintiffs alleged as part of their overall breach of contract claim that they served under implied-in-fact contracts and that the BBG was liable to them under the implied-in-fact contract theory of quantum meruit for the value of the personal services they provided, together with their costs of performance and a reasonable profit. The trial court determined that the plaintiffs' implied contract and quantum meruit claims could not survive a motion to dismiss. In reaching that conclusion, the court ruled that the express contracts between the parties were not void, and that the terms of the express contracts covered the same subject matter as the alleged implied-infact contracts. The court therefore concluded that the respective rights of the parties were defined not by any implied-in-fact contracts or the principles of quantum meruit, but by the terms of their express contracts. The Court finds no error in the trial court's determination that the alleged implied-in-fact contracts do not deal with subject matter that is separate from and unrelated to the valid express contracts. Because the plaintiffs had express contracts with the government to provide the services they rendered, and because the plaintiffs have not alleged that they performed additional work entirely unrelated to their express contracts, there is no force to their theory that they had implied-in-fact contracts to perform the same work that was the subject of their express POV contracts.5 Accordingly, in order to prevail on their implied-in-fact contract claim, the plaintiffs must show that their express contracts were void. The plaintiffs separately allege that they are entitled to relief under a quantum meruit theory. It appears, however, that the plaintiffs' quantum meruit theory is in essence the same as their implied-in-fact contract theory. Because the plaintiffs seek to model their quantum meruit theory of relief on the Amdahl case, we treat their argument as being based on an implied-in-fact contract theory over which the Claims Court has jurisdiction. As indicated above, however, the plaintiffs' implied-in-fact contract theory cannot survive a motion to dismiss for failure to state a claim on which relief can be granted. The assertion of quantum meruit as a basis for calculating damages cannot rescue an implied-in-fact theory of recovery that is otherwise not cognizable. The trial court therefore properly dismissed the plaintiffs' quantum meruit claim as well. A full-text copy of the Federal Circuit Court's July 13, 2018 Opinion is available at https://tinyurl.com/y6uqbpc5 from Leagle.com. DAVID LEO ENGELHARDT , Themis, PLLC, argued for plaintiffs-appellants. Also represented by JOHN PIERCE , MICHAEL CONE. HILLARY STERN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by CHAD A. READLER , ROBERT E. KIRSCHMAN, JR. , REGINALD T. BLADES, JR. UNITED STATES: Iraqi Files Citizenship Suit Amid Class Action ------------------------------------------------------------- Howard Altman, writing for TBO, reports that Haeder Alanbki, an Iraqi living in Orlando, applied to become a U.S. citizen in 2016. Given his years as an interpreter for U.S. forces in Iraq, he thought it would be a simple formality. But in a lawsuit he filed last month against the government, Mr. Alanbki claims he is the victim of a secretive background screening policy that has been used to keep thousands of Muslims from obtaining U.S. citizenship since 2008. According to troops he worked with, Mr. Alanbki, 36, risked his life serving with Americans, accompanying them on scores of dangerous missions. He said he was stabbed by insurgents. His brother was killed while on a mission with Americans. Just to get to Orlando, Mr. Alanbki had to obtain a coveted Special Immigration Visa, given to Iraqis and Afghans who helped the U.S. They are issued only after a stringent background check that includes proving no involvement in illegal, unethical or terrorist activities. Once here, he obtained four state security officer licenses, each of which also requires vetting. And as a private first class with the Florida Army National Guard now doing annual training, Mr. Alanbki passed additional background checks. Despite all this, the U.S. Citizenship and Immigration Service has yet to grant Mr. Alanbki his wish to become an American citizen. So last month, he decided to sue. In the lawsuit, Mr. Alanbki claims the government's "Controlled Application Review and Resolution Program'' secretly blacklisted him as a national security concern when he is not. The same program is at the heart of a class-action lawsuit challenging provisions of President Donald Trump's 2017 executive order preventing people from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from obtaining visas. All are majority Muslim countries. The program is not new. It was created in 2008 by the George W. Bush administration and also used under President Barack Obama. Opponents say it is aimed at keeping people from Muslim-majority nations from gaining U.S. citizenship. Between 2008 and 2012, more than 19,000 people from 21 Muslim-majority countries or regions were brought under this program, according to both lawsuits. It is unclear how many eventually were denied citizenship or how long their applications were delayed. Mr. Alanbki's lawsuit states that he hasn't been given an opportunity to address immigration officials' concerns, or even told what those concerns are. The bulk of the 19,000 cases came during the Obama administration. But Mr. Alanbki's attorney James Hacking says he is seeing an uptick under Trump of already-screened applicants having their citizenship requests delayed. His suit seeks to have the program ruled unconstitutional. Immigration officials would not comment on the lawsuit or the policy, but say they judge each request individually and that factors other than national security concerns also are considered. Officials from the Departments of Justice and Homeland Security, also named as defendants, declined to comment. Meanwhile, with his Green Card set to expire in 18 months and still facing active death threats from insurgents for his work helping Americans, Mr. Alanbki waits and worries. "If I have to go back to Iraq," he said, "I am dead, and so are my children." Mr. Alanbki grew up southwest of Baghdad during the reign of Iraqi dictator Saddam Hussein. Though his father was a colonel in the Iraqi army, times were tough for his family, who were members of the Shia sect of Islam brutally oppressed during the rule of Hussein, a Sunni. Mr. Alanbki said money was tight and opportunities were limited so he spent his childhood splitting time between school and supplementing the family's income through construction work and cutting hair. Things got even harder in the late 1990s after his father was killed by Hussein's forces. Meanwhile, Mr. Alanbki, spurred on in part by the 1986 Vietnam War movie Heartbreak Ridge, starring Clint Eastwood, had developed a fondness for America, seeing the far-off nation as a beacon of hope. After the 9/11 terrorist attacks and the invasion of Iraq that followed, Mr. Alanbki began working as a translator for U.S. forces. Though strongly believing "it was the right thing to do because Iraq was so messed up," he said working with Americans exacted a heavy toll. "I got stabbed four times by terrorists," he said. "I got shot by al-Qaida. I lost the toe on my left foot and had injuries in close combat in the fight in Fallujah." U.S. soldiers who served with Mr. Alanbki say he faced the same dangers they did. "When I say I trust Haeder with the lives of my team as well as mine or my grand-kids, it is because from December of 2005 to November of 2006, me and my folks lived, ate, slept and fought beside him that whole time, night and day," said John McFarlane, a retired Army first sergeant whose unit used Mr. Alanbki as an interpreter. David Catani, a sergeant first class in the Army Reserve who served with Mr. Alanbki between 2004 and 2005, said the interpreter provided useful intelligence. "In Iraq, there are three different factions but 228 different tribes," Catani said. "He had insight into things we were getting into that maybe we didn't want to get into. We had no doubts where his loyalties stood fighting terrorism." Like other interpreters, Mr. Alanbki had a $25,000 price tag on his head, Catani said. "I am on the death squad lists," Mr. Alanbki said. So in 2011, he obtained the Special Immigration Visa and, with his wife and young son, left Iraq for the United States. The couple had another child before divorcing in 2014. Mr. Alanbki is now a security guard at Orlando International Airport, holding three state security guard licenses, and attends classes to become a diesel mechanic. He enlisted in the Army in 2013 but said he was told he could not serve as a full-time soldier because he had custody of his two children after his divorce. In 2016, Mr. Alanbki enlisted in the Florida Army National Guard and applied for citizenship. Last year, while at Fort Benning for boot camp and advanced infantry training, Mr. Alanbki had his naturalization interview. He thought everything was proceeding as planned until June 23, 2017, when he arrived for a naturalization ceremony at the sprawling Georgia Army base. He said he was pulled out of line and told he wouldn't be receiving his citizenship that day even though soldiers from other countries, including Muslim countries, were allowed to proceed. Mr. Alanbki has regularly checked with USCIS officials since then. Despite an inquiry from U.S. Sen. Bill Nelson's office, his request remains on hold. Army Capt. Adam Sudbury, Mr. Alanbki's commander, described him as a good soldier and person and said his unit has offered to assist him with the citizenship process by meeting with immigration officials and vouching for him. During its reviews, USCIS investigates applicants to ensure they aren't alcoholics, drug offenders, gamblers, convicts or someone who lied to obtain immigration benefits or who participated in genocide, torture or extrajudicial killings. Court records show Mr. Alanbki did have problems during his marriage. In March 2014, an Orange County judge granted a temporary restraining order against Mr. Alanbki, ruling that his wife was a victim of domestic violence or had reason to believe she was in danger of becoming a victim. That order expired in December 2014. Mr. Alanbki's attorney, Jim Hacking, said the issue should have no impact on his client's citizenship application. "There is zero indication that I am aware of that USCIS has factored this in to delay his case," he said. Mr. Alanbki denies the allegations. "I earned my way to come over here and . . . now I'm doing my best to raise my kids and build a future for them and me," he said. "My citizenship is to complete my dream. I fought for this land of freedom." [GN] UNITED STATES: Sheridan to Consider Joining PILT Class Action ------------------------------------------------------------- Aaron Palmer, writing for SheridanMedia.com, reports that Sheridan County's Commissioners will consider joining a class action lawsuit to try to recover underpayments by the Federal government for "Payments in Lieu of Taxes" or PILT funds that were not paid to local governments. According to the US Department of the Interior's website, Payments in Lieu of Taxes' (PILT) are Federal payments to local governments that help offset losses in property taxes due to non-taxable Federal lands within their boundaries. Local governments cannot collect property taxes on Federally-owned land, and PILT payments help local governments carry out vital services like firefighting and police protection, construction of public schools and roads, and search-and-rescue operations. The PILT fund underpayments are from fiscal years 2015, '16 and '17, and the Sheridan County Commission will discuss the possibility of joining a class-action lawsuit by other counties in the state and throughout the country that are owed payments through the program during their regular meeting on July 17. [GN] UNITED STATES: Wilmington City Joines PILT Class Action Suit ------------------------------------------------------------ Chris Mays, writing for Brattleboro Reformer, reports that Select Board members voted unanimously on July 10 to join in a class-action lawsuit in hopes of recovering additional funds from the federal government. Wilmington will be joining municipalities throughout the United States looking to receive more money for "underpayments" over the last three fiscal years related to the Payment In Lieu of Taxes Act. "It's sort of like no harm, no foul," Town Manager Scott Tucker told the Reformer. On July 10, Tucker brought the lawsuit up to the Select Board after receiving a letter in the mail. The town has until September to fill out a form to participate in the lawsuit. According to the National Association of Counties, Congress in 2018 amended the PILT statute by mandating full funding through 2014 and repealed original language considering the program discretionary and subject to annual congressional appropriations processes. "Due to insufficient appropriations for 2015 through 2017, PILT recipients did not receive the full amount to which they were entitled under the PILT statute based on the Department of the Interior's full payment calculation," an article from NACo says. Town Treasurer Christine Richter said the lawsuit started with Kane County in Utah which had officials who "felt they were being underpaid by the federal government." "So if it works, we'll be getting more money," she told the Reformer. "But I don't think we'll be getting a lot more." Kane County filed the suit in the United States Court of Federal Claims last summer, "seeking to recover its own underpayments and the underpayments of all other PILT recipients nationwide for those years," according to NACo. "In December, the court ruled in Kane County's favor for FY2015 and 2016 underpayments and issued a similar ruling on FY2017 underpayments in March 2018." Last month, NACo began inviting others to join the lawsuit at no cost or fee. "As of this moment, in excess of 400 counties have opted into the case," Alan Saltman, Esq. -- aisaltman@smithcurrie.com -- lead counsel for the plaintiffs, told the Reformer. Debby Kingsley, lister's assistant, provided a spreadsheet of 14 state-owned properties exempt from tax payments. Their combined property value total is $1,728,139. Of highest value is a garage with a shed at Haystack Road worth $730,807 and the Medburyville Bridge worth $214,286.[GN] UNIVERSITY HOSPITALS: Requests Gag Order v. Plaintiffs' Attorneys ----------------------------------------------------------------- WKYC reports that University Hospitals on July 16 asked a judge for a gag order against counsel for the plaintiffs suing the hospital amid the hospital's fertility center failure that occurred in March. According to the motion, hospital attorneys feel some plaintiffs' attorneys have made "inflammatory and prejudicial statements" to the media regarding the case. As a result, the motion requests that attorneys for all parties involved be barred from making public statements related to the case. "The inflammatory media statements of some counsel have been clearly designed to taint public opinion and undermine the ability of potential jurors to reach an unbiased verdict based on the evidence presented at trial," the motion states. Victims are suing University Hospitals after a failure occurred inside its fertility treatment center in March. Temperatures inside a cryo tank started to rise, compromising 4,000 eggs and embryo belonging to nearly 1,000 patients. The tank's temperature change should have triggered an alarm, but the hospital says the system was shut off, meaning human error is to blame. Lawsuits were consolidated in April, paving the way for a class action case. On July 16, University Hospitals issued the following statement after the gag order was filed. "We have asked the court to consider an order that would ensure this important matter will be addressed in the legal process, not through attorneys' comments to the news media. If the judge approves, the order would prohibit any comments to news media from attorneys working on this matter." [GN] UNUM GROUP: Pomerantz Law Firm Files Securities Class Action ------------------------------------------------------------ Pomerantz LLP disclosed that a class action lawsuit has been filed against Unum Group ("Unum" or the "Company") (NYSE:UNM) and certain of its officers. The class action, filed in United States District Court, Eastern District of Tennessee, and docketed under 18-cv-00154, is on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Unum securities between January 31, 2018 and May 2, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Unum securities between January 31, 2018, and May 2, 2018, both dates inclusive, you have until August 13, 2018, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com Unum purports to provide financial protection benefits in the United States and the United Kingdom. The Company represents that its products include disability, life, accident, critical illness, dental and vision, and other related services. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Unum was experiencing a higher claims incidence for its long-term care business; (ii) Unum was experiencing less favorable policy terminations in connection with its long-term care business; (iii) accordingly, Unum's long-term care business loss ratio would foreseeably reach the upper 90% range; and (iv) as a result of the foregoing, Defendants' statements about Unum's business, operations, and prospects, including statements related to Unum's long-term care reserves and capital management plans, were materially false and/or misleading and/or lacked a reasonable basis. On May 1, 2018, after the market closed, Unum issued a press release entitled "Unum Group Reports First Quarter 2018 Results". Therein, Unum reported that its first-quarter 2018 loss ratio for its long-term care business was a disappointing 96.6%, compared to only 88.6% for the first quarter of 2017. The first quarter 2018 loss ratio also far exceeded the Company's earlier-stated expectation of 85-90%. On May 2, 2018, the Company held a conference call to discuss its first quarter 2018 financial results. On the call, Defendant John F. McGarry, the Company's Chief Financial Officer, elaborated on the Company's disclosures in the May 1, 2018 press release, stating that "[b]enefits experience this quarter was driven by new claim incidence that ran much higher than expected" and "the higher loss ratio this quarter was negatively impacted by a lower level of policy terminations." On this news, the Company's stock price fell $8.12 per share, or nearly 17%, to close at $39.78 per share on May 2, 2018, on unusually heavy trading volume. Robert S. Willoughby,Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Email: rswilloughby@pomlaw.com [GN] USA DIVING: 2 Former Divers File Sexual Abuse Class Action ---------------------------------------------------------- ESPN reports that two former divers are bringing a class-action lawsuit against USA Diving, accusing the organization of ignoring or obstructing sexual abuse allegations. The lawsuit was filed in U.S. District Court on July 11 and accuses former Ohio State University Diving Club coach Will Bohonyi of coercing two divers into having sex with him. The suit also names Mr. Bohonyi and Ohio State as defendants. A lawyer for the plaintiffs told the Indianapolis Star that other divers were coming forward with allegations and that USA Diving was "worse than gymnastics, worse than swimming," referring to rampant sexual abuse that has affected both sports in recent years. "This is just the beginning for USA Diving," attorney Jon Little told the newspaper. In a statement responding to the allegations July 16, a USA Diving spokeswoman said that "providing a safe environment for our members is of tremendous importance to USA Diving, and we take these matters very seriously. USA Diving is unable to comment further at this time." The lawsuit states that Mr. Bohonyi forced one plaintiff to perform sex acts and send him naked photos while she was a minor. The diver, who competed in the U.S. Olympic trials, was sent home from a swim meet after a teammate informed the head coach of the diving club about the allegations in 2014. "Bohonyi psychologically coerced [the woman] into believing that she was required to perform sexual services in exchange for her continued involvement in diving," the lawsuit says. "He preyed on her age, vulnerability, and dreams of becoming an Olympian, and used the power structure and imbalance of power to make her believe she was required to sexually service him in exchange for her involvement in diving for Team USA." Mr. Bohonyi was fired by the diving club two weeks after the allegation, but he was not added to USA Diving's list of banned coaches until six months later in 2015. A police investigation into the alleged abuse was dropped in 2014 at the request of the diver, but the case was reopened in January with the diver's cooperation. The other diver accuses Mr. Bohonyi of starting an abusive relationship with her in 2009 that included him coercing her into daily sex. Mr. Bohonyi did not respond to a request for comment by the newspaper. Ohio State has also come under fire after several former Ohio State wrestlers accused university doctor Richard Strauss of sexual abuse during medical treatments. The accusations reach as far back as the 1970s. Strauss committed suicide in 2005. "The Ohio State University has no interest in hurting their brand," Little told the Indy Star. "This is part of a massive problem at Ohio State that's not just isolated to Dr. Strauss." [GN] VUZIX CORP: Faces Class Action Over Secondary Public Offering ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on July 24 announced the filing of a class action lawsuit on behalf of purchasers of the securities of Vuzix Corporation (NASDAQ:VUZI): (i) pursuant and/or traceable to Vuzix's registration statement and prospectus (collectively, the "Registration Statement") issued in connection with Vuzix's January 2018 secondary public offering; and/or (ii) between November 9, 2017 and March 20, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Vuzix investors under the federal securities laws. To join the Vuzix class action, go to http://www.rosenlegal.com/cases-1306.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) Vuzix used unlawful stock promotion tactics to boost its stock price; (2) Vuzix used misleading stock promotion tactics to raise nearly $30 million at an all-time high share price; and (3) as a result of the foregoing, defendants' statements in the Registration Statement regarding Vuzix's business, operations, and prospects, were materially false and/or misleading. When the true details entered the market, the lawsuit claims that investors suffered damages A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 24, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1306.htmlto join the class action. You may also contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] WAL-MART STORES: Must Face Cashiers' Seating Class Action --------------------------------------------------------- Daniel Wiessner, writing for Reuters, reports that a federal judge in California has rejected Wal-Mart Stores Inc's bid to toss out a nearly decade-old statewide class action claiming the company illegally refused to provide cashiers with seating. U.S. District Judge Edward Davila in San Jose on July 13 said Wal-Mart had not proven its claims that stools would pose a safety hazard or make workers less productive, and denied the retail giant's motions for summary judgment and judgment on the pleadings. [GN] WATERLOO, ON: Judge Rules on Jurisdictional Issue for WRPS Suit --------------------------------------------------------------- Justice Baltman of the Ontario Superior Court of Justice ruled that the Court has no jurisdiction to hear a proposed class action against the Waterloo Regional Police Service and Waterloo Police Association seeking compensation for decades of gender based discrimination and sexual harassment. The Court held that previous rulings from the Court of Appeal required the women to use the internal mechanisms created to address the issues. "We are disappointed in this ruling, but it's important to note that the judge's decision was not based on the validity of the plaintiff's claims," said Douglas Elliot, Esq. -- delliott@cambridgellp.com -- lead counsel for the plaintiff's legal team. "This was purely a procedural ruling based on previous Court of Appeal rulings. We intend to appeal this decision in order to allow this case to proceed." Of interest in the judge's ruling was her position on the seriousness of the issues this case raises. Taken directly from her ruling; "The Defendants should not regard this result as a vindication of current practices . . . . it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication." Retired Superintendent Barry Zehr, a proposed representative plaintiff in the case, spent years trying to make the existing system work to address pervasive problems of misogyny and sexism. "I do not believe that the existing system is capable of addressing these issues, said Zehr. "It is run by the men for the men. That's why we need the courts to step in." "Women will continue to experience gender discrimination at the Waterloo Regional Police Service," said Angie Rivers, another of the proposed representative plaintiffs in the case. "The internal processes to deal with these issues are broken. That's why we came to the courts." The legal team for the plaintiffs will be filing an appeal with the Ontario Court of Appeals within 30 days.[GN] WESTERN POWER: Parkerville Bushfire Class Action Trial Ongoing -------------------------------------------------------------- Tim Clarke, writing for The West Australian, reports that lawyers for the dozens of families who lost homes in the Parkerville bushfire have launched a blistering opening attack on Western Power, saying the power company's incompetence left a power pole in such a "deplorable and disgraceful" condition it was able to be blown over by a gust of wind -- sparking the blaze which devastated the hills community. The long-awaited class action over the 2014 blaze, which destroyed 57 homes and wrecked many more, began in WA's Supreme Court on July 16, on behalf of 189 affected residents and property owners. Garry and Sandra Elwood are the only devastated homeowners formally going up against Western Power and their contractor Theiss. But their experience is being used as the example by lawyers Slater and Gordon, who intend to prove that it was up to Western Power to make sure the privately owned power pole was safe enough to carry their cables, even though it was not owned by them. That pole was on land owned by long-time resident Noreen Merle Campbell, who was in her 80s at the time of the fire and is now also being sued. Lachlan Armstrong QC, lead counsel for the plaintiffs, spent two hours this morning going through the outline of the case that is set to span seven weeks scheduled for the trial. Mr Armstrong described how the pole at the centre of the trial, parts of which lay on a table in the court, had been in place since at least 1985, but would appear to have never been inspected. By 2014, it had become so rotten and riddled with termites that only four per cent of the wood remained at its base. As winds blew and temperatures soared on January 12, 2014 the pole collapsed causing arcing in a box lower down the pole which sparked the fire which swept through the area with devastating effect. "There were no fatalities, but that was just good fortune," Mr Armstrong said. "It went from an ordinary Saturday morning to a cataclysm on a Saturday afternoon . . . and this was not an act of God." Instead, the plaintiffs say it was a combination of Western Power's lack of inspections and the lack of guidance and training given to Theiss linesmen which left the pole in such a state it collapsed. Theiss had carried out work around the pole twice in the months leading up to the pole, including two days prior to the fire, Mr Armstrong said. That work should have been preceded by a basic safety check of the pole which would have to take more tension -- which would have simply required it being hit with a hammer hard enough to make it ring. But Mr Armstrong said that simply did not happen and if it had, the rotten, cracked, pole would have clearly been seen as not safe. Mr Armstrong also pointed out Western Power's appalling record of inspection of wooden poles, which were twice criticised by power regulators in 2006 and 2008. He also said when they finally did agree to send out pamphlets urging private pole owners to get them checked regularly, they did not send one to Mrs Campbell because they were trying to save money on the mailout. Speaking ahead of the trial, Slater and Gordon Practice Group Leader Rory Walsh said Western Power's aged wooden "have caused a pole failure rate ten times that of other utilities". "Alarmingly, that figure excludes poles on private property, which Western Australia does not inspect or maintain unlike every other bushfire-prone state in Australia,' he said "We will argue that the Parkerville blaze was not a natural accident that residents simply have to accept as an ordinary risk of living in a bushfire-prone region. "Western Power's attitude to private poles poses a very real risk for the public and one which the energy regulator appears unable or unwilling to address." Mr and Mrs Elwood, who were in court, said her family and the broader community had been waiting a long time for this case to finally be heard. "It has been four long, hard years and so many people in the community are still waiting for their insurance money and they're doing it really tough," Mrs Elwood said. "We have all banded together and tried to stay optimistic, but it is definitely time the Perth Hills community had its day in court. "The dangerous condition of the pole was completely missed by linesmen employed by Thiess doing contract work for Western Power, six months before the pole collapsed and again as recently as 36 hours before it fell and sparked the blaze. "In our view, these decisions and actions amount to deplorable incompetence and are inexcusable in the circumstances." "This was a wholly avoidable bushfire". The trial is also being live streamed via the court website, the first time that has happened in WA courts. [GN] WESTERN POWER: WA at Far More Risk of Bushfire from Electric Pole ----------------------------------------------------------------- Dylan Caporn, writing for The West Australian, reports that a class action lawsuit over the disastrous Perth Hills bushfire will argue that WA is at far more risk of a bushfire sparked by an electrical pole than anywhere else in the country. The Weekend West can reveal lawyers for the 189 residents affected by the 2014 Parkerville bushfire will make the claim when the trial for the class action against Western Power starts. In the trial, which will be the first in WA to be streamed online, Slater and Gordon will also argue both Western Power and regulator EnergySafety failed to provide adequate community awareness material about the need to have poles on private property inspected and maintained because of a cost-saving measure. They will also argue that the dangerous condition of the pole at the centre of the case was missed by inspectors doing contract work for Western Power as recently as 36 hours before it fell and sparked the blaze. Slater and Gordon lawyer Rory Walsh, Esq., said the plaintiffs' argument revolved around the idea that the utility was responsible for the maintenance of the poles, and contractors had failed to conduct correct inspections. "(Inspections were) undertaken six months and again a second piece of work was undertaken two days before the pole collapsed -- we say both of those works were undertaken negligently," Mr Walsh said. "Western Power already has a pole failure rate which is 10 times that of their own utilities in relation to their own network, and, unlike NSW and Victoria, it doesn't inspect or maintain privately owned poles, which means they don't know anything about these private poles -- they don't know the age of them, they don't know if they've been inspected and they don't know what condition they're in." Sandra and Garry Elwood, whose Stoneville house was destroyed, said they had not fully recovered from the trauma. While they have since rebuilt their house, it took six months for them to start the clean-up, and another 10 months to rebuild while they lived in a shed. "It's pretty bad, it's 4-1/2 years down the track and I still haven't got over it," Mrs Elwood said. "Just imagine you wake up one morning and you've got everything and you go to bed that night and it's not there anymore." A spokesman for Western Power, which has maintained it is not responsible for poles on private property, said it would be inappropriate to comment on a matter due before court.[GN] WESTJET AIRLINES: Former FA Protests Sexual Harassment ------------------------------------------------------ Ashley Wadhwani, writing for 100 Mile Free Press, reports that a B.C. woman and former flight attendant at WestJet was told to leave Vancouver International Airport for infringing on airport policy, after handing out anti-sexual harassment pamphlets to travellers in early July. Mandalena Lewis is leading a class action lawsuit against the airline alleging it failed to protect flight attendants from systemic sexual harassment following her own alleged sexual assault by a pilot. On July 6, Lewis said she was handing out pamphlets about her #crewmetoo campaign outside the U.S. and International departures terminal. But shortly after arriving, Lewis was approached by YVR personnel and communications staff, who asked her to leave. "Initially, I was told by security that my expression was fine," Lewis said in a letter she has since sent the Vancouver Airport Authority. "Shortly thereafter, I was told that I had to stop handing out pamphlets on the basis of a ‘conflict of interest' with a major airport tenant. I asked for more information about that conflict, but it was never provided." In an emailed statement to Black Press Media, Vancouver Airport Authority communication specialist Tess Messmer said the airport was not aware that Lewis would be protesting ahead of July 6. #MeToo At Work: Sexual assault and harassment in the B.C. workplace "We typically ask individuals or groups who plan to protest, picket and/or strike at YVR to work closely with our operations team in advance of their activities to ensure minimal disruption to our passengers and operations," Messmer said, adding that if a group does give notice, the airport authority will help find a spot near the terminal building. According to the airport authority, handing out pamphlets is generally prohibited, Messmer said, as most of the paper and other materials end up being discarded, and can negatively impact YVR roadways and building cleanliness. "More significantly, these materials, if caught by the wind and carried, could also pose a possible risk YVRs airside operations," Messmer said. Lewis said she plans to return on July 20, and Messmer said the airport has been in touch with Lewis. In January, WestJet filed an appeal after a B.C. Supreme Court judge refused to throw out the lawsuit in December, 2017. The airline argues Justice Mary Humphries was wrong to have dismissed the company's application to strike the legal action, repeating its argument that the dispute belongs before a human rights tribunal and workers' compensation board. In addition to the class-action lawsuit, Lewis earlier filed another legal action against the company. In that claim, which has been placed on hold while the class action proceeds, Lewis says was sexually assaulted by a pilot while on a stopover in Hawaii in 2010. None of these allegations have been proven in court.[GN] WHOLE FOODS: Court Narrows Claims in S. Kellman's Suit ------------------------------------------------------ In the case, SHOSHA KELLMAN, et al., Plaintiffs, v. WHOLE FOODS MARKET, INC., et al., Defendants, Case No. 17-cv-06584-LB (N.D. Cal.), Magistrate Judge Laurel Beller of the U.S. District Court for the Northern District of California, San Francisco Division, (i) granted in part and denied in part the Defendants' motion to dismiss, and (ii) denied their motion to strike. Kellman, a California resident, and Abigail Starr, a New York resident, are suing four corporate entities associated with the Whole Foods supermarket chain. The Plaintiffs allege that Whole Foods has been mislabeling certain household and body-care products that it sells as "hypoallergenic" despite the fact that they actually contain known allergens. The Plaintiffs bring the suit as a class action under Federal Rule of Civil Procedure 23 on behalf of themselves and other consumers who bought these "hypoallergenic"-labeled products. They define three classes: a nationwide class, a California class, and a New York class. The Plaintiffs' operative Second Amended Complaint ("SAC") asserts claims for (1) breach of express warranty, (2) unjust enrichment, (3) unfair and deceptive acts and practices in violation of California's Consumers Legal Remedies Act ("CLRA"), (4) violations of California's False Advertising Law ("FAL"), (5) violations of California's Unfair Competition Law ("UCL"), (6) violations of New York's General Business Law Seciton 349, and (7) violations of New York's General Business Law Section 350. They name as the Defendants (1) Whole Foods Market, Inc. ("WFMI"), the parent Whole Foods holding company, (2) Whole Foods Market California, Inc. ("WFM California"), a subsidiary that operates Whole Foods retail stores in northern California, (3) Whole Foods Market Services, Inc. ("WFM Services"), a subsidiary that provides various administrative services to other Whole Foods entities, and (4) Whole Foods Market Group, Inc. ("WFM Group"), a subsidiary that operates Whole Foods retail stores in various eastern states, including New York. The Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). First, they argue that the Court does not have personal jurisdiction over the non-Californian defendants WFMI, WFM Services, and WFM Group, or over Ms. Starr's non-Californian claims, and that the court should dismiss these defendants and claims under Rule 12(b)(2). Second, the Defendants argue that the Plaintiffs have not alleged plausible claims for false or misleading advertising or for breach of express warranty and that the court should dismiss these claims under Rule 12(b)(6). Third, they argue that the Plaintiffs do not have standing to pursue claims for any products other than the ones that the Plaintiffs themselves purchased and that the Court should dismiss these claims under Rule 12(b)(1). The Defendants also move to strike allegations about products that the Plaintiffs themselves did not purchase and product representations that the Plaintiffs themselves did not see or rely on from the SAC under Rule 12(f). Magistrate Judge Beller finds that the Court lacks personal jurisdiction over WFMI, WFM Services, and WFM Group. She finds that the Defendants have submitted a sworn declaration that WFMI and WFM Services do not in fact have any employees in California, do not operate any stores in California, do not design, manufacture, distribute, or sell and goods in California, and do not dictate WFM California's business. Even if one set aside the defendants' declaration and credited the Plaintiffs' allegations about employees in California, store operations in California, product designs or sales in California, and dictating operations in California, their general-jurisdiction arguments would fail. The Magistrate Judge also finds that the Plaintiffs do not establish that WFMI, WFM Services, or WFM Group purposefully directed any of their activities or consummated some transaction with California or a California resident or performed some act by which they purposefully availed themselves of the privilege of conducting activities in California. As the Plaintiffs have not met their burden of establishing either general or special jurisdiction over WFMI, WFM Services, or WFM Group, the Magistrate Judge will dismiss them under Federal Rule of Civil Procedure 12(b)(2). Given that Ms. Starr alleges only that she bought products in New York and alleges only that WFM California operates stores in Northern California, it does not appear that Ms. Starr pleads a plausible claim against WFM California. The Magistrate Judge will court dismiss Ms. Starr's claims, with leave to amend. The Magistrate Judge finds that Ms. Kellman has pleaded plausible claims under the CLRA, FAL, and UCL. Each of the complained-of products bears a label that it is "hypoallergenic." Ms. Kellman alleges that a reasonable consumer would believe that a product labeled as hypoallergenic will not cause skin irritation, skin corrosion, or eye damage when used as directed. Ms. Kellman further alleges that a reasonable customer would believe that a hypoallergenic product does not contain a significant amount of ingredients known to cause skin irritation, skin corrosion, and/or eye damage. The Magistrate Judge also finds that Ms. Kellman has pleaded a plausible claim for breach of express warranty. Ms. Kellman plausibly alleges that the Defendants' labeling of their products as "hypoallergenic" constituted an affirmation of fact or promise or a description of the goods as being hypoallergenic, that the statement was part of the basis of the bargain, and that the defendants breached their warranty because their products were in fact not hypoallergenic. She further finds that Ms. Kellman lacks standing to pursue claims for unpurchased products for which she identifies no ingredients or allergens. This is insufficient to plead that there were any misrepresentations regarding these products, much less that any misrepresentations are substantially similar to the alleged misrepresentations for the two products that she bought. Therefore, the Magistrate Judge will dismiss these claims, with leave to amend. By contrast, she holds that the unpurchased products for which Ms. Kellman does allege ingredients are sufficiently similar to the products that Ms. Kellman bought to give rise to standing. The unpurchased body-care products are an easier case. Like the purchased products, all are either lotions or cleansing products. All come into direct contact with the body. All bear the same representation as the purchased products: that they are "hypoallergenic." All of them share common ingredients with the purchased products that Ms. Kellman alleges are known allergens and skin sensitizers. And the type of claim and alleged consumer injury is substantially the same as between the purchased and unpurchased products: that people buy them believing them to be hypoallergenic when in fact they contain sufficiently high concentrations of skin sensitizers that they may cause reactions in a substantial number of people. Finally, the Magistrate Judge will deny the Defendants' motions to strike because they've not met the standard for a motion to strike. Among other things, the Defendants' argument that allegations regarding unpurchased products should be stricken is unavailing in light of the Court's ruling that Ms. Kellman has standing to pursue claims for unpurchased products. For the foregoing reasons, Magistrate Judge Beller granted the Defendants' motion in part and (1) dismissed WFMI, WFM Services, and WFM Group for lack of personal jurisdiction, (2) dismissed Ms. Starr's claims for failure to state a claim against WFM California, and (3) dismissed the Plaintiffs' claims for products for which they identify no ingredients (and therefore identify no allergens) for lack of standing. In all other respects, she denied the Defendants' motion to dismiss. She also denied the Defendants' motion to strike. The Plaintiffs may file an amended complaint within 14 days of the date of the Order. If they file an amended complaint, they must also file a blackline of their amended complaint against their SAC as an attachment. A full-text copy of the Court's June 12, 2018 Order is available at https://is.gd/8vyAnk from Leagle.com. Shosha Kellman, Plaintiff, represented by David A. Searles, Francis & Mailman, James A. Francis, Francis and Mailman, P.C., Yvette Y. Golan -- info@tgfirm.com -- The Golan Firm & Stephanie R. Tatar -- Stephanie@thetatarlawfirm.com -- Tatar Law Firm, APC. Abigail Starr, Plaintiff, represented by David A. Searles, Francis & Mailman, James A. Francis, Francis and Mailman, P.C. & Stephanie R. Tatar, Tatar Law Firm, APC. Whole Foods Market, Inc., Defendant, represented by Brian R. Blackman, Blaxter & Blackman LLP & J.T. Wells Blaxter, Blaxter & Blackman LLP. Whole Foods Market California, Inc., Whole Foods Market Services, Inc. & Whole Foods Market Group, Inc., Defendants, represented by Brian R. Blackman, Blaxter & Blackman LLP. WITHCOIN: Japanese Class Action Claims $12 Million Damages ---------------------------------------------------------- Nathalie Stucky, writing for Bitcoin News, reports that Withcoin, a virtual currency reportedly designed for casinos, and listed on the Hitbtc exchange around May, is accused of selling coins using a promotional video propagating alleged lies and misleading information. In April 2018, a video promoting Withcoin went viral on the internet, inviting investors to purchase in advance a coin that was going to be listed on a crypto exchange in May, the message said. "If You Buy It Today You Can Become a Millionaire" The propaganda video was spread by an individual called Matsuyama. Matsuyama, also known on other sites as Koichi Matsuyama, enumerated attractive selling points for buyers, but it was later discovered that most of what he was saying was a lie, according to an overview explanation listed on the Enjin crowdfunding Class Action site. In a project called "Final ICO," Matsuyama aimed at pre-selling a listed fixed coin that had the potential to increase its price a thousand times. The pre-sale allegedly started in January of 2018 with 1 Withcoin valued at 0.5 yen. However, it was reportedly only possible to purchase the coins by large chunks of 10 million yen. Buyers therefore seemingly purchased Withcoin in groups. Matsuyama allegedly operated his business without disclosing any company name, and reportedly claimed having a career as a system engineer. He also made affirmations stating that Withcoin would be listed on Binance, then changed the exchange to Hitbtc. He also allegedly claimed in his project that the coin could be exchanged at Okada Manila, a casino in the Philippines, which denied any involvement with cryptocurrencies on its homepage. Soon after the coin was listed on the crypto exchange, its price fell to about 1/10 of the ICO price, which made purchasers suffer large losses. Enjin explains on its class action page that the business was selling a cryptocurrency giving false information therefore, the sales contract being invalid, the victims can now claim a full refund in Japanese yen at the rate of the time when the coins were sold. Coin Crashed to 1/20th Its Price About two weeks after being listed, Withcoin crashed to 0.139 yen. Many investors were tricked and directed to a site after viewing a Youtube video that was inviting viewers to purchase the seemingly attractive coin. As of June, more than 420 victims gathered on the crowdfunding class action litigation project Enjin for reported damages of over 1.3 billion yen ($12m). The number of victims claiming to have been duped in the same case has grown ever since. The question now lies in whether Matsuyama was intentionally aiming at tricking investors, which is seemingly difficult to prove. However, testimonies show the Withcoin management team could be proven as having given false explanations to its clients. Youtube is also accused of expanding the damage by introducing Withcoin, according to FXinspect.com, a site that verifies and reviews information on commodity materials mainly sold on the internet. "I will introduce a very attractive coin," the man allegedly said, "you can buy it now for 3 yen, but after the coin will be listed, it will be valued at 5 yen. The price will never break [. . . .]" the man in the video promised. The investors who viewed the video where guided to a mail magazine online, where the actual trades were carried out. Considering the lowest offering price as an opportunity, the manager behind Withcoin sold a massive amount of his coins, whose price later fell to 0.14 yen. If the value of the coin had risen from its initial 3 yen, it was theoretically possible to make an expected profit of about 20 times the price of the coin, FXinspect explains. WithCoin had existed since about the end of 2017 or February 2018, however publicity for it started on Youtube around March 2018, the site explaining the class action stated. Its white paper says that Withcoin is a digital currency "specialized in casinos," and mentions a casino in the Philippines, without naming any specific venue. "We will realize a digital-currency platform for anyone to easily participate in casinos," the white paper boldly states. "It is not true that any cryptocurrency can be used in Okada Manila," Universal Entertainment Corporation confirmed to news.Bitcoin.com by e-mail. Okada Manila's homepage also states that it does not offer or allow the use of bitcoin or other cryptocurrency in its casino or anywhere else in its property. "Okada Manila has never authorized or partnered with anyone regarding the use of bitcoin or other cryptocurrency. Any claim or report that Okada Manila is offering or allowing the use of bitcoin or other cryptocurrency is false, inaccurate and unauthorized," the hotel homepage says. A Digital Currency "Specialized in Casinos" "Okada is well-known as a casino mogul in Japan and Asia, and using his name is clearly an attempt to add an air of legitimacy to an allegedly fraudulent scheme. It also ironically illustrates that for many cryptocurrency isn't seen primarily as an investment, but more like a gamble," Jake Adelstein, an investigative journalist and yakuza expert based in Tokyo told news.Bitcoin.com by email. FXinspect said most videos and websites allegedly created by Withcoin were removed from the internet since the collapse of Withcoin.[GN] [*] VLRC Issues Final Report on Class Action Reform --------------------------------------------------- Simon Frauenfelder, Esq., of Corrs Chambers Westgarth, reported that in December 2016, the Victorian Law Reform Commission (VLRC) was asked to consider measures to ensure that litigants seeking to enforce their rights using litigation funding and class actions were not exposed to unfair risks or disproportionate cost burdens. Hot on the heels of a Discussion Paper on a similar topic from the Australian Law Reform Commission (ALRC), the VLRC has recently released its Final Report and recommendations for reform, HOW WOULD THE VLRC'S RECOMMENDATIONS AFFECT YOU? * for plaintiffs and group members, the VLRC's recommendations are aimed at providing more efficient access to justice through a mix of: * changes to procedural measures to better protect group members' interests, such as better costs disclosure and more supervision of settlement distribution processes; and * larger-scale proposed reforms to the class action industry, most notably, recommendations to allow contingency fees in class action proceedings. While the VLRC's recommendations appear to provide little, if any, direct benefit to defendants, some measures designed to make class actions more efficient for the benefit of group members may have knock-on positives for defendants. Except for contingency fees, the VLRC's Final Report focuses on different issues and makes different recommendations to those in the ALRC's Discussion Paper. As a result, plaintiffs and defendants will need to stay abreast of both Victorian and Federal changes, because reforms may well involve duplication (or even dislocation) rather than co-ordination. THE VLRC'S NARROW, CAUTIOUS APPROACH Three elements appear to have influenced the VLRC to take a much narrower and more cautious approach than the ALRC: 1. Terms of reference: The VLRC's terms of reference were focused on better access to justice for plaintiffs, with the VLRC asked to consider specific issues 'to ensure that litigants who are seeking to enforce their rights using the services of litigation funders and/or through group proceedings are not exposed to unfair risks or disproportionate cost burdens'.[1] In contrast, the ALRC was asked to take a broader look at industry-wide regulation of class actions and litigation funding -- 'whether and to what extent class action proceedings and third party litigation funding should be subject to Commonwealth regulation'.[2] 2. Different cases and less litigation funding: The issues most urgently requiring reform—such as competing shareholder class actions funded by litigation funders—are not so prevalent in Victoria because the Victorian Supreme Court tends to deal with different types of cases. In particular, the VLRC observed that: The Victorian Supreme Court deals with more mass tort claims than it does large commercial cases, such as shareholder class actions.[3] Litigation funding is not a prominent feature of the Victorian regime like it is in the Federal Court. Of the 85 class actions commenced in Victoria since the regime began in 2000, only ten have been funded by a litigation funder. 3. Preserving national consistency: The VLRC expressly rejected any reform that would see the Victorian class action regime depart from the core structure that is common to the Commonwealth, Victoria, New South Wales and Queensland class action regimes. The VLRC believed that national consistency was too valuable to sacrifice because it reduces the incentive for plaintiffs or defendants to 'forum shop'[4] and means that decisions by one Australian court can usefully be applied by other courts. Once these three features were taken into account, the VLRC was left with little scope (or indeed, apparent need) to propose large scale substantive reform. THREE PROPOSED CATEGORIES OF PROCEDURAL REFORM Save for its proposals in respect of contingency fees, the VLRC proposed three categories of modest procedural reforms aimed at protecting the interests of unrepresented group members. These three categories are: 1. Recommendations for simpler and clearer disclosure to group members about costs and the class action process, including: * mandatory disclosure to group members of changes in funding arrangements including a 'Funding Information Summary Statement' setting out key litigation funding charges; * powers for the Court to require that the plaintiffs' lawyers provide an estimate of legal costs; and * more high quality information to be displayed on the Supreme Court website, such as plain English opt-out and settlement notices. 2. New powers recommended to enable the Court to exert greater oversight over settlement approval and distribution. This is a key example of where the VLRC's concerns differ from the ALRC's because of the different types of cases run in their respective jurisdictions. For shareholder class actions, settlement approval and distribution is less of an issue, because generally all group members have suffered financial loss, which can often be calculated relatively simply. However, in mass tort and consumer claims, the settlement distribution process can take as long as or even longer than reaching trial or a settlement, as the process requires an individual assessment of the type and amount of loss a group member has suffered. These difficulties have seen criticisms of what some have perceived as unfairness or excessive costs in settlement distribution.[5] The VLRC recommends that the Court more readily appoint contradictors to test the fairness of settlements, and require more detailed disclosure in the affidavits made in support of settlement, including greater disclosure about: * mechanisms for how the Court will review disputed distribution decisions; * how group members will be informed about progress of the distributions; and * measures taken to ensure distribution is efficient, timely and cost-effective. Further, even after settlement is approved, those administering the distribution scheme would be required to report to the Court regarding: * the performance of the settlement distribution scheme; * what distributions have been made and the time taken; and * the amount charged for the distributions. Changes to the Supreme Court Act 1986 (Vic) and Court practice notes to give express form to existing discretionary Court powers. These proposals are not intended to give the Court any radical new powers, but rather make the situation for parties clearer by clarifying or giving statutory expression to existing powers, such as: * removing the representative plaintiff where their interests do not represent those of the class; * ordering a common fund for all costs; * reviewing and varying legal costs and litigation funding fees; and * statutory enunciation of the principles for approval of settlements. CONTINGENCY FEES Contingency fees involve lawyers charging fees calculated as a percentage of the amount successfully recovered by a plaintiff. Litigation funders can do this, but currently, lawyers in all Australian jurisdictions are prohibited from doing so. The ALRC proposed that contingency fees be allowed in class actions, subject to certain conditions. The VLRC goes further, and is in favour of contingency fees across the legal profession, but only as a national change. It recommends that Victoria propose to the national Council of Attorneys-General the national adoption of contingency fees for all matters throughout the legal profession. It acknowledges that reform of such magnitude should only be done nationally, and that Victoria should not introduce such fees unilaterally. The process of agreeing a uniform national approach to contingency fees would likely be a long and drawn out one, with low prospects of delivering meaningful reform quickly. This is particularly the case given the difficulty in agreeing a uniform law for other aspects of the legal profession,[6] to which only Victoria and New South Wales have signed up currently. As a fall-back position, the VLRC recommends that lawyers acting for plaintiffs in class actions in the Victorian Supreme Court be permitted to charge contingency fees, subject to lawyers indemnifying the representative plaintiff and also paying disbursements. This fall-back position closely mirrors the ALRC's proposal for also allowing contingency fees, in that it is limited to class actions and requires the lawyers to bear the risk of disbursements and adverse costs orders. Importantly, however, the VLRC specifically contemplates Victoria going it alone on contingency fees in class actions, even if national reforms for contingency fees across the legal profession do not go through. The VLRC suggests that Victorian class actions procedures are currently 'underutilised', which contingency fees might remedy. Further, it considers class actions are particularly appropriate for contingency fees because: * the representative plaintiff generally takes on a disproportionate exposure to the financial risk of an unfavourable outcome, compared to the value of their claim; and * the Court already closely scrutinises the proposed terms of any settlement, allowing the Court to supervise and control the percentage fees charged. The VLRC's proposal raises the possibility that, unless the ALRC's national proposal is also adopted, then lawyers in class actions in the Victorian Supreme Court could charge contingency fees, but lawyers in other jurisdictions could not. This could lead to Victoria becoming a jurisdiction of choice for lawyers seeking to bring actions funded on a contingency basis, and draw a greater proportion of class actions in Australia towards the Victorian Supreme Court. ISSUES OF LESSER CONCERN TO VICTORIA A number of the proposals in the ALRC report were not addressed in great detail in the VLRC report because the VLRC decided that the issues were not as pressing for the Victorian jurisdiction. Therefore, the VLRC made either no recommendations or more limited recommendations in relation to the following: * Competing class actions: The VLRC's view is that competing class actions have not been a problem in Victoria to date. Therefore, unlike the 'selection hearing' process proposed by the ALRC, the VRLC believes that the Court already has sufficient powers to deal with competing class actions and that there needed only to be greater guidance for the Court set out in the Court's practice note. However, the VLRC did propose that there be a 'cross-vesting judicial panel' to deal with the more difficult circumstance where competing class actions were commenced in different jurisdictions. This standing panel would have judicial members from each jurisdiction, and would make a decision about which court was most suitable to run a particular class action proceeding. * Licensing of litigation funders: The VLRC's view was that industry-wide regulation of litigation funding was appropriate but that 'industry-wide issues require national responses'. Accordingly, the VLRC recommended that Victoria not seek to license or regulate litigation funders alone but instead advocate for strong national regulation through the Council of Australian Governments (COAG). This is in line with the ALRC proposing national regulation of litigation funders through a licensing regime administered by ASIC. * Economic impact of continuous disclosure laws: One of the ALRC's more controversial proposals was for the Federal Government to commission a review of continuous disclosure and misleading or deceptive conduct laws, given the 'economic and legal impact' these laws and shareholder class actions were having on Australian companies. The VLRC did not venture into this territory, most likely because shareholder class actions are not a prominent feature of Victoria's class action regime. WHAT'S NEXT? As far as the VLRC is concerned, there appears to be only minor cause for reform in relation to class actions in Victoria. This view seems out of step with seemingly routine calls for major overhauls of the system, particularly in respect of shareholder class actions. However, there is much to be said for the VLRC's incremental approach, especially where current issues around competing funded shareholder class actions do not affect Victorian class action practice. The incremental, cautious approach also seems to be supported by recent figures from Professor Vince Morabito, which suggest that the number of class actions in Australia has not substantially increased compared with earlier periods in Australia's recent history, and is not out of step with a country of Australia's population size.[7] Reform proposals in the class action area will be in a state of flux for some time yet. The ALRC is not due to deliver its final report until 21 December 2018, and given the VLRC's focus on co-ordinated national reform on a number of issues, detailed proposals or reform legislation are unlikely to be forthcoming until well into 2019. However, many of the VLRC's smaller scale recommended changes to Victorian practice notes and practitioners' guidelines provide sensible mechanical responses to particular issues, and could be adopted sooner rather than later, and separately, to the larger-scale national reform. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***