/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180828.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 28, 2018, Vol. 20, No. 172 Headlines 3D SYSTEMS: Time to Appeal KBC Case Settlement Approval Expires ABBVIE INC: Has 596 Product Liability Claims on Depakote Risks ABBVIE INC: Medical Mutual's TRT Class Lawsuit Still Ongoing ABBVIE INC: Putative Class Suit by Rubinstein, et al. Pending ABBVIE INC: Still Faces TRT-Related Claims in Various State Courts ADVANCED DISPOSAL: Still Defends Class Suits over Improper Fees AIMCO/BETHESDA HOLDINGS: Winters Suit Removed to S.D. Calif. ALARM.COM HOLDINGS: Bid to Drop Fisher Class Action Pending ALARM.COM HOLDINGS: Expects TCPA Class Suit Trial in October 2018 ALL YEAR MANAGEMENT: Fischler Files Suit in N.Y. for ADA Violation AMC ENTERTAINMENT: Still Defends Combined Securities Class Suits AMERIGAS PARTNERS: Still Defends Antitrust Class Action Lawsuits ANDEAVOR: Still Defends 6 Class Suits over MPC Merger Pact ANTARES PHARMA: Court Appoints Serghei Lungu as Lead Plaintiff ARROWHEAD PHARMACEUTICALS: Appeal Pending in Drug Research Suit AVANOS MEDICAL: 9th Cir. Appeal in Bahamas Surgery Case Pending AVANOS MEDICAL: Still Defends Jackson Class Action BAUSCH HEALTH: Accord in Allergan Suits Gets Final Court Approval BAUSCH HEALTH: Accord in Solodyn(R) Antitrust Suit Has Final Okay BAUSCH HEALTH: Appeal from Class Status in Quebec Suit Pending BAUSCH HEALTH: Appeal from Nixed Class Status Bid Still Pending BAUSCH HEALTH: Consolidated RICO Class Action Remains Stayed BAUSCH HEALTH: Contact Lens Antitrust Class Action Underway BAUSCH HEALTH: Continues to Defend Canadian Securities Lawsuits BAUSCH HEALTH: Defends Securities Suits by 27 Investor Groups BAUSCH HEALTH: Nov 4 Class Status Hearing in British Columbia Case BAUSCH HEALTH: Timber Hill Securities Suit Consolidated BBVA COMPASS: Appeal in Plains All American Securities Suit Ongoing BBVA COMPASS: BSI Dismissed as Defendant in Teachers' Plan Lawsuit BBVA COMPASS: BSI Still Faces Suit by Firefighters' Pension Trust BBVA COMPASS: In Settlement Talks for Bellissimo TCPA Class Suit BBVA COMPASS: Still Defends Hossfeld Suit over TCPA Violations BBVA COMPASS: Still Defends Lopez Class Suit on Overdraft Fees BBVA COMPASS: Still Defends Oklahoma Firefighters' Class Lawsuit BELLICUM PHARMA: Bid for Lead Plaintiff & Counsel Still Pending BEST BUY: Filing of 2nd Amended IBEW Securities Suit Denied BLUECROSS BLUESHIELD: Court Dismisses HIV/AIDS Patient's ADA Suit BRIGHTHOUSE FINANCIAL: Faces Roycroft Group Annuity Class Suit CA INC: Faces Putative Class Action over Broadcom Merger Pact CAPSTONE TURBINE: Sept. 24 Mediation in Securities Class Suit CAVOTEC SA: Cal. App. Reverses Bid for Judgment Denial in "Colaco" CHSPSC LLC: Wins Summary Judgment in S. Sutton's FLSA Suit CITIZENS INC: Time to Appeal Gamboa Case Dismissal Expires CIVITAS SOLUTIONS: Employee Class Actions Remain Pending CKO KICKBOXING: Diaz Files ADA Suit in S.D.N.Y. CLIENT SERVICES: Yusifov Sues Over FDCPA Breach COHU INC: Putative Shareholder Class Suits v. Xcerra Underway COLE HAAN: Court Partly Dismisses K. Park's FTCA Suit DELL TECHNOLOGIES: Still Defends Pontiac Securities Suit in N.Y. DUKE ENERGY: DCC/Preemption Claims Dismissal Affirmed EBIX INC: Court Certifies Stockholder Class EDGE FITNESS: Court Conditionally Certifies MAs' Class EHEALTH INC: Defends Putative Class Suit on Alleged TCPA Breaches EQUIFAX INFORMATION: "Lemmon" Class Cert. Deadlines Moved FCA US: Court Narrows Claims in Suit Over Flawed Uconnect System FCA US: Final Pretrial Conference in "Victorino" Cont. to Aug. 31 FELDSOTT LEE: Violates Fair Debt Collection Act, Hedayati Claims FINANCIAL TRUST: Faces Gerber Class Suit in S.D. New York FLORIDA: Ct. Denies Judgment on Pleadings in Inmate Transport Suit FLUOR CORP: Court Certifies VC Summer Workers' Class FRESNO COMMUNITY: "Solario" Class Certification Denial Reversed GC SERVICES: 6th Cir. Affirms Dismissal of FDCPA Suit GIGAMON INC: J. Rodriguez's Securities Fraud Suit Dismissed GREYHOUND LINES: Hearings on Dismissal Bid in "Smith" Moved HANDI-HOUSE MFG: Court Denies Bid for Sanctions in Workers' Suit HANESBRANDS INC: Sued by Diaz Over ADA Violation HENRY COUNTY, IN: Objections to June 1 Order in "Baker" Overruled HENRY SCHEIN: Bid for Class Status Pending in Dental Supplies Suit HENRY SCHEIN: Still Defends Marion Diagnostic Lawsuit in Illinois HENRY SCHEIN: Still Defends Securities Class Action in E.D.N.Y. HERTZ GLOBAL: Still Defends Ramirez's Shareholder Class Action HEWLETT PACKARD: "Enoh" Employment Discrimination Suit Dismissed HSBC USA: "Nypl" Putative Class Action Still Pending in S.D.N.Y. HSBC USA: 2nd Cir. Affirms Dismissal of Allen Class Action HSBC USA: Bid to Nix Suit over Canadian Dealer Offered Rate Pending HSBC USA: Faces Vasquez Class Action over Ponzi Scheme HSBC USA: FX Antitrust Suit Settlement Awaits Final Court OK HSBC USA: Still Defends Mortgage Securitization Trust Litigation HSBC USA: Still Faces Contant Putative Class Action in S.D.N.Y. HUSKY ENERGY: Faces Bruzek Class Suit in W.D. Wisconsin JACOBY & MEYERS: Court Grants Bid to Amend N. Harding's Suit KAG WEST: P. Malone's Suit Remanded to State Court KRG JCS: Faces Blancher's Wage-and-Hour Suit MAGICJACK VOCALTEC: Bid to Drop Freedman Lawsuit Still Pending MAGICJACK VOCALTEC: Martinez & Lopez Sue over Robocalls MARATHON PETROLEUM: Defends 6 Class Suits over Andeavor Merger MASSACHUSETTS: Court Allows A. Burnham to Proceed in Forma Pauperis MDL 1720: HSBC Reaches Settlement in Credit Card Lawsuit MDL 2084: Court Denies Class Status in AndroGel Antitrust Case MDL 2460: AbbVie Still Faces 2 Consolidated Suits on Niaspan Deal MONARCH RECOVERY: Faces Gould Suit Over FDCPA Violation MONEYGRAM PAYMENT: Faces Diaz ADA Suit in New York MONITRONICS INT'L: Telemarketing Suit Settlement Awaits Final OK NANTKWEST INC: Still Defends Sudunagunta Securities Class Action NASSAU COUNTY, NY: Court Won't Dismiss S. Lopez's Strip Search Suit NEW YORK: Ct. Approves Settlement in Public-School Bullying Suit NEWLINK GENETICS: Seeks to Drop 2nd Amended Abramson Complaint PEPSI-COLA CO: Consumers Ask 2nd Cir. to Revive Class Action PROGRESSIVE CORP: MAO-MSO Recovery Suit Dismissed RACHAEL RAY: Sued for $5MM Over Chemical in Dog Food Products RENTOKIL NORTH: Court Grants Arbitration in A. Carbajal's Wage Suit ROOT9B TECHNOLOGIES: Dismissal of Securities Fraud Suit Affirmed SCHURMAN FINE: $237.5K Attorney's Fees Awarded in Data Theft Suit SEA TO TABLE: Minami Tamaki Mulls Mislabeling Class Action SEMPRA ENERGY: 382 Suits Filed over Aliso Canyon Leak at Aug. 1 SEMPRA ENERGY: Bid to Revive Securities Suit Still Pending SEMPRA ENERGY: California Supreme Court Review Underway SERVICESOURCE INTERNATIONAL: Patton Case Underway in Delaware SNOOZE HIC: Faces Class Action in California Over Unpaid Wages SNYDER & SNYDER: Dismissal of Malpractice Claims Affirmed SYNGENTA AG: Plaintiffs Attorney Seeks $150MM in Legal Fees TECHNIPFMC PLC: Still Defends Prause Shareholder Class Action TENET HEALTHCARE: Bid for Class Status in Maderazo Suit Pending TESLA INC: Bid to Dismiss Suit over Model 3 Production Underway TESLA INC: Faces Litigation Relating to 2018 CEO Performance Award TESLA INC: Shareholder Suit over SolarCity Acquisition Continues TRANS UNION: Violates Fair Credit Reporting Act, Marshall Suit Says TRANSAMERICA LIFE: Court Denies Bid to Dismiss K. McMahon's Suit TURTLE BEACH: Shareholders Class Action Trial Set for Nov. 2019 TYSON FOODS: Bid to Nix Broiler Chicken Grower Suit Still Pending TYSON FOODS: Faces Antitrust Class Suits over Pork Product Prices TYSON FOODS: Hillshire Unit Still Defends Philippine Labor Case TYSON FOODS: Maplevale Farms Lawsuit Still in Discovery Phase UFC: Seeks Dismissal of Antitrust Class Action UNIFUND CCR: Partial Denial of Certification in FDCPA Suit Affirmed UNITED STATES: Campbell County Joins PILT Program Class Action UNITED STATES: Judge Issues Ruling on Attorney Fees Issue UNITYPOINT HEALTH: Class Action Mulled Over 2nd Data Breach VENETIAN CASINO: Court OKs M. Yousif to File 4th Amended Complaint VIRTU FINANCIAL: Faces 2nd Amended Complaint over KCG Acquisition VISTRA ENERGY: Still Defends Consolidated Gas Index Pricing Suit VOYA FINANCIAL: Appeal from Dismissal of Patrico Suit Underway VOYA FINANCIAL: Bid to Dismiss "Cutler" COI Lawsuit Underway VOYA FINANCIAL: Bid to Dismiss Amended "Goetz" Complaint Pending VOYA FINANCIAL: Bid to Dismiss Dezelan Amended Complaint Underway VOYA FINANCIAL: Bid to Trim Barnes Complaint Pending WASATCH ADVANTAGE: Calif. Court Certifies Tenant Class WILL LIFE: Court Denies Bid to Dismiss S. Fairlie's Suit WILLIAMS-SONOMA: W. Rushing's Suit Moved to N.D. Calif. WILLIS TOWERS: $9.75M Paid for "Sanchez" Litigation Settlement WILLIS TOWERS: 3 Merger Class Suits in Delaware Consolidated WILLIS TOWERS: 4th Circuit Asked to Reinstate Proxy Litigation WILLIS TOWERS: Stanford Settlement Approval Challenged WOK 88: Can Compel Arbitration of Unpaid Overtime Suit XPLORE TECHNOLOGIES: Faces Investor Class Action Over Zebra Deal XTO ENERGY: To Assess Allocation Plan in Royalty Suit ZILLOW GROUP: Awaits Ruling on Bid to Drop Consolidated Suit ZIMMER BIOMET: Bid to Drop "Shah" Class Suit in Indiana Ongoing ********* 3D SYSTEMS: Time to Appeal KBC Case Settlement Approval Expires --------------------------------------------------------------- The time for any party to appeal from the final approval of the settlement of the case entitled, KBC Asset Management NV v. 3D Systems Corporation, et al. expired on July 25, 2018, according to 3D Systems Corporation's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. The Company and certain of its former executive officers have been named as defendants in a consolidated putative stockholder class action lawsuit pending in the United States District Court for the District of South Carolina. The consolidated action is styled KBC Asset Management NV v. 3D Systems Corporation, et al., Case No. 0:15-cv-02393-MGL. The Amended Consolidated Complaint (the "Complaint"), which was filed on December 9, 2015, alleges that defendants violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 10b-5 promulgated thereunder by making false and misleading statements and omissions and that the former officers are control persons under Section 20(a) of the Exchange Act. The Complaint was filed on behalf of stockholders who purchased shares of the Company's common stock between October 29, 2013, and May 5, 2015 and seeks monetary damages on behalf of the purported class. Defendants filed a motion to dismiss the Complaint in its entirety on January 14, 2016, which was denied by Memorandum Opinion and Order dated July 25, 2016 (the "Order"). Defendants filed a motion for reconsideration of the Order on August 4, 2016, which was denied by Order dated February 24, 2017. On September 28, 2017, the Court granted Lead Plaintiff's Motion for Class Certification. On February 14, 2018, following mediation, the parties entered into a Stipulation of Settlement that provides for, among other things, payment of US$50,000,000 by the Company's insurance carriers and a mutual exchange of releases. The Stipulation of Settlement calls for a dismissal of all claims against the Company and the individual defendants with prejudice following Court approval, a denial by defendants of any wrongdoing, and no admission of liability. On February 15, 2018, Lead Plaintiff filed an Unopposed Motion for Preliminary Approval of Class Action Settlement. On February 21, 2018, the Court entered an Order Preliminarily Approving Settlement and Providing for Notice. The Court held a final fairness hearing on June 25, 2018, and entered the Order and Final Judgment and Order Awarding Attorneys' Fees on the same day. The time for any party to appeal expired on July 25, 2018. A current liability of US$50,000,000 was recorded for the agreed upon settlement amount and an offsetting receivable of US$50,000,000 was recorded for related insurance proceeds. 3D Systems Corporation is a holding company incorporated in Delaware in 1993 that markets its products and services through subsidiaries in North America and South America (collectively referred to as "Americas"), Europe and the Middle East (collectively referred to as "EMEA") and the Asia Pacific region ("APAC"). The company is based in Rock Hill, South Carolina. ABBVIE INC: Has 596 Product Liability Claims on Depakote Risks -------------------------------------------------------------- Over 90% of the approximately 596 Depakote claims are pending in the United States District Court for the Southern District of Illinois, and the rest are pending in various other federal and state courts, according to AbbVie Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. Plaintiffs in the product liability cases generally allege that AbbVie did not adequately warn about risk of certain injuries, primarily various birth defects, arising from use of Depakote. Plaintiffs generally seek compensatory and punitive damages. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). ABBVIE INC: Medical Mutual's TRT Class Lawsuit Still Ongoing ------------------------------------------------------------ AbbVie Inc. continues to defend itself in a putative class action lawsuit initiated by Medical Mutual of Ohio, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. In November 2014, a putative class action lawsuit, Medical Mutual of Ohio v. AbbVie Inc., et al., was filed against several manufacturers of testosterone replacement therapies (TRTs), including AbbVie, in the United States District Court for the Northern District of Illinois on behalf of all insurance companies, health benefit providers, and other third party payers who paid for TRTs, including AndroGel. The claims asserted include violations of the federal RICO Act and state consumer fraud and deceptive trade practices laws. The complaint seeks monetary damages and injunctive relief. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). ABBVIE INC: Putative Class Suit by Rubinstein, et al. Pending ------------------------------------------------------------- AbbVie Inc. still faces a putative class action suit captioned Rubinstein, et al. v Gonzalez, et al., according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. In November 2014, five individuals filed a putative class action lawsuit, Rubinstein, et al. v Gonzalez, et al., on behalf of purchasers and sellers of certain Shire plc (Shire) securities between June 20 and October 14, 2014, against AbbVie and its chief executive officer in the United States District Court for the Northern District of Illinois alleging that the defendants made and/or are responsible for material misstatements in violation of federal securities laws in connection with AbbVie's proposed transaction with Shire. No further updates were provided in the Company's SEC report. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). ABBVIE INC: Still Faces TRT-Related Claims in Various State Courts ------------------------------------------------------------------ AbbVie Inc. continues to defend itself against claims related to testosterone replacement therapies (TRTs) across various state courts, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. Product liability cases are pending in which plaintiffs generally allege that AbbVie and other manufacturers of TRTs did not adequately warn about risks of certain injuries, primarily heart attacks, strokes and blood clots. Approximately 4,130 claims are consolidated for pre-trial purposes in the United States District Court for the Northern District of Illinois under the MDL Rules as In re: Testosterone Replacement Therapy Products Liability Litigation, MDL No. 2545. Approximately 200 claims against AbbVie are pending in various state courts. Plaintiffs generally seek compensatory and punitive damages. Six cases have gone to trial. Four of those have resulted in complete verdicts for AbbVie: three by juries in the United States District Court for the Northern District of Illinois in January, May, and June 2018, and one by a jury in the Cook County, Illinois Circuit Court in August 2017. Another case in the United States District Court for the Northern District of Illinois resulted in a jury verdict for AbbVie on two claims and for the plaintiff on one claim and an award of US$150 million in punitive damages with no compensatory damages in July 2017. In orders from December 2017 and February 2018, the court vacated that verdict and ordered a new trial. In the March 2018 retrial, the jury reached a verdict for AbbVie on strict liability and fraud and for the plaintiff on negligence and awarded US$200,000 in compensatory damages and US$3 million in punitive damages, which is the subject of post-trial proceedings. Another case in the United States District Court for the Northern District of Illinois resulted in a jury verdict for AbbVie on strict liability and for the plaintiff on remaining claims and an award of US$140,000 in compensatory damages and US$140 million in punitive damages in August 2017. In July 2018, the court vacated that verdict and ordered a new trial. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). ADVANCED DISPOSAL: Still Defends Class Suits over Improper Fees --------------------------------------------------------------- Advanced Disposal Services, Inc. still faces class actions lawsuits over improper fees, according to Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In February 2009, the Company and certain of its subsidiaries were named as defendants in a purported class action suit in the Circuit Court of Macon County, Alabama. Similar class action complaints were brought against the Company and certain of its subsidiaries in 2011 in Duval County, Florida and in 2013 in Quitman County, Georgia and Barbour County, Alabama, and in 2014 in Chester County, Pennsylvania. The 2013 Georgia complaint was dismissed in March 2014. In late 2015 in Gwinnett County, Georgia, another purported class action suit was filed. The plaintiffs in those cases primarily allege that the defendants charged improper charges (fuel, administrative and environmental charges) that were in breach of the plaintiffs' service agreements with the Company and seek damages in an unspecified amount. The Company believes that it has meritorious defenses against these purported class actions, which it will vigorously pursue. Given the inherent uncertainties of litigation, including the early stage of these cases, the unknown size of any potential class, and legal and factual issues in dispute, the outcome of these cases cannot be predicted and a range of loss, if any, cannot currently be estimated. Advanced Disposal Services, Inc. together with its consolidated subsidiaries, as a consolidated entity, is a nonhazardous solid waste services company providing collection, transfer, recycling and disposal services to customers in the South, Midwest and Eastern regions of the United States. AIMCO/BETHESDA HOLDINGS: Winters Suit Removed to S.D. Calif. ------------------------------------------------------------ The class action lawsuit entitled Winters, et al. v. AIMCO/Bethesda Holdings, Inc., et al., Case No. 37-02018-00014085-CU-OE-CTL, was removed on August 20, 2018, from the Superior Court of California, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:18-cv-01937-JAH-MDD to the proceeding. The nature of suit is stated as contract dispute. AIMCO/Bethesda Holdings's line of business includes real estate investment trusts or related mortgage assets.[BN] Plaintiffs Felicia Winters, an individual, on behalf of herself and all others similarly situated, and Me'Kayla Renter, an individual, on behalf of herself and all others similarly situated, are represented by: Craig McKenzie Nicholas, Esq. NICHOLAS AND TOMASEVIC 225 Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 325-0492 Facsimile: (619) 325-0496 E-mail: cnicholas@nicholaslaw.org Defendants AIMCO/Bethesda Holdings, Inc., a Delaware corporation, and AIMCO Properties Finance Corp., a Delaware corporation, are represented by: Julie Rae Trotter, Esq. CALL JENSEN AND FERRELL 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Telephone: (949) 717-3000 Facsimile: (949) 717-3100 E-mail: jtrotter@calljensen.com ALARM.COM HOLDINGS: Bid to Drop Fisher Class Action Pending ----------------------------------------------------------- Alarm.Com Holdings, Inc.'s motion to dismiss the class action suit by Nick Fisher remains pending, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company said, "On March 29, 2018, a putative class action lawsuit was filed against us by Nick Fisher in the U.S. District Court for the Northern District of Illinois, alleging violations of the [Telephone Consumer Protection Act], and the Telemarketing And Consumer Fraud and Abuse Prevention Act, or TCFAPA. The complaint alleges that Alarm.com and another defendant, Nortek Security & Control LLC, violated the TCPA and TCFAPA through purportedly unauthorized telephone calls to Fisher, and seeks to hold us responsible for the alleged calls, including under principles of agency and vicarious liability. "The complaint seeks monetary damages under the TCPA and TCFAPA, injunctive relief, and other relief, including attorneys' fees. We answered the complaint and filed a motion to dismiss the complaint on June 18, 2018. The matter remains pending. Based on currently available information, we determined a loss is not probable or reasonably estimable at this time." Alarm.com Holdings, Inc. offers a comprehensive suite of cloud-based solutions for the smart home and business, including interactive security, video monitoring, intelligent automation and energy management. ALARM.COM HOLDINGS: Expects TCPA Class Suit Trial in October 2018 ----------------------------------------------------------------- Alarm.Com Holdings, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018, that it anticipates a trial in a class action lawsuit will take place in October 2018. The Company said, "On December 30, 2015, a putative class action lawsuit was filed against us in the U.S. District Court for the Northern District of California, alleging violations of the Telephone Consumer Protection Act, or TCPA. The complaint does not allege that Alarm.com itself violated the TCPA, but instead seeks to hold us responsible for the marketing activities of our service provider partners under principles of agency and vicarious liability. Specifically, the plaintiffs seek to hold us liable for telemarketing calls made by one of our service providers, as well as calls made by one of its sub-dealer agents, that purportedly violated the TCPA's provisions concerning use of Automatic Telephone Dialing Systems ("ATDS") and placing calls to numbers listed on the national Do-Not-Call ("DNC") registry. The complaint seeks monetary damages under the TCPA, injunctive relief, and other relief, including attorneys' fees. "On May 5, 2017, the court granted plaintiffs' motion for class certification, and certified two plaintiff classes: a DNC class and an ATDS class. Plaintiffs claim that 393,762 individuals received 3,002,373 telephone calls in violation of the TCPA's DNC-related provisions, and that 22,055 individuals received 119,484 telephone calls in violation of the TCPA's ATDS-related provisions. Discovery is closed, and the matter remains pending in the U.S. District Court for the Northern District of California. The court has denied the parties' cross-motions for summary judgment, and based on the current schedule, we anticipate a trial will take place in October 2018. "The outcome of this legal claim and proceeding against us cannot be predicted with certainty. While we believe we have valid defenses to plaintiffs' claims, a negative outcome could result in a material adverse effect on our business, financial condition, cash flows and results of operations. If plaintiffs' claims are successful, a jury could award damages of up to US$500 per telephone call made to class members on the Do Not Call Registry. Calls made in violation of the ATDS-related provisions are subject to statutory damages of US$500 per call. Both ATDS- and DNC-related damages may be trebled if the violations are found to be knowing or willful. Should we decide to appeal an adverse verdict, we would be required to post a bond in the amount of that verdict to stay execution of the judgment while the appeal is pending, which may not be available on reasonable terms, if at all. Based on currently available information, we determined a loss is not reasonably estimable at this time." Alarm.com Holdings, Inc. offers a comprehensive suite of cloud-based solutions for the smart home and business, including interactive security, video monitoring, intelligent automation and energy management. ALL YEAR MANAGEMENT: Fischler Files Suit in N.Y. for ADA Violation ------------------------------------------------------------------ A class action lawsuit has been filed against All Year Management LLC, doing business as Denizen Bshwk. The case is styled as Brian Fischler, Individually and on behalf of all other persons similarly situated v. All Year Management LLC doing business as: Denizen Bshwk, Case No. 1:18-cv-04704 (E.D.N.Y., August 20, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Denizen Bshwck is a new apartment development by All Year Management currently under construction at 54 Noll St, Brooklyn, NY 11206, USA, Kings County.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com AMC ENTERTAINMENT: Still Defends Combined Securities Class Suits ---------------------------------------------------------------- AMC Entertainment Holdings, Inc. still defends itself against a consolidated federal securities class action, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On January 12, 2018 and January 19, 2018, two putative federal securities class actions, captioned Hawaii Structural Iron workers Pension Trust Fund v. AMC Entertainment Holdings, Inc., et al., Case No. 1:18-cv-00299-AJN (the "Hawaii Action"), and Nichols v. AMC Entertainment Holdings, Inc., et al., Case No. 1:18-cv-00510-AJN (the "Nichols Action," and together with the Hawaii Action, the "Actions"), respectively, were filed against the Company in the U.S. District Court for the Southern District of New York. The Actions, which name certain of the Company's officers and directors and, in the case of the Hawaii Action, the underwriters of the Company's February 8, 2017 secondary public offering, as defendants, assert claims under some or all of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 with respect to alleged material misstatements and omissions in the registration statement for the secondary public offering and in certain other public disclosures. On May 30, 2018, the court consolidated the Actions and appointed the International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware as lead plaintiff. AMC Entertainment Holdings, Inc. owns and operates a theatrical exhibition company in the United States and Europe. AMERIGAS PARTNERS: Still Defends Antitrust Class Action Lawsuits ---------------------------------------------------------------- AmeriGas Partners, L.P. continues to defend itself against purported class action lawsuits over alleged violations of antitrust laws, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. Between May and October of 2014, purported class action lawsuits were filed in multiple jurisdictions against the Partnership/UGI and a competitor by certain of their direct and indirect customers. The class action lawsuits allege, among other things, that the Partnership and its competitor colluded, beginning in 2008, to reduce the fill level of portable propane cylinders from 17 pounds to 15 pounds and combined to persuade their common customer, Walmart Stores, Inc., to accept that fill reduction, resulting in increased cylinder costs to retailers and end-user customers in violation of federal and certain state antitrust laws. The claims seek treble damages, injunctive relief, attorneys' fees and costs on behalf of the putative classes. On October 16, 2014, the United States Judicial Panel on Multidistrict Litigation transferred all of these purported class action cases to the Western Division of the United States District Court for the Western District of Missouri ("District Court"). In July 2015, the District Court dismissed all claims brought by direct customers. In June 2017, the United States Court of Appeals for the Eighth Circuit ("Eighth Circuit") ruled en banc to reverse the dismissal by the District Court, which had previously been affirmed by a panel of the Eighth Circuit. In September 2017, the Company filed a Petition for a Writ of Certiorari to the U.S. Supreme Court appealing the decision of the Eighth Circuit. The petition was denied in January 2018 and, as a result, the case was transferred back to the District Court for further proceedings. In July 2015, the District Court also dismissed all claims brought by the indirect customers other than claims for injunctive relief. The indirect customers filed an amended complaint with the District Court claiming injunctive relief and state law claims under Wisconsin, Maine and Vermont law. In September 2016, the District Court dismissed the amended complaint in its entirety. The indirect customers appealed this decision to the Eighth Circuit. On July 21, 2016, several new indirect customer plaintiffs filed an antitrust class action lawsuit against the Partnership in the Western District of Missouri. The new indirect customer class action lawsuit was dismissed in September 2016 and certain indirect customer plaintiffs appealed the decision, consolidating their appeal with the indirect customer appeal then pending in the Eighth Circuit. In June 2018, the Eighth Circuit issued its decision affirming the District Court's decision dismissing the federal antitrust claims, and remanded the case back to the District Court for further proceedings related to the state law claims. AmeriGas Partners, L.P., is a publicly traded master limited partnership that is the largest retail propane distributor in the United States based on volumes of propane distributed annually. ANDEAVOR: Still Defends 6 Class Suits over MPC Merger Pact ---------------------------------------------------------- Andeavor is still facing six putative class actions related to its merger agreement with Marathon Petroleum Corporation, according to Andeavor's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. Andeavor and Marathon Petroleum Corporation ("MPC") entered into an Agreement and Plan of Merger, dated as of April 29, 2018 (the "MPC Merger Agreement"), under which MPC will acquire all of Andeavor's outstanding shares (the "MPC Merger"). Between June 20 and July 11, 2018, six putative class actions were filed against some or all of Andeavor, the directors of Andeavor, and MPC and certain of its subsidiaries, relating to the MPC Merger. Two complaints, Malka Raul v. Andeavor, et al., and Stephen Bushansky v. Andeavor, et al., were filed in the U.S. District Court for the Western District of Texas. Four other complaints, captioned The Vladimir Gusinsky Rev. Trust v. Andeavor, et al., Lawrence Zucker v. Andeavor, et al., Mel Gross v. Andeavor, et al., and Hudson v. Andeavor, et al., were filed in the U.S. District Court for the District of Delaware. The complaints generally allege that Andeavor, the directors of Andeavor, MPC and certain of its subsidiaries disseminated a false or misleading registration statement regarding the proposed merger in violation of Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. Specifically, the complaints allege that the registration statement filed by MPC misstated or omitted material information regarding the parties' financial projections and the analyses performed by Andeavor's and MPC's respective financial advisors, and that disclosure of material information is necessary in light of preclusive deal protection provisions in the merger agreement, the financial interests of Andeavor's officers and directors in completing the deal, and the financial interests of Andeavor's and MPC's respective financial advisors. The complaints further allege that the directors of Andeavor and/or MPC are liable for these violations as "controlling persons" of Andeavor under Section 20(a) of the Exchange Act. The complaints seek injunctive relief, including to enjoin and/or rescind the MPC Merger, damages in the event the merger is consummated, and an award of attorneys' fees, in addition to other relief. The Company said, "Additional lawsuits arising out of the MPC Merger may be filed in the future. There can be no assurance that any of the defendants will be successful in the outcome of the pending or any potential future lawsuits. A preliminary injunction could delay or jeopardize the completion of the MPC Merger, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin the completion of the MPC Merger. Andeavor and Marathon believe that the lawsuits are without merit and intend to defend vigorously against them and any other lawsuits challenging the transaction." Andeavor is an independent refiner and marketer of petroleum products, operating ten refineries in the Western United States with a combined rated crude oil capacity of approximately 1,200,000 barrels (190,000 m3) per day. Formerly known as Tesoro Corporation, or simply as Tesoro, the company is a Fortune 100 and a Fortune Global 500 company headquartered in Texas at San Antonio, with 2013 annual revenues of $37 billion, and over 13,000 employees worldwide. ANTARES PHARMA: Court Appoints Serghei Lungu as Lead Plaintiff -------------------------------------------------------------- The court has appointed Serghei Lungu as lead plaintiff for the putative class action lawsuit initiated by Randy Smith in New Jersey, according to Antares Pharma, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On October 23, 2017, Randy Smith filed a complaint in the District of New Jersey, captioned Randy Smith, Individually and on Behalf of All Others Similarly Situated v. Antares Pharma, Inc., Robert F. Apple and Fred M. Powell ("Smith"), Case No. 3:17-cv-08945-MAS-DEA, on behalf of a putative class of persons who purchased or otherwise acquired Antares securities between December 21, 2016 and October 12, 2017, inclusive, asserting claims for purported violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, against Antares, Robert F. Apple and Fred M. Powell. The Smith complaint contends that defendants made false and/or misleading statements and/or failed to disclose that: (i) Antares had provided insufficient data to the FDA in connection with the NDA for XYOSTEDTM; and (ii) accordingly, Antares had overstated the approval prospects for XYOSTEDTM. On July 27, 2018, the court entered an order appointing Serghei Lungu as lead plaintiff, Pomerantz LLP as lead counsel, and Lite DePalma Greenberg, LLC as liaison counsel for plaintiff. On August 3, 2018, the parties submitted a stipulation and proposed order, setting forth an agreed-upon schedule for responding to the complaint, which is currently pending before the court. Antares Pharma said, "The Company believes that the claims in the Smith action lack merit and intends to defend them vigorously." Antares Pharma, Inc., a specialty pharmaceutical company, focuses on developing and commercializing self-administered parenteral pharmaceutical products and technologies worldwide. The Company was founded in 1978 and is headquartered in Ewing, New Jersey. ARROWHEAD PHARMACEUTICALS: Appeal Pending in Drug Research Suit --------------------------------------------------------------- The plaintiffs' appeal in a consolidated class action related to Arrowhead Pharmaceuticals, Inc.'s drug research programs remain pending in the U.S. Court of Appeals for the Ninth Circuit, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company and certain executive officers were named as defendants in a putative consolidated class action in the United States District Court for the Central District of California regarding certain public statements in connection with the Company's drug research programs. The consolidated class action, initially filed as Meller v. Arrowhead Pharmaceuticals, Inc., et al., No. 2:16-cv-08505 (C.D. Cal., filed Nov. 15, 2016), Siegel v. Arrowhead Pharmaceuticals, Inc., et al., No. 2:16-cv-8954 (C.D. Cal., filed Dec. 2, 2016), and Unz v. Arrowhead Pharmaceuticals, Inc., et al., No.2:17-cv-00310 (C.D. Cal., filed Jan. 13, 2017) asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 regarding certain public statements in connection with the Company's drug research programs and seek damages in an unspecified amount. Additionally, a putative stockholder derivative action captioned Johnson v. Anzalone, et al., (Los Angeles County Superior Court, filed January 19, 2017) asserting substantially similar claims is pending in Los Angeles County Superior Court and is stayed pending the related consolidated class action. Two additional putative stockholder derivative actions, captioned Lucas v. Anzalone, et al., No. 2:17-cv-03207 (C.D. Cal., filed April 28, 2017), and Singh v. Anzalone, et al., No. 2:17-cv-03160 (C.D. Cal., filed April 27, 2017), alleging breach of fiduciary duty by the Company's Board of Directors in connection with the alleged facts underlying the securities claims, are pending in the United States District Court for the Central District of California. The Lucas and Singh actions have been consolidated. On December 21, 2017, the federal district court dismissed the consolidated class action with prejudice. On December 27, 2017, the plaintiffs appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. The Lucas and Singh actions are stayed pending resolution of the Ninth Circuit appeal. Arrowhead said, "The Company believes it has meritorious defenses and intends to vigorously defend itself in these matters. The Company makes provisions for liabilities when it is both probable that a liability has been incurred and the amount can be reasonably estimated. No such liability has been recorded related to these matters. The Company cannot predict the ultimate outcome of this matter and cannot accurately estimate any potential liability the Company may incur or the impact of the results of this matter on the Company." Arrowhead Pharmaceuticals, Inc. develops novel drugs to treat intractable diseases by silencing the genes that cause them. AVANOS MEDICAL: 9th Cir. Appeal in Bahamas Surgery Case Pending --------------------------------------------------------------- Avanos Medical, Inc. (formerly Halyard Health, Inc.) awaits the decision of the Ninth Circuit Court of Appeals regarding the Company's appeal from a court ruling in the "Bahamas" putative class action, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company said, "We have an Indemnification Obligation for, and have assumed the defense of, the matter styled Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation and Halyard Health, Inc., No. 2:14-cv-08390-DMG-SH (C.D. Cal.) ("Bahamas"), filed on October 29, 2014. In that case, the plaintiff brought a putative class action asserting claims for common law fraud (affirmative misrepresentation and fraudulent concealment) and violation of California's Unfair Competition Law ("UCL") in connection with our marketing and sale of MicroCool surgical gowns. "On April 7, 2017, a jury returned a verdict for the plaintiff, finding that Kimberly-Clark was liable for US$4 million in compensatory damages (not including prejudgment interest) and US$350 million in punitive damages, and that Avanos was liable for US$0.3 million in compensatory damages (not including prejudgment interest) and US$100 million in punitive damages. Subsequently, the court also ruled on the plaintiff's UCL claim and request for injunctive relief. The court found in favor of the plaintiff on the UCL claim but denied the plaintiff's request for restitution. The court also denied the plaintiff's request for injunctive relief. "On May 25, 2017, we filed three post-trial motions: a renewed motion for judgment as a matter of law; a motion to decertify the class; and a motion for new trial, remittitur, or amendment of the judgment. On March 30, 2018, the court ruled on the post-trial motions. The court denied all three, except it granted in part the motion to reduce the award of punitive damages to a 5 to 1 ratio with compensatory damages. "On April 11, 2018, the court issued an Amended Judgment in favor of the plaintiff and against us and Kimberly-Clark. The judgment against us is US$0.3 million in compensatory damages and pre-judgment interest and US$1.3 million in punitive damages. The judgment against Kimberly-Clark is US$3.9 million in compensatory damages, US$1.3 million in pre-judgment interest and US$19.4 million in punitive damages. "On April 12, 2018, we filed a notice of appeal to the Ninth Circuit Court of Appeals. We intend to continue our vigorous defense of the Bahamas matter." Avanos Medical, Inc. operates as a medical technology company that focuses on eliminating pain, speeding recovery, and preventing infection for healthcare providers and patients worldwide. The Company was formerly known as Halyard Health, Inc. and changed its name to Avanos Medical, Inc. in June 2018. Avanos Medical, Inc. was incorporated in 2014 and is headquartered in Alpharetta, Georgia. AVANOS MEDICAL: Still Defends Jackson Class Action -------------------------------------------------- Avanos Medical, Inc. (formerly Halyard Health, Inc.) continues to defend itself in a putative class action suit captioned Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company said, "We were served with a complaint in a matter styled Jackson v. Halyard Health, Inc., Robert E. Abernathy, Steven E. Voskuil, et al., No. 1:16-cv-05093-LTS (S.D.N.Y.), filed on June 28, 2016. In that case, the plaintiff brings a putative class action against the Company, our Chief Executive Officer, our Chief Financial Officer and other defendants, asserting claims for violations of the Securities Exchange Act, Sections 10(b) and 20(a). The plaintiff alleges that the defendants made misrepresentations and failed to disclose certain information about the safety and effectiveness of our MicroCool gowns and thereby artificially inflated the Company's stock prices during the respective class periods. "The alleged class period for purchasers of Kimberly-Clark securities who subsequently received Avanos securities is February 25, 2013 to October 21, 2014, and the alleged class period for purchasers of Avanos securities is October 21, 2014 to April 29, 2016. "On February 16, 2017, we moved to dismiss the case. On March 30, 2018, the court granted our motion to dismiss and entered judgment in our favor. On April 27, 2018, the plaintiff filed a Motion for Relief from the Judgment and for Leave to Amend. We intend to continue our vigorous defense of this matter." Avanos Medical, Inc. operates as a medical technology company that focuses on eliminating pain, speeding recovery, and preventing infection for healthcare providers and patients worldwide. The Company was formerly known as Halyard Health, Inc. and changed its name to Avanos Medical, Inc. in June 2018. Avanos Medical, Inc. was incorporated in 2014 and is headquartered in Alpharetta, Georgia. BAUSCH HEALTH: Accord in Allergan Suits Gets Final Court Approval ------------------------------------------------------------------ The Court has granted final approval of the settlement for the Allergan Shareholder Class Actions on June 12, 2018, according to Bausch Health Companies Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On December 16, 2014, Anthony Basile, an alleged shareholder of Allergan filed a lawsuit on behalf of a putative class of Allergan shareholders against the Company, VPI, AGMS, Pershing Square, PS Management, GP, LLC, PS Fund 1 and William A. Ackman in the U.S. District Court for the Central District of California (Basile v. Valeant Pharmaceuticals International, Inc., et al., Case No. 14-cv-02004-DOC). On June 26, 2015, lead plaintiffs the State Teachers Retirement System of Ohio, the Iowa Public Employees Retirement System and Patrick T. Johnson filed an amended complaint against the Company, VPI, J. Michael Pearson, Pershing Square, PS Management, GP, LLC, PS Fund 1 and William A. Ackman. The amended complaint alleged claims on behalf of a putative class of sellers of Allergan securities between February 25, 2014 and April 21, 2014, against all defendants contending that various purchases of Allergan securities by PS Fund were made while in possession of material, non-public information concerning a potential tender offer by the Company for Allergan stock, and asserting violations of Section 14(e) of the Exchange Act and rules promulgated by the SEC thereunder and Section 20A of the Exchange Act. The amended complaint also alleged violations of Section 20(a) of the Exchange Act against Pershing Square, various Pershing Square affiliates, William A. Ackman and J. Michael Pearson. The amended complaint sought, among other relief, money damages, equitable relief, and attorneys' fees and costs. On March 15, 2017, the Court entered an order certifying a plaintiff class comprised of persons who sold Allergan common stock contemporaneously with purchases of Allergan common stock made or caused by defendants during the period February 25, 2014 through April 21, 2014. On June 28, 2017, Timber Hill LLC, a Connecticut limited liability company that allegedly traded in Allergan derivative instruments, filed a lawsuit on behalf of a putative class of derivative traders against the Company, VPI, AGMS, Michael Pearson, Pershing Square, PS Management, GP, LLC, PS Fund 1 and William A. Ackman in the U.S. District Court for the Central District of California (Timber Hill LLC v. Pershing Square Capital Management, L.P., et al., Case No. 17-cv-04776-DOC). The complaint alleged claims on behalf of a putative class of investors who sold Allergan call options, purchased Allergan put options and/or sold Allergan equity forward contracts between February 25, 2014 and April 21, 2014, against all defendants contending that various purchases of Allergan securities by PS Fund were made while in possession of material, non-public information concerning a potential tender offer by the Company for Allergan stock, and asserting violations of Section 14(e) of the Exchange Act and rules promulgated by the SEC thereunder and Section 20A of the Exchange Act. The complaint also alleged violations of Section 20(a) of the Exchange Act against Pershing Square, various Pershing Square affiliates, William A. Ackman and Michael Pearson. The complaint sought, among other relief, money damages, equitable relief, and attorneys' fees and costs. On July 25, 2017, the Court decided not to consolidate this lawsuit with the Basile action. On December 28, 2017, all parties agreed to settle the ongoing, related Allergan shareholder class actions for a total of US$290 million. As part of that proposed settlement, the Company parties are to pay US$96 million, being 33% of the settlement amount, while the Pershing Square parties are to pay US$195 million, being 67% of the settlement amount. The Court preliminarily approved the settlement on March 19, 2018. Following a hearing held on June 12, 2018, the Court granted final approval of the settlement; the Company is awaiting the judge to formally enter the final order. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Accord in Solodyn(R) Antitrust Suit Has Final Okay ----------------------------------------------------------------- The District Court has granted final approval of the settlements with the End-Payor and Direct Purchaser classes in the Solodyn(R) Antitrust Class Actions on July 18, 2018, according to Bausch Health Companies Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. Beginning in July 2013, a number of civil antitrust class action suits were filed against Medicis Pharmaceutical Corporation ("Medicis"), Valeant Pharmaceuticals International, Inc. ("VPII") and various manufacturers of generic forms of Solodyn(R), alleging that the defendants engaged in an anticompetitive scheme to exclude competition from the market for minocycline hydrochloride extended release tablets, a prescription drug for the treatment of acne marketed by Medicis under the brand name, Solodyn(R). The plaintiffs in such suits alleged violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2, and of various state antitrust and consumer protection laws, and further alleged that the defendants have been unjustly enriched through their alleged conduct. The plaintiffs sought declaratory and injunctive relief and, where applicable, treble, multiple, punitive and/or other damages, including attorneys' fees. By order dated February 25, 2014, the Judicial Panel for Multidistrict Litigation ("JPML") centralized the suits in the District of Massachusetts, under the caption In re Solodyn (Minocycline Hydrochloride) Antitrust Litigation, Case No. 1:14-md-02503-DJC, before U.S. District Judge Denise Casper. After the Direct Purchaser Class Plaintiffs and the End-Payor Class Plaintiffs each filed a consolidated amended class action complaint on September 12, 2014, the defendants jointly moved to dismiss those complaints. On August 14, 2015, the Court granted the Defendants' motion to dismiss with respect to claims brought under Sherman Act, Section 2 and various state laws but denied the motion to dismiss with respect to claims brought under Sherman Act, Section 1 and other state laws. VPII was dismissed from the case, but the litigation continued against Medicis and the generic manufacturers as to the remaining claims. On March 26, 2015, and on April 6, 2015, while the motion to dismiss the class action complaints was pending, two additional non-class action complaints were filed against Medicis by certain retail pharmacy and grocery chains ("Individual Plaintiffs") making similar allegations and seeking similar relief to that sought by Direct Purchaser Class Plaintiffs. Those suits were centralized with the class action suits in the District of Massachusetts. Following the Court's August 14, 2015 decision on the motion to dismiss, the Individual Plaintiffs each filed amended complaints on October 1, 2015, and Medicis answered on December 7, 2015. A third non-class action was filed by another retail pharmacy against Medicis on January 26, 2016, and Medicis answered on March 28, 2016. Plaintiffs reached settlements with two of three generic manufacturer defendants prior to the close of discovery. On April 14, 2017, the Court granted the Direct Purchaser Plaintiffs' and End-Payor Plaintiffs' motions for preliminary approval of those settlements and granted final approval on November 27, 2017. For the remaining parties, following the close of fact discovery and expert discovery, the Court granted Direct Purchaser Plaintiffs' and End-Payor Plaintiffs' motions for class certification for the purposes of damages, but denied End-Payor Plaintiffs' motion for class certification for the purposes of injunctive and declaratory relief. The remaining defendants petitioned to appeal the certification of the End-Payor Class and this petition was denied. Plaintiffs and the remaining defendants each filed motions for summary judgment. The Court heard oral argument on the parties' summary judgment motions on January 12, 2018. On January 25, 2018, the Court issued a Memorandum and Order denying the parties' motions, except for partially allowing defendants' motion on market power. In February 2018, Medicis agreed to resolve the class action litigation with the End Payor and Direct Payor classes for an amount of US$58 million and has resolved related litigation with opt-out retailers for additional consideration. On July 18, 2018, the district court granted final approval of these settlements with the End-Payor and Direct Purchaser classes. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Appeal from Class Status in Quebec Suit Pending -------------------------------------------------------------- The Superior Court of Quebec's certification of class status in a case against Bausch Health Companies Inc. and various Johnson & Johnson entities is currently on appeal, Bausch Health said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The plaintiff sought to certify a proposed class action on behalf of persons in Quebec who have used Johnson & Johnson's Baby Powder or Shower to Shower, as well as their family members, assigns and heirs, and is alleging negligence in failing to properly test, failing to warn of health risks, and failing to remove the products from the market in a timely manner. A certification (also known as authorization) hearing in the Quebec matter was held on January 11, 2018. On May 2, 2018, the Court certified (or as stated under Quebec law, authorized) the bringing of a class action by a representative plaintiff on behalf of people in Quebec who have used Johnson & Johnson's Baby Powder and/or Shower to Shower in their perineal area and have been diagnosed with ovarian cancer and/or family members, assigns and heirs. The Court's authorization order is currently on appeal. The plaintiffs in the action are seeking awards of general, special, compensatory and punitive damages. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Appeal from Nixed Class Status Bid Still Pending --------------------------------------------------------------- The plaintiff's appeal from the court decision dismissing an application for class certification in the Afexa Class Action remains pending in the Supreme Court of Canada, according Bausch Health Companies Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On March 9, 2012, a Notice of Civil Claim was filed in the Supreme Court of British Columbia which sought an order certifying a proposed class proceeding against the Company and a predecessor, Afexa Life Sciences Inc. ("Afexa") (Case No. NEW-S-S-140954). The proposed claim asserted that Afexa and the Company made false representations respecting Cold-FX(R) to residents of British Columbia who purchased the product during the applicable period and that the proposed class has suffered damages as a result. On November 8, 2013, the Plaintiff served an amended notice of civil claim which sought to re-characterize the representation claims and broaden them from what was originally claimed. On December 8, 2014, the Company filed a motion to strike certain elements of the Plaintiff's claim for failure to state a cause of action. In response, the Plaintiff proposed further amendments to its claim. The hearing on the motion to strike and the Plaintiff's amended claim was held on February 4, 2015. The Court allowed certain additional subsequent amendments, while it struck others. The hearing to certify the class was held on April 4-8, 2016 and, on November 16, 2016, the Court issued a decision dismissing the plaintiff's application for certification of this action as a class proceeding. On December 15, 2016, the plaintiff filed a notice of appeal in the British Columbia Court of Appeal appealing the decision to dismiss the application for certification. The plaintiff filed its appeal factum on March 15, 2017 and the Company filed its appeal factum on April 19, 2017. The appeal hearing was held on September 19, 2017 and, on April 30, 2018, the British Columbia Court of Appeal dismissed the appeal. On June 29, 2018, the plaintiff filed leave to appeal to the Supreme Court of Canada ("SCC") in this matter. The Company's reply is due 30 days from the date a matter is opened by the SCC. The Company intends to vigorously defend this matter. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Consolidated RICO Class Action Remains Stayed ------------------------------------------------------------ The consolidated RICO class action litigating filed against Bausch Health Companies Inc., among other third-party defendants, is still stayed, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. Between May 27, 2016 and September 16, 2016, three virtually identical actions were filed in the U.S. District Court for the District of New Jersey against the Company and various third parties, alleging claims under the federal Racketeer Influenced Corrupt Organizations Act ("RICO") on behalf of a putative class of certain third party payors that paid claims submitted by Philidor for certain Company branded drugs between January 2, 2013 and November 9, 2015 (Airconditioning and Refrigeration Industry Health and Welfare Trust Fund et al. v. Valeant Pharmaceuticals International. Inc. et al., No. 3:16-cv-03087, Plumbers Local Union No. 1 Welfare Fund v. Valeant Pharmaceuticals International Inc. et al., No. 3:16-cv-3885 and N.Y. Hotel Trades Council et al v. Valeant Pharmaceuticals International. Inc. et al., No. 3:16-cv-05663). On November 30, 2016, the Court entered an order consolidating the three actions under the caption In re Valeant Pharmaceuticals International, Inc. Third-Party Payor Litigation, No. 3:16-cv-03087. A consolidated class action complaint was filed on December 14, 2016. The consolidated complaint alleges, among other things, that the Defendants committed predicate acts of mail and wire fraud by submitting or causing to be submitted prescription reimbursement requests that misstated or omitted facts regarding (1) the identity and licensing status of the dispensing pharmacy; (2) the resubmission of previously denied claims; (3) patient co-pay waivers; (4) the availability of generic alternatives; and (5) the insured's consent to renew the prescription. The complaint further alleges that these acts constitute a pattern of racketeering or a racketeering conspiracy in violation of the RICO statute and caused plaintiffs and the putative class unspecified damages, which may be trebled under the RICO statute. The Company moved to dismiss the consolidated complaint on February 13, 2017. Briefing of the motion was completed on May 17, 2017. On March 14, 2017, other defendants filed a motion to stay the RICO class action pending the resolution of criminal proceedings against Andrew Davenport and Gary Tanner. The Company did not oppose the motion to stay. On August 9, 2017, the Court granted the motion to stay and entered an order staying all proceedings in the case and accordingly terminating other pending motions. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Contact Lens Antitrust Class Action Underway ----------------------------------------------------------- Bausch Health Companies Inc. continues to defend itself against a consolidated antitrust class action related to contact lenses, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. Beginning in March 2015, a number of civil antitrust class action suits were filed by purchasers of contact lenses against B&L Inc., three other contact lens manufacturers, and a contact lens distributor, alleging that the defendants engaged in an anticompetitive scheme to eliminate price competition on certain contact lens lines through the use of unilateral pricing policies. The plaintiffs in such suits alleged violations of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1, and of various state antitrust and consumer protection laws, and further alleged that the defendants have been unjustly enriched through their alleged conduct. The plaintiffs sought declaratory and injunctive relief and, where applicable, treble, punitive and/or other damages, including attorneys' fees. By order dated June 8, 2015, the JPML centralized the suits in the Middle District of Florida, under the caption In re Disposable Contact Lens Antitrust Litigation, Case No. 3:15-md-02626-HES-JRK, before U.S. District Judge Harvey E. Schlesinger. After the Class Plaintiffs filed a corrected consolidated class action complaint on December 16, 2015, the defendants jointly moved to dismiss those complaints. On June 16, 2016, the Court granted the Defendants' motion to dismiss with respect to claims brought under the Maryland Consumer Protection Act, but denied the motion to dismiss with respect to claims brought under Sherman Act, Section 1 and other state laws. Discovery has been concluded. On March 3, 2017, the Class Plaintiffs filed their motion for class certification. On June 15, 2017, defendants filed a motion to oppose the plaintiffs' class certification motion, as well as motions to exclude plaintiffs' expert reports. An evidentiary hearing was held before Judge Schlesinger on August 1 and 2, 2018. The Company said it intends to vigorously defend all of these actions. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Continues to Defend Canadian Securities Lawsuits --------------------------------------------------------------- Bausch Health Companies Inc. is still defending itself against securities lawsuits in Canada, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In 2015, six putative class actions were filed and served against the Company in Canada in the provinces of British Columbia, Ontario and Quebec. These actions are captioned: (a) Alladina v. Valeant, et al. (Case No. S-1594B6) (Supreme Court of British Columbia) (filed November 17, 2015); (b) Kowalyshyn v. Valeant, et al. (CV-15-540593-00CP) (Ontario Superior Court) (filed November 16, 2015); (c) Kowalyshyn et al. v. Valeant, et al. (CV-15-541082-00CP (Ontario Superior Court) (filed November 23, 2015); (d) O'Brien v. Valeant et al. (CV-15-543678-00CP) (Ontario Superior Court) (filed December 30, 2015); (e) Catucci v. Valeant, et al. (Court File No. 540-17-011743159) (Quebec Superior Court) (filed October 26, 2015); and (f) Rousseau-Godbout v. Valeant, et al. (Court File No. 500-06-000770-152) (Quebec Superior Court) (filed October 27, 2015). The Alladina, Kowalyshyn, O'Brien, Catucci and Rousseau-Godbout actions also name, among others, certain current or former directors and officers of the Company. The Rosseau-Godbout action was subsequently stayed by the Quebec Superior Court by consent order. Each of the five remaining actions alleges violations of Canadian provincial securities legislation on behalf of putative classes of persons who purchased or otherwise acquired securities of the Company for periods commencing as early as January 1, 2013 and ending as late as November 16, 2015. The alleged violations relate to, among other things, alleged misrepresentations and/or failures to disclose material information about the Company's business and prospects, relating to drug pricing, the Company's policies and accounting practices, the Company's use of specialty pharmacies and, in particular, the Company's relationship with Philidor. The Alladina, Kowalyshyn and O'Brien actions also assert common law claims for negligent misrepresentation, and the Alladina claim additionally asserts common law negligence, conspiracy, and claims under the British Columbia Business Corporations Act, including the statutory oppression remedies in that legislation. The Catucci action asserts claims under the Quebec Civil Code, alleging the Company breached its duty of care under the civil standard of liability contemplated by the Code. The Company is aware of two additional putative class actions that have been filed with the applicable court but which have not yet been served on the Company. These actions are captioned: (i) Okeley v. Valeant, et al. (Case No. S-159991) (Supreme Court of British Columbia) (filed December 2, 2015); and (ii) Sukenaga v Valeant et al. (CV-15-540567-00CP) (Ontario Superior Court) (filed November 16, 2015), and the factual allegations made in these actions are substantially similar to those outlined above. The Company has been advised that the plaintiffs in these actions do not intend to pursue the actions. On June 10, 2016, the Ontario Superior Court of Justice rendered its decision on carriage motions (motions held to determine who will have carriage of the class action) heard on April 8, 2016, provisionally staying the O'Brien action, in favor of the Kowalyshyn action. On September 15, 2016, in response to an arrangement between the plaintiffs in the Kowalyshyn action and the O'Brien action, the court ordered both that the Kowalyshyn action be consolidated with the O'Brien action and that the consolidated action be stayed in favor of the Catucci action pending either the further order of the Ontario court or the determination of the motion for leave in the Catucci action. In the Catucci action, motions for leave under the Quebec Securities Act and for authorization as a class proceeding were heard the week of April 24, 2017, with the motion judge reserving her decision. Prior to that hearing, the parties resolved applications by the defendants concerning jurisdiction and class composition, with the plaintiffs agreeing to revise the definition of the proposed class to exclude claims in respect of Company securities purchased in the United States. On August 29, 2017, the judge released her reasons for judgment granting the plaintiffs leave to proceed with their claims under the Quebec Securities Act and authorizing the class proceeding. On October 12, 2017, the Company and the other defendants filed applications for leave to appeal from certain aspects of the decision authorizing the class proceeding. The applications for leave to appeal were heard on November 22, 2017 and were dismissed on November 30, 2017. On October 26, 2017, the plaintiffs issued their Judicial Application Originating Class Proceedings. A timetable for certain pre-trial procedural matters in the action has been set and the notice of certification has been disseminated to class members. Among other things, the timetable established a deadline of June 19, 2018 for class members to exercise their right to opt-out of the class. In addition to the class proceedings, on April 12, 2018, the Company was served with an application for leave filed in the Quebec Superior Court of Justice to pursue an action under the Quebec Securities Act was commenced in the Quebec Superior Court of Justice against the Company and certain current or former officers and directors. This action is captioned BlackRock Asset Management Canada Limited et al. v. Valeant, et al. (Court File No. 500-11-054155-185). The allegations in the proceeding are similar to those made by plaintiffs in the Catucci class action. On June 18, 2018, the same BlackRock entities filed an originating application against the same defendants asserting claims under the Quebec Civil Code in respect of the same alleged misrepresentations. The Company is aware that certain other members of the Catucci class exercised their opt-out rights prior to the June 19, 2018 deadline. The Company said it believes that it has viable defenses in each of these actions. In each case, the Company intends to defend itself vigorously. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Defends Securities Suits by 27 Investor Groups ------------------------------------------------------------- Bausch Health Companies Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018, that 27 groups of individual investors in the Company's stock and debt securities at this point have chosen to opt out of the consolidated putative class action and filed securities actions in the U.S. District Court for the District of New Jersey against the Company and certain current or former officers and directors and other such proceedings may be initiated or asserted. Another case was initially filed in New York but was later transferred to New Jersey. The 27 actions are captioned: T. Rowe Price Growth Stock Fund, Inc. v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-5034); Equity Trustees Limited as Responsible Entity for T. Rowe Price Global Equity Fund v. Valeant Pharmaceuticals International Inc. (Case No. 16-cv-6127); Principal Funds, Inc. v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-6128); BloombergSen Partners Fund LP v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7212); Discovery Global Citizens Master Fund, Ltd. v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7321); MSD Torchlight Partners, L.P. v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7324); BlueMountain Foinaven Master Fund, L.P. v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7328); Incline Global Master LP v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7494); VALIC Company I v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7496); Janus Aspen Series v. Valeant Pharmaceuticals International, Inc. (Case No. 16-cv-7497) ("Janus Aspen"); Okumus Opportunistic Value Fund, LTD v. Valeant Pharmaceuticals International, Inc. (Case No. 17-cv-6513) ("Okumus"); Lord Abbett Investment Trust- Lord Abbett Short Duration Income Fund, v. Valeant Pharmaceuticals International, Inc. (Case No. 17-cv-6365) ("Lord Abbett"); Pentwater Equity Opportunities Master Fund LTD v. Valeant Pharmaceuticals International, Inc., et al. (Case No. 17-cv-7552), Public Employees' Retirement System of Mississippi v. Valeant Pharmaceuticals International Inc. (Case No. 17-cv-7625) ("Mississippi"); The Boeing Company Employee Retirement Plans Master Trust v. Valeant Pharmaceuticals International Inc., et al., (Case No. 17-cv-7636) ("Boeing"); State Board of Administration of Florida v. Valeant Pharmaceuticals International Inc. (Case No. 17-cv-12808); The Regents of the University of California v. Valeant Pharmaceuticals International, Inc. (Case No. 17-cv-13488); GMO Trust v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0089); Första AP Fonden v. Valeant Pharmaceuticals International, Inc. (Case No. 17-cv-12088); New York City Employees' Retirement System v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0032) ("NYCERS"); Blackrock Global Allocation Fund, Inc. v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0343) ("Blackrock"); Colonial First State Investments Limited As Responsible Entity for Commonwealth Global Shares Fund 1 v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0383); Bharat Ahuja v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0846); Brahman Capital Corp. v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0893); The Prudential Insurance Company of America v. Valeant Pharmaceuticals International, Inc. (Case No. 3:18-cv-01223) ("Prudential"); Senzar Healthcare Master Fund LP v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-02286) ("Senzar"); and 2012 Dynasty UC LLC v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-08595) ("2012 Dynasty"). In addition, one group of individual investors in the Company's stock securities chose to opt out of the consolidated putative class action and filed a securities action in the U.S. District Court for the Southern District of New York against the Company and certain current or former officers and directors. This action was captioned: Hound Partners Offshore Fund, LP v. Valeant Pharmaceuticals International, Inc. (Case No. 18-cv-0076) ("Hound Partners"). Defendants filed a motion to transfer the Hound Partners case to the District of New Jersey on February 2, 2018. On April 24, 2018, the Court granted Defendants' motion and the case was transferred to the District of New Jersey on May 1, 2018 (Case No. 3:18-cv-08705). These individual shareholder actions assert claims under Sections 10(b), 18, and 20(a) of the Exchange Act, Sections 11, 12(a)(2), and 15 of the Securities Act, common law fraud, and negligent misrepresentation under state law, based on alleged purchases of Company stock, options, and/or debt at various times between January 3, 2013 and August 10, 2016. Plaintiffs in the Lord Abbett, Boeing, Mississippi, NYCERS, Hound Partners and 2012 Dynasty cases additionally assert claims under the New Jersey Racketeer Influenced and Corrupt Organizations Act. The allegations in the complaints are similar to those made by plaintiffs in the putative class action. Plaintiffs in the Janus Aspen action amended the complaint on April 28, 2017. Defendants filed motions for partial dismissal in ten individual actions in the U.S. District Court for the District of New Jersey on June 16, 2017. Briefing of those motions was completed on August 25, 2017. On January 12, 2018, the Court dismissed the negligent misrepresentation claims and otherwise denied the motions for partial dismissal. On October 19, 2017, the U.S. District Court for the District of New Jersey entered an order requesting briefs from the parties regarding whether the Court should stay the putative securities class action and the individual securities law actions filed in the District of New Jersey until after the resolution of criminal proceedings against Andrew Davenport and Gary Tanner. The Court's order immediately stayed all deadlines, briefing schedules, and discovery in securities actions pending completion of the briefing and the Court's decision. The Court directed the parties to file briefs either supporting or opposing the stay, with such briefs to be concluded by November 8, 2017. On November 29, 2017, the Court entered an order staying all proceedings and discovery, except for a document production in the putative securities class action and the briefing and resolution of any motions to dismiss, in the putative securities class action and all current and subsequent related individual securities law actions filed in the District of New Jersey. On June 5, 2018, the Court lifted the stay. Defendants filed motions for partial dismissal in the Lord Abbett, Mississippi, and Boeing cases on December 6, 2017. Briefing on those motions was completed on March 15, 2018. On July 31, 2018, the Court dismissed the common law fraud and negligent misrepresentation claims and otherwise denied the motions for partial dismissal. Defendants filed actions for partial dismissal in the Okumus case in December 18, 2017. On February 1, 2018, the parties filed a stipulation and proposed order in the Okumus case that would withdraw Defendants' motions for partial dismissal, and dismiss Okumus' state-law claims. The Court entered that stipulation on February 2, 2018. Defendants filed a motion for partial dismissal in the Pentwater case on February 13, 2018. Briefing on that motion was completed on March 27, 2018. Defendants filed motions for partial dismissal in the NYCERS and Blackrock cases on February 23, 2018. Briefing on those motions was completed on April 30, 2018. Defendants filed a motion for partial dismissal in the Senzar case on May 4, 2018. Briefing on this motion was completed on June 18, 2018. Defendants filed a motion for partial dismissal in the Hound Partners case on May 22, 2018. Briefing on that motion was completed on July 30, 2018. Defendants filed a motion for partial dismissal in the 2012 Dynasty case on June 15, 2018. Briefing on that motion was completed on July 27, 2018. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Nov 4 Class Status Hearing in British Columbia Case ------------------------------------------------------------------ A hearing for class certification is set for November 4, 2018, in the proposed class action filed against Bausch Health Companies Inc. and various Johnson & Johnson entities in the Supreme Court of British Columbia, according to Bausch Health's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The plaintiff seeks to certify a proposed class action on behalf of persons in British Columbia and Canada who have purchased or used Johnson & Johnson's Baby Powder or Shower to Shower, including their estates, executors and personal representatives, and is alleging that the use of this product increases certain health risks. The plaintiffs in the action are seeking awards of general, special, compensatory and punitive damages. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BAUSCH HEALTH: Timber Hill Securities Suit Consolidated ------------------------------------------------------- The putative class action filed by Timber Hill LLC against Bausch Health Companies Inc., among other defendants, has been consolidated with In re Valeant Pharmaceuticals International, Inc. Securities Litigation, (Case No. 3:15-cv-07658), according to Bausch Health's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. From October 22, 2015 to October 30, 2015, four putative securities class actions were filed in the U.S. District Court for the District of New Jersey against the Company and certain current or former officers and directors. Those four actions, captioned Potter v. Valeant Pharmaceuticals International, Inc. et al. (Case No. 15-cv-7658), Chen v. Valeant Pharmaceuticals International, Inc. et al. (Case No. 15-cv-7679), Yang v. Valeant Pharmaceuticals International, Inc. et al. (Case No. 15-cv-7746), and Fein v. Valeant Pharmaceuticals International, Inc. et al. (Case No. 15-cv-7809), all asserted securities fraud claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") on behalf of putative classes of persons who purchased or otherwise acquired the Company's stock during various time periods between February 28, 2014 and October 21, 2015. The allegations relate to, among other things, allegedly false and misleading statements and/or failures to disclose information about the Company's business and prospects, including relating to drug pricing, the Company's use of specialty pharmacies, and the Company's relationship with Philidor. On May 31, 2016, the Court entered an order consolidating the four actions under the caption In re Valeant Pharmaceuticals International, Inc. Securities Litigation, Case No. 3:15-cv-07658, and appointing a lead plaintiff and lead plaintiff's counsel. On June 24, 2016, the lead plaintiff filed a consolidated complaint naming additional defendants and asserting additional claims based on allegations of false and misleading statements and/or omissions similar to those in the initial complaints. Specifically, the consolidated complaint asserts claims under Sections 10(b) and 20(a) of the Exchange Act against the Company, and certain current or former officers and directors, as well as claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (the "Securities Act") against the Company, certain current or former officers and directors, and certain other parties. The lead plaintiff seeks to bring these claims on behalf of a putative class of persons who purchased the Company's equity securities and senior notes in the United States between January 4, 2013 and March 15, 2016, including all those who purchased the Company's securities in the United States in the Company's debt and stock offerings between July 2013 to March 2015. On September 13, 2016, the Company and the other defendants moved to dismiss the consolidated complaint. Briefing on the Company's motion was completed on January 13, 2017. On April 28, 2017, the Court dismissed certain claims arising out of the Company's private placement offerings and otherwise denied the motions to dismiss. Defendants' answers to the consolidated complaint were filed on August 18, 2017. On June 6, 2018, a putative class action was filed in the U.S. District Court for the District of New Jersey against the Company and certain current or former officers and directors. This action, captioned Timber Hill LLC, v. Valeant Pharmaceuticals International, Inc., et al., (Case No. 2:18-cv-10246), asserts securities fraud claims under Sections 10(b) and 20(a) of the Exchange Act on behalf of a putative class of persons who purchased call options or sold put options on the Company's common stock during the period January 4, 2013 through August 11, 2016. Bausch Health Companies Inc. develops, manufactures, and markets a range of pharmaceutical, medical device, and over-the-counter products primarily in the therapeutic areas of eye health, gastroenterology, and dermatology. The Company was formerly known as Valeant Pharmaceuticals International, Inc. and changed its name to Bausch Health Companies Inc. in July 2018. Bausch Health Companies Inc. was founded in 1983 and is headquartered in Laval, Canada. BBVA COMPASS: Appeal in Plains All American Securities Suit Ongoing ------------------------------------------------------------------- An appeal remains pending from the dismissed putative class action styled In re Plains All American Pipeline, L.P. Securities Litigation, according to BBVA Compass Bancshares, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In January 2016, BBVA Securities Inc. ("BSI") was named as a defendant in a putative class action lawsuit filed in the United States District Court for the Southern District of Texas, In re Plains All American Pipeline, L.P. Securities Litigation, wherein the plaintiffs challenge statements made in registration materials and prospectuses filed with the Securities and Exchange Commission in connection with eight securities offerings of stock and notes issued by Plains GP Holdings and Plains All American Pipeline and underwritten by BSI, among others. The plaintiffs seek unspecified monetary relief. On April 2, 2018, the court granted the defendants' motion to dismiss with prejudice. The plaintiffs have appealed. The Company said it believes there are substantial defenses to these claims and intends to defend them vigorously. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: BSI Dismissed as Defendant in Teachers' Plan Lawsuit ------------------------------------------------------------------ An amended complaint filed on June 22, 2018 in the putative class action lawsuit styled Ontario Teachers' Pension Plan Board, individually and on behalf of all others similarly situated v. Teva Pharmaceutical Industries Ltd., et al., did not allege claims against BBVA Securities Inc. ("BSI") and the other underwriters, according to BBVA Compass Bancshares, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. "This matter is now concluded," BBVA Compass said in the SEC document. In August 2017, BSI was named as a defendant in a putative class action lawsuit filed in the United States District Court for the District of Connecticut, Ontario Teachers' Pension Plan Board, individually and on behalf of all others similarly situated v. Teva Pharmaceutical Industries Ltd., et al., wherein the plaintiffs allege that Teva Pharmaceutical Industries Ltd. ("Teva"), its officers and directors, and the underwriting defendants (including BSI) made inaccurate and misleading statements in the offering materials related to Teva's role in an alleged conspiracy to inflate the market prices of certain generic drug products. The plaintiffs seek unspecified monetary relief. The plaintiffs filed an amended complaint on June 22, 2018 that did not allege claims against BSI and the other underwriters. This matter is now concluded. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: BSI Still Faces Suit by Firefighters' Pension Trust ----------------------------------------------------------------- BBVA Securities Inc. ("BSI") continues to defend itself in a putative class action lawsuit styled St. Lucie County Fire District Firefighters' Pension Trust, individually and on behalf of all others similarly situated v. Southwestern Energy Company, et al., according to BBVA Compass Bancshares, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In October 2016, BSI was named as a defendant in a putative class action lawsuit filed in the District Court of Harris County, Texas, St. Lucie County Fire District Firefighters' Pension Trust, individually and on behalf of all others similarly situated v. Southwestern Energy Company, et al., wherein the plaintiffs allege that Southwestern Energy Company, its officers and directors, and the underwriting defendants (including BSI) made inaccurate and misleading statements in the registration statement and prospectus related to a securities offering. The plaintiffs seek unspecified monetary relief. BBVA Securities said it believes there are substantial defenses to these claims and intends to defend them vigorously. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: In Settlement Talks for Bellissimo TCPA Class Suit ---------------------------------------------------------------- BBVA Compass Bancshares, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018, that the parties in a putative class action lawsuit styled Lara Bellissimo, et al. individually and on behalf of similarly situated individuals v. BBVA Compass, are in the process of finalizing that settlement. The Company said, "In September 2017, BBVA Compass was named as a defendant in a putative class action lawsuit filed in the United States District Court for the Northern District of Illinois, dismissed and refiled in the Circuit Court of Jefferson County, Alabama, Lara Bellissimo, et al. individually and on behalf of similarly situated individuals v. BBVA Compass, alleging violations of the Telephone Consumer Protection Act in the context of collections calls to the cell phones of individuals who were not the individuals that provided the phone numbers to BBVA Compass. The plaintiffs seek unspecified monetary relief. The parties reached a settlement in principle on February 13, 2018 and are in the process of finalizing that settlement." BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: Still Defends Hossfeld Suit over TCPA Violations -------------------------------------------------------------- BBVA Compass Bancshares, Inc. continues to face a putative class action lawsuit filed by Robert Hossfeld related to alleged violations of the Telephone Consumer Protection Act, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In December 2016, BBVA Compass was named as a defendant in a putative class action lawsuit filed in the United States District Court for the Northern District of Alabama, Robert Hossfeld, individually and on behalf of all others similarly situated v. BBVA Compass and MSR Group, LLC, alleging violations of the Telephone Consumer Protection Act in the context of customer satisfaction survey calls to the cell phones of individuals who have not given, or who have withdrawn, consent to receive calls on their cell phones. The plaintiffs seek unspecified monetary relief. The Company believes there are substantial defenses to these claims and intends to defend them vigorously. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: Still Defends Lopez Class Suit on Overdraft Fees -------------------------------------------------------------- BBVA Compass Bancshares, Inc. still defends a putative class action lawsuit by Petra Lopez and Colea Wright related to certain overdraft fees, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In January 2018, BBVA Compass was named as a defendant in a putative class action lawsuit filed in the United States District Court for the Northern District of Illinois, Petra Lopez and Colea Wright, on behalf of themselves and all others similarly situated v. BBVA Compass, challenging BBVA Compass' assessment of certain overdraft fees. The plaintiffs seek unspecified monetary relief. The Company believes there are substantial defenses to these claims and intends to defend them vigorously. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BBVA COMPASS: Still Defends Oklahoma Firefighters' Class Lawsuit ---------------------------------------------------------------- The purported class action lawsuit styled Oklahoma Firefighters Pension & Retirement System, et al., on behalf of themselves and all others similarly situated v. BBVA Compass Bancshares, Inc., BSI, et al., is still ongoing, according to BBVA Compass Bancshares, Inc.'s Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. In March 2018, the Company and BBVA Securities Inc. ("BSI") were named as defendants in a putative class action lawsuit filed in the United States District Court for the Southern District of New York, Oklahoma Firefighters Pension & Retirement System, et al., on behalf of themselves and all others similarly situated v. BBVA Compass Bancshares, Inc., BSI, et al., alleging that the defendant banks and their named subsidiaries engaged in collusion with respect to the sale of Mexican Government Bonds. Five substantially similar lawsuits were filed that will be consolidated with the original lawsuit. The plaintiffs seek unspecified monetary relief. The Company believes there are substantial defenses to these claims and intends to defend them vigorously. BBVA Compass Bancshares, Inc. is a Sunbelt-based bank holding company whose subsidiary, Compass Bank, operates 687 branches, under the trade name BBVA Compass. BBVA Compass Bancshares, Inc. is a United States financial holding company headquartered in Birmingham, Alabama and is a wholly owned subsidiary of BBVA. BELLICUM PHARMA: Bid for Lead Plaintiff & Counsel Still Pending --------------------------------------------------------------- Bellicum Pharmaceuticals, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018, that the District Court has yet to rule on the motions filed by putative class members for appointment as lead plaintiff and approval of lead counsel in a consolidated class action lawsuit. On February 6, 2018, a purported securities class action complaint captioned Nipun Kakkar v. Bellicum Pharmaceuticals, Inc., Rick Fair and Alan Musso was filed against the Company, and certain of its officers in the U.S. District Court for the Southern District of Texas, Houston Division. A second substantially similar class action was filed on March 14, 2018 by plaintiff Frances Rudy against the same defendants in the same court. The lawsuits purport to assert class action claims on behalf of purchasers of the Company's securities during the period from May 8, 2017 through January 30, 2018. The complaints allege that the defendants violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by making materially false and misleading statements concerning the Company's clinical trials being conducted in the U.S. to assess BPX-501 as an adjunct T-cell therapy administered after allogeneic hematopoietic stem cell transplantation. The complaints purport to assert claims for violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. The complaints seek, on behalf of the purported class, an unspecified amount of monetary damages, interest, fees and expenses of attorneys and experts, and other relief. On April 9, 2018, the District Court consolidated the two lawsuits under the Kakkar action and motions were filed by putative class members for appointment as lead plaintiff and approval of lead counsel. The District Court has yet to rule on the motions. Bellicum Pharmaceuticals, Inc. a clinical stage biopharmaceutical company focused on discovering and developing novel cellular immunotherapies for various forms of cancer, including both hematological cancers and solid tumors, as well as orphan inherited blood disorders. The company is based in Houston, Texas. BEST BUY: Filing of 2nd Amended IBEW Securities Suit Denied ----------------------------------------------------------- In the case, IBEW Local 98 Pension Fund, et al., Plaintiffs, v. Best Buy Co., Inc., et al., Defendants, Civil No. 11-429 (DWF/FLN) (D. Minn.), Magistrate Judge Franklin L. Noel of the U.S. of the U.S. District Court for the District of Minnesota (i) denied the Lead Plaintiff's motion for leave to file a second amended class complaint; and (ii) denied without prejudice his motion to compel. The protracted securities litigation stems from a dispute over the impact that a series of Best Buy's late 2010 public statements had on the valuation of, and demand for, its publicly traded stock shares. At the heart of the dispute is the Lead Plaintiff's allegation that Best Buy knew that its late 2010 statements were false and were issued with the fraudulent intent of galvanizing investor interest and confidence in its stock value at a time when its sales, revenues, and market share were in perceptible decline. On Sept. 14, 2010, at around 8:00 a.m., Best Buy issued a press release regarding its forecasted financial performance, market position, and product line sales revenue for the second fiscal quarter of 2011. Specifically, the press release reported a decline of 0.1% in comparable store sales growth; lower sales across home theater, and entertainment hardware and software; decreased traffic in stores; and its first decline in market share in eighteen quarters. Best Buy's common stock, which closed the day before at $34.65, opened the morning of Sept. 14, 2010, at $37.25 per share, a 7.5% increase. Throughout November of 2010, Best Buy's stock value continued to rise, trading at a high point of $45.63 per share on Nov. 23, 2010. On Nov. 24, 2010, two days before Black Friday, Mike Vitelli, Best Buy's Enterprise Executive Vice President and President for the Americas claimed in an interview with Neil Cavuto of Fox News that Best Buy's flat-screen TV sales were "going really strong" and intimated that customer demand for the product was high. On the morning of Black Friday, Nov. 26, 2010, Best Buy's CEO, Brian Dunn stated that Best Buy estimated about an 8% increase in their store traffic. On Dec. 13, 2010, Best Buy's stock value had stabilized at $41.70 per share. Despite the optimism of the Black Friday statements, beginning in mid December 2010, Best Buy's public statements reported marginal or poor sales performance. By the day's end on Dec. 14, 2010, Best Buy's stock value had dropped to $35.52 per share, a 14% decline. On Feb. 18, 2011, the action was initiated on behalf of Best Buy common stock purchasers between Sept. 14, 2010, and Dec. 13, 2010. Throughout the case, the Plaintiffs have asserted that both Best Buy's 8:00 a.m. press release and 10:00 a.m. conference call on Sept. 14, 2010, were false and misleading statements and issued with the intended effect of causing Best Buy's stock to trade at artificially inflated prices throughout the Class Period. They have also maintained that, as to the Black Friday related Nov. 24, 2010, Fox News interview, Best Buy knew that its flatscreen TV sales were declining long before the interview was given, and that Vitelli's false statement was material to investors. On June 7, 2011, Marion Haynes was appointed the Lead Plaintiff, and theCourt consolidated several related actions against Best Buy into the action pursuant to Federal Rule of Civil Procedure 42(a). On July 22, 2011, the Plaintiffs filed an Amended Consolidated Class Complaint, raising two counts under Section 10(b), Rule 10b-5, and Section 20(a) of the Securities Exchange Act. On March 20, 2012, the District Court dismissed the Plaintiffs' Amended Consolidated Class Complaint with prejudice, and denied their motion for leave to file a proposed first amended class complaint. On Oct. 22, 2012, the District Court, pursuant to Federal Rule of Civil Procedure 59(e), vacated judgment and granted the Plaintiffs' motion for leave to file their proposed first amended class complaint pursuant to Federal Rule of Civil Procedure 15(a). On Aug. 5, 2013, the District Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), again dismissed the Plaintiffs' claims related to the Sept. 14, 2010, 8:00 a.m. press release. On Sept. 13, 2013, the parties filed a joint report pursuant to Federal Rule of Civil Procedure 26(f) for the remaining claims related to the Sept. 14, 2010, 10:00 a.m. conference call. Shortly thereafter, on Sept. 25, 2013, this Court entered the Scheduling Order. On Jan. 31, 2014, the Plaintiffs moved to certify the class on the remaining claims relating to the Sept. 14, 2010, 10:00 a.m. conference call. On Aug. 6, 2014, the District Court, pursuant to Federal Rule of Civil Procedure 23, certified the class on those claims. On Sept. 4, 2014, the Plaintiffs filed the instant motion to compel Best Buy to reverse the indiscriminate and improper designation of documents highly confidential and to search for and produce documents from personal e-mail text messages. On Sept. 11, 2014, before Best Buy was required to respond to the instant motion to compel, and before a hearing could be held, the District Court provisionally stayed the case because Best Buy had petitioned the Eighth Circuit to review the District Court's class certification Order on the remaining Sept. 14, 2010, 10:00 a.m. conference call claims. On Sept. 24, 2014, the Eighth Circuit granted Best Buy's petition to appeal the District Court's class certification Order. On Oct. 22, 2014, the District Court indefinitely stayed the case, "pending appeal" and the Eighth Circuit's resolution of the class certification issue on the remaining Sept. 14, 2010, 10:00 a.m. conference call claims. On April 12, 2016, the Eighth Circuit Court reversed the District Court's grant of class certification on the claims relating to the remaining Sept. 14, 2010, 10:00 a.m. conference call claims and remanded the case for further proceedings. On June 1, 2016, the Eighth Circuit denied the Plaintiffs' Petition for an en banc rehearing, rendering its reversal of the District Court's class certification Order as final. On Jan. 20, 2017, the Lead Plaintiff formally moved for leave to file a new motion for class certification on the remaining Sept. 14, 2010, conference call claims. The Lead Plaintiff's request to revisit the issue of class certification was based on his desire to proffer new evidence that the Sept. 14, 2010, 10:00 a.m. conference call had a price impact by artificially maintaining the inflated stock price. On June 23, 2017, the District Court denied Lead Plaintiff's request for leave to file a new motion for class certification. The Lead Plaintiff now moves for leave to file his proposed second amended class complaint. He argues that discovery has shown that the allegations in the First Amended Class Complaint to be manifestly correct and the proposed second amended class complaint identifies three additional materially false and misleading statements made in Best Buy's Sept. 14, 2010, 8:00 a.m. press release, not previously alleged. Magistrate Judge Noel holds that neither newly discovered facts, a change in circumstance, or a change in law justify the Lead Plaintiff's belated motion for leave to amend. The accessibility of the Courts would have no particular societal benefit if the actions so filed were not able to be timely brought to Trial. This fundamental truth, clearly articulated in Federal Rule of Civil Procedure 1, underscores the focus of Rule 16(b) on the diligence of the party seeking to modify a Scheduling Order, as opposed to unpersuasive excuses, inclusive of inadvertence and neglect, which commonly undergird an untimely Motion to Amend. Considering how long the Lead Plaintiff has possessed the discovery used to support the instant motion for leave to amend, and how long, armed with that discovery, the Magistrate Judge finds that the Lead Plaintiff has waited to bring the motion while at the same time opting to pursue the class certification issue on the remaining Sept. 14, 2010, 10:00 a.m. conference call claims. He must conclude that the Lead Plaintiff has not shown the required good cause nor been diligent in moving for leave to amend. As a result, Lead Plaintiff's motion for leave to amend is denied pursuant to Federal Rule of Civil Procedure 16(b)(4). In addition to undue delay, granting the Lead Plaintiff's motion for leave to amend would prejudice Best Buy. Specifically, granting the Lead Plaintiff's motion for leave to amend based on the Sept. 14, 2010, 8:00 a.m. press release and Vitelli's Nov. 24, 2010 Black Friday Fox News interview is redolent of restarting the litigation on a fourth operative complaint in a case that has proceeded before both the District Court and Eighth Circuit at different junctures for seven years on matters already litigated and decided. The Magistrate Judge finds that during the seven year pendency of the case, the parties have engaged in discovery, produced deponents, and extensively argued the issues raised in the Lead Plaintiff's instant motion for leave to amend. Fundamentally, Best Buy would be prejudiced by having to defend a revived action that is based on previously rejected arguments. Accordingly, the Lead Plaintiff's motion for leave to amend is also denied under Rule 15(a)(2) because the request was unduly delayed and Best Buy would suffer prejudice. In addition, the Magistrate Judge finds no compelling reason or clear error or manifest injustice in these holdings. Indeed, the Court does not find it appropriate to permit amendment based on an issue competently decided by the Eighth Circuit and District Court. After seven years of litigation, and in light of the Eighth Circuit and District Court's rulings, the case must now proceed as an individual action based on the Sept. 14, 2010, 10:00 a.m. conference call. Given that the motion to compel was filed nearly four years ago, has not been fully briefed, has not been set for oral argument, and that no party during the 2016 case management conference or 2017 letter briefing expressed an interest in having the matter adjudicated, he will deny the Lead Plaintiff's motion to compel without prejudice. In his view, the class certification issue and long delay has likely obviated the need for judicial resolution of the instant motion to compel. The Lead Plaintiff may raise the matter again, if necessary. On a final note, the Magistrate Judg observes that the parties have not moved to maintain the seal over several docket entries filed in conjunction with the instant motion for leave to amend. Local Rule 5.6(d)(2) imposes strict time-limits on when parties are required to move to maintain the seal over a temporality sealed docket entry. The parties are instructed to file a joint motion regarding continued sealing in conformity with the Local Rule 5.6(d)(2) within 10 days of the Order or risk having those docket entries unsealed. Because the Lead Plaintiff's proposed second amended class complaint fails to satisfy either Rule 16(b)(4) or 15(a)(2) of the Federal Rules of Civil Procedure, or Rule 16.3 of the Local Rules for the District of Minnesota, Magistrate Judge Noel denied the Lead Plaintiff's motion for leave to file a second amended class action complaint for violation of the federal securities law. In addition, he denied without prejudice the Lead Plaintiff's motion to compel. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/5v5yC0 from Leagle.com. IBEW Local 98 Pension Fund, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Aelish M. Baig -- aelishb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Clayton D. Halunen -- halunen@halunenlaw.com -- Halunen Law, Daniel J. Pfefferbaum -- dpfefferbaum@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Darren J. Robbins -- darrenr@rgrdlaw.com -- David C. Walton -- davew@rgrdlaw.com -- Kenny J. Black -- kennyb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Melissa S. Weiner, Halunen Law, Shawn J. Wanta -- sjwanta@baillonthome.com -- Baillon Thome Jozwiak & Wanta LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Steven F. Marino -- smarino@marinoassociates.net -- & Vernon J. Vander Weide -- vjvanderweide@locklaw.com -- Lockridge Grindal Nauen PLLP. Marion Haynes, Lead Plaintiff, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Aelish M. Baig, Robbins Geller Rudman & Dowd LLP, pro hac vice, Clayton D. Halunen, Halunen Law, Daniel J. Pfefferbaum, Robbins Geller Rudman & Dowd LLP, Kenny J. Black, Robbins Geller Rudman & Dowd LLP, pro hac vice, Melissa S. Weiner, Halunen Law, Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP & Shawn A. Williams, Robbins Geller Rudman & Dowd LLP. Rene LeBlanc, Individually and on behalf of all others similarly situated, Plaintiff, represented by Adrienne O. Bell -- abell@ktmc.com -- Clayton D. Halunen, Halunen Law, D. Seamus Kaskela, Barroway Topaz Kessler Meltzer & Check, LLP, pro hac vice, David M. Promisloff , Barroway Topaz Kessler Meltzer & Check, LLP, pro hac vice, Garrett D. Blanchfield, Jr. --g.blanchfield@rwblawfirm.com -- Reinhardt Wendorf & Blanchfield & Shawn J. Wanta, Baillon Thome Jozwiak & Wanta LLP. Best Buy Co., Inc., Defendant, represented by Daniel J. Stujenske -- dstujenske@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice, Eric J. Magnuson -- EMagnuson@RobinsKaplan.com -- Robins Kaplan LLP, George S. Wang -- gwang@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice, Jeffrey Sullivan Gleason -- JGleason@RobinsKaplan.com -- Robins Kaplan LLP, Joseph M. McLaughlin -- jmclaughlin@stblaw.com -- Simpson Thacher & Bartlett LLP, pro hac vice, Joseph M. McLaughlin, Simpson Thacher & Bartlett LLP & Stephen P. Safranski -- SSafranski@RobinsKaplan.com -- Robins Kaplan LLP. Brian J Dunn, Jim Muehlbauer & Mike Vitelli, Defendants, represented by Eric J. Magnuson, Robins Kaplan LLP, Jeffrey Sullivan Gleason , Robins Kaplan LLP, Joseph M. McLaughlin, Simpson Thacher & Bartlett LLP & Stephen P. Safranski, Robins Kaplan LLP. BLUECROSS BLUESHIELD: Court Dismisses HIV/AIDS Patient's ADA Suit ----------------------------------------------------------------- The United States District Court for the Western District of Tennessee, Western Division, granted Defendant's Motion to Dismiss Plaintiff John Doe's First Amended Complaint in the case captioned JOHN DOE, on behalf of himself and all others similarly situated, Plaintiff, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant, No. 2:17-cv-02793-TLP-cgc (W.D. Tenn.). The Amended Complaint asserts claims against the Defendant for disability discrimination in violation of Section 1557 of the Patient Protection and Affordable Care Act (ACA) (Count I) and Title III of the Americans with Disabilities Act of 1990 (ADA) (Count II), breach of contract (Count III), and unjust enrichment (Count IV). Discrimination in Violation of the ACA The Plaintiff claims that the Program's disproportionate effect on him and other BCBST enrollees who suffer from HIV/AIDS violates Section 1557 of the ACA. By contrast, the Defendant argues that the Plaintiff fails to state a viable claim under Section 1557 of the ACA as enforced by Section 504 the Rehabilitation Act of 1973 (Rehab Act) Section 1557 is the ACA's anti-discrimination statute, which prohibits discrimination by any health plan on the basis of race, gender, age, or disability. A discrimination claim under Section 504 of the Rehab Act requires a plaintiff to show: (1) the plaintiff is a handicapped' person under the Rehab] Act; (2) the plaintiff is otherwise qualified for participation in the program at issue; (3) the plaintiff is excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap;' and (4) the relevant program or activity is receiving Federal financial assistance. Disparate Treatment Claim To state a claim for disparate treatment under Section 504 of the Rehab Act, a plaintiff must allege that the defendant acted intentionally, i.e., that the defendant engaged in discriminatory conduct intentionally, or solely by reason of the plaintiff's disability. The Plaintiff argues that his allegations of BCBST intentionally discriminating against HIV/AIDS patients and being driven by profit are not mutually exclusive. The Plaintiff asserts that his disability discrimination claim is valid under a mixed motive theory as seen in employment cases. The allegations that the Defendant's Program specifically targets individuals based on their disability, including HIV/AIDS, and affirmatively discriminates against them based on their disability, are conclusory and thus insufficient to state a claim for disparate treatment. So the Amended Complaint fails to state a prima facie claim that Defendant enacted the Program to discriminate against HIV/AIDS patients because of their disability. The Court then turns to the issues of whether the Plaintiff may pursue an ACA disability discrimination claim under a disparate impact theory and, if so, whether the Plaintiff has made a prima facie disparate impact claim. Disparate Impact Claim In those jurisdictions which allow such claims, a plaintiff must prove (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices. Here the Plaintiff's disparate impact claim asserts that the Program's requiring HIV/AIDS patients to obtain their HIV/AIDS medications by mail from a few B&M specialty pharmacies effectively discriminates against the Plaintiff and potential class members based on their status as being HIV/AIDS positive. The parties disagree on two fronts whether the Plaintiff may assert an ACA discrimination claim under a disparate impact theory. One, they disagree whether one or all the enforcement mechanisms of the civil rights statutes applies to the Plaintiff's claim; two, they dispute whether disparate impact claims are available under the Rehab Act. Determining Which Enforcement Mechanism Applies The Plaintiff relies on the OCR's interpretation of Section 1557 and the Rumble (Rumble, 2015 WL 1197415, at *11) decision to support its argument that Section 1557 thus incorporates the enforcement mechanisms of all of the named statutes. The Defendant counters that the plain language of Section 1557 is unambiguous and that the enforcement mechanism of the Rehab Act shall apply as the sole theory under which Plaintiff may bring his disability discrimination claim under Section 1557. Here, the Court similarly concludes that if Congress intended for a single standard to apply to all Section 1557 discrimination claims, repeating the references to the civil-rights statutes and expressly incorporating their distinct enforcement mechanisms would have been a pointless and confusing exercise. As in Briscoe (Briscoe v. Health Care Serv. Corp., 281 F.Supp.3d 725 (N.D. Ill. 2017), the Court analyzes the Plaintiff's ACA disability discrimination claim under the Rehab Act's enforcement mechanism. Whether the Rehab Act Allows Disparate Impact Claims The Court's analysis and holding are not questioning the difficulty experienced by the Plaintiff's and other patients with HIV/AIDS who obtain their medications through the Defendant's Program. The Court also recognizes that despite advances in education and medicine, being HIV/AIDS positive still carries a stigma. Those diagnosed with either condition face significant challenges, including the discrimination they encounter in many aspects of their daily lives. Perhaps the Program here makes that reality even more painful for the Plaintiff. All the same, the Court finds that the Amended Complaint stops short of alleging that the Plaintiff's insurer has completely deprived him of access to his HIV/AIDS medication. This is particularly compelling when considering whether the Plaintiff has stated a claim for disparate impact under the Rehab Act. The Court grants the Defendant's Motion to Dismiss, and the Plaintiff's Count I of the Amended Complaint is dismissed with prejudice. Title III of the ADA The Plaintiff's second cause of action is that the Defendant's allegedly discriminatory Program violates Title III of the ADA. This title provides, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." To state a claim for disability discrimination under Title III, a plaintiff must allege that: (1) [he] is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability. The Amended Complaint alleges that the Program denies the Plaintiff full access to and enjoyment of community pharmacies, which are places of public accommodation under the ADA. 42 U.S.C. Section 12181(7)(F). The Plaintiff argues that the terms of the Plaintiff's policy with BCBST violates Title III of the ADA because BCBST effectively operates pharmacies by controlling enrollees' access to and enjoyment of community pharmacies through the terms of their health plans. Here, the essence of the Plaintiff's Amended Complaint centers on the terms of the Defendant's specialty medication Program under his health insurance plan. That the Plaintiff may not use his plan benefits at a community pharmacy of his choosing to pay for his HIV/AIDS medication fails to support a valid claim against his insurance provider under Title III of the ADA. The Sixth Circuit's language in Parker suggests that there is no nexus between the disparity in benefits under the Plaintiff's health plan and the services offered by a community pharmacy. Viewing the Amended Complaint in the light most favorable to the Plaintiff, the Court finds persuasive the Defendant's point that Plaintiff's ADA claim is based on the terms of BCBST's coverage for specialty medications, not the availability of coverage for those medications even when the effect of those terms is that the Plaintiff may not obtain his HIV/AIDS medication from a community pharmacy without incurring exorbitant costs. The Plaintiff is not complaining that he cannot use a community pharmacy at all. At bottom, the Plaintiff's complaint is that his health insurance provider will not pay for one of his medications if he goes to his local pharmacy. Thus, the Plaintiff has no claim under Title III of the ADA, and Count II of the Amended Complaint is dismissed with prejudice. Breach of Contract The Plaintiff's breach of contract claim is also based on an alleged violation of the Rider. The Plaintiff alleges here that Defendant agreed to cover the Plaintiff's prescription drugs, subject to a copay, so long as those drugs were (a) filled on or after Plaintiff's coverage began; (b) approved for use by the Food and Drug Administration (FDA); (c) dispensed by a licensed pharmacist or network physician; and (d) listed on BCBST's Preferred Formulary. By contrast, the Defendant maintains that Count III should be dismissed because the Plaintiff fails to identify any contractual provision that BCBST purportedly breached and because the Plaintiff may not assert a standalone claim for breach of the implied covenant of good faith and fair dealing. The Plaintiff's breach of the implied covenant of good faith and fair dealing claim, it is well established under Tennessee law that performance of a contract according to its terms cannot be characterized as bad faith. And the implied obligation of good faith and fair dealing does not create new contractual rights or obligations, nor can it be used to circumvent or alter the specific terms of the parties' agreement. A claim for breach of the implied covenant of good faith and fair dealing based on compliance with a contractual term and which fails to identify the precise terms that the Defendant allegedly breached cannot survive because it would require the Court to rewrite the Plaintiff's health plan. Reading the contractual terms cited in the Amended Complaint in the light most favorable to the Plaintiff, the Court still finds that the Plaintiff has failed to state a claim for breach of contract. The Court finds that the Plaintiff fails to allege a plausible breach of contract claim, so, Count III of the Amended Complaint is dismissed with prejudice. Unjust Enrichment Even though a plaintiff may not recover for both breach of contract and unjust enrichment, the Federal Rules of Civil Procedure affirmatively allow plaintiffs to plead in the alternative, regardless of consistency. Here, however, the parties admit that the Plaintiff's BCBST health plan controls the relationship between the parties, and the Plaintiff does not appear to contend that the health plan would not cover some aspect of the Plaintiff's ability to obtain his HIV/AIDS medications. The Court also finds that the health plan is an enforceable contract controlling the parties' relationship, which means that, the Plaintiff's unjust enrichment claim, even pleaded alternatively, necessarily fails. Thus, Count IV of the Amended Complaint is dismissed with prejudice. Accordingly, the Motion to Dismiss the Amended Complaint is granted as follows: (1) Count I is dismissed with prejudice; (2) Count II is dismissed with prejudice; (3) Count III is dismissed with prejudice; and (4) Count IV is dismissed with prejudice. A full-text copy of the District Court's July 30, 2018 Memorandum Opinion and Order is available at https://tinyurl.com/yalv8ukj from Leagle.com. John Doe, Plaintiff, represented by Alan McQuarrie Mansfield -- alan@clgca.com -- pro hac vice, Benjamin Reese Powell -- Benjamin.Scharf@vta.org -- CONSUMER WATCHDOG, pro hac vice, David W. Garrison , BARRETT JOHNSTON MARTIN & GARRISON LLC, Edith Marie Kallas , WHATLEY KALLAS, LLP, pro hac vice, Gerald Sinclair Flanagan -- jerry@consumerwatchdog.org -- CONSUMER WATCHDOG, pro hac vice, Seth M. Hyatt -- shyatt@barrettjohnston.com -- BARRETT JOHNSTON MARTIN & GARRISON LLC & Gerald E. Martin -- jmartin@barrettjohnston.com -- BARRETT JOHNSTON MARTIN & GARRISON LLC. Blue Cross Blue Shield of Tennessee, Inc., Defendant, represented by Abraham Judson Souza -- asouza@reedsmith.com -- REED SMITH LLP, pro hac vice, Bryan Matthew Webster -- bwebster@reedsmith.com, REED SMITH, pro hac vice & Robert E. Boston -- bob.boston@wallerlaw.com -- WALLER LANSDEN DORTCH & DAVIS. BRIGHTHOUSE FINANCIAL: Faces Roycroft Group Annuity Class Suit -------------------------------------------------------------- Brighthouse Financial, Inc. is facing a purported class action filed by Edward Roycroft related to a Martindale-Hubbell group annuity contract, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The case is styled, Edward Roycroft v. Brighthouse Financial, Inc., et al. (U.S. District Court, Southern District of New York, filed June 18, 2018). Edward Roycroft filed a purported class action against Brighthouse Financial, Inc., MetLife, Inc., and Metropolitan Life Insurance Company. The complaint alleges plaintiff is a beneficiary of a Martindale-Hubbell group annuity contract and did not receive payments plaintiff claims he was entitled to upon his retirement in 1999. Plaintiff seeks to represent a class of all beneficiaries who were due annuity benefits pursuant to group annuity contracts and whose annuity benefits were released from reserves. Plaintiff's causes of action are for conversion, unjust enrichment, an accounting and for a constructive trust. Plaintiff seeks damages, attorneys' fees, declaratory and injunctive relief and other equitable remedies. Brighthouse Financial, Inc. intends to defend this action vigorously. CA INC: Faces Putative Class Action over Broadcom Merger Pact ------------------------------------------------------------- CA, Inc. is facing a purported class action complaint was filed on behalf of the Company's stockholders related to its merger agreement with Broadcom Inc., according to its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. The Company said, "On August 3, 2018, subsequent to the Company's announcement of its agreement to be acquired by Broadcom Inc. ("Broadcom") pursuant to the terms of the Merger Agreement, a purported class action complaint was filed on behalf of the Company's stockholders against the Company, members of its Board of Directors, Collie Acquisition Corp. and Broadcom in the United States District Court for the Southern District of New York. The plaintiff seeks to enjoin the defendants from consummating the proposed transaction, or, if the transaction is consummated, the plaintiff alternatively seeks rescission and/or damages. The plaintiff also seeks costs and fees associated with the suit." CA, Inc., together with its subsidiaries, develops, markets, delivers, and licenses software products and services in the United States and internationally. It operates through three segments: Mainframe Solutions, Enterprise Solutions, and Services. The Company was formerly known as CA Technologies and changed its name to CA, Inc. in 2006. CA, Inc. was founded in 1974 and is headquartered in New York, New York. CAPSTONE TURBINE: Sept. 24 Mediation in Securities Class Suit ------------------------------------------------------------- The parties in a consolidated federal securities class action in California are scheduled to participate in mediation on September 24, 2018, according to Capstone Turbine Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. Federal Securities Class Action Two putative securities class action complaints were filed against the Company and certain of its current and former officers in the United States District Court for the Central District of California under the following captions: David Kinney, etc. v. Capstone Turbine, et al., No. 2:15-CV-08914 on November 16, 2015 (the "Kinney Complaint") and Kevin M. Grooms, etc. v. Capstone Turbine, et al., No. 2:15-CV-09155 on December 18, 2015 (the "Grooms Complaint"). The putative class in the Kinney Complaint is comprised of all purchasers of the Company's securities between November 7, 2013 and November 5, 2015. The Kinney Complaint alleges material misrepresentations and omissions in public statements regarding BPC and the likelihood that BPC would not be able to fulfill many legal and financial obligations to the Company. The Kinney Complaint also alleges that the Company's financial statements were not appropriately adjusted in light of this situation and were not maintained in accordance with GAAP, and that the Company lacked adequate internal controls over accounting. The Kinney Complaint alleges that these public statements and accounting irregularities constituted violations by all named defendants of Section 10(b) of the Exchange Act, and Rule 10b-5 thereunder, as well as violations of Section 20(a) of the Exchange Act by the individual defendants. The Grooms Complaint makes allegations and claims that are substantially identical to those in the Kinney Complaint, and both complaints seek compensatory damages of an undisclosed amount. On January 16, 2016, several shareholders filed motions to consolidate the Kinney and Grooms actions and for appointment as lead plaintiff. On February 29, 2016, the Court granted the motions to consolidate, and appointed a lead plaintiff. On May 6, 2016, a Consolidated Amended Complaint with allegations and claims substantially identical to those of the Kinney Complaint was filed in the consolidated action. The putative class period in the Consolidated Amended Complaint is June 12, 2014 to November 5, 2015. Defendants filed a motion to dismiss the Consolidated Amended Complaint on June 17, 2016. On March 10, 2017, the Court issued an order granting Defendants' motion to dismiss in its entirety with leave to amend. Plaintiffs filed an amended complaint on April 28, 2017. On February 9, 2018, the Court issued an Order denying Defendants' motion to dismiss. On March 30, 2018, Defendants filed an answer to the Consolidated Amended Complaint. On May 17, 2018, the Court issued a scheduling order setting a trial date of March 17, 2020. On June 26, 2018, the Court entered an order vacating all deadlines through the end of October 2018 and temporarily staying formal discovery and other proceedings to allow the parties time to conduct a mediation. The parties are scheduled to participate in mediation on September 24, 2018. The Company has not recorded any liability as of June 30, 2018 since any potential loss is not probable or reasonably estimable given the current status of the proceedings. Capstone Turbine Corporation develops, manufactures, markets and services microturbine technology solutions for use in stationary distributed power generation applications, including cogeneration (combined heat and power ("CHP"), and combined cooling, heat and power ("CCHP")), renewable energy, natural resources, critical power supply, transportation and marine. In addition, the Company's microturbines can be used as battery charging generators for hybrid electric vehicle applications. The Company was organized in 1988 and has been producing its microturbine generators commercially since 1998. CAVOTEC SA: Cal. App. Reverses Bid for Judgment Denial in "Colaco" ------------------------------------------------------------------ In the case, MICHAEL COLACO et al., Plaintiffs, Cross-defendants and Appellants, v. CAVOTEC SA et al., Defendants, Cross-complainants and Respondents, Case No. G052619 (Cal. App.), Judge Richard M. Aronson of the Court of Appeals of California for the Fourth District, Division Three, reversed the judgment of the trial court's order denying the Appellants' motion for judgment notwithstanding the verdict ("JNOV"). Appellants Inet Airport Systems, Inc., Inet Airport Systems, LLC, Michael Colaco, and April Barry appeal from the judgment entered against them in the action arising from Inet's sale of its assets to respondents Cavotec SA and Cavotec Inet US, Inc. Colaco was Inet's sole shareholder and its CEO, and Barry was Inet's director of administration. After the transaction, Colaco became Cavotec Inet US, Inc.'s president and a member of its board of directors, and Barry became the company's chief financial officer. In August 2011, Colaco and Inet entered into the "Asset Purchase Agreement and Plan of Reorganization" with Cavotec SA and Cavotec Inet US Inc., a Delaware corporation Cavotec SA formed as a subsidiary for the transaction. Under the APA, Inet agreed to sell substantially all of its assets to Cavotec, including Inet's long-term, in-process customer contracts, Inet's inventory and equipment, all leasehold improvements to Inet's manufacturing facility, and Inet's intellectual property. In exchange, Cavotec agreed to transfer to Inet 7.7 million shares of Cavotec SA stock and make two, $2 million "Performance Earn-out Payments" to Inet, one on the APA's first anniversary in August 2012 and another on its second anniversary in August 2013. In the APA, the parties valued the Cavotec SA shares at nearly $21 million. Although Colaco was a signatory to the APA, he gave only a limited number of warranties and assumed minor obligations that are not at issue. When the APA closed, Colaco became Cavotec Inet US, Inc.'s president and a member of its board of directors, and Barry became the company's chief financial officer. In late August 2012, Cavotec SA's chairperson and its chief executive officer met with Colaco to discuss how they amicably could part ways. These discussions resulted in a one-page document entitled, Memorandum of Understanding. Under the MOU, Cavotec agreed to pay the first Performance Earn-out Payment and accelerate the second so that the entire $4 million would be paid by mid-September 2012. It also agreed to pay Colaco for certain tenant improvements identified in the APA. In return, Colaco agreed to immediately resign as both a director and president of Cavotec Inet US, Inc., and to cooperate in completing the transition of Inet's business to Cavotec. A few days after the parties entered into the MOU, Cavotec locked Colaco and Barry out of its facilities because it suspected they were soliciting employees to start a competing business and destroying or stealing files rather than working cooperatively to transition Inet's business to Cavotec. In October 2012, Colaco and Inet filed the lawsuit alleging Cavotec breached the APA as amended by the MOU. The complaint sought the second $2 million Performance Earn-out Payment and other payments Cavotec agreed to make under both the APA and the MOU. Cavotec answered the complaint, alleging the amendments to the APA made by the MOU were unenforceable because Colaco fraudulently induced Cavotec to enter into the MOU through misrepresentations and false promises he did not intend to perform. Cavotec further alleged Inet's breach of the APA excused its performance under the contract. Cavotec also filed a cross-complaint against Inet, Colaco, and Barry. C avotec alleged Inet breached the APA and the Guidelines, and also alleged a common count for money had and received based on the postclosing customer payments Inet received on Cavotec's behalf, but failed to forward to Cavotec. Cavotec separately alleged Colaco breached his Employment Contract and the fiduciary duties he owed as an officer of Cavotec Inet US, Inc. by creating false and backdated invoices and engaging in other misconduct that caused Inet to withhold customer payments owed to Cavotec. Based on her cooperation with Colaco, Cavotec also alleged Barry breached her fiduciary duty as an officer of Cavotec Inet US, Inc. Finally, Cavotec alleged Colaco and Barry converted certain of its funds to their personal use. As damages, the cross-complaint sought the customer payments Inet withheld and the lost profits caused by Colaco and Barry's misconduct. Cavotec also sought punitive damages against Colaco and Barry. Following a lengthy trial, the jury awarded Cavotec $1.313 million against Inet, Colaco, and Barry, jointly and severally, based on the jury's findings that (1) Inet breached its asset purchase agreement with Cavotec by failing to forward all postclosing customer payments Inet received on Cavotec's behalf; (2) Colaco and Barry breached the fiduciary duties they owed as Cavotec officers by causing Inet to withhold customer payments and creating false and backdated invoices to conceal Inet's failure to pay; (3) Colaco's conduct breached the employment contract he entered into as Cavotec Inet US Inc.'s president; and (4) Colaco and Barry converted Cavotec's funds for their personal use. The jury also awarded Cavotec $2 million in punitive damages against Colaco only. On appeal, Inet argues the trial court erred in denying its motion for judgment notwithstanding the verdict because the undisputed evidence showed Cavotec breached the asset purchase agreement by failing to make its final $2 million payment. Inet contends the trial court should have offset that $2 million against the $1.313 million Inet failed to pay to Cavotec, and the net result is a judgment for $687,000 in Inet's favor. Judge Aronson agrees that the trial court erred in denying Inet's motion. Cavotec's obligation to make the final $2 million payment and Inet's obligation to turn over all postclosing payments to Cavotec are independent covenants under the asset purchase agreement. Inet's breach of its obligation therefore did not excuse Cavotec from its obligation. Rather, Cavotec was contractually required to perform and then seek damages or an offset from Inet. The jury's verdict, however, excused Cavotec from its obligation based on Inet's breach and awarded Cavotec damages for the same breach. That is an impermissible windfall that allows Cavotec to retain the assets it purchased from Inet without paying the full purchase price. Colaco contends the trial court erred in refusing to apply Delaware law to the claims against him because Cavotec Inet US, Inc., was incorporated in Delaware, and therefore the internal affairs doctrine required the court to apply Delaware law in resolving the issues regarding Colaco's performance as an officer of Cavotec Inet US, Inc. Colaco asserts he was entitled to judgment on Cavotec's fiduciary duty and punitive damages claims because Delaware law bars fiduciary duty claims that arise from contractual obligations and prohibits punitive damages on fiduciary duty claims. The Judge disagrees. In Colaco's employment agreement, he and Cavotec Inet US, Inc. agreed California law would govern all their rights and liabilities. California law recognizes a strong public policy favoring enforcement of choice-of-law provisions and our courts may refuse to enforce a provision bearing a reasonable relationship to the parties or their transaction only when the opponent shows a state other than the one on which the parties agreed has a materially greater interest in the determination of the particular issues involved. Colaco fails to explain how Delaware has a materially greater interest in applying its law on the fiduciary duty claims raised in the case. Instead, he simply argues the internal affairs doctrine establishes a bright line rule that overrides the parties' choice-of-law provision. It does not, and Colaco fails to explain how applying California law on these particular issues will impair internal corporate affairs. Barry also argues the internal affairs doctrine required the trial court to apply Delaware law regarding the fiduciary duty and punitive damages claims against her. Barry's position differs from Colaco's because she did not enter into a contract with Cavotec Inet US, Inc. and she never agreed California law would govern her rights and liabilities. Nonetheless, the Judge holds he needs not decide whether the internal affairs doctrine required the trial court to apply Delaware law because the result on the claims against Barry are the same under both Delaware and California law, and therefore Barry cannot establish any error was prejudicial. The Judge also rejects Colaco's contention the asset purchase agreement barred Cavotec's claims for breach of his employment contract and punitive damages. He says the exclusive remedy provision on which Colaco relies only applies to claims arising under the asset purchase agreement, but Cavotec sued Colaco for breaching his fiduciary duties and his employment agreement, not the asset purchase agreement. Contrary to Colaco's contention, the jury's decision to award Cavotec damages on its claim against Inet for breach of the asset purchase agreement and award the same amount of damages for Colaco's breach of his employment contract does not mean the jury held Colaco liable for Inet's breach of the asset purchase agreement. Rather, it simply means the breach of those separate agreements resulted in the same damages, nothing more. Similarly, the punitive damages waiver in the asset purchase agreement does not apply to Cavotec's punitive damages claim against Colaco because that claim is not made under the asset purchase agreement. Ultimately, the Judge concludes Cavotec's $1.313 award against Inet must be offset against its failure to make the second $2 million payment owed under the APA. Finally, for the reasons expressed at the end of the opinion, he leaves undisturbed Cavotec's $2 million punitive damage award against Colaco. For these reasons, Judge Aronson reversed the trial court's judgment and remanded to the trial court with instructions to enter a new judgment in favor of Inet and against Cavotec for $687,000 in compensatory damages on Inet's complaint; in favor of Cavotec and against Colaco for $2 million in punitive damages on Cavotec's cross-complaint; and in favor of Cavotec and against Barry on Cavotec's cross-complaint. All parties are to bear their own costs on appeal. A full-text copy of the Court's July 11, 2018 Opinion is available at https://is.gd/R7yOey from Leagle.com. Stradling Yocca Carlson & Rauth, Jason H. Anderson -- janderson@sycr.com -- Jason de Bretteville and Bradley E. Marrett -- jdebretteville@sycr.com -- for Plaintiffs and Appellants. Greenberg Gross, Alan A. Greenberg -- agreenberg@ggtriallaw.com -- Wayne R. Gross -- wgross@ggtriallaw.com -- and Howard M. Privette -- hprivette@ggtriallaw.com -- for Defendants and Respondents. CHSPSC LLC: Wins Summary Judgment in S. Sutton's FLSA Suit ---------------------------------------------------------- The United States District Court for the Western District of Tennessee, Eastern Division, granted Defendant's Motion for Summary Judgment seeking dismissal of all of Plaintiff's claims in the case captioned STEPHEN SUTTON, on behalf of himself and all others similarly situated, Plaintiff, v. CHSPSC, LLC, a/k/a Dyersburg Ambulatory Corp., f/k/a Community Health Systems Professional Services, KNOXVILLE HMA HOLDINGS, LLC, a/k/a Dyersburg Ambulatory Corp., d/b/a Tennova Healthcare, LLC, DYERSBURG HOSPITAL CORPORATION, a/k/a Tennova Healthcare - Dyersburg Regional, a/k/a Dyersburg Regional Medical Center, a/k/a Ambulance Service of Dyersburg, and AMBULANCE SERVICES OF DYERSBURG, INC., f/k/a Dyersburg Regional EMS, d/b/a Tennova EMS, Defendants, No. 1:16-cv-01318-STA-egb (W.D. Tenn.). In this class action under the Fair Labor Standards Act (the "FLSA"), the Plaintiff, on behalf of himself as well as those similarly situated, seeks compensation for minimum-wage and overtime violations of the FLSA. The Defendants in this case are CHSPSC, LLC, Knoxville HMA Holdings, LLC, Dyersburg Hospital Corporation, and Ambulance Services of Dyersburg, Inc. Plaintiff Stephen Sutton has filed suit on behalf of himself and other emergency medical technicians or paramedics employed by the Defendants. The Plaintiff and the class members provide emergency services to patients in the West Tennessee area, primarily Dyer County, Tennessee. The Plaintiff raises three FLSA claims against the Defendants: (1) a class-action claim for violation of the FLSA's minimum-wage requirements; (2) a class-action claim for violation of the FLSA's overtime-wage requirements; and (3) a personal retaliation claim. Class Minimum Wage Claim The FLSA requires every employer to pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at not less than $ 7.25 an hour. But several courts have held that an employer meets the minimum wage requirements if the total weekly wage paid is equal to or greater than the number of hours worked in the week multiplied by the statutory minimum hourly rate. U.S. Dep't of Labor v. Cole Enterprises, Inc., 62 F.3d 775, 780 (6th Cir. 1995). Whether This Court Is Bound By Cole Enterprises Clearly, the Sixth Circuit did not say it was adopting the weekly method. And it was far from necessary to the appellate court's decision to adopt it when considering the third alternative argument of the third assignment of error in a challenge to the trial court's finding. The Sixth Circuit ruled against those defendants in every aspect of their appeal, including the defendants' own test. Thus, it was not necessary to adopt the test to resolve the case. The Sixth Circuit merely entertained the defendants' proffered test and demonstrated that even then they could not prevail. Though such actions would perhaps make the test binding under the standards of the Ninth Circuit, the weekly method of calculation was not adopted by the Sixth Circuit under any traditional view of precedent. Accordingly, the Court holds that it is not bound by the Sixth Circuit's "application" of the weekly method of wage calculation in Cole Enterprises. Whether the Weekly Method Is the Proper Test In the Court's view, the phrase "in any workweek" is a clear invocation of that necessary context of the typical case of employment that frames the lives of most Americans: the workweek. The phrase sets the parameters within which the minimum hourly wage must be calculated. It is only the examinations of the statute by prior courts that gives this Court reason to reflect on the surplussage canon. At the very least, in any workweek should be construed in light of this canon to require the weekly method of calculation. But the use of this canon is likely unnecessary because the Court sees no point that the phrase in any workweek" might add emphasis too. For these reasons, the Court holds that the weekly method of wage calculation is required by the FLSA. The Plaintiff has presented no proof or even argued that, under the weekly method of wage calculation, he or the other class members received less than the minimum wage. Accordingly, the Defendants are entitled to summary judgment on the Plaintiff's minimum wage claim. That claim is dismissed. Class Overtime Wage Claim The Defendants next seek summary judgment on the class claim for violation of the overtime provisions of the FLSA. The Defendants' argument is that, because the class plaintiffs are seeking compensation for hours allegedly worked but not claimed, the plaintiffs cannot prevail under the FLSA. The FLSA provides that "no employer shall employ any of his employees for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." The Plaintiff maintains that the Defendants violated this provision by failing to compensate the class plaintiffs for all work performed in excess of forty hours by the statutorily mandated rate. The Plaintiff does not directly address this argument. The Plaintiff instead sticks to his primary assertion that all sleep time hours constitute hours worked and should contribute to the count of weekly hours paid as overtime. In this instance, the Defendants are correct. The undisputed facts demonstrate that the class plaintiffs were free to write down hours that they were awake during sleep time as hours worked but did not always do so for a variety of reasons. Defendants cannot held be held responsible for the class plaintiffs' failure in this regard. Therefore, as to the Plaintiff's overtime-wage claim, the Defendants are entitled to summary judgment. A full-text copy of the District Court's July 5, 2018 Order is available at https://tinyurl.com/ydejzsl2 from Leagle.com. Stephen Sutton, Plaintiff, represented by Alan G. Crone , THE CRONE LAW FIRM, PLC, Bailey H. Dorsey , THE CRONE LAW FIRM, PLC & Laura Ann Elizabeth Bailey , THE CRONE LAW FIRM, PLC. CHSPSC, LLC, agent of a/k/a Dyersburg Ambulatory Corp, agent of f/k/a Community Health Systems Professional Services, Knoxville HMA Holdings, LLC, agent of a/k/a Dyersburg Ambulatory Corp, agent of d/b/a Tennova Healthcare, LLC, Dyersburg Hospital Corporation, agent of a/k/a Tennova Healthcare - Dyersburg Regional, agent of a/k/a Dyersburg Regional Medical Center, agent of a/k/a Ambulance Service of Dyersburg & Ambulance Services of Dyersburg, Inc., agent of f/k/a Dyersburg Regional EMS, agent of d/b/a Tennova EMS, Defendants, represented by Charles John Mataya -- sbible@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLC, John Patrick Rodgers -- jrodgers@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP & Racquel Bianca Martin -- jrodgers@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP. CITIZENS INC: Time to Appeal Gamboa Case Dismissal Expires ---------------------------------------------------------- Citizens, Inc. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018, that the period for the plaintiffs to appeal from the dismissal of the putative class action lawsuit by Juan Gamboa has expired. The Company said, "On or about March 16, 2017, Juan Gamboa filed a putative class action lawsuit against the Company and five of its current and former directors and executive officers in the United States District Court, Western District of Texas. The lawsuit alleged that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false and/or misleading statements, as well as failing to disclose material adverse facts about the Company's business, operations and prospects. On May 25, 2017, the court appointed lead plaintiffs, and on July 31, 2017, the lead plaintiffs filed an amended complaint. The amended complaint sought an award of damages in an unspecified amount on behalf of a putative class consisting of persons who purchased the Company's common stock between March 11, 2015 and March 8, 2017, inclusive. On September 28, 2017, we filed a motion to dismiss. On May 29, 2018, the court granted our motion, dismissed with prejudice the plaintiffs' claims against all defendants and ordered the case closed. It is our understanding that the plaintiffs' appeal period has expired." Citizens, Inc. is a financial services company listed on the New York Stock Exchange under the symbol CIA. The Company utilizes a three-pronged strategy for growth based upon worldwide sales of U.S. Dollar-denominated whole life cash value insurance policies, life insurance product sales in the U.S. and the acquisition of other U.S.-based life insurance companies. CIVITAS SOLUTIONS: Employee Class Actions Remain Pending -------------------------------------------------------- Civitas Solutions, Inc. continues to defend employee-related class action lawsuits, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. Specifically, the Company said that it is subject to employee-related claims under state and federal law, including claims for wage and hour violations under the Fair Labor Standards Act or state wage and hour laws and claims for discrimination, wrongful discharge or retaliation. The Company currently has two pending complaints in California state court that allege certain wage and hour violations of California labor laws and seek to be designated as a class-action. Two additional wage and hour class action claims have been settled, one of which was settled and approved by the court on January 31, 2018 and one of which has been preliminarily approved by the court. Final approval and payment for this claim is expected in September 2018. Civitas Solutions, Inc. provides home- and community-based health and human services to must-serve individuals with intellectual, developmental, behavioral, and/or medically complex disabilities and challenges in the United States. It operates through Intellectual and Developmental Disabilities (I/DD), Post-Acute Specialty Rehabilitation Services (SRS), and At-Risk Youth (ARY) segments. It was formerly known as NMH Holdings, Inc. The company was founded in 1980 and is based in Boston, Massachusetts. Civitas Solutions, Inc. is a subsidiary of Vestar Capital Partners. CKO KICKBOXING: Diaz Files ADA Suit in S.D.N.Y. ----------------------------------------------- A class action lawsuit has been filed against CKO Kickboxing Corporation. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. CKO Kickboxing Corporation, Case No. 1:18-cv-07584 (S.D.N.Y., August 20, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. CKO Kickboxing offers nationwide health fitness and kickboxing gym franchise opportunities.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal CLIENT SERVICES: Yusifov Sues Over FDCPA Breach ----------------------------------------------- Client Services, Inc. is facing a class action lawsuit under the Fair Debt Collection Practices Act. The case is styled as Naum Yusifov, on behalf of himself and all others similarly situated v. Client Services, Inc., Case No. 1:18-cv-04705 (E.D.N.Y., August 20, 2018). Client Services, Inc., operates as a customer relationship management company that offers a suite of accounts receivable management, business processing outsourcing (BPO), and healthcare solutions. The Company provides customer care, technical support, customer acquisition, cross sell/up-sell, customer retention, product/account activation, appointment setting/reminders, disaster support, first notice of loss, market research, customer satisfaction surveys, and multi-channel interaction management services.[BN] The Plaintiff is represented by: Daniel C. Cohen, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: dan@cml.legal COHU INC: Putative Shareholder Class Suits v. Xcerra Underway ------------------------------------------------------------- Shareholder class action complaints have been filed in the United States District Court for the District of Massachusetts related to the merger deal of Cohu, Inc. and Xcerra Corporation, according to Cohu's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On May 8, 2018, Cohu announced that it entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated as of May 7, 2018, by and among Cohu, Xavier Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Cohu (the "Merger Sub") and Xcerra Corporation, a Massachusetts corporation ("Xcerra"). Under the terms of the Merger Agreement, Merger Sub will merge with and into Xcerra (the "Merger"), with Xcerra continuing as the surviving corporation of the Merger (the "Surviving Corporation") and a wholly owned subsidiary of Cohu. On July 23, 2018 and July 30, 2018, putative shareholder class action complaints were filed in the United States District Court for the District of Massachusetts against Xcerra and each member of the Xcerra Board, captioned Xinkang Shui v. Xcerra Corporation, et al., C.A. No. 1:18-cv-11529 and Waseem Khan v. Xcerra Corporation, et al., C.A. No. 1:18-cv-11592, respectively. The complaints allege, among other things, that Xcerra and each member of the Xcerra Board violated federal securities laws and regulations by soliciting stockholder votes in connection with the Merger through a proxy statement that purportedly omits material facts necessary to make the statements therein not false or misleading. The complaint seeks, among other things, either to enjoin Xcerra from conducting the stockholder vote on the Merger unless and until the allegedly omitted material information is disclosed or, in the event the Merger is consummated, to recover damages. Xcerra is reviewing the complaint and has not yet formally responded to it, but believes that the plaintiffs' allegations are without merit and intends to defend against them vigorously. However, litigation is inherently uncertain and there can be no assurance regarding the likelihood that Xcerra's defense of the actions will be successful. Additional complaints containing substantially similar allegations may be filed in the future. Cohu, Inc., through its subsidiaries, engages in the development, manufacture, sale, and servicing of semiconductor test and inspection handlers, micro-electro mechanical system (MEMS) test modules, test contactors, and thermal sub-systems for semiconductor manufacturers and test subcontractors worldwide. The Company was formerly known as Cohu Electronics, Inc. and changed its name to Cohu, Inc. in 1972. Cohu, Inc. was founded in 1947 and is headquartered in Poway, California. COLE HAAN: Court Partly Dismisses K. Park's FTCA Suit ----------------------------------------------------- Judge Larry Alan Burns of the U.S. District Court for the Southern District of California granted in part the Defendants' motions to dismiss the case, KEVIN PARK, individually and on behalf of all others similarly situated, Plaintiff, v. COLE HAAN, LLC; APAX PARTNERS WORLDWIDE LLP, Defendant, Case No. 17cv1422-LAB (BGS) (S.D. Cal.). Park alleges that on June 25, 2017, he bought a pair of shoes for his wife at a Cole Haan outlet, supposedly at a 50% discount. He alleges the shoes were not in fact discounted, and he would have either not purchased the shoes or not paid as much for them had he not believed he was getting a discount. This is a putative class action. Park brings claims under California's Unfair Competition Law, False Advertising Laws, or Consumer Legal Remedies Act. He seeks to represent a class of all people who bought a product made for the Cole Haan outlet in California, provided the product they bought bore an original price. He seeks restitution to the class for their losses, unspecified injunctive relief, and attorney's fees and costs. The Defendants have moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Defendant Apax Partners Worldwide LLP also moves to dismiss for lack of personal jurisdiction. Judge Burns finds that the Complaint falls short of even the Bell Atlantic Corp. v. Twombly/Ashcroft v. Iqbal, pleading standard, and even shorter of the Rule 9(b) standard. It does not state a claim under California's Unfair Competition Law, False Advertising Laws, or Consumer Legal Remedies Act. Nevertheless, it is not absolutely clear that Park cannot correct its defects by amendment. He granted in part the motion to dismiss, and dismissed without prejudice and with leave to amend the case. No later than 28 calendar days from the date the Order is issued, Park may file an amended complaint correcting the defects the Order identifies. This includes typographic and formatting problems. In particular, the amended complaint must plead facts establishing jurisdiction. It is not enough merely to conclude, as the original complaint does, that the amount in controversy exceeds $5 million. Any amended complaint must plead facts showing that the conclusion has a reasonable factual basis. If jurisdictional facts are not adequately pled, the action will be dismissed without prejudice. In the Order, Judge Burns has assumed that Park intends to allege that his claims apply equally to all products sold in the outlet -- i.e., that all products are sold using the same misrepresentations and are more cheaply made than those sold in retail stores. Park should make a reasonable investigation to confirm this, and to amend his allegations if necessary, so that they accurately reflect the scope of his claims and their likely monetary value. If the amount in controversy is not met, it is better for all concerned to know this sooner rather than later. Any amended complaint must not include claims for injunctive relief, unless Park can plead facts showing he has standing under a theory consistent with the order. Park should bear in mind that the Judge has found the Defendants' criticism of the Complaint's allegations to be generally well-taken. After a reasonable investigation, he should therefore correct as many as he can, and supply the missing factual allegations. He should not omit facts needed to support his claims on the assumption that he will be given another chance to meet the pleading standard. Rather, the Judge's working assumption will be that if he does not allege important facts, it is because he cannot. If Park does not file an amended complaint within the time permitted, the action will be dismissed without leave to amend. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/vrO6Ko from Leagle.com. Kevin Park, individually and on behalf of all others similarly situated, Plaintiff, represented by Alisa A. Martin -- alisa@amartinlaw.com -- Amartin Law, PC & Lindsay Christine David -- lcdavid@brennanlawgrp.com -- Brennan & David Law Group. Cole Haan, LLC, a Delaware Limited Liability Company & Apax Partners Worldwide, LLP, a Limited Liability Partnership, Defendants, represented by Stephanie A. Sheridan -- ssheridan@steptoe.com -- Steptoe & Johnson LLP. DELL TECHNOLOGIES: Still Defends Pontiac Securities Suit in N.Y. ---------------------------------------------------------------- Dell Technologies, Inc. still defends itself in a securities class action in New York, according to the Company's revised items of Form 10-K, which served as an attachment of the Company's Form 8-K filed with the U.S. Securities and Exchange Commission on August 6, 2018. On May 22, 2014, a securities class action seeking compensatory damages was filed in the United States District Court for the Southern District of New York, captioned the City of Pontiac Employee Retirement System vs. Dell Inc. et al. (Case No. 1:14-cv-03644). The action names as defendants Dell Inc. and certain current and former executive officers, and alleges that Dell made false and misleading statements about Dell's business operations and products between February 22, 2012 and May 22, 2012, which resulted in artificially inflated stock prices. The case was transferred to the United States District Court for the Western District of Texas, where the defendants filed a motion to dismiss. On September 16, 2016, the Court denied the motion to dismiss and the case is proceeding with discovery. The defendants believe the claims asserted are without merit and the risk of material loss is remote. Dell Technologies is a strategically aligned family of businesses that brings together the entire infrastructure from hardware to software to services -- from the edge to the data center to the cloud. Dell Technologies is a leader in the traditional technology of today and a leader in the cloud-native infrastructure of tomorrow. DUKE ENERGY: DCC/Preemption Claims Dismissal Affirmed ----------------------------------------------------- Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit affirmed the judgment of the District Court dismissing the Dormant Commerce Clause ("DCC") claim and the preemption claim in the case, WILLIAM B. NEWTON, NOREEN ALLISON, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. DUKE ENERGY FLORIDA, LLC, a Florida imited iability company, FLORIDA POWER & LIGHT COMPANY, a Florida profit corporation, Defendants-Appellees, Case No. 17-10080 (11th Cir.). In 2006, the Florida Legislature enacted the Florida Renewable Energy Technologies and Energy Efficiency Act. The Act authorized the Florida Public Service Commission ("PSC") to create a plan to incentivize energy utilities to invest in nuclear power plant construction. Acting on this authority, the PSC promulgated a regulation creating the Nuclear Cost Recovery System ("NCRS"). If a utility chooses to participate in the NCRS and receives PSC approval of its plant construction project, it may preemptively charge its customers through an electricity rate increase for costs incurred in the siting, design, licensing, and construction" of the project through its completion. Under the NCRS, the utility retains the funds generated by the rate increase even if the project is never completed. The case is a putative class action. The Plaintiffs' class representatives, William Newton and Noreen Allison ("Plaintiffs"), claim that two provisions of the Act which authorize the NCRS, Florida Statutes Sections 366.93 and 403.519(4), are invalid under the DCC, which precludes a state from regulating Commerce among the several States, and directly limits the power of the States to discriminate against interstate commerce. They also claim that the two provisions of the Act are preempted by the Atomic Energy Act of 1954, and the Energy Policy Act of 2005. The Plaintiffs did not bring these claims against the State of Florida, the PSC (which is charged with implementing and administering the Act), or its members. Instead, they seek the Act's invalidation solely by suing two electric utilities, Duke Energy Florida and Florida Power & Light ("Utilities"), who have been collecting rate increases from them and their class members for nuclear plant construction that has been discontinued. The Utilities separately moved the District Court to dismiss the Plaintiffs' claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on numerous grounds. As to the DCC claim, Utilities argued that if a cause of action lies under the DCC, it belongs to the States that may have been injured due to Florida's regulation of interstate commerce and not to the Plaintiffs, who are Florida utility customers. They also argued that they are private parties, not state actors, and, as such, could not have violated the DCC. As to the preemption claims, they argued that they failed for numerous reasons, including that preemption is a defense, not a claim for relief. The Utilities also argued that the preemption claims failed on the merits. The District Court dismissed the Plaintiffs' DCC claim for lack of prudential standing because they were not in the zone of interests protected by the Clause. It dismissed the Plaintiffs' preemption claims based on the Atomic Energy Act and the Energy Policy Act on the ground that neither act created a cause of action, express or implied. The Court dismissed the Plaintiffs' claims without granting leave to amend. The Plaintiffs moved the District Court for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). The motion focused on the Court's dismissal of their claims without leave to amend. Citing Federal Rule of Civil Procedure 15(a)(2), they argued that they could cure the deficiencies in their complaint if given leave to join the State of Florida as a defendant and to prosecute their claims against Utilities under 42 U.S.C. Section 1983 on the ground that, in increasing their rates under the NCRS, Utilities acted under color of state law. The District Court denied the Rule 60(b) motion. Its reading of the motion was that the Plaintiffs were seeking to bolster their claims against Utilities by joining the State as a Defendant. This would be futile. Simply joining the State as a party, the Court explained, would not suddenly empower the Plaintiffs to bring constitutional claims against private entities, such as the Utilities. The Court did not expressly respond to the Plaintiffs' request to bring their DCC claim against Utilities under Section 1983, but it implicitly rejected the request in stating that Utilities were not acting under color of state law in participating in the NCRS. The Plaintiffs appeal the District Court's judgment, arguing that the allegations of their complaint were sufficient to make out their DCC claim and their preemption claim under the Atomic Energy Act. They also appeal the Court's denial of their Rule 60(b) motion, arguing that the Court abused its discretion in denying the request for leave to amend asserted in the motion. Judge Tjoflat holds that the Plaintiffs are Florida electric utility customers. The Utilities are Florida companies. They are not "states" such that their actions could give rise to DCC claims from an out-of-state person or entity. The Plaintiffs' interests are well beyond the zone the DCC is meant to protect. For these reasons, he affirms the dismissal of Plaintiffs' DCC claim under Rule 12(b). Turning to the Plaintiffs' preemption claim, the Judge finds that the Plaintiffs point to no cases holding (nor authorities suggesting) that state laws promoting investment in new nuclear plants, or shifting the costs of nuclear plant construction, are preempted by the Atomic Energy Act. That failure is not surprising given the language of 42 U.S.C. Section 2021(k). They do cite 42 U.S.C. Section 2209 for the proposition that the Atomic Energy Act specifically prohibits ccommercial reactors from receiving subsidies. But Section 2209 says only that no funds of the Atomic Energy Commission will be employed in the construction or operation of commercial nuclear reactors. As the NCRS does not involve Commission funds, Section 2209 does not help the Plaintiffs. Therefore, he holds hold that the Atomic Energy Act does not preempt the NCRS. Finally, he considers whether the District Court abused its discretion in denying the Plaintiffs' request for leave to amend their complaint. He finds that the request possessed no legal effect for two reasons. First, where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly. Second, a request for a court order must be made by motion. The motion must be in writing unless made during a hearing or trial. The Plaintiffs' inclusion of the request for leave in their opposition to a motion to dismiss did not constitute a "motion" and thus did not comply with this Rule 7(b) command. Judge Tjoflat concluded that there's no merit in the Plaintiffs' appeal. The Plaintiffs' complaint failed to state a claim for relief. Accordingly, he affirmed the judgment of the District Court. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/DokQMA from Leagle.com. Steve W. Berman -- steve@hbsslaw.com -- for Plaintiff-Appellant. Robert M. Brochin -- bobby.brochin@morganlewis.com -- for Defendant-Appellee. Jack Reise -- JReise@rgrdlaw.com -- for Plaintiff-Appellant. Paul J. Geller -- PGeller@rgrdlaw.com -- for Plaintiff-Appellant. Arnold Bradley Fagg -- brad.fagg@morganlewis.com -- for Defendant-Appellee. Robert S. Peck -- robert.peck@cclfirm.com -- for Plaintiff-Appellant. Stuart H. Singer -- ssinger@bsfllp.com -- for Defendant-Appellee. Gary K. Harris -- gharris@bsfllp.com -- for Defendant-Appellee. Elizabeth A. Shonson -- eshonson@rgrdlaw.com -- for Plaintiff-Appellant. Lauren Fleischer Louis, for Defendant-Appellee. Stephanie Schuster -- stephanie.schuster@morganlewis.com -- for Defendant-Appellee. Barbara Mahoney -- barbaram@hbsslaw.com -- for Plaintiff-Appellant. Jerrod C. Patterson -- jerrodp@hbsslaw.com -- for Plaintiff-Appellant. William Russell Snyder, Jr. -- will_snyder@gensler.com -- for Defendant-Appellee. Marcia Joan Cleveland, for Plaintiff-Appellant. EBIX INC: Court Certifies Stockholder Class ------------------------------------------- In the case, IN RE EBIX, INC. STOCKHOLDER LITIGATION, Consolidated C.A. No. 8526-VCS (Del. Ch.), Judge Joseph R. Slights, III of the Court of Chancery of Delaware granted the Initial Plaintiffs' Motion for Class Certification. On Oct. 31, 2016, Initial Plaintiffs Spagnola and Desert States Employers & UFCW Union Pension Plan filed a Motion for Class Certification in the action. On Oct. 13, 2017, Defendants-Outside Directors, Hans U. Benz, Pavan Bhalla, Neil D. Eckert, Rolf Herter, and Hans U. Keller, filed a brief in opposition to the Motion. On Oct. 17, 2017, Barington Defendants, Joseph R. Wright, Jr. and George W. Hebard, III, filed their joinder in the Outside Directors' opposition to the Motion. On Nov. 14, 2017, the Initial Plaintiffs filed their reply in further support of their Motion. On Jan. 5, 2018, Plaintiff, Amalgamated Bank, as Trustee for LongView SmallCap 600 Index Fund and LongView Broadmarket 300 Index Fund, filed a Motion for Permissive Joinder as Plaintiff, which was granted on April 2, 2018. By Order dated April 4, 2018, the Court directed the parties to submit supplemental briefing on the Motion. On May 2, 2018, Plaintiffs filed a supplemental brief in support of their Motion. On May 16, 2018, the Outside Directors filed a supplemental brief in opposition to the Motion. Defendants Ebix and Robin Raina, do not oppose the Motion. On May 23, 2018, the Court heard oral argument on the Plaintiffs' Motion. The Plaintiffs, Spagnola, Desert States and Amalgamated seek to be designated as class representatives. The Defendants take no position on the proposed class counsel. Judge Slights finds that Plaintiffs have demonstrated that the proposed class satisfies the requirements under Rule 23(a) and Rule 23(b). Therefore, he certified the action as a class action pursuant to Delaware Court of Chancery Rules 23(a) and 23(b)(1) and (2) without opt-out rights. The Class will consist of all holders of Ebix common stock and their successors in interest. The Judge appointed Spagnola, Desert States and Amalgamated as the Class Representatives; and the law firms PRICKETT, JONES & ELLIOTT, P.A., 1310 N. King Street, Wilmington, Delaware 19801; and GRANT & EISENHOFER P.A., 123 Justison Street, Wilmington, Delaware 19801, as the Class Counsel. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/UdpEKM from Leagle.com. EDGE FITNESS: Court Conditionally Certifies MAs' Class ------------------------------------------------------ The United States District Court for the District of Connecticut granted Plaintiffs' Motion for Conditional Certification in the case captioned MELISSA McARTHUR, individually and on behalf of all other similarly situated individuals, Plaintiff, v. EDGE FITNESS, LLC, Defendant, No. 3:17-cv-01554 (JAM)(D. Conn.). The Plaintiff moves for conditional certification of this suit as a collective action on behalf of all MAs who have worked for defendant. The Plaintiff asserts that for a period of her employment, the defendant wrongly classified her as an exempt employee for Fair Labor Standards Act (FLSA) purposes and failed to pay her overtime when she worked more than 40 hours a week. The Plaintiff seeks to conditionally certify two separate classes, pursuant to FLSA, 29 U.S.C. Section 216(b), consisting of: i. All persons who have worked for defendant as Membership Advisors in Connecticut from September 15, 2014, to November 24, 2016, who were classified as exempt and paid a salary and commissions but no overtime pay in violation of state and federal laws. ii. All persons who have worked for defendant as Membership Advisors in Connecticut from November 25, 2016, to the date of final judgment in this action who were classified as non-exempt but who were not paid overtime on their commissions in violation of state and federal laws. Conditional Certification Section 16(b) of the FLSA not only authorizes an employee to bring a private cause of action on his or her own behalf but also allows an employee to bring a collective action on behalf of similarly situated employees. Unlike a Rule 23 class action in which putative class members must opt out in order to remove themselves from the class, a FLSA collective action requires employees to affirmatively opt in to the case in order to join the collective action group. The Defendant argues that conditional collective action certification is inappropriate because the plaintiff is dissimilar from other MAs and is not a proper collective action representative. More specifically, the defendant argues that (1) the plaintiff held a management-level position during the alleged time period, so she was not similarly situated to the putative plaintiffs for part of the alleged time period; (2) the plaintiff suffered injuries in a motor vehicle accident that led her to file a separate suit against a third party in 2017; and (3) the plaintiff and opt-in plaintiffs have not worked at all thirteen of its locations throughout Connecticut, and have no basis to show that MAs at locations where they have not worked are subject to the common policy or plan that they allege the defendant subjected them to. The Court does not agree that any of these distinctions are material to its initial threshold determination that other MAs may be similarly situated to plaintiff for the time when she served as an MA. Because it is undisputed that all Membership Advisors had the same job duties and were subject to the same allegedly unlawful compensation policies, the Court concludes that the plaintiff and potential opt-in plaintiffs are similarly situated for FLSA purposes and, accordingly, will conditionally certify this case as a FLSA collective action. The collective group to receive notice will be comprised of all persons employed as Membership Advisors in the three years prior to the date the plaintiff filed her complaint. A full-text copy of the District Court's July 5, 2018 Ruling is available at https://tinyurl.com/yd6tdupf from Leagle.com. Melissa McArthur, individually and on behalf of other similarly situated individuals, Plaintiff, represented by Deborah L. McKenna -- dmckenna@hayberlawfirm.com -- The Hayber Law Firm, LLC, Michael T. Petela, Jr. , The Hayber Law Firm, LLC & Richard Eugene Hayber , The Hayber Law Firm LLC. Edge Fitness, LLC, Defendant, represented by Daniel Adam Schwartz -- dschwartz@goodwin.com -- Shipman & Goodwin LLP, Jarad M. Lucan -- jlucan@goodwin.com -- Shipman & Goodwin & Keegan A. Drenosky -- kdrenosky@goodwin.com -- Shipman & Goodwin. EHEALTH INC: Defends Putative Class Suit on Alleged TCPA Breaches ----------------------------------------------------------------- eHealth, Inc. is facing a putative class action complaint for allegedly violating the Telephone Consumer Protection Act, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. On May 8, 2018, an individual filed a putative class action complaint against us. The complaint alleges that we violated the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227(c) and certain provisions of 47 C.F.R. Sec. 64.1200 promulgated thereunder by initiating or causing to be initiated telephone solicitations to telephone subscribers who registered their respective telephone numbers on the National Do Not Call Registry. The complaint alleges, among other things, that we (i) made more than one unsolicited telephone call to Plaintiff and putative class members within a 12-month period without express consent to place such calls in violation of 47 U.S.C. Sec. 227(c)(5); and (ii) initiated calls for telemarketing purposes without instituting procedures that comply with regulatory minimum standards for implementing Do Not Call in violation of 47 C.F.R. Sec. 64.1200(d). The complaint seeks (i) an order certifying a class of individuals in the United States who (A) received more than one telephone call made by or on behalf of eHealth within a 12-month period; and (B) to a telephone number that had been registered with the National Do Not Call Registry for at least 30 days; (ii) an award of actual and statutory damages for each negligent violation to each member of the class pursuant to 47 U.S.C. Sec. 227(b)(3)(B); (iii) an award of actual and statutory damages for each knowing and/or willful violation to each member of the class pursuant to 47 U.S.C. Sec. 227(b)(3)(A); (iv) an injunction requiring us and our agents to cease all unsolicited telephone activities and otherwise protecting the interest of the class pursuant to 47 U.S.C. Sec. 227(b)(3)(A); and (v) pre-judgment and post-judgment interest on monetary relief. Due to the preliminary nature of this matter and uncertainty of litigation, we are unable at this time to estimate the likelihood of liability or the amount of potential damages. eHealth, Inc. is a leading private health insurance exchange for individuals, families and small businesses. The company is based in Mountain View, California. EQUIFAX INFORMATION: "Lemmon" Class Cert. Deadlines Moved --------------------------------------------------------- In the case, LEONARD A. LEMMON, on behalf of himself and all others similarly situated, Plaintiff, v. EQUIFAX INFORMATION SERVICES, LLC, Defendant, Case No. 2:17-cv-01464-JLR (W.D. Wash.), Judge James L. Robart of the U.S. District Court for the Western District of Washington has issued a stipulated order extending deadlines related to discovery and class certification. On Jan. 16, 2018, the Court ratified the Parties' first stipulation extending certain deadlines pertaining to class certification discovery and briefing on the Plaintiff's motion for class certification. On April 23, 2018, the Court ratified the Parties' second stipulation extending those deadlines after the Parties exchanged written discovery, scheduled depositions, and engaged in settlement discussions. The Parties have scheduled a global mediation of the and other class action cases pending across the country involving the reporting of public records matters on Aug. 23, 2018 in Boston, MA with mediator Eric Green. The counsel for the Parties have conferred and agree that an additional 90-day extension of existing case deadlines will promote the efficient resolution of the case by allowing the Parties to focus their efforts on preparing for and participating in the August mediation. Good cause therefore exists to extend the deadlines set by the Court for discovery related to class certification and the Plaintiff's class certification motion. Therefore the Parties stipulated and agreed, and Judge Robart granted, that the case deadlines in the matter should be reset as follows: i. Parties to file a Joint Status Report apprising the Court of the outcome of the August mediation - From N/A to Aug. 10, 2018 ii. The Deadline to complete fact discovery related to class certification - From July 27, 2018 to Oct. 26, 2018 iii. The Plaintiff's Motion for Class Certification- From Aug. 24, 2018 to Nov. 30, 2018 iv. The Defendant's Opposition to Class Certification - From Sept. 21, 2018 to Jan. 4, 2019 v. The Plaintiff's Reply in Support of Class Certification - From Oct. 5, 2018 to Jan. 18, 2018 A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/vwL4BE from Leagle.com. Leonard A. Lemmon, on behalf of himself and all others similarly situated, Plaintiff, represented by Elizabeth Anne Adams -- eadams@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, Erika L. Nusser -- enusser@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC, James A. Francis -- info@consumerlawfirm.com -- FRANCIS & MAILMAN PC, pro hac vice, John Soumilas, FRANCIS & MAILMAN PC, pro hac vice, Lauren K.W. Brennan, FRANCIS & MAILMAN PC, pro hac vice & Beth E. Terrell -- bterrell@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC. Equifax Information Services LLC, Defendant, represented by John C. Toro -- jtoro@kslaw.com -- KING & SPALDING LLP, pro hac vice, Katherine McFarland Stein -- kstein@kslaw.com -- KING & SPALDING LLP, pro hac vice, Meryl W. Roper -- mroper@kslaw.com -- KING & SPALDING LLP, pro hac vice, Zachary A. McEntyre -- zmcentyre@kslaw.com -- KING & SPALDING LLP, pro hac vice & Jeffrey M. Edelson -- JeffEdelson@MarkowitzHerbold.com -- MARKOWITZ HERBOLD PC. FCA US: Court Narrows Claims in Suit Over Flawed Uconnect System ---------------------------------------------------------------- The United States District Court for the Southern District of Illinois granted in part and denied in part Defendants' motions for summary judgment in the case captioned BRIAN FLYNN, GEORGE BROWN, KELLY BROWN, and MICHAEL KEITH, on behalf of themselves and all others similarly situated, Plaintiffs, v. FCA US LLC doing business as CHRYSLER GROUP LLC, and HARMAN INTERNATIONAL INDUSTRIES, INC., Defendants, Case No. 15-cv-0855-MJR-DGW (S.D. Ill.). The Plaintiffs filed against the Defendants alleging a number of claims related to design flaws in the Uconnect system, which was manufactured by Harman and installed in certain 2013-2015 Chrysler vehicles. According to the Plaintiffs, the Uconnect is an infotainment system that allows integrated control over phone, navigation, and entertainment functions in certain vehicles, and its design and installation makes it vulnerable to hackers seeking to take remote control of one of the affected vehicles, as reported in a 2015 WIRED magazine article. FCA's Motion for Summary Judgment on All Claims FCA's first motion for summary judgment raises two issues: first, that the Plaintiffs have no evidence of a defect and, second, that they have no evidence of damages. The Plaintiffs provide evidence that the design and installation of the Uconnect devices themselves, rather than the software operating the devices, is defective and that fixing the software may not have fixed the alleged defects. Accordingly, the Court finds that genuine disputes of material fact exist such that summary judgment cannot be granted as to all counts at this time. Motions for Summary Judgment on Magnuson-Moss Warranty Act and Common Law Implied Warranty Claims FCA also argues that summary judgment on Flynn's claims must be granted because he purchased from a dealership, rather than directly from FCA. Illinois law requires privity for an implied warranty claim and FCA maintains that there is no evidence of privity here. Privity inquiries into the relationship between a purchaser, a seller, and a manufacturer are fact-intensive. In some circumstances, a manufacturer is in privity with a consumer who purchased through a remote seller, but in others privity cannot be established between a consumer and a manufacturer. Based on the evidence presented, there is a genuine question of material fact as to whether privity exists, and summary judgment cannot be granted at this time. The Court denies FCA's motions for summary judgment as to Keith's and Flynn's state-based and nationwide MMWA claims (Counts 1, 4, and 11). FCA's motion for summary judgment on Flynn's common law implied warranty of merchantability claim (Count 5) is denied. Harman's motion for summary judgment on the claims of Brian Flynn is granted as to the nationwide class claim (Count 1). Harman's motion for summary judgment on the MMWA claims of Michael Keith (Counts 1 and 11) is denied. Here, there is a genuine issue of material fact as to whether the information about the Uconnect design and installation that allegedly was withheld would have changed Flynn's decision to purchase his vehicle or whether it was the type of information that he would be expected to rely on in deciding to purchase a vehicle. Defendants gloss over Flynn's evidence that he did not fully understand the cybersecurity risks of the Uconnect device in his car by pointing to testimony that Flynn understands that computers can be hacked and that he purchased a car with a computer. That is insufficient to warrant summary judgment on the basis of materiality. Motions for Summary Judgment on Brian Flynn's Common Law Fraud and Illinois Consumer Fraud Act Claims The Defendants next argue that Flynn cannot demonstrate that he relied on the information at issue, but ICFA does not require proving reliance, only that a defendant intended that a consumer would rely on a deceptive or unfair practice. Flynn, however, must establish causation, as Defendants point out. His ICFA claim contends that FCA's advertisements touting the safety of the class vehicles were deceptive because FCA knew their design and installation was not, in fact, safe, but Flynn cannot point to a specific communication or advertisement that he saw. Under ICFA, deceptive advertising cannot be the proximate cause of damages unless the advertisement actually deceives the plaintiff. Additionally, Illinois courts have held that a plaintiff cannot establish proximate cause where he cannot identify a specific communication between himself and the defendant. Flynn's ICFA theory that alleges that the Defendants engaged in deceptive advertising in order to protect profits and to avoid recalls that would damage their brand image is essentially a "market theory of causation" that Illinois courts squarely reject. Flynn offers no evidence that creates a genuine issue of material fact as to causation. He cannot establish causation and fails to meet the requirements of pursuing an ICFA claim. Accordingly, the Court grants the Defendants' motions for summary judgment on counts two, six, and seven as to Brian Flynn. Motions for Summary Judgment on Brian Flynn's Unjust Enrichment Claims Where unjust enrichment claims are based on the same conduct the fraud claims, the claims rise or fall together. To that end, Flynn incorporates his fraud claim arguments as his argument against summary judgment on his unjust enrichment claims. Accordingly, the Court finds that the fraud claims and unjust enrichment claims rest on the same allegedly improper conduct and that Defendants are entitled to summary judgment against Flynn. Even if the Court were not granting summary judgment on Flynn's fraud claims, however, Flynn has not produced any evidence of a benefit conferred on FCA or Harman to create a genuine issue of material fact. The Court grants the motions by Harman and FCA as to Flynn's unjust enrichment claims (Counts 3 and 8). Motions for Summary Judgment on Keith's Michigan Consumer Protection Act Claim Keith alleges that both Harman and FCA violated the Michigan Consumer Protection Act. According to Keith, the Defendants both made affirmative misrepresentations and failed to disclose material facts in connection with the sale of the class vehicles. Here, there is a genuine issue of material fact as to whether Keith reasonably could have known of the alleged defect in his vehicles and whether that information would have altered his leasing decision. Keith has presented sufficient evidence to create an issue of fact as to whether Defendants knew of the alleged defects at the time of production and sale of the class vehicles and whether they failed to disclose the defects to consumers. Accordingly, Keith can demonstrate material questions of fact as to the heart of his fraudulent omission MCPA claim, and the Defendants' motions for summary judgment on count twelve are denied as to that claim. Motions for Summary Judgment on George and Kelly Brown's Missouri Merchandising Practices Act Claim FCA attempts to add a requirement that the Browns show something beyond the typical bad faith or recklessness showings for omission claims under the MMPA, but the scienter requirement for claims alleging an omission of material fact relates to whether FCA knew, or upon reasonable inquiry would have known, the material facts it allegedly failed to disclose. The Browns present sufficient evidence to clear this hurdle, so their MMPA claim against FCA survives summary judgment. The Browns are in a different position as to their fraudulent omission claims against Harman. They offer no evidence that Harman knew, or upon reasonable inquiry would have known, that the installation of the Uconnect device in their vehicle led to cyber security defects. Harman's evidence shows that they manufactured the Uconnect device to FCA's specifications but that they had no role in the installation or fitting of the units in FCA's vehicles. The Browns offer no evidence to the contrary. Further there is no evidence or case law before the Court that suggests that Harman is a seller within the meaning of the MMPA. There is no evidence that Harman sold anything to the Browns. They produced components for a vehicle sold by FCA. Absent evidence that the Browns purchased something from Harman, as required by the plain language of the MMPA, the Browns' MMPA claims fail against Harman. Accordingly, FCA's motion for summary judgment is denied and Harman's motion for summary judgment is granted as to count nine. Motions for Summary Judgment on Missouri and Michigan Unjust Enrichment Claims Both the Browns and Keith bring unjust enrichment claims under the laws of their home states. In order to sustain a claim for unjust enrichment under Michigan law, a plaintiff must prove (1) that the defendant received a benefit conferred by the plaintiff, and (2) that there was a resulting inequity to the plaintiff. Similarly, Missouri requires a plaintiff to prove (1) that they conferred a benefit on a defendant; (2) that the defendant received the benefit, and (3) that the defendant retained the benefit under circumstances that render that retention inequitable. Here, both the Browns and Keith face the same roadblock: they fail to put forth any evidence that a benefit was conferred on either Defendant, relying instead on conclusory statements. As the record is devoid of evidence that could create a genuine issue of material fact, the Court grants Defendants' motions for summary judgment on the Missouri unjust enrichment claim (Count 267, 348) and the Michigan unjust enrichment claim (Count 267, 350). Accordingly, the Defendants' motions for summary judgment are granted in part and denied in part. At the close of the case, the Clerk of Court is directed to enter judgment as follows: -- On Count One, in favor of Harman and against Brian Flynn. -- On Counts Two and Three, in favor Harman and FCA and against Flynn, Keith, and George and Kelly Brown -- On Counts Six, Seven, and Eight, in favor of Harman and FCA and against Flynn; -- On Count Nine, in favor of Harman and against the Browns; -- On Count Ten, in favor of Harman and FCA and against the Browns; and -- On Count Thirteen, in favor of Harman and FCA and against Keith. A full-text copy of the District Court's July 5, 2018 Order is available at https://tinyurl.com/yacjf9yh from Leagle.com. Brian Flynn, on behalf of themselves and all others similarly situated, George Brown, on behalf of themselves and all others similarly situated & Kelly Brown, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Christopher D. Baucom -- cbaucom@armstrongteasdale.com -- Armstrong Teasdale LLP, Christopher F. Cueto -- ccueto@cuetolaw.com -- Law Office of Christopher Cueto, LTD, IJay Palansky -- ipalansky@armstrongteasdale.com -- Armstrong Teasdale LLP, pro hac vice, Lloyd M. Cueto, Law Office of Lloyd M. Cueto, P.C., Lucas T. Pendry -- lpendry@armstrongteasdale.com -- Armstrong Teasdale LLP, Stephen R. Wigginton, Law Office of Stephen R. Wigginton & Michael J. Gras , Law Office of Christopher Cueto, LTD Generally Admitted. Michael Keith, on behalf of themselves and all others similarly situated, Plaintiff, represented byChristopher D. Baucom , Armstrong Teasdale LLP, Christopher F. Cueto , Law Office of Christopher Cueto, LTD, Michael J. Gras , Law Office of Christopher Cueto, LTD Generally Admitted & Stephen R. Wigginton , Law Office of Stephen R. Wigginton. FCA US LLC, formerly known as Chrysler Group LLC, Defendant, represented by Kathy A. Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn, Stephen A. D'Aunoy -- adaunoy@thompsoncoburn.com -- Thompson Coburn & Scott H. Morgan -- smorgan@thompsoncoburn.com -- One US Bank Plaza Thompson Coburn LLP. FCA US: Final Pretrial Conference in "Victorino" Cont. to Aug. 31 ----------------------------------------------------------------- In the case, CARLOS VICTORINO and ADAM TAVITIAN, individually, and on behalf of other members of the general public similarly situated, Plaintiffs, v. FCA U.S. LLC, a Delaware limited liability company, Defendant, Case No. 16cv1617-GPC(JLB)(S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Suthern District of California granted in part the Plaintiff's ex parte motion and continued the final pretrial conference set Aug. 3, 2018 to Aug. 31, 2018. On July 11, 2018, the Plaintiff filed an ex parte motion to vacate the current amended scheduling order, or to continue the pre-trial dates for 60 days pending a ruling on his petition for permission to appeal order denying motion for class certification pursuant to Federal Rule of Civil Procedure ("Rule") 23(f). The Defendant filed an opposition on July 13, 2018. On the same day, the Plaintiff filed a motion for leave to file a reply to his ex parte motion and attached a proposed reply. On July 16, 2018, Defendant filed an opposition to the Plaintiff's motion for leave to file a reply. On June 13, 2018, the Court denied the Plaintiff's amended motion for class certification. ( On June 28, 2018, the Plaintiff filed a notice of appeal of the Court's order on class certification pursuant to Rule 23(f). In the instant ex parte motion, the Plaintiff seeks a stay of the pretrial proceedings until a ruling by the Ninth Circuit on his Rule 23(f) petition. The Defendant disagrees. According to the amended scheduling order, the remaining deadlines that currently remain are the preparing of the pretrial order by July 20, 2018, the lodging of the proposed final pretrial conference order by July 27, 2018, and the final pretrial conference set with the Court on Aug. 3, 2018. The parties acknowledge and the Court notes that the Magistrate Judge, after the scheduling order had been amended several times, cautioned the parties that the Court anticipates granting no further extensions absent extraordinary circumstances. In the case, Judge Curiel finds that all that remains are two dates related to pre-trial preparations. Discovery and dispositive motions as well as the class certification motions have been ruled on. There is one cause of action for breach of the implied warranty under state and federal law. Any pre-trial work for Victorino, as an individual, would necessarily be conducted even if the Ninth Circuit reversed the court's ruling on class certification. If the Ninth Circuit disagrees with the Court's ruling on certification, the case would shift from an individual claim of breach of implied warranty to a class action. In such a case, the Court would grant the parties' leave to conduct any supplemental pretrial proceedings to include a class action. The Judge concludes that the Plaintiff has not demonstrated irreparable harm. Because the Plaintiff has failed to demonstrate the two key factors to support a stay, the Judge concludes a stay is not justified. Moreover, the Plaintiff has not demonstrated extraordinary circumstances justifying vacating the amended scheduling order. Because the parties and the Court agree that a trial should not be scheduled until a ruling by the Ninth Circuit, Judge Curiel granted in part the Plaintiff's ex parte motion and continued the final pretrial conference date from Aug. 3, 2018 to Aug. 31, 2018. All other dates in the amended scheduling order will remain. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/KyRKL6 from Leagle.com. Carlos Victorino, individually, and on behalf of a class of similarly situated individuals & Adam Tavitian, individually, and on behalf of a class of similarly situated individuals, Plaintiffs, represented by Cody R. Padgett -- Cody.Padgett@CapstoneLawyers.com -- Capstone Law APC, Jordan L. Lurie -- Jordan.Lurie@CapstoneLawyers.com -- Capstone Law, APC, Robert Kenneth Friedl -- Robert.Friedl@CapstoneLawyers.com -- Capstone Law APC & Tarek H. Zohdy -- Tarek.Zohdy@CapstoneLawyers.com -- Capstone Law APC. FCA US LLC, a Delaware limited liability company, Defendant, represented by Kathleen Ann Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Scott H. Morgan -- smorgan@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Stephen Anthony D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, Thomas L. Azar, Jr. -- tazar@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice, William M. Low, Higgs Fletcher & Mack LLP & Edwin Mendelson Boniske -- boniske@higgslaw.com -- Higgs Fletcher & Mack, LLP. FELDSOTT LEE: Violates Fair Debt Collection Act, Hedayati Claims ---------------------------------------------------------------- A class action lawsuit has been filed against Feldsott Lee Pagano & Canfield and Parkside Community Association. The case is styled as Mohammad Hedayati, On Behalf of Himself and All Others Similarly Situated v. Feldsott Lee Pagano & Canfield and Parkside Community Association, A Non-Profit Mutual Benefit Corporation, Case No. 8:18-cv-01479 (C.D. Cal., August 20, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Feldsott Lee Pagano & Canfield is a law firm representing homeowners associations and property owners for over 40 years. As one of the pioneers in the field of association law in Southern California, Feldsott Lee Pagano & Canfield has been providing skilled legal advice to clients since 1972. The Parkside Community Association, A Non-Profit Mutual Benefit Corporation, is Buffalo's oldest, largest and most active neighborhood association in the City of Buffalo.[BN] The Plaintiff is represented by: Andrew Paul Rundquist, Esq. LAW OFFICE OF ANDREW P. RUNDQUIST 501 W Broadway, Suite A144 San Diego, CA 92101 Telephone: (619) 992-9148 E-mail: andrew@rundquistlaw.com FINANCIAL TRUST: Faces Gerber Class Suit in S.D. New York --------------------------------------------------------- A class action lawsuit has been filed against The Financial Trust Company, XYZ Corporation, ABC Inc. and Jeffrey E. Epstein with claims of fraud. The case is titled as Marvin Gerber and Kalma Koenig, on behalf of themselves and all others similarly situated v. The Financial Trust Company, XYZ Corporation, ABC Inc. and Jeffrey E. Epstein, Case No. 1:18-cv-07580 (S.D.N.Y., August 20, 2018). The Financial Trust Company is a trust formed under the laws of St. Thomas. The Company runs a hedge fund. Jeffrey E. Epstein serves as the Chairman and Chief Executive Officer of the Financial Trust Company.[BN] The Plaintiffs are represented by: Frank Rocco Schirripa, Esq. HACH ROSE SCHIRRIPA & CHEVERIE LLP 112 Madison Avenue, 10th Floor New York, NY 10016 Telephone: (212) 213-8311 Facsimile: (212) 779-0028 E-mail: fs@hachroselaw.com FLORIDA: Ct. Denies Judgment on Pleadings in Inmate Transport Suit ------------------------------------------------------------------- The United States District Court for the Southern District of Florida denied Defendant Prisoner Transportation Services, LLC's (PTS) Motion for Judgment on the Pleadings in the case captioned JEFFREY EMIL GROOVER, Plaintiff, v. PRISONER TRANSPORTATION SERVICES, LLC and U.S. CORRECTIONS, LLC, Defendants, Case No. 15-cv-61902-BLOOM/Valle(S.D. Fla.). In the Amended Complaint, Groover, an inmate at the Butner Low Security Federal Correctional Institution in Butner, North Carolina, alleges that U.S. Corrections LLC (USC), transported him from Butner, North Carolina to Fort Lauderdale, Florida in a windowless transport van lacking sufficient ventilation and air conditioning. Groover claims that he was deprived of sleep, water, and refuge from the heat. PTS argues that it is not liable as a matter of law for the actions of USC the entity that transported Plaintiff. With regard to Count I, PTS argues it did not acquire USC until after the incident occurred and it cannot be directly liable. As to Count II, PTS argues that PTS did not transport Groover and did not, therefore, injure Groover. As a result, Groover cannot be a member of the putative class injured by PTS' transportation practices, lacking standing to bring a class action lawsuit against PTS. Count I With regard to Count I, PTS argues that, under Florida law, there are three ways in which a parent corporation can be held liable for the acts of its subsidiaries: (1) an alter ego theory to 'pierce the corporate veil;' (2) vicarious liability based on general agency principles; or (3) direct liability where the parent corporation directly participated in the wrong complained of. PTS argues that the Amended Complaint is devoid of such allegations, requiring the entry of judgment in its favor. In response, Groover argues that judgment on the pleadings should be denied because PTS is directly liable under three successor-in-interest theories of liability: (1) express or implied assumption of liabilities; (2) de facto merger; and (3) mere continuation of a predecessor business. Express or Implied Assumption of Liability The Plaintiff first contends that, through its acquisition of USC, PTS expressly or impliedly assumed its liabilities. The record contains a document entitled Contribution Agreement for Membership Interest in PTS. Within the section entitled Purchase of Membership Interest, the document provides that the members of USC, a limited liability company, agreed to purchase specified percentages of interest in PTS and that PTS, in turn, acquired all shares belonging to the USC members along with all tangible assets used or useful in USC's business operations. The Contribution Agreement refers to the acquisition of this property as the Contributed Property. The Contribution Agreement also contains a section entitled Representations and Warranties Regarding the Contributed Property, which provides that all representations and warranties that USC's members made in Annex A to the agreement form part of the "Contributed Property" that PTS was acquiring. Included in Annex A is a section entitled Litigation containing a disclosure of all pending or threatened investigations, actions or proceedings against USC. More specifically, USC's members warrant to PTS that there is no pending or threatened investigation, action, or proceeding against USC by or before any court. Except as disclosed on Schedule 1.08. Schedule 1.08, in turn, makes multiple disclosures. From these documents, an inference can be made that the Litigation disclosure is part of the Contributed Property that PTS acquired. As the legal standard of a motion to dismiss is similar to that of a judgment on the pleadings and the Court is, therefore, required to accept all allegations in the Amended Complaint as true and draw all inferences in Plaintiff's favor, the supplemental evidence creates an inference that PTS assumed USC's liabilities. While the parties are free to revisit this issue on summary judgment, at this juncture, the Motion must be denied. De Facto Merger In determining whether an asset sale constitutes a de facto merger, courts consider the following: (1) whether there is a continuation of the enterprise of the seller corporation, so that there is continuity of management, personnel, physical location, assets and general business operations; (2) whether there is a continuity of shareholders, accomplished by paying for the acquired corporation with shares of stock; (3) whether there is a dissolution of the seller corporation, and (4) whether the purchasing corporation assumes the obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations. Here, the Court finds that, within the four corners of the Amended Complaint, the documents referenced therein, and the supplemental documents, Groover failed to state a claim under a de facto merger theory. Specifically, the Court finds that there are no allegations demonstrating that USC has been dissolved. While Groover argues that USC was effectively dissolved in the transaction and was subsumed into PTS, there are no such allegations in the Amended Complaint nor can the Court draw any such inferences from the documents referenced in the Amended Complaint. Further, based on the Court's review of the newly submitted documents, there is nothing from which the Court can infer that USC has been dissolved. To the contrary, these newly filed documents indicate that PTS formally acquired all interest in USC, making USC a wholly owned subsidiary of PTS and thus negating the existence of a de facto merger. Looking at the four corners of the Amended Complaint, the documents referenced therein, and the supplemental documents, the Court finds that Plaintiff failed to state a claim for relief on a de facto merger theory of liability against PTS. Mere Continuation To determine whether one corporation is a continuation of another, the test is whether there is a continuation of the corporate entity of the seller not whether there is a continuation of the seller's business operations. Based on the four corners of the Amended Complaint, the documents referenced therein and the supplemental documents, the Court concludes that PTS had a corporate existence separate and apart from USC at the time of the acquisition and PTS is not, therefore, a mere continuation of USC. This is because the companies had completely different ownership and assets prior to the acquisition. The documents referenced in the Amended Complaint contradict any notion that PTS is a mere continuation of USC or that USC is simply wearing the new hat" of PTS. As a result, the Court finds that the Amended Complaint fails to state a plausible claim against PTS for successor liability under a mere continuation of USC theory. Count II Count II defines the putative class as follows: All pretrial detainees and prisoners who were transported by Prisoner Transportation Services, LLC or any of its affiliates or subsidiaries, including U.S. Corrections, LLC, and forced to remain in a transport van in excess of twenty-four (24) continuous hours, subject only to brief, intermittent breaks, at any time between June through September of any year in the statutory period. PTS' argument here is contingent upon a finding that PTS cannot be directly liable for Groover's claims in Count I. However, the Court has already determined that the Plaintiff's claims against PTS in Count I remain viable. It, therefore, follows that PTS' argument as to Groover's standing in Count II fails. Given that the Plaintiff has filed a Motion for Class Certification, the parties will have the opportunity to readdress the Plaintiff's standing on behalf of the putative class at that time as the class definition has evolved since the filing of this Motion. A full-text copy of the District Court's July 30, 2018 Order is available at https://tinyurl.com/yah6g9xh from Leagle.com. Jeffrey Emil Groover, Plaintiff, represented by Frank S. Hedin -- fhedin@hedinhall.com -- Hedin Hall LLP, David W. Hall -- dhall@hedinhall.com -- Hedin Hall LLP, pro hac vice & Vanessa Shakib , Ahdoot & Wolfson, PC, pro hac vice. Prisoner Transportation Services, LLC, Defendant, represented by D. David Keller -- david.keller@kellerlandsberg.com -- Keller Landsberg PA & Jose R. Riguera -- jose.riquera@kellerlandsberg.com -- Keller Landsberg PA. U.S. Corrections, LLC, Defendant, represented by Erin G. Jackson -- ejackson@jacksonjohnson.com -- Johnson Jackson LLC & Ashley Americo Tinsley -- atinsley@johnsonjackson.com -- Johnson Jackson LLC. FLUOR CORP: Court Certifies VC Summer Workers' Class ---------------------------------------------------- In the case, Harry Pennington III and Timothy Lorentz, on behalf of themselves and all others similarly situated, Plaintiffs, v. Fluor Corporation, Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc., SCANA Corporation, and South Carolina Electric & Gas Company, Defendants, Civil Action No.: 0:17-cv-02094-JMC (D. S.C.), Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina, Rock Hill Division, granted the Plaintiffs' Motion for Class Certification. The matter is before the Court pursuant to Plaintiffs Pennington and Lorentz's Motion for Class Certification, on behalf of themselves and all others similarly situated. Defendants Fluor Corp., Fluor Enterprises, Inc., Fluor Daniel Maintenance Services, Inc. ("Fluor Defendants"), SCANA Corp. and South Carolina Electric & Gas Co. ("SCE&G") ("SCANA Defendants") filed responses in opposition. The case arises out of the decision on July 31, 2017, to stop all construction at the V.C. Summer Nuclear Station in Jenkinsville, South Carolina. As a result of that decision, the Plaintiffs allege that approximately 5,000 employees were laid off who had been working and/or receiving assignments at VC Summer. Until their respective terminations, the Plaintiffs further allege that Pennington worked directly for Fluor Daniel at VC Summer as a Heavy Equipment Operator and Lorenz was employed by Westinghouse Electric Co., LLC ("WEC") as a Project Manager. However, at the same time, for purposes of the WARN Act, they allege that they were employees of SCANA Defendants. To this point, the Plaintiffs generally allege that SCANA Defendants were the single employer together with Fluor Defendants and/or WEC of all individuals working at VC Summer. In their Amended Complaint, the Plaintiffs allege that in 2008, SCANA Defendants entered into an agreement with WEC for the purpose of constructing two AP-10001 nuclear reactors known as VC Summer 2 and 3. They further allege that in or around 2015, Fluor Corp. was brought in as a subcontractor to WEC to provide staffing for craft (manual labor) employees and take primary responsibility for on-site construction to include responsibility for the craft, field engineers, and project controls personnel including the costs and scheduling of personnel. At the same time, WEC generally accepted liability for the cost overruns on the Summer Project, by agreeing to build it for a 'fixed-price' at SCANA Defendants' option, which option was exercised in May 2016 thus capping costs for the Summer Project at close to $14 billion. The Plaintiffs allege that in early 2017, WEC experienced cash shortfalls related to the Summer Project and a deepening liquidity crisis, which eventually led to WEC and its subsidiaries filing voluntary petitions for relief under Chapter 11 of Title 11 of the U.S. States Bankruptcy Code in the Southern District of New York on March 29, 2017. They allege that as a result of WEC's bankruptcy, SCANA Defendants became financially accountable for the ongoing costs and plan of completion for the VC Summer Project. Moreover, the Plaintiffs assert that SCANA Defendants took over complete control of the VC Summer Project. The Plaintiffs allege that after SCANA Defendants gained control of the VC Summer Project, they recognized by at least March 2017, that mass layoffs and shutdowns were almost inevitable at the Summer Project in mid-summer. Subsequently, on July 31, 2017, SCANA Defendants sent WARN Act correspondence to the Director of Business Services for the South Carolina Department of Employment and Workforce that they've decided to stop the construction of both Unit 2 and Unit 3 and file a petition for approval of abandonment with the Public Service Commission of South Carolina. Unfortunately, this process is expected to involve immediate, total, and permanent termination of the new nuclear construction project at VC Summer Nuclear Station. Also on July 31, 2017, the Plaintiffs allege that Fluor Defendants and WEC were told by SCE&G to cease work on the project immediately resulting in the immediate termination of the Plaintiffs' employment. Additionally, the Plaintiffs contend that SCANA controlled the decision to terminate all the employees on the site without advance notice. As a result of the foregoing, Pennington filed a putative class action Complaint in the Court against Defendants Fluor Corp., Fluor Enterprises, Inc. and SCANA on Aug. 8, 2017, alleging violations of the WARN Act. In his Complaint, Pennington sought to represent all other similarly situated former employees, pursuant to 29 U.S.C. Section 2104(a)(5) and Fed. R. Civ. P. 23(a), who worked at, reported to, or received assignments from one of the Defendants' Facilities and were terminated without cause on or about July 31, 2017, and within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017. Pennington further alleged that Fluor Corp.n, Fluor Enterprises, Inc. and SCANA knowingly failed to give their employees at least 60 days prior notice of termination of their employment as required by the WARN Act. On Oct. 25, 2017, Pennington filed an Amended Class Action Complaint, which provided additional WARN Act allegations and added Lorentz as Plaintiff and Fluor Daniel and SCE&G as Defendants. On Nov. 20, 2017, Fluor Defendants answered the Amended Complaint and asserted their affirmative defenses. As it pertains to the present Motion, the Plaintiffs filed a Motion for Class Certification and Supplemental Motions in Support of Class Certification, stating that they've satisfied the requirements of Federal Rule of Civil Procedure 23. SCANA Defendants and Fluor Defendants filed a response in opposition to the Plaintiffs' Motion. Judge Childs finds that the Plaintiffs satisfy all of the requirements of Rule 23(a) and Rule 23(b)(3). As such, she holds that class certification is appropriate. Accordingly, she granted the Plaintiffs' Motion. She certified the class comprising of the Plaintiffs and all persons (i) who were former employees of Defendants and worked at, reported to, or received assignments from the V.C. Summer Nuclear Station (the Facility), located at Highway 215 & Bradham Blvd, Jenkinsville, South Carolina 29065; (ii) who were terminated without cause on or about July 31, 2017 or within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of the mass layoffs and/or plant closings ordered by Defendants on or about July 31, 2017; (iii) who are affected employees within the meaning of 29 U.S.C. Section 2101(a)(5); and (iv) who have not filed a timely request to opt-out of the Class. A full-text copy of the Court's July 17, 2018 Order and Opinion is available at https://is.gd/ShqMwd from Leagle.com. Harry Pennington, III, on behalf of himself and all others similarly situated & Timothy Lorentz, on behalf of himself and all others similarly situated, Plaintiffs, represented by Lucy Clark Sanders, Bloodgood and Sanders, Jack A. Raisner -- jar@outtengolden.com -- Outten and Golden LLP, pro hac vice, Nancy Bloodgood, Bloodgood and Sanders & Rene S. Roupinian -- rsr@outtengolden.com -- Outten and Golden LLP, pro hac vice. Fluor Corporation & Fluor Enterprises Inc, Defendants, represented by John Hagood Tighe -- htighe@fisherphillips.com -- Fisher and Phillips, David Kresser -- dkresser@fisherphillips.com -- Fisher and Phillips LLP, pro hac vice & Kathleen McLeod Caminiti -- kcaminiti@fisherphillips.com -- Fisher and Phillips LLP, pro hac vice. SCANA Corporation & South Carolina Electric & Gas Company, Defendants, represented by Charles T. Speth, II -- ted.speth@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC, D. Michael Henthorne -- michael.henthorne@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC, James H. Fowles, III -- james.fowles@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC & Christopher Ray Thomas -- christopher.r.thomas@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart PC. Fluor Daniel Maintenance Services Inc, Defendant, represented by John Hagood Tighe, Fisher and Phillips. FRESNO COMMUNITY: "Solario" Class Certification Denial Reversed --------------------------------------------------------------- In the case, CESAR SOLORIO, Plaintiff and Appellant, v. FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER, Defendant and Respondent, Case No. F073953 (Cal. App.), Judge Donald R. Franson, Jr. of the Court of Appeals of California for the Fifth District reversed the trial court's order denying the Palintiff's motion for class certification. Medical Center is a California nonprofit public benefit corporation that operates two medical care facilities with emergency rooms in Fresno County. One of its facilities is Community Regional Medical Center in downtown Fresno. On Sept. 22, 2015, Solario received emergency screening, stabilization, treatment and services at Community Regional Medical Center. The Plaintiff was provided with a three-page form contract labeled Conditions of Admission or Service. The form stated the patient agreed to pay for services in accordance with the regular rates and terms of Medical Center. The parties dispute how this contractual language should be interpreted and applied. The Plaintiff was not covered by health insurance or a governmental health program. As a result, he was a self-pay patient for his emergency room visit. Medical Center billed plaintiff $7,812.03 for the treatment and services provided, which did not include charges by physicians and other nonhospital providers. The billing statement did not itemize the charges, but simply listed the balance owed as $7,812.03. The litigation involves the interpretation of a hospital's admissions contract and the rates charged to an uninsured emergency room patient under that contract. Similar billing disputes between uninsured emergency room patients and hospitals have arisen across the United States and have generated numerous reported decisions and journal articles. Many of those decisions, like this one, address a trial court's denial of a motion for class certification. In the case, Solorio signed an admissions contract stating he agreed to pay for emergency room services in accordance with the regular rates and terms of the Medical Center. After receiving a bill for $7,812.03, the Plaintiff filed a class action complaint alleging the rates set forth in Medical Center's charge description master and billed to self-pay patients are inflated and exorbitant. As to the interpretation of Medical Center's admissions contract, he seeks a declaratory judgment stating the contract contains an open price term and, pursuant to Civil Code section 1611, self-pay patients are obligated to pay no more than the reasonable value of the services provided. The Plaintiff seeks further declaratory relief stating (1) the admissions contract does not permit Medical Center to bill self-pay emergency care patients its chargemaster rates and (2) Medical Center's billing practices are unconscionable and unreasonable. The complaint proposed a class of all individuals who, over the last four years, had one or more eligible patient hospital visits to an emergency room operated by Medical Center. It defined "eligible patient hospital visit" using four criteria: (1) the patient was billed at the hospital's full Chargemaster rates; (2) there have been no full writeoffs, discounts or adjustments to the full Chargemaster billing under Medical Center's charity care policies; (3) the bill has not otherwise been waived or written off in full by Medical Center; and (4) no payments for the hospital visit have been made by other than the patient or the patient's representatives. In November 2015, the Plaintiff filed an early motion for class certification. The trial court denied the Plaintiff's motion for class certification on the ground the proposed class could not be ascertained without undue effort and expense. On a disputed question of law about California's ascertainability requirement, Judge Franson concludes that requirement applies to cases like this one where only declaratory relief is sought. He furthers conclude the trial court did not abuse its discretion in denying class certification as to the whole case. However, he also concludes the question of whether the admissions contract contains an open price term is certifiable as a class issue pursuant to California Rules of Court, rule 3.765(b). The Judge explains that the state Supreme Court has recognized questions of contract interpretation involving form contracts are ideal for class adjudication. Here, notice need not be provided to class members until after the declaratory judgment is entered and the notice may be given by publication. At that time, former patients will be able to identify whether or not they meet the class definition -- that is, whether they are self-pay patients who signed Medical Center's standard admissions contract and received treatment at Medical Center's emergency rooms during the specified period. The class issue of contract interpretation also satisfies the other requirements for certification -- that is, predominance of common questions, typicality, adequacy of representation, and superiority. Accordingly, the class issue merits certification. Judge Franson therefore reversed the order denying the motion for class certification. He directed the the trial court to certify an issue class pursuant to California Rules of Court, rule 3.765(b) and to conduct further proceedings not inconsistent with his Opinion. The Plaintiff will recover its costs on appeal. A full-text copy of the Court's July 11, 2018 Opinion is available at https://is.gd/16Wq1U from Leagle.com. Carpenter Law, Gretchen Carpenter --gretchen@gcarpenterlaw.com; Law Office of Barry Kramer, and Barry L. Kramer, for Plaintiff and Appellant. Hooper, Lundy & Bookman, Amanda L. Hayes-Kirbreab -- ahayes-kibreab@health-law.com -- and Sansan Lin -- slin@health-law.com -- for Defendant and Respondent. GC SERVICES: 6th Cir. Affirms Dismissal of FDCPA Suit ----------------------------------------------------- The United States Court of Appeals, Sixth Circuit, affirmed the District Courts' judgment denying Defendant's Motion to Dismiss the case captioned WILBUR MACY; PAMELA J. STOWE, Plaintiffs-Appellees, v. GC SERVICES LIMITED PARTNERSHIP, Defendant-Appellant. No. 17-5593. (6th Cir.) Plaintiffs Wilbur Macy and Pamela J. Stowe brought this putative class action against GC Services Limited Partnership, a debt collector, alleging violations of the Fair Debt Collection Practices Act (FDCPA). THe Plaintiffs alleged that GC, in attempting to collect debt owed by the Plaintiffs to GC's client, sent the Plaintiffs letters that contained legally deficient warnings and advisories, in violation of Section 1692g of the FDCPA. GC moved to dismiss the action for lack of Article III standing, arguing that the alleged violations of the FDCPA do not constitute harm sufficiently concrete to satisfy the injury-in-fact requirement of standing. GC argues that: (1) the Plaintiffs' claims must be dismissed because the Plaintiffs lack Article III standing, and (2) the district court abused its discretion by certifying the class because the certified class is not limited to individuals who sustained a concrete injury. The District Court denied the Defendant's Motion to Dismiss. Here, GC challenges the Plaintiffs' ability to demonstrate the first standing requirement injury in fact. Injury in Fact and Spokeo The Supreme Court in Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)), stated that injury in fact "may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing." However, after Lujan, courts divided over whether a statutory violation, in and of itself, is sufficient to establish injury in fact; the Supreme Court addressed the issue in Spokeo. See 136 S. Ct. at 1549. The Court held that a plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right because Article III standing requires a concrete injury even in the context of a statutory violation. Thus, a plaintiff does not satisfy the standing requirement by alleging a bare procedural violation of a statute. Rather, to establish injury in fact, a plaintiff must allege that the procedural statutory violation caused the plaintiff to suffer some harm that actually exists; there must be an injury that is real and not abstract or merely procedural. In sum, Spokeo categorized statutory violations as falling into two broad categories: (1) where the violation of a procedural right granted by statute is sufficient in and of itself to constitute concrete injury in fact because Congress conferred the procedural right to protect a plaintiff's concrete interests and the procedural violation presents a material risk of real harm to that concrete interest; and (2) where there is a bare procedural violation that does not meet this standard, in which case a plaintiff must allege additional harm beyond the one Congress has identified. Congress enacted the FDCPA because of abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors that contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. Section 1692g(a) requires a debt collector to provide a consumer with a notice that contains: (4) a statement that if the consumer notifies the debt collector in writing within a thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer's written request within a thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. The Plaintiffs allege in their complaint: "the Defendant's misstatement of the rights afforded by the FDCPA would cause the least-sophisticated consumer[8] to understand, incorrectly, that validation of the debt, or a request for the name and address of the original creditor, could be obtained through an oral request, or by means other than in writing. Such a misunderstanding could lead the least-sophisticated consumer to waive or otherwise not properly vindicate her rights under the FDCPA." Indeed, failing to dispute the debt in writing, or failing to request the name and address of the original creditor, in writing, would cause a consumer to waive the important protections afforded by 15 U.S.C. Section 1692g(b) namely, that a debt collector cease contacting the consumer until the debt collector provides the consumer with verification of the alleged debt and/or the original creditor's name and address, as requested. Thus, the Plaintiffs allege a risk of harm that is traceable to GC's purported failure to comply with federal law, namely, the possibility of an unintentional waiver of FDCPA's debt-validation rights, including suspension of collection of disputed debts under Section 1692g(b). Without the information about the in-writing requirement, the Plaintiffs were placed at a materially greater risk of falling victim to abusive debt collection practices. And, as the FDCPA declares, its purpose is to eliminate such abusive practices. 15 U.S.C. Section 1692(e). To that end, the FDCPA grants a private right of action to a consumer who receives a defective communication. Finally, GC argues that the district court incorrectly found standing based on potential harm to class members instead of to the two named Plaintiffs. GC is correct that potential class representatives must demonstrate individual standing vis-a-vis the defendant; they cannot acquire such standing merely by virtue of bringing a class action. However, the Court concludes de novo that the named Plaintiffs have standing, thus, even if the district court found standing based on harm to potential class members, any error in the district court's analysis is of no significance. The Sixth Circuit finds that, in sum, the Plaintiffs have satisfied the concreteness prong of the injury-in-fact requirement of Article III standing by alleging that GC's purported FDCPA violations created a material risk of harm to the interests recognized by Congress in enacting the FDCPA. A full-text copy of the Sixth Circuit's July 30, 2018 Opinion is available at https://tinyurl.com/y8fatptn from Leagle.com. ARGUED: William S. Helfand -- Bill.Helfand@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH, Houston, Texas, for Appellant. James L. Davidson -- mgreenwald@gdrlawfirm.com -- GREENWALD, DAVIDSON RADBIL PLLC, Boca Raton, Florida, for Appellees. ON BRIEF: William S. Helfand , LEWIS BRISBOIS BISGAARD & SMITH, Houston, Texas, for Appellant. James L. Davidson , GREENWALD, DAVIDSON RADBIL PLLC, Boca Raton, Florida, for Appellees. GIGAMON INC: J. Rodriguez's Securities Fraud Suit Dismissed ----------------------------------------------------------- Judge Edward J. Davila of the U.S. District Court for the Northern District of California, San Jose Division, granted the Defendants' motion to dismiss the case, JOSEPH RODRIGUEZ, Plaintiff, v. GIGAMON INC., et al., Defendants, Case No. 5:17-cv-00434-EJD (N.D. Cal.), with leave to amend. In the securities fraud class action suit, the Plaintiffs allege that executive officers of Gigamon made false and misleading statements about the Company's revenue and sales backlog in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Plaintiffs purport to bring the securities fraud suit on behalf of all persons and entities who purchased or otherwise acquired the securities of Gigamon between Oct. 27, 2016 and Feb. 2, 2017. Gigamon is a technology company that provides software and services to other companies. Gigamon's products are designed to monitor and control data traveling across internet networks. Paul A. Hooper is Gigamon's CEO. Michael J. Burns is Gigamon's CFO. Hooper and Burns routinely provided investors with estimates concerning Gigamon's future revenue. On Oct. 27, 2016, the Company held a conference call with investors and analysts to discuss the Company's third quarter 2016 financial results. During that call, the Defendants provided the public with estimates concerning the Company's revenue and backlog for the fourth quarter, which was almost halfway complete. They estimated fourth quarter revenue to be in the range of $91 million to $93 million. These statements led investors to believe that Gigamon had significant unrecognized revenue, that there were product bookings in the backlog which would significantly increase revenue, and that, overall, increased revenue was guaranteed. On Oct. 28, 2016, the first trading day following the conference call, the price of Gigamon's common stock increased from $47.38 per share to $55.01 per share. Unbeknownst to investors, the Defendants did not have a reasonable basis in fact for the revenue estimate that they provided. The truth about Gigamon's fourth quarter revenue emerged on Jan. 17, 2017, when the Company issued a press release entitled "Gigamon Announces Preliminary Fourth Quarter and Fiscal Year 2016 Results." The press release disclosed preliminary fourth quarter 2016 revenue of $84.5 million to $85 million, compared to the Company's prior guidance of $91 million to $93 million. The price of Gigamon's common stock fell $12.65 per share (or 28.7%) to close at $31.40 per share on Jan. 18, 2017. Between Feb. 2, 2017 and Feb. 3, 2017, Gigamon's common stock declined from $32.10 to $30.40 (or 5.3%). The Defendants move to dismiss the Complaint for two fundamental reasons: the challenged statements are not actionable and the Complaint lacks sufficient facts to support a strong inference of scienter. As to the first argument, the Defendants contend that the challenged statements are forward-looking and protected by the PSLRA's Safe Harbor, vague statements of corporate optimism, and that the Plaintiffs have failed to allege particular facts showing that any alleged misstatement was false or misleading when made. As to the second argument, they contend that neither Hooper's November 2 statement nor the stock sales allegations, viewed individual or holistically, are sufficient to support a compelling inference of scienter. Judge Davila finds that Burns made mixed statements containing forward-looking and non-forward-looking statements. Burns made a forward-looking prediction about fourth quarter revenue. Burns' forward-looking prediction was accompanied by a non-forward-looking statement regarding Gigamon's "large deferred service," "healthy product backlog," and "consistent quarterly linearity," which provided the factual predicate for Burns' revenue prediction. Burns' the non-forward-looking portions of his statement are not protected by the Safe Harbor Provisions of the PSLRA. Hooper's statement, however, could also be interpreted as a statement about Gigamon's current business condition, the Judeg finds. The Plaintiffs contend that they are challenging Hooper's reference to "healthy backlog" as a fraudulent representation about the present state of affairs at the Company. The Judge accepts the Plaintiffs' characterization of their claim and will treat Hooper's statement as a mixed statement. It follows that the non-forward-looking portion of Hooper's statement is not protected by the Safe Harbor provisions of the PSLRA. Construing the Complaint liberally in favor of the Plaintiffs, the Judge treats the "orders" included in the backlog as firm commitments to purchase that existed as of the date of teh Defendants' alleged misstatements. He says the Defendants do not explain how Gigamon's cautionary statement about the potential failure to "close" transactions, which presumably refers to future transactions, provides a meaningful warning about orders existing at the time of the Defendants' alleged misstatements. They also do not explain how a cautionary statement about the "timing of orders" and "the budgeting cycles and internal purchasing priorities" of customers, which also presumably refer to future orders and future purchasing priorities of customers, provides a meaningful warning about orders existing at the time of Defendants' alleged misstatements. Because it is not apparent from the pleadings that the Defendants' cautionary language corrected the alleged misstatement regarding Gigamon's backlog, it is premature to decide whether the Safe Harbor immunizes them from liability. The Judge finds that the Defendants went beyond just providing subjective or emotive descriptions of Gigamon's product backlog, deferred service revenue, revenue and profitability. Their challenged statements cannot be dismissed as mere puffery. Inexplicably, the Plaintiffs do not mention CWs even once in their Opposition, much less attempt to refute the Defendants' arguments. The Judge treats the Plaintiffs' failure to address the Defendants' arguments as a tacit acknowledgement of their merit. Hence, he finds that the Plaintiffs have failed to plead facts to show the Defendants' statements were false or misleading when made. Finally, the Jduge finds tha Hooper's November 2 statement does not support a strong inference that the Defendants made false or misleading statements intentionally or with deliberate recklessness. The Plaintiffs' allegations of Gigamon stock sales by several non-defendant officers and directors fail to support an inference of scienter. They do not allege any facts to show that these stock sales were unusual or suspicious. In sum, their allegations, whether viewed separately or holistically, are insufficient to raise an inference of scienter. For the reasons set forth, Judge Davila granted the Defendants' motion to dismiss with leave to amend. The Plaintiffs may file and serve an amended complaint no later than July 30, 2018. The Court will conduct a case management conference at 10:00 a.m. on Oct. 11, 2018. The parties will file a joint case management statement no later than Oct. 1, 2018. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/rA0xsv from Leagle.com. Joseph Rodriguez, Plaintiff, represented by Charles Henry Linehan -- clinehan@glancylaw.com -- Glancy Prongay and Murray LLP, Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay and Murray LLP, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP & Robert Vincent Prongay -- RProngay@glancylaw.com -- Glancy Prongay & Murray LLP. Gigamon Inc., Paul A. Hooper, Michael J. Burns & Rex S. Jackson, Defendants, represented by Jerome F. Birn, Jr. -- JBirn@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Caz Hashemi -- chashemi@wsgr.com -- Wilson Sonsini Goodrich & Rosati, Jessica L. Snorgrass -- jsnorgrass@wsgr.com -- Wilson Sonsini Goodrich & Rosati A Professional Corporation & Nicholas R. Miller -- nmiller@wsgr.com -- Wilson Sonsini Goodrich and Rosati. The Gigamon Investor Group, Movant, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. The McGowan, Kreling, and Salinas Group, Movant, represented by Adam Christopher McCall -- amccall@zlk.com -- Levi Korsinsky, LLP, Adam Marc Apton -- aapton@zlk.com -- Levi Korsinsky, LLP & Nicholas Ian Porritt -- nporritt@zlk.com -- Levi and Korsinsky, pro hac vice. City of Daytona Beach Police & Fire Pension Fund, Movant, represented by Danielle Suzanne Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Babak Roushanaee, Movant, represented by Jeffrey Philip Campisi -- jcampisi@kaplanfox.com -- Kaplan Fox and Kilsheimer LLP & Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP. GREYHOUND LINES: Hearings on Dismissal Bid in "Smith" Moved ----------------------------------------------------------- In the case, JUSTIN SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. GREYHOUND LINES, INC., a Delaware Corporation; and DOES 1 to 100, inclusive, Defendants, Case No. 2:17-CV-02238-TLN-AC (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California has issued a stipulated order continuing the hearings on the Plaintiff's Motion to Remand and the Defendant's Motion to Stay the Action in order to facilitate settlement. The Plaintiff filed a Class Action against the Defendant in the Superior Court of California for the County of Sacramento, Case No. 34-2017-00219188 on Sept. 15, 2017. The Defendant removed the Plaintiff's Action to the U.S. Superior Court for the Eastern District of California and filed a Notice of Removal on Oct. 25, 2017. The Plaintiff filed a Motion to Remand on Nov. 21, 2017 and the Hearing for that Motion is scheduled for July 26, 2018 at 2:00 p.m. per the Court's order entered on June 11, 2018 extending the hearing date. The Defendant filed a Motion to Stay the Action on Nov. 21, 2017 and the Hearing for that Motion is scheduled for July 26, 2018 at 2:00 p.m. per the Court's order entered on June 11, 2018 extending the hearing date; The Defendant has not yet filed an opposition to the Plaintiff's Motion to Remand. The Plaintiff has not yet filed an opposition to the Defendant's Motion to Stay the Action. The Parties are engaged in continued settlement discussions and they agree it is in their best interest to further continue the motion hearings in order to facilitate settlement. A ruling on the pending motions prior to a final determination between the Parties on whether settlement can be achieved will negatively affect the prospect of resolution. Therefore the Parties stipulated and agreed, and Judge Nunley granted, that: 1. the Court will continue the Plaintiff's Motion to Remand Hearing currently set for 2:00 p.m. on July 26, 2018 to 2:00 p.m. on Nov. 15, 2018; 2. the Court will continue the Defendant's Motion to Stay Hearing currently set for 2:00 p.m. on July 26, 2018 to 2:00 p.m. on Nov. 15, 2018; 3. all opposition and reply briefs due to be filed in connection with the Motion to Remand and/or Motion to Stay will be now be due based on the newly set hearing dates and in accordance with Local Rules; and 4. nothing in the stipulation and proposed order, or the act of entering into this stipulation and proposed order, will prejudice the Parties in any argument they may otherwise make in the opposition and/or reply briefs. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/hIEc6R from Leagle.com. Justin Smith, Plaintiff, represented by Galen T. Shimoda -- attorney@shimodalaw.com -- Shimoda Law Corp. & Justin Paul Rodriguez -- jrodriguez@shimodalaw.com - Shimoda Law Corp. Greyhound Lines, Inc., Defendant, represented by David J. Dow -- ddow@littler.com -- Littler Mendelson, Pc & Kelsey Elizabeth Papst -- kpapst@littler.com -- Littler Mendelson. HANDI-HOUSE MFG: Court Denies Bid for Sanctions in Workers' Suit ---------------------------------------------------------------- In the case, LEROY BRANTLEY, JR.; HAROLD H. RICKS; ROGER SMITH; and SHON BUTLER, on behalf of themselves and all others similarly situated, Plaintiffs, v. HANDI-HOUSE MFG. CO., and DONALD FLANDERS, Defendants, Case No. CV 617-089 (S.D. Ga.), Magistrate Judge Brian K. Epps of the U.S. District Court for the Southern District of Georgia, Statesboro Division, denied the Plaintiffs' Motion for Sanctions for Spoliation of Evidence. On behalf of current and former employees of Handi-House, the class action complaint seeks damages from the alleged operation of a payday lending scheme charging weekly interest of 30% and collecting $1.17 million of interest over a five-year class period. The complaint alleges Handi-House employees, primarily General Manager and Director of Sales James Akridge and Plant Manager John Wilkerson, made weekly cash loans to Handi-House employees in advance of their paychecks, charging $6 in interest on every $20 loaned. Akridge and Wilkerson allegedly forced the Plaintiffs to agree to these loans by verbal threats and shows of authority, and they threatened any Handi-House employee who refused to take a loan would be suspended without pay or terminated. The Plaintiffs further allege Defendant Flanders, CEO and CFO of Handi-House, and his wife Stephanie have overseen the illegal lending operation and have taken steps to ensure that their co-conspirators continue operating it within Handi-House facilities. However, Akridge and Wilkerson averred they operated the loan program personally and kept all interest and profits. Moreover, according to Handi-House employee Charlie Fluellen, Handi-House ran an institutional loan program that allowed employees to obtain interest-free loans. The loan repayment procedure for the payday loan program was quite simple. Brenda Williamson, who is the employee responsible for preparing payroll checks for Handi-House, allegedly annotated the paychecks of employees receiving loans with the loan balance and distributed the borrowers' paychecks to Akridge and Wilkerson for collection. Akridge and Wilkerson required borrowers to endorse the paycheck and hand it back to them. Akridge and Wilkerson cashed the paychecks in the office, kept cash sufficient to cover the loan balance, and gave the remaining cash to the borrower. At some unidentified point in time, they started writing the loan balances on a sticky note attached to each pay stub rather than directly on the pay stub. Throughout the loan program's existence, on a weekly basis Akridge and Wilson created a notebook sheet of paper for each personal loan that outlined the amount of the loan and interest associated with the loan, if any. They testified they regularly discarded or destroyed the loan lists through termination of the loan program in July 2017. However, after litigation commenced, Alfred Johnson, a Handi-House employee and putative class member, produced to the Plaintiffs' counsel a photograph he took at work of such a loan list on Dec. 7, 2017. This prompted the Plaintiffs to file the present sanctions motion alleging the Defendants purposefully destroyed the loan list and possibly other loan program documents after actual pendency of the litigation or after they reasonably knew Plaintiffs were contemplating litigation. Johnson provided the following affidavit and deposition testimony regarding the loan list. Contrary to the Defendants' contention, Johnson testified the loan program continued after July 2017 and into December 2017, with the important modification that Akridge and Wilkerson now trusted borrowers to cash their own paychecks and remit the loan balances to them. On Dec. 7, 2017, co-worker Charlie Fluellen approached Johnson and showed him a loan list. Johnson claimed by affidavit he knew the list was from the week of Dec. 4, 2017 because the list accurately reflected he borrowed $20 that week and owed $26. He later claimed during his deposition the date of Dec. 4, 2017 was written on the reverse side of the list, of which he failed to take a picture. Johnson claimed Fluellen "found" the list up there by James' office and later returned the list to Akridge. Fluellen testified Johnson is lying and he had never seen the list before his deposition. Moreover, Fluellen testified he never received a personal loan from Akridge and Wilkerson and instead took advantage of interest-free employee loans offered by Defendant Handi-House. Akridge and Wilkerson state by affidavit the list was created in early July 2017 but later lost. Three Handi-House employees, two of whom were identified as borrowers on the loan list in question, also submitted sworn statements confirming all loan operations ceased in July 2017. Pursuant to stipulation of the parties, the Court dismissed all the Defendants except Handi-House and Donald Flanders, as well as Counts Seven and Ten of the Complaint. Therefore, Magistrate Judge Epps will consider the sanctions motion only as to the remaining Defendants, Handi-House and Flanders. He finds that five witnesses testified under oath concerning the July loan cessation, and the only evidence to suggest continuation of the loan program after July 2017 is the affidavit and deposition testimony of Johnson. Because Johnson's testimony is not credible, the evidence fails to show the loan scheme continued after July 2017, the loan list was created after July 2017, or the loan list was returned to Akridge after Johnson photographed it. The Magistrate Judge concludes the Defendants could not have reasonably known the Plaintiffs were in fact contemplating litigation before the Plaintiffs filed and served the complaint. Unlike Phillips v. Harmon, there was no catastrophic event leading to serious injury or loss of life. The relationship and course of conduct between the parties did not suggest the employees planned litigation either. There is no evidence of any past litigation or threatened litigation. Litigation frequency in similar circumstances does not weigh heavily in favor of Defendants. An employee loan program is not widely known to the general public as a frequent cause of litigation, and it is doubtful whether it is known as such even among employers or attorneys who do not specialize in labor and employment or finance. Any such frequency would undoubtedly pale in comparison to the frequency of litigation generated by car accidents, slip and falls, workplace injuries, and malpractice. Nor is there any evidence the Defendants were concerned about the prospect of litigation before the lawsuit began, such as notice to insurers or legal counsel or an internal investigation. In sum, nothing gave the Defendants any indication the Plaintiffs were contemplating filing suit before they received the complaint. For all of these reasons, Magistrate Judge Epps finds that the Defendants neither knew nor should have known the Plaintiffs were in fact contemplating litigation prior to filing of the complaint, and denied the Plaintiffs' Motion for Sanctions. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/sdGJ0s from Leagle.com. Leroy Brantley, Jr., Harold H. Ricks, on behalf of themselves and all others similarly situated, Roger Smith, on behalf for themselves and all others similarly situated & Shon Butler, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jeffrey Francis Peil -- jpeil@hugginsfirm.com -- Joe Edward Mathews, Jr. -- matt@edenfieldlaw.com -- Edenfield, Cox, Bruce & Classens, PC, John J. Czura -- john@czuralaw.com -- John J. Czura, PC, Travers W. Paine, III -- tpaine@painefirm.com -- Travers W. Paine, III, P.C., V. Sharon Edenfield -- sharri@edenfieldlaw.com -- Edenfield, Cox, Bruce & Classens, PC & Matthew Wade Padgett -- packages@hugginsfirm.com -- Huggins Peil LLC. Handi-House MFG. CO. & Donald Flanders, Defendants, represented by Allan C. Galis -- agalis@HunterMaclean.com -- Hunter Maclean, Exley & Dunn, P.C., Timothy D. Roberts -- troberts@olivermaner.com -- Oliver Maner, LLP, Larry Evans -- levans@olivermaner.com -- Oliver Maner, LLP & Wade Wilkes Herring, II -- wherring@HunterMaclean.com -- Hunter Maclean, Exley & Dunn, P.C.. HANESBRANDS INC: Sued by Diaz Over ADA Violation ------------------------------------------------ A class action lawsuit has been filed against Hanesbrands Inc. pursuant to the Americans with Disabilities Act. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. Hanesbrands Inc. doing business as: Hanes, Case No. 1:18-cv-07588 (S.D.N.Y., August 20, 2018). Hanesbrands Inc., a consumer goods company, designs, manufactures, sources, and sells a range of basic apparel for men, women, and children in the United States. The Company operates through three segments: Innerwear, Activewear, and International. The Company sells bras, panties, men's underwear, children's underwear, activewear, socks, hosiery, intimate apparel, shapewears, and home goods; and T-shirts, fleece, sport shirts, performance T-shirts and shorts, sports bras, and thermals, as well as licensed logo apparel in collegiate bookstores, mass retailers, and other channels.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal HENRY COUNTY, IN: Objections to June 1 Order in "Baker" Overruled ----------------------------------------------------------------- In the case, CHRISTOPHER BAKER, individually and on behalf of the present and future inmates of Henry County Jail, Plaintiff, v. RICHARD McCORKLE, individually and in his official capacity as Sheriff of Henry County, BRUCE BAKER, KIM CRONK, ED YANOS, RICHARD BOUSLOG, ROBIN RENO-FLEMING, STEVEN DUGGER, NATHAN LAMAR, CLAY MORGAN, MICHAEL THALLS, HAROLD GRIFFIN, HENRY COUNTY COMMISSIONERS, and HENRY COUNTY COUNCIL, Defendants, Case No. 1:16-cv-03026-JMS-MPB (S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, overruled the Plaintiffs' Objection to the Magistrate Judge's June 1, 2018 Order. Baker brings the action on behalf of current or future persons confined at the Henry County, Indiana Jail. He alleges that the Jail is overcrowded in violation of his and the class members' constitutional rights. The Court certified a class of any and all persons currently confined or who will in the future be confined in the Jail, and Class Notices have been placed at the Jail. The parties have disagreed regarding several issues related to the Plaintiffs' counsel's desire to tour and inspect the Jail, and these disagreements resulted in the Defendants filing a Motion for Protective Order Regarding the Parameters of Plaintiffs' Jail Tour and Inspection. After the parties briefed the Motion for Protective Order, the Magistrate Judge granted the motion and set forth specific parameters to be followed during the Plaintiffs' counsel's Jail tour/inspection. On June 7, 2018, the Plaintiffs filed a Motion Appealing the Order of the Magistrate Judge and Posing Restrictions on a Visit to the Henry County Jail. They argue that there have been at least four tours of the Jail without incident involving the inmates, but that it is true that on one occasion during the second visit the jail commander made a sarcastic remark to which the Plaintiffs' counsel responded and caused a little bit of ruckus in the administrative area but not in front of the inmates. The Plaintiffs also argue that not allowing their counsel to introduce and explain why he was there would demean his position and his representation of the class. They assert that they responded to accusations that the Jail tours were disruptive, noting that they had visited the Jail twice with no problems. They also argue that their allegations relate to security at the Jail, so the Plaintiff's counsel should be permitted to take pictures and document the security conditions. The Plaintiffs' counsel submitted an Affidavit in support of the Objection. Judge Magnus-Stinson finds that the Plaintiffs have not provided any legal grounds for their Objection. They have not demonstrated how the Magistrate Judge's decision is clearly erroneous or contrary to law, instead only expressing disagreement with the decision and presenting information that was not presented in response to the Defendants' Motion for Protective Order. She overruled the Plaintiffs' Objection relating to the parameters for a Jail tour/inspection set forth in the Magistrate Judge's June 1, 2018. The Plaintiffs also argue in their Objection that their counsel should be allowed to take pictures and document the security conditions at the Jail. This argument, according to the Judge is puzzling for two reasons. First, this issue was not before the Magistrate Judge, as the Defendants did not request a protective order related to the Plaintiffs' counsel photographing or videotaping the security cameras at the Jail. Second, she says, the Defendants' counsel has conveyed to the Plaintiffs' counsel that he may photograph and video record any security equipment and surveillance cameras in plain view during his tour/inspection. Because this is a non-issue, and was not raised in the Defendants' Motion for Protective Order nor discussed by the Magistrate Judge in the June 1, 2018 Order in any event, she overruled the Plaintiffs' Objection. For the foregoing reasons, Judge Magnus-Stinson overruled the Plaintiffs' Objection to the Magistrate Judge's June 1, 2018 Order. The Judge is compelled to address one other issue -- specifically, she is disturbed by the Plaintiffs' counsel's attacks on the Defendants' counsel, both leading up to the April 17 tour/inspection and carrying over into the briefing of the Defendants' Motion for Protective Order and Plaintiffs' Objection. Specifically, she noted the following examples: i. the Defendants' counsel's email in which she recounts the Plaintiffs' counsel calling her ignorant during a telephone call regarding the tour/inspection; ii. the Plaintiffs' counsel's statement that the Defendants' counsel began to invent reasons why it was inappropriate for the Plaintiffs' counsel to introduce himself to inmates; iii. the Plaintiffs' counsel's statement that he believes the Defendants' counsel is attempting to control him rather than conduct discovery in a professional and courteous manner; and iv. the Plaintiffs' counsel's statement that he believes the Defendants' counsel is making this a personal matter rather than representing her client's interests. The Judge reminded the Plaintiffs' counsel of the "Lawyers' Duties to Other Counsel" set forth in the Seventh Circuit Standards for Professional Conduct. She cautioned the Plaintiffs' counsel that his statements approach -- if not cross -- the lines drawn by these standards, and he should take care not to approach those lines again. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/A9THPy from Leagle.com. CHRISTOPHER BAKER, Individually and on Behalf of the Present and Future Inmates of Henry County Jail, Plaintiff, represented by Julie A. Newhouse, NEWHOUSE AND NEWHOUSE, Michael K. Sutherlin -- msutherlin@gmail.com -- MICHAEL K. SUTHERLIN & ASSOCIATES, PC & Tracy J. Newhouse, NEWHOUSE & NEWHOUSE. RICHARD MCCORKLE, Individually And In His Official Capacity As Sheriff of Henry County, BRUCE BAKER, Henry County Commissioner, KIM CRONK, Henry County Commissioner, ED YANOS, Henry County Commissioner, RICHARD BOUSLOG, Henry County Council, ROBIN RENO-FLEMING, Henry County Council, STEVEN DUGGER, Henry County Council, NATHAN LAMAR, Henry County Council, CLAY MORGAN, Henry County Council, MICHAEL THALLS, Henry County Council, HAROLD GRIFFIN, Henry County Council, HENRY COUNTY, INDIANA COMMISSIONERS & HENRY COUNTY COUNCIL, Defendants, represented by represented by James S. Stephenson, STEPHENSON MOROW & SEMLER & Pamela G. Schneeman, STEPHENSON MOROW & SEMLER. HENRY SCHEIN: Bid for Class Status Pending in Dental Supplies Suit ------------------------------------------------------------------ A motion for class certification in the consolidated case styled In re Dental Supplies Antitrust Litigation remains pending, according to Henry Schein, Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. Beginning in January 2016, purported class action complaints were filed against Patterson Companies, Inc. ("Patterson"), Benco Dental Supply Co. ("Benco") and Henry Schein, Inc. Although there were factual and legal variations among these complaints, each of these complaints alleges, among other things, that defendants conspired to fix prices, allocate customers and foreclose competitors by boycotting manufacturers, state dental associations and others that deal with defendants' competitors. On February 9, 2016, the U.S. District Court for the Eastern District of New York ordered all of these actions, and all other actions filed thereafter asserting substantially similar claims against defendants, consolidated for pre-trial purposes. On February 26, 2016, a consolidated class action complaint was filed by Arnell Prato, D.D.S., P.L.L.C., d/b/a Down to Earth Dental, Evolution Dental Sciences, LLC, Howard M. May, DDS, P.C., Casey Nelson, D.D.S., Jim Peck, D.D.S., Bernard W. Kurek, D.M.D., Larchmont Dental Associates, P.C., and Keith Schwartz, D.M.D., P.A. (collectively, "putative class representatives") in the U.S. District Court for the Eastern District of New York, entitled In re Dental Supplies Antitrust Litigation, Civil Action No. 1:16-CV-00696-BMC-GRB. In the consolidated class action complaint, putative class representatives allege a nationwide agreement among Henry Schein, Benco, Patterson and non-party Burkhart Dental Supply Company, Inc. ("Burkhart") not to compete on price. The consolidated class action complaint asserts a single count under Section 1 of the Sherman Act, and seeks equitable relief, compensatory and treble damages, jointly and severally, and reasonable costs and expenses, including attorneys' fees and expert fees. On February 22, 2018, plaintiffs moved to certify a class that, subject to certain exclusions, includes all private dental practices and laboratories that purchased dental supplies directly from Henry Schein, Patterson, Benco, Burkhart or any combination thereof, during the period beginning January 1, 2009 until March 31, 2016. That motion is currently pending. The Company said, "We intend to defend ourselves vigorously against these actions." Henry Schein, Inc. provides health care products and services to dental practitioners and laboratories, animal health clinics, physician practices, government, institutional health care clinics, and other alternate care clinics worldwide. It operates through two segments, Health Care Distribution, and Technology and Value-Added Services. The company is based in Melville, New York. HENRY SCHEIN: Still Defends Marion Diagnostic Lawsuit in Illinois ----------------------------------------------------------------- Henry Schein, Inc. continues to defend itself against a class action lawsuit pending in the Southern District of Illinois, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On May 3, 2018, a class action complaint, Marion Diagnostic Center, LLC v. Dickinson, and Co., 3:18-cv-01509 (S.D. Ill), was filed in the Southern District of Illinois against Becton, Dickinson, and Co. ("Becton"); Vizient, Inc. ("Vizient"); Cardinal Health, Inc. ("Cardinal"); Owens & Minor Inc. ("O&M"); and Henry Schein, Inc. The complaint alleges that the defendants entered into a vertical conspiracy to force healthcare providers into long-term exclusionary contracts that restrain trade in the nationwide markets for conventional and safety syringes and safety IV catheters and that inflate the prices of certain Becton products to above-competitive levels. The named plaintiffs seek to represent three separate classes consisting of all healthcare providers that purchased (i) Becton's conventional syringes, (ii) Becton's safety syringes, or (iii) Becton's safety catheters directly from Becton, Cardinal, O&M or Henry Schein on or after May 3, 2014. The complaint asserts a single count under Section 1 of the Sherman Act, and seeks equitable relief, compensatory and treble damages, jointly and severally, and reasonable costs and expenses, including attorneys' fees and expert fees. On June 15, 2018, an amended complaint was filed asserting the same allegations against the same parties and adding McKesson Medical-Surgical, Inc. as an additional defendant. The Company said, "We intend to defend ourselves vigorously against this action." Henry Schein, Inc. provides health care products and services to dental practitioners and laboratories, animal health clinics, physician practices, government, institutional health care clinics, and other alternate care clinics worldwide. It operates through two segments, Health Care Distribution, and Technology and Value-Added Services. The company is based in Melville, New York. HENRY SCHEIN: Still Defends Securities Class Action in E.D.N.Y. --------------------------------------------------------------- Henry Schein, Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the lead plaintiff in the case captioned In re Henry Schein, Inc. Securities Litigation intends to file a new complaint by September 14, 2018. On March 7, 2018, Joseph Salkowitz, individually and on behalf of all others similarly situated, filed a putative class action complaint for violation of the federal securities laws against Henry Schein, Inc., Stanley M. Bergman and Steven Paladino in the United States District Court for the Eastern District of New York, Case No. 1:18-cv-01428. The complaint seeks to certify a class consisting of all persons and entities who, subject to certain exclusions, purchased publicly traded Henry Schein securities from March 7, 2013 through February 12, 2018 (the "Class Period"). The complaint alleges, among other things, that the defendants made materially false and misleading statements about Henry Schein's business, operations and prospects during the Class Period, including matters relating to the issues in the antitrust class actions and the FTC action, thereby causing the plaintiff and members of the purported class to pay artificially inflated prices for Henry Schein securities. The complaint seeks unspecified monetary damages and a jury trial. Pursuant to the provisions of the Private Securities Litigation Reform Act of 1995 (the "PSLRA"), plaintiff's counsel published notice of the commencement of this action, and thereby provided notice of the 60-day period during which any putative class member could apply to be lead plaintiff under the PSLRA. The court appointed lead plaintiff and lead counsel on June 22, 2018 and recaptioned the putative class action as In re Henry Schein, Inc. Securities Litigation, under the same case number. Lead plaintiff intends to file a new complaint by September 14, 2018. The Company said, "We intend to defend ourselves vigorously against this action." Henry Schein, Inc. provides health care products and services to dental practitioners and laboratories, animal health clinics, physician practices, government, institutional health care clinics, and other alternate care clinics worldwide. It operates through two segments, Health Care Distribution, and Technology and Value-Added Services. The company is based in Melville, New York. HERTZ GLOBAL: Still Defends Ramirez's Shareholder Class Action -------------------------------------------------------------- Hertz Global Holdings, Inc. continues to defend itself against a purported shareholder class action filed by Pedro Ramirez, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The case is captioned In re Hertz Global Holdings, Inc. Securities Litigation. In November 2013, a purported shareholder class action, Pedro Ramirez, Jr. v. Hertz Global Holdings, Inc., et al., was commenced in the U.S. District Court for the District of New Jersey naming Old Hertz Holdings (as defined in the Company's 2017 Form 10‑K) and certain of its officers as defendants and alleging violations of the federal securities laws. The complaint alleged that Old Hertz Holdings made material misrepresentations and/or omissions of material fact in its public disclosures during the period from February 25, 2013 through November 4, 2013, in violation of Section 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The complaint sought an unspecified amount of monetary damages on behalf of the purported class and an award of costs and expenses, including counsel fees and expert fees. In June 2014, Old Hertz Holdings responded to the amended complaint by filing a motion to dismiss. After a hearing in October 2014, the court granted Old Hertz Holdings' motion to dismiss the complaint. The dismissal was without prejudice and plaintiff was granted leave to file a second amended complaint within 30 days of the order. In November 2014, plaintiff filed a second amended complaint which shortened the putative class period such that it was not alleged to have commenced until May 18, 2013 and made allegations that were not substantively very different than the allegations in the prior complaint. In early 2015, this case was assigned to a new federal judge in the District of New Jersey, and Old Hertz Holdings responded to the second amended complaint by filing another motion to dismiss. On July 22, 2015, the court granted Old Hertz Holdings' motion to dismiss without prejudice and ordered that plaintiff could file a third amended complaint on or before August 22, 2015. On August 21, 2015, plaintiff filed a third amended complaint. The third amended complaint included additional allegations, named additional current and former officers as defendants and expanded the putative class period such that it was alleged to span from February 14, 2013 to July 16, 2015. Plaintiffs filed a fourth amended complaint to add a new plaintiff on March 1, 2016. Old Hertz Holdings and the individual defendants moved to dismiss the fourth amended complaint in its entirety with prejudice on March 24, 2016, and plaintiff filed its opposition to same. The plaintiffs filed their Initial Brief in November 2017 and Old Hertz Holdings -- joined by two of the individual defendants along with a separate brief by one of the individual defendants -- filed Opposition Briefs in January 2018. The plaintiffs' Reply Brief was thereafter filed in February of 2018. Oral arguments were requested and were held on June 12, 2018. Hertz operates a vehicle rental business globally through the Hertz, Dollar and Thrifty brands from approximately 9,700 corporate and franchisee locations in North America, Europe, Latin America, Africa, Asia, Australia, The Caribbean, the Middle East and New Zealand. HEWLETT PACKARD: "Enoh" Employment Discrimination Suit Dismissed ---------------------------------------------------------------- In the case, ENOH I ENOH, ET AL., Plaintiffs, v. HEWLETT PACKARD ENTERPRISE COMPANY, et al., Defendants, Case No. 17-cv-04212-BLF (N.D. Cal.), Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, (i) granted the Defendants' motion to dismiss for improper venue; and (ii) granted in part the remainder of the Defendants' motion to dismiss and motion to strike. Plaintiffs Enoh, Christopher Jackson, Derek Mobley and William Murrell bring the putative class and collective action against Defendants HP Inc. and HPE to challenge the Defendants' employment practices that allegedly discriminate against African-American employees and applicants over the age of 40. Specifically, the Plaintiffs allege that the Defendants engaged in race and age discrimination in hiring, promotions, and lay-offs in violation of Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act ("ADEA"). Although the Plaintiffs filed the case in the Northern District of California, and the Defendants are headquartered in Palo Alto, California, none of the named Plaintiffs resided in California or worked for either the Defendant in California during the relevant class period. All four of the named Plaintiffs are African-American males over the age of 40. Mr. Enoh alleges that he is a resident of Maryland and worked for "HP" from 1996 until he was terminated on May 26, 2017. Although not alleged by the Plaintiffs, the Defendants provide evidence that Mr. Enoh worked for HPE in Maryland at all times after Hewlett-Packard reorganized in November 2015. Mr. Enoh's last held position was Field Services Engineer. As a result of his termination from employment, Mr. Enoh brings claims for race discrimination against the Defendants in violation of Title VII and Section 1981 (Counts 1 and 2) as well as intentional discrimination and disparate impact age discrimination claims pursuant to the ADEA (Counts 3 and 4). Mr. Jackson also alleges that he was terminated from his decades-long employment at HP as a result of age and race discrimination. Mr. Jackson is a resident of Atlanta, Georgia who worked for HP Inc. in Georgia from July 15, 1996 to July 18, 2016 with the last held position of District Manager. In the SAC, Mr. Jackson asserts race discrimination in violation of Title VII and Section 1981, as well as age discrimination in violation of the ADEA under both intentional discrimination and disparate impact theories. Plaintiff Mobley is a resident of Atlanta, Georgia who began working for HPE in November 2016 as a contract employee in Georgia. Mr. Mobley was part of a training class for Advanced Solutions Engineers made up of contract workers who were trying to gain permanent employment with HP. Mr. Mobley alleges that he applied for approximately seven open positions at HP, including the job he is currently performing. He alleges that each of his applications has been rejected despite his satisfactory performance rating. As it pertains to the SAC, Mr. Mobley asserts claims of race discrimination in hiring based on theories of intentional discrimination and disparate impact in violation of Title VII and Section 1981. Mr. Murrell is a resident of Atlanta, Georgia, and a current employee of HP Inc. in Georgia. Mr. Murrell began his career as a contract employee at Hewlett-Packard in or around 2000, and became a full-time employee in 2007. Mr. Murrell is currently a Field Service Support Representative. In the SAC, Mr. Murrell brings claims for race discrimination in promotion in violation of Title VII and Section 1981, based on theories of both intentional discrimination and disparate impact. Defendants HP Inc. and HPE now move to dismiss the lawsuit, or transfer it to the Northern District of Georgia where three of the named Plaintiffs lived and worked, on the grounds that venue in the Northern District of California is improper under 42 U.S.C. Section 2000e-5(f)(3). The Plaintiffs oppose, arguing that venue is proper in the District where the Defendants are headquartered based on comments made by former Hewlett-Packard President and CEO Meg Whitman. They argue that Ms. Whitman's comments, such as her issuance of an alleged directive to managers nationwide to make sure that they have a labor pyramid with lots of young people coming in right out of college and graduate school and early in their careers, evidence an overarching plan to discriminate against older workers at HP Inc. and HPE. In addition to the specific experiences of each named Plaintiff, the SAC includes a number of general allegations regarding HP Inc. and HPE's employment practices. The Plaintiffs allege that HP intentionally restricted and excluded African-Americans from higher paying and higher responsibility positions by preventing and/or discouraging them from seeking any such positions. With regard to their age discrimination claims, Plaintiffs allege that HP initiated a "Workforce Reduction Plan" or "WRP" that was aimed at making the company younger. In response to the filing of the Plaintiffs' operative SAC, Defendants filed a combined motion to (1) dismiss or transfer the case for lack of proper venue; (2) dismiss the Plaintiffs' age discrimination claims pursuant to the first-to-file rule in light of an earlier filed case Forsyth, et. al v. HP Inc., et al.; (3) dismiss all claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); and (4) strike the Plaintiffs' class allegations on the grounds that the class definitions are temporally overbroad and exceed the applicable statute of limitations. The Court held a hearing on the Defendants' combined motion on May 31, 2018. Judge Freeman addresses the Defendants' motion to dismiss or transfer for improper venue, and finds that it is dispositive. She finds that venue is improper in the Northern District of California under Title VII's venue provision allowing a plaintiff to bring an action where the unlawful employment practice is alleged to have been committed. The challenged employment decisions based on alleged age discrimination were made and implemented by the Plaintiffs' managers in Maryland and Georgia, and the effects of those actions were felt by Plaintiffs Enoh and Jackson in Maryland and Georgia, respectively. Ms. Whitman's comments explaining the Workforce Reduction Plan do not suffice to meet the Plaintiffs' burden to show that the underlying employment decisions were made in the District, or that the managers made the challenged decisions based on directives emanating from the District. At the May 31, 2018 hearing, Plaintiffs indicated that it is not clear where venue should be, and the Judge agrees that venue could be proper in several districts. Having considered the circumstances of the case and the positions of the parties, she finds that the interests of justice are best served by dismissing the Plaintiffs' claims without prejudice to re-filing in a district that satisfies the requirements of Section 2000e-5(f)(3). The Judge will not transfer the action but rather dismiss the Plaintiffs' claims without prejudice to filing the action in a district where venue is proper. Accordingly, she addresses additional deficiencies in the SAC that warrant dismissal of the Plaintiffs' claims with leave to amend, and directs the Plaintiffs to address such deficiencies prior to re-filing this case in another district. First, although the Plaintiffs allege that the Defendants became two separate entities in November 2015, the SAC fails to plead any facts specific to each entity. The Judge also finds that the Plaintiffs' disparate impact allegations against the Defendants are insufficient. The Plaintiffs also fail to explain how the adverse employment decisions complained of were the result of the Defendants' alleged "hazy" selection process. Finally, as to the Defendants' motion to strike the Plaintiffs' class definition for their race discrimination claims as overly broad, the Judge agrees with them. The Plaintiffs must amend their overbroad class definition for their race discrimination claims to exclude individuals who are barred by their failure to timely file a claim with the EEOC, or who suffered injuries outside of the four year statute of limitations period under Section 1981. Contrary to the Plaintiffs' argument that motions to strike class allegations at the pleading stage are generally disfavored, she finds that imposing time limitations on the class definition at the outset of the litigation is necessary to protect the Defendants from burdensome and unnecessary class discovery on barred claims and individuals. For the foregoing reasons, Judg Freeman granted the Defendants' motion to dismiss the action for improper venue; (ii) grante din part without prejudice the Defendants' remaining motion to dismiss and motion to strike in line with the discussion above and on the record at the May 31, 2018 hearing. The Judge dismissed the Plaintiffs' claims without prejudice to re-filing this action in a District where venue is proper pursuant to 42 U.S.C. Section 2000e-5(f)(3). The Clerk will close the file. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/JORKhI from Leagle.com. Enoh I Enoh, Plaintiff, represented by Jay Patrick Greene -- jay@jaygreenelawfirm.com -- The Greene Law Firm, Lee David Winston, Winston Cooks, LLC, pro hac vice & Roderick Twain Cooks, Winston Cooks, LLC, pro hac vice. Christopher Jackson & William Murrell, Plaintiffs, represented by Jay Patrick Greene, The Greene Law Firm & Roderick Twain Cooks, Winston Cooks, LLC, pro hac vice. Hewlett Packard Enterprise Company & HP Inc., Defendants, represented by Donald William Myers -- dwmyers@littler.com -- Littler Mendelson, PC, pro hac vice, Jeffrey J. Mann -- jmann@littler.com -- Littler Mendelson, P.C., Lindbergh Porter, Jr. -- lporter@littler.com -- Littler Mendelson, PC, Lisa A. Schreter -- lschreter@littler.com -- Littler Mendelson, P.C., pro hac vice, Paul Erich Bateman -- pbateman@littler.com -- Littler Mendelson, P.C., pro hac vice & Richard W. Black -- rblack@littler.com -- Littler Mendelson, P.C., pro hac vice. HSBC USA: "Nypl" Putative Class Action Still Pending in S.D.N.Y. ---------------------------------------------------------------- A putative class action filed on behalf of retail customers against HSBC entities, among other defendants, remain pending in the United States District Court for the Southern District of New York, according to HSBC USA Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The case is styled Nypl v. JPMorgan Chase, et al.; No. 1:15-CV-9300. No further updates were provided in the Company's SEC report. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: 2nd Cir. Affirms Dismissal of Allen Class Action ---------------------------------------------------------- HSBC USA Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the Court of Appeals for the Second Circuit has affirmed the U.S. district court's dismissal of the "Allen" action. The case is styled Allen v. Bank of America Corporation, et al.; No. 1:15-CV-4285). It is a putative class action filed on behalf of ERISA plan participants against HSBC entities, among other defendants, filed in the United States District Court for the Southern District of New York. The Second Circuit affirmed the dismissal in a July 2018 ruling. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: Bid to Nix Suit over Canadian Dealer Offered Rate Pending ------------------------------------------------------------------- HSBC USA Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that defendants have filed a motion to dismiss in the Canadian Dealer Offered Rate putative class action. The case is styled Fire & Police Pension Association of Colorado, et al. v. Bank of Montreal, et al. (Case No. 18-cv-00342). The motion to dismiss was filed in July 2018. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: Faces Vasquez Class Action over Ponzi Scheme ------------------------------------------------------ The putative class action styled Rigoberto Vasquez and Eva Garcia et al v. Hong Kong and Shanghai Banking Corporation Ltd., HSBC Bank USA, N.A., et al., is ongoing, according to HSBC USA Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. This putative class action was filed in the U.S. District Court for the Southern District of New York in March 2018 against HSBC Bank USA and the Hong Kong and Shanghai Bank Corporation and contains allegations similar to the Ramiro Giron, et al. v. Hong Kong and Shanghai Bank Corporation, Ltd., et al action. Plaintiffs purport to represent those that invested in a Ponzi scheme allegedly orchestrated by Phil Ming Xu and certain companies he allegedly controlled, such as WCM777. Hong Kong and Shanghai Banking Corporation is alleged to have accepted wire transfers from plaintiffs to WCM777 from investors in furtherance of the Ponzi scheme. HSBC Bank USA is alleged to have acted as Hong Kong and Shanghai Banking Corporation's correspondent bank for certain wire transfers to WCM777. The purported class period is from June 2013 to May 2014. Plaintiffs allege claims for Racketeer Influenced and Corrupt Organizations Act violations, aiding and abetting fraud, aiding and abetting breach of fiduciary duty, and aiding and abetting conversion. Plaintiffs seek compensatory damages in the amount of US$37 million plus punitive damages, interest and attorneys' fees and costs. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: FX Antitrust Suit Settlement Awaits Final Court OK ------------------------------------------------------------ HSBC USA Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that a consolidated action has been settled subject to final court approval. The case is captioned In re Foreign Exchange Benchmark Rates Antitrust Litigation; No. 13-CV-7789(LGS). No further updates were provided in the Company's SEC report. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: Still Defends Mortgage Securitization Trust Litigation ---------------------------------------------------------------- HSBC USA Inc. continues to face the Mortgage Securitization Trust Litigation, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. Since 2014, Plaintiff-Investors in 280 RMBS trusts have sued HSBC Bank USA, as mortgage securitization trustee, in a number of cases: BlackRock et al., Royal Park Investments SA/NV ("RPI"), Phoenix Light SF Limited, the National Credit Union Administration Board, as Liquidating Agent, Commerzbank AG, and Triaxx, IKB Bank AG, RMBS Recovery Holdings I LLC, et al., VRS Holdings 2 LLC and Reliance Standard Life Insurance Company. BlackRock's and RPI's motion for class certification has been denied, and the U.S. Court of Appeals for the Second Circuit denied a request for review of the decision. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HSBC USA: Still Faces Contant Putative Class Action in S.D.N.Y. --------------------------------------------------------------- A putative class action filed on behalf of "indirect purchasers" of Foreign Exchange against HSBC entities, among other defendants, remain pending in the United States District Court for the Southern District of New York, according to HSBC USA Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The case is styled Contant v. Bank of America Corporation, et al.; No. 1:17-CV-03139. Plaintiffs have filed a motion for leave to amend in response to the court's dismissal of the action in March 2018. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. HUSKY ENERGY: Faces Bruzek Class Suit in W.D. Wisconsin ------------------------------------------------------- A class action lawsuit has been filed against Husky Energy Inc. and Superior Refining Company LLC. The case is titled Jasen Bruzek, Individually and on behalf of all others similarly situated; Hope Koplin, Individually and on behalf of all others similarly situated; and Neil Miller, Individually and on behalf of all others similarly situated v. Husky Energy Inc. and Superior Refining Company LLC, Case No. 3:18-cv-00697 (W.D. Wisc., August 20, 2018). The Plaintiffs filed the case over alleged property damage. Husky Energy Inc. is one of Canada's largest integrated energy companies, headquartered in Calgary, Alberta. Superior Refining Company LLC is the owner and operator of the refinery located in Superior, Wisconsin, and does business under the licensed and registered trade name "Husky Energy."[BN] The Plaintiffs are represented by: John Gordon Rudd, Jr., Esq. Patricia A. Bloodgood, Esq. ZIMMERMAN REED, P.L.L.P. 1100 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 341-0400 Facsimile: (612) 341-0844 E-mail: gordon.rudd@zimmreed.com patricia.bloodgood@zimmreed.com JACOBY & MEYERS: Court Grants Bid to Amend N. Harding's Suit ------------------------------------------------------------ In the case, NANCY HARDING and JEFFREY HARDING, on Behalf Of Themselves and All Others Similarly Situated, Plaintiffs, v. JACOBY & MEYERS, LLP, FINKELSTEIN & PARTNERS, LLP, TOTAL TRIAL SOLUTIONS, LLC, ANDREW FINKELSTEIN and KENNETH OLIVER, Defendants. BARBARA J. SMALLS, on Behalf Of Herself and All Others Similarly Situated, Plaintiff, v. JACOBY & MEYERS, LLP, TOTAL TRIAL SOLUTIONS, LLC and ANDREW FINKELSTEIN, Defendants, Civil Action Nos. 14-5419 (JMV), 15-6559 (JMV) (D. N.J.), Magistrate Judge Mark Falk of the U.S. District Court for the District of New Jersey granted the Plaintiffs' motion for leave to amend the Complaint. This is a putative class action for breach of fiduciary duty and breach of contract. The matter arises from a dispute between Plaintiffs Nancy and Jeffrey Harding ("Plaintiffs") and their former lawyers, Finkelstein & Partners, LLP ("F&P"). The Plaintiffs retained F&P to separately represent them in two unrelated personal injury lawsuits. Each executed a retainer agreement which provided for, among other things, that F&P would receive a one-third contingency fee. Both of the Hardings' personal injury cases settled. F&P deducted from the settlement proceeds payments made to Defendant Total Trial Solutions, LLC ("TTS"), an alleged litigation support company that is owned, at least in part, by Defendant Andrew Finkelstein and Defendant Kenneth Oliver. The Plaintiffs commenced the putative class action on Aug. 28, 2014, asserting claims for, inter alia, breach of fiduciary duty and breach of contract. They allege that they were improperly charged for work performed by TTS. According to the Plaintiffs, the Defendants formed TTS to evade ethics rules forbidding attorneys from collecting more than one-third from a net recovery in a personal injury case, as well as rules proscribing charging clients more than the actual cost of the disbursements. The Plaintiffs claim that TTS's work should have been actually covered by F&P's contingency fee arrangement; instead the Plaintiffs were charged for TTS's work as a separate expense. Following dispositive motion practice, and prior to the Undersigned being assigned to the case, multiple scheduling orders were entered by two other Magistrate Judges initially case managing the action. Pursuant to one of these Orders entered July 10, 2015, the date by which motions to amend were to be filed was July 24, 2015. In September 2015, the parties raised various discovery disputes with the Court. On Oct. 15, 2015, the Court entered an Order providing that current expert and class certification motion dates were to be held in abeyance pending a decision on the discovery disputes. No further Orders regarding scheduling of the matter were entered. On March 9, 2016, the Plaintiffs filed a motion to consolidate the case with Smalls v. Jacoby and Meyers, LLP et al., 15-6559 (JMV). On July 25, 2016, the Court denied the motion and granted the Plaintiffs leave to file their class certification motion by Aug. 30, 2016. Although the cases were nearly identical, consolidation was denied primarily because the cases were at different procedural stages. The Plaintiffs filed a motion for class certification which District Judge Vazquez denied, without prejudice, on Oct. 30, 2017. On Dec. 7, 2017, the Plaintiff moved again to consolidate the Smalls and Harding cases. Given the passage of time and other developments, the reason for denying consolidation no longer existed. On June 29, 2018, the Smalls case was consolidated into the Harding case. According to the Plaintiff, while the motion for class certification was pending in the case, deposition testimony taken in Smalls, including the deposition of Mr. Finkelstein, TTS's COO, and F&P's Chief Financial Officer, revealed that TTS was the alter-ego of F&P. At a conference before the Court in Smalls on May 18, 2017, the counsel advised of its intention to seek leave to amend to add allegations that TTS is the alter-ego of Mr. Finkelstein and/or Jacoby & Meyers, LLP and is used by them to circumvent ethics rules prohibiting a law firm from charging a profit on disbursements expended by a law firm on a client's behalf. The Plaintiffs in Smalls filed an application to amend. The Court granted the Plaintiffs' application on Nov. 16, 2017, and the Smalls Plaintiffs filed an Amended Complaint on Nov. 27, 2017. The Plaintiffs now seek leave to amend their Complaint in the now consolidated Harding case to assert nearly identical allegations to those asserted in Smalls that TTS is the alter-ego of Mr. Finkelstein and F&P. The Defendants do not oppose the motion under Federal Rule of Civil Procedure 15.4. Instead, they argue that the Plaintiffs' motion is out of time and that the Plaintiffs have failed to make a showing of good cause to permit moving after the date to amend provided in the July 10, 2015 Scheduling Order. More specifically, they contend that the Plaintiffs' deadline to seek leave to amend expired on July 24, 2015, and that the Plaintiffs have not demonstrated good cause as required by Federal Rule of Civil Procedure 16 to warrant relief from the Scheduling Order. Plaintiffs argue that they were diligent through out the course of the litigation, and reasonably moved for leave to amend after facts were learned in Smalls revealing that TTS shares an alter-ego relationship with Mr. Finkelstein, Jacoby & Meyers, and F&P. The Plaintiffs contend that their efforts were delayed by the Defendants' scheduling their witnesses for deposition near the end of discovery, the then pending motion for class certification, as well as complying with the Court's procedure for seeking leave. The Plaintiffs further argue that the Defendants unfairly focus on the outdated scheduling order deadline while completely ignoring the evolving procedural history and circumstances in this case and in Smalls. Magistrate Judge Falk finds that finds that the Plaintiffs have made a sufficient showing to satisfy the good cause standard of Rule 16 to permit leave to amend the Complaint now. The Plaintiffs had not discovered the facts that support the proposed allegations of veil-piercing until long after the July 25, 2015 deadline to amend contained in the Scheduling Order. Therefore, it would not have been possible for them to have complied with the deadline in the Scheduling Order. While he recognizes that much time has passed since the old deadline to amend expired, the passage of time, by itself, the Magistrate Judge finds that it does not preclude a finding of good cause. Given the totality of the circumstances, and in particular the Plaintiffs' diligence in moving to amend once they learned of the factual basis underlying their veil-piercing claim, the Magistrate Judge finds that the Plaintiffs have shown good cause to grant them leave to amend their Complaint. Accordingly, he granted the Plaintiffs' motion for leave to amend. A full-text copy of the Court's July 11, 2018 Opinion is available at https://is.gd/n7fkW5 from Leagle.com. NANCY HARDING & JEFFREY HARDING, Plaintiffs, represented by JOSEPH R. SANTOLI & OLIMPIO LEE SQUITIERI, SQUITIERI & FEARON, LLP. BARBARA J. SMALLS, Plaintiff Consolidated, represented by JOSEPH R. SANTOLI. JACOBY & MEYERS, LLP, FINKELSTEIN & PARTNERS, LLP, TOTAL TRIAL SOLUTIONS, LLC, ANDREW FINKELSTEIN & KENNETH OLIVER, Defendants, represented by A. RICHARD ROSS, CARELLA, BYRNE, CECCHI, OLSTEIN, JAMES E. CECCHI -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. & LINDSEY H. TAYLOR -- LTaylor@carellabyrne.com -- CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO. KAG WEST: P. Malone's Suit Remanded to State Court -------------------------------------------------- In the cases, KAG WEST, LLC, a California limited liability company; THE KENAN ADVANTAGE GROUP, INC., a Delaware corporation, Petitioners, v. PATRICK MALONE, an individual, Respondent. PATRICK MALONE, an individual, on behalf of himself, all others similarly situated, and the general public, Plaintiff, v. KAG WEST, LLC, a California limited liability company, Defendant, Case Nos. 4:15-cv-03827-YGR, 4:15-cv-04262-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the District of California granted the Parties' Joint Stipulation to Remand Action to Alameda County Superior Court. The action of KAG West, LLC, et al. v. Patrick Malone, Northern District of California Case No. 4:15-cv-03827-YGR was initiated by the Defendants-Petitioners on Aug. 21, 2015 in the form of a Petition to Compel Arbitration against Plaintiff-Respondent Malone for the various wage and hour claims he had asserted in correspondence dated July 22, 2015 ("District Court Action"); The alleged putative wage and hour class action and Private Attorney General Act ("PAGA") action of Patrick Malone v. KAG West, LLC, Alameda County Superior Court Case No. RG15784137 was filed by the Plaintiff-Respondent in California Superior Court on Sept. 1, 2015 ("California Superior Court Action"); The Defendants-Petitioners removed the California Superior Court Action to the Northern District of California on Sept. 18, 2015. District Court Judge Thelton E. Henderson (Ret.) granted the Defendants-Petitioners' Petition to Compel Arbitration in the District Court Action on Nov. 3, 2015, correspondingly stayed Plaintiff Malone's PAGA representative claims and consolidated the District Court Action and the Removed California Superior Court Action. The Plaintiff and Respondent Malone's putative class claims were subsequently dismissed by a JAMS arbitrator. In addition to the consolidated action in federal court for claims brought forth by Mr. Malone, a representative PAGA suit initiated by an individual named James Souza remains pending in Alameda County Superior Court under the title of James Souza v. KAG West, LLC, Case No. RG16814354. Mr. Souza is represented by the same counsel of record in the action. The Souza v. KAG West action, as a PAGA only action, could not be removed to the Northern District of California from Alameda County Superior Court as currently pled and remains pending there. The Parties in the consolidated action, along with Plaintiff Souza in James Souza v. KAG West, LLC, Case No. RG16814354, have reached a global settlement of their wage and hour claims against the Defendants-Petitioners that is subject to court review and approval. This global settlement, if approved, would resolve all claims alleged in the consolidated action, in Malone's individual action pending in arbitration before JAMS, and in the Alameda County Superior Court Souza PAGA action. The Parties believe it would be most efficient to have a single court consider their global settlement. It is in the interests of judicial economy to have a single court consider the global settlement reached by the Parties. The present consolidated federal court action could be remanded from the Northern District of California back to state court based on the original filing of the Malone v. KAG West California Superior Court Action in Alameda County Superior Court. Therefore, the Parties agreed and Judge Rogers granted that for the sole purpose of facilitating state court review and potential approval of the Parties' global settlement of all disputed claims between the Parties, the consolidated action will be remanded back to Alameda County Superior Court under the docket Patrick Malone v. KAG West, LLC, Case No. RG15784137. The compliance hearing set for July 20, 2018 is vacated. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/XgJ6CI from Leagle.com. Patrick Malone, Plaintiff, represented by Michael Hagop Boyamian -- michael@boyamianlaw.com -- Boyamian Law, Inc., Michael Scott Morrison -- mmorrison@akgllp.com -- Alexander Krakow & Glick LLP, Thomas Walker Falvey -- thomaswfalvey@gmail.com -- Law Offices of Thomas W. Falvey & Armand Raffi Kizirian -- armand@kizirianlaw.com -- Boyamian Law, Inc. KAG WEST, LLC, Defendant, represented by Brian Lee Johnsrud, Esq. -- bjohnsrud@curleyhessinger.com -- Christopher W. Loweth, Esq. -- cloweth@curleyhessinger.com -- Patrick Michael Sherman, Esq. -- psherman@curleyhessinger.com -- CURLEY, HESSINGER & JOHNSRUD LLP. KRG JCS: Faces Blancher's Wage-and-Hour Suit -------------------------------------------- JAMES BLANCHER, an individual, the Plaintiff, v. KRG JCS, LLC, a limited liability company; FUN EATS AND DRINKS, LLC, limited liability company; KELLY COMPANIES OF SOUTHERN CALIFORNIA, LLC; LARRY KECK, an individual; and DOES 1-100, inclusive, the Defendants, Case No. RG18916321 (Cal. Super. Ct., Aug. 10, 2018), alleges that during Blancher's employment, he was not: -- provided with a 30-minute meal period for every five hours worked. -- relieved of all duty to take such a meal period and the high demands of the job otherwise prevented him from taking one. -- paid with an hour of pay at his regular rate of compensation for every meal period that was unlawfully denied him. In addition, the wage statements issued to Blancher were inaccurate and incomplete: -- they did not show the inclusive dates of the period for which Blancher was paid; they showed only the "period ending" date. -- they did not show the total hours worked by Blancher. -- they did not reflect the missed meal periods and the premium pay thus due and owing, and thus did not accurately show the gross and net wages earned.[BN] Attorneys for Plaintiff James Blancher and the Putative Class: Robert J. Wasserman, Esq. William J. Gorham, Esq. Nicholas J. Scardigli, Esq. John P. Briscoe, Esq. MAYALL HURLEY, P.C. 112453 Grand Canal Boulevard Stockton, CA 95207-8253 Telephone: (209) 477 3833 Facsimile: (209) 473 4818 E-mail: nvasserman@mayallaw.com wgorham@mayallaw.com nscardigli@mayallaw.com briscoe@mayallaw.com MAGICJACK VOCALTEC: Bid to Drop Freedman Lawsuit Still Pending -------------------------------------------------------------- magicJack VocalTec Ltd. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that no decision has yet been reached on the motion to dismiss the putative class action lawsuit captioned Freedman v. magicJack VocalTec Ltd. et al. On August 11, 2017, a putative class action lawsuit titled Freedman v. magicJack VocalTec Ltd. et al., Case 9-17-cv-80940, was filed against the Company and its Board of Directors in the United States District Court for the Southern District of Florida. The complaint alleged claims against the Company and the current members of its Board of Directors as well as two former members for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, arising from proxy statements issued in connection with the April 19, 2017 shareholders meeting and the July 31, 2017 shareholders meeting that allegedly misrepresented material facts concerning the "true value" of Broadsmart Global, Inc. and its future prospects in order that the individual defendants (the Board members) could entrench themselves on the Board and extract unwarranted compensation from the Company in connection with their attempt to sell the Company. In January 2018, the plaintiff filed an Amended Complaint. On February 16, 2018, the Company and all of the individual defendants filed a motion to dismiss the Amended Complaint. The plaintiff filed his opposition to the motion to dismiss on April 2, 2018, and defendants' reply was filed on April 19, 2018. No decision has yet been reached on the motion. magicJack said, "The Company cannot estimate the amount of potential liability, if any, that could arise from this matter." magicJack VocalTec Ltd. and its subsidiaries is a cloud communications leader that is the inventor of the magicJack devices and other magicJack products and services. MAGICJACK VOCALTEC: Martinez & Lopez Sue over Robocalls ------------------------------------------------------- magicJack VocalTec Ltd. is facing putative class action lawsuit related to alleged violations of the Telephone Consumer Protection Act, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On July 12, 2018, plaintiffs Ramon G. Martinez and Moses Lopez filed a putative class action Complaint against magicJack LP and YMAX Holdings Corporation alleging violations of the Telephone Consumer Protection Act in connection with calls placed by an autodialer using a pre-recorded voice without the requisite consent. The case is pending in the U.S. District Court for the Southern District of Florida as case number 9:18-cv-80917-RLR. The Complaint is brought on behalf of a nationwide class, and the putative class representative plaintiffs allege that the damages could exceed US$5 million. magicJack said, "The Company disputes the plaintiffs' claims and intends to vigorously defend the action. The Company cannot estimate the amount of potential liability, if any, that could arise from this matter." magicJack VocalTec Ltd. and its subsidiaries is a cloud communications leader that is the inventor of the magicJack devices and other magicJack products and services. MARATHON PETROLEUM: Defends 6 Class Suits over Andeavor Merger -------------------------------------------------------------- Marathon Petroleum Corporation is facing six putative class action lawsuits related to the company's pending merger with Andeavor, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On April 29, 2018, the Company ("MPC") and Andeavor ("ANDV") entered into a definitive merger agreement under which MPC has agreed to acquire all of ANDV's outstanding shares. Between June 20 and July 11, 2018, six putative class actions were filed against some or all of Andeavor, the directors of Andeavor, and MPC Mahi Inc. ("Merger Sub 1") and Mahi LLC ("Merger Sub 2" and, together with MPC and Merger Sub 1, the "MPC Defendants"), relating to the merger. Two complaints, Malka Raul v. Andeavor, et al., and Stephen Bushansky v. Andeavor, et al., were filed in the U.S. District Court for the Western District of Texas. Four complaints, captioned The Vladimir Gusinsky Rev. Trust v. Andeavor, et al., Lawrence Zucker v. Andeavor, et al., Mel Gross v. Andeavor, et al., and Hudson v. Andeavor, et al. were filed in the U.S. District Court for the District of Delaware. The complaints generally allege that Andeavor, the directors of Andeavor and the MPC Defendants disseminated a false or misleading registration statement regarding the proposed merger in violation of Section 14(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. Specifically, the complaints allege that the registration statement filed by MPC misstated or omitted material information regarding the parties' financial projections and the analyses performed by Andeavor's and MPC's respective financial advisors, and that disclosure of material information is necessary in light of preclusive deal protection provisions in the merger agreement, the financial interests of Andeavor's officers and directors in completing the deal, and the financial interests of Andeavor's and MPC's respective financial advisors. The complaints further allege that the directors of Andeavor and/or the MPC Defendants are liable for these violations as "controlling persons" of Andeavor under Section 20(a) of the Exchange Act. The complaints seek injunctive relief, including to enjoin and/or rescind the merger, damages in the event the merger is consummated, and an award of attorneys' fees, in addition to other relief. The Company said, "Additional lawsuits arising out of the proposed merger may be filed in the future. We believe that the lawsuits are without merit and intend to defend vigorously against them and any other lawsuits challenging the merger. Therefore, at this time, we do not believe the ultimate resolution of these lawsuits will have a material adverse effect." Marathon Petroleum Corporation is a large independent refining and marketing company headquartered in Findlay, Ohio. MPLX LP is a publicly traded midstream logistics master limited partnership (MLP) also headquartered in Findlay, Ohio whose general partner is Marathon Petroleum Corporation. MASSACHUSETTS: Court Allows A. Burnham to Proceed in Forma Pauperis ------------------------------------------------------------------- In the case, ARTHUR BURNHAM, on behalf of 45 Block-2 Prisoners, "class action," Plaintiff, v. DOUGLAS W. DEMOURA, et al., Defendants, C.A. No. 18-11464-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts (1) granted the Plaintiff's motion for leave to proceed in forma pauperis; (2) ordered that summonses issue; and (3) denied the Plaintiff's motion for class certification. On July 13, 2018, pro se Plaintiff Burnham, who is confined at MCI Cedar Junction, filed a civil rights complaint under 42 U.S.C. Section 1983 and state law in which he complains that he and the other prisoners at MCI Cedar Junction are being subjected to cruel and unusual punishment, in violation of the Eighth Amendment, because temperatures in their cells have recently reached 120 degrees and prison officials refuse to turn on exhaust fans to abate the situation. According to Burnham, beginning on June 30, 2018, he and other prisoners complained to prison officials about the excessive heat in their cells and asked that exhaust fans be turned on to reduce the temperature. Correction officers allegedly responded that they were not allowed to do so. Burnham claims that multiple prisoners experienced heat stroke, fainting, and other conditions because of the cell temperatures, and that these inmates required medical attention. Burnham reports that, beginning on June 30, 2018, he made several attempts to obtain a grievance form to formally complain that the exhaust fans were not being employed, but that prison employees refused to provide him with the same. He states that he told prison employees that he was preparing to file a class-action lawsuit concerning the temperature in the prison and showed them a cover sheet for the same. Burnham represents that, since July 4, 2018, the exhaust fans have been periodically turned on for all the blocks at MCI Cedar Junction except for the Block 2, where Burnham is housed. He asserts that his block was singled out in retaliation for attempting to file grievances about the heat and stating that he would file a class action. The Plaintiff alleges that the action has placed him at grave risk of reprisal from dangerous now agitated prisoners. Burnham purportedly brings the action on behalf of himself and the other prisoners of Block 2. He has filed a separate motion for certification of a plaintiff class, with himself as the representative party. Burnham argues in his motion that class certification is in the interest of justice because, absent class certification, the case will become moot when he is released from prison on Aug. 23, 2018. Upon review of Burnham's motion for leave to proceed in forma pauperis, Judge Burroughs finds that he is without income or assets to prepay the filing fee. Accordingly, the motion is granted. Because it appears that Burnham has been without income or assets for the six months preceding the filing of the action, no initial partial filing fee is assessed. Even if the proposed class of Block 2 prisoners met all the class certification requirements of Rule 23(a) of the Federal Rules of Civil Procedure, the Judge holds that the absence of the counsel prevents the Court from certifying a class. Section 1654 of Title 28 of the United States Code provides, in pertinent part, that in all courts of the United States the parties may plead and conduct their own cases personally or by counsel. Accordingly, Burroughs granted the motion for leave to proceed in forma pauperis. No initial partial filing fee is assessed. The entire $350 filing fee will be collected in accordance with 28 U.S.C. Section 1915(b)(2). The Judge denied without prejudice the motion for class certification. The Clerk will issue summonses as to both the Defendants. The Plaintiff is responsible for serving the summonses, complaint, and this order on the Defendants in compliance with Rule 4 of the Federal Rules of Civil Procedure and Local Rule 4.1. Service must be completed within 90 days of the date of the Order. Failure to comply with this deadline may result in dismissal of the action. Because the Plaintiff is proceeding in forma pauperis, he may elect to have service completed by the United States Marshals Service ("USMS"). If he chooses to have service completed by the USMS, he will provide the agency with all papers for service on the defendants and a completed USM-285 form for each party to be served. The USMS will complete service as directed by the Plaintiff with all costs of service to be advanced by the United States. The Clerk will provide the Plaintiff with forms and instructions for service. The Clerk will immediately provide counsel for the Massachusetts Department of Correction with electronic copies of the complaint and the order. The Defendants shall, no later than July 23, 2018 at 1:00 p.m., file with the Court a status report concerning the use of exhaust fans or other air-cooling methods used in Block 2, including the circumstances which would trigger the use of these measures and the maximum inside temperature experienced by Block 2 prisoners in the last 30 days, with and without the use of exhaust fans or other air-cooling methods. If Burnham is no longer housed in Block 2, the status report will also include the same information about the block in which Burnham's cell is located. The Defendants' submission of the status report will not constitute a waiver of service of summons. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/UrcRdm from Leagle.com. Arthur Burnham, On behalf of 500 prisoners class action, Plaintiff, pro se. MDL 1720: HSBC Reaches Settlement in Credit Card Lawsuit -------------------------------------------------------- HSBC USA Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the defendants, including the HSBC entities, have reached an agreement in principle with counsel for the putative Federal Rule of Civil Procedure 23(b)(3) opt-out class to resolve all claims as filed in a third consolidated amended class action complaint in In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL 1720, E.D.N.Y. The settlement, reached in June 2018, is subject to documentation of final settlement terms and court approval. If the settlement is finalized and approved, certain HSBC entities are responsible for a pro rata portion of the settlement amount, for which they are reserved, pursuant to the settlement and judgment sharing agreements entered into by the defendants. HSBC USA Inc., incorporated under the laws of Maryland, is a New York State based bank holding company and a wholly-owned subsidiary of HSBC North America Holdings Inc., which is an indirect wholly-owned subsidiary of HSBC Holdings plc. MDL 2084: Court Denies Class Status in AndroGel Antitrust Case -------------------------------------------------------------- AbbVie Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018, that a court has denied the purported class members' motion for class certification in the consolidated trials under In re: AndroGel Antitrust Litigation, MDL No. 2084. Several pending lawsuits filed against Unimed Pharmaceuticals, Inc., Solvay Pharmaceuticals, Inc. (a company Abbott acquired in February 2010 and now known as AbbVie Products LLC) and others are consolidated for pre-trial purposes in the United States District Court for the Northern District of Georgia under the Multi-District Litigation (MDL) Rules as In re: AndroGel Antitrust Litigation, MDL No. 2084. These cases, brought by private plaintiffs and the Federal Trade Commission (FTC), generally allege Solvay's patent litigation involving AndroGel was sham litigation and the 2006 patent litigation settlement agreements and related agreements with three generic companies violate federal antitrust laws. Plaintiffs generally seek monetary damages and/or injunctive relief and attorneys' fees. These cases include: (a) four individual plaintiff lawsuits; (b) three purported class actions; and (c) Federal Trade Commission v. Actavis, Inc. et al. Following the district court's dismissal of all plaintiffs' claims, appellate proceedings led to the reinstatement of the claims regarding the patent litigation settlements, which are proceeding in the district court. In July 2018, the court denied the purported class members' motion for class certification. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). MDL 2460: AbbVie Still Faces 2 Consolidated Suits on Niaspan Deal ----------------------------------------------------------------- AbbVie Inc. still defends lawsuits, including two consolidated purported class actions, related to a 2005 patent litigation settlement involving Niaspan, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 7, 2018, for the quarterly period ended June 30, 2018. Lawsuits are pending against AbbVie and others generally alleging that the 2005 patent litigation settlement involving Niaspan entered into between Kos Pharmaceuticals, Inc. (a company acquired by Abbott in 2006 and presently a subsidiary of AbbVie) and a generic company violates federal and state antitrust laws and state unfair and deceptive trade practices and unjust enrichment laws. Plaintiffs generally seek monetary damages and/or injunctive relief and attorneys' fees. The lawsuits consist of four individual plaintiff lawsuits and two consolidated purported class actions: one brought by three named direct purchasers of Niaspan and the other brought by ten named end-payer purchasers of Niaspan. The cases are consolidated for pre-trial proceedings in the United States District Court for the Eastern District of Pennsylvania under the MDL Rules as In re: Niaspan Antitrust Litigation, MDL No. 2460. In October 2016, the Orange County, California District Attorney's Office filed a lawsuit on behalf of the State of California regarding the Niaspan patent litigation settlement in Orange County Superior Court, asserting a claim under the unfair competition provision of the California Business and Professions Code seeking injunctive relief, restitution, civil penalties and attorneys' fees. In May 2018, the California Court of Appeals ruled that the District Attorney's Office may not bring monetary claims beyond the scope of Orange County. AbbVie is a global, research-based biopharmaceutical company formed in 2013 following separation from Abbott Laboratories (Abbott). MONARCH RECOVERY: Faces Gould Suit Over FDCPA Violation ------------------------------------------------------- A class action lawsuit has been filed against Monarch Recovery Management Inc. and John Does pursuant the Fair Debt Collection Practices Act. The case is titled as Donna Gould, individually and on behalf of all others similarly situated v. Monarch Recovery Management Inc., a Pennsylvania Corporation and John Does, Case No. 1:18-cv-01282-WCG (E.D. Wisc., August 20, 2018), Monarch Recovery Management, Inc., an accounts receivable management company, provides financial recovery solutions. The Company offers collection and payment processing services in various asset classes and industry sectors, including auto deficiencies, commercial paper, credit union accounts, government receivables, student loan receivables, bank credit card receivables, retail credit card receivables, sub-prime credit card receivables and debt buyer paper.[BN] The Plaintiff is represented by: Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Ave., 2nd Floor Springfield, NJ 07081 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: philip@sternthomasson.com andrew@sternthomasson.com MONEYGRAM PAYMENT: Faces Diaz ADA Suit in New York -------------------------------------------------- A class action lawsuit has been filed against Moneygram Payment Systems, Inc. The case is captioned as Edwin Diaz, on behalf of himself and all others similarly situated v. Moneygram Payment Systems, Inc., Case No. 1:18-cv-07585 (S.D.N.Y., August 20, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. MoneyGram Payment Systems, Inc., provides money transfer and remittance services. The Company also provides express bill payment services through its agent locations in the United States. The Company was founded in 1988 and is based in Lakewood, Colorado. MoneyGram operates as a subsidiary of Moneygram International Inc.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (917) 299-6612 Facsimile: (929) 575-4195 E-mail: joseph@cml.legal MONITRONICS INT'L: Telemarketing Suit Settlement Awaits Final OK ---------------------------------------------------------------- Monitronics International, Inc. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the agreement to settle the consolidated putative class actions related to telemarketing calls remains subject to court approval and the court's entry of a final order dismissing the actions. The Company was named as a defendant in multiple putative class actions consolidated in U.S. District Court (Northern District of West Virginia) on behalf of purported class(es) of persons who claim to have received telemarketing calls in violation of various state and federal laws. The actions were brought by plaintiffs seeking monetary damages on behalf of all plaintiffs who received telemarketing calls made by a Brinks Home Security Authorized Dealer, or any Authorized Dealer's lead generator or sub-dealer. In the second quarter of 2017, the Company and the plaintiffs agreed to settle this litigation for US$28,000,000 ("the Settlement Amount"). The Company is actively seeking to recover the Settlement Amount under its insurance policies. The settlement agreement remains subject to court approval and the court's entry of a final order dismissing the actions. In the third quarter of 2017, the Company paid US$5,000,000 of the Settlement Amount pursuant to the settlement agreement with the plaintiffs. Monitronics International, Inc., provides security alarm monitoring and related services to residential and business subscribers throughout the U.S. and parts of Canada. The Company is based in Farmers Branch, Texas. NANTKWEST INC: Still Defends Sudunagunta Securities Class Action ---------------------------------------------------------------- Nantkwest, Inc. continues to face a putative securities class action complaint captioned Sudunagunta v. NantKwest, Inc., et al., No. 16-cv-01947, according to the Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. In March 2016, the complaint was filed in federal district court for the Central District of California related to the Company's restatement of certain interim financial statements for the periods ended June 30, 2015 and September 30, 2015. A number of similar putative class actions were filed in federal and state court in California. The actions originally filed in state court were removed to federal court, and the various related actions have been consolidated. Plaintiffs assert causes of action for alleged violations of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. Plaintiffs seek unspecified damages, costs and attorneys' fees, and equitable/injunctive or other relief on behalf of putative classes of persons who purchased or acquired the Company's securities during various time periods from July 28, 2015 through March 11, 2016. In September 2017, the court denied defendants' motion to dismiss the third amended consolidated complaint. A trial date has been set for August 2019. The Company said, "Management intends to vigorously defend these proceedings. At this time, the Company cannot predict how the Court will rule on the merits of the claims and/or the scope of the potential loss in the event of an adverse outcome. Therefore, based on the information available at present, the Company cannot reasonably estimate a range of loss for this action. Should the Company ultimately be found liable, the liability could have a material adverse effect on the Company's results of operations for the period or periods in which it is incurred." NantKwest is a pioneering clinical-stage immunotherapy company focused on harnessing the power of the innate immune system by using the natural killer cell to treat cancer, infectious diseases and inflammatory diseases. NASSAU COUNTY, NY: Court Won't Dismiss S. Lopez's Strip Search Suit ------------------------------------------------------------------- The United States District Court for the Eastern District of New York denied Defendant's Motion to Dismiss the case captioned STEPHEN STUART LOPEZ, Plaintiff, v. NASSAU COUNTY SHERIFFS DEPARTMENT, and NASSAU COUNTY CORRECTIONAL CENTER, Defendants, No. 17-CV-3722 (DRH) (GRB) (E.D.N.Y.). This action arises from a related matter before this Court, In re Nassau County Strip Search Case,99-CV-02844 (DRH) (Strip Search Class Action) of which the plaintiff was a class member. The plaintiffs in the Strip Search Class Action had been arrested on misdemeanor charges, unrelated to weapons or drugs and were thereafter strip searched without individualized suspicion, at the Nassau County Correctional Center (NCCC) in accordance with a blanket policy in effect at NCCC prior to 1999. The Defendants argue that the plaintiff's claims are time-barred because the already tolled statute of limitations has expired. The Plaintiff concedes that his Complaint was filed past the expiration of the statute of limitations but alleges that he was not at fault. The statute of limitations for claims brought under Section 1983 is governed by state law and New York applies a statute of limitations period of three years to such claims. However, in the instant case, given the equitable toll imposed in the Strip Search litigation, the plaintiff's claim for special damages expired on December 13, 2016. Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances. However, the doctrine is reserved for rare and exceptional circumstances. Thus, the Second Circuit has applied the doctrine as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights, or has asserted his rights in the wrong forum. The Plaintiff concedes, that he failed to file a timely claim for special damages. Under the tolling period for in the Final Judgment plaintiff had until December 13, 2016 to initiate a lawsuit claiming special damages. This information was specified in the Claims Notice that was mailed to all class members. The Plaintiff filed the instant Complaint on June 1, 2017, 5-1/2 months after the expiration of the tolled statute of limitations. In his opposition to the defendants' motion for dismissal, the plaintiff asserts that he did not receive the Claims Notice until Mach 18, 2017, three months after the December 13, 2016 cutoff date. The Plaintiff contends that one of the reasons for his late receipt of the Claims Notice was his homelessness condition; he did not have a permanent address as he was wandering around from one homeless shelter to another. Although not labeled as such, it appears that this pro se plaintiff seeks equitable tolling for the statute of limitations period. As a pro se plaintiff's pleadings must be interpreted to raise the strongest arguments that they suggest, the plaintiff should be given the opportunity to show that extraordinary circumstances prevented him from filing his claim on time. Accordingly, the Court denies the defendants' motion to dismiss without prejudice. A full-text copy of the District Court's July 5, 2018 Memorandum and Order is available at https://tinyurl.com/yapt56rd from Leagle.com. Stephen Stuart Lopez, Plaintiff, pro se. Nassau County Sheriffs Department & Nassau County Correctional Center, Defendants, represented by Liora M. Ben-Sorek , Nassau County Attorney's Office. NEW YORK: Ct. Approves Settlement in Public-School Bullying Suit ---------------------------------------------------------------- The United States District Court for the Eastern District of New York granted Plaintiffs' Motion for Final Approval of Settlement Agreement in the lawsuit filed by public-school students. Twenty-three New York City (NYC) public-school students (Plaintiffs) challenge the alleged failure of the NYC Department of Education (DOE) to prevent or adequately redress bullying in public schools. The Plaintiffs allege that, although the DOE has issued regulations intended to address violence and other forms of bullying in schools including both student-on-student and staff-on-student abuse, schools routinely fail to comply with these regulations. The Plaintiffs contend that this alleged failure violates the procedural due process, substantive due process, and equal protection guarantees of the Fourteenth Amendment, as well as the Individuals with Disabilities in Education Act (IDEA), Article XI of the New York State Constitution, and Section 7803 of the New York Civil Practice Law and Rules. Proposed Settlement Agreement Filing, Documenting, and Tracking Complaints To improve the ability of parents to file and track their complaints, the DOE agrees to propose revisions to Chancellor's Regulation A-832. These revisions would introduce an electronic reporting system to allow parents to report bullying electronically and to learn when their complaints have been substantiated or resolved. This system will be available in multiple languages, generate a confirmation of receipt and a tracking number for each complaint, and provide parents with a Notice of Determination once the investigation is resolved. Investigating Complaints Under the terms of the settlement, the DOE will direct principals to complete investigations of all bullying complaints within ten school days, except when there are Extenuating Circumstances which DOE staff must document. Additionally, principals will be required to document more investigation-related information than before; for example, they must obtain written statements from the alleged victim, accused offender, and any witnesses where feasible. Remediating Substantiated Cases The settlement requires principals to provide support3 to victims of Material Incidents and to develop, implement, and document individualized support plans (ISPs) for victims of multiple Material Incidents in the same school year. Substantive Fairness: Fairness, Reasonableness, and Adequacy To grant final approval of a proposed settlement, the court must find that its terms are fair, reasonable, and adequate. In City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir. 1974), the Second Circuit developed nine factors to consider in making this determination: Complexity, Expense, and Likely Duration of the Litigation The SAC raises complex factual and legal issues, including (but not limited to) the DOE's alleged systemic failure to prevent and redress bullying and whether unmitigated acts of bullying and other forms of abuse substantially interfere with Plaintiffs' right to a public education. The Plaintiffs claim that if this case went to trial, they would retain experts in education policy and child psychology, which could result in an expensive battle of the experts at trial. Moreover, litigation would only further delay the relief to class members in a suit that has now been pending for over two years. Accordingly, this factor weighs in favor of approving the settlement. Reaction of the Class to the Settlement If only a small number of objections are received, that fact can be viewed as indicative of the adequacy of the settlement. The court only received one objection from a class member. Such a small number militates in favor of approval. Stage of Proceedings and Amount of Discovery Completed While the parties did not engage in formal discovery in this case, Plaintiffs' counsel represent that they nonetheless conducted a thorough investigation into their clients' claims. They met with many class members, reviewed numerous relevant documents, and consulted with a child psychologist regarding the impact of unresolved bullying on children. The SAC also contains detailed allegations that could only have been the product of a searching inquiry. Based on this record, the court finds that counsel had sufficient information to act intelligently on behalf of the class and that this factor weighs in favor of approval. Risks of Class Prevailing (Establishing Liability, Establishing Damages, Maintaining the Class through Trial The court considers together the fourth, fifth, and sixth factors risks of establishing liability, risks of establishing damages, and risks of maintaining the class action through trial as they all relate to the risks Plaintiffs would face in taking this to trial. The Plaintiffs' chances of establishing liability are difficult to assess. This case presents complex factual and legal issues, including the DOE's alleged systemic failure to prevent and redress bullying and whether unmitigated acts of bullying and other forms of abuse substantially interfere with the Plaintiffs' right to a public education. In contrast, the proposed settlement can be implemented before the next school year, thus providing relief to the Class almost immediately. The Plaintiffs contend that the remedies available at the end of litigation might not be much better than what they would receive from this settlement. Accordingly, this factor militates in favor of approval. Range of Reasonableness of the Settlement in Light of the Best Possible Recovery and Attendant Risks of Litigation There are some discrepancies between the relief the Plaintiffs sought in their SAC and what is provided for by the proposed settlement agreement. For example, the SAC includes requests that the DOE review all previous, unresolved reports of school violence by class members and that the court appoint an independent monitor to audit the DOE's progress. Overall, though, the relief in the proposed settlement is comparable to what the Plaintiffs sought in the SAC. Some of the reforms contemplated in the SAC are very similar to ones included in the proposed settlement. For example, the SAC included a request that the DOE regularly review and update training programs for teachers and staff' regarding anti-bullying techniques. Similarly, the proposed settlement mandates that the DOE will require schools to include anti-bullying techniques in its annual training sessions for teachers and staff. Thus, this factor weighs in favor of approving the settlement. Accordingly, the court grants the Plaintiffs' Motion for Final Approval of the Settlement. The case is in the case captioned JOHN DOE #1, a minor by his parent and natural guardian PARENT #1; JOHN DOE #2, a minor by his parent and natural guardian PARENT #2; JOHN DOE #3, a minor by his parent and natural guardian PARENT #3; JANE DOE #4, a minor by her parent and natural guardian PARENT #4; JANE DOE #5, a minor by her legal guardian GRANDPARENT #5; JANE DOE #6 a minor by her legal guardian GRANDPARENT #5; JOHN DOE #7, a minor by his parent and natural guardian PARENT #7; JANE DOE #8, a minor by her parent and natural guardian PARENT #8; JOHN DOE #9, a minor by his parents and natural guardians PARENT # 9A and PARENT #9B; JANE DOE #10, a minor by her parent and natural guardian PARENT #10; JANE DOE #11, a minor by her parent and natural guardian PARENT #11; JANE DOE #12, a minor by her parent and natural guardian PARENT #12; JOHN DOE #13, a minor by his parent and natural guardian PARENT #13; JANE DOE #14, a minor by her parent and natural guardian PARENT #14; JANE DOE #15, a minor by her parent and natural guardian PARENT #15; JOHN DOE #16, a minor by his parent and natural guardian PARENT #16; JOHN DOE #17, a minor by his parents and natural guardians PARENT #17A and PARENT #17B; JOHN DOE #18, a minor by his parents and natural guardians PARENT #18A and PARENT #18B; JOHN DOE #19, a minor by his parent and natural guardian PARENT #19; JANE DOE #20, a minor by her parent and natural guardian PARENT #20; JOHN DOE #21, a minor by his parent and natural guardian PARENT #21; JOHN DOE #22, a minor by his parent and natural guardian PARENT #22; and JOHN DOE #23, a minor by his parent and natural guardian PARENT #23, on behalf of all persons similarly situated. Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant, No. 16-CV-1684(NGG) (RLM)(E.D.N.Y.). A full-text copy of the District Court's July 30, 2018 Order is available at https://tinyurl.com/y9qoavlz from Leagle.com. John Doe #1, a minor by his parent and natural guardian Parent #1, John Doe #2, a minor by his parent and natural guardian Parent #2, John Doe #3, a minor by his parent and natural guardian Parent #3, Jane Doe #4, a minor by her parent and natural guardian Parent #4, Jane Doe #5, a minor by her legal guardian Grandparent #5, Jane Doe #6, a minor by her legal guardian Grandparent #5, John Doe #7, a minor by his parent and natural guardian Parent #7, Jane Doe #8, a minor by her parent and natural guardian Parent #8, John Doe #9, a minor by his parents and natural guardians Parents #9A and #9B, Jane Doe #10, a minor by her parent and natural guardian Parent #10 & Jane Doe #11, a minor by her parent and natural guardian Parent #11, Plaintiffs, represented by Adam Philip Cohen -- acohen@wmhlaw.com -- Walden Macht & Haran LLP, Daniel A. Cohen -- dcohen@wmhlaw.com -- Walden Macht & Haran LLP, Johnson Li Lin -- jlin@wmhlaw.com -- Walden Macht & Haran LLP & James A. Walden -- jwalden@wmhlaw.com -- Walden Macht & Haran LLP. Jane Doe #15, a minor by her parent and natural guardian Parent #15, Jane Doe #20, a minor by her parent and natural guardian Parent #20, John Doe #16, a minor by his parent and natural guardian Parent #16, John Doe #23, a minor by his parent and natural guardian Parent #23, John Doe #17, a minor by his parents and natural guardians Parent #17A and Parent #17B, Jane Doe #14, a minor by her parent and natural guardian Parent #14, John Doe #22, a minor by his parent and natural guardian Parent #22, John Doe #21, a minor by his parent and natural guardian Parent #21, Jane Doe #12, a minor by her parent and natural guardian Parent #12, John Doe #19, a minor by his parent and natural guardian Parent #19, John Doe #13, a minor by his parent and natural guardian Parent #13 & John Doe #18, a minor by his parents and natural guardians Parent #18A and Parent #18B, Plaintiffs, represented by Johnson Li Lin , Walden Macht & Haran LLP & James A. Walden , Walden Macht & Haran LLP. New York City Department of Education, Defendant, represented by Evan Robert Schnittman , New York City Law Department & Marilyn Richter , The City of New York Law Department Office of Corporation Counsel. Legal Aid Society, Amicus, represented by Celia Goldwag Barenholtz -- cbarenholtz@cooley.com -- Cooley Godward Kronish LLP, William J. Schwartz -- wschwartz@cooley.com -- Cooley LLP, Cara Ann Chambers , The Legal Aid Society & Lisa Freeman , The Legal Aid Society. NEWLINK GENETICS: Seeks to Drop 2nd Amended Abramson Complaint -------------------------------------------------------------- Defendants in a putative securities class action lawsuit initiated by Trevor Abramson filed a motion to dismiss the second amended complaint on July 31, 2018, according to Newlink Genetics Corporation's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On or about May 12, 2016, Trevor Abramson filed a putative securities class action lawsuit in the United States District Court for the Southern District of New York, or the Court, captioned Abramson v. NewLink Genetics Corp., et al., Case 1:16-cv-3545, or the Securities Action. Subsequently, the Court appointed Michael and Kelly Nguyen as lead plaintiffs and approved their selection of Kahn, Swick & Foti, LLC as lead counsel in the Securities Action. On October 31, 2016, the lead plaintiffs filed an amended complaint asserting claims under the federal securities laws against the Company, the Company's Chief Executive Officer Charles J. Link, Jr., and the Company's Chief Medical Officer and President Nicholas Vahanian, or collectively, the Defendants. The amended complaint alleges the Defendants made material false and/or misleading statements that caused losses to the Company's investors. In particular, the lead plaintiffs allege that the Defendants made material misstatements or omissions related to the Phase 2 and 3 trials and efficacy of the product candidate algenpantucel-L. The lead plaintiffs do not quantify any alleged damages in the amended complaint but, in addition to attorneys' fees and costs, they sought to recover damages on behalf of themselves and other persons who purchased or otherwise acquired the Company's stock during the putative class period of September 17, 2013 through May 9, 2016, inclusive, at allegedly inflated prices and purportedly suffered financial harm as a result. The Defendants filed a motion to dismiss the amended complaint on July 14, 2017. The lead plaintiffs filed an opposition to the motion to dismiss on September 12, 2017. The Defendants filed a reply in support of the motion to dismiss on September 26, 2017. Oral argument was held on October 19, 2017, after which the Court reserved decision. On March 29, 2018, the Court dismissed the amended complaint for failure to state a claim, without prejudice, and gave the lead plaintiffs until May 4, 2018 to file any amended complaint attempting to remedy the defects in their claims. On May 4, 2018, the lead plaintiffs filed a second amended complaint asserting claims under the federal securities laws against the Defendants. Like the first amended complaint, the second amended complaint alleges that the Defendants made material false and/or misleading statements or omissions relating to the Phase 2 and 3 trials and efficacy of the product candidate algenpantucel-L that caused losses to the Company's investors. The lead plaintiffs do not quantify any alleged damages in the second amended complaint but, in addition to attorneys' fees and costs, they sought to recover damages on behalf of themselves and other persons who purchased or otherwise acquired the Company's stock during the putative class period of September 17, 2013 through May 9, 2016, inclusive, at allegedly inflated prices and purportedly suffered financial harm as a result. The Defendants filed a motion to dismiss the second amended complaint on July 31, 2018. The Company intends to continue defending the Securities Action vigorously. Newlink Genetics Corporation is a clinical-stage immuno-oncology company focused on discovering and developing novel immunotherapeutic products for the treatment of patients with cancer. The company is based in Ames, Iowa. PEPSI-COLA CO: Consumers Ask 2nd Cir. to Revive Class Action ------------------------------------------------------------ Rick Archer, writing for Law360, reports that a pair of consumers on Aug. 3 asked the Second Circuit to revive their putative class action accusing Pepsi-Cola Co. of misrepresenting that its "diet" drinks help with weight loss, saying the district court improperly dismissed their arguments and evidence. Elizabeth Manuel and Vivien Grossman argued their claims were plausible enough to survive PepsiCo's summary judgment motion and that the district court judge had improperly decided questions of fact when he dismissed their case. The case is styled Manuel v. Pepsi-Cola Company, Case No. 18-1748 (2nd Cir.). The case was filed June 12, 2018. [GN] PROGRESSIVE CORP: MAO-MSO Recovery Suit Dismissed ------------------------------------------------- Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division, dismissed without prejudice the case, MAO-MSO RECOVERY II, LLC, et al., Plaintiffs, v. PROGRESSIVE CORP., Defendant, Case No. 1:17CV390 (N.D. Ohio) The Plaintiffs filed the putative class action suit against Progressive Corp., its direct and indirect subsidiaries. The case is one of several filed around the country by the Plaintiffs against various automobile insurance companies. The action arises under the Medicare Secondary Payer ("MSP") provisions of the Medicare Act. When the Medicare program was enacted in 1965, Medicare paid for all medical treatment within its scope and left private insurers merely to pick up whatever expenses remained. The MSP empowers Medicare to seek reimbursement for any conditional medical payments from the primary payer if it is demonstrated that the primary payer has responsibility to pay. The MSP also provides for a private right of action with double recovery to encourage private parties who are aware of non-payment by primary plans to bring actions to enforce Medicare's rights. In 1997, Congress created Medicare Part C, which allows for private Medicare Advantage plans. Under this system, private insurers may become Medicare Advantage Organizations ("MAOs") and administer Medicare benefits pursuant to contracts with the Centers for Medicare and Medicaid Services ("CMS"). The Plaintiffs are entities which allege that they have been assigned all rights, title, and interest allowing them to bring these claims by several unspecified MAOs. They allege that the Defendant provided no-fault automobile insurance coverage, which obligated the Defendant to pay all medical expenses up to a certain threshold to several Medicare enrollees. The Plaintiffs thus contend that the Defendant was a primary payer and that the MAOs covering these Medicare enrollees were secondary payers. They allege that the Defendant failed to pay medical bills that it was statutorily obligated to pay, resulting in economic loss to the Plaintiffs. The Plaintiffs assert claims for Double Damages under the Private Right of Action established by the MSP in 42 U.S.C. Section 1395y(b)(3)(A) and for Breach of Contract. The Defendant moves to dismiss the Plaintiffs' claims for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Judge Boyko finds that like in MAO-MSO Recovery II, LLC v. State Farm Mutual Automobile Ins. Co., the Plaintiffs have failed to present any evidence demonstrating a valid assignment from any MAO. Standing is not a mere pleading requirement but rather an indispensable part of the plaintiff's case, and as such, it must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation. He finds that the Plaintiffs have presented no evidence that they have suffered an injury-in-fact. They have merely made conclusory allegations in their Complaint that they have been assigned rights of recovery from several unnamed MAOs. However, without documentation showing that at least one Plaintiff has been assigned recovery rights from at least one MAO, he cannot find that the Plaintiffs have satisfied their burden of proving Article III standing. Since the Plaintiffs themselves are not MAOs, they must show an injury-in-fact by presenting a valid assignment from an MAO. Because the Plaintiffs have not done so, the Judge finds that it lacks subject matter jurisdiction over the case. Lastly, because Article III standing is a threshold question in every federal case and determines the power of the court to entertain the suit, the Judge finds that it is unnecessary to consider the Defendant's arguments under 12(b)(6) because it has already found that the Plaintiffs have failed to establish Article III standing. Therefore, for the foregoing reason, Judge Boyko granted the Defendant's Motion and dismissed the case without prejudice. A full-text copy of the Court's July 17, 2018 Opinion and Order is available at https://is.gd/TlVom5 from Leagle.com. MAO-MSO Recovery II, LLC, Plaintiff, represented by Christopher L. Coffin -- ccoffin@pbclawfirm.com -- Pendley Baudin & Coffin, pro hac vice, Courtney L. Stidham -- cstidham@pbclawfirm.com -- Pendley Baudin & Coffin, Michael L. Baum -- MBaum@BaumHedlundLaw.com -- Baum Hedlund Aristei & Goldman, Nicholas R. Rockforte -- nrockforte@pbclawfirm.com -- Pendley Baudin & Coffin, Pedram Esfandiary -- PEsfandiary@BaumHedlundLaw.com -- Baum Hedlund Aristei & Goldman, R. Brent Wisner -- RBWisner@BaumHedlundLaw.com -- Baum Hedlund Aristei & Goldman & Tracy L. Turner -- tturner@pbclawfirm.com -- Pendley Baudin & Coffin. MSP Recovery, LLC & MSPA Claims 1, LLC, Plaintiffs, represented by Michael L. Baum, Baum Hedlund Aristei & Goldman, Pedram Esfandiary, Baum Hedlund Aristei & Goldman, R. Brent Wisner, Baum Hedlund Aristei & Goldman & Tracy L. Turne , Pendley Baudin & Coffin. Progressive Corporation, Defendant, represented by David J. Farber -- dfarber@kslaw.com -- King & Spalding, Emily S. Newton -- enewton@kslaw.com -- King & Spalding, Jeffrey S. Cashdan -- jcashdan@kslaw.com -- King & Spalding, pro hac vice, Kenneth G. Prabucki -- kprabucki@bakerlaw.com -- Baker & Hostetler, Michael K. Farrell -- mfarrell@bakerlaw.com -- Baker & Hostetler & Zachary A. McEntyre -- zmcentyre@kslaw.com -- King & Spalding, pro hac vice. Progressive Casualty Insurance Company, Defendant, represented by David J. Farber, King & Spalding, Emily S. Newton, King & Spalding, Jeffrey S. Cashdan, King & Spalding, Kenneth G. Prabucki, Baker & Hostetler, Michael K. Farrell, Baker & Hostetler & Zachary A. McEntyre, King & Spalding, pro hac vice. RACHAEL RAY: Sued for $5MM Over Chemical in Dog Food Products ------------------------------------------------------------- Megan Sheets, writing for Dailymail.com, reports that Rachael Ray has defended her "natural" dog food brand after a $5 million class action lawsuit alleged her products contain a chemical commonly found in weed killer. The suit, filed by Bronx resident Markeith Parks on behalf of himself and others, alleges that an independent lab detected the herbicide glyphosate in Rachael Ray Nutrish dog chow. Court documents obtained by DailyMail.com state: "Rachael Ray Nutrish aggressively advertises and promotes the products as 'natural'. These claims are false, deceptive, and misleading. The suit names Rachael Ray Nutrish along with its parent company Ainsworth Pet Nutrition, which was acquired by The JM Smucker Company this spring. A spokesperson for the celebrity chef told DailyMail.com: "Rachael herself has always championed the great lengths Ainsworth Pet Nutrition and now The JM Smucker Company take to create and provide the highest quality and safest pet food products on the market. "This is why she does, and will continue to, feed Nutrish to her own dog Isaboo and her extended pet family." The spokesperson also called previous reports alleging that Rachael herself had been named in the suit 'libelous'. Bobby Modi, vice president of Pet Food and Pet Snacks for JM Smucker, said: "We are in the process of reviewing the details of the claim but strongly stand behind the quality of our products, ingredients, and sourcing practices. "As animal lovers and humans, it goes without saying that we do not add pesticides to our products as an ingredient. We plan to aggressively fight these claims. "Pet parents with questions about our pet food recipes or treats are encouraged to contact us directly by calling 1-800-323-7738 or via nutrish.com." Plaintiff Parks claims to have purchased the dog food on several occasions from BJ's Wholesale Club in the Bronx because he trusted claims by the Nutrish brand that its products are natural. It is unclear what led Parks to have the products tested, but the suit claims that an independent lab detected 'the unnatural chemical glyphosate, a potent biocide and endocrine disruptor, with detrimental health effects that are still becoming known'. Glyphosate is the active ingredient found in weed killer products such as RoundUp. The suit speculates that "crops such as peas, soy, corn, beets and alfalfa are sprayed with the chemical in order to dry them and produce an earlier, more uniform harvest". According to the lawsuit, Rachael Ray Nutrish does not disclose the fact that their product contains glyphosate. "By deceiving consumers about the nature, quality, and/or ingredients of the products, Rachael Ray Nutrish is able to sell a greater volume of the products," it says. The lawsuit goes on to cite a 2014 survey conducted by the Consumer Reports National Research Center to assess consumer opinion regarding food labeling. They claim that 66 percent 'of all respondents in the Consumer Reports survey said that a "natural" label on packaged and processed foods means that 'no toxic pesticides were used'. Mr. Parks also claims that studies have shown that "glyphosate may be a causal agent related to the rise of pet cancers". "No reasonable consumer would expect this controversial and potentially harmful synthetic chemical to be present in "Natural" dog food," the suit states. Mr. Parks alleges the amount in damages at issue exceeds $5,000,000. [GN] RENTOKIL NORTH: Court Grants Arbitration in A. Carbajal's Wage Suit ------------------------------------------------------------------- The United States District Court for the Northern District of California granted Defendant's Motion to Compel Arbitration in the case captioned ANTONIO CARBAJAL, on behalf of himself and all others similarly situated, Plaintiff, v. RENTOKIL NORTH AMERICA, INC., Defendant, Case No. 17-CV-06651-YGR (N.D. Cal.). Plaintiff Antonio Carbajal brings this putative class action against defendant Rentokil North American, Inc. for alleged violations of California wage and hour laws and the Fair Labor and Standards Act (FLSA). Carbajal brings the following four causes of action against defendants: (i) failure to pay overtime and double-time premium wages; (ii) pay stub violations; (iii) unfair competition; and (iv) FLSA violations. Procedural Unconscionability The Plaintiff argues that the agreement is procedurally unconscionable because the employer had superior bargaining power, which gave him no meaningful opportunity to opt-out of the agreement. Relying on Circuit City, plaintiff argues that an agreement drafted by an employer with superior bargaining power which does not allow employees to make any modifications or to decline arbitration, is unconscionable. Failure to permit a reasonable opportunity to opt-out indicates procedural unconscionability. Here, the plaintiff indicates that he was not given the opportunity to negotiate the agreement or to opt out of it, and he felt pressure to sign it in order to keep his job. The Defendant does not dispute this, and no provision of the Agreement indicates that an employee may opt not to sign it and retain employment. The Plaintiff further argues that the agreement is procedurally unconscionable because it references the AAA arbitration rules but does not attach them or state where they can be found, and the defendant never provided the plaintiff a copy. However, the California Supreme Court has held that failure to attach the AAA rules does not establish procedural unconscionability. The failure to include the AAA rules or some direction about how to find them does not weigh in favor of invalidating the Agreement. Considering the terms of the agreement, its adhesive nature, the defendant's superior bargaining power, and the lack of an opt-out provision, plaintiff has demonstrated some amount of procedural unconscionability. Substantive Unconscionability The Plaintiff raises four arguments to support a finding that the agreement is substantively unconscionable: (i) the Agreement unlawfully limits plaintiff's remedies; (ii) the class action provision is unenforceable in the Ninth Circuit; (iii) inclusion of a delegation clause is unconscionable because it unfairly gives the arbitrator the power to determine which claims are arbitrable, contrary to a layperson's expectations; and (iv) the Agreement's silence as to which state's substantive law applies unfairly allows defendant to assert less-favorable, non-California defenses. Limitations on Available Relief The Plaintiff argues that since the Agreement here only provides the arbitrator power to award legal relief, the Agreement necessarily precludes equitable relief. The Court finds that the plain language of the Agreement does not preclude equitable remedies. The agreement is drafted to encompass all employment-related claims either party might have against the other. Defendant agrees that there is no prohibition on pursuing equitable relief. Further, to the extent that the Agreement can be construed to preclude equitable relief, it is severable Thus, remedies provision does not support a finding of substantive unconscionability. Class Action Waiver Second, the plaintiff argues that the Agreement's terms constitute a class action waiver. As such, the plaintiff contends that the inclusion of a class action waiver is unlawful and unconscionable, citing Morris v. Ernst & Young. 834 F.3d 975, 983 (9th Cir. 2016). Morris has since been overturned by the Supreme Court's decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). Therefore, both Epic Systems and Concepcion foreclose plaintiff's argument that a class action waiver renders the Agreement substantively unconscionable. Delegation Clause The Plaintiff next argues that the delegation clause, incorporated into the Agreement by its reference to the AAA rules, is unconscionable. The Defendant agrees that arbitrability should not be delegated to the arbitrator under this Agreement. To the extent the Agreement otherwise could have been read to include a delegation clause, the parties agree it is not enforceable. Thus, it is, in effect, severed from the Agreement. Whether the provision might be enforceable, or unconscionable, under other circumstances is not properly before the Court in these circumstances. Therefore, the incorporation of the AAA rules on this issue does not render the Agreement substantively unconscionable. Delegation Clause The Plaintiff next argues that the delegation clause, incorporated into the Agreement by its reference to the AAA rules, is unconscionable. The Plaintiff contends that allowing arbitrators to decide whether a claim is within their own jurisdiction is is not within the adhering party's reasonable expectations since arbitrators are not normally expected to determine their own jurisdiction, citing Htay Htay Chin v. Advanced Fresh Concepts Franchise Corp., 194 Cal.App.4th 704, 710-11 (2011). The defendant agrees that arbitrability should not be delegated to the arbitrator under this Agreement. To the extent the Agreement otherwise could have been read to include a delegation clause, the parties agree it is not enforceable. Thus, it is, in effect, severed from the Agreement. Whether the provision might be enforceable, or unconscionable, under other circumstances is not properly before the Court in these circumstances. Therefore, the incorporation of the AAA rules on this issue does not render the Agreement substantively unconscionable. Failure to Include Choice-of-Law Provision Finally, the plaintiff argues that the Agreement is unconscionable for failure to include a choice-of-law provision. The Agreement's silence as to the choice of law is not unconscionable. As with the other legal issues subject to arbitration under the Agreement, determination of which state's law applies must be decided by the arbitrator, absent an agreement of the parties to the contrary. The Plaintiff offers no authority to support the notion that allowing the arbitrator to decide what substantive law applies to the claims would be unfair or shock the conscience. Accordingly, the motion to compel arbitration is granted as to all claims in this case. A full-text copy of the District Court's July 5, 2018 Order is available at https://tinyurl.com/ybz8kgbv from Leagle.com. Antonio Carbajal, Plaintiff, represented by Michael Anthony Strauss -- mike@strausslawyers.com -- Strauss & Strauss, APC & Rabiah A. Rahman -- rrahman@mwgjlaw.com -- Strauss and Strauss, APC. Rentokil North America, Inc., a Pennsylvania corporation, Defendant, represented by Jennifer Lynn Santa Maria -- Jennifer.santamaria@ogletreedeakins.com -- Ogletree Deakins -- jesse.ferrantella@ogletree.com -- Ogletree Deakins & Timothy Lloyd Johnson -- tim.johnson@ ogletree.com -- Ogletree Deakins Nash Smoak and Stewart, P.C. ROOT9B TECHNOLOGIES: Dismissal of Securities Fraud Suit Affirmed ---------------------------------------------------------------- The United States Court of Appeals, Tenth Circuit, affirmed the judgment of the District Court granting Defendant's Motion to Dismiss the case captioned DAVID HAMPTON, Plaintiff-Appellant, and TY MESSERLI, individually and on behalf of all others similarly situated, Plaintiff, v. ROOT9B TECHNOLOGIES, INC.; JOSEPH J. GRANO, JR.; KENNETH T. SMITH, Defendants-Appellees, No. 16-1417 (10th Cir.). This appeal arises from the district court's dismissal of Plaintiff-Appellant David Hampton's securities-fraud class action against Defendants-Appellees root9B Technologies, Inc., a provider of cybersecurity products and services, Joseph J. Grano, Jr., root9B's Chief Executive Officer and Chairman, and Kenneth T. Smith, root9B's former Chief Financial Officer (Defendants). Mr. Hampton brought this action pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) & 78t(a), and Securities and Exchange Commission (SEC) Rule 10b-5, 17 C.F.R. Section 240.10b-5, claiming that root9B made false or misleading statements in connection with the purchase or sale of securities. Mr. Hampton identified two statements that he alleges were false or misleading and material: (1) a letter from Mr. Grano to investors language from which was repeated in a number of SEC filings attesting that root9B was differentiated from competitors by its proprietary hardware and software and (2) a press release and associated report published by root9B in which the company claimed to have detected a planned cyber attack against a number of international financial institutions. He further alleges that the individual defendants, Mr. Grano and Mr. Smith are jointly and severally liable under Section 20(a). The district court dismissed Mr. Hampton's claims, finding that he had failed to sufficiently plead that the identified statements were false or misleading. Mr. Hampton appeals, and exercising jurisdiction pursuant to 28 U.S.C. Section 1291, To state a claim under Section 10(b) and Rule 10b-5, a plaintiff must plausibly allege that: A defendant made statements that: (1) contained false or misleading statements of material fact, (2) related to the purchase or sale of a security, (3) were made with intent to defraud investors or conscious disregard of a risk that shareholders would be misled (scienter), (4) led to reliance by the plaintiff, and (5) caused the plaintiff's loss (loss causation). In reviewing the sufficiency of a plaintiff's pleadings, the Court evaluate the facts alleged in a complaint to determine whether, taken as a whole, they support a reasonable belief that the defendant's statements identified by the plaintiff were false or misleading. In doing so, the Court evaluates: (1) the level of detail provided by the facts stated in a complaint; (2) the number of facts provided; (3) the coherence and plausibility of the facts when considered together; (4) whether the source of the plaintiff's knowledge about a stated fact is disclosed; (5) the reliability of the sources from which the facts were obtained; and (6) any other indicia of how strongly the facts support the conclusion that a reasonable person would believe that the defendant's statements were misleading. To meet the pleading standard, plaintiffs are not required to disclose the documentary or personal sources from which they learned the facts alleged. The PSLRA did heighten the standard of pleading securities fraud, however, and where a plaintiff does not identify the sources of the facts stated in the complaint, the facts alleged will usually have to be particularly detailed, numerous, plausible, or objectively verifiable by the defendant before they will support a reasonable belief that the defendant's statements were false or misleading. There is a meaningful distinction between statements of opinion and statements of fact; the former require a plaintiff to meet a higher pleading standard. Pure statements of opinion and statements of optimism that are not capable of objective verification are not material misstatements unless they inaccurately represent the speakers' beliefs concerning then-present factual conditions. Statements of opinion or belief must rest on 'a factual basis that justifies them as accurate, the absence of which renders them misleading. Having reviewed the applicable law, the Court addresses, in turn, Mr. Hampton's arguments that the district court erred in dismissing his claims based on root9B's proprietary-hardware and Sofacy statements. The Court concludes, as to both sets of statements, that Mr. Hampton fails to sufficiently plead the first prong, i.e., that root9B made materially false statements. Accordingly, the Court rejects Mr. Hampton's contentions of error and upholds the district court's dismissal of his amended complaint. Mr. Hampton alleges that root9B's statements were false based on (1) the Pump Stopper article (which in turn relied on an alleged interview with CFO Smith), and (2) the subsequent omission of the relevant statements from root9B's SEC filings. The Tenth Circuit agrees with the district court's conclusions for a number of reasons. First, Mr. Hampton cannot show that the low margin hardware installation and resale products that the Pump Stopper article identifies which Mr. Hampton claims refers to a third-party's hardware, are in fact the same products that the Grano letter and related SEC filings refer to as proprietary hardware and software. Therefore, Mr. Hampton necessarily falters in demonstrating that the proprietary label was false or misleading because he cannot raise a plausible inference that the label does not fit the products it references. Indeed, aside from citing to the stock market's reaction to the alleged revelation of the Pump Stopper article, Mr. Hampton points to no facts that push his allegation beyond a mere possibility. Second, the exclusion of the proprietary hardware and software language from subsequent SEC filings does not provide sufficient evidence that the language was removed on account of the Pump Stopper article's representations; rather, a reasonable reading of the language that replaced the propriety hardware and software language is that it simply provides greater details regarding the products comprising that hardware or software. Third, as the district court noted, even assuming arguendo that Mr. Hampton was able to link the proprietary hardware language, which root9B's SEC filings spoke of, to the Pump Stopper article's reference to low margin hardware installation, his claim fails because there is nothing inherently inconsistent between those two statements. Mr. Hampton attacks this reasoning, arguing that the district court's discussion disregards that the crux of Plaintiff's allegations concerning the proprietary hardware statements was not the amount of margins [root9B] was receiving from selling the hardware, but whether the hardware root9B was selling was in fact proprietary' to root9B. However, the district court specifically and persuasively addressed this issue by stating that Mr. Hampton's claim was meritless absent evidence that revealed that the proprietary hardware' in question was off-the-shelf equipment equally available to root9B's customers or competitors. And, on appeal, Mr. Hampton still fails to show that it is anything more than merely possible that the proprietary hardware at issue was in fact freely available to root9B's potential customers and competitors as opposed to being controlled by root9B and subject to its restrictions or limitations. Because Mr. Hampton fails to plead sufficient facts to show that root9B's proprietary-hardware statements were false or misleading, the Court upholds the district court's conclusion on this issue. Mr. Hampton's Sofacy-based claim. Relying on the Krebs article, Mr. Hampton asserts that root9B's Sofacy press release, its APT28 report, and Mr. Grano's Fox Business interview misattributed the source of the planned cyberattack that root9B claimed to have uncovered. The Court agrees with the district court's determination that Mr. Hampton fails to show that the Sofacy attribution was false or misleading. To be sure, the Krebs article provides factual allegations regarding the registration of the domains identified as suspicious by root9B. But, despite Mr. Hampton's protestations, we conclude that the Krebs article merely provides an alternative attribution, potentially Nigerian scammers and therefore falls far short of establishing that the Sofacy attribution was untrue or even misleading. For example, the Krebs article fails to explicitly state that the Sofacy attribution was actually untrue, and instead only indicates that it was more likely that the attack was perpetrated by a different source. Indeed, the article even hedges on its alternative finding by noting that root9B could have been holding back key details about their research, which, if true, could presumably impact the Krebs assessment. The Court affirms the district court's judgment. A full-text copy of the Tenth Circuit's July 30, 2018 Opinion is available at https://tinyurl.com/y8k246nc from Leagle.com. Nicholas I. Porritt , of Levi & Korsinsky LLP, Washington, D.C. (Alexander A. Krot, III, of Levi & Korsinsky LLP, and Kip B. Shuman -- kip@shumanlawfirm.com -- and Rusty E. Glenn -- rusty@shumanlawfirm.com -- of The Shuman Law Firm, Denver, Colorado, with him on the briefs), for Plaintiff-Appellant. Nina F. Locker -- nlocker@wsgr.com -- of Wilson Sonsini Goodrich & Rosati Professional Corporation, Palo Alto, California (Steven Guggenheim -- Sguggenheim@wsgr.com -- Joni L. Ostler -- jostler@wsgr.com -- Evan L. Seite -- eseite@wsgr.com -- of Wilson Sonsini Goodrich & Rosati Professional Corporation, Palo Alto, California, and Holly Stein Sollod -- hsteinsollod@hollandhart.com -- Christina F. Gomez -- cgomez@hollandhart.com -- Cici Cheng, of Holland & Hart LLP, Denver, Colorado, with her on the briefs) for Defendants-Appellees. SCHURMAN FINE: $237.5K Attorney's Fees Awarded in Data Theft Suit ----------------------------------------------------------------- The United States District Court for the Northern District of California, San Francisco Division, granted Plaintiffs' Unopposed Motion for Preliminary Approval of Class Action Settlement in the case captioned IRENE SUNG, et al., Plaintiffs, v. SCHURMAN FINE PAPERS d/b/a SCHURMAN RETAIL GROUP, Defendant, Case No. 17-cv-02760-LB (N.D. Cal.). The plaintiffs are current and former employees (and their spouses and dependents) of Schurman Fine Papers d/b/a Schurman Retail Group (SRG). They contend that a phishing attack on SRG in 2016 and SRG's lax security and poor training resulted in the theft of their W-2 data: names, addresses, compensation, and Social Security Numbers. SRG will fund a non-reversionary Settlement Administration Account of $325,000 for the reimbursement of economic costs incurred by Settlement Class Members that are not reimbursable under the original or additional All Clear Plans. Settlement Class Members may submit one or more claims for reimbursement of such economic costs (including mileage reimbursement at the current IRS rate) up to an aggregate total of $500 per Settlement Class Member. Settlement Class Members may also submit a claim for time spent addressing the Data Incident at a rate of $15 per hour for up to 10 hours, for a total of $150. The total reimbursable amount thus is $650. The settlement agreement provided that plaintiffs' counsel would petition the court for reasonable attorney's fees and costs not to exceed $237,500. Class certification requires the following: (1) the class must be so numerous that joinder of all members individually is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the class representatives must be typical of the claims or defenses of the class; and (4) the person representing the class must be able to fairly and adequately protect the interests of all class members. The court finds (for settlement purposes only) that the proposed Settlement Classes meet the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy. First, there are approximately 2,700 persons in the Settlement Employee Class. The class is so numerous that joinder of all members is impracticable. Second, there are questions of law and fact common to the class. The class members allege identical claims under a breach-of-contract theory, and they allege identical UCL and negligence claims. Third, the claims of the representative parties are typical of the claims of the class. All Settlement Employee Class Members allege that they provided PII to SRG as a condition of employment, and they may have provided PII for their spouses or other dependents. Fourth, the representative parties will fairly and adequately protect the interests of the class. They share the same interests as Settlement Class Members, there are no conflicts of interest, and the named plaintiffs and counsel will vigorously prosecute the case. The court finds too that certification of a nationwide class under California law is appropriate under the facts of this case. The court finds that they have claims that are typical of members of the Settlement Classes generally and that they are adequate representatives of the other members of the proposed Settlement Classes. The court confirms its previous appointment of Rosemary M. Rivas of Levi & Korsinsky, LLP and Gayle M. Blatt of Casey Gerry Schenk Francavilla Blatt & Penfield LLP as Settlement Class Counsel. As the court found previously, they have the appropriate qualifications, experience, and expertise in prosecuting class actions. The court previously appointed Rust Consulting as the claims administrator. Class counsel asks for $237,500 for attorney's fees and costs. Based on the declarations submitted by the plaintiff's counsel establishing that the fees are a.25 percent discount from the collective lodestar, the court finds that that requested fees and costs are reasonable and appropriate under the lodestar method. The billing rates are within normal and customary ranges for timekeepers with similar qualifications and experience in the relevant market. The rates counsel used are appropriate given the deferred and contingent nature of counsel's compensation. Counsel also submitted a sufficient breakdown of the attorneys' billing efforts for the court to reach its conclusion about the lodestar. The court concludes that a fee award at the requested amount is justified. It is appropriate based on counsel's efforts and the substantial benefits to the class. It is supported by the lodestar, the efficiency of the litigation, the quality of the representation, and the contingent risk. District courts must evaluate proposed incentive awards individually, using relevant factors that include the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions and the amount of time and effort the plaintiff expended in pursuing the litigation. Such awards are discretionary and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general. The Ninth Circuit has noted that in some cases incentive awards may be proper but has cautioned that awarding them should not become routine practice. The Ninth Circuit also has emphasized that district courts must be vigilant in scrutinizing all incentive awards to determine whether they destroy the adequacy of the class representatives. Counsel described sufficiently the efforts of the named plaintiffs, including consulting with counsel, assisting in discovery, and otherwise participating in the litigation. The court approves the service award of $1,500 each to the named plaintiffs. The court approves the class-action settlement. From the total settlement fund, and pursuant to the settlement terms, the court allocates (1) $237,500 to attorney's fees and costs, (2) $40,000 for administration costs, and (3) a $1,500 service award to each named plaintiff. A full-text copy of the District Court's July 5, 2018 Order is available at https://tinyurl.com/yd9o3xw2 from Leagle.com. Irene Sung, on behalf of herself and all others similarly situated, Kimberly Carboni, on behalf of herself and all others similarly situated, Annie Fulton, on behalf of herself and all others similarly situated, Cary Berger, on behalf of himself and all others similarly situated, Emmalyne Owens, on behalf of herself and all others similarly situated, Ruth Phelps, on behalf of herself and all others similarly situated & Christine Willetts, on behalf of herself and all others similarly situated, Plaintiffs, represented by Alyssa M. Williams , Casey Gerry Schenk Francavilla Blatt and Penfield LLP, Ethan Thomas Litney , Casey Gerry Schenk Francavilla Blatt and Penfield, LLP, Gayle Meryl Blatt , Casey Gerry Schenk Francavilla Blatt & Penfield LLP, Quentin Alexandre Roberts -- qroberts@zlk.com -- Levi & Korsinsky LLP & Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP. Melissa Berger, Linda Graves & Christine Niziban, Plaintiffs, represented by Gayle Meryl Blatt, Casey Gerry Schenk Francavilla Blatt & Penfield LLP & Rosemary M. Rivas, Levi & Korsinsky LLP. Schurman Fine Papers, d/b/a Schurman Retail Group, Defendant, represented by Gina Elizabeth Och -- goch@murchisonlaw.com -- Murchison and Cumming, LLP, Matthew Scott Kenefick -- MKenefick@jmbm.com -- Jeffer Mangels Butler & Mitchell LLP, Claudia Drennen McCarron -- cmccarron@mullen.law -- Mullen Coughlin & Katelyn M. Knight , Murchison & Cumming, LLP. SEA TO TABLE: Minami Tamaki Mulls Mislabeling Class Action ---------------------------------------------------------- Undercurrent News reports that Minami Tamaki, a law firm based in San Francisco, California, is promoting its interest in further scrutinizing the claims made by seafood supplier Sea to Table following the Associated Press' recent expose. It's an apparent effort to build a case for a class-action lawsuit. "Companies that prey on consumers' good intentions for their own profit may be in violation of federal law and subject to criminal charges," the law firm said in a press release, before offering up its phone number to any consumers that may have purchased from Sea to Table. "The Food and Drug Administration and the National Oceanic and Atmospheric Administration are charged with enforcing laws outlawing mislabeling of seafood." Sea to Table founder Sean Dimin recently responded to the AP report, published June 13, that questioned the traceability and local origins of a US distributor. He argued that the journalists cut corners and failed to deliver a complete picture of his organization's work and said the news service informed him that it was coming back for another story on his company. [GN] SEMPRA ENERGY: 382 Suits Filed over Aliso Canyon Leak at Aug. 1 --------------------------------------------------------------- Sempra Energy disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the Company's subsidiary Southern California Gas Company is facing 382 lawsuits, including approximately 48,000 plaintiffs, as of August 1, 2018, related to Proposition 65. Some of the cases have also named Sempra Energy. All of these cases, other than a matter brought by the Los Angeles County District Attorney and the federal securities class action, are coordinated before a single court in the LA Superior Court for pretrial management (the Coordination Proceeding). On October 23, 2015, SoCalGas discovered a leak at one of its injection-and-withdrawal wells, SS25, at its Aliso Canyon natural gas storage facility (the Leak), located in the northern part of the San Fernando Valley in Los Angeles County. The Aliso Canyon natural gas storage facility has been operated by SoCalGas since 1972. SS25 is one of more than 100 injection-and-withdrawal wells at the storage facility. SoCalGas worked closely with several of the world's leading experts to stop the Leak, and on February 18, 2016, the California Department of Conservation’s Division of Oil, Gas, and Geothermal Resources (DOGGR) confirmed that the well was permanently sealed. SoCalGas calculated that approximately 4.62 Bcf of natural gas was released from the Aliso Canyon natural gas storage facility as a result of the Leak. Various governmental agencies, including DOGGR, Los Angeles County Department of Public Health or DPH, South Coast Air Quality Management District or SCAQMD, the California Air Resources Board or CARB, Los Angeles Regional Water Quality Control Board, California Division of Occupational Safety and Health, the California Public Utilities Commission or CPUC, the Pipeline and Hazardous Materials Safety Administration or PHMSA, the U.S. Environmental Protection Agency or EPA, Los Angeles County District Attorney's Office and California Attorney General's Office, have investigated or are investigating this incident. Other federal agencies (e.g., the DOE and the U.S. Department of the Interior) investigated the incident as part of a joint interagency task force. In January 2016, DOGGR and the CPUC selected Blade Energy Partners to conduct, under their supervision, an independent analysis of the technical root cause of the Leak, to be funded by SoCalGas. The timing of the root cause analysis is under the control of Blade Energy Partners, DOGGR and the CPUC. Pursuant to the Coordination Proceeding, in March 2017, the individuals and business entities asserting tort and Proposition 65 claims filed a Second Amended Consolidated Master Case Complaint for Individual Actions, through which their separate lawsuits will be managed for pretrial purposes. The consolidated complaint asserts causes of action for negligence, negligence per se, private and public nuisance (continuing and permanent), trespass, inverse condemnation, strict liability, negligent and intentional infliction of emotional distress, fraudulent concealment, loss of consortium and violations of Proposition 65 against SoCalGas, with certain causes also naming Sempra Energy. The consolidated complaint seeks compensatory and punitive damages for personal injuries, lost wages and/or lost profits, property damage and diminution in property value, injunctive relief, costs of future medical monitoring, civil penalties (including penalties associated with Proposition 65 claims alleging violation of requirements for warning about certain chemical exposures), and attorneys' fees. In September and October of 2017, property developers filed two complaints, one of which was amended in July 2018, against SoCalGas and Sempra Energy alleging causes of action for strict liability, negligence per se, negligence, continuing nuisance, permanent nuisance and violation of the California Unfair Competition Law, as well as claims for negligence against certain directors of SoCalGas. The complaints seek compensatory, statutory and punitive damages, injunctive relief and attorneys' fees. These claims are joined in the Coordination Proceeding. Sempra Energy, together with its subsidiaries, engages in energy business worldwide. It was founded in 1998 and is headquartered in San Diego, California. SEMPRA ENERGY: Bid to Revive Securities Suit Still Pending ---------------------------------------------------------- A reconsideration of the order that dismissed a federal securities class action against Sempra Energy and its subsidiary Southern California Gas Company remains pending, according to Sempra Energy's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The federal securities class action alleging violation of the federal securities laws has been filed against Sempra Energy and certain of its officers and certain of its directors in the United States District Court for the Southern District of California. In March 2018, the District Court dismissed the action with prejudice, and in April 2018 the plaintiffs moved for reconsideration of the order. Sempra Energy, together with its subsidiaries, engages in energy business worldwide. It was founded in 1998 and is headquartered in San Diego, California. SEMPRA ENERGY: California Supreme Court Review Underway ------------------------------------------------------- Sempra Energy still defends two consolidated class action complaints in California, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. A review by the California Supreme Court of the ruling in the Business Class Action is underway. In January 2017, pursuant to the Coordination Proceeding, two consolidated class action complaints were filed against SoCalGas and Sempra Energy, one on behalf of a putative class of persons and businesses who own or lease real property within a five-mile radius of the well (the Property Class Action), and a second on behalf of a putative class of all persons and entities conducting business within five miles of the facility (the Business Class Action). Both complaints assert claims for strict liability for ultra-hazardous activities, negligence and violation of California Unfair Competition Law. The Property Class Action also asserts claims for negligence per se, trespass, permanent and continuing public and private nuisance, and inverse condemnation. The Business Class Action also asserts a claim for negligent interference with prospective economic advantage. Both complaints seek compensatory, statutory and punitive damages, injunctive relief and attorneys' fees. In December 2017, the California Court of Appeal, Second Appellate District ruled that the purely economic damages alleged in the Business Class Action are not recoverable under the law. In February 2018, the California Supreme Court granted a petition filed by the plaintiffs to review that ruling. No further updates were provided in the Company's SEC report. Sempra Energy, together with its subsidiaries, engages in energy business worldwide. It was founded in 1998 and is headquartered in San Diego, California. SERVICESOURCE INTERNATIONAL: Patton Case Underway in Delaware ------------------------------------------------------------- ServiceSource International, Inc. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the Company will continue to "vigorously defend" itself against the claims asserted in the case, Sarah Patton, et al v. ServiceSource Delaware, Inc. On August 23, 2016, the United States District Court for the Middle District of Tennessee granted conditional class certification in a lawsuit originally filed on September 21, 2015 by three former senior sales representatives. The lawsuit, Sarah Patton, et al v. ServiceSource Delaware, Inc., asserts a claim under the Fair Labor Standards Act, alleging that certain sales account representatives and senior sales representatives in the Company's Nashville location were not paid for all hours worked and were not properly paid for overtime hours worked. The complaint also asserts claims under Tennessee state law for breach of contract and unjust enrichment; however, the plaintiffs have not yet filed a motion to certify the state law breach of contract and unjust enrichment claims as a class action. The Company will continue to vigorously defend itself against these claims. ServiceSource International, Inc. is a global leader in outsourced, performance-based customer success and revenue growth solutions. The company is based in Denver Colorado. SNOOZE HIC: Faces Class Action in California Over Unpaid Wages -------------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a server employed by a restaurant owner alleges that it did not pay servers overtime, meal and/or rest period wages or waiting time wages. Trinity Amador-Stewart filed a complaint on behalf of herself and all others similarly situated on July 16 in the U.S. District Court for the Southern District of California against Snooze HIC LLC and Does 1-100 alleging violation of the Fair Labor Standards Act. According to the complaint, the plaintiff was employed by the defendant as a server at one of its San Diego restaurants. She alleges she was denied pay for all hours worked. The plaintiff holds Snooze HIC LLC and Does 1-100 responsible because the defendants allegedly failed to provide class members with accurate semi-monthly itemized wage statements, failed to consistently provide uninterrupted 30-minute meal periods and/or 10-minute rest periods, failed to pay all wages upon termination, and failed to compensate class members for overtime hours worked. The plaintiff requests a trial by jury and seek judgment against defendant for damages, certify class action, award of civil penalties, restitution, accounting, interest, attorneys' fees, costs of suit, and other relief as the court deems just. She is represented by Scott Edward Cole and Andrew Daniel Weaver of Scott Cole & Associates APC in Concord and Daniel D. Bodell -- dbodell@BODELLLAWGROUP.COM -- of Bodell Law Group in San Diego. U.S. District Court for the Southern District of California case number 3:18-cv-01604 [GN] SNYDER & SNYDER: Dismissal of Malpractice Claims Affirmed --------------------------------------------------------- In the case, DONNA CHINN and THOMAS MCGEE, Plaintiffs-Appellants, v. STEPHEN SNYDER, ESQ., SNYDER & SNYDER, MADELINE HOUSTON, ESQ., and HOUSTON & TOTARO, Defendants-Respondents, Case No. A-2585-16T4 (N.J. Super. App. Div.), Judge Harry G. Carroll of the Superior Court of New Jersey, Appellate Division, affirmed the trial court orders (i) dismissing Chinn and McGee's purported class action legal malpractice claims with and without prejudice pursuant to Rule 4:23-5(a)(1) and (2) for failure to produce discovery; (ii) denying reconsideration of those orders; and (iii) denying their motion to reinstate their amended complaint. On Sept. 21, 2015, Chinn and McGee filed a putative class action complaint in the Law Division alleging legal malpractice and related claims against attorneys who represented them in a multi-county consolidated matter alleging employment discrimination against Prudential Life Insurance Co. They claimed that they, and certain other Prudential employees and agents, settled their employment discrimination claims on a compromised basis because of, among other things, the alleged negligence of their attorneys, Defendants Stephen Snyder, Esq., and his firm, Snyder & Snyder, and Madeline Houston, Esq., and her firm, Houston & Totaro. On Nov. 2, 2015, the Plaintiffs filed an amended complaint refining their claims, but naming no new parties. Both the complaint and the amended complaint were filed by Edward R. Grossi, Esq., as the counsel for Plaintiffs. On March 21, 2016, Roper & Thyne, LLC (Roper) filed a notice of appearance as co-counsel for the Plaintiffs. On April 5, 2016, Houston moved to disqualify Roper as the Plaintiffs' counsel based on conflicts of interest arising from its involvement in the Prudential matter. On April 12, 2016, Snyder moved to disqualify Grossi and Roper as the Plaintiffs' counsel based on conflicts of interest arising from their involvement in the Prudential matter, and in a separate fee dispute arising from the Prudential matter. On May 13, 2016, the trial court granted the Defendants' motions to disqualify Grossi and Roper as the Plaintiffs' counsel. On July 13, 2016, the Plaintiffs retained Scott Piekarsky, Esq., to represent them. However, Piekarsky did not file a substitution of counsel until Oct. 6, 2016, almost three months later. Piekarsky's representation of the Plaintiffs was unknown to the Defendants' counsel until Oct. 6, 2016. On July 27, 2016, Houston's counsel, unaware of Piekarsky's representation of the Plaintiffs, sent letters to the Plaintiffs at the addresses in the amended complaint. The letters advised the Plaintiffs that their responses to Houston's discovery requests were overdue, and that if responses were not received by Aug. 19, 2016, Houston would move to dismiss the amended complaint. On July 29, 2016, Snyder's counsel, similarly unaware of Piekarsky's representation of the Plaintiffs, sent letters to the Plaintiffs at the addresses in the amended complaint via first-class, regular mail, and certified mail, return receipt requested. The letters advised the Plaintiffs that their responses to Snyder's discovery requests were overdue, and that if responses were not received by Aug. 15, 2016, Snyder would move to dismiss the amended complaint. Copies of the discovery requests were enclosed. On Aug. 29, 2016, Houston moved to dismiss the amended complaint without prejudice pursuant to Rule 4:23-5(a)(1) for the Plaintiffs' failure to respond to Houston's discovery requests. Because Piekarsky had not yet filed a substitution of counsel, Houston's counsel served the motion on the Plaintiffs at the addresses in the amended complaint. Both the certified mail and regular mail sent to both Plaintiffs was returned unclaimed. On Sept. 6, 2016, Snyder moved to dismiss the amended complaint without prejudice pursuant to Rule 4:23-5(a)(1) for the Plaintiffs' failure to respond to Snyder's discovery requests. Because Piekarsky had not yet filed a substitution of counsel, Snyder's counsel served the motion on the Plaintiffs at the addresses in the amended complaint. Both the certified mail and regular mail sent to both Plaintiffs was returned unclaimed. It is undisputed that when they filed their motions to dismiss the amended complaint without prejudice the Defendants were not delinquent with respect to the discovery requests served on them. On Sept. 16, 2016, the trial court granted Houston's unopposed motion to dismiss the amended complaint without prejudice pursuant to Rule 4:23-5(a)(1) for failure to respond to Houston's discovery requests. On September 22, 2016, Houston's counsel served a copy of the trial court's Sept. 16, 2016 order, along with the notice to pro se parties required by Rule 4:23-5(a)(1), on the Plaintiffs at the addresses in the amended complaint. The certified mail sent to Chinn was returned marked "Attempted - Not Known." The regular mail sent to both Plaintiffs was not returned. On Sept. 30, 2016, the trial court granted Snyder's motion to dismiss the amended complaint without prejudice pursuant to Rule 4:23-5(a)(1) for failure to respond to Snyder's discovery requests. It also dismissed the Plaintiffs' purported class action claims with prejudice because no counsel of record had appeared on behalf of the Plaintiffs. On Oct. 6, 2016, Snyder's counsel served a copy of the trial court's Sept. 30, 2016 order, along with the notice to pro se parties required by Rule 4:23-5(a)(1), on the Plaintiffs at the addresses in the amended. The certified mail sent to both Plaintiffs was returned unclaimed and the regular mail sent to was not returned. Also on Oct. 6, 2016, Piekarsky filed a substitution of counsel the notifying the Defendants that he represented the Plaintiffs. Upon receipt of a copy of the substitution, Snyder's counsel emailed a copy of the trial court's Sept. 30, 2016 order to Piekarsky. On Oct. 10, 2016, Snyder's counsel emailed Piekarsky a copy of the motion papers that resulted in entry of the Sep. 30, 2016 order. On Oct. 11, 2016, Houston moved to disqualify Piekarsky as the Plaintiffs' counsel. The trial court granted the motion on Nov. 4, 2016. On Nov. 16, 2016, Houston moved to dismiss the amended complaint with prejudice pursuant to Rule 4:23-5(a)(2). Houston's counsel served the motion papers, along with the notice to pro se parties required by the Rule, on the Plaintiffs at the addresses in the amended complaint. On Nov. 29, 2016, Snyder moved to dismiss the amended complaint with prejudice pursuant to Rule 4:23-5(a)(2). Snyder's counsel served the motion papers, along with the notice to pro se parties required by the Rule, on the Plaintiffs at the addresses in the amended complaint. On Dec. 9, 2016, the court sent a notice to each Plaintiff notifying them that they were required to appear on Dec. 16, 2016, the return date of the motions. McGee admits receiving the court's notice. On Dec. 15, 2016, after business hours, Michael J. Epstein, Esq., sent the Defendants' counsel an email stating that he had been retained by the Plaintiffs. Epstein stated that he intended to appear on the Plaintiffs' behalf the next day to seek an adjournment of the Defendants' motions to permit him to complete the Plaintiffs' discovery responses and move to reinstate the amended complaint. On Dec. 16, 2016, Epstein appeared on the return date of the motions. Although the court had directed the Plaintiffs to appear in person, they did not do so. Epstein requested an adjournment of the motions. On Dec. 16, 2016, the trial court granted the Defendants' motions to dismiss the amended complaint with prejudice. On Jan.10, 2017, the Plaintiffs moved for reconsideration of the trial court's Dec. 16, 2016 orders dismissing the amended complaint with prejudice, and for reinstatement of the amended complaint. In support of the motions, they submitted certifications denying that they had received any of the mail sent to them by the Defendants' counsel. On Feb. 3, 2017, the trial court denied the Plaintiffs' motions for reconsideration and to reinstate the amended complaint. The trial court placed its findings of fact and conclusions of law for both motions on the record. The Plaintiffs did not file a transcript of the court's Feb. 3, 2017 oral decision. As a result, it is not possible to ascertain from the record the reason for the trial judge's decisions. The appeal followed. The Plaintiffs appeal the Sept. 16, and Sept. 30, 2016 orders dismissing the amended complaint without prejudice, the Dec. 16, 2016 orders dismissing the amended complaint with prejudice, and the Feb. 3, 2017 order denying their motion for reconsideration of the Dec. 16, 2016 orders. They also challenge the Feb. 3, 2017 order denying their motion to reinstate the amended complaint. Judge Carroll concludes that the trial court did not abuse its discretion when entering the orders under appeal. As to the Sept. 16, 2016 and Sept. 30, 2016 orders dismissing the amended complaint without prejudice, he finds that the Defendants' motions to dismiss the amended complaint without prejudice pursuant to Rule 4:23-5(a)(1) were unopposed. He's not persuaded by the Plaintiffs' argument that the Defendants improperly took advantage of the Plaintiffs by moving to dismiss the amended complaint without prejudice after the disqualification of Grossi and Roper. Also, there is nothing in the record supporting the proposition that the Defendants' counsel attempted to exclude Piekarsky from being notified of the motions to dismiss. As to the Dec. 16, 2016 orders dismissing the amended complaint with prejudice, the Judge also concludes that the trial court did not abuse its discretion when it dismissed the amended complaint with prejudice. The trial court record established that the Defendants satisfied all of the requirements of Rule 4:23-5(a)(2). Orders dismissing the amended complaint without prejudice had been entered more than 60 days prior to the filing of the motions. The Defendants produced proof of service of the motions, as well as proof of service of the notices to pro se parties required by the Rule. Finally, as to the Feb. 7, 2017 order denying reconsideration, and Feb.7, 2017 order denying motion to reinstate amended complaint, the Judge finds that the trial court placed its findings of fact and conclusions of law with respect to the Plaintiffs' motion for reconsideration on the record on Feb. 3, 2017. The Plaintiffs did not file a copy of the transcript of the Feb. 3, 2017 proceedings, contrary to Rule 2:5-3(b). He is, therefore, unable to review the reasons given by the trial court for denying the Plaintiffs' motion, and decline to entertain the Plaintiffs' arguments. The same is true for the Plaintiffs' motion to reinstate the amended complaint, which was also decided in an oral opinion delivered on Feb. 3, 2017. In light of his decision affirming the dismissal of the amended complaint with prejudice, the Judge needs not reach the Plaintiffs' challenge to the orders concerning disqualification of counsel. Accordingly, Judge Carroll affirmed. A full-text copy of the Court's July 11, 2018 Opinion is available at https://is.gd/B2dGRO from Leagle.com. Kenneth S. Thyne argued the cause for appellant (Roper & Thyne, LLC, attorneys; Kenneth S. Thyne, on the brief). Marshall D. Bilder -- mbilder@eckertseamans.com -- argued the cause for respondents Stephen Snyder, Esq. and Snyder and Snyder (Eckert Seamans Cherin & Mellott, LLC, attorneys; Marshall D. Bilder, of counsel and on the brief). Madeline Houston -- HoustonTotaro@gmail.com -- respondent, argued the cause pro se and for respondent Houston & Totaro. SYNGENTA AG: Plaintiffs Attorney Seeks $150MM in Legal Fees ----------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that Texas plaintiffs attorney Mikal Watts is asking for at least $150 million in legal fees from the $1.5 billion settlement with Syngenta AG, citing his firm's "unique position in this litigation." The Watts Guerra attorney's fee request, filed last month but updated on Aug. 3, sets up a potential clash over what could be an estimated $500 million in fees in the class action settlement, which resolves claims by more than 600,000 farmers who alleged Syngenta sold genetically modified corn seed that China refused to import, causing farmers to lose billions of dollars. In a separate request for fees, lead counsel in the federal multidistrict litigation in Kansas are seeking that amount—about 33 percent of the total settlement fund. "This fee request is based on Watts Guerra's enormous investment in this litigation," Mr. Watts wrote in his motion. "It is on the high end of the range, perhaps, but not unprecedented." Watts claims to represent 57,000 farmers who could be entitled to between $345 million and $750 million under the settlement. Mr. Watts did not respond to a request for comment. The requests come as at least four other lawyers have challenged the fees in the deal, particularly those going to Mr. Watts. Oppositions to the fee requests are due Aug. 17. Chris Seeger of New York's Seeger Weiss, a member of the plaintiffs' settlement negotiation team, along with Watts and Patrick Stueve -- stueve@stuevesiegel.com -- of Kansas City, Missouri-based Stueve Siegel Hanson, co-lead and liaison counsel of federal multidistrict litigation, did not respond to requests for comment. The Syngenta litigation was coordinated in both federal multidistrict litigation in Kansas and in two proceedings in Minnesota and Illinois state courts. In their fee request, the lead lawyers in Syngenta want 50 percent of the $500 million, plus about $6.7 million in costs and expenses, which would go to a total 44 law firms. They want another 12.5 percent to go to the lead lawyers in the Minnesota state court, and 17.5 percent to attorneys in Illinois state court. The remaining $100 million would be reserved for other lawyers. The dispute mirrors fee fights that have erupted in mass torts between plaintiffs attorneys appointed to represent members of a class action and those who have brought individual suits on behalf of their clients. The vast majority of the farmers Watts represents have retainer agreements with him and filed individual suits in Minnesota state court. Last year, as part of the federal multidistrict litigation, a jury awarded $217.7 million to a class of Kansas farmers in the first bellwether trial. It was one of eight subclasses of farmers planned for trials. A second, on behalf of Minnesota farmers, was ongoing when both sides struck a deal. Watts Guerra partner Francisco Guerra -- fguerra@wattsguerra.com -- was co-lead plaintiffs counsel in Minnesota state court, but no one from the firm had a lead role in the federal multidistrict litigation. The firm did work on the Minnesota trial, however, and Watts was one of four lawyers appointed to the plaintiffs' negotiating committee. "That trial forced Syngenta finally to accept that it faced not just hundreds of millions of dollars in compensatory damages but a likely multibillion-dollar judgment based on intentional misconduct -- for the farmers in a single state," Mr. Watts wrote. "Then, in an instant, it was over." The initial settlement called for two agreements -- one on behalf of the class, and one on behalf of the individual plaintiffs, according to court filings. But the negotiated deal encompassed four subclasses -- two on behalf of farmers, one for grain handling facilities and another for ethanol producers. Final approval of the settlement is set for Nov. 15. Earlier this year, two attorneys in Beaumont, Texas, claiming to represent 9,000 farmers filed a motion to delay approval of the settlement, insisting the lead lawyers who negotiated the deal kept their clients in the dark on "how the settlement would be divided and distributed between the class actions and the individual producer plaintiffs." In particular, they claimed Mr. Watts and another lawyer on the plaintiffs settlement negotiation committee, Clayton Clark of Clark, Love & Hutson in Houston, dropped a more favorable settlement for farmers with individual lawsuits in exchange for higher fees. Another lawyer, D. Allen Hossley -- allen@hossleyembry.com -- of Hossley & Embry in Tyler, Texas, who claimed to represent 650 farmers, joined the motion, filed by Mitchell Toups -- matoups@wgttlaw.com -- of Weller, Green, Toups & Terrell and Richard Coffman -- rcoffman@coffmanlawfirm.com -- of The Coffman Law Firm (Toups and Coffman are now seeking $34 million in fees, while Hossley wants nearly $2.7 million). On April 24, Minneapolis attorney Doug Nill sued Mr. Watts. He claimed Mr. Watts, firm partner Guerra and Jon Givens, of counsel, who lives in Alaska, and 13 other small law firms or solo practitioners conspired to convince 60,000 farmers not to participate in the class action, and now could end up with $200 million in fees. The suit asked to void the retainer agreements, which included a contingency fee rate of 40 percent. In his fee request, Mr. Watts said he would drop his contingency fee to 33.3 percent. When accounting for what he had agreed to pay lead lawyers in the federal multidistrict litigation -- referred to as a common benefit assessment -- his contingency fee would drop to less than 24.2 percent, he wrote. But, anticipating that "some of the other common benefit counsel" may demand one-third of the settlement for themselves, he insisted that his fees come out of the $500 million and that he get reimbursed for the $12.8 million in common benefit expenses he paid in the Minnesota state court litigation. He cited a 2015 joint prosecution agreement that was designed to resolve future fee disputes among lawyers in both the Minnesota state court cases and federal multidistrict litigation. Mr. Watts backed up his fee request, which also includes 332 law firms that worked on his cases, with expert reports from six prominent legal scholars, including Brian Fitzpatrick of Vanderbilt Law School and Geoffrey Miller of New York University School of Law. It's not the first time Mr. Watts has faced scrutiny. Federal prosecutors indicted him on charges that he submitted phony clients to recover damages from the Deepwater Horizon oil spill in 2010. A federal jury acquitted him in 2016. [GN] TECHNIPFMC PLC: Still Defends Prause Shareholder Class Action ------------------------------------------------------------- TechnipFMC plc continues to defend itself against the "Prause" purported shareholder class action in Texas, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. A purported shareholder class action filed in 2017 and amended in January 2018 and captioned Prause v. TechnipFMC, et al., No. 4:17-cv-02368 (S.D. Texas) is pending in the U.S. District Court for the Southern District of Texas against the Company and certain current officers and a former employee of the Company. The suit alleges violations of the federal securities laws in connection with the Company's restatement of our first quarter 2017 financial results and a material weakness in our internal control over financial reporting announced on July 24, 2017. The Company is vigorously contesting the litigation and cannot predict its duration or outcome. TechnipFMC plc, a public limited company incorporated and organized under the laws of England and Wales, with registered number 09909709, and with registered office at One St. Paul's Churchyard, London EC4M 8AP, United Kingdom is a global leader in the subsea, onshore/offshore, and surface industries, with market-leading positions in oil and gas projects, technologies, systems, and services. TENET HEALTHCARE: Bid for Class Status in Maderazo Suit Pending --------------------------------------------------------------- Tenet Healthcare Corporation said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the Company is still awaiting the court's ruling on class certification in a purported class suit entitled, Maderazo, et al. v. VHS San Antonio Partners, L.P. d/b/a Baptist Health Systems, et al. The Company said, "In Maderazo, et al. v. VHS San Antonio Partners, L.P. d/b/a Baptist Health Systems, et al., filed in June 2006 in the U.S. District Court for the Western District of Texas, a purported class of registered nurses employed by three unaffiliated San Antonio-area hospital systems allege those hospital systems, including our Baptist Health System, and other unidentified San Antonio regional hospitals violated Section Sec. 1 of the federal Sherman Act by conspiring to depress nurses' compensation and exchanging compensation-related information among themselves in a manner that reduced competition and suppressed the wages paid to such nurses. The suit seeks unspecified damages (subject to trebling under federal law), interest, costs and attorneys' fees. The case was stayed from 2008 through mid-2015. At this time, we are awaiting the court's ruling on class certification and will continue to vigorously defend ourselves against the plaintiffs' allegations. It remains impossible at this time to predict the outcome of these proceedings with any certainty; however, we believe that the ultimate resolution of this matter will not have a material effect on our business, financial condition or results of operations." Tenet Healthcare Corporation is a diversified healthcare services company. The company is based in Dallas, Texas. TESLA INC: Bid to Dismiss Suit over Model 3 Production Underway --------------------------------------------------------------- The court hearing on the motion to dismiss a securities litigation relating to production of Model 3 vehicles was set for August 24, 2018, according to Tesla, Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On October 10, 2017, a purported stockholder class action was filed in the U.S. District Court for the Northern District of California against Tesla, Inc., two of its current officers, and a former officer. The complaint alleges violations of federal securities laws, and seeks unspecified compensatory damages and other relief on behalf of a purported class of purchasers of Tesla securities from May 4, 2016 to October 6, 2017. The lawsuit claims that Tesla supposedly made materially false and misleading statements regarding the Company's preparedness to produce Model 3 vehicles. Plaintiffs filed an amended complaint on March 23, 2018, and defendants filed a motion to dismiss on May 25, 2018. The court hearing on the motion to dismiss is set for August 24, 2018. The Company said, "We believe that the claims are without merit and intend to defend against this lawsuit vigorously. We are unable to estimate the possible loss or range of loss, if any, associated with this lawsuit." Tesla, Inc., designs, develops, manufactures, and sells electric vehicles and energy storage products in the United States, China, Norway, and internationally. The Company operates in two segments, Automotive, and Energy Generation and Storage. The Company was formerly known as Tesla Motors, Inc. and changed its name to Tesla, Inc. in February 2017. Tesla, Inc. was founded in 2003 and is headquartered in Palo Alto, California. TESLA INC: Faces Litigation Relating to 2018 CEO Performance Award ------------------------------------------------------------------ Tesla, Inc. is facing a putative class and derivative action in the Delaware Court of Chancery, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission for on August 6, 2018, the quarterly period ended June 30, 2018. On February 21, 2018, a purported Tesla stockholder made a demand to inspect Tesla's books and records, purportedly to investigate potential breaches of fiduciary duty in connection with the Tesla board's approval of a conditional stock-based compensation plan for Elon Musk, Tesla's Chairman and Chief Executive Officer, in January 2018. On June 4, 2018, that stockholder filed the putative class and derivative action alleging that Tesla's directors breached their fiduciary duties by approving the stock-based compensation plan. The complaint seeks, among other things, monetary damages and rescission or reformation of the stock-based compensation plan. The Company said, "We believe the claims asserted in this lawsuit are without merit and intend to defend against them vigorously." Tesla, Inc., designs, develops, manufactures, and sells electric vehicles and energy storage products in the United States, China, Norway, and internationally. The Company operates in two segments, Automotive, and Energy Generation and Storage. The Company was formerly known as Tesla Motors, Inc. and changed its name to Tesla, Inc. in February 2017. Tesla, Inc. was founded in 2003 and is headquartered in Palo Alto, California. TESLA INC: Shareholder Suit over SolarCity Acquisition Continues ---------------------------------------------------------------- Tesla, Inc. said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the securities litigation relating to the SolarCity acquisition "will now proceed." Between September 1, 2016 and October 5, 2016, seven lawsuits were filed in the Court of Chancery of the State of Delaware by purported stockholders of Tesla challenging the Company's acquisition of SolarCity. Following consolidation, the lawsuit names as defendants the members of Tesla's board of directors and alleges, among other things, that board members breached their fiduciary duties in connection with the acquisition. The complaint asserts both derivative claims and direct claims on behalf of a purported class and seeks, among other relief, unspecified monetary damages, attorneys' fees, and costs. On January 27, 2017, defendants filed a motion to dismiss the operative complaint. Rather than respond to the defendants' motion, the plaintiffs filed an amended complaint. On March 17, 2017, defendants filed a motion to dismiss the amended complaint. On December 13, 2017, the Court heard oral argument on the motion. On March 28, 2018, the Court denied defendants' motion to dismiss. Defendants filed a request for interlocutory appeal, but the Delaware Supreme Court denied that request, electing not to hear an appeal at this early stage of the case. Defendants filed their answer on May 18, 2018. This case will now proceed. These plaintiffs and others filed parallel actions in the U.S. District Court for the District of Delaware on April 21, 2017. Those actions have been consolidated and are stayed pending the Chancery Court litigation. They include claims for violations of the federal securities laws and breach of fiduciary duties by Tesla's board of directors. That action is stayed pending the Chancery Court litigation. On February 6, 2017, a purported stockholder made a demand to inspect Tesla's books and records, purportedly to investigate potential breaches of fiduciary duty in connection with the SolarCity acquisition. The Company said, "We believe that claims challenging the SolarCity acquisition are without merit and intend to defend against them vigorously. We are unable to estimate the possible loss or range of loss, if any, associated with these claims." Tesla, Inc., designs, develops, manufactures, and sells electric vehicles and energy storage products in the United States, China, Norway, and internationally. The Company operates in two segments, Automotive, and Energy Generation and Storage. The Company was formerly known as Tesla Motors, Inc. and changed its name to Tesla, Inc. in February 2017. Tesla, Inc. was founded in 2003 and is headquartered in Palo Alto, California. TRANS UNION: Violates Fair Credit Reporting Act, Marshall Suit Says ------------------------------------------------------------------- Kattie Marshall brought a class action lawsuit under the Fair Credit Reporting Act against Trans Union, LLC, Synchrony Bank and certain John Does. The case is titled as Kattie Marshall, individually and on behalf of all others similarly situated v. Trans Union, LLC, Synchrony Bank and John Does 1-25, Case No. 1:18-cv-03954-MHC-CMS (N.D. Ga., August 20, 2018). Trans Union LLC develops and delivers information and risk management solutions. The Company offers various credit monitoring products, risk management solutions, marketing services, and other related solutions. TransUnion provides its products and services throughout the world. Synchrony Bank provides banking products and services. Synchrony Bank provides certificates of deposit, money market and savings accounts, and IRAs, as well as online and mobile banking options. Synchrony Bank was formerly known as GE Capital Retail Bank and changed its name to Synchrony Bank in June 2014. Synchrony Bank was founded in 1988 and is based in Draper, Utah. Synchrony Bank operates as a subsidiary of Synchrony Financial.[BN] The Plaintiff is represented by: Jonathan Braxton Mason, Esq. MASON LAW GROUP, LLC 1100 Peachtree Street, NE, Suite 200 Atlanta, GA 30309 Telephone: (404) 920-8040 Facsimile: (404) 920-8039 E-mail: jmason@atlshowbizlaw.com TRANSAMERICA LIFE: Court Denies Bid to Dismiss K. McMahon's Suit ---------------------------------------------------------------- Judge Leonard T. Strand of the U.S. District Court for the Northern District of Iowa, Cedar Rapids Division, denied the Defendant's motion to dismiss the case, KAREN McMAHON, HEATHER McMAHON, and RONALD PERKINS, Plaintiffs, v. TRANSAMERICA LIFE INSURANCE COMPANY, Defendant, Case No. C17-149-LTS (N.D. Iowa). On Dec. 11, 2017, the Plaintiffs filed a purported class action complaint against the Defendant. The Plaintiffs contend that they represent a class of persons who purchased Transamerica's universal life insurance policies in the late 1980s and early 1990s. They contend that in August 2015, Transamerica suddenly, unilaterally, and massively began increasing monthly deductions withdrawn from the Policies' accounts, falsely stating the increases were permitted by the terms of the Policies, when in fact the reasons for imposing the dramatic increases were to: (a) subsidize Transamerica's cost of meeting its interest rate guarantees under the Policies; (b) recoup past losses in violation of the terms of the Policies; and (c) induce Policy terminations by policyholders. They contend that these actions further weakened Transamerica's policy reserves, resulting in near-term losses to its bottom line. The Plaintiffs assert two claims against Transamerica arising out of the conduct. Although they admit that Transamerica did not raise the MDR above the maximum amount guaranteed by the Policies, the Plaintiffs contend that Transamerica nevertheless breached the Policies by increasing the MDR for reasons not permitted by the terms of the Policies (specifically, to recover Transamerica's past losses). Further, they contend that even if Transamerica did not technically breach the Policies, its conduct constitutes a breach of the implied covenant of good faith and fair dealing. They contend that Transamerica misrepresented the reason for the MDR increases and intended the increases for improper purposes, including inducing shock lapses, negating the value of the guaranteed interest rates and recovering past losses. The Plaintiffs seek monetary damages, as well as declaratory and injunctive relief. The Defendants responded on May 7, 2013, by filing a pre-answer motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Transamerica argues that the Plaintiffs fail to state a claim for breach of contract because the Policies do not limit which factors Transamerica takes into consideration when setting the MDRs, as long as Transamerica does not exceed the maximum guaranteed MDRs. Regarding the Plaintiffs' claim for breach of the implied covenant of good faith and fair dealing, Transamerica repeats its argument that it did not breach the contract, and contends as a result that it did not injure the Plaintiffs' rights under the Policies. Finally, it claims that the Plaintiffs' request for declaratory judgment must be dismissed because it is duplicative of the breach of contract claim. Plaintiffs generally resist. The parties are proceeding under the assumption that Iowa law applies. Judge Strand agrees with the court in Feller v. Transamerica Life Ins. Co. that the Policies at issue are susceptible to the Plaintiffs' interpretation. It is apparent from the face of the contract that Transamerica cannot consider its past losses in exercising its discretion to set the MDR, and it is plausible that there are other limitations on its exercise of discretion. Because the Plaintiffs have adequately plead that Transamerica considered past losses and factors other than those related to the COI in raising the MDR, Transamerica's motion to dismiss Count One (breach of contract) is denied. The Judge finds that the Plaintiffs have plausibly alleged that their purpose in purchasing the Policies was to secure affordable life insurance while taking advantage of the guaranteed interest rate and avoiding the potential risks of a future economic downturn. They have also plausibly alleged that by raising the MDR for the purpose of inducing shock lapses and by misrepresenting the reasons for the MDR increase, Transamerica has acted in bad faith to undermine plaithe Ptiffs' rights in the Policies. Transamerica's argument that it did not raise the MDR's above the guaranteed maximum rate misses the point, because technical compliance with the contract terms does not defeat a claim for breach of the implied covenant of good faith and fair dealing. Transamerica's argument that it did not raise the MDRs for the purposes alleged ignores the directive, at this stage of the case, to accept the factual allegations of the complaint as true. Transamerica's motion to dismiss Count Two (breach of the implied covenant of good faith) is denied. Finally, although there is overlap between the claim for breach of contract and the request for a declaratory judgment, such that the claims may be considered duplicative, it is unclear at this point whether resolution of the Plaintiffs' breach of contract claim would necessarily resolve the parties' prospective rights under the Policies. Dismissal of the declaratory judgment action is premature. The Defendant's motion to dismiss is denied. For these reasons, Judge Strand denied the Defendant's motion to dismiss in its entirety. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/Pe9AU4 from Leagle.com. Karen McMahon, Heather McMahon & Ronald Perkins, Plaintiffs, represented by Jenna Lee Green, Hupy and Abraham, Paul V. Sweeny -- paul@sfclasslaw.com -- Squitieri & Fearon, LLP, pro hac vice, Stephen J. Fearon -- stephen@sfclasslaw.com -- Squitieri & Fearon, LLP, pro hac vice & Thomas William Kyle, Hupy and Abraham. Transamerica Life Insurance Company, Defendant, represented by Wilford H. Stone -- wstone@lynchdallas.com -- Lynch Dallas PC, Erin E. Bennett -- erin.bennett@mhllp.com -- McDowell Hetherington LLP, pro hac vice, Hutson B. Smelley, McDowell Hetherington LLP, pro hac vice, Jarrett E. Ganer -- jarrett.ganer@mhllp.com -- McDowell Hetherington LLP, pro hac vice & Thomas F.A. Hetherington -- tom.hetherington@mhllp.com -- McDowell Hetherington LLP, pro hac vice. TURTLE BEACH: Shareholders Class Action Trial Set for Nov. 2019 --------------------------------------------------------------- The hearing for a shareholders class action related to the merger of Turtle Beach Corporation and VTB Holdings, Inc. has been set for November 2019, according to Turtle Beach's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On August 5, 2013, VTBH and the Company (f/k/a Parametric) announced that they had entered into the Merger Agreement pursuant to which VTBH would acquire an approximately 80% ownership interest and existing shareholders would maintain an approximately 20% ownership interest in the combined company. Following the announcement, several shareholders filed class action lawsuits in California and Nevada seeking to enjoin the Merger. The plaintiffs in each case alleged that members of the Company's Board of Directors breached their fiduciary duties to the shareholders by agreeing to a Merger that allegedly undervalued the Company. VTBH and the Company were named as defendants in these lawsuits under the theory that they had aided and abetted the Company's Board of Directors in allegedly violating their fiduciary duties. The plaintiffs in both cases sought a preliminary injunction seeking to enjoin closing of the Merger, which, by agreement, was heard by the Nevada court with the California plaintiffs invited to participate. On December 26, 2013, the court in the Nevada cases denied the plaintiffs' motion for a preliminary injunction. Following the closing of the Merger, the Nevada plaintiffs filed a second amended complaint, which made essentially the same allegations and sought monetary damages as well as an order rescinding the Merger. The California plaintiffs dismissed their action without prejudice, and sought to intervene in the Nevada action, which was granted. Subsequent to the intervention, the plaintiffs filed a third amended complaint, which made essentially the same allegations as prior complaints and sought monetary damages. On June 20, 2014, VTBH and the Company moved to dismiss the action, but that motion was denied on August 28, 2014. On September 14, 2017, a unanimous en banc panel of the Nevada Supreme Court granted defendants' petition for writ of mandamus and ordered the trial court to dismiss the complaint but provided a limited basis upon which plaintiffs could seek to amend their complaint. Plaintiffs amended their complaint on December 1, 2017 to assert the same claims in a derivative capacity on behalf of the Company, as a well as in a direct capacity, against VTBH, Stripes Group, LLC, SG VTB Holdings, LLC, and the former members of the Company's Board of Directors. All defendants moved to dismiss this amended complaint on January 2, 2018, and those motions were denied on March 13, 2018. Defendants petitioned the Nevada Supreme Court to reverse this ruling on April 18, 2018. On June 15, 2018, the Nevada Supreme Court denied defendants' writ petition without prejudice. The district court subsequently entered a pretrial schedule and set trial for November 2019. Turtle Beach Corporation, headquartered in San Diego, California, and incorporated in the state of Nevada in 2010, is a premier audio technology company with expertise and experience in developing, commercializing and marketing innovative products across a range of large addressable markets operating under two reportable segments, Turtle Beach(R) ("Headset") and HyperSound(R). TYSON FOODS: Bid to Nix Broiler Chicken Grower Suit Still Pending ----------------------------------------------------------------- Tyson Foods, Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that a motion to dismiss the consolidated amended complaint styled In re Broiler Chicken Grower Litigation remains pending. On January 27, 2017, Haff Poultry, Inc., Craig Watts, Johnny Upchurch, Jonathan Walters and Brad Carr, acting on behalf of themselves and a putative class of broiler chicken farmers, filed a class action complaint against Tyson and certain of its poultry subsidiaries, as well as several other vertically-integrated poultry processing companies, in the United States District Court for the Eastern District of Oklahoma. On March 28, 2017, a second class action complaint making similar claims on behalf of a similarly defined putative class was filed in the United States District Court for the Eastern District of Oklahoma. Plaintiffs in the two cases sought to have the matters consolidated, and, on July 10, 2017, filed a consolidated amended complaint styled In re Broiler Chicken Grower Litigation. The plaintiffs allege, among other things, that the defendants colluded not to compete for broiler raising services "with the purpose and effect of fixing, maintaining, and/or stabilizing grower compensation below competitive levels." The plaintiffs also allege that the defendants "agreed to share detailed data on [g]rower compensation with one another, with the purpose and effect of artificially depressing [g]rower compensation below competitive levels." The plaintiffs contend these alleged acts constitute violations of the Sherman Antitrust Act and Section 202 of the Grain Inspection, Packers and Stockyards Act of 1921. The plaintiffs are seeking treble damages, pre- and post-judgment interest, costs, and attorneys' fees on behalf of the putative class. The Company and the other defendants filed a motion to dismiss on September 8, 2017. That motion is pending. Tyson Foods is one of the world's largest food companies. TYSON FOODS: Faces Antitrust Class Suits over Pork Product Prices ----------------------------------------------------------------- Tyson Foods, Inc. is facing putative class actions suits over alleged violation of antitrust laws related to pork and pork products, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On June 18, 2018, Wanda Duryea, Matthew Hosking, John McKee, Lisa Melegari, Michael Reilly, Sandra Steffan, Paul Glantz, Edwin Blakey, Jennifer Sullivan, Lisa Axelrod, Anbessa Tufa and Christina Hall, acting on behalf of themselves individually and on behalf of a putative plaintiff class consisting of all persons and entities who indirectly purchased pork, filed a class action complaint against the Company and certain of its pork subsidiaries, as well as several other pork processing companies, in the federal district court for the District of Minnesota. Subsequent to the filing of the initial complaint, additional lawsuits making similar claims on behalf of putative classes of direct and indirect purchasers were also filed in the same court. To date, four separate direct purchaser actions and four separate indirect purchaser actions have been filed, all in the District of Minnesota. The complaints allege, among other things, that beginning in January 2009 the defendants conspired and combined to fix, raise, maintain, and stabilize the price of pork and pork products in violation of United States antitrust laws. The complaints on behalf of the putative classes of indirect purchasers also include causes of action under various state unfair competition laws, consumer protection laws, and unjust enrichment common laws. The plaintiffs are seeking treble damages, injunctive relief, pre- and post-judgment interest, costs, and attorneys' fees on behalf of the putative classes. Tyson Foods is one of the world's largest food companies. TYSON FOODS: Hillshire Unit Still Defends Philippine Labor Case --------------------------------------------------------------- A subsidiary of Tyson Foods, Inc. continues to defend itself in a consolidated labor case pending in the Philippines, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The Company's subsidiary, The Hillshire Brands Company (formerly named Sara Lee Corporation), is a party to a consolidation of cases filed by individual complainants with the Republic of the Philippines, Department of Labor and Employment and the National Labor Relations Commission ("NLRC") from 1998 through July 1999. The complaint was filed against Aris Philippines, Inc., Sara Lee Corporation, Sara Lee Philippines, Inc., Fashion Accessories Philippines, Inc., and Attorney Cesar C. Cruz (collectively, the "respondents"). The complaint alleges, among other things, that the respondents engaged in unfair labor practices in connection with the termination of manufacturing operations in the Philippines in 1995 by Aris Philippines, Inc., a former subsidiary of The Hillshire Brands Company. In late 2004, a labor arbiter ruled against the respondents and awarded the complainants PHP3,453,664,710 (approximately US$65 million) in damages and fees. The respondents appealed the labor arbiter's ruling, and it was subsequently set aside by the NLRC in December 2006. Subsequent to the NLRC's decision, the parties filed numerous appeals, motions for reconsideration and petitions for review, certain of which remained outstanding for several years. While various of those appeals, motions and/or petitions were pending, The Hillshire Brands Company, on June 23, 2014, without admitting liability, filed a settlement motion requesting that the Supreme Court of the Philippines order dismissal with prejudice of all claims against it and certain other respondents in exchange for payments allocated by the court among the complainants in an amount not to exceed PHP342,287,800 (approximately US$6.4 million). Based in part on its finding that the consideration to be paid to the complainants as part of such settlement was insufficient, the Supreme Court of the Philippines denied the respondents' settlement motion and all motions for reconsideration thereof. The Supreme Court of the Philippines also set aside as premature the NLRC's December 2006 ruling. As a result, the cases were remanded back before the NLRC to rule on the merits of the case. On December 15, 2016, the Company learned that the NLRC rendered its decision on November 29, 2016, regarding the respondents' appeals regarding the labor arbiter's 2004 ruling in favor of the complainants. The NLRC increased the award for 4,922 of the total 5,984 complainants to PHP14,858,495,937 (approximately US$278 million). However, the NLRC approved a prior settlement reached with the group comprising approximately 18% of the class of 5,984 complainants, pursuant to which The Hillshire Brands Company agreed to pay each settling complainant PHP68,000 (approximately US$1,300). The settlement payment was made on December 21, 2016, to the NLRC, which is responsible for distributing the funds to each settling complainant. On December 27, 2016, the respondents filed motions for reconsideration with the NLRC asking that the award be set aside. The NLRC denied respondents' motions for reconsideration in a resolution received on May 5, 2017, and entered a judgment on the award on July 24, 2017. Each of Aris Philippines, Inc., Sara Lee Corporation and Sara Lee Philippines, Inc. appealed this award and sought an injunction to preclude enforcement of the award to the Philippines Court of Appeals. On November 23, 2017, the Court of Appeals granted a writ of preliminary injunction that precluded execution of the NLRC award during the pendency of the appeal. The Court of Appeals subsequently vacated the NLRC's award on April 12, 2018. Complainants have filed motions for reconsideration with the Court of Appeals. The Company said, "If those motions are denied, the Court of Appeals' decision nevertheless remains subject to appeal to the Supreme Court of the Philippines. We continue to maintain an accrual for this matter." Tyson Foods is one of the world's largest food companies. TYSON FOODS: Maplevale Farms Lawsuit Still in Discovery Phase ------------------------------------------------------------- The class action complaint filed by Maplevale Farms, Inc. against Tyson Foods, Inc. related to alleged violations of U.S. antitrust laws over broiler chicken prices is still in discovery phase, according to the Form 10-Q filed by Tyson Foods with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. On September 2, 2016, Maplevale Farms, Inc., acting on behalf of itself and a putative class of direct purchasers of poultry products, filed a class action complaint against the Company and certain of its poultry subsidiaries, as well as several other poultry processing companies, in the Northern District of Illinois. Subsequent to the filing of this initial complaint, additional lawsuits making similar claims on behalf of putative classes of direct and indirect purchasers were filed in the United States District Court for the Northern District of Illinois. The court consolidated the complaints, for pre-trial purposes, into actions on behalf of three different putative classes: direct purchasers, indirect purchasers/consumers and commercial/institutional indirect purchasers. These three actions are styled In re Broiler Chicken Antitrust Litigation. Several amended and consolidated complaints have been filed on behalf of each putative class. The currently operative complaints allege, among other things, that beginning in January 2008 the defendants conspired and combined to fix, raise, maintain, and stabilize the price of broiler chickens in violation of United States antitrust laws. The complaints on behalf of the putative classes of indirect purchasers also include causes of action under various state unfair competition laws, consumer protection laws, and unjust enrichment common laws. The complaints also allege that defendants "manipulated and artificially inflated a widely used Broiler price index, the Georgia Dock." It is further alleged that the defendants concealed this conduct from the plaintiffs and the members of the putative classes. The plaintiffs are seeking treble damages, injunctive relief, pre- and post-judgment interest, costs, and attorneys' fees on behalf of the putative classes. The court issued a ruling on November 20, 2017 denying all defendants' motions to dismiss. The Company said, "Decisions on class certification and summary judgment motions likely to be filed by defendants are not expected before the latter part of calendar year 2020 under the scheduling order currently governing the case. Scheduling for trial, if necessary, will occur after rulings on class certification and any summary judgment motions. Certain putative class members have opted out of this matter and are proceeding separately, and others may do so in the future." Tyson Foods is one of the world's largest food companies. UFC: Seeks Dismissal of Antitrust Class Action ---------------------------------------------- Dmitriy Shakhnevich, writing for MMA News, reports that several years ago, in December of 2014, the UFC was sued by numerous former fighters under their banner. The basis of the lawsuit, which ultimately named such notables as Cung Le, Jon Fitch and Nate Quarry as plaintiffs, was centered around the UFC's allegedly anti-competitive business model as it relates to the MMA industry. Basically, the plaintiffs alleged that the UFC is simply monopolizing the entire sport and thus, limiting opportunities for fighters. The law doesn't like when companies seek to dominate an industry by restricting where the workforce could go to make money. The UFC's defense is simple: "we're just better than everyone else. Others had the money at various points in history, but we still won and will continue to win." The UFC filed a Summary Judgment Motion, seeking to dismiss the lawsuit. Such a motion requires that the party making the motion show the following: (1) there are no facts in dispute; and (2) the law is clear that the moving party should win. Usually, the first prong is the hardest one to show. Naturally, when there are two opposing sides to a lawsuit, the facts are usually in dispute. Such is the case here. The UFC claimed that it won and continues to win because it pays fighters more, has better marketing/branding techniques and runs its company the best. Thus, fighters don't want to go elsewhere and other promotions die. The plaintiffs will likely claim that fighters cannot go anywhere else because the UFC buys other companies to shut them down, stages other events for free at the same time as rival promotions and contractually limits fighters in a way that reduces their worth in the marketplace. See how the facts can always be argued? This Summary Judgment Motion and the case in general will turn on how many pieces of documentary and testimonial evidence can speak to the above arguments. If there are indications that the evidence illustrates certain facts in dispute, the Motion should be denied. One thing is for sure: if the UFC has this case dismissed, then the fight for some of these athletes outside of the Octagon may be as hard as it is/was inside of it. [GN] UNIFUND CCR: Partial Denial of Certification in FDCPA Suit Affirmed ------------------------------------------------------------------- The Court of Appeals of Ohio, Eleventh District, Ashtabula County, affirmed the District Court's judgment denying in part Plaintiffs' Motion for Class Certification in the case captioned UNIFUND CCR PARTNERS, et al., Plaintiffs-Appellees, v. LISA R. PIASER, Defendant-Appellant, No. 2016-A-0076 (Ohio App.). Appellant, Lisa R. Piaser, appeals the judgment of the Ashtabula County Court of Common Pleas in favor of appellee, Unifund CCR Partners, et al., denying in part her motion for class certification on her counterclaim for violations of the federal Fair Debt Collection Practices Act (FDCPA). Unifund filed a complaint against Ms. Piaser in the Ashtabula County Municipal Court to collect an alleged credit card debt. The account was opened in April 2000, and the last payment she made was on July 5, 2000, leaving a balance of $267. Unifund alleged that Providian National Bank was the original creditor and that Unifund purchased the account from Providian. In her first amended answer and counterclaim, Ms. Piaser denied the material allegations of the complaint. She also asserted individual and class counterclaims, alleging Unifund violated the FDCPA, and the Ohio Consumer Sales Practices Act (CSPA) and committed various common law torts. Ms. Piaser filed a motion seeking to certify her counterclaims as a class action and Unifund filed a brief in opposition. Despite the court's earlier ruling that Unifund filed its claim against Ms. Piaser within the statute of limitations, Ms. Piaser sought to certify the Time-Bar Class, alleging that Unifund sued her and other class members outside the statute of limitations. She also asked the court to certify another class, which she called the Incompetence Class, alleging that Unifund sued her and others without a valid statutory assignment of the debt. The trial court entered judgment on Ms. Piaser's motion to certify. The court: (1) denied Ms. Piaser's motion to reconsider the court's June 28, 2013 judgment finding that Unifund timely filed its suit within the 15-year limitations period; (2) denied her motion to certify the Time-Bar Class; and (3) granted her motion to certify the Incompetence Class, but only as to her claim under the FDCPA, not as to her claim under the CSPA. Thus, the class action would proceed only as to the Incompetence Class on Ms. Piaser's claim for a violation of the FDCPA. Ms. Piaser appeals: (1) the trial court's 2013 judgment finding the 15-year statute of limitations applied; (2) the 2014 judgment denying her motion to compel discovery regarding the Time-Bar Class; and (3) that part of the 2016 judgment denying her motion for reconsideration of the court's 2013 judgment applying the 15-year statute. She asserts two assignments of error. For her first, she alleges: The trial court erred to the prejudice of defendant-appellant in finding that the Time-Bar Class failed the class certification requirement that the named representative must be a member of the class. For her second assigned error, Ms. Piaser alleges: The trial court abused its discretion in overruling defendant-appellant's motion to compel discovery of information relevant to the court's inquiry of defendant-appellant's motion for class certification. This assigned error refers to the court's 2013 judgment denying Ms. Piaser's motion for additional discovery regarding the Time-Bar Class. However, because this judgment is not a final order, this assignment of error lacks merit. In any event, Ms. Piaser concedes that Unifund produced enough discovery materials to support her motion to certify the Time-Bar Class. Moreover, she does not specify what additional information she needed or how not having it would prejudice her. Unifund asserts three cross-assignments of error. They contend: -- The trial court did not abuse its discretion in denying Ms. Piaser's motion to certify a time-bar class because Ms. Piaser's claims are not common to or typical of the purported class claim. -- The trial court did not abuse its discretion in denying Ms. Piaser's motion to certify a time-bar class because Ms. Piaser did not satisfy Civ.R. 23(B)(2). -- The trial court did not abuse its discretion in denying Ms. Piaser's motion to certify a time-bar class because Ms. Piaser did not satisfy Civ.R 23(B)(3). In light of the Ohio App.'s disposition of Ms. Piaser's first assignment of error, Unifund's cross assignments of error are moot. The assignments of error and cross-assignments of error are overruled. It is the order and judgment of this court that the judgment of the Ashtabula County Court of Common Pleas is affirmed. A full-text copy of the Ohio App.'s July 30, 2018 Opinion is available at https://tinyurl.com/yb6pcw2j from Leagle.com. Alan H. Abes, and Elizabeth M. Shaffer, Dinsmore & Shohl, LLP (For Plaintiffs-Appellees). Robert S. Belovich, and Anand N. Misra , The Misra Law Firm, L.L.C. (For Defendant-Appellant). UNITED STATES: Campbell County Joins PILT Program Class Action -------------------------------------------------------------- WNE reports that Campbell County will join a class-action lawsuit against the federal government that alleges underfunding of the Payments in Lieu of Taxes (PILT) program in 2015, 2016 and 2017. PILT are federal payments made to local governments that help offset losses in property taxes due to non-taxable federal lands in their boundaries. In fiscal year 2018, Campbell County received $773,973 in PILT. In June 2017, Kane County, Utah, filed a lawsuit in the U.S. Court of Federal Claims. The class action alleges the federal government has underpaid counties' PILT for fiscal years 2015-2017. Since then, hundreds of counties have joined the lawsuit. Campbell County Deputy Attorney Carol Seeger -- cseeger@seegerweiss.com -- said if the suit is successful, the county stands to get about $25,000 in PILT. "This is an opportunity to get $25,000 you may not have gotten," said County Administrative Director Robert Palmer. With a class action lawsuit, the settlement already has been agreed upon, Ms. Seeger said, and every participating county "is going to be subject to whatever they feel your percentage would've been." While the county won't have a seat at the table, it won't cost the commissioners to participate. "Is there any risk to being a part of this at all?" asked Commissioner Clark Kissack. "Unless you want to initiate a lawsuit yourself, there's no problem with joining," Ms. Seeger said. "Which we wouldn't do for $25,000," said Commission Chairman Mark Christensen. "It'd cost us more than we'd get." Campbell County joins 11 other Wyoming counties, including Sheridan, Converse and Crook counties, in the lawsuit. [GN] UNITED STATES: Judge Issues Ruling on Attorney Fees Issue --------------------------------------------------------- Scott Flaherty, writing for The American Lawyer, reports that a lateral move to a firm with roots in a more expensive city doesn't mean a judge is going to award that lawyer a bump in attorney fees in litigation, even if some of the work then gets done in that pricier hub, a recent court ruling shows. Ruling on a fee request by Arent Fox after a $130,000 settlement with the U.S. government on behalf of a group of Florida landowners, U.S. Court of Federal Claims Judge Patricia Campbell-Smith held that the firm deserves attorney fees based on the St. Louis market rates the lead attorney initially charged while working out of St. Louis-based Lathrop Gage's headquarters. She rejected the argument that he should earn the higher rates charged by Washington, D.C.-based Arent Fox after the lawyer switched to that firm's St. Louis office. Arent Fox had sought more than $1.1 million in fees plus more than $14,000 in costs. As the judge explained in her opinion, the fee issue arose in a "rails to trails" lawsuit that dates back to 2009. A team from Lathrop Gage, led by Mark "Thor" Hearne II, served as plaintiffs lawyers in the suit, representing a group of Florida landholders whose property included railway tracks formerly used by CSX Transportation Inc. CSX stopped using the railroad lines in 2004, and soon after, a federal agency proposed to set aside a strip of land near the tracks for recreational trails. The landowners alleged that amounted to an unlawful seizure of their land and sought compensation, according to court documents. Shortly after the suit was filed, Mr. Hearne and his team moved to the Arent Fox, still working primarily from that firm's St. Louis outpost. The litigation started as a putative class action, but was winnowed down to a smaller case with some 14 landholder plaintiffs. Following a summary judgment ruling in the government's favor, the case was narrowed further to claims from three plaintiffs. In 2013, the two sides struck the $130,000 settlement. Since then, they've been litigating Arent Fox's potential fees in light of a settlement in favor of its clients. The firm has argued for an award based on current market rates in Washington, D.C., while the government has urged lower St. Louis rates, adjusted to take account of the years in which the work was actually performed. Judge Campbell-Smith awarded $14,362 in costs to Arent Fox. But her ruling, made public on Aug. 1, faults the firm's fee request for $1.1 million in part because it relied on the legal market rates in Washington, D.C. -- where the firm is based and the federal claims litigation took place. Instead, the judge ruled, most of the lawyers' work happened in St. Louis, and since there's a significant difference between billing rates in Washington and St. Louis, the St. Louis rates should win out. To illustrate the differences in billing rates between the two cities, Campbell-Smith pointed to the proposed hourly rate for the lead partner in the case, Mr. Hearne. Arent Fox sought an hourly rate of $826 for Mr. Hearne, while the likely St. Louis market rate would be more like $504 per hour for a partner with Mr. Hearne's amount of experience, the judge wrote. Judge Campbell-Smith detailed several reductions she would impose when figuring out what to award Arent Fox in the case, according to her decision. Still, she didn't set a final fee award, concluding that the firm and the government needed to provide more information about the average St. Louis market rates for lawyers at different seniority levels, as laid out in billing rate surveys conducted by the publication "Missouri Lawyers Weekly." The Federal Claims judge also sided with the government on another key issue related to Arent Fox's fee request -- whether the award should be based on current or historical market rates for legal services. "The attorney billing rates shall be calculated based on the average hourly rates as reflected in the 'Missouri Lawyers Weekly' surveys, and shall be awarded historically," Judge Campbell-Smith wrote. [GN] UNITYPOINT HEALTH: Class Action Mulled Over 2nd Data Breach ----------------------------------------------------------- David Wahlberg, writing for Wisconsin State Journal, reports that an attorney who filed a class-action lawsuit against UnityPoint Health about a data breach discovered earlier this year is investigating additional action regarding a second security incident announced by the health system. In the latest problem, UnityPoint Health notified 1.4 million patients, including 76,000 in Wisconsin, that their names, addresses and medical information -- and, for some, driver's license, Social Security and payment card or bank account numbers -- may have been compromised. The Iowa-based provider, which includes UnityPoint Health-Meriter in Madison, said emails disguised to appear like they came from an executive with the organization tricked employees into providing sign-in information, giving the attackers access to their accounts from March 14 to April 3. UnityPoint Health said it discovered the problem May 31. The health system said it would offer free credit monitoring services for a year to people whose driver's license or Social Security number was involved. In April, UnityPoint Health notified 16,400 patients of a separate phishing attack, discovered in February and potentially involving data going back to November. A class-action lawsuit filed in May in U.S. District Court in Madison named two patients affected by the first breach. It alleges UnityPoint Health delayed reporting the problem and falsely told patients no Social Security numbers were involved. One of the patients, Yvonne Mart Fox, of Middleton, said in the lawsuit that she noticed an increase in robocalls and spam emails in early 2018. She said she had experienced daily anger and sleep disruption as a result of the data breach, which makes it "feel like I'm having surgery in public." Robert Teel, the Seattle attorney who filed the lawsuit, said on Aug. 6 that he is investigating the new breach. Fox and Grant Nesheim, of Mazomanie, the other patient named in the lawsuit, also received notice about the latest incident, Mr. Teel said. UnityPoint Health said it has reset passwords for compromised accounts, conducted mandatory employee training about recognizing phishing emails and implemented multi-factor authentication in accessing systems, in an effort to prevent similar situations. Patients who have questions or concerns can call 888-266-9285. [GN] VENETIAN CASINO: Court OKs M. Yousif to File 4th Amended Complaint ------------------------------------------------------------------ In the case, MUSTAFA YOUSIF and SHARONE WALKER on behalf of themselves and all others similarly situated, Plaintiffs, v. THE VENETIAN CASINO RESORT, LLC; LAS VEGAS SANDS, CORP. and DOES 1 through 50, inclusive, Defendants, Case No. 2:16-cv-02941-RFB-NJK (D. Nev.), Judge Richard F. Boulware, II of the U.S. District Court for the District of Nevada has entered the parties' stipulated order allowing the Plaintiffs to file with the Court, without further motion, their Proposed Fourth Amended Complaint. At the hearing held on May 24, 2018, the Court granted in part and denied in part the Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint and instructed the Plaintiffs to file a Third Amended Complaint. On May 29, 2018, the Plaintiffs filed their Third Amended Complaint; on June 12, 2018, the Defendants filed their Motion to Dismiss Plaintiffs' Third Amended Complaint. After reviewing and meeting and conferring with the Defendants regarding the same, the Plaintiffs now seek to amend their complaint for a fourth time by further narrowing the Plaintiffs' claims and removing allegations that are not supported by the evidence. By agreeing to the Plaintiffs filing the Proposed Fourth Amended Complaint, the Defendants are not agreeing to the merits of any claim, the factual allegations in the Fourth Amended Complaint, or waiving any defenses they may assert. The Parties further stipulated and agreed that the Defendants have 21 days from the date the Fourth Amended Complaint is filed to respond accordingly. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/hFxPDm from Leagle.com. Mustafa Yousif & Sharone Walker, Plaintiffs, represented by Joshua D. Buck -- josh@thiermanbuck.com -- Thierman Buck, LLP, Leah Lin Jones , Thierman Buck, LLP & Mark R. Thierman , Thierman Buck, LLP. The Venetian Casino Resort, LLC & Las Vegas Sands, Corp., Defendants, represented by Anthony L. Martin -- anthony.martin@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Patrick F. Hulla -- patrick.hulla@ogletree.com -- Ogletree Deakins, pro hac vice & Dana B. Salmonson -- dana.salmonson@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, P.C.. VIRTU FINANCIAL: Faces 2nd Amended Complaint over KCG Acquisition ----------------------------------------------------------------- Virtu Financial, Inc. is defending itself against a second amended class action complaint related to its acquisition of KCG Holdings, Inc. ("KCG"), according to Virtu Financial's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company said, "In connection with the Acquisition of KCG, a previously filed complaint, which was initially captioned Greenway v. KCG Holdings, Inc., et al., Case No. 2017-421-JTL and filed on behalf of a putative class in Delaware Chancery Court, was recaptioned Chester County Employees' Retirement Fund v. KCG Holdings, Inc., et al., amended and refiled on February 14, 2018 to include claims for the alleged breach of fiduciary duties against former KCG board members, claims against each of Virtu and Jefferies for allegedly aiding and abetting the KCG board members' alleged breaches of fiduciary duty and a claim against Virtu and Jefferies for alleged civil conspiracy. The amended complaint was again amended on July 16, 2018 with the filing of the Verified Second Amended Class Action Complaint (the "Second Amended Complaint") to include additional factual allegations. No amount of damages is stated in the Second Amended Complaint, against which Virtu intends to defend vigorously." Virtu Financial, Inc., together with its subsidiaries, provides market making and liquidity services through its proprietary, multi-asset, and multi-currency technology platform to the financial markets worldwide. The Company was founded in 2008 and is headquartered in New York, New York. VISTRA ENERGY: Still Defends Consolidated Gas Index Pricing Suit ---------------------------------------------------------------- Vistra Energy Corp. continues to face a consolidated lawsuit in Nevada related to alleged gas index pricing manipulation, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The Company, through its subsidiaries, and other energy companies are named as defendants in several lawsuits claiming damages resulting from alleged price manipulation through false reporting of natural gas prices to various index publications, wash trading and churn trading from 2000-2002. The cases allege that the defendants engaged in an antitrust conspiracy to inflate natural gas prices in three states (Kansas, Missouri and Wisconsin) during the relevant time period and seek damages under the respective state antitrust statutes. Four of the cases are putative class actions and one case, Reorganized FLI (nka J.P. Morgan Trust Co., National Assn.) v. Oneok Inc., et al., is an individual action on behalf of Farmland Industries, Inc. (Farmland), with Farmland seeking full consideration damages (i.e., the full amount it paid for natural gas purchases during the relevant timeframe). The cases are consolidated in a multi-district litigation proceeding pending in the U.S. District Court for Nevada. In March 2017, the court denied the class plaintiffs' motions to certify class actions in each of the states, which decision now is on an interlocutory appeal to U.S Court of Appeals for the Ninth Circuit (Ninth Circuit Court); the appeal is fully briefed and was argued in July 2018. As for the Farmland matter, in March 2018, the Ninth Circuit Court reversed a summary judgment in favor of the defendants and it shortly will be remanded for further discovery and other pretrial proceedings. The Company said, "While we cannot predict the outcome of these legal proceedings, or estimate a range of costs, they could have a material impact on our results of operations, liquidity or financial condition." Vistra Energy Corp. is a Texas-based energy company focused on the competitive energy and power generation markets. VOYA FINANCIAL: Appeal from Dismissal of Patrico Suit Underway -------------------------------------------------------------- The Plaintiff's appeal from the dismissal of the putative class action styled Patrico v. Voya Financial, Inc., et al (USDC SDNY, No. 1:16-cv-07070) (filed September 9, 2016) remains pending in the U.S Court of Appeals for the Second Circuit, according to Voya Financial's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The putative class action in which plaintiff, a participant in a 401(k) Plan, seeks to represent a class of plans "for which Voya or its subsidiaries provide recordkeeping, investment management or investment advisory services and for which Financial Engines provides investment advice to plan participants." Plaintiff alleges that the Company and its affiliates have violated ERISA by charging unreasonable fees in connection with in-plan investment advice provided in conjunction with Financial Engines, a third-party investment adviser. Plaintiff seeks declaratory and injunctive relief, disgorgement of profits, damages and attorney's fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. On June 20, 2017, the district court granted the Company's motion to dismiss, but permitted the plaintiff to file an amended complaint. The plaintiff filed a motion for leave to file a first amended complaint, the Company opposed that motion, and on March 13, 2018, the district court denied the plaintiff's motion for leave to file an amended complaint and closed the case. Plaintiff filed her notice of appeal to the U.S Court of Appeals for the Second Circuit on April 11, 2018. Voya Financial, Inc. operates as a retirement, investment, and insurance company in the United States. It operates through Retirement, Investment Management, Individual Life, and Employee Benefits segments. The company is based in New York. VOYA FINANCIAL: Bid to Dismiss "Cutler" COI Lawsuit Underway ------------------------------------------------------------ Voya Financial, Inc.'s motion to dismiss the cost-of-insurance litigation styled Cutler v. Voya Financial, Inc. and ReliaStar Life Insurance Company (USDC S.D. Florida, No. 1:18-cv-20723) (filed February 23, 2018) remains pending, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The Company said, "Industry wide, life insurers continue to be exposed to class action litigation related to the cost of insurance rates and periodic deductions from cash value. Common allegations include that insurance companies have breached the terms of their universal life insurance policies by establishing or increasing the cost of insurance rates using cost factors not, permitted by the contract or that thereby unjustly enriching themselves. This litigation is generally known as cost of insurance litigation. "Such litigation includes Cutler v. Voya Financial, Inc. and ReliaStar Life Insurance Company (USDC S.D. Florida, No. 1:18-cv-20723) (filed February 23, 2018), in which the plaintiff alleges that his insurance policy only permitted the Company to rely upon his expected future mortality experience to establish and increase his cost of insurance, but the Company instead relied upon other, non-disclosed factors to do so." On April 16, 2018, the Company filed a motion to dismiss the Cutler complaint in its entirety against Voya Financial and partially against ReliaStar. The Plaintiff has opposed the Company's motion. Voya Financial, Inc. operates as a retirement, investment, and insurance company in the United States. It operates through Retirement, Investment Management, Individual Life, and Employee Benefits segments. The company is based in New York. VOYA FINANCIAL: Bid to Dismiss Amended "Goetz" Complaint Pending ---------------------------------------------------------------- A motion to drop the amended complaint in the putative class action styled Goetz v. Voya Financial and Voya Retirement Insurance and Annuity Company (USDC District of Delaware, No. 1:17-cv-1289) (filed September 8, 2017) remains pending, according to Voya Financial, Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The putative class action in which plaintiff, a participant in a 401(k) plan, seeks to represent other participants in the plan as well as a class of similarly situated plans that "contract with [Voya] for recordkeeping and other services." Plaintiff alleges that "Voya" breached its fiduciary duty to the plan and other plan participants by charging unreasonable and excessive recordkeeping fees, and that "Voya" distributed materially false and misleading 404a-5 administrative and fund fee disclosures to conceal its excessive fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. Plaintiff filed an amended complaint on January 4, 2018, and the Company filed a motion to dismiss the amended complaint on February 8, 2018. No further updates were provided in the Company's SEC report. Voya Financial, Inc. operates as a retirement, investment, and insurance company in the United States. It operates through Retirement, Investment Management, Individual Life, and Employee Benefits segments. The company is based in New York. VOYA FINANCIAL: Bid to Dismiss Dezelan Amended Complaint Underway ----------------------------------------------------------------- A motion to dismiss a first amended complaint in the putative class actions styled Dezelan v. Voya Retirement Insurance and Annuity Company (USDC District of Connecticut, No. 3:16-cv-1251) (filed July 26, 2016) remains pending, according to Voya Financial, Inc.'s Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The putative class action in which plaintiff, a participant in a 403(b) Plan, seeks to represent a class of plans whose assets are invested in Voya Retirement Insurance and Annuity Company ("VRIAC") "Group Annuity Contract Stable Value Funds." Plaintiff alleges that VRIAC has violated the Employee Retirement Income Security Act of 1974 ("ERISA") by charging unreasonable fees and setting its own compensation in connection with stable value products. Plaintiff seeks declaratory and injunctive relief, disgorgement of profits, damages and attorney's fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. On July 19, 2017, the district court granted the Company's motion to dismiss, but permitted the plaintiff to file an amended complaint. The plaintiff has filed a first amended complaint, and the Company moved to dismiss that complaint on September 18, 2017. Voya Financial, Inc. operates as a retirement, investment, and insurance company in the United States. It operates through Retirement, Investment Management, Individual Life, and Employee Benefits segments. The company is based in New York. VOYA FINANCIAL: Bid to Trim Barnes Complaint Pending ---------------------------------------------------- Voya Financial, Inc.'s move for a partial dismissal of the cost-of-insurance putative class action styled Barnes v. Security Life of Denver (USDC Colorado, No. 1:18-cv-00718) (filed March 27, 2018) remains pending, according to the Company's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The plaintiff in this putative class action alleges that his insurance policy only permitted the Company to rely upon his expected future mortality experience to establish and increase his cost of insurance, but the Company instead relied upon other, non-disclosed factors to do so. The Company said it denies the allegations in the complaint, believes both to be without merit, and intends to defend the case vigorously. On May 15, 2018, the Company moved for a partial dismissal of the Barnes complaint. The Plaintiff in the action has opposed the Company's motion. Voya Financial, Inc. operates as a retirement, investment, and insurance company in the United States. It operates through Retirement, Investment Management, Individual Life, and Employee Benefits segments. The company is based in New York. WASATCH ADVANTAGE: Calif. Court Certifies Tenant Class ------------------------------------------------------ The United States District Court for the Eastern District of California granted Plaintiffs' Motion for Class Certification in the case captioned UNITED STATES OF AMERICA, ex rel. DENIKA TERRY and ROY HUSKEY III, and each of them for themselves individually, and for all other persons similarly situated and on behalf of the UNITED STATES OF AMERICA, Plaintiffs/Relators, v. WASATCH ADVANTAGE GROUP, LLC, WASATCH PROPERTY MANAGEMENT, INC., WASATCH POOL HOLDINGS, LLC, CHESAPEAKE COMMONS HOLDINGS, LLC, LOGAN PARK APARTMENTS, LLC; LOGAN PARK APARTMENTS, LP, Defendants, No. 2:15-cv-00799 KJM DB (E.D. Cal.). The Plaintiffs are tenants who receive rental assistance through the federally subsidized Housing Choice Voucher Program commonly known as Section 8. They claim the defendant lessors improperly charged the plaintiffs, as well as the putative class members they seek to represent, for washer and dryer rentals, renter's insurance and covered parking. The Plaintiffs argue these services constitute impermissible rent under the Section 8 contracts and regulations, and the defendants therefore violated the Section 8 contracts and submitted false claims for reimbursement under the federal program. Plaintiffs seek certification of two classes. First, plaintiffs seek certification of a Rule 23(b)(3) class for damages or restitution defined as: All persons who, in the time period starting four years prior to the date of filing this Complaint through the final resolution of this matter, (1) have been tenants at any of Defendants' California properties; (2) have participated in the Section 8 Housing Choice Voucher Program in connection with their tenancies at the California properties; and (3) have paid additional charges set forth in Additional Services Agreements in excess of their individual portions of the contract set forth in the HAP Contracts. Second, the plaintiffs seek certification of a Rule 23(b)(2) class for declaratory and injunctive relief defined as: All persons who: (1) are or will become tenants at any of Defendants' California properties; (2) participate or will participate in the Section 8 Housing Choice Voucher Program in connection with their tenancies at the California properties; and (3) pay or will pay additional charges set forth in Additional Services Agreements in excess of their individual portions of the contract rent set forth in the HAP Contracts. The Plaintiffs seek to certify these classes as to plaintiffs' California state law claims for breach of contract, violation of the Consumer Legal Remedies Act and violation of the Unfair Competition Law. Numerosity The Plaintiffs contend they have satisfied the numerosity requirement of Rule 23(a). The Defendants do not disagree. Under the numerosity requirement, a class must be so numerous that joinder of all members is impracticable. This requirement is presumptively satisfied when there are at least forty members. The Plaintiffs have indicated an inability to compile a class list despite multiple discovery requests to the defendants. According to the plaintiffs, opposing counsel has replied that the plaintiffs' counsel should compile such a class list ourselves based on the document production despite deposition testimony that certain Section 8 tenant files could not be located, and thus were not provided. The Plaintiffs have therefore estimated class size until the matter maybe pressed during merits discovery. Regardless, the plaintiffs assert the class size exceeds 150 members "in four Sacramento properties alone" and the court finds the evidence provided supports this assertion. The Plaintiffs have satisfied the numerosity requirement. Typicality The Plaintiffs contend the HAP Contracts and other documents attached to the Terry and Huskey declarations are standard form HAP contracts and standard forms used by defendants at all of their California properties. For the Rule 23(b)(3) class, defendants assert named plaintiffs' claims are not typical of the class because the named plaintiffs are subject to unique defenses that other putative class members currently living in Wasatch properties would not be subject to. For Terry, this would include the affirmative defense of res judicata because she was evicted in a judicial proceeding for failure to pay rent and perjury at her deposition. For Huskey, unique defenses would include his eviction for repeated racist conduct and his voluntarily signing up for additional service or appliances. The court finds the claims of the named plaintiffs typical of the claims and defenses of the class. Here, the plaintiffs claim defendants treated additional charges as rent in violation of state law and contrary to standard form contracts between defendants and their Section 8 tenants. The contracts for Terry, Huskey and the other tenants are substantially identical. The Defendants' use of standard forms for these contracts supports typicality. The Defendants' treatment of Terry's and Huskey's additional charges does not appear to differ from the defendants' treatment of additional charges for other potential class members. Here, there is no concern about variation in the named plaintiffs' damages from class members' damages because it is sufficient for typicality if the plaintiff endured a course of conduct directed against the class. The Defendants' argument that Terry's eviction operates as res judicata here also is unavailing because an unlawful detainer action would not preclude the plaintiffs' putative class action claims. The Plaintiffs' putative class action claims do not involve the right of possession or any claims related to title. Additionally, Huskey's voluntary signing up for additional services would not and did not change how the defendants handled any past due amounts in relation to a tenant's rent obligations, default, and notices to perform or quit. Nor would the defendants' basis for their 3 Day Notice to Perform or Quit serve as a unique defense that will become the focus of the litigation over the defendants' alleged treatment of additional charges as rent. These legally irrelevant differences, along with the legally irrelevant basis for Huskey's eviction, do not render Huskey's or Terry's claims atypical. Adequacy The Plaintiffs contend putative class members have suffered the same injuries from the defendants' unlawful actions as named plaintiffs: being charged more rent than allowed under federal law and the HAP Contracts. Although the defendants do not expressly contend the named plaintiffs are not adequate to represent the class, the defendants do refer to deposition testimony in which Terry admits she did not read the complaint in this case and believed the class action complaint involved the same claims as her state habitability lawsuit. But supplemental deposition transcripts provided by the plaintiffs provide the full context of Terry's understanding of her position as a class representative. For instance, Terry understood she was not the only person that will possibly be going through the things that she is going through. Terry also clearly stated an understanding of the lawsuit involving Section 8, things like insurance. Terry noted she paid for insurance, for the washers, dryers, things of that nature that was required that had nothing to do with Section 8 that they were charging us for. The Plaintiffs have satisfied the adequacy requirement. Commonality and Predominance For their breach of contract claim, the plaintiffs contend the core issue common to the class is whether the side payments for additional charges constitute additional rent prohibited under the HAP Contracts and leases. For their CLRA claim, the plaintiffs contend defendants violated the statute because they were prohibited by law from charging additional rent beyond the contract rent and therefore misrepresented an obligation to tenants prohibited by law. For their UCL claim, the plaintiffs assert common issues predominate in part because the UCL claims here are based on the defendants' unlawful business act or practice of charging and collecting additional side payments from Section 8 tenants, a policy that violates federal law prohibiting an owner from charging or accepting rent beyond the contract rent. To prevail on a motion to certify a class under Rule 23(b)(3), the party seeking certification must show: (1) that the existence of individual injury resulting from the alleged violation is capable of proof at trial through evidence that is common to the class rather than individual to its members; and (2) that the damages resulting from that injury [are] measurable on a class-wide basis through use of a common methodology. Here, the plaintiffs have established common questions of law that apply to all class members' claims. The Plaintiffs' claims all involve the resolution of whether the defendants' additional charges set forth in Additional Services Agreements violated the defendants' HAP Contract provisions with Section 8 tenants or federal law. Resolving this issue would resolve the plaintiffs' breach of contract claim, CLRA claim, UCL claim under any prong, and even the non-class False Claims Act claim. The Defendants have not contested the plaintiffs' substantial evidence that the defendants used the same standard forms for the various agreements that apply to all potential class members. California courts often find predominance satisfied in CLRA cases because causation, on a class-wide basis, may be established by materiality, meaning that if the trial court finds that material misrepresentations have been made to the entire class, an inference of reliance arises as to that class. Here, the plaintiffs allege the misrepresentations occurred in the standard form agreements and other documents, including Three-Day Notices to Perform Financial Covenant of Lease or Quit, misrepresenting to class members their obligation to pay additional charges prohibited by federal law. All evidence before the court indicates all members of the plaintiffs' proposed class received these same standard forms, including deposition testimony from defendants' witnesses. No issues pertaining to commonality preclude class certification of the plaintiffs' UCL claim. To the extent the plaintiffs' claims rely on the UCL's unlawful prong, the court has already addressed common issues above because the breach of contract claim overlaps with asserted federal law violations and the defendants' violating the CLRA would satisfy the unlawful prong. The Plaintiffs' False Claims Act claim involves the same issue, namely conduct violating the HAP Contract provisions prohibiting defendants from charging additional rent above the contract rent. The Defendants' contentions about materiality and reliance related to the CLRA are unavailing as well when applied to the plaintiffs' UCL claims. Claims under the fraudulent and unfair prongs of the UCL statute require a plaintiff to satisfy a modest burden of proof: the representative plaintiff must show that members of the public are likely to be deceived by the practice. Courts assess likelihood of deception under a reasonable consumer standard. All evidence currently before the court indicates the named plaintiffs, class members and the defendants all expected the tenant class members to pay their additional charges or face eviction. No evidence suggests class members believed they were not obligated to pay additional charges, including mandatory additional charges or optional charges once the tenant chose those options. Superiority: Rule 23(b)(3) Class The Plaintiffs contend a class action suit is superior to other methods here in part because the individual damages are really small and would be outweighed by the expense and burden of separate lawsuits that cannot be sustained by low-income individuals receiving rent subsidies under Section 8. The Defendants contest the plaintiffs' claims that the litigation would devolve into a series of individualized mini-trials and would involve presentation of historic market data, comparable property data, what was considered the locality, vacancy rates, 30 day notice rates, and other evidence that would be daunting for even the most enthusiastic juror. Rule 23(b)(3) provides that superiority is determined by considering, for example, (A) the class members' interests in individually controlling the prosecution or defense of separate actions;(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and(D) the likely difficulties in managing the class action. Here, the individual damages are quite low. Additionally, putative class members, as members of the Section 8 program, are low-income tenants who likely lack the resources to finance and direct individual suits. This factor favors certification. The second factor, the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, is meant to assure judicial economy and reduce the possibility of multiple lawsuits. Here, plaintiffs' counsel are not aware of any other related litigation. Defendants do not assert any concerns about related litigation. This factor favors certification. The third factor is the desirability or undesirability of concentrating the litigation in this forum. The putative Rule 23(b)(3) class comprises only those current and former tenants located in California, coinciding with California state law claims. This factor favors certification. The fourth factor weighs the likely difficulties in managing the class action. As discussed previously, defendants' concerns about individualized mini-trials in essence repeat their concerns about individualized damages, not individual determinations of liability. As recognized by other federal courts, the fourth factor overlaps with the court's commonality and typicality analysis. Here, the court's commonality and typicality analyses identify no difficulties in managing the class action that would cause this factor to weigh against certification. The court finds the Rule 23(b)(3) class satisfies the superiority requirement. Ascertainability The Defendants contend the class definition is so overbroad it violates the ascertainability requirement of a certifiable class. The Plaintiffs contend the defendants ignore the clear, objective class definition in the proposed TAC and moving papers: Section 8 tenants at the defendants' California properties who have paid additional charges during a specific time period. Proposed class members are therefore readily determined from the defendants' records. The court finds the plaintiffs' definition satisfies the ascertainability requirement. The Plaintiffs' proposed class definition will allow the court to efficiently and objectively ascertain whether a particular person is a class member based on the defendants' records. And the defendants' concerns about additional rent payments as part of the definition is already resolved by the plaintiffs' change in the definition to additional charges set forth in Additional Services Agreements. Accordingly, the Plaintiffs' motion for class certification as to the Rule 23(b)(3) class is granted. A full-text copy of the District Court's July 30, 2018 Order is available at https://tinyurl.com/y7ammo4z from Leagle.com. Denika Terry & Roy Huskey, III, Plaintiffs, represented by Andrew Wolff -- andrew@awolfflaw.com -- Law Office of Andrew Wolff, PC & Jesse Mica Newmark. United States of America, Intervenor Plaintiff, represented by Vincente Antonio Tennerelli , United States Attorney's Office. Wasatch Advantage Group, LLC, a California Limited Liability Company, Wasatch Property Management, Inc., a California Corporation, Wasatch Pool Holdings, LLC, a California Limited Liability Company, Chesapeake Commons Holdings, LLC, a California Limited Liability Company, Logan Park Apartments, LLC, a California Limited Liability Company & Logan Park Apartments, LP, a California Limited Partnership, Defendants, represented by Joseph A. Salazar, Jr. -- Joe.Salazar@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith LLP & Ryan James Matthews -- ryan.matthews@lewisbrisbois.com -- Lewis Brisbois Bisgaard and Smith. WILL LIFE: Court Denies Bid to Dismiss S. Fairlie's Suit -------------------------------------------------------- Judge Leonard T. Strand of the U.S. District Court for the Northern District of Iowa, Cedar Rapids Division, denied the Defendant's motion to dismiss the case, SUZANNE FAIRLIE and ODIS, WRIGHT, Plaintiffs, v. WILL LIFE INSURANCE COMPANY and WILL PREMIER LIFE INSURANCE COMPANY, Defendant, Case No. C18-32-LTS (N.D. Iowa). On March 29, 2018, the Plaintiffs filed a purported class action complaint against the Defendant. The Plaintiffs contend that they represent three classes of persons who purchased will's universal life insurance policies in the late 1980s and early 1990s. They allege that in August 2015, will suddenly, unilaterally, and massively began increasing monthly deductions withdrawn from the Policies' accounts, falsely stating the increases were permitted by the terms of the Policies, when in fact the reasons for imposing the dramatic increases were to: (a) subsidize will 's cost of meeting its interest rate guarantees under the Policies; (b) recoup past losses in violation of the terms of the Policies; and (c) induce Policy terminations by policyholders. They contend that these actions further weakened will 's policy reserves, resulting in near-term losses to its bottom line. The Plaintiffs assert claims for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of California's unfair competition law, violation of Pennsylvania's unfair trade practice and consumer protection law, and elder abuse under California law. They seek declaratory and injunctive relief in addition to monetary damages. The Defendants responded on June 11, 2018, by filing a pre-answer motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). will first argues that Wright's claims must be dismissed in their entirety, because the pleadings embrace only the contract terms contained in Fairlie's Policy. Turning to the breach of contract claim, will argues that the Plaintiffs fail to state a claim for breach of contract because the Policies do not limit which factors will takes into consideration when setting the MDRs, as long as will does not exceed the maximum guaranteed MDRs. Regarding the Plaintiffs' claim for breach of the implied covenant of good faith and fair dealing, will repeats its argument that it did not breach the contract, and contends as a result that it did not injure plaintiffs' rights under the Policies. will contends that Fairlie's claim for a violation of Pennsylvania's consumer protection laws fails to meet the requirements under that law. And finally, it claims that the Paintiffs' request for declaratory judgment must be dismissed because it is duplicative of the breach of contract claim. The Plaintiffs generally resist. Judge Strand agrees with the court in Feller v. will Life Ins. Co. that the Policies at issue are susceptible to the Plaintiffs' interpretation. It is apparent from the face of the contract that will cannot consider its past losses in exercising its discretion to set the MDR, and it is plausible that there are other limitations on its exercise of discretion. Because the Plaintiffs have adequately plead that will considered past losses and factors other than those related to the COI in raising the MDR, will 's motion to dismiss Count One (breach of contract) is denied. The Judge finds that the Plaintiffs have plausibly alleged that their purpose in purchasing the Policies was to secure affordable life insurance while taking advantage of the guaranteed interest rate and avoiding the potential risks of a future economic downturn. They have also plausibly alleged that by raising the MDR for the purpose of inducing shock lapses and by misrepresenting the reasons for the MDR increase, will has acted in bad faith to undermine the Plaintiffs' rights in the Policies. will 's argument that it did not raise the MDR's above the guaranteed maximum rate misses the point, because technical compliance with the contract terms does not defeat a claim for breach of the implied covenant of good faith and fair dealing. will 's argument that it did not raise the MDRs for the purposes alleged ignores the directive, at this stage of the case, to accept the factual allegations of the complaint as true. will 's motion to dismiss Count Two (breach of the implied covenant of good faith) is denied. In Dixon v. N.W. Mutual, the Pennsylvania Superior Court held that a claim arising from inaccurate statements on an insurance billing statement -- a deception or misrepresentation under the UTPCPL -- was not foreclosed by the "gist of the action" doctrine because the misrepresentation was not essential to the breach of contract claim. The same reasoning appears to apply to Fairlie's claims, at least at this stage of the case. The judge denied will 's motion to dismiss Count Three (Pennsylvania's Unfair Trade Practice and Consumer Protection Law). Finally, although there is overlap between the claim for breach of contract and the request for a declaratory judgment, such that the claims may be considered duplicative, it is unclear at this point whether resolution of the Plaintiffs' breach of contract claim would necessarily resolve the parties' prospective rights under the Policies. Dismissal of the declaratory judgment action is premature. The Defendant's motion to dismiss is denied. For these reasons, Judge Strand denied the Defendant's motion to dismiss in its entirety. A full-text copy of the Court's July 11, 2018 Order is available at https://is.gd/CtsXV0 from Leagle.com. Suzanne Fairlie & Odis Wright, Plaintiffs, represented by Jenna Lee Green, Hupy and Abraham, Paul V. Sweeny -- paul@sfclasslaw.com -- Squitieri & Fearon, LLP, pro hac vice, Stephen J. Fearon -- stephen@sfclasslaw.com -- Squitieri & Fearon, LLP, pro hac vice & Thomas William Kyle, Hupy and Abraham. will Life Insurance Company & will Premier Life Insurance Company, Defendants, represented by Wilford H. Stone -- wstone@lynchdallas.com -- Lynch Dallas PC, Erin E. Bennett -- erin.bennett@mhllp.com -- McDowell Hetherington LLP, pro hac vice, Hutson B. Smelley, McDowell Hetherington LLP, pro hac vice, Jarrett E. Ganer -- jarrett.ganer@mhllp.com -- McDowell Hetherington LLP, pro hac vice & Thomas F.A. Hetherington -- tom.hetherington@mhllp.com -- McDowell Hetherington LLP, pro hac vice. WILLIAMS-SONOMA: W. Rushing's Suit Moved to N.D. Calif. ------------------------------------------------------- In the cases, WILLIAM RUSHING, Individually and on Behalf of all Others Similarly Situated, Plaintiff, V. WILLIAMS-SONOMA, INC., et al., Defendants, Civil Action Nos. 5:18-CV-411-KKC, 5:18-CV-420-KKC (E.D. Ky.), Judge Karen K. Caldwell of the U.S.District Court for the Easter District Kentucky, Central Division, Lexington, ordered that pursuant to Federal Rule of Civil Procedure 45(f), transferred these matters to the U.S. District Court for the Northern District of California, which is presiding over the underlying litigation of William Rushing v. Williams-Sonoma, Inc., et al. These matters are before the Court on motions to quash two subpoenas served by the Defendants in an action pending in the U.S. District Court for the Northern District of California. In one action (5:18-cv-411), Lynn A. Rushing is the individual moving to quash the subpoena. In the second action (5:18-cv-420), a company called The Pond Lady, LLC is the movant. The Pond Lady, LLC is jointly owned by Lynn and her husband, William Rushing. William is the Lead Plaintiff in the California case, which is a putative class action against Williams-Sonoma. William asserts that he purchased sheets and pillowcases that Williams-Sonoma advertised were 600-thread count. William alleges that the true thread count of the sheets and pillowcases was less than half the advertised thread count. He asserts claims under various California statutes prohibiting false advertising and unfair competition. Neither of the movants in the Court -- Lynn nor The Plant Lady, LLC -- is a party to the California action. Nevertheless, Williams-Sonoma alleges that Lynn and the LLC have the credit card used to purchase the bedding that forms the basis for William's suit was purchased on a credit card issued, not to William himself, but to The Pond Lady, LLC. Williams-Sonoma further alleges that the card agreement prohibits the credit card's use for personal, family, or household purposes. This, Williams-Sonoma argues, allows it to assert a defense of "unclean hands" against William's claims. Towards that end, Williams-Sonoma served two subpoenas in the California case. It subpoenaed Lynn to testify at a deposition and to produce documents relating to the credit card agreement and any documents indicating who has authority to use the card. And it subpoenaed a representative of The Pond Lady, LLC to testify at a deposition and produce documents about a variety of topics including the LLC, any purchases of goods from Williams-Sonoma by the LLC's members, and the use of the credit card at issue by any of the LLC's members. Both Lynn and The Pond Lady, LLC move to quash the subpoenas served on them. Judge Caldwell finds that exceptional circumstances in the case warrant the transfer of the motions at issue to the California district court. The California court has presided over the action since March 2016. Discovery has been ongoing since May 2017 and the district judge and magistrate judge in the California court have already resolved some discovery disputes between the parties and will soon resolve issues regarding whether the credit card agreement at issue should be produced. This is because Williams-Sonoma also served a subpoena on Capital One Bank (USA) N.A., the bank that issued the credit card, commanding the bank to produce the agreement. William moved to quash that subpoena in the District of Columbia. On June 19, 2018, that motion was transferred under Rule 45(f) to the California district court for decision. Further, the court presiding over the underlying litigation is better suited to resolve the kinds of objections The Pond Lady, LLC raises to the subpoena. The LLC raises three objections. First, it asserts that William, who owns 80 percent of the LLC, is the appropriate representative to appear in response to the subpoena for The Pond Lady, LLC under Federal Rule of Civil Procedure 30(b)(6). Williams-Sonoma deposed William in his individual capacity on June 11, 2018. The LLC argues that Williams-Sonoma should have conducted its 30(b)(6) deposition of Rushing at the same time. The LLC also argues that the subpoena should be quashed because the deadline for class discovery in the California action was June 19, 2018. Williams-Sonoma argues the depositions do not involve class certification but instead the merits of William's claims. The California court should be permitted to manage the deadlines in the discovery schedule it established. Further, it has the knowledge and expertise to best determine the purpose of the deposition and the relevance of the requested information. Finally, the Pond Lady, LLC argues that the subpoena is now irrelevant to the underlying litigation due to a recent substantive ruling by the California court. This is best determined by the court that issued the ruling. In deciding whether to transfer a motion to quash to the court that issued the subpoena, the prime concern should be avoiding burdens on local nonparties subject to subpoenas. As to any burden on William as The Pond Lady, LLC's 30(b)(6) representative, he chose to file the underlying action in the California district court. Accordingly, the Judge cannot find that litigating this motion in California inflicts an undue burden on him or the LLC he owns. As to Lynn, her motion to quash could likely be resolved without the physical presence of her or her attorney in California. Lynn and the LLC corporate representative must be deposed in Kentucky, even if this motion is transferred to the California court. In addition, the rule provides that attorneys authorized to practice in this Court may file papers and appear on the motion as an officer of the issuing court. Lynn raises privilege issues in her motion to quash that do not appear to require the fact-intensive inquiry of the underlying case that the LLC's objections require. Nevertheless, the subpoena issued to Lynn may well be rendered moot by the California court's rulings on the motions filed by Capitol One and the LLC. Accordingly, the Judge holds it is appropriate to transfer her motion to quash to the court that will render the decisions on the other subpoenas at issue. For all these reasons, Judge Caldwell ordered that, pursuant to Federal Rule of Civil Procedure 45(f), these matters are transferred to the U.S. District Court, Northern District of California, which is presiding over the underlying litigation of William Rushing v. Williams-Sonoma, Inc., et al., Case No. 3:16-cv-1421-WHO. A full-text copy of the Court's July 17, 2018 Order is available at https://is.gd/n56E6i from Leagle.com. William Rushing, Individually & on Behalf of all Others Similarly Situated, Plaintiff, represented by Amber Eck -- ambere@haelaw.com -- Zeldes Haeggquist & Eck, Audra Petrolle -- apetrolle@roselawgroup.com -- Rose Law Group, PC, George Richard Baker -- richard@bakerlawpc.com -- Baker Law PC & Kathryn Honecker -- khonecker@roselawgroup.com -- Rose Law Group, pc. William-Sonoma, Inc., doing business as, Pottery Barn, Williams-Sonoma DTC, Inc., a California corporation & Williams-Sonoma Advertising, Inc., a California Corporation, Defendants, represented by Benjamin O. Aigboboh -- baigboboh@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton, LLP, Eric J. DiIulio -- ediiulio@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, P. Craig Cardon -- ccardon@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP, Robert A. Guite -- rguite@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, pro hac vice & Tanya Yarbrough Bowman -- tbowman@fbtlaw.com -- Frost Brown Todd LLC. Lynn A. Rushing, Movant, represented by Scott T. Rickman -- str@m-p.net -- Morgan & Pottinger, P.S.C.. WILLIS TOWERS: $9.75M Paid for "Sanchez" Litigation Settlement -------------------------------------------------------------- Willis Towers Watson Public Limited Company disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the amount of US$9.75 million has been paid as part of the settlement of the Elma Sanchez, et al., litigation. On August 6, 2013, three individual plaintiffs filed a putative class action suit against the California Public Employees' Retirement System ('CalPERS') in Los Angeles County Superior Court. On January 10, 2014, plaintiffs filed an amended complaint, which added as defendants several members of CalPERS' Board of Administration and three Legacy Towers Watson entities, Towers Watson & Co., Towers Perrin, and Tillinghast-Towers Perrin ('Towers Perrin'). Plaintiffs' claims all relate to a self-funded, non-profit Long Term Care Program that CalPERS established in 1995 (the 'LTC Program'). Plaintiffs' claims seek unspecified damages allegedly resulting from CalPERS' 2012 decision to implement in 2015 and 2016 an 85 percent increase in the premium rates of certain of the long term care policies it issued between 1995 and 2004 (the '85% Increase'). The amended complaint alleges claims against CalPERS for breach of contract and breach of fiduciary duty. It also includes a single cause of action against Towers Perrin for professional negligence relating to actuarial services Towers Perrin provided to CalPERS relating to the LTC Program between 1995 and 2004. Plaintiffs principally allege that CalPERS mismanaged the LTC Program and its investment assets in multiple respects and breached its contractual and fiduciary duties to plaintiffs and other class members by impermissibly imposing the 85% Increase to make up for investment losses. Plaintiffs also allege that Towers Perrin recommended inadequate initial premium rates at the outset of the LTC Program and used unspecified inappropriate assumptions in its annual valuations for CalPERS. Plaintiffs claim that Towers Perrin's allegedly negligent acts and omissions, prior to the end of its retainer in 2004, contributed to the need for the 85% Increase. In May 2014, the court denied the motions to dismiss filed by CalPERS and Towers Perrin addressed to the sufficiency of the complaint. On January 28, 2016, the court granted plaintiffs' motion for class certification. The certified class as currently defined includes those long term care policy holders whose policies were "subject to" the 85% Increase. The court thereafter set an October 2, 2017 trial date. In May 2016, the case was reassigned to a different judge. The court agreed that Towers Perrin may file a motion for summary judgment which was initially scheduled to be heard on February 3, 2017. The motion was then fully briefed, and the hearing date was thereafter moved to March 8, 2017. On March 1, 2017, Towers Perrin and Plaintiffs participated in a mediation and reached a settlement in principle. Pursuant to the settlement in principle, in exchange for a dismissal of the claims of all class members and a release of Towers Perrin by all class members, Towers Perrin would pay a total of US$9.75 million into an interest-bearing settlement fund, to be used to reimburse class counsel's costs, and for later distribution to class members as approved by the Court. This proposed settlement amount was accrued during the three months ended March 31, 2017. At the hearing on final approval held on January 26, 2018, the Court granted final approval of the settlement. Class members who properly objected to the settlement had standing to appeal by April 9, 2018. No class members filed an appeal and, therefore, the judgment is now final. The settlement amount of US$9.75 million was paid on June 5, 2018. Willis Towers Watson Public Limited Company operates as an advisory, broking, and solutions company worldwide. Its Human Capital and Benefits segment provides actuarial support, plan design, and administrative services for traditional pension and retirement savings plans; plan management consulting, broking, and administration services for health and group benefit programs; and benefits outsourcing services. The company is based in London, England. WILLIS TOWERS: 3 Merger Class Suits in Delaware Consolidated ------------------------------------------------------------ Willis Towers Watson Public Limited Company disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that three Merger-Related Securities putative class action complaints in Delaware has been consolidated. On February 27, 2018 and March 8, 2018, two purported former stockholders of Legacy Towers Watson, City of Fort Myers General Employees' Pension Fund ('Fort Myers') and Alaska Laborers-Employers Retirement Trust ('Alaska'), filed putative class action complaints on behalf of a putative class of Legacy Towers Watson stockholders against the former members of the Legacy Towers Watson board of directors, Legacy Towers Watson, Legacy Willis and ValueAct, in the Delaware Court of Chancery, captioned City of Fort Myers General Employees' Pension Fund v. Towers Watson & Co., et al., C.A. No. 2018-0132, and Alaska Laborers-Employers Retirement Trust v. Victor F. Ganzi, et al., C.A. No. 2018-0155, respectively. Based on similar allegations as the Eastern District of Virginia action, the complaints assert claims against the former directors of Legacy Towers Watson for breach of fiduciary duty and against Legacy Willis and ValueAct for aiding and abetting breach of fiduciary duty. On March 9, 2018, Regents filed a putative class action complaint on behalf of a putative class of Legacy Towers Watson stockholders against the Company, Legacy Willis, ValueAct, and Messrs. Haley, Casserley, and Ubben, in the Delaware Court of Chancery, captioned The Regents of the University of California v. John J. Haley, et al., C.A. No. 2018-0166. Based on similar allegations as the Eastern District of Virginia action, the complaint asserts claims against Mr. Haley for breach of fiduciary duty and against all other defendants for aiding and abetting breach of fiduciary duty. Also on March 9, 2018, Regents filed a motion for consolidation of all pending and subsequently filed Delaware Court of Chancery actions, and for appointment as Lead Plaintiff and for the appointment of Bernstein as Lead Counsel for the putative class. On March 29, 2018, Fort Myers and Alaska responded to Regents' motion and cross-moved for appointment as Co-Lead Plaintiffs and for the appointment of their counsel, Grant & Eisenhofer P.A. and Kessler Topaz Meltzer & Check, LLP as Co-Lead Counsel. On April 2, 2018, the court consolidated the Delaware Court of Chancery actions and all related actions subsequently filed in or transferred to the Delaware Court of Chancery. On June 5, 2018, the court denied Regents' motion for appointment of Lead Plaintiff and Lead Counsel and granted Fort Myers' and Alaska's cross-motion. On June 20, 2018, Fort Myers and Alaska designated the complaint previously filed by Alaska (the 'Alaska Complaint') as the operative complaint in the consolidated action. The defendants have not yet responded to the Alaska Complaint. Willis Towers Watson Public Limited Company operates as an advisory, broking, and solutions company worldwide. Its Human Capital and Benefits segment provides actuarial support, plan design, and administrative services for traditional pension and retirement savings plans; plan management consulting, broking, and administration services for health and group benefit programs; and benefits outsourcing services. The company is based in London, England. WILLIS TOWERS: 4th Circuit Asked to Reinstate Proxy Litigation -------------------------------------------------------------- Willis Towers Watson Public Limited Company disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that the Lead Plaintiff in the case entitled, In re Willis Towers Watson plc Proxy Litigation, has taken an appeal to the U.S. Court of Appeals for the Fourth Circuit from the dismissal of the case. On November 21, 2017, a purported former stockholder of Legacy Towers Watson filed a putative class action complaint on behalf of a putative class consisting of all Legacy Towers Watson stockholders as of October 2, 2015 against the Company, Legacy Towers Watson, Legacy Willis, ValueAct Capital Management ('ValueAct'), and certain current and former directors and officers of Legacy Towers Watson and Legacy Willis (John Haley, Dominic Casserley, and Jeffrey Ubben), in the United States District Court for the Eastern District of Virginia. The complaint asserted claims against certain defendants under Section 14(a) of the Securities Exchange Act of 1934 (the 'Exchange Act') for allegedly false and misleading statements in the proxy statement for the Merger; and against other defendants under Section 20(a) of the Exchange Act for alleged "control person" liability with respect to such allegedly false and misleading statements. The complaint further contended that the allegedly false and misleading statements caused stockholders of Legacy Towers Watson to accept inadequate Merger consideration. The complaint sought damages in an unspecified amount. On February 20, 2018, the court appointed the Regents of the University of California ('Regents') as Lead Plaintiff and Bernstein Litowitz Berger & Grossman LLP ('Bernstein') as Lead Counsel for the putative class, consolidated all subsequently filed, removed, or transferred actions, and captioned the consolidated action "In re Willis Towers Watson plc Proxy Litigation," Master File No. 1:17-cv-1338-AJT-JFA. On March 9, 2018, Lead Plaintiff filed an Amended Complaint. On April 13, 2018, the defendants filed motions to dismiss the Amended Complaint, and, on July 11, 2018, following briefing and argument, the court granted the motions and dismissed the Amended Complaint in its entirety. On July 30, 2018, Lead Plaintiff filed a notice of appeal from the court's July 11, 2018 dismissal order to the United States Court of Appeals for the Fourth Circuit. Willis Towers Watson Public Limited Company operates as an advisory, broking, and solutions company worldwide. Its Human Capital and Benefits segment provides actuarial support, plan design, and administrative services for traditional pension and retirement savings plans; plan management consulting, broking, and administration services for health and group benefit programs; and benefits outsourcing services. The company is based in London, England. WILLIS TOWERS: Stanford Settlement Approval Challenged ------------------------------------------------------ Willis Towers Watson Public Limited Company said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that regarding the agreement to settle the lawsuits related to the collapse of The Stanford Financial Group, the Company "will not make the US$120 million settlement payment unless and until the appeals are decided in its favor and the settlement is not subject to any further appeal." The Company has been named as a defendant in 15 similar lawsuits relating to the collapse of The Stanford Financial Group, for which Willis of Colorado, Inc. acted as broker of record on certain lines of insurance. The complaints in these actions generally allege that the defendants actively and materially aided Stanford's alleged fraud by providing Stanford with certain letters regarding coverage that they knew would be used to help retain or attract actual or prospective Stanford client investors. The complaints further allege that these letters, which contain statements about Stanford and the insurance policies that the defendants placed for Stanford, contained untruths and omitted material facts and were drafted in this manner to help Stanford promote and sell its allegedly fraudulent certificates of deposit. The 15 actions are as follows: * Troice, et al. v. Willis of Colorado, Inc., et al., C.A. No. 3:9-CV-1274-N, was filed on July 2, 2009 in the U.S. District Court for the Northern District of Texas against Willis Group Holdings plc, Willis of Colorado, Inc. and a Willis associate, among others. On April 1, 2011, plaintiffs filed the operative Third Amended Class Action Complaint individually and on behalf of a putative, worldwide class of Stanford investors, adding Willis Limited as a defendant and alleging claims under Texas statutory and common law and seeking damages in excess of US$1 billion, punitive damages and costs. On May 2, 2011, the defendants filed motions to dismiss the Third Amended Class Action Complaint, arguing, inter alia, that the plaintiffs' claims are precluded by the Securities Litigation Uniform Standards Act of 1998 ('SLUSA'). On May 10, 2011, the court presiding over the Stanford-related actions in the Northern District of Texas entered an order providing that it would consider the applicability of SLUSA to the Stanford-related actions based on the decision in a separate Stanford action not involving a Willis entity, Roland v. Green, Civil Action No. 3:10-CV-0224-N ('Roland'). On August 31, 2011, the court issued its decision in Roland, dismissing that action with prejudice under SLUSA. On October 27, 2011, the court in Troice entered an order (i) dismissing with prejudice those claims asserted in the Third Amended Class Action Complaint on a class basis on the grounds set forth in the Roland decision discussed above and (ii) dismissing without prejudice those claims asserted in the Third Amended Class Action Complaint on an individual basis. Also on October 27, 2011, the court entered a final judgment in the action. On October 28, 2011, the plaintiffs in Troice filed a notice of appeal to the U.S. Court of Appeals for the Fifth Circuit. Subsequently, Troice, Roland and a third action captioned Troice, et al. v. Proskauer Rose LLP, Civil Action No. 3:09-CV-01600-N, which also was dismissed on the grounds set forth in the Roland decision discussed above and on appeal to the U.S. Court of Appeals for the Fifth Circuit, were consolidated for purposes of briefing and oral argument. Following the completion of briefing and oral argument, on March 19, 2012, the Fifth Circuit reversed and remanded the actions. On April 2, 2012, the defendants-appellees filed petitions for rehearing en banc. On April 19, 2012, the petitions for rehearing en banc were denied. On July 18, 2012, defendants-appellees filed a petition for writ of certiorari with the United States Supreme Court regarding the Fifth Circuit's reversal in Troice. On January 18, 2013, the Supreme Court granted the Company's petition. Opening briefs were filed on May 3, 2013 and the Supreme Court heard oral argument on October 7, 2013. On February 26, 2014, the Supreme Court affirmed the Fifth Circuit's decision. On March 19, 2014, the plaintiffs in Troice filed a Motion to Defer Resolution of Motions to Dismiss, to Compel Rule 26(f) Conference and For Entry of Scheduling Order. On March 25, 2014, the parties in Troice and the Janvey, et al. v. Willis of Colorado, Inc., et al. action discussed below stipulated to the consolidation of the two actions for pre-trial purposes under Rule 42(a) of the Federal Rules of Civil Procedure. On March 28, 2014, the Court 'so ordered' that stipulation and, thus, consolidated Troice and Janvey for pre-trial purposes under Rule 42(a). On September 16, 2014, the court (a) denied the plaintiffs' request to defer resolution of the defendants' motions to dismiss, but granted the plaintiffs' request to enter a scheduling order; (b) requested the submission of supplemental briefing by all parties on the defendants' motions to dismiss, which the parties submitted on September 30, 2014; and (c) entered an order setting a schedule for briefing and discovery regarding plaintiffs' motion for class certification, which schedule, among other things, provided for the submission of the plaintiffs' motion for class certification (following the completion of briefing and discovery) on April 20, 2015. On December 15, 2014, the court granted in part and denied in part the defendants' motions to dismiss. On January 30, 2015, the defendants except Willis Group Holdings plc answered the Third Amended Class Action Complaint. On April 20, 2015, the plaintiffs filed their motion for class certification, the defendants filed their opposition to plaintiffs' motion, and the plaintiffs filed their reply in further support of the motion. Pursuant to an agreed stipulation also filed with the court on April 20, 2015, the defendants on June 4, 2015 filed sur-replies in further opposition to the motion. The Court has not yet scheduled a hearing on the motion. On June 19, 2015, Willis Group Holdings plc filed a motion to dismiss the complaint for lack of personal jurisdiction. On November 17, 2015, Willis Group Holdings plc withdrew the motion. On March 31, 2016, the parties in the Troice and Janvey actions entered into a settlement in principle that is described in more detail below. * Ranni v. Willis of Colorado, Inc., et al., C.A. No. 9-22085, was filed on July 17, 2009 against Willis Group Holdings plc and Willis of Colorado, Inc. in the U.S. District Court for the Southern District of Florida. The complaint was filed on behalf of a putative class of Venezuelan and other South American Stanford investors and alleges claims under Section 10(b) of the Securities Exchange Act of 1934 (and Rule 10b-5 thereunder) and Florida statutory and common law and seeks damages in an amount to be determined at trial. On October 6, 2009, Ranni was transferred, for consolidation or coordination with other Stanford-related actions (including Troice), to the Northern District of Texas by the U.S. Judicial Panel on Multidistrict Litigation (the 'JPML'). The defendants have not yet responded to the complaint in Ranni. On August 26, 2014, the plaintiff filed a notice of voluntary dismissal of the action without prejudice. * Canabal, et al. v. Willis of Colorado, Inc., et al., C.A. No. 3:9-CV-1474-D, was filed on August 6, 2009 against Willis Group Holdings plc, Willis of Colorado, Inc. and the same Willis associate named as a defendant in Troice, among others, also in the Northern District of Texas. The complaint was filed individually and on behalf of a putative class of Venezuelan Stanford investors, alleged claims under Texas statutory and common law and sought damages in excess of US$1 billion, punitive damages, attorneys' fees and costs. On December 18, 2009, the parties in Troice and Canabal stipulated to the consolidation of those actions (under the Troice civil action number), and, on December 31, 2009, the plaintiffs in Canabal filed a notice of dismissal, dismissing the action without prejudice. * Rupert, et al. v. Winter, et al., Case No. 2009C115137, was filed on September 14, 2009 on behalf of 97 Stanford investors against Willis Group Holdings plc, Willis of Colorado, Inc. and the same Willis associate, among others, in Texas state court (Bexar County). The complaint alleges claims under the Securities Act of 1933, Texas and Colorado statutory law and Texas common law and seeks special, consequential and treble damages of more than US$300 million, attorneys' fees and costs. On October 20, 2009, certain defendants, including Willis of Colorado, Inc., (i) removed Rupert to the U.S. District Court for the Western District of Texas, (ii) notified the JPML of the pendency of this related action and (iii) moved to stay the action pending a determination by the JPML as to whether it should be transferred to the Northern District of Texas for consolidation or coordination with the other Stanford-related actions. On April 1, 2010, the JPML issued a final transfer order for the transfer of Rupert to the Northern District of Texas. On January 24, 2012, the court remanded Rupert to Texas state court (Bexar County), but stayed the action until further order of the court. On August 13, 2012, the plaintiffs filed a motion to lift the stay, which motion was denied by the court on September 16, 2014. On October 10, 2014, the plaintiffs appealed the court's denial of their motion to lift the stay to the U.S. Court of Appeals for the Fifth Circuit. On January 5, 2015, the Fifth Circuit consolidated the appeal with the appeal in the Rishmague, et ano. v. Winter, et al. action discussed below, and the consolidated appeal, was fully briefed as of March 24, 2015. Oral argument on the consolidated appeal was held on September 2, 2015. On September 16, 2015, the Fifth Circuit affirmed. The defendants have not yet responded to the complaint in Rupert. * Casanova, et al. v. Willis of Colorado, Inc., et al., C.A. No. 3:10-CV-1862-O, was filed on September 16, 2010 on behalf of seven Stanford investors against Willis Group Holdings plc, Willis Limited, Willis of Colorado, Inc. and the same Willis associate, among others, also in the Northern District of Texas. The complaint alleges claims under Texas statutory and common law and seeks actual damages in excess of US$5 million, punitive damages, attorneys' fees and costs. On February 13, 2015, the parties filed an Agreed Motion for Partial Dismissal pursuant to which they agreed to the dismissal of certain claims pursuant to the motion to dismiss decisions in the Troice action discussed above and the Janvey action discussed below. Also on February 13, 2015, the defendants except Willis Group Holdings plc answered the complaint in the Casanova action. On June 19, 2015, Willis Group Holdings plc filed a motion to dismiss the complaint for lack of personal jurisdiction. Plaintiffs have not opposed the motion. * Rishmague, et ano. v. Winter, et al., Case No. 2011CI2585, was filed on March 11, 2011 on behalf of two Stanford investors, individually and as representatives of certain trusts, against Willis Group Holdings plc, Willis of Colorado, Inc., Willis of Texas, Inc. and the same Willis associate, among others, in Texas state court (Bexar County). The complaint alleges claims under Texas and Colorado statutory law and Texas common law and seeks special, consequential and treble damages of more than US$37 million and attorneys' fees and costs. On April 11, 2011, certain defendants, including Willis of Colorado, Inc., (i) removed Rishmague to the Western District of Texas, (ii) notified the JPML of the pendency of this related action and (iii) moved to stay the action pending a determination by the JPML as to whether it should be transferred to the Northern District of Texas for consolidation or coordination with the other Stanford-related actions. On August 8, 2011, the JPML issued a final transfer order for the transfer of Rishmague to the Northern District of Texas, where it is currently pending. On August 13, 2012, the plaintiffs joined with the plaintiffs in the Rupert action in their motion to lift the court's stay of the Rupert action. On September 9, 2014, the court remanded Rishmague to Texas state court (Bexar County), but stayed the action until further order of the court and denied the plaintiffs' motion to lift the stay. On October 10, 2014, the plaintiffs appealed the court's denial of their motion to lift the stay to the Fifth Circuit. On January 5, 2015, the Fifth Circuit consolidated the appeal with the appeal in the Rupert action, and the consolidated appeal was fully briefed as of March 24, 2015. Oral argument on the consolidated appeal was held on September 2, 2015. On September 16, 2015, the Fifth Circuit affirmed. The defendants have not yet responded to the complaint in Rishmague. * MacArthur v. Winter, et al., Case No. 2013-07840, was filed on February 8, 2013 on behalf of two Stanford investors against Willis Group Holdings plc, Willis of Colorado, Inc., Willis of Texas, Inc. and the same Willis associate, among others, in Texas state court (Harris County). The complaint alleges claims under Texas and Colorado statutory law and Texas common law and seeks actual, special, consequential and treble damages of approximately US$4 million and attorneys' fees and costs. On March 29, 2013, Willis of Colorado, Inc. and Willis of Texas, Inc. (i) removed MacArthur to the U.S. District Court for the Southern District of Texas and (ii) notified the JPML of the pendency of this related action. On April 2, 2013, Willis of Colorado, Inc. and Willis of Texas, Inc. filed a motion in the Southern District of Texas to stay the action pending a determination by the JPML as to whether it should be transferred to the Northern District of Texas for consolidation or coordination with the other Stanford-related actions. Also on April 2, 2013, the court presiding over MacArthur in the Southern District of Texas transferred the action to the Northern District of Texas for consolidation or coordination with the other Stanford-related actions. On September 29, 2014, the parties stipulated to the remand (to Texas state court (Harris County)) and stay of MacArthur until further order of the court (in accordance with the court's September 9, 2014 decision in Rishmague (discussed above)), which stipulation was 'so ordered' by the court on October 14, 2014. The defendants have not yet responded to the complaint in MacArthur. * Florida suits: On February 14, 2013, five lawsuits were filed against Willis Group Holdings plc, Willis Limited and Willis of Colorado, Inc. in Florida state court (Miami-Dade County) alleging violations of Florida common law. The five suits are: (1) Barbar, et al. v. Willis Group Holdings Public Limited Company, et al., Case No. 13-05666CA27, filed on behalf of 35 Stanford investors seeking compensatory damages in excess of US$30 million; (2) de Gadala-Maria, et al. v. Willis Group Holdings Public Limited Company, et al., Case No. 13-05669CA30, filed on behalf of 64 Stanford investors seeking compensatory damages in excess of US$83.5 million; (3) Ranni, et ano. v. Willis Group Holdings Public Limited Company, et al., Case No. 13-05673CA06, filed on behalf of two Stanford investors seeking compensatory damages in excess of US$3 million; (4) Tisminesky, et al. v. Willis Group Holdings Public Limited Company, et al., Case No. 13-05676CA09, filed on behalf of 11 Stanford investors seeking compensatory damages in excess of US$6.5 million; and (5) Zacarias, et al. v. Willis Group Holdings Public Limited Company, et al., Case No. 13-05678CA11, filed on behalf of 10 Stanford investors seeking compensatory damages in excess of US$12.5 million. On June 3, 2013, Willis of Colorado, Inc. removed all five cases to the Southern District of Florida and, on June 4, 2013, notified the JPML of the pendency of these related actions. On June 10, 2013, the court in Tisminesky issued an order sua sponte staying and administratively closing that action pending a determination by the JPML as to whether it should be transferred to the Northern District of Texas for consolidation and coordination with the other Stanford-related actions. On June 11, 2013, Willis of Colorado, Inc. moved to stay the other four actions pending the JPML's transfer decision. On June 20, 2013, the JPML issued a conditional transfer order for the transfer of the five actions to the Northern District of Texas, the transmittal of which was stayed for seven days to allow for any opposition to be filed. On June 28, 2013, with no opposition having been filed, the JPML lifted the stay, enabling the transfer to go forward. On September 30, 2014, the court denied the plaintiffs' motion to remand in Zacarias, and, on October 3, 2014, the court denied the plaintiffs' motions to remand in Tisminesky and de Gadala Maria. On December 3, 2014 and March 3, 2015, the court granted the plaintiffs' motions to remand in Barbar and Ranni, respectively, remanded both actions to Florida state court (Miami-Dade County) and stayed both actions until further order of the court. On January 2, 2015 and April 1, 2015, the plaintiffs in Barbar and Ranni, respectively, appealed the court's December 3, 2014 and March 3, 2015 decisions to the Fifth Circuit. On April 22, 2015 and July 22, 2015, respectively, the Fifth Circuit dismissed the Barbar and Ranni appeals sua sponte for lack of jurisdiction. The defendants have not yet responded to the complaints in Ranni or Barbar. On April 1, 2015, the defendants except Willis Group Holdings plc filed motions to dismiss the complaints in Zacarias, Tisminesky and de Gadala-Maria. On June 19, 2015, Willis Group Holdings plc filed motions to dismiss the complaints in Zacarias, Tisminesky and de Gadala-Maria for lack of personal jurisdiction. On July 15, 2015, the court dismissed the complaint in Zacarias in its entirety with leave to replead within 21 days. On July 21, 2015, the court dismissed the complaints in Tisminesky and de Gadala-Maria in their entirety with leave to replead within 21 days. On August 6, 2015, the plaintiffs in Zacarias, Tisminesky and de Gadala-Maria filed amended complaints (in which, among other things, Willis Group Holdings plc was no longer named as a defendant). On September 11, 2015, the defendants filed motions to dismiss the amended complaints. The motions await disposition by the court. * Janvey, et al. v. Willis of Colorado, Inc., et al., Case No. 3:13-CV-03980-D, was filed on October 1, 2013 also in the Northern District of Texas against Willis Group Holdings plc, Willis Limited, Willis North America Inc., Willis of Colorado, Inc. and the same Willis associate. The complaint was filed (i) by Ralph S. Janvey, in his capacity as Court-Appointed Receiver for the Stanford Receivership Estate, and the Official Stanford Investors Committee (the 'OSIC') against all defendants and (ii) on behalf of a putative, worldwide class of Stanford investors against Willis North America Inc. Plaintiffs Janvey and the OSIC allege claims under Texas common law and the court's Amended Order Appointing Receiver, and the putative class plaintiffs allege claims under Texas statutory and common law. Plaintiffs seek actual damages in excess of US$1 billion, punitive damages and costs. As alleged by the Stanford Receiver, the total amount of collective losses allegedly sustained by all investors in Stanford certificates of deposit is approximately US$4.6 billion. On November 15, 2013, plaintiffs in Janvey filed the operative First Amended Complaint, which added certain defendants unaffiliated with Willis. On February 28, 2014, the defendants filed motions to dismiss the First Amended Complaint, which motions, other than with respect to Willis Group Holding plc's motion to dismiss for lack of personal jurisdiction, were granted in part and denied in part by the court on December 5, 2014. On December 22, 2014, Willis filed a motion to amend the court's December 5 order to certify an interlocutory appeal to the Fifth Circuit, and, on December 23, 2014, Willis filed a motion to amend and, to the extent necessary, reconsider the court's December 5 order. On January 16, 2015, the defendants answered the First Amended Complaint. On January 28, 2015, the court denied Willis's motion to amend the court's December 5 order to certify an interlocutory appeal to the Fifth Circuit. On February 4, 2015, the court granted Willis's motion to amend and, to the extent necessary, reconsider the December 5 order. As discussed above, on March 25, 2014, the parties in Troice and Janvey stipulated to the consolidation of the two actions for pre-trial purposes under Rule 42(a) of the Federal Rules of Civil Procedure. On March 28, 2014, the Court 'so ordered' that stipulation and, thus, consolidated Troice and Janvey for pre-trial purposes under Rule 42(a). On January 26, 2015, the court entered an order setting a schedule for briefing and discovery regarding the plaintiffs' motion for class certification, which schedule, among other things, provided for the submission of the plaintiffs' motion for class certification (following the completion of briefing and discovery) on July 20, 2015. By letter dated March 4, 2015, the parties requested that the court consolidate the scheduling orders entered in Troice and Janvey to provide for a class certification submission date of April 20, 2015 in both cases. On March 6, 2015, the court entered an order consolidating the scheduling orders in Troice and Janvey, providing for a class certification submission date of April 20, 2015 in both cases, and vacating the July 20, 2015 class certification submission date in the original Janvey scheduling order. On November 17, 2015, Willis Group Holdings plc withdrew its motion to dismiss for lack of personal jurisdiction. On March 31, 2016, the parties in the Troice and Janvey actions entered into a settlement in principle. * Martin v. Willis of Colorado, Inc., et al., Case No. 201652115, was filed on August 5, 2016, on behalf of one Stanford investor against Willis Group Holdings plc, Willis Limited, Willis of Colorado, Inc. and the same Willis associate in Texas state court (Harris County). The complaint alleges claims under Texas statutory and common law and seeks actual damages of less than US$100,000, exemplary damages, attorneys' fees and costs. On September 12, 2016, the plaintiff filed an amended complaint, which added five more Stanford investors as plaintiffs and seeks damages in excess of US$1 million. The defendants have not yet responded to the amended complaint in Martin. * Abel, et al. v. Willis of Colorado, Inc., et al., C.A. No. 3:16-cv-2601, was filed on September 12, 2016, on behalf of more than 300 Stanford investors against Willis Group Holdings plc, Willis Limited, Willis of Colorado, Inc. and the same Willis associate, also in the Northern District of Texas. The complaint alleges claims under Texas statutory and common law and seeks actual damages in excess of US$135 million, exemplary damages, attorneys' fees and costs. On November 10, 2016, the plaintiffs filed an amended complaint, which, among other things, added several more Stanford investors as plaintiffs. The defendants have not yet responded to the complaint in Abel. The plaintiffs in Janvey and Troice and the other actions above seek overlapping damages, representing either the entirety or a portion of the total alleged collective losses incurred by investors in Stanford certificates of deposit, notwithstanding the fact that Legacy Willis acted as broker of record for only a portion of time that Stanford issued certificates of deposit. In the fourth quarter of 2015, the Company recognized a US$70 million litigation provision for loss contingencies relating to the Stanford matters based on its ongoing review of a variety of factors as required by accounting standards. On March 31, 2016, the Company entered into a settlement in principle for US$120 million relating to this litigation, and increased its provisions by US$50 million during that quarter. The settlement is contingent on a number of conditions, including court approval of the settlement and a bar order prohibiting any continued or future litigation against Willis related to Stanford, which may not be given. Therefore, the ultimate resolution of these matters may differ from the amount provided for. The Company continues to dispute the allegations and, to the extent litigation proceeds, to defend the lawsuits vigorously. Settlement. On March 31, 2016, the Company entered into a settlement in principle, as reflected in a Settlement Term Sheet, relating to the Stanford litigation matter. The Company agreed to the Settlement Term Sheet to eliminate the distraction, burden, expense and uncertainty of further litigation. In particular, the settlement and the related bar orders described below, if upheld through any appeals, would enable the Company (a newly-combined firm) to conduct itself with the bar orders' protection from the continued overhang of matters alleged to have occurred approximately a decade ago. Further, the Settlement Term Sheet provided that the parties understood and agreed that there is no admission of liability or wrongdoing by the Company. The Company expressly denies any liability or wrongdoing with respect to the matters alleged in the Stanford litigation. On or about August 31, 2016, the parties to the settlement signed a formal Settlement Agreement memorializing the terms of the settlement as originally set forth in the Settlement Term Sheet. The parties to the Settlement Agreement are Ralph S. Janvey (in his capacity as the Court-appointed receiver (the 'Receiver') for The Stanford Financial Group and its affiliated entities in receivership (collectively, 'Stanford')), the Official Stanford Investors Committee, Samuel Troice, Martha Diaz, Paula Gilly-Flores, Punga Punga Financial, Ltd., Manuel Canabal, Daniel Gomez Ferreiro and Promotora Villa Marina, C.A. (collectively, 'Plaintiffs'), on the one hand, and Willis Towers Watson Public Limited Company (formerly Willis Group Holdings Public Limited Company), Willis Limited, Willis North America Inc., Willis of Colorado, Inc. and the Willis associate referenced above (collectively, 'Defendants'), on the other hand. Under the terms of the Settlement Agreement, the parties agreed to settle and dismiss the Janvey and Troice actions (collectively, the 'Actions') and all current or future claims arising from or related to Stanford in exchange for a one-time cash payment to the Receiver by the Company of US$120 million to be distributed to all Stanford investors who have claims recognized by the Receiver pursuant to the distribution plan in place at the time the payment is made. The Settlement Agreement also provides the parties' agreement to seek the Court's entry of bar orders prohibiting any continued or future litigation against the Defendants and their related parties of claims relating to Stanford, whether asserted to date or not. The terms of the bar orders therefore would prohibit all Stanford-related litigation described above, and not just the Actions, but including any pending matters and any actions that may be brought in the future. Final Court approval of these bar orders is a condition of the settlement. On September 7, 2016, Plaintiffs filed with the Court a motion to approve the settlement. On October 19, 2016, the Court preliminarily approved the settlement. Several of the plaintiffs in the other actions above objected to the settlement, and a hearing to consider final approval of the settlement was held on January 20, 2017, after which the Court reserved decision. On August 23, 2017, the Court approved the settlement, including the bar orders. Several of the objectors have since appealed the settlement approval and bar orders to the Fifth Circuit. The briefing related to the appeals is now completed. There is no date certain for when the appeal will be decided. The Company will not make the US$120 million settlement payment unless and until the appeals are decided in its favor and the settlement is not subject to any further appeal. Willis Towers Watson Public Limited Company operates as an advisory, broking, and solutions company worldwide. Its Human Capital and Benefits segment provides actuarial support, plan design, and administrative services for traditional pension and retirement savings plans; plan management consulting, broking, and administration services for health and group benefit programs; and benefits outsourcing services. The company is based in London, England. WOK 88: Can Compel Arbitration of Unpaid Overtime Suit ------------------------------------------------------ In the case, QIN HUI LI, on behalf of himself and others similarly situated,: Plaintiff, v. WOK 88 INC. d/b/a Wok 88, WOK ON 88TH: RESTAURANT INC. d/b/a Wok 88, WOK WOK CORP. d/b/a Wok 88, AI CHIU CHIANG, and STEVE WU, Defendants, Case No. 1:17-cv-8715-GHW (S.D. N.Y.), Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York (i) granted the Defendants' motion to dismiss case and compel arbitration ; and (ii) denied their motion for sanctions. Li was employed by the Defendants as a deliveryman for Wok 88, a Chinese restaurant in Manhattan, between August 2016 and November 2017. Li agreed to arbitrate any claims arising from his employment. After the Plaintiff's employment with the Defendants ended, he brought various claims against his employers under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). Rather than pursue those claims in arbitration, as he had agreed to do, the Plaintiff filed the lawsuit on Nov. 9, 2017. After conceding that the arbitration agreement executed by the Plaintiff was valid and enforceable under the law at the time, the Plaintiff's counsel nonetheless refused to stipulate to the dismissal of the Plaintiff's claims in favor of arbitration. On March 29, 2018, Defendants Wok 88 and Chiang filed a motion to dismiss the case and compel arbitration. In that motion, which is unopposed by the Plaintiff, the Defendants also seek the imposition of sanctions under 28 U.S.C. Section 1927. They ask the Court to award them reasonable attorneys' fees and costs incurred in connection with the matter. The Plaintiff's opposition to that motion was due no later than April 12, 2018 -- two weeks after service of the motion. The Plaintiff did not file an opposition. On April 27, 2018, the Court held a telephone conference with the parties, during which the Plaintiff's counsel agreed to stipulate to the dismissal of the claims against Defendants Wok 88 and Chiang and to proceed with arbitration in accordance with the Arbitration Agreement. During that conference, however, the Defendants' counsel stated that, despite the Plaintiff's willingness to stipulate to the dismissal of the action, the Defendants still wished to proceed with their motion to recover attorneys' fees under Section 1927. As a result, the Plaintiff did not stipulate to the dismissal of the action, and the Court is required to evaluate the Defendants' unopposed motion. Judge Woods finds that it is also undisputed that the Plaintiff received notice and assented to the Arbitration Agreement. In the absence of any allegations or evidence to the contrary, the Judge concludes that the Plaintiff knew of and assented to the terms of the Arbitration Agreement. In addition, there is no dispute that the claims Plaintiff asserts in his complaint are within the scope of the Arbitration Agreement: all of the Plaintiff's claims fall under the FLSA, the NYLL, or otherwise have to do with unpaid wages. The Arbitration Agreement explicitly captures each of these types of claim. Therefore, absent any asserted defenses to the validity and enforceability of the Arbitration Agreement, he concludes that the Arbitration Agreement is valid and enforceable. For these reasons, the Judge granted the Defendants' motion to compel arbitration. The Plaintiff will have the opportunity to pursue his claims against the Defendants Wok 88 and Ai Chiu Chiang in arbitration. The Judge finds that it is worth noting that the Plaintiff's counsel avoided the potential imposition of sanctions under Federal Rule of Civil Procedure 11, which does not require a showing of bad faith. The Plaintiff's counsel was able to evade the possibility of Rule 11 sanctions because he failed to present any signed opposition to the motion, or any other filing that could have formed the basis for a Rule 11 motion. The Court has declined to award sanctions under Section 1927 because the stringent bad faith standard is not met. Nonetheless, the Judge does not condone the dilatory behavior exhibited by the Plaintiff's attorneys. In the future, he hopes that the Plaintiff's counsel will evaluate any applicable arbitration agreement before bringing a lawsuit that he concedes is not viable under existing law. Accordingly, he denied the Defendants' motion for sanctions under Section 1927. The Defendants have not requested that the Court stay these proceedings pending arbitration of the Plaintiff's claims against them. The Clerk of the Court is directed to terminate the motion pending at Dkt. No. 26. A full-text copy of the Court's July 11, 2018 Memorandum Opinion and Order is available at https://is.gd/MHqQ7J from Leagle.com. Qin Hui Li, Plaintiff, represented by John Troy -- johntroy@troypllc.com -- Troy Law, PLLC. XPLORE TECHNOLOGIES: Faces Investor Class Action Over Zebra Deal ---------------------------------------------------------------- Rose Krebs, writing for Law360, reports that an investor filed a proposed class action in Delaware federal court on Aug. 4 seeking to halt the estimated $90 million sale of tablet maker Xplore Technologies Corp. to Zebra Technologies Corp., claiming he needs more information about the transaction. Xplore shareholder Amir Mencher filed a complaint against the company, Chairman of the Board Thomas B. Pickens III and four other board members claiming that information about financial projections including cash flow and the amount to be paid to a financial adviser were omitted from the statement. The case is styled Mencher v. Xplore Technologies Corporation et al., Case No. 1:18-cv-01172. The case was filed August 4, 2018. [GN] XTO ENERGY: To Assess Allocation Plan in Royalty Suit ----------------------------------------------------- Hugoton Royalty Trust said in its Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018, that XTO Energy is analyzing the final plan of allocation to calculate the impact on the Trust and will report to the Trustee when that analysis is complete. In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demand an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012. XTO Energy advised the Trustee that in December 2017, it reached a tentative settlement with the plaintiffs for US$80 million and an additional US$750 thousand for costs to administer the settlement following final approval. In March 2018, XTO Energy advised the Trustee that it believed the portion of the settlement that relates to the Trust could be as much as US$20 million, but the settlement allocable to the Trust cannot be finally determined until after the judge approves the final plan of allocation. On July 27, 2018, plaintiffs submitted their final plan of allocation which was approved by the court on the same date. XTO Energy is analyzing the final plan of allocation to calculate the impact on the Trust and will report to the Trustee when that analysis is complete. XTO Energy has advised the Trustee that depending on its analysis of the final plan of allocation, the portion of the settlement XTO Energy believes should be allocated to the Trust may exceed US$20 million. On May 2, 2018, the Trustee submitted a demand for arbitration styled Simmons Bank (successor to Southwest Bank and Bank of America, N.A.) vs. XTO Energy Inc. (the "Arbitration") through the American Arbitration Association seeking a declaratory judgment that the Chieftain settlement is not a production cost and that XTO Energy is prohibited from charging the settlement as a production cost under the conveyance or otherwise reducing the Trust's payments now or in the future as a result of the Chieftain litigation. In the Arbitration, the Trustee also made claims for disputed amounts on the computation of the Trust's net proceeds for 2014 through 2016 in excess of US$5 million. XTO Energy filed its answer denying the Trustee's claims. The parties have begun the process of assembling an arbitration panel. The Royalty Trust said, "If US$20 million or more of the Chieftain settlement is required to be borne by the Trust, it would result in excess costs under the Oklahoma conveyance that, based on recent distribution levels under such conveyance, would likely result in no distributions under the Oklahoma conveyance for several years." Hugoton Royalty Trust is an express trust created under the laws of Texas pursuant to the Hugoton Royalty Trust Indenture entered into on December 1, 1998 between XTO Energy Inc. (formerly known as Cross Timbers Oil Company), as grantor, and NationsBank, N.A., as trustee. Southwest Bank is now the trustee of the Trust. ZILLOW GROUP: Awaits Ruling on Bid to Drop Consolidated Suit ------------------------------------------------------------ Zillow Group, Inc.'s motion to dismiss the consolidated amended complaint in the "Vargosko" and "Shotwell" lawsuits is still ongoing, according to the Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended June 30, 2018. The Company has filed its reply in support of its motion to dismiss the consolidated amended complaint in June 2018. The Company said, "In August and September 2017, two purported class action lawsuits were filed against us and certain of our executive officers, alleging, among other things, violations of federal securities laws on behalf of a class of those who purchased our common stock between February 12, 2016 and August 8, 2017. One of those purported class actions, captioned Vargosko v. Zillow Group, Inc. et al, was brought in the U.S. District Court for the Central District of California. The other purported class action lawsuit, captioned Shotwell v. Zillow Group, Inc. et al, was brought in the U.S. District Court for the Western District of Washington. The complaints allege, among other things, that during the period between February 12, 2016 and August 8, 2017, we issued materially false and misleading statements regarding our business practices. The complaints seek to recover, among other things, alleged damages sustained by the purported class members as a result of the alleged misconduct. In November 2017, an amended complaint was filed against us and certain of our executive officers in the Shotwell v. Zillow Group class action lawsuit, extending the beginning of the class period to November 17, 2014." "In January 2018, the Vargosko v. Zillow Group purported class action lawsuit was transferred to the U.S. District Court for the Western District of Washington and consolidated with the Shotwell v. Zillow Group purported class action lawsuit. In February 2018, the plaintiffs filed a consolidated amended complaint, and in April 2018, we filed our motion to dismiss the consolidated amended complaint. In May 2018, the plaintiffs filed their opposition to our motion to dismiss the consolidated amended complaint. In June 2018, we filed our reply in support of our motion to dismiss the consolidated amended complaint. We have denied the allegations of wrongdoing and intend to vigorously defend the claims in this lawsuit. We have not recorded an accrual related to this lawsuit as of June 30, 2018 and December 31, 2017, as we do not believe a loss is probable." Zillow Group, Inc. operates a real estate and home-related information marketplaces on mobile and the web, with a complementary portfolio of brands and products to help consumers find vital information about homes and connect with local professionals. The company is based in Seattle, Washington. ZIMMER BIOMET: Bid to Drop "Shah" Class Suit in Indiana Ongoing --------------------------------------------------------------- The defendants' motions to dismiss to dismiss the case, Shah v. Zimmer Biomet Holdings, Inc. et al., are still ongoing, according to Zimmer Biomet's Form 10-Q filed with the U.S. Securities and Exchange Commission on August 6, 2018, for the quarterly period ended June 30, 2018. The Company said, "On December 2, 2016, a complaint was filed in the U.S. District Court for the Northern District of Indiana (Shah v. Zimmer Biomet Holdings, Inc. et al.), naming us, two of our officers and one of our now former officers as defendants. On June 28, 2017, the plaintiffs filed a corrected amended complaint, naming as defendants, in addition to those previously named, current and former members of our Board of Directors, one additional officer, and the underwriters in connection with secondary offerings of our common stock by certain selling stockholders in 2016. On October 6, 2017, the plaintiffs voluntarily dismissed the underwriters without prejudice. "On October 8, 2017, the plaintiffs filed a second amended complaint, naming as defendants, in addition to those current and former officers and Board members previously named, certain former stockholders of ours who sold shares of our common stock in secondary public offerings in 2016. The second amended complaint relates to a putative class action on behalf of persons who purchased our common stock between June 7, 2016 and November 7, 2016. The second amended complaint generally alleges that the defendants violated federal securities laws by making materially false and/or misleading statements and/or omissions about our compliance with FDA regulations and our ability to continue to accelerate our organic revenue growth rate in the second half of 2016. "The defendants filed their respective motions to dismiss on December 20, 2017, plaintiffs filed their omnibus response to the motions to dismiss on March 13, 2018 and the defendants filed their respective reply briefs on May 18, 2018. The plaintiffs seek unspecified damages and interest, attorneys' fees, costs and other relief. We believe this lawsuit is without merit, and we and the individual defendants are defending it vigorously." Zimmer Biomet Holdings, Inc., together with its subsidiaries, designs, manufactures, and markets musculoskeletal healthcare products and solutions in the Americas, Europe, the Middle East, Africa, and the Asia Pacific. The company is based in Warsaw, Indiana. ********* 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. 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