/raid1/www/Hosts/bankrupt/CAR_Public/180910.mbx
C L A S S A C T I O N R E P O R T E R
Monday, September 10, 2018, Vol. 20, No. 181
Headlines
7-ELEVEN: Fails to Pay OT to Merchandisers, Padron Suit Alleges
AGCO CORPORATION: Faces Cacy Suit over Use of Biometric Data
AINSWORTH PET: Faces Parks Suit over Sale of Dog Food Products
AMPIO PHARMA: Sued Over Share Price Drop from Failed Drug Test
ANDREA VISGILIO-McGRATH: Griffin Seeks Prelim. Nod of $2.3K Deal
APPLIED UNDERWRITERS: Order on Docs Filing in Shasta Suit Issued
AR RESOURCES: Court Denies Bid to Dismiss Morello's FDCPA Suit
ARGOSY EDUCATION: Fails to Give Closure Notice, Bolden et al. Say
ASSET RECOVERY: Adams Sues over Debt Collection Practices
BANKERS LIFE: Underpays Sales Representatives, Toma Suit Claims
BIMBO BAKERIES: Four Consumer Classes Certified in Ang Suit
BLUE STAR CRUISES: Gallion Hits Autodialed Telemarketing Calls
CENTRAL CREDIT: Flores Alleges Wrongful Debt Collections
CL SOUTHGATE: Williamson Sues over Transfer of Security Deposit
CONVERGYS CORP: Abner Seeks to Certify Collective FLSA Class
CORECIVIC INC: Diabetic Inmates at Trousdale File Class Action
CRAFTWORKS RESTAURANTS: Underpays Assistant Manager, Smith Claims
CV SCIENCES: Smith Sues Over Share Price Drop Due to Denied Patent
DETROIT, MI: Court Denies Davis' Bid for Class Certification
DUN & BRADSTREET: Matise Disputes Overtime Computation
EL BESO MEXICAN: Seeks Decertification of 3 Classes in Esteves Suit
EXTRA SPACE MANAGEMENT: Seeks to Remove Kang Suit to C.D. Calif.
EZCORP INC: Rooney Seeks Certification of Shareholders Class
FAT BRANDS: Vignola Files Suit Over Share Price Drop
FINANCE SYSTEM: Boucher Renews Bid to Certify Class Under FDCPA
FLIK INTERNATIONAL: Court Approves Class Notice in Clarke Suit
GCA SERVICES GROUP: Faces Hogg Labor Suit in Volusia, Florida
GENERAL ELECTRIC: West Sues over 60% Drop in Shares Price
GEORGE WESTON: McCarthy Tetrault Attorney Discusses Court Ruling
GOOD SAMARITAN: Certification of Class Sought in Frank Suit
GOOGLE LLC: Court Narrows Claims in Google Pixel Suit
HILLSIDE HOTEL: Faces Mercer Suit in S.D. New York
HONGHUA AMERICA: Underpays Rig Welders, Aguilar Suit Alleges
HOUSLANGER & ASSOCIATES: Court Narrows Claims in Baltazar Suit
INTEL CORP: PC Users Sue Over Processor Defect
JAMBA INC: Lowinger Suit Seeks to Halt Focus Brands Merger
JAMBA INC: Rosenblatt Suit Seeks to Halt Merger With Focus Brands
JM SMUCKER: Faces Class Action Over Nutrish(R) Pet Food Chemical
JOARDER PROPERTIES: Kessler Seeks Class Certification Under FLSA
JPMORGAN CHASE: Senegal Seeks Approval of $19.5-Mil. Settlement
KING COUNTY, WA: Court Names Guardian Ad Litem for Class Settlement
LJM PARTNERS: Lundgren-Wiedinmyer Sues Over Investment Mishap
LOCAL OYSTER: Fails to Pay for Overtime Work, Carleton Alleges
MANAGEMENT AND TRAINING: Fails to Pay OT, Mendoza Suit Alleges
MATSU CORP: Zhu Moves for Collective Action Status Under FLSA
MCGRATH COLOSIMO: Khalil May Re-File Bid for Class Certification
MDL 2036: Dasher Seeks Certification of Four Customer Classes
MDL 2617: Court Awards $31MM Attorney's Fees in Data Breach Suit
MICHAEL P MORTON: Ortez Seeks Certification of Class Under FDCPA
MIDLAND CREDIT: Proceedings on Bruchhauser's Bid for Cert. Stayed
MYER: Reassures Investors of Profit Growth Amid Class Action
NEVRO CORP: Oklahoma Police Fund Hits Share Drop Over Patent Row
NORDSTROM INC: Stephens Moves to Certify Rolex Purchasers Class
NOVATION CAPITAL: Ten Motions Mooted Due to Settlement in Buja Suit
NOVO NORDISK: Court Denies Bid to Dismiss Securities Suit
NUCOR-YAMATO STEEL: Sanford Action Seeks Unpaid Overtime Premium
OCWEN LOAN SERVICING: Reichman Action Hits Illegal Charges
OPR PROPERTY: NY App. Div. Partly Reinstates Amended Rubman Suit
OPUS BANK: Appeal on Attorneys' Fees Award in Flores Suit Dismissed
OPUS BANK: Flores' Appeal on Release Claims Enforcement Nixed
OVERSTOCK.COM INC: Plaintiffs Voluntarily Dismisses Class Action
PENNSYLVANIA: Hepatitis C Class Action Against DOC Can Proceed
PETLAND INC: Diaz Suit Asserts Disabilities Act Breach
PF HOMESTEAD: Ramos Sues Over Illegal SMS Ad Blasts
PHARMACEUTICAL SPECIALTIES: Quinonez's Bid to Certify Class Tossed
PORTAGE COUNTY, WI: Lieberman Granted Leave to Proceed on Claims
PRIORITY AUTOMOTIVE: Underpays Salespersons, Glassey Suit Alleges
R.E.D.A. INC: Fails to Pay OT to Restaurant Workers, Aranda Says
RECOVERY SOLUTIONS: Smilowitz Files Suit Over FDCPA Breach
REGIONS BANK: Hodapp Moves for Certification of Class Under FLSA
RELIN GOLDSTEIN: Violates Fair Debt Collection Act, Korey Claims
RIPPLE LABS: Rosen Law Firms Investigates Securities Claims
S & M CATERERS: Fails to Give Uniform to Servers, Hernandez Says
S&D TARR PITT: Faces Murillo Suit in San Joaquin, California
SALRON DINER: Servers to Recover Unpaid OT Wages, Withheld Tips
SAN JOSE HEALTHCARE: Nursing Services Below Standard, Cooper Says
SANTANDER CONSUMER: Wins Prelim. Nod of Hinkle Suit Settlement
SEBERT LANDSCAPING: Underpays Laborers, Villanueva et al. Allege
SHARKNINJA OPERATING LLC: Wallace Sues Over Defective Blender
SHELBY COUNTY: Court OKs Voluntary Dismissal Bid of Williams Suit
SINCLAIR BROADCAST: Intends to Vigorously Defend Class Action
SOUTHWEST AIRLINES: Judge Affirms Class Action Attorney Fee Award
SSA COOPER: Faces Class Action Over Unpaid Overtime Wages
STEINHOFF INT'L: Law Firms to Launch Class Action in South Africa
SWISSPORT SA: Underpays to Ramp Agents, Garcia and Miranda Claim
TAX EASE: Brown Appeals W.D. Kentucky Decision to Sixth Circuit
TENNECO INC: Monteverde & Associates Files Class Action
TITAN TRANSFER: Ratliff Sues over Background Checks
TRANSWORLD SYSTEMS: Removes Hoffman Suit to W.D. Washington
ULTA INC: Fails to Pay Proper Wages, Rezendes Suit Alleges
UNITED STATES: Catholic Charities Seeks to Cert. Class in "Gatore"
UNITED STATES: Gatore Moves to Certify Class in Suit v. DHS
UNITED STATES: Himyari Granted Leave to File Amended Complaint
UNITED STATES: More Counties Joining PILT Class Action
UNITED STATES: Sajous Appeals S.D.N.Y. Ruling to Second Circuit
UNITYPOINT HEALTH: May Face 2nd Data Breach Class Action
VIRGIN AMERICA: Nov. 1 Hearing on Rule 37 Motion in Bernstein Suit
WAL-MART ASSOCIATES: Fails to Pay OT, Anguiano-Tamayo Alleges
WAL-MART STORES: Abbey Spanier Appeals Order in Hummel Suit
WASHINGTON TRUST: Court Grants $1.65MM Attorney's Fees
WASHINGTON: Governor et al. Face Belgau Suit over Union Dues
WASTE CONNECTIONS: Dawson Moves to Certify Class Under FLSA
WAYPOINT RESOURCE: Faces Williams Suit Over FDCPA Violations
WELLS FARGO: Sept. 14 Response Deadline in Silverman Suit
WILLIAMS-SONOMA: Rushing Suit Moved to N.D. California
WORLD FUEL: Jarquin Moves to Certify Class of UNIX Engineers
WORLD FUEL: Jarquin Moves to Certify Female UNIX Engineers Class
[*] Proskauer Attorney Discusses NLRB's Decisions on Waivers
[*] Simpson Attorneys Discuss Issue Certification Use, Limits
*********
7-ELEVEN: Fails to Pay OT to Merchandisers, Padron Suit Alleges
---------------------------------------------------------------
RAMIRO PADRON, individually and on behalf of all others similarly
situated, Plaintiff v. 7-ELEVEN; and DOES 1 through 250, inclusive,
Defendants, Case No. BC716335 (Cal. Super., Los Angeles Cty., Aug.
1, 2018) is an action against the Defendants for unpaid regular
hours, overtime hours, minimum wages, wages for missed meal and
rest periods.
Mr. Pardon was employed by the Defendants as stocking merchandiser
from June 2007 to August 1, 2017.
7-Eleven, Inc. operates, franchises, and licenses a chain of
convenience stores in the United States, Canada, Japan, Taiwan,
Thailand, South Korea, China, Malaysia, Mexico, Singapore,
Australia, the Philippines, Indonesia, Norway, Sweden, and Denmark.
7-Eleven, Inc. was formerly known as Southland Corporation and
changed its name to 7-Eleven, Inc. in April 1999. The company was
founded in 1927 and is based in Dallas, Texas. 7-Eleven, Inc.
operates as a subsidiary of Seven-Eleven Japan Co., Ltd. [BN]
The Plaintiff is represented by:
Ana L. De la Torre, Esq.
Gary R. Carlin, Esq.
Brent S. Buchsbaum, Esq.
Laurel N. Haag, Esq.
LAW OFFICES OF CARLIN & BUCHSBAUM, LLP
555 East Ocean Blvd., Suite 818
Long Beach, CA 90802
Telephone: (562)432-8933
Facsimile: (562)435-1656
AGCO CORPORATION: Faces Cacy Suit over Use of Biometric Data
------------------------------------------------------------
LATHAM CACY, individually and on behalf of all others similarly
situated, Plaintiff v. AGCO CORPORATION; and CERDIAN HCM, INC.,
Defendants, Case No. 2018CH09968 (Ill. Cir., Cook County, Aug. 6,
2018) seeks to redress and curtain the Defendants' unlawful
collection, use, storage and disclosure of the Plaintiff's
sensitive biometric data.
The Plaintiff alleges in the complaint that the Defendants failed
to inform the Plaintiff in writing of the purpose and length of
time for which fingerprints were being collected, stored,
disseminated, and used. The Defendants also failed to provide a
publicly available retention schedule or guidelines for permanent
destruction of the biometric data.
AGCO Corporation is an agricultural equipment manufacturer
headquartered and incorporated under the laws of Georgia, with its
Parts Division located in Illinois. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Catherine Mitchell, Esq.
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, IL 60601
Telephone: (312) 233-1550
Facsimile: (312) 233-1560
E-mail: rstephan@stephanzouras.com
jzouras@stephanzouras.com
cmitchell@stephanzouras.com
AINSWORTH PET: Faces Parks Suit over Sale of Dog Food Products
--------------------------------------------------------------
MARKEITH PARKS, individually and on behalf of all others similarly
situated, Plaintiff v. AINSWORTH PET NUTRITION, LLC d/b/a RACHAEL
RAY NUTRISH, Defendant, Case No. 1:18-cv-06936-LLS (S.D.N.Y., Aug.
1, 2018) is an action against the Defendant alleging deceptive
labeling, marketing, and sale of its line of Super Premium Food for
Dogs.
According to the complaint, the Defendant aggressively advertises
and promotes its products as "Natural." These claims are false,
deceptive, and misleading. The Defendant's products are not
"Natural." Instead, the products contain the unnatural chemical
glyphosate, a potent biocide and endocrine disruptor, with
detrimental health effects that are still becoming known.
Ainsworth Pet Nutrition, LLC produces pet nutritional products. The
Company offers meat, fruits, vegetables, and other food products
for pets. Ainsworth Pet Nutrition operates in the United States.
[BN]
The Plaintiff is represented by:
Kim E. Richman, Esq.
RICHMAN LAW GROUP
81 Prospect Street
Brooklyn, NY 11201
Telephone: (718) 878-4707
Facsimile: (212) 687-8292
E-mail: krichman@richmanlawgroup.com
- and -
Michael J. Gabrielli, Esq.
GABRIELLI LEVITT LLP
2426 Eastchester Rd., Ste. 103
Bronx, NY 10469
Telephone: (718) 708-5322
Facsimile: (718) 708-5966
E-mail: michael@gabriellilaw.com
AMPIO PHARMA: Sued Over Share Price Drop from Failed Drug Test
--------------------------------------------------------------
Jun Shi, individually and on behalf of all others similarly
situated, Plaintiff, v. Ampio Pharmaceuticals, Inc., Michael
Macaluso and Thomas E. Chilcott, Defendants, Case No. 18-cv-07476
(C.D. Cal., August 25, 2018), seeks statutory damages and any other
available legal or equitable remedies resulting from violations of
the federal securities laws.
Ampio is a biopharmaceutical company which focuses on the
development of therapies for the treatment of prevalent
inflammatory conditions. It was developing Ampion, a low molecular
anti-inflammatory biologic, for the treatment of pain due to
osteoarthritis of the knee.
According to the complaint, the Defendants failed to disclose that
Ampion's clinical trials were inadequate and not well-controlled.
On this news, shares of Ampio fell $2.25 per share or over 78% to
close at $0.61 per share on August 8, 2018. Shares continued to
fall another 21.3% the next day. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
ANDREA VISGILIO-McGRATH: Griffin Seeks Prelim. Nod of $2.3K Deal
----------------------------------------------------------------
The Plaintiff in the lawsuit styled DORIS GRIFFIN, on behalf of
herself and all others similarly situated v. ANDREA
VISGILIO-McGRATH, LLC and JOHN DOES 1-25, Case No.
2:17-cv-00006-KM-MAH (D.N.J.), seeks entry of an order
preliminarily approving the parties' proposed settlement.
Ms. Griffin also asks the Court to approve her proposed Class
Notice and to schedule a Settlement Hearing.
On January 2, 2017, the Plaintiff, individually and on behalf of a
class, filed the lawsuit accusing the Defendant of violating the
Fair Debt Collection Practices Act by sending consumers written
collection letters, which allegedly made false, deceptive, and
misleading statements in an effort to collect a debt. The Parties
subsequently engaged in extensive discovery and arm's-length
discussions to resolve the Litigation.
For the purposes of settlement, the Parties stipulate to the
certification of the Settlement Class, which is defined as:
All persons in the State of New Jersey to whom Defendant
sent a written communication which is materially similar to
the form attached as Exhibit A to Plaintiff's Complaint, in
an attempt to collect a debt, which was not returned as
undeliverable by the United States Post Service, during the
period beginning July 14, 2016 to July 14, 2017, which
stated in part: "Until this is paid, it may appear on your
credit report and adversely impact your credit."
The Defendant will create a class settlement fund of $2,300, which
Class Administrator Logan & Company, Inc., will distribute pro rata
among those Settlement Class Members who do not timely exclude
themselves ("Opt-Out") from the class settlement. Settlement Class
Members will receive a pro rata share of the Class Recovery.
The Defendant will pay $1,000 to the Plaintiff for her statutory
damages. The Defendant further agrees to pay $1,000 to the
Plaintiff as an incentive payment in recognition of her efforts on
behalf of the Settlement Class.
Subject to the Court's approval, the Defendant agrees to pay Class
Counsel $35,000 as reasonable attorneys' fees and costs.
The Plaintiff is represented by:
Joseph K. Jones, Esq.
JONES, WOLF & KAPASI, LLC
375 Passaic Avenue, Suite 100
Fairfield, NJ 07004
Telephone: (973) 227-5900
Facsimile: (973) 244-0019
E-mail: jkj@legaljones.com
The Defendant is represented by:
Jeffrey S. Leonard, Esq.
MORGAN MELHUISH ABRUTYN
651 Old Mount Pleasant Avenue, Suite 200
Livingston, NJ 07039
Telephone: (973) 994-2500
Facsimile: (973) 994-3375
E-mail: jleonard@morganlawfirm.com
APPLIED UNDERWRITERS: Order on Docs Filing in Shasta Suit Issued
----------------------------------------------------------------
Judge William B. Shubb of the U.S. District Court for the Eastern
District of California has issued and order regarding the filing of
documents under seal and redacted documents in the cases, SHASTA
LINEN SUPPLY, INC., individually and on behalf of all others
similarly situated, Plaintiff, v. APPLIED UNDERWRITERS, INC.,
APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE, INC., CALIFORNIA
INSURANCE COMPANY, INC., and APPLIED RISK SERVICES, INC.,
Defendants. PET FOOD EXPRESS LTD., individually and on behalf of
all others similarly situated, Plaintiff, v. APPLIED UNDERWRITERS,
INC., APPLIED UNDERWRITERS CAPTIVE RISK ASSURANCE, INC., and
CALIFORNIA INSURANCE COMPANY, INC., Defendants, Case Nos.
2:16-cv-00158-WBS-AC, 2:16-cv-01211-WBS-AC ((E.D. Cal.).
There are two related class action lawsuits filed in the district,
Pet Food Express Ltd. v. Applied Underwriters, Inc., Case No.
2:16-cv-0211-WBS-AC and Shasta Linen Supply, Inc. v. Applied
Underwriters, Inc., Case No. 2:16-cv-00158-WBS-AC; both actions are
putative class actions involving the same parties and similar
claims.
On July 6, 2017, pursuant to stipulation, the Court issued an order
consolidating the two actions. On Feb. 6, 2017, it issued a
Protective Order concerning documents and deposition testimony in
the matter. On Feb. 22, 2018, the Court issued a case management
order requiring motions for class certification to be filed by July
19, 2018.
On July 17, 2018, the Court issued an Order modifying the previous
schedule to allow the Plaintiffs to file their motions for class
certification on or before July 26, 2018. Such motion for class
certification will include exhibits and deposition transcripts that
are covered by the Protective Order and that are entitled to be
filed under seal under applicable law.
The parties, through their counsel of record, stipulated that:
(i) The parties do hereby consent to the Plaintiffs'
application to file documents under seal for documents which are
part of their motion for class certification, pursuant to LR 141.
(ii) They do consent to redaction to the plaintiffs'
Memorandum of Law of any citations, references, or quotations of
any sealed documents and/or transcripts which are included in their
motion for class certification, pursuant to LR 140.
(iii) Simultaneously with the motion for class certification,
the Plaintiffs will file a motion to file under seal and/or
redaction, pursuant to LR 140 and 141, and will provide unredacted
copies of all such motion papers and exhibits to the Court and
opposing counsel of both the motion for class certification and the
motion to file under seal and redaction. Pursuant to the Part
Rules, sealed documents will be provided to the Court via:
ApprovedSealed@caed.uscourts.gov. The sealed exhibits to the class
certification will not be uploaded to ECF, pending a determination
by the Court on the Plaintiffs' application to file under seal and
redaction, but the exhibits uploaded to ECF as part and parcel of
the motion for class certification will state, application to seal
exhibit pending.
Judge Shubb expressed no opinion as to whether it will allow any
particular document to be sealed. Any request to seal must comply
with the requirements set forth by, inter alia, Kamakana v. City &
County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), and
articulate compelling reasons supported by specific factual
findings that outweigh the general history of access and the public
policies favoring disclosure, such as the public interest in
understanding the judicial process.
A full-text copy of the Court's July 25, 2018 Order is available at
https://is.gd/O1YVUs from Leagle.com.
Shasta Linen Supply, Inc., Plaintiff, represented by Craig E.
Farmer -- cfarmer@farmersmithlaw.com -- Farmer Smith & Lane LLP &
John L. Hall -- jhall@farmersmithlaw.com -- Farmer Smith & Lane
LLP.
Applied Underwriters, Inc., a Nebraska Corporation, Applied
Underwriters Captive Risk Assurance Company, Inc., a British Virgin
Islands Company, California Insurance Company, a Registered
California Insurance Company & Applied Risk Services, Inc., a
Nebraska Corporation, Defendants, represented Spencer Y.Kook --
skook@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP, Shand Scott
Stephens -- shand.stephens@dlapiper.com -- DLA Piper LLP & Travis
R. Wall -- twall@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP.
Applied Underwriters, Inc., a Nebraska Corporation, Counter
Claimant, represented by Shand Scott Stephens, Dla Piper Llp &
Travis R. Wall , Hinshaw & Culbertson LLP.
Shasta Linen Supply, Inc., Counter Defendant, represented by Craig
E. Farmer, Farmer Smith & Lane LLP, John Douglas Moore --
jmoore@recyclelaw.com -- Law Office of John Douglas Moore & John L.
Hall, Farmer Smith & Lane LLP.
AR RESOURCES: Court Denies Bid to Dismiss Morello's FDCPA Suit
--------------------------------------------------------------
The United States District Court for the District of New Jersey
denied Defendant's Motion to Dismiss the case captioned WAYNE
MORELLO, individually and on behalf of all others similarly
situated, Plaintiff, v. AR RESOURCES, INC., Defendant, Civil Action
No. 17-13706 (FLW) (DEA)(D.N.J.).
Plaintiff Wayne Morale initiated this putative class action against
Defendant AR Resources, Inc. (ARR), a debt collection agency,
alleging that he received a debt collection letter from the
Defendant that violated the Fair Debt Collection Practices Act
(FDCPA), 15 U.S.C. Section 1692.
Congress enacted the FDCPA to eliminate abusive debt collection
practices, to ensure that debt collectors who abstain from such
practices are not competitively disadvantaged, and to promote
consistent state action to protect consumers.
Relevant here, debt collectors must comply with the debt validation
provisions of Section 1692g, which were designed to guarantee that
consumers would receive adequate notice of their rights under the
FDCPA.
Section 1692(b) requires the debt collector to cease all collection
efforts if the consumer provides written notice that he or she
disputes the debt or requests the name of the original creditor
until the debt collector mails either the debt verification or
creditor's name to the consumer.
Relevant Case Law
Here, the Plaintiff alleges that the Insurance Language violates
Section 1692g of the FDCPA, because it could mislead the least
sophisticated debtor into believing that he or she could dispute a
debt by calling the listed telephone number, and thus, that the
Collection Letter fails to effectively convey to debtors that all
disputes must be submitted in writing to be effective.
The Plaintiff relies primarily on the Third Circuit's decisions in
Graziano, Caprio, and Laniado, as well as this Court's decisions in
Kassin v. AR Res., Inc., No. 16-4171, 2017 WL 1086760 (D.N.J. Mar.
22, 2017) (Kassin I) and Kassin v. AR Res., Inc., No. 16-4171, 2017
WL 4316391 (D.N.J. Sept. 28, 2017) (Kassin II).
First, in Graziano v. Harrison, 950 F.2d 107, 112 (3d Cir. 1991),
the plaintiff-debtor alleged, in relevant part, that language in a
debt collection letter threatening legal action within ten days
unless the debt was resolved in that time violated Section 1692g of
the FDCPA. In the proceedings below, the district court granted
summary judgment against the debtor on his Section 1692g claim,
reasoning that, despite the inclusion of the demand for payment
within ten days, the validation notice in the letter adequately
advised the debtor of his rights. On appeal, the Third Circuit
reversed, finding that the juxtaposition of two inconsistent
statements the demand for payment and the language providing that a
debtor has thirty days to dispute a debt rendered the statutory
notice invalid under section 1692g.
Next, in Caprio, 709 F.3d at 149, a debtor filed a complaint
against a debt collector, alleging that language in a one-page,
double-sided collection letter violated Section 1692g, because the
least sophisticated debtor could reasonably believe that he could
effectively dispute the validity of the debt by making a telephone
call, even though such disputes must be made in writing in order to
be effective in the Third Circuit.
The district court in Caprio granted the debt collector's motion
for judgment on the pleadings. On appeal, the Third Circuit
reversed, holding that the please call language in the collection
letter overshadowed and contradicted the validation notice, because
it could be interpreted by the least sophisticated debtor as
providing that he or she could dispute a debt by phone.
Similarly, Laniado v. Certified Credit & Collection Bureau, 705 F.
App'x 87, 89 (3d Cir. 2017), the Third Circuit considered whether a
debt collection letter containing language inviting the debtor to
call the debt collector should there be any discrepancy violated
Section 1692g of the FDCPA. Relying on Caprio, the court reversed
the district court's order dismissing the case, finding that the
cited language could mislead the least sophisticated debtor into
foregoing his or her statutory right to dispute a debt.
The Court finds that the Insurance Language contradicts the
Validation Notice, because the least sophisticated debtor could
reasonably read the Insurance Language as providing that he or she
need not dispute a debt in writing, and thus, the Insurance
Language could confuse or mislead the debtor into foregoing his or
her statutory right to dispute a debt. Significantly, Section
1692g(a)(3), as interpreted by the Third Circuit, requires debt
collectors to include within the validation notice a statement
advising the debtor that the debt will be assumed as valid unless,
within thirty days after receipt of the notice, the debtor disputes
the validity of the debt, or any portion thereof, in writing.
Stated differently, to comply with Section 1692g, a debtor
collector must inform the debtor that, if the debtor seeks to
dispute even a portion of the debt, such a dispute must be in
writing to be effective. Viewed in this context, the Court finds
that the least sophisticated debtor could reasonably interpret the
Insurance Language as providing that, to the extent the debtor
believes that an insurance provider is responsible for payment of a
portion of the debt (e.g., if the debtor only believes he or she is
responsible for a co-payment), that the debtor may dispute that
portion of the debt obligation by calling Defendant, rather than
disputing the debt in writing. Indeed, as the Caprio court
acknowledged, it is conceivable that the least sophisticated debtor
would pursue the legally ineffective avenue of calling Defendant,
rather than taking the more burdensome route of submitting a
dispute in writing.
Accordingly, because the Insurance Language could mislead the least
sophisticated debtor into foregoing his or her statutory right to
dispute a debt, the Court finds that the Validation Notice fails to
meet the requirements of Section 1692g.
The Defendant's arguments to the contrary fail to convince me
otherwise. In that regard, notwithstanding the guiding precedent
cited above, Defendant makes two main arguments as to why this
Court should depart from Kassin I and find that Plaintiff fails to
sufficiently allege a violation of Section 1692g.
First, the Defendant argues that this case is analogous to the
Third Circuit's decision in Wilson, which decision supports
dismissing this case. Second, Defendant directs this Court to
various non-binding decisions, from both within and outside of this
Circuit, where courts have dismissed FDCPA claims that Defendant
contends were based on language that is comparable to the Insurance
Language.
The Court disagrees.
First, the instant case is distinguishable from Wilson, and thus,
the Third Circuit's ruling in that case does not control the
outcome here. In Wilson, Wilson, 225 F.3d at 354, the Third
Circuit, on appeal of the district court's order dismissing the
case, considered whether language contained in a debt collection
letter, which notified the debtor that his account has been placed
with the debt collector for immediate collection and that it shall
afford the debtor the opportunity to pay this bill immediately and
avoid further action against you, contradicted or overshadowed the
required validation notice under Section 1692g. While the court
noted that the collection letter at issue presented a close
question, it held that the subject language did not overshadow or
contradict the validation notice, reasoning as follows:
Contrary to Defendant's argument, however, the Court finds that the
Insurance Language at issue in this case falls closer to the
prohibited language in Graziano, Caprio, and Laniado than the
collection letter in Wilson. To that end, as I have already found,
the least sophisticated debtor could reasonably interpret the
Insurance Language as providing that, in the event the debtor seeks
to dispute personal liability for a debt by claiming that his or
her insurance provider is the liable party, the debtor may call the
debt collector rather than submitting the dispute in writing.
Although even the least sophisticated debtor is charged with
reading the entirety of the Collection Letter, including the
Validation Notice that follows the Insurance Language, under these
circumstances, it is plausible that the least sophisticated debtor
would interpret the Insurance Language as providing that he or she
could also dispute the debt through a legally invalid method
calling Defendant.
As such, the Insurance Language resembles the situation in
Graziano, because its stands in juxtaposition to the language in
the Validation Notice providing that a dispute must be in writing
to be effective. Put differently, the Insurance language
contradicts the required language in the Validation Notice, because
the least sophisticated debtor could be confused or misled into
believing that he or she could dispute the debt by calling
Defendant, and thus, forego his or her statutory right under the
FDCPA to dispute the debt.
Accordingly, the Court rejects the Defendant's proposed analogy to
Wilson.
Second, none of the non-binding decisions cited by Defendant
persuade this Court to find that the Insurance Language does not
overshadow or contradict the Validation Notice. At the outset, many
of the decisions cited by Defendant include language that merely
invites the debtor to call the debt collector to provide
information other than potential insurance coverage, such as
attorney information or payment details, and thus, are based on
facts distinguishable from the those presented in this case.
In sum, while delving into the sophistication levels of a debtor is
an inherently difficult task, at a minimum, the Court find that
language inviting a debtor to call the debt collector if another
party (his or her insurance carrier) is liable for all or a portion
of the debt obligation, rather than the debtor personally, could
mislead that debtor into foregoing his or her statutory right to
dispute a debt. Accordingly, because the Insurance Language
contradicts the required language in the Validation Notice, the
Court finds that Plaintiff has sufficiently alleged a Section 1692g
claim.
A full-text copy of the District Court's August 16, 2018 Opinion is
available at https://tinyurl.com/y9ozgz6g from Leagle.com.
WAYNE MORELLO, on behalf of himself and all others similarly
situated, Plaintiff, represented by BENJAMIN JARRET WOLF , Jones,
Wolf & Kapasi, LLC & JOSEPH K. JONES , Jones, Wolf & Kapasi, LLC,
ONE GRAND CENTRAL PLACE.
AR RESOURCES, INC., Defendant, represented by MARK RICHARD FISCHER,
Jr. -- mfischer@highswartz.com -- HIGH SWARTZ LLP.
ARGOSY EDUCATION: Fails to Give Closure Notice, Bolden et al. Say
-----------------------------------------------------------------
DARLENE BOLDEN; SHAUNAE BULLOCK; JESSICA NAVA; WENDY SATTAM; and
ROES 1 through 30, individually and on behalf of all others
similarly situated, Plaintiff v. ARGOSY EDUCATION GROUP, LLC; DREAM
CENTER EDUCATION HOLDINGS, LLC; and DOES 1 through 30, Defendants,
Case No. 37-2018-00038876-CU-BT-CTL (Cal. Super., San Diego Cty.,
Aug. 2, 2018) alleges violation of the Consumer Legal Remedies
Act.
According to the complaint, on July 3, 2018, Argosy University
announced in an email to its students for the first time, and
without warning, that it would be closing its San Diego campus. The
Defendants are also closing numerous campuses in California in
addition to the San Diego campus.
The Plaintiffs and the class alleges they were deceived by the
Defendants' misrepresentations and non-disclosures regarding Argosy
University' s existence and stability, campus locations and
continuity, curriculum offerings, and offer of a reputable degree,
including, but not limited to the Defendants' advertisements
regarding the same and material non-disclosures regarding Argosy
University's circumstances, investigation and impending closures.
The Plaintiffs and members of the Class have each suffered injury,
in fact and have lost money or property as a result of the
Defendants' conduct, including: (1) The Plaintiffs and members of
the Class were misled as to the benefits conferred by virtue of
their payment of tuition and fees to the Defendants; (2) The
injuries suffered by the Plaintiffs and members of the Class are
economic, because they paid for education goods and services under
false pretenses and with inadequate disclosures of the true facts
and circumstances; (3) As a result of the Defendants' misleading of
the Plaintiffs and members of the Class regarding the benefits
conferred by virtue of their payment of tuition and fees; and (4)
the Plaintiffs would not have enrolled in Argosy University,
continued to enroll in Argosy University or stayed at Argosy
University if they had known the true facts at the time.
Argosy Education Group, Inc. provides graduate and postgraduate
professional education. The company's primary focus is on
doctoral-level academic programs in psychology, education,
business, and law. It also owns and operates The Ventura Group, a
provider of preparatory courses and materials for licensure
examinations; and manages John Marshall Law School, Atlanta. The
company was founded in 1975 and is based in Chicago, Illinois. As
of December 21, 2001, Argosy Education Group, Inc. operates as a
subsidiary of Education Management Corporation. On June 29, 2018,
Argosy Education Group, Inc. filed a voluntary petition for
liquidation under Chapter 7 in the U.S. Bankruptcy Court for the
District of Delaware. [BN]
The Plaintiffs were employed by:
Edward D. Chapin, Esq.
SANFORD HEISLER SHARP, LLP
655 West Broadway, 17th Floor
San Diego, CA 92101
Telephone: (619) 577-4251
Facsimile: (619) 577-4250
E-mail: echapin2@sanfordheisler.com
- and -
Gregory M. Garrison, Esq.
GREGORY M. GARRISON, APC
9255 Towne Centre Drive, Suite 500
San Diego, CA 92121
Telephone: (619) 798-9501
E-mail: greg@garrisonapc.com
- and –
Alexander E. Papaefthimiou, Esq.
PAPAEFTHIMIOU APC
215 E. Daily Drive, Suite 28
Camarillo, CA 93010
Telephone: (805) 366-3909
Facsimile: (805) 585-5410
E-mail: alex@aplitigation.com
ASSET RECOVERY: Adams Sues over Debt Collection Practices
---------------------------------------------------------
PEARL ADAMS, individually and on behalf of all others similarly
situated, Plaintiff v. ASSET RECOVERY SOLUTIONS, LLC; NAVIENT
SOLUTIONS, LLC; and JOHN DOES 1-25, Defendants, Case No.
7:18-cv-02163-BHH (D.S.C., Aug. 6, 2018) seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Asset Recovery Solutions, LLC is a full service asset recovery
management company. [BN]
The Plaintiff is represented by:
Kenneth Norsworthy, Jr., Esq.
505 Pettigru Street
Greenville, SC 29601
Telephone: (864) 804-0581
E-mail: norsworthylaw@gmail.com
BANKERS LIFE: Underpays Sales Representatives, Toma Suit Claims
---------------------------------------------------------------
ANDROW TOMA, individually and on behalf of all others similarly
situated, Plaintiff v. BANKERS LIFE AND CASUALTY COMPANY; COLONIAL
PENN LIFE INSURANCE COMPANY; and DOES 1 through 100, inclusive,
Defendants, Case No. 37-2018-00038568-CU-OE-CTL (Cal. Super., San
Diego Cty., Aug. 1, 2018) is an action against the Defendants for
unpaid regular hours, overtime hours, minimum wages, wages for
missed meal and rest periods.
The Plaintiff Toma was employed by the Defendants as sales
insurance representative from November 2016 to March 2017.
Bankers Life and Casualty Company provides Medicare supplement,
long-term care, and life insurance products. Bankers Life and
Casualty Company was formerly known as Hotel Men’s Mutual Benefit
Association and changed its name to Bankers Life and Casualty
Company in 1942. The company was founded in 1879 and is based in
Chicago, Illinois. Bankers Life and Casualty Company operates as a
subsidiary of Conseco Life Insurance Co. of Texas. [BN]
The Plaintiff is represented by:
Alvin M. Gomez, Esq.
Stephen Noel Ilg, Esq.
Frank Zeccola, Esq.
GOMEZ LAW GROUP
2725 Jefferson Street, Suit 7
Carlsbad, CA 92008
Telephone: (858) 552-0000
Facsimile: (858) 755-3364
E-mail: alvingomez@thegomezlawgroup.com
silg@ilglegal.com
frankzeccola@thegomezlawgroup.com
BIMBO BAKERIES: Four Consumer Classes Certified in Ang Suit
-----------------------------------------------------------
The Hon. Haywood S. Gilliam, Jr., enters an order in the lawsuit
titled ALEX ANG, et al. v. BIMBO BAKERIES USA, INC., Case No.
4:13-cv-01196-HSG (N.D. Cal.), granting in part and denying in part
the Plaintiffs' motion for class certification:
-- the Plaintiffs' motion is granted under Rule 23(b)(2) of
the Federal Rules of Civil Procedure as to all four
classes; and
-- denied under Rule 23(b)(3).
The Court also denies the Defendant's motion for sanctions. The
Court sets a case management conference for September 25, 2018, at
2:00 p.m. The parties shall submit their joint case management
statement by September 18, 2018.
The Plaintiffs sought to certify four classes of California
consumers, who purchased various food products manufactured by the
Defendant. The Plaintiffs allege that certain labels on some of
the food products do not comply with California's Sherman Food,
Drug, and Cosmetic Law. The proposed class definitions are:
(1) "Heart-Check Mark" Class: All consumers in the State of
California who, from March 18, 2009 to the present,
purchased Thomas' Plain Bagel Thins, Thomas' 100% Whole
Wheat Bagel Thins, Thomas' Everything Bagel Thins, Arnold
100% Whole Wheat Bread, Arnold 12 Grain Bread, or Arnold
Healthy Multi Grain Bread bearing the American Heart
Association Heart-Check Mark on the label;
Purchased Product: Plaintiff Ang purchased Thomas' Plain
Bagel Thins.
Substantially Similar Products: Thomas' 100% Whole Wheat
Bagel Thins, Thomas' Everything Bagel Thins, Arnold 100%
Whole Wheat Bread, Arnold 12 Grain Bread, and Arnold
Healthy Multi Grain Bread;
(2) "Whole Grain" Class: All consumers in the State of
California who, from March 18, 2009 to the present,
purchased Sara Lee Classic 100% Whole Wheat Bread, Sara
Lee 100% Whole Wheat Bread, Sara Lee Soft & Smooth Whole
Grain White Bread, or Sara Lee Soft & Smooth 100% Whole
Wheat Bread with labels containing the phrases "excellent
source of whole grain" or "good source of whole grain."
Purchased Products: Plaintiffs both purchased Sara Lee
Classic 100% Whole Wheat Bread, and Plaintiff Streit also
purchased Sara Lee 100% Whole Wheat Bread.
Substantially Similar Products: Sara Lee Soft & Smooth
Whole Grain White Bread, Sara Lee Soft & Smooth 100% Whole
Wheat Bread;
(3) "Added Coloring" Class: All consumers in the State of
California who, from March 18, 2009 to the present,
purchased Bimbo Original Toasted Bread, Bimbo Double Fiber
Toasted Bread, Arnold Marble Jewish Rye Bread, Arnold
Pumpernickel Jewish Rye Bread, Oroweat Dark Rye Bread,
Oroweat Sweet Hawaiian Bread, Stroehmann Deli Soft Rye -
No Seeds, Stroehmann Deli Soft Rye - Seeds, Thomas'
Cinnamon Raisin Swirl Toasting Bread, or Thomas' Cranberry
Swirl Toasting Bread containing added coloring.
Purchased Products: Plaintiff Ang purchased Bimbo Original
Toasted Bread.
Substantially Similar Products: Bimbo Double Fiber Toasted
Bread, Arnold Marble Jewish Rye Bread, Arnold Pumpernickel
Jewish Rye Bread, Oroweat Dark Rye Bread, Oroweat Sweet
Hawaiian Bread, Stroehmann Deli Soft Rye - No Seeds,
Stroehmann Deli Soft Rye – Seeds, Thomas' Cinnamon Raisin
Swirl Toasting Bread, or Thomas' Cranberry Swirl Toasting
Bread; and
(4) "Whole Wheat Class": All consumers in the State of
California who, from March 18, 2009 to the present,
purchased Sara Lee 100% Whole Wheat Bread, Sara Lee
Classic 100% Whole Wheat Bread, Arnold 100% Whole Wheat
Pocket Thins Flatbread, Arnold Bakery Light - 100% Whole
Wheat Bread, Bimbo 100% Whole Wheat Tortillas, Brownberry
100% Whole Wheat Pocket Thins Flatbread, Thomas' 100%
Whole Wheat Bagels, Thomas' 100% Whole Wheat Bagel Thins
Flatbread, Thomas' 100% Whole Wheat Mini Bagels, Thomas'
Sahara 100% Whole Wheat Pita Pockets, Thomas' Sahara 100%
Whole Wheat Pita Pockets Mini Size, Thomas' 100% Whole
Wheat English Muffins, or Tia Rosa 100% Whole Wheat
Tortillas.
Purchased Products: Plaintiff Ang purchased Sara Lee Soft
& Smooth Whole Wheat White Bread and Sara Lee 100% Whole
Wheat Bread; Plaintiff Streit purchased Sara Lee Classic
100% Whole Wheat Bread and Sara Lee 100% Whole Wheat
Bread.
Substantially Similar Products: Arnold 100% Whole Wheat
Pocket Thins Flatbread, Arnold Bakery Light – 100% Whole
Wheat Bread, Bimbo 100% Whole Wheat Tortillas, Brownberry
100% Whole Wheat Pocket Thins Flatbread, Mrs. Baird's 100%
Whole Wheat Bread, Mrs. Baird's 100% Whole Wheat Country
Rolls, Thomas's 100% Whole Wheat Bagels, Thomas' 100%
Whole Wheat Bagel Thins, Thomas' 100% Whole Wheat Mini
Bagels, Thomas' Sahara 100% Whole Wheat Pita Pockets,
Thomas' Sahara 100% Whole Wheat Pita Pockets Mini Size,
Thomas' 100% Whole Wheat English Muffins, and Tia Rosa
100% Whole Wheat Tortillas.
BLUE STAR CRUISES: Gallion Hits Autodialed Telemarketing Calls
--------------------------------------------------------------
Steve Gallion, on behalf of himself and all others similarly
situated, Plaintiff, v. Blue Star Cruises, LLC and Does 1 through
10, inclusive, and each of them, Defendants, Case No. 18-cv-01774
(N.D. Cal., August 24, 2018), seeks damages and any other available
legal or equitable remedies resulting from contacting Plaintiff on
his cellular telephone in violation of the Telephone Consumer
Protection Act.
Blue Star Cruises contacted Gallion in an attempt to promote their
cruise packages using an "automatic telephone dialing system"
thereby incurring a charge for incoming calls. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
Adrian R. Bacon, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St. Suite 780,
Woodland Hills, CA 91367
Phone: (877) 206-4741
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
mgeorge@toddflaw.com
abacon@toddflaw.com
twheeler@toddflaw.com
CENTRAL CREDIT: Flores Alleges Wrongful Debt Collections
--------------------------------------------------------
PAMELA FLORES, individually and behalf of all others similarly
situated, Plaintiff v. CENTRAL CREDIT SERVICES LLC, Defendants,
Case No. 1:18-cv-00850-RJJ-PJG (W.D. Mich., Aug. 2, 2018) seeks to
stop the Defendant's unfair and unconscionable means to collect a
debt.
The case is assigned to Chief Judge Robert J. Jonker and referred
to Magistrate Judge Phillip J. Green.
Central Credit Services LLC operates as an accounts receivable
management company. [BN]
The Plaintiff is represented by:
Nicholas Allan Reyna, Esq.
LAW OFFICES OF NICHOLAS A. REYNA PC
528 Bridge St. NW
Grand Rapids, MI 49504
Telephone: (616) 235-4444
E-mail: nickreyna7@hotmail.com
CL SOUTHGATE: Williamson Sues over Transfer of Security Deposit
---------------------------------------------------------------
MARIAN WILLIAMSON, individually and on behalf of all others
similarly situated Plaintiff v. CL SOUTHGATE LLC; CL SOUTHGATE
ANNEX LLC; LARAMAR MANAGEMENT SERVICES, LLC; BRIDGE WF IL MIDPOINTE
LLC; and BRIDGE PROPERTY MANAGEMENT, L.C., Defendants, Case No.
2018CH09992 (Ill. Cir., Cook County, Aug. 6, 2018) alleges that the
Defendants failed to provide security deposit transfer notices, and
provide the notice of security deposit transfer to a new financial
institution as required by the City of Chicago Residential Landlord
and Tenant Ordinance.
According to the complaint, on May 31, 2017, the Plaintiff was
offered a written residential lease agreement with Southgate in one
of its units known as the Midpointe Apartments. For the timeframe
May 31, 2017 to February 26, 2018, Laramar Management was the
property manager for Midpointe Apartments.
On February 26, 2018, ownership of the Midpointe Apartments was
transferred from Southgate to Southgate Annex. On the same date,
Southgate Annex transferred ownership and control of the Midpointe
Appartments to Bridge WF.
The security deposits of the Plaintiff and the tenants of Midpointe
Apartments were transferred from Wells Fargo Bank, N.A., to another
financial institution by the Defendants, as part of the ownership
change.
Since the transfer of ownership and control of Midpointe Apartments
to Bridge WF, the Plaintiff and the tenant of Midpointe Apartments
have not been notified as to the whereabouts of their security
deposits they paid prior to the transfer of ownership and control.
CL Southgate LLC is a Delaware company engaged in owning and
operating a residential apartment in Illinois. The Company is an
affiliate of Castle Lanterra Properties, a real estate investment
company. [BN]
The Plaintiff is represented by:
Jeffrey Sobek, Esq.
JS LAW
29 E. Madison Street, Suite 1000
Chicago, IL 60602
Telephone: (312) 756-1330
E-mail: jeffs@jsslawoffices.com
CONVERGYS CORP: Abner Seeks to Certify Collective FLSA Class
------------------------------------------------------------
In the lawsuit entitled SHAWN ABNER, Individually and on behalf of
all others similarly situated, the Plaintiff, v. CONVERGYS
CORPORATION, the Defendant, Case No. 1:18-cv-00442-TSB (S.D. Ohio),
the Plaintiff asks the Court for an order, pursuant to Section
16(b) of the Fair Labor Standards Act:
1. conditionally certifying proposed collective FLSA class of:
"all hourly call-center employees who have been employed by
Convergys Corporation, anywhere in the United States, at
any time from June 28, 2015 through the final disposition
of this matter";
2. implementing a procedure whereby Court-approved Notice of
Plaintiffs' FLSA claims is sent via U.S. Mail and e-mail to
the Putative Class Members;
3. approving a Reminder Email to be sent to Putative Class
Members halfway through the 60-day notice period; and
4. requiring Defendant to, within 14 days of this Court's
order, identify all Putative Class Members by providing a
list in electronic and importable format, of the names,
addresses, and e-mail addresses of all Putative Class
Members who worked for Defendant at any time from beginning
three years immediately preceding the filing of the
Original Complaint through the present.
Attorneys in Charge for Plaintiffs and Putative Class Members:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452 1279
Facsimile: (361) 452 1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
- and -
Robert E. DeRose, Esq.
Jessica R. Doogan, Esq.
BARKAN MEIZLISH HANDELMAN
GOODIN DEROSE WENTZ, LLP
250 E. Broad St., 10th Floor
Columbus, OH 43215
Telephone: (614) 221 4221
Facsimile: (614) 744 2300
E-mail: bderose@barkanmeizlish.com
jdoogan@barkanmeizlish.com
CORECIVIC INC: Diabetic Inmates at Trousdale File Class Action
--------------------------------------------------------------
Brett Kelman, writing for Nashville Tennessean, reports that for
several nights in a row, Douglas Dodson says he did not receive the
drug that keeps him alive.
Mr. Dodson, an inmate at Trousdale Turner Correctional Facility,
had been stuck in his cell for weeks as a lockdown dragged on and
on at Tennessee's largest and newest prison. The chow hall was
off-limits, so food were served in his cell on cafeteria trays.
Each meal was supposed to come with an insulin shot, which helps
diabetics like Dodson control their delicate blood sugar, but
sometimes the insulin wasn't provided until hours later.
Sometimes, Mr. Dodson alleges, it wasn't provided at all.
"For the past 2 1/2 weeks we have been on lock down, and it has
been several evenings that we have not been called to the clinic to
get our insulin," Mr. Dodson wrote on a prisoner complaint form,
now filed as an exhibit in a lawsuit against the prison.
"I know my insulin is keeping me alive and I really need it
everyday. This has went on long enough here at this facility!"
This complaint, which Dodson wrote during a three-week prison
lockdown two years ago, is representative of what inmates describe
as woefully inadequate diabetes care at Trousdale, a for-profit
prison run by CoreCivic. In a class-action lawsuit, Dodson and
other former inmates allege that about 60 diabetic Trousdale
prisoners face daily risk because of unhealthy food, unpredictable
meal times and spotty access to insulin shots. Diabetics generally
inject insulin when they eat, but inmates allege they often wait
hours for the drug because of understaffing, which is designed to
"maximize profits," and frequent prison lockdowns.
The class-action lawsuit is one of at least three ongoing suits
that have accused CoreCivic of endangering diabetic inmates. Former
Trousdale inmate Thomas Leach filed a separate suit levying similar
allegations against the prison in 2016, and a third suit was filed
this year after the death of inmate Jonathan Salada, who allegedly
spent his final days in excruciating pain because of diabetes
compilations and negligent care.
CoreCivic has denied wrongdoing in all three suits and insisted
that the plaintiffs in the class-action case are responsible for
their own diabetes complications. In a court filing, the company
has claimed that Dodson and the other inmates have a documented
history of skipping meals, refusing insulin shots, using illegal
drugs and buying sugary snacks at the prison store in "willful
non-compliance" with a diabetic diet.
In a statement on Aug. 7, CoreCivic declined to respond to discuss
the specifics of the lawsuits but said it is committed to
"high-quality healthcare" for inmates and "appropriate levels of
staffing" in company facilities.
Private prison protesters shut down CoreCivic
The three diabetes lawsuits against Trousdale, each filed over the
past two years, have drawn little attention until recently, when
mistreatment allegations were revived by a protest at the CoreCivic
Nashville's headquarters.
A few dozen protesters on Aug. 6 blocked entry to the company
parking garage by chaining themselves to cement-filled barrels and
erecting a makeshift crow's nest on a 20-foot tripod. Police
dispersed the protest after about nine hours and more than a dozen
arrests.
During the protest, a former CoreCivic employee said she heard Mr.
Salada shouting, desperately in need of help, in the days before
his death.
"He screamed in pain for three days," said Ashely Dixon, who
resigned from Trousdale about eight months ago, as she was chained
to fellow protesters. "I tried to get him help, but nurses told me
he was faking it."
Dixon's statements follow the lawsuit filed by Mr. Salada's family
alleging the inmate was left screaming in pain in his cell in the
days before he died. The lawsuit claims that Mr. Salada had three
blood tests revealing his blood sugar was alarmingly high, and was
taken to the prison infirmary twice, but still never received
"appropriate or proper medical care." Mr. Salada was returned to
his cell still in pain, the lawsuit said, then later found
unconscious. He died about an hour later.
But Mr. Salada's death appears more complicated than the lawsuit
presents. According to Mr. Salada's autopsy, his blood sugar was
dangerously high when he died, but his official cause of death was
an overdose of buprenorphine, a prescription opioid painkiller.
Diabetes was listed as a contributing factor.
Tennessee's biggest and newest prison
CoreCivic, previously known as Corrections Corporation of America,
is one of the largest private prison companies in the U.S. with
about 65 prisons and eight immigration detention facilities. The
company has a five-year $276-million deal to run Trousdale, a
2,552-bed minimum security prison in Hartsville, Tennessee.
The diabetes lawsuits follow other allegations raised against the
prison since it opened in 2015, most of which stem from claims of
understaffing. Last year, a scathing audit said the prison is
plagued by gangs because of insufficient security and that staffing
data provided by CoreCivic could not be trusted.
This understaffing claim also central to the class-action diabetes
lawsuit, which alleges that Trousdale is run by a skeleton crew.
The lawsuit says that that Trousdale goes into lockdown, sometimes
for weeks at a time, purely for manpower reasons because CoreCivic
does not hire enough staff to secure the entire facility. Inmates
are confined to their cells and can't visit exercise yard or the
chow hall.
It is during these lockdowns, the lawsuit says, when diabetic care
is the worst.
"Meals are provided at irregular and often unpredictable times and
are often not diabetic appropriate despite medical directions for a
diabetic appropriate diet," the lawsuit states. "At such times,
inmates are frequently forced to eat their meals and only then,
sometimes two to three hours after eating, allowed to go for blood
sugar checks or insulin injections."
This allegation appears to have specifically resonated with the
American Diabetes Association, which has filed a court motion in
March to join the class-action lawsuit against Trousdale. In a news
release earlier this year, the association said it hopes the
lawsuit will set a standard for all CoreCivic facilities, and by
extension, all prisons.
"Just as children depend on adults to assist with their diabetes
care, individuals who are incarcerated are at the mercy of prison
staff to provide them with access to the health care tools,
medications and reasonable accommodations necessary to manage their
diabetes," said Sarah Fech-Baughman, an attorney for the American
Diabetes Association, in a news release.
"These individuals do not have access to appropriate medical care
and have been subjected to discrimination on the basis of their
diabetes. The ADA challenges both of these issues on behalf of this
vulnerable population." [GN]
CRAFTWORKS RESTAURANTS: Underpays Assistant Manager, Smith Claims
-----------------------------------------------------------------
TYLER SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. CRAFTWORKS RESTAURANTS & BREWERIES GROUP,
INC. d/b/a OLD CHICAGO PIZZA & TAPROOM, Defendant, Case No.
1:18-cv-01986-MEH (D. Colo., Aug. 6, 2018) seeks to recover unpaid
overtime compensation and applicable damages, interest, attorney's
fees and costs under the Fair Labor Standards Act.
The Plaintiff Smith was employed by the Defendant as assistant
manager from January 2016 to July 2016.
CraftWorks Restaurants & Brewery, Inc. owns and operates
restaurants, brewery restaurants, and entertainment venues in Los
Angeles, Chicago, and Washington D.C.; Killeen, Texas; and Fargo,
North Dakota. The company offers food and beer. CraftWorks
Restaurants & Brewery, Inc. was founded in 2010 and is based in
Broomfield, Colorado with additional office in Chattanooga,
Tennessee. [BN]
The Plaintiff is represented by:
C. Andrew Head, Esq.
Bethany Hilbert, Esq.
HEAD LAW FIRM, LLC
4422 N. Ravenswood Ave.
Chicago, IL 60640
Telephone: (404) 924-4151
Facsimile: (404) 796-7338
E-mail: ahead@headlawfirm.com
bhilbert@headlawfirm.com
- and -
Fran L. Rudich, Esq.
Seth R. Lesser, Esq.
Christopher M. Timmel, Esq.
KLAFTER OLSEN & LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
Facsimile: (914) 934-9220
E-mail: fran@klafterolsen.com
seth@klafterolsen.com
christopher.timmel@klafterolsen.com
CV SCIENCES: Smith Sues Over Share Price Drop Due to Denied Patent
------------------------------------------------------------------
David Smith, individually and on behalf of all others similarly
situated, Plaintiff, v. CV Sciences, Inc. (CVSI), Michael Mona,
Jr., Joseph D. Dowling, Michael Mona, III, Defendants, Case No.
18-cv -01602 (D. Nev., August 24, 2018), seeks redress for
violation of the Real Estate Settlement Procedures Act and the Fair
Credit Reporting Act resulting from improper billing, inaccurate
credit reporting and false threats of foreclosure.
CVSI's pharmaceutical division develops synthetically-formulated
cannabidiol-based medicine with its chief pharmaceutical product
identified as CVSI-007, a chewing gum product that combines
cannabidiol and nicotine in treatment of smokeless tobacco use and
addiction. CVSI filed a patent application with the US Patent
Trademark Office for it, however, the Patent Office rejected the
patent application on December 20, 2017. As a result, CVSI stock
plunged over 63%, from $9.20 to $3.40. Smith was a shareholder of
CVSI. [BN]
Plaintiff is represented by:
Patrick R. Leverty, Esq.
LEVERTY & ASSOCIATES LAW CHTD.
832 Willow Street
Reno, NV 89502
Tel: (775) 322-6636
Fax: (775) 322-3953
Email: pat@levertylaw.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Tel: (617) 398-5600
Email: jeff@blockesq.com
jake@blockesq.com
DETROIT, MI: Court Denies Davis' Bid for Class Certification
------------------------------------------------------------
The Hon. Paul D. Borman entered an opinion and order in the lawsuit
entitled TIMOTHY DAVIS and HATEMA DAVIS v. CITY OF DETROIT, et al.,
Case No. 2:15-cv-10547-PDB-DRG (E.D. Mich.):
(1) overruling the Plaintiffs' Objections;
(2) adopting the Magistrate Judge's May 11, 2018 Report and
Recommendation; and
(3) denying the Plaintiffs' Motion for Class Certification.
In this putative class action, nominal Plaintiffs Timothy and
Hatema Davis allege that Defendant City of Detroit and various
individual police officer Defendants violated their constitutional
rights when officers of the City's Narcotics Unit searched
Plaintiff Timothy Davis's duly licensed marijuana grow facility,
seized property that he legitimately owned in connection with his
operation of that facility, and arrested Plaintiff Timothy Davis,
all without probable cause. The Plaintiffs have moved for
certification of a class of other individuals engaged in licensed
distribution of medical marijuana, who have suffered similar
constitutional deprivations by the Defendants.
The Plaintiffs sought certification of this proposed class:
(a) individuals who were the owners and/or occupants of
homes and/or businesses engaged in the licensed distribution
of marijuana for medical purposes; (b) who were subjected to
search and/or seizure by agents and/or members of the
Detroit Police Department's Narcotics' Unit; [(c)] from the
period of February 11, 2012 until the date of judgment or
settlement of this case; [(d)] who were never convicted of
any offense arising from the search and/or seizure; [(c)]
whose search and seizure were executed without probable
cause; and [(f)] where such searches and/or seizures were
conducted pursuant to Defendant City of Detroit's policies,
practices, and/or customs.
In a Report and Recommendation issued on May 11, 2018, Magistrate
Judge David R. Grand recommended that the Court deny the
Plaintiffs' Motion for Class Certification. The Plaintiffs have
filed Objections to the Report and Recommendation, and the
Defendants have filed a Response to Plaintiffs' Objections.
The Magistrate Judge determined, among other things, that the
Plaintiffs' proposed class does not meet the implicit
ascertainability requirement of Rule 23(a) of the Federal Rules of
Civil Procedure, under which "the class definition must be
sufficiently definite so that it is administratively feasible for
the court to determine whether a particular individual is a member
of the proposed class," citing Young v. Nationwide Mut. Ins. Ca,
693 F.3d 532, 537-38 (6th Cir. 2012).
DUN & BRADSTREET: Matise Disputes Overtime Computation
------------------------------------------------------
Michael Corbin Matise, and all others similarly situated,
Plaintiffs, v. Dun & Bradstreet Emerging Businesses Corp.,
Defendant, Case No. 18-CV-00725, (W.D. Tex., August 23, 2018),
seeks unpaid bonuses, compensatory damages, attorneys' fees and
litigation expenses as provided by law, pre-judgment interest as
provided by law and such other and further relief pursuant to the
Fair Labor Standards Act.
Dun & Bradstreet Emerging Businesses Corp. sells computer software
and data services to emerging business customers. It employed
Matise from July of 2016 to June 19, 2018 as an inside sales
representative, selling software to businesses throughout the
United States. It allegedly did not include the commissions earned
by the Plaintiff when determining the regular rate of pay upon
which the overtime rate is based. [BN]
Plaintiff is represented by:
Charles L. Scalise, Esq.
Daniel B. Ross, Esq.
ROSS LAW GROUP
1104 San Antonio Street
Houston, TX 78701
Tel: (512) 474-7677
Fax: (512) 474-5306
Email: Charles@rosslawpc.com
EL BESO MEXICAN: Seeks Decertification of 3 Classes in Esteves Suit
-------------------------------------------------------------------
The Defendants in the lawsuit titled EDUARDO ESTEVES, et al.,
individually and on behalf of all others similarly situated v. EL
BESO MEXICAN RESTAURANTE, LLC and ANDREAS BOURAXIS, Case No.
2:15-cv-00484-LA (E.D. Wisc.), ask the Court to decertify three
conditionally certified classes, that were conditionally certified
on July 20, 2017 or, in the alternative, dismiss certain plaintiffs
because they have not commenced suit in accordance with 29 U.S.C.
Section 216(b) and Rule 8 of the Federal Rules of Civil Procedure.
For the reasons set forth more fully in their accompanying brief,
the Defendants contend that the Plaintiffs cannot establish that
they are similarly situated to the Opt-In plaintiffs as required by
the Fair Labor Standards Act for maintenance of a collective
action.
The Defendants are represented by:
Paul R. Erickson, Esq.
Lauren L. Wick, Esq.
GUTGLASS, ERICKSON, BONVILLE & LARSON, S.C.,
735 North Water Street, Suite 1400
Milwaukee, WI 53202-4105
Telephone: (414) 273-1144
Facsimile: (414) 273-3821
E-mail: paul.erickson@gebsc.com
lauren.wick@gebsc.com
EXTRA SPACE MANAGEMENT: Seeks to Remove Kang Suit to C.D. Calif.
----------------------------------------------------------------
The Defendants in the case of LUCIA KANG, individually and on
behalf of all others similarly situated, Plaintiff v. EXTRA SPACE
MANAGEMENT, INC., and DOES 1 through 20 inclusive, Defendants,
filed a notice to remove the lawsuit from the Superior Court of the
State of Califorina, County of Orange, (Case No.
30-02018-00997364-CU-OE-CXC) to the U.S. District Court for the
Central District of California on August 1, 2018, and assigned Case
No. 8:18-cv-01340-JLS-KES (C.D. Cal., Aug. 1, 2018). The case is
assigned to Judge Josephine L. Staton, and referred to Magistrate
Judge Karen E. Scott.
Extra Space Management, Inc. is headquartered in Salt Lake City,
Utah. [BN]
The Plaintiff is represented by:
Simon Kwak, Esq.
Jessica L Campbell, Esq.
Kashif Haque. Esq.
Samuel A Wong, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
E-mail: skwak@aegislawfirm.com
jcampbell@aegislawfirm.com
khaque@aegislawfirm.com
swong@aegislawfirm.com
The Defendants are represented by:
Frances Mary Kelly Hernandez, Esq.
SHEPPARD MULLIN RICHTER AND HAMPTON LLP
650 Town Center Drive 4th Floor
Costa Mesa, CA 92626-1993
Telephone: (714) 513-5100
Facsimile: (714) 513-5130
E-mail: fhernandez@sheppardmullin.com
- and -
Ruben David Escalante, Esq.
SHEPPARD MULLIN RICHTER AND HAMPTON LLP
333 South Hope Street 43rd Floor
Los Angeles, CA 90071-1422
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
E-mail: rescalante@sheppardmullin.com
EZCORP INC: Rooney Seeks Certification of Shareholders Class
------------------------------------------------------------
John Rooney, Plaintiff in the lawsuit styled In re EZCORP, Inc.
Securities Litigation, Case No. 1:15-cv-00608-SS (W.D. Tex.),
amends his motion for class certification pursuant to Rules 23(a)
and 23(b)(3) of the Federal Rules of Civil Procedure.
The proposed Class is defined as:
all persons and entities that purchased or otherwise
acquired EZCORP, Inc. Class A common stock between
January 28, 2014 and October 20, 2015, inclusive, and were
damaged thereby. Excluded from the Class are Defendants; the
officers and directors of the Company, at all relevant
times; members of their immediate families and their legal
representatives, heirs, successors, or assigns; and any
entity in which any of the Defendants have or had a
controlling interest. Excluded from the Class are
Defendants, the officers and directors of the Company, at
all relevant times, members of their immediate families and
their legal representatives, heirs, successors or assigns
and any entity in which Defendants have or had a controlling
interest.
Mr. Rooney also asks the Court to appoint him as Class
Representative, and to appoint Block & Leviton LLP and Glancy
Prongay & Murray LLP as Class Counsel and The Kendall Law Group,
PLLC as Liaison Counsel for the Class.
The Plaintiff is represented by:
Joe Kendall, Esq.
Jamie J. McKey, Esq.
KENDALL LAW GROUP, PLLC
3811 Turtle Creek Blvd., Suite 1450
Dallas, TX 75219
Telephone: (214) 744-3000
Facsimile: (214) 744-3015
E-mail: jkendall@kendalllawgroup.com
jmckey@kendalllawgroup.com
- and -
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: Jeff@blockesq.com
Jake@blockesq.com
- and -
Lionel Z. Glancy, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
FAT BRANDS: Vignola Files Suit Over Share Price Drop
-----------------------------------------------------
Adam Vignola, individually and on behalf of all others similarly
situated, Plaintiff, v. Fat Brands, Inc., Andrew A. Wiederhorn, Ron
Roe, James Neuhauser, Edward H. Rensi, Marc L. Holtzman, Squire
Junger, Silvia Kessel, Jeff Lotman, Fog Cutter Capital Group Inc.
and Tripoint Global Equities, LLC, Defendants, Case No. 18-cv-07469
(C.D. Cal., August 25, 2018), seeks statutory damages and any other
available legal or equitable remedies resulting from violations of
the federal securities laws.
FAT Brands is a multi-brand franchising company that acquires,
markets, and develops fast casual and causal dining restaurant
concepts in including Fatburger, Buffalo's Cafe, Buffalo's Express,
Ponderosa Steakhouse and Bonanza Steakhouse.
FAT Brands' common stock was open to the investing public on or
about October 20, 2017 with the IPO priced at $12 per share and
raised $24 million through the sale of two million shares of FAT
Brands common stock.
Fog Cutter Capital Group Inc. owned 100% of FAT Brands' common
stock and voting power. TriPoint Global Equities, LLC is an
investment banking firm that, along with its crowd-funding
subsidiary Banq, acted as the underwriter of the IPO, serving as
both Lead Manager and Book Runner.
The complaint notes that the price of FAT Brands common stock
eventually plummeted as the market learned the truth about the
Defenants' failing business metrics and financial prospects that
existed at the time of the IPO. FAT Brands' common stock currently
trades at approximately $7.80 per share or down over 35% from the
Company’s $12 IPO price less than one year earlier, says the
complaint. [BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
- and -
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
201 King of Prussia Road, Suite 650
Radnor, PA 19087
Tel: (484) 258-1585
Email: skaskela@kaskelalaw.com
FINANCE SYSTEM: Boucher Renews Bid to Certify Class Under FDCPA
---------------------------------------------------------------
The Plaintiffs in the lawsuit captioned RYAN BOUCHER, HEATHER
BOUCHER, TOM E. BREMER, MICHELLE R. BREMER, BRENDA J. CHAMBERS,
CHRISTOPHER DETTLOFF, ADAM DUCH, and MARK TESSEN, on behalf of
themselves and all others similarly situated v. FINANCE SYSTEM OF
GREEN BAY, INC., a Wisconsin Corporation; and JOHN AND JANE DOES
NUMBERS 1 THROUGH 25, Case No. 1:17-cv-00132-WCG (E.D. Wisc.),
renews their motion for class certification under the Fair Debt
Collection Practices Act.
The class is defined as:
All persons with Wisconsin addresses to whom FSGB mailed an
initial written communication between January 30, 2016 and
February 20, 2017, which was not returned as undeliverable
by the U.S. Postal Service, and which sought to collect a
debt on behalf of the following creditors:
(i) Barker Physical Therapy Clinic;
(ii) Fox Valley Emergency Medicine;
(iii) Orthopedic Sports Medicine;
(iv) Hand to Shoulder Center of Wisconsin; or
(v) The Center for Anesthetics and Plastic Surgery
and the collection letter:
(i) stated, "because of interest, late charges and other
charges that may be assessed by your creditor that
vary from day to day, the amount due on the day you
pay, may be greater"; and
(ii) late charges and other charges were not subsequently
added to the amount of the debt.
The Plaintiffs also ask the Court to appoint them to represent the
putative class members, and to appoint their attorneys as counsel
for the class.
The Plaintiffs are represented by:
Philip D. Stern, Esq.
Andrew T. Thomasson, Esq.
Francis R. Greene, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081
Telephone: (973) 379-7500
E-mail: Philip@SternThomasson.com
Andrew@SternThomasson.com
Francis@SternThomasson.com
FLIK INTERNATIONAL: Court Approves Class Notice in Clarke Suit
--------------------------------------------------------------
The United States District Court for the District of New Jersey
granted in part and denied in part Plaintiffs' Motion for
Conditional Certification in the case captioned JAMES CLARKE, for
himself and all others similarly situated, Plaintiff, v. FLIK
INTERNATIONAL CORP. and COMPASS GROUP USA, INC., Defendants. Civil
Action No. 17-1915 (SRC). (D.N.J.).
This matter comes before the Court on the motion by Plaintiff for
conditional certification of his Fair Labor Standards Act (FLSA)
claim as a collective action pursuant to 29 U.S.C. Section 216(b).
Plaintiff Clarke has filed this suit to recover uncompensated wages
on behalf of himself and a putative class of similarly situated
current and former employees of Defendant Flik. Broadly, he alleges
that Flik knowingly allowed its food service employees to work off
the clock, that is, work unrecorded hours, and that it failed to
compensate employees for time and expenses associated with having
to travel to work sites other than an employee's ordinary duty
station.
FLSA Conditional Certification Standard
To determine whether an FLSA suit may proceed as a collective
action under Section 216(b) of the statute, district courts in the
Third Circuit employ a two-step process:
At the first step, known as conditional certification, the court
makes a preliminary determination concerning whether the employees
identified in the collective group are sufficiently similarly
situated to the named plaintiff. At the second step of the process,
known as final certification, a court must make a conclusive
determination as to whether each plaintiff who has opted in to the
collective action is in fact similarly situated to the named
plaintiff.
Plaintiff's Demonstration of the Similarly Situated Standard
In his motion for conditional certification, the Plaintiff
maintains that he and the putative class are similarly situated for
a number of reasons. The Plaintiff states that he and the Flik food
service employees comprising the putative class: "must follow
Compass/FLIK's common policies, receive similar training, have
similar duties (focus on food preparation and service, related
requirements and guidelines) that are performed the same way, work
similar schedules and similar hours based on similar staffing
models, are subject to day-to-day changes in their scheduled or
routines that require the performance of additional unscheduled
work (such as late deliveries, menu changes and customer requests),
are subject to the same staffing, workload and budgetary
constraints, experienced the same reduction in hours around
September 2014, use similar timekeeping systems and are paid
through Compass' payroll system."
Policy-Based Similarities
The Plaintiff states that Flik and its parent company Compass
maintain common wage and hour policies, which he contends are
applied across all cost centers to deprive employees of
compensation for work they have performed in excess of the
employees' regularly scheduled work hours. Clarke argues that
Defendants' company-wide policies tolerate or even condone the
performance of unpaid, off-the-clock work by employees. To support
this claim, Plaintiff proffers the following Flik/Compass corporate
wage and hour policies: the General Wage & Hour Policy (Wage & Hour
Policy), the Company Approved Time Clock Use Policy (Time Clock
Policy), and the Meal Period and Rest Breaks for Non-California
Associates (Meal Break Policy) (Policies).
First, Plaintiff fails to point to any authority which indicates
that a timekeeping policy requiring employees to log their own work
hours, in this case by using a timeclock, violates the FLSA. The
FLSA and its implementing regulations require an employer to keep
records of employee hours worked.
Second, as to the Policies' requirement that employees obtain a
manager's pre-approval for working overtime and/or any hours
varying from their scheduled shifts, Plaintiff similarly presents
no grounds for an FLSA violation. He fails to articulate how this
requirement subjects employees to a common policy of denying them
compensation for hours worked.
Third, Plaintiff posits that Flik food service employees are
similarly deprived of compensation for time worked because the
Policies require an employee to immediately claim extra work time
or else have that off-the-clock work deemed volunteered. This
policy, Plaintiff argues, routinely precludes employees across cost
centers from getting paid for pre- or post-shift work time or for
time worked during a meal break. The problem with this argument,
however, is that the actual language in the policy sections cited
by Plaintiff simply does not support his contentions that (a) the
Policies discourage or impede employees from reporting overtime and
(b) the Policies endorse the practice of not paying employees if
overtime is not reported to a manager immediately.
Plaintiff's effort to demonstrate that he and the putative class
are similarly situated by virtue of unlawful company policies
fails. For the reasons discussed, the Policies provide no factual
nexus between an alleged FLSA violation sustained by Plaintiff and
a potential violation suffered by others in some similar manner.
Practice-Based Similarities
Plaintiff also asserts that the Flik food service employees are
similarly situated to him as a result of workplace practices to
which they have also been subjected, resulting in their alleged
failure to receive compensation for all hours worked.
While it is not clear that all of five of the food service
employees depicted in the photographs submitted by Plaintiff are in
fact engaged in work tasks, Plaintiff has come forward with some
indication that other employees at Bayer Whippany would arrive at
work early, that is, before their shift time. Moreover, while he
has not produced the audio and video files he had claimed contained
recorded conversations between himself and other employees about
working off-the-clock, Plaintiff has given some basis, albeit
generalized, for his knowledge that the individuals pictured were
working off-the-clock.
The Court acknowledges Defendants' argument that this evidence is
insufficient, because, among other things, the photographs do not
clearly show that the employees were in fact working and because
the proffered basis for claiming this work was off-the-clock
conversations in which Plaintiff claims he was told by the pictured
employees that they had not clocked on the date and time in
question amount to inadmissible hearsay evidence. The evidence is
indeed minimal. The Court issues no decision and makes no comment
as to the sufficiency of such evidence to obtain final
certification and/or to prove the merits of an FLSA claim. However,
Plaintiff's burden on a motion for conditional certification is not
to produce evidence that would prove that either he or other
employees in fact sustained the claimed FLSA violations.
The Court finds that Plaintiff has made a modest factual showing of
a nexus between himself and the food service employees at Flik's
Bayer Whippany cost center and therefore has satisfied the standard
for conditional certification of this limited class under FLSA
Section 216(b). The Court thus approves that notice of this suit
may be distributed to a class consisting of all people who have
worked in the Flik cost center for Bayer located in Whippany, New
Jersey under the following seven job titles during any workweek in
the past three years: Cook, Grill Cook, Prep Cook, Sr. Cook, Food
Svc Utility (a/k/a Utility Associate), Food Svc Worker and Food Svc
Worker/Cashier (a/k/a Cashier/Food Service Worker).
Form of Notice and Method of Distribution
Plaintiff submitted a proposed notice to the class with his moving
papers, and Defendants raised a number of objections to language
used therein. Plaintiff, in reply, acquiesced to some of
Defendants' proposed changes and incorporated them into a revised
form of notice. Four points of disagreement regarding the Revised
Notice remain, and the Court will proceed to address each in turn.
One, Defendants wish to add language advising prospective
plaintiffs that, in the event Defendants prevail in this lawsuit,
the opt-in plaintiffs could be responsible for Defendants'
litigation costs. The Court finds that the statement proposed by
Defendants is appropriate, as it makes clear that, by opting in, an
employee effectively becomes a party in the case and thus there is
a possibility that he or she will be responsible for Defendants'
costs in the event the plaintiffs are not successful.
Two, Defendants would like the notice to include contact
information for Defendants' attorneys. Plaintiff argues that this
information would cause substantial confusion to prospective class
members, particularly concerning the adverse relationship of
Defendants' counsel to plaintiffs concerning their FLSA claims. The
Court agrees with Plaintiff and concludes that contact information
for Defendants' attorneys should not be included in the notice.
Three, the parties disagree as to the method of disseminating
notice. In addition to sending notice via first class mail,
Plaintiff also wishes to post the notice at cost centers and seeks
permission to send a reminder notice via postcard and/or email. The
Court will permit notice to be posted at the relevant Flik cost
center, that is, at the Bayer Whippany location. The Court denies
Plaintiff's request to send a reminder notice, as he gives no
indication that an initial notice mailed to a prospective plaintiff
would be insufficient to advise that individual of this lawsuit and
of his or her opportunity to opt in to the action.
Four, Plaintiff has requested that Defendants be ordered to produce
contact information for all individuals in the putative class.
Defendants object to this request insofar as it seeks the
individuals' respective social security numbers. There is no
indication that effective notice cannot be accomplished based on
information which includes a prospective class member's full name,
last-known mailing address, and last-known email address.
The Plaintiff's motion for conditional certification will be
granted in part and denied in part.
A full-text copy of the District Court's August 16, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/ycxccays from
Leagle.com.
JAMES CLARKE, for himself and all others similarly situated,
Plaintiff, represented by DAVID J. COHEN.
FLIK INTERNATIONAL CORP. & COMPASS GROUP USA, INC, Defendants,
represented by BRIAN JEFFREY GERSHENGORN --
bgershongorn@fisherphillips.com -- FISHER & PHILLIPS LLP.
GCA SERVICES GROUP: Faces Hogg Labor Suit in Volusia, Florida
-------------------------------------------------------------
An employment-related class action lawsuit has been filed against
GCA Services Group, Inc. The case is captioned as ALICIA HOGG,
individually and on behalf of all others similarly situated, v. GCA
SERVICES GROUP, INC., Defendant, Case No. 2018-31304-CICI (Fla.
Cir., Volusia Cty., Aug. 3, 2018). The case is assigned to Michael
S. Orfinger.
GCA Services Group, Inc. provides facility services in the United
States and Puerto Rico. The company's services include
janitorial/custodial, green cleaning, cleanroom-critical
environment cleaning, facilities operations and maintenance,
grounds management, rental car labor management and support,
in-sourced production staffing and labor management, staffing, and
support services, as well as recycling programs. GCA Services
Group, Inc. was incorporated in 2002 and is headquartered in
Cleveland, Ohio. As of September 1, 2017, GCA Services Group, Inc.
operates as a subsidiary of Grade Sub Two, LLC. [BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
WENZEL FENTON CABASSA P.A.
110 N Florida Ave. Suite 300
Tampa, FL 33602
Telephone: (813) 579-2483
GENERAL ELECTRIC: West Sues over 60% Drop in Shares Price
---------------------------------------------------------
MITCHELL WEST, individually and on behalf of all others similarly
situated, Plaintiff v. GENERAL ELECTRIC COMPANY; JEFFREY R. IMMELT;
JEFFREY S. BORNSTEIN; JAN R. HAUSER; JOHN L. FLANNERY; DOUGLAS A.
WARNER III; and KPMG LLP, Defendants, Case No. 653883/2018 (N.Y.
Sup., New York Cty., Aug. 6, 2018) is an action against the
Defendants over their false and misleading registration statements
and prospectuses issued in connection with the GE Stock Direct
Plan, in violation of the Securities Act of 1933.
According to the complaint, on November 7, 2014, GE filed a
registration statement on Form S-3 with the SEC, registering 75
million shares of common stock for use in the GE Stock Direct Plan.
A prospectus was filed with the registration statement, which
explained the provisions of the GE Stock Direct Plan.
On February 29, 2016, GE filed another registration statement on
Form S-3 with the SEC, registering various securities with the SEC,
including common stock. A prospectus was filed with the
registration statement, which explained that GE may offer from time
to time shares of the common stock, and that GE would provide
specific terms of any offering in supplements to the prospectus. On
November 6, 2017, GE provided such a supplementary prospectus,
registering 25 million shares of common stock for use in GE's Stock
Direct Plan. The prospectus Supplement explained the provisions of
the GE Stock Direct Plan.
The Plaintiff alleges that the Form S-3s and the accompanying
prospectuses filed and published by GE contained false or
misleading statements of material fact -- through incorporation of
GE's annual and quarterly reports -- or omitted to state material
information that GE was required to disclose, in violations of the
Securities Act. The misleading statements and omissions related
primarily to GE's long-term care insurance policies, and GE's
long-term services agreements.
When the news about the said irregularities and misrepresentation
emerges, GE's stocks price has plummeted. After closing as high as
$32.93 per share on July 19, 2016, GE's stock price has plummeted
by more than 60% trading as low as $12.98 per share on July 20,
2018.
General Electric Company operates as a digital industrial company
worldwide. It operates through Power, Renewable Energy, Oil & Gas,
Aviation, Healthcare, Transportation, Lighting, and Capital
segments. General Electric Company was founded in 1892 and is
headquartered in Boston, Massachusetts. [BN]
The Plaintiff is represented by:
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, New York 10016
Telephone: (212) 686-1060
Facsimile: (212) 202-3827
Email: pkim@rosenlegal.com
GEORGE WESTON: McCarthy Tetrault Attorney Discusses Court Ruling
----------------------------------------------------------------
Erin Chesney, Esq. -- echesney@mccarthy.ca -- and Alana Robert,
Esq. -- alrobert@mccarthy.ca -- of McCarthy Tetrault LLP, in an
article for Lexology, report that class action proceedings are
high-stakes, expensive litigation. Defendants typically expend
significant resources to defend them. If successful, they can
expect to recover a portion of their costs from the plaintiff. But,
how much?
Trends in Ontario over time suggest that courts have been willing
to award meaningful costs against class action plaintiffs in
appropriate cases:
In Das v George Weston Limited, 2017 ONSC 5583, the court granted a
$2.3 million cost award to the defendants, who successfully
defended a proposed $2 billion class action at a combined
certification and summary judgment motion. The court reasoned that
"there is no principled reason to deny the Defendants the costs of
the certification motion" as the defendants "successfully resisted
certification and under the loser-pays regime of the Class
Proceedings Act, 1992, they are entitled to the spoils of victory."
The Court also appeared to chip away at an unsuccessful plaintiff's
ability to argue that a costs award ought to be reduced where a
class action purports to advance the public interest. In Das, the
court recognized that "a significant motivator in this proposed
class action was money."
In Fairview Donut Inc v TDL Group Corp, 2014 ONSC 776, $1.85
million was awarded in a proposed $3 billion dollar class action
following an eleven day certification hearing where the action
would have satisfied the criterion for certification but for the
defendants' successful summary judgment motion.
In Smith v Inco Ltd, 2012 ONSC 5094, a cost award of $1.8 million
was ordered in a proposed $400 million dollar class action,
accounting for costs from the date of certification through a trial
of common issues.
However, costs awards to a successful party are always within the
discretion of the judge and are inherently hard to predict. Costs
that the court considers "unreasonable" will generally not be
compensated. Counsel fees and hours that a court deems excessive
may also be denied. The Ontario Superior Court has cautioned that
high costs incurred in class proceedings could, in certain
circumstances, be seen as excessive and unreasonable. The Court of
Appeal has also recognized that costs of a large magnitude may be
"exceptional". The outcome on costs will be highly dependent on the
circumstances of each case.
The Court's decision in Das has been appealed and is currently
under reserve. Class action litigants may therefore soon receive
further appellate guidance on the assessment of costs in class
proceedings. [GN]
GOOD SAMARITAN: Certification of Class Sought in Frank Suit
-----------------------------------------------------------
The Plaintiff in the lawsuit entitled JAHMIR CHRISTOPHER FRANK v.
GOOD SAMARITAN HOSPITAL FOUNDATION OF CINCINNATI, INC., et al.,
Case No. 2:18-cv-00992-ALM-CMV (S.D. Ohio), moves the Court for the
entry of an order:
(i) certifying that the action may be maintained and proceed
as a class action against the Defendants;
(ii) appointing Jahmir Christopher Frank as class
representative; and
(iii) appointing Percy Squire, as Counsel for the Class and as
Liaison Counsel for the Class.
Mr. Frank brings this action as a Class Action under Rules 23(a),
(b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure
on behalf of all persons, who delivered or were delivered at Good
Samaritan Hospital between the period January 1, 1999, through
December 31, 1999.
The Plaintiff is represented by:
Percy Squire, Esq.
PERCY SQUIRE CO., LLC
341 S. Third Street, Suite 10
Columbus, OH 43215
Telephone: (614) 224-6528
E-mail: psquire@sp-lawfirm.com
GOOGLE LLC: Court Narrows Claims in Google Pixel Suit
-----------------------------------------------------
The United States District Court for the Northern District of
California granted in part and denied in part Defendant's Motion to
Dismiss the plaintiff's amended complaint in the case captioned
PATRICIA WEEKS, et al., Plaintiffs, v. GOOGLE LLC, Defendant, Case
No. 18-cv-00801 NC (N.D. Cal.).
This lawsuit is about the alleged failure of a smartphone, the
Google Pixel, to deliver on either of these functions. In this
product defect lawsuit, plaintiffs Patricia Weeks, Alicia Helms,
and Brian McCloy allege that the Pixel has a microphone defect that
caused the phone to fail to place and receive calls. This, the
plaintiffs allege, rendered their phones unfit for their usual
purpose.
The Breach of Express Warranty Claim is Dismissed
Google moves to dismiss the plaintiffs' express warranty claim
because it asserts that it fulfilled its obligations under the
Limited Warranty by replacing the Pixels with other
functionally-equivalent Pixels.
To state a claim for breach of express warranty under California
law, a plaintiff must allege (1) the exact terms of the warranty
(2) reasonable reliance thereon and (3) a breach of warranty which
proximately caused plaintiff's injury.
The Court understands plaintiffs' outrage at Google's being able to
replace a defective Pixel with another defective Pixel for 365 days
straight. It beggars reason and would appear to make hash of the
spirit of the warranty. But the warranty provided a remedy, and as
far as the Court can tell, Google abided by its remedy. At least
one other court in this district has rejected an argument similar
to the one plaintiffs make here. Kent v. Hewlett-Packard Co., No.
09-cv-05341 JF PVT, 2010 WL 2681767, at *6 (N.D. Cal. July 6,
2010), finding that limited warranty language that laptop would be
free from defects did not mean that recurring failures in laptop
would be considered as breaches of the limited warranty because HP
did not warrant that the laptop's operation would be uninterrupted
or error-free.
HP is not liable for breach of express warranty merely because a
product manifests recurring failures during the warranty period.
Rather, the question is whether Plaintiffs sought repairs, refunds,
or replacements and, if so, whether HP responded appropriately
under the warranty.
Therefore, the Court does not consider the alleged defect by itself
to be a basis for the breach of express warranty claim. The
precedents plaintiffs cite prove not to be favorable to them.
The Plaintiffs may have another avenue to challenge Google's
conduct, but this is not it. Next, the Court evaluates whether
Google fulfilled its duties under the Limited Warranty as to the
remedy provided.
The Sufficiency of Google's Fulfillment of the Warranty's Remedies
The second question the Court must answer is whether Google's
replacement of allegedly defective Pixels with other allegedly
defective Pixels is a violation of the Limited Warranty. There are
a series of policy arguments to be made on this point, but here the
Court is concerned with whether Google's alleged conduct was valid
under the Limited Warranty.
This case is different from Horvath v. LG Elecs. Mobilecomm U.S.A.,
Inc., No. 11-cv-01576 H-RBB, 2012 WL 2861160, at *6 (S.D. Cal. Feb.
13, 2012), Nygren v. Hewlett-Packard Co. 2008 WL 11399759 or
Rutledge v. Hewlett-Packard Co., 238 Cal.App.4th 1164 (2015),
because instead of repairing the allegedly defective Pixels, Google
opted to replace them. The question of whether it was valid under
the express warranty to replace a defective Pixel with another
defective Pixel must be answered in the affirmative based on a
plain reading of the Limited Warranty. This finding is also
supported by case law within this district. It may be that
plaintiffs may bring a different claim against Google, but on these
facts and based on the arguments made here plaintiffs are
ineligible to bring an express warranty claim.
Because the plaintiffs have not presented a viable claim for breach
of express warranty, the Court grants Google's motion to dismiss.
The Breach of the Covenant of Good Faith and Fair Dealing Claim
Survives
Google moves to dismiss the claim for breach of the covenant of
good faith and fair dealing, arguing that it fails for the same
reasons that the breach of express warranty claim fails.
The Plaintiffs oppose Google's motion, and argue that their claim
is "premised on Google's knowledge of the defect and concomitant
exercise of its discretion under the Limited Warranty to refuse to
provide effective free repairs or refunds, and instead to replace
failed products with equally failure-prone products, thereby
depriving consumers of the benefits of the warranty and increasing
the likelihood of out-of-warranty failures.
The elements of a claim of breach of the implied covenant are (1)
the parties entered into a contract (2) the plaintiff fulfilled its
obligations under the contract (3) any conditions precedent to the
defendant's performance occurred (4) the defendant unfairly
interfered with the plaintiff's rights to receive the benefits of
the contract; and (5) the plaintiff was harmed by the defendant's
conduct.
Here, the dispute is not about the elements of the claim; rather,
the dispute is about whether plaintiffs are even eligible to bring
this claim. The Court found that Google did not breach the express
warranty under the facts presented in the FAC, and that Google
acted in accordance with the Limited Warranty. But plaintiffs argue
that Google's inadequate performance is not `expressly permitted'
and frustrated Plaintiffs' `reasonable expectations' under the
warranty. This inadequate performance was the replacement of
defective Pixels with defective Pixels. For purposes of this
motion, the Court agrees, and does not find Google showed that its
conduct was expressly permitted and met with plaintiffs' reasonable
expectations.
The motion to dismiss is denied.
The Breach of Implied Warranty of Merchantability and Magnuson-Moss
Warranty Act Claims are Dismissed
The Plaintiffs' phones' microphones allegedly failed within the one
year period in which the implied warranty of merchantability
applied. The Plaintiffs claim Google failed to repair or replace
their phones. This is an odd claim for plaintiffs to make when two
of them accepted replacement phones, and none claim that Google
refused to offer them replacement phones, thereby living up to the
repair, replace, or refund guarantee during the one year Limited
Warranty period. And it is undisputed that the implied warranty of
merchantability applied during one year. The Court notes that there
is no argument in the papers that the one year time limit should be
invalidated, as there is in the complaint.
Therefore, because the Court is unable to find that plaintiffs are
entitled to any relief outside of the Limited Warranty on this
claim, the Court dismisses this claim with leave to amend.
The Plaintiffs also seek to bring a claim under the Magnuson-Moss
Warranty Act (MMWA), but an implied warranty claim under that
statute also fails, as it rises and falls with the other warranty
claims before the Court.
The MMWA allows a consumer to bring a suit where he claims to be
damaged by the failure of a supplier, warrantor, or service
contractor to comply with any obligation under the MMWA or under a
written warranty, implied warranty, or service contract.
But the MMWA does not provide remedies for breaches of limited
warranties. The MMWA allows consumers to enforce written and
implied warranties by borrowing state law claims, meaning that a
federal MMWA claim depends on the validity of state law warranty
claims.
Therefore, because the plaintiffs' state law warranty claims both
express and implied do not survive this motion, the claim under the
MMWA likewise fails. This claim is dismissed with leave to amend.
The Fraudulent Concealment Claim Survives
Google seeks to dismiss the plaintiffs' fraudulent concealment
claim because it had no duty to disclose, and plaintiffs did not
rely on any representations or omissions on its part.
Under California law, the elements of a common-law claim for
fraudulent omission are: (1) the defendant concealed or suppressed
a material fact; (2) the defendant was under a duty to disclose the
fact to the plaintiff; (3) the defendant intentionally concealed or
suppressed the fact with intent to defraud the plaintiff; (4) the
plaintiff was unaware of the fact and would have acted differently
if she had known of the concealed or suppressed fact; and (5) the
plaintiff sustained damage as a result of the concealment or
suppression.
First, it is manifest that knowledge of a defect that would render
a phone unfit for its normal use is material, and plaintiffs allege
Google concealed or suppressed this fact.
As to the second element, the plaintiffs allege Google had a duty
to disclose the microphone defect because it was within Google's
exclusive knowledge. As noted in the complaint, before any
Plaintiff bought their phone Google reiterated its awareness of the
microphone defect, extending apologies to anyone who is
encountering issues with the mic and stating it had not yet
determined a root cause
Third, plaintiffs allege that Google intentionally concealed or
suppressed the defect with the intent to defraud consumers,
including plaintiffs.
Fourth, plaintiffs allege that they relied on Google's
representations, as demonstrated by their allegation that had they
known of the microphone defect, they would have behaved differently
(i.e., they would not have bought the phone, or would have bought
it at the lower price point, or they would have returned it).
Fifth, plaintiffs sufficiently allege they were damaged by Google's
alleged omission of the microphone defect.
The motion to dismiss the fraudulent concealment claim is DENIED.
The California Consumer Protection Law Claims Survive
Google also moves to dismiss plaintiffs' California consumer
protection claims.
California Consumers Legal Remedies Act, Cal. Civ. Code Section
1750.
The Plaintiffs allege violations of several subsections of the
CLRA, California Civil Code Section 1770(a), which lists proscribed
practices. Specifically, plaintiffs allege that Google engaged in
the following proscribed practices:
Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that
they do not have or that a person has a sponsorship, approval,
status, affiliation, or connection that he or she does not have.
Representing that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or
model, if they are of another.(9) Advertising goods or services
with intent not to sell them as advertised.(19) Inserting an
unconscionable provision in the contract.
Notice Requirement
The Plaintiffs argue that they provided Google with actual notice
on February 1, 2018, before they filed their original complaint on
February 6, 2018. Plaintiffs did not request damages under the CLRA
in the original complaint, instead only requesting injunctive
relief. Id.at 16. It was only in the amended complaint, filed two
months later that plaintiffs requested monetary damages under the
CLRA. Plaintiffs argue that this was permissible. Second,
plaintiffs argue, Google was well-aware of the alleged defect, and
so it can hardly be said that Google had not been given an
opportunity to cure. Id. In any event, courts grant leave to amend
with liberality. So too here.
The Court finds that because plaintiffs did not request monetary
damages as to the CLRA claim in the original complaint, plaintiffs
provided adequate notice to Google.
Fraudulent Concealment
Before turning to the allegations of fraudulent concealment, the
Court notes its confusion as to the arguments in Google's motion.
The Court is unclear on exactly which grounds Google moves to
dismiss the CLRA claim, as the opposition and reply briefs contain
nary a reference to the CLRA.
Instead, those briefs are aimed at defeating plaintiffs' fraudulent
concealment allegations.
The Court declined to dismiss the fraudulent concealment claim in
section III.D. Based on the lack of briefing on any other reason
that the Court should dismiss the CLRA claim, the Court denies the
motion to dismiss the CLRA claim.
Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200
In the amended complaint, plaintiffs allege Google engaged in
unlawful, unfair, and fraudulent conduct. Google moves to dismiss
this claim under each prong of the UCL. Google argues plaintiffs
may not bring a UCL claim for four reasons: (1) plaintiffs may not
seek injunctive relief because they have not alleged they want to
buy another Pixel in the future: (2) plaintiffs do not allege any
specific violations of the Song-Case Beverly Warranty Act, Cal.
Civ. Code Section 1790, so as to bring a claim for unfair acts (3)
plaintiffs have not established Google engaged in unfair acts; and
(4) plaintiffs do not sufficiently allege Google engaged in
fraudulent conduct.
As to the first argument, that plaintiffs may not bring a UCL claim
requesting injunctive relief because they do not allege they want
to buy another Pixel, this argument lacks merit. Plaintiffs
specifically allege they would like to buy more Google mobile phone
products, but they will not do so unless Google takes sufficient
steps to cure the microphone defect and ensure the accuracy of its
representations about its Pixel product line.
Second, Google argues plaintiffs do not allege a specific violation
of the Song-Beverly Warranty Act. Plaintiffs do specify a
violation, though the Court is dissatisfied with plaintiffs' lazy
pleading.
Third, as to Google's argument that plaintiffs have not
sufficiently alleged unfair conduct, the Court disagrees. The
unfair prong of the UCL creates a claim for a business practice
that is unfair, even if not proscribed by some other law. UCL does
not provide a definition for unfair conduct, and the definition has
long been in flux.
In sum, the motion to dismiss the UCL claim is denied.
The Court grants Google's motion to dismiss with leave to amend.
A full-text copy of the District Court's August 16, 2018 Order is
available at https://tinyurl.com/y7s6zbmf from Leagle.com.
Patricia Weeks, on behalf of herself and others similarly situated,
Plaintiff, represented by Adam E. Polk -- aep@girardgibbs.com --
Girard Gibbs LLP, Andrew William Ferich -- AWF@chimicles.com --
Chimicles and Tikellis LLP, pro hac vice, Benjamin F. Johns --
BFJ@chimicles.com -- Chimicles & Tikellis LLP, pro hac vice, Daniel
C. Girard -- dcg@girardgibbs.com -- Girard Gibbs LLP, Jessica Linn
Titler-Lingle , Chimicles and Tikellis LLP, Jordan S. Elias --
je@girardgibbs.com -- Girard Gibbs LLP, Simon Seiver Grille --
sg@girardgibbs.com -- Girard Gibbs LLP & Trevor Taige Tan , Girard
Gibbs LLP.
Alicia Helms & Brian McCloy, Plaintiffs, represented by Daniel C.
Girard , Girard Gibbs LLP,Simon Seiver Grille , Girard Gibbs LLP,
Trevor Taige Tan , Girard Gibbs LLP & Adam E. Polk , Girard Gibbs
LLP.
Google LLC, Defendant, represented by Bobbie Jean Wilson --
BWilson@perkinscoie.com -- Perkins Coie LLP, Mara Boundy --
mboundy@perkinscoie.com -- Perkins Coie LLP, Nina Eisenberg --
Neisenberg@perkinscoie.com -- Perkins Coie LLP & Patrick Shaun
Thompson -- PatrickThompson@perkins.coie.com -- Perkins Coie LLP.
HILLSIDE HOTEL: Faces Mercer Suit in S.D. New York
--------------------------------------------------
STACEY MERCER, individually and on behalf of all others similarly
situated, Plaintiff v. HILLSIDE HOTEL, LLC, Defendant, Case No.
1:18-cv-07015-GHW (S.D.N.Y., Aug. 3, 2018) alleges violation of the
Americans with Disabilities Act. The case is assigned to Judge
Gregory H. Woods.
Hillside Hotel, LLC is engaged in the hospitality industry, owning
and operating a hotel. [BN]
The Plaintiff is represented by:
Nolan Keith Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
39 Broadway, Ste. 2250
New York, NY 10006
Telephone: (646) 560-3230
Facsimile: (877) 253-2691
E-mail: klein@nklegal.com
HONGHUA AMERICA: Underpays Rig Welders, Aguilar Suit Alleges
------------------------------------------------------------
EDGAR AGUILAR, individually and on behalf of all others similarly
situated, Plaintiff v. HONGHUA AMERICA, LLC; NABORS CORPORATE
SERVICES, INC.; and NABORS INDUSTRIES, INC., Defendants, Case No.
4:18-cv-02710 (S.D. Tex., Aug. 6, 2018) is an action against the
Defendants to recover unpaid overtime wages, damages, attorney's
fees and costs.
Mr. Aguilar was employed by the Defendants as rig welder from June
2015 to December 2015.
Honghua America, LLC was founded in 2004. The Company's line of
business includes manufacturing fabricated structural metal and
steel or other metal products for structural purposes. [BN]
The Plaintiff is represented by:
Ross A. Sears, II, Esq.
WILLIAMSON, SEARS & RUSNAK, LLP
4310 Yoakum Boulevard
Houston, TX 77006
Telephone: (713) 223-3330
Facsimile: (713) 223-0001
Email: ross@wsrlawfirm.com
- and -
Melissa Moore, Esq.
Curt Hesse, Esq.
Bridget Davidson, Esq.
MOORE & ASSOCIATES
440 Louisiana Street, Suite 675
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
HOUSLANGER & ASSOCIATES: Court Narrows Claims in Baltazar Suit
--------------------------------------------------------------
Magistrate A. Kathleen Tomlinson of the United States District
Court for the Eastern District of New York issued a Report and
Recommendation granting in part and denying in part Defendants'
Motion to Dismiss the second amended complaint in the case
captioned ALEX BALTAZAR, on behalf of himself and all others
similarly situated, Plaintiff, v. HOUSLANGER & ASSOCIATES, PLLC,
TODD E. HOUSLANGER and VIRGO CAPITAL Defendants. No. 16-4982
(JMA)(AKT). (E.D.N.Y.)
The Plaintiff filed the SAC against Houslanger & Associates, PLLC
(H&A), Todd. E. Houslanger and Virgo Capital, LLC (Virgo Capital)
on May 18, 2017. According to the SAC, Mel. S. Harris & Associates
LLC commenced a lawsuit on behalf of LR Credit 11, LLC against
Plaintiff in the Civil Court of the City of New York, Richmond
County, under Index No. CV-004809-07/RI (State Action). The debt
which Mel. S. Harris & Associates sought to recover in the State
Action was based on Plaintiff's entering into a Retail Charge
Account Agreement with Providian Financial Corp. Plaintiff
incurred charges by using the credit card account but failed to pay
those charges. Plaintiff remembers using the aforementioned Charge
Account to purchase an airline ticket to travel to attend his
Grandmother's funeral and to purchase from Macy's clothes for his
everyday personal use.
FDCPA Legal Principles
Congress enacted the FDCPA based upon abundant evidence of the use
of abusive, deceptive, and unfair debt collection practices by many
debt collectors which contribute to the number of personal
bankruptcies, to marital instability, to the loss of jobs, and to
invasions of individual privacy.
In order to assert a violation of the FDCPA, a plaintiff must
allege that: (1) the plaintiff is a consumer within the meaning of
the Act; (2) the defendant is a debt collector and (3) the
defendant must have engaged in conduct in violation of the statute.
Here, the Defendants do not dispute that the plaintiff is a
consumer, that the debt at issue is covered by the FDCPA, or that
Virgo Capital is a debt collector. Therefore, the question becomes
whether the Plaintiff has adequately alleged conduct that
constitutes a violation of the FDCPA.
The Plaintiff's allegations arise from purported violations of 15
U.S.C. Section 1692e and Section 1692f. Section 1692e prohibits a
debt collector from using any false, deceptive, or misleading
representation or means in connection with the collection of any
debt and, or misleading representation or means in connection with
the collection of any debt. Under 15 U.S.C. Section 1692f, debt
collectors are prohibited from using unfair or unconscionable means
to collect or attempt to collect any debt. Each section includes
various subsections which set forth examples of conduct considered
to be in violation of those sections. Those subsections do not
limit the general application of 15 U.S.C. Section 1692e and
Section 1692f. Moreover, sections 1692e and 1692f are broad,
potentially overlapping, and are not mutually exclusive.
The Defendants' Motion to Dismiss
First Cause of Action
The Plaintiff alleges in his first cause of action that he never
received notice of the assignment of the debt from LR Credit 11,
LLC to Virgo Capital. As a result, Plaintiff maintains, H&A, as
attorney for Virgo Capital, had no legal right to serve the
Restraining Notice on Bank of America.
In doing so, the Defendants' conduct violates 15 U.S.C. Sections
1692e, 1692e(5) and 1692f according to the Plaintiff. The
Defendants argue in their Motion to Dismiss that the Plaintiff's
first cause of action must be dismissed on the grounds that (1)
actual notice of assignment is not required to enforce a judgment,
and (2) even if actual notice is required to enforce a judgment,
the Plaintiff had such notice.
The Defendants acknowledge that the courts in Musah v. Houslanger &
Assocs., PLLC, 962 F.Supp.2d 636, 638 (S.D.N.Y. 2013) and
Moukengeschaie v. Eltman, Eltman & Cooper, P.C., No. 14-CV-7539,
2016 WL 1274541, at *2 (E.D.N.Y. Mar. 31, 2016) held that notice
must be provided to allow the assignee to enforce a judgment
execution and the failure to do so states a claim for violation of
the FDCPA.
The Defendants, however, attempt to undercut the holdings of
Musahand Moukengeschaie by arguing that (1) both courts found that
notice of the assignment is not a precondition to the assignee's
ability to enforce the judgment and (2) in formulating their
respective holdings, both courts cite Tri City Roofers v. Ne.
Indus. Park, 473 N.Y.S.2d 161, 461 N.E.2d 298 (N.Y. 1984), a case
the Defendants argue is inapposite.
The Court disagrees with the Defendants' characterization of the
rationale in Musah and Moukengeschai, and further finds that the
citation to Tri City Rooferswas not erroneous. Musah involved a
suit against Houslanger & Associates, the same Defendant debt
collector sued here. The plaintiff in Musahalleged, as Plaintiff
alleges here, that prior to Houslanger's initiation of collection
action against the plaintiff on behalf of Palisades, the plaintiff
did not receive notice that the judgment had been assigned to
Palisades and therefore at the time of Houslanger's collection
efforts, Houslanger was not legally entitled to take any steps to
enforce the judgment,' thereby rendering such attempts in violation
of the FDCPA.
The plaintiff in Musah claimed that the defendants' conduct
violated 15 U.S.C. Sections 1692e, 1692e(2)(A), 1692e(5),
1692e(10), 1692f, 1692f(1)7 and 1692f(6). The court in Musah
concluded that the plaintiff's allegations provided a suitable
basis for his FDCPA claims. In support of its holding, the court
quoted the following language from Tri City Roofers: a debtor, in
order to be charged with a duty to pay a debt to an assignee, must
first have actual notice of the assignment.
The Defendants argue that even if notice of the assignment is
required, the Plaintiff had such notice. In support of this
position, Defendant Todd E. Houslanger submitted an affidavit
attached to which is an exhibit purporting to be a January 26, 2012
letter sent to the Plaintiff notifying him of the assignment. The
Defendant argues that the Court may consider the January 26, 2012
letter since the Plaintiff had knowledge of it and the letter is
incorporated by reference under the Plaintiff's Third Cause of
Action. The Court finds no language or inference in the SAC that
the Plaintiff had knowledge of the letter. In fact, under the Third
Cause of Action, the Plaintiff alleges that the Restraining Notice
served by H&A upon Bank of America was H&A's only communication' to
Baltazar. The Plaintiff neither references the January 26, 2012
letter nor does he attach it as an exhibit. Therefore, the Court
declines to consider the letter in connection with the instant
motion.
Even if the Court were to consider the letter and affidavit, doing
so would not persuade the Court that the Plaintiff's first cause of
action should be dismissed. Defendants do not provide any evidence
of Plaintiff's actual receipt of the January 26, 2012 letter. The
Houslanger Affidavit does, however, set forth the manner in which
the mailing was sent:
The January 26, 2012 letter was generated and mailed in the normal
course of business. Specifically, I checked the letter for the
correct information. I then directed my staff to forward an
electronic file to a document management company who then generates
the letter in printed form, places the letter in an envelope,
affixes the proper postage and mails the same to Plaintiff at the
address I provided in the letter, along with the CPLR 5222(e)
notice to judgment debtor.
The Court respectfully recommends to Judge Azrack that the
Defendants' motion as to the first cause of action be denied.
Second Cause of Action
The Plaintiff alleges in his second cause of action that H&A served
the Restraining Notice on Bank of America at its Utica branch in
violation of the separate entity rule which requires a judgment
creditor to serve a Restraining Notice on the branch where the
consumer maintains his or her account.
The Defendants argue that the Plaintiff's claim must be dismissed
because service of the Restraining Notice on Bank of America's
Utica branch was not improper. The Defendants maintain it is well
settled that a court sitting in New York that has personal
jurisdiction over a garnishee bank can order the bank to produce
property located outside of New York.
The Defendants' service of the Restraining Notice on Bank of
America was part of its effort to collect the debt owed by the
Plaintiff. While the Defendants' argue that serving a restraining
notice on the wrong bank branch does not rise to the level of an
FDCPA violation since the notice would simply have no effect,
courts have found that improper litigation conduct can violate the
FDCPA regardless of whether the action would have any effect.
Ultimately, it should be noted that the Plaintiff contends the
Defendants' actions did in fact result in the freezing of his bank
account.
The Defendants further argue that they cannot be held vicariously
liable for Bank of America's conduct. It is apparent, however, that
the Court need not rely on the theory of vicarious liability here.
It was the Defendants who served the directive to freeze the
Plaintiff's funds and it was that service and directive which form
the basis for the purported FDCPA violations. The Court therefore
respectfully recommends to Judge Azrack that the portion of the
Defendants' motion seeking dismissal of the Plaintiff's second
cause of action be denied.
Fourth Cause of Action
The Plaintiff begins his fourth cause of action with a discussion
of New York CPLR provisions addressing the type of information that
must be conveyed to a debtor as part of the service of a
restraining notice.
The Court questions why the Plaintiff included a recitation of the
law pertaining to exempt funds in support of his claim that
Defendants violated 15 U.S.C. Section 1692i. Section 1692i provides
that, inter alia:
Any debt collector who brings any legal action on a debt against
any consumer shall (1) in the case of an action to enforce an
interest in real property securing the consumer's obligation, bring
such action only in a judicial district or similar legal entity in
which such real property is located.
In order to state a claim for violation of 15 U.S.C. Section 1692i,
the conduct at issue must be a legal action and that action must be
against a consumer. Defendants argue that the Restraining Notice is
simply an extension of the underlying state court action and, as
such, is not a legal action under Section 1692i.
The Court now turns to the Seventh Circuit's decision in Jackson v.
Blitt & Gaines, P.C., 833 F.3d at 863. In Jackson, the court
characterized the most important factor in discerning whether the
proceeding is against the consumer or a third party garnishee,
namely, the location where the enforcement proceeding must be
filed. In New York, this question is governed by CPLR Section
5221.
Section 5221 reveals that the court in which an enforcement
proceeding may be commenced, or the court that may issue a
Restraining Notice, is directed toward the respondent, which may be
a garnishee, employer or other third party. Legislative Studies and
Reports, New York C.P.L.R. § 5221. Moreover, to the extent
Plaintiff cites Deary v. Guardian Loan Co., Inc., 534 F.Supp. 1178
(S.D.N.Y. 1982), for the purpose of arguing that since a debtor
must be given notice and an opportunity to contest enforcement, the
proceeding is against the consumer, that argument is unavailing.
The court in Jackson explicitly rejected the very same contention.
Based on this analysis, the Court finds that the Restraining Notice
in the instant case is not an action against any consumer, as the
phrase is used in 15 U.S.C. Section 1692i. Since Section 1692i is
not implicated by the Plaintiff's allegations, the Plaintiff cannot
state a claim for violation of the provision.
Therefore, the Court respectfully recommends to Judge Azrack that
the Plaintiff's fourth cause of action be dismissed.
Fifth Cause of Action
The Plaintiff's fifth cause of action alleges separate grounds on
which the restraining notice was improperly served. The Plaintiff
claims that because New York courts have no jurisdiction over Bank
of America in regard to an account maintained by Bank of America at
one of its branches in New Jersey, the Defendants had no legal
right to serve the Restraining Notice on the bank.
The Defendants take the position that Bank of America is subject to
the jurisdiction of New York courts and, as such, the restraining
notice was properly issued.
According to the SAC, Bank of America is a national bank with its
headquarters in North Carolina. Its corporate parent, Bank of
America Corporation, is a Delaware domestic corporation with its
principal executive offices in North Carolina. Id. In support of
its allegations, Plaintiff attached to the SAC a printout of a bank
search taken from what appears to be the FDIC website.
BankFind Search Details, annexed as Exhibit K to the SAC. The
printout shows that the bank is headquartered in Charlotte, North
Carolina. As set forth above, Defendants here simply argue that New
York has jurisdiction over Bank of America by virtue of the fact
that the bank has branches in New York. Defendants have not set
forth any other information which would persuade this Court to find
that this is one of those "exceptional cases" where the garnishee
is essentially at home in New York.
Moreover, service of a Restraining Notice on a bank branch over
which the Court does not have jurisdiction can form the basis of an
FDCPA violation. To demonstrate, the Court in McCarthy v. Wachovia
Bank, N.A., 759 F.Supp.2d 265, 279 (E.D.N.Y. 2011) engaged in a
personal jurisdiction analysis to determine whether service of the
restraining notice on a particular bank branch was false,
deceptive, or misleading in violation of the FDCPA. The court
ultimately held, in relevant part, that because the issuing court
had personal jurisdiction over the bank branch, the Restraining
Notice had efficacy and therefore, the plaintiff did not have a
claim under the FDCPA arising from service of the notice.
In light of the foregoing analysis, the Court respectfully
recommends to Judge Azrack that Defendants' motion to dismiss
Plaintiff's fifth cause of action be denied.
Sixth and Seventh Causes of Action
Plaintiff alleges in his sixth and seventh causes of action that
Defendants failed to conduct a meaningful review of the file it
received from prior counsel Mel S. Harris & Associates regarding
the instant debt prior to engaging in efforts to collect the debt.
Plaintiff's remaining allegations do state the elements of a claim
for lack of meaningful review under 15 U.S.C. Section 1692e(3),
accepting all of the allegations as true as the Court is required
to do here. Defendants attempt to undermine Plaintiff's claim by c
pointing out that Defendants were not involved in the preparation
of the Complaint and that the state court judgment has not been
vacated. Although ordinarily an attorney's determination that there
exists a valid judgment may obviate the need for further review of
a case file, in situations such as the instant case, where the
judgment was assigned to a third party, Section 1692e(3) requires
that an attorney seeking to collect that judgment engage in a
review of the case file sufficient to determine that the judgment
debtor received notice of the assignment.
The Court respectfully recommends to Judge Azrack that Defendants'
motion to dismiss Plaintiff's sixth and seventh causes of action
since be denied.
Third and Eighth Causes of Action
At the conclusion of his Opposition, Plaintiff withdraws his third
and eighth causes of action. Consequently, the Court need take no
further action on these claims.
Todd Houslanger in his Individual Capacity
Plaintiff alleges that Todd E. Houslanger is liable to Plaintiff
because he is a debt collector under 15 U.S.C. Section 1692b(6) and
because of the acts of H&A. Plaintiff further asserts that Todd E.
Houslanger is an individual with a principal place of business at
H&A, is the sole member of H&A, the main financial beneficiary of
H&A, and/or controls and/or supervises the debt collection
activities of H&A. In this regard, Defendant argues that Plaintiff
fails to set forth any specific wrongful conduct with respect to
Todd E. Houslanger.
The Court respectfully disagrees. The SAC is comprised of
allegations pertaining to the conduct of H&A. Plaintiff alleges
that Todd E. Houslanger is the sole member of H&A and, as such, was
personally involved with H&A's purported prohibited conduct.
Moreover, Plaintiff attached as an exhibit to the SAC a copy of the
restraining notice at issue. That notice bears Todd E. Houslanger's
signature. Based on these factors, the Court finds that Plaintiff
has adequately alleged the personal involvement of Todd E.
Houslanger in the purported FDCPA violations allegations which the
Court must accept as true at this stage of the litigation.
The Court respectfully recommends to Judge Azrack that the
Defendants' Motion to Dismiss Plaintiff's Fourth Cause of Action be
GRANTED. The Court further recommends that the motion to dismiss
the First, Second, Fifth, Sixth and Seventh causes of action be
DENIED. The Third and Eighth causes of action have been withdrawn.
In addition, the Court recommends that to the extent Defendants'
motion seeks to dismiss all claims against Defendant Todd E.
Houslanger in his individual capacity, that portion of the motion
be DENIED.
A full-text copy of the Magistrate's August 16, 2018 Report and
Recommendation is available at https://tinyurl.com/yake59mr from
Leagle.com
Alex Baltazar, On Behalf of Himself and All Others Similarly
Situated, Plaintiff, represented by Mitchell L. Pashkin --
mpash@verizon.net
Houslanger & Associates, PLLC & Virgo Capital, LLC, Defendants,
represented by Thomas R. Dominczyk --
tdominczyk@MauriceWutscher.com -- Maurice Wutscher LLP, Donald S.
Maurice, Jr. -- dmaurice@MauriceWutscher.com -- Maurice Wutscher
LLP & Todd E. Houslanger -- teh@toddlaw.com -- Houslanger &
Associates, PLLC.
Todd E. Houslanger, Defendant, represented by Thomas R. Dominczyk
-- tdominczyk@MauriceWutscher.com -- Maurice Wutscher LLP & Donald
S. Maurice, Jr. -- dmaurice@MauriceWutscher.com -- Maurice Wutscher
LLP.
Todd E. Houslanger, Defendant, pro se.
INTEL CORP: PC Users Sue Over Processor Defect
----------------------------------------------
James Simms, Eric Miller, Michael Dillon, Carter Wilson, Jimaya
Gomez, Lori Howick, Eugene Corderre, Delmita Boykins, Linda
Phillips, Harley Oda, Kenneth Woolsey, Justin Whippo, Gerald
Wilkie, David Copeland, Jeffrey Crown, Richard Basham, Howard
Kramer, Marta Bolanos, Gerald Mark Trubey, Keith Allen Chick, Ryan
Clarke, Kristina Morin-Nieves, Andrew Montoya, Rick Snyder, Sarah
Stone, Zachary Richard, Ashley Price, John Nacci, Kathleen Greer,
Veronica Gardner, Jerry Peacock, Matthew Ficarelli, Jessica
Grosskopf, Hibbits Insurance, Inc., DK Systems, LLC and Intelligent
Technology Integration Solution, LLC, individually and on behalf of
all others similarly situated, Plaintiff, v. Intel Corporation,
Defendant, Case No. 18-cv-01567, (D. Or., August 24, 2018), seeks
all proper measures of monetary relief and damages, plus interest,
equitable, injunctive and declaratory relief including restitution
and disgorgement, costs of suit, including reasonable attorneys'
fees and expenses and such further relief resulting from fraudulent
concealment, negligence, unjust enrichment and breach of implied
warranty, and for violation of various state consumer protection
laws.
Intel manufactures the central processing units (CPU) that power
most servers, laptops, desktop computers, tablets, smartphones, and
other computing devices. Said CPUs suffer from several defects that
allow hackers to access to what was supposed to be secure data.
These defects cannot be fixed remotely via a software update while
any mitigation efforts would seriously affect CPU performance, the
complaint asserts.
Plaintiffs are computer owners who claim that their units manifest
the said defects. [BN]
Plaintiff is represented by:
Steve D. Larson, Esq.
Jennifer S. Wagner, Esq.
209 SW Oak Street, Suite 500
Portland, OR 97204
Telephone: (503) 227-1600
Email: slarson@stollberne.com
jwagner@stollberne.com
- and -
Christopher A. Seeger, Esq.
SEEGER WEISS LLP
55 Challenger Road
Ridgefield Park, NJ 07660
Telephone: (212) 584-0700
Email: cseeger@seegerweiss.com
- and -
Rosemary M. Rivas, Esq.
LEVI & KORSINSKY LLP
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: (415) 291-2420
Email: rrivas@zlk.com
- and -
Gayle M. Blatt, Esq.
CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD LLP
110 Laurel Street
San Diego, CA 92101
Telephone: (619) 238-1811
Email: gmb@cglaw.com
- and -
Stuart A. Davidson
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Email: sdavidson@rgrdlaw.com
- and -
Melissa R. Emert, Esq.
STULL, STULL, & BRODY
6 East 45th Street
New York City, NY 10017
Telephone: (212) 687-7230
Email: memert@ssbny.com
- and -
Richard M. Hagstrom
HELLMUTH & JOHNSON PLLC
8050 West 78th Street
Edina, MN 55439
Telephone: (952) 941-4005
Email: rhagstrom@hjlawfirm.com
- and -
Jennifer L. Joost, Esq.
KESSLER TOPAZ MELTZER & CHECK LLP
One Sansome Street, Suite 1850
San Francisco, CA 94104
Telephone: (415) 400-3000
Email: jjoost@ktmc.com
- and -
Adam J. Levitt, Esq.
DICELLO LEVITT & CASEY LLC
Ten North Dearborn Street, Eleventh Floor
Chicago, IL 60602
Telephone: (312) 214-7900
Email: alevitt@dlcfirm.com
- and -
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Email: cschaffer@lfsblaw.com
JAMBA INC: Lowinger Suit Seeks to Halt Focus Brands Merger
----------------------------------------------------------
Robert Lowinger, on behalf of himself and all others similarly
situated, Plaintiff, v. Jamba, Inc., David A. Pace, Richard L.
Federico, Michael A. Depatie, Lorna Donatone, Andrew R. Heyer,
James C. Pappas and Glenn W. Welling, Defendants, Case No.
18-cv-01305, (D. Del., August 23, 2018), Defendants, seeks to
enjoin defendants and all persons acting in concert with them from
proceeding with, consummating or closing the acquisition of Jamba
Inc. by Focus Brands Inc., through its affiliate Jay Merger Sub,
Inc.; or rescinding it in the event defendants consummate the
merger. The Plaintiff also seek rescissory damages, costs of this
action, including reasonable allowance for plaintiff's attorneys'
and experts' fees and such other and further relief under the
Securities Exchange Act of 1934.
Focus will acquire Jamba for $13.00 per share in cash in a
transaction valued at approximately $200 million.
The complaint says the merger documents omitted material
information, as well as the valuation analyses performed by North
Point Advisors LLC. Said disclosure of projected financial
information is material because it provides stockholders with a
basis to project the future financial performance of a company, and
allows stockholders to better understand the financial analyses in
support of its fairness opinion, notes the complaint.
Jamba, Inc., through its subsidiary, Jamba Juice Company, owns,
operates, and franchises Jamba Juice stores. The company's
restaurants provides blended whole fruit and vegetable smoothies,
bowls, juices, cold-pressed shots, boosts, snacks, and meal
replacements. Focus Brands is an affiliate of the Atlanta-based
private equity firm, Roark Capital Group which currently owns the
Schlotzsky's, Carvel, Cinnabon, Moe's Southwest Grill, McAlister's
Deli and Auntie Anne's brands. It is based in Sandy Springs,
Georgia and operates over 5,000 stores. [BN]
The Plaintiff is represented by:
R. Joseph Hrubiec, Esq.
NAPOLI SHKOLNIK, LLC
919 N. Market Street, Suite 1801
Wilmington, DE 19801
Tel: (302) 330 8025
Email: RHrubiec@NapoliLaw.com
- and -
Aaron Brody, Esq.
Michael J. Klein, Esq.
STULL, STULL & BRODY
6 East 45th Street
New York, NY 10017
Tel: (212) 687-7230
Email: abrody@ssbny.com
JAMBA INC: Rosenblatt Suit Seeks to Halt Merger With Focus Brands
-----------------------------------------------------------------
Jordan Rosenblatt, on behalf of himself and all others similarly
situated, Plaintiff, v. Jamba, Inc., Michael A. Depatie, Lorna
Donatone, Richard L. Federico, Andrew R. Heyer, David A. Pace,
James C. Pappas, Glenn W. Welling, Focus Brands Inc. and Jay Merger
Sub, Inc., Defendants, Case No. 18-cv-01322, (D. Del., August 23,
2018), Defendants, seeks to enjoin defendants and all persons
acting in concert with them from proceeding with, consummating or
closing the acquisition of Jamba Inc. by Focus Brands Inc., through
its affiliate Jay Merger Sub, Inc., rescinding it in the event
defendants consummate the merger, rescissory damages, costs of this
action, including reasonable allowance for plaintiff's attorneys'
and experts' fees and such other and further relief under the
Securities Exchange Act of 1934.
Focus will acquire Jamba for $13.00 per share in cash in a
transaction valued at approximately $200 million.
The complaint says merger documents omitted material information,
as well as the valuation analyses performed by North Point Advisors
LLC. Said disclosure of projected financial information is material
because it provides stockholders with a basis to project the future
financial performance of a company, and allows stockholders to
better understand the financial analyses in support of its fairness
opinion, it adds.
Jamba, Inc., through its subsidiary, Jamba Juice Company, owns,
operates, and franchises Jamba Juice stores. The company's
restaurants provides blended whole fruit and vegetable smoothies,
bowls, juices, cold-pressed shots, boosts, snacks, and meal
replacements. Focus Brands is an affiliate of the Atlanta-based
private equity firm, Roark Capital Group which currently owns the
Schlotzsky's, Carvel, Cinnabon, Moe's Southwest Grill, McAlister's
Deli and Auntie Anne's brands. It is based in Sandy Springs,
Georgia and operates over 5,000 stores. [BN]
The Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
2 Righter Parkway, Suite 120
Wilmington, DE 19803
Tel: (302) 295-531
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Dr., Ste. 3112
Berwyn, PA 19312
Tel: (484) 324-6800
Email: rm@maniskas.com
JM SMUCKER: Faces Class Action Over Nutrish(R) Pet Food Chemical
----------------------------------------------------------------
16WNDU reports that Nutrish(R) pet food is the fastest growing
brand in the country.
But the brand endorsed by celebrity chef Rachael Ray is literally
under the microscope now.
It says it contains all natural ingredients, but a new lawsuit
claims it actually contains a very unnatural and potentially
dangerous chemical.
Ray markets Nutrish(R) dog food as "natural" -- inspired by her own
recipes -- with real meat, fish and vegetables -- and no fillers or
byproducts.
But a new $5 million class action lawsuit is challenging that,
claiming the Nutrish(R) "super premium" dogfood line contains a
chemical used in the popular weed-killer Roundup(R).
The suit was filed in New York by Markeith Parks. It claims
"consumers were deceived into believing the products are natural
(and that nothing in the dog food was not natural), instead the
products contain glyphosate, an unnatural biocide and possible
carcinogen."
According to the complaint, "tests conducted by an independent
laboratory" revealed the chemical.
Ainsworth Pet Nutrition, which manufactured Nutrish(R) products,
was recently bought by the J.M. Smucker Company for nearly $2
billion.
In a statement, Smucker says it "strongly stands 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."
Ray is not named personally as a party to this lawsuit.
A spokesman for Ray wrote to NBC news, stating "Rachael herself has
always championed the great lengths Ainsworth Pet Nutrition and now
the J.M. 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(R) to her own dog Isaboo
and her extended pet family."
Ray says she cooks with love whether it's for people or animals,
saying in The Nutrish Story, "In our house my child is a 65-pound
pit bull, so I wanted food that people could trust."
That trust may now be tested in court. [GN]
JOARDER PROPERTIES: Kessler Seeks Class Certification Under FLSA
----------------------------------------------------------------
The Plaintiff in the lawsuit captioned Daniel Kessler, On behalf of
themselves and those similarly situated v. Joarder Properties
Limited Liability Company; Salim Joarder; John Doe Corp. 1-25; John
Doe 1-25, Case No. 1:18-cv-11867-RMB-KMW (D.N.J.), ask the Court to
conditionally certify the action as a collective action pursuant to
the Fair Labor Standards Act.
Mr. Kessler wants to be authorized to send notice to all similarly
situated current and former delivery drivers employed at the
Domino's stores owned, operated, and controlled by the Defendants,
during the three years prior to the filing of this Class Action and
the date of final judgment in this matter, who elect to opt-in to
the action. He also asks the Court to direct the Defendants to
provide name and contact information for all potential class
members and to require the Defendants to post notice of the action.
He further asks the Court to provide a 90-day opt-in period for
all potential class members.
The Plaintiff is represented by:
Robert W. Smith, Esq.
SMITH EIBELER, LLC
101 Crawfords Corner Road, Suite 1-105R
Holmdel, NJ 07733
Telephone: (732) 935-7246
Facsimile: (732) 444-1096
E-mail: rsmith@smitheibeler.com
- and -
Andrew Biller, Esq.
Andrew Kimble, Esq.
Philip Krzeski, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: abiller@msdlegal.com
akimble@msdlegal.com
pkrzeski@msdlegal.com
The Defendants are represented by:
Kathleen McLeod Caminiti, Esq.
FISHER & PHILLIPS, LLP
430 Mountain Avenue, Suite 303
Murray Hill, NJ 07974
Telephone: (908) 516-1050
E-mail: kcaminiti@fisherphillips.com
JPMORGAN CHASE: Senegal Seeks Approval of $19.5-Mil. Settlement
---------------------------------------------------------------
The Plaintiffs move for preliminary approval of a proposed class
settlement entered into by the parties to resolve the lawsuit
titled JEROME SENEGAL, ERIKA WILLIAMS, BRENT GRIFFIN, IRVIN NASH,
AMANDA JASON, and KELLIE FARRISH, on behalf of themselves and those
similarly situated v. JPMORGAN CHASE BANK, N.A., Case No.
1:18-cv-06006 (N.D. Ill.).
The Settlement provides meaningful programmatic relief to increase
opportunities for a Class of African American and Black Financial
Advisors, employed by Defendant JPMorgan Chase Bank, NA, and JP
Morgan Securities, LLC, within Chase Wealth Management; a $19.5
Settlement Fund for Class Members Monetary Awards, attorneys' fees,
and Service Awards; and a $4.5 million Diversity and Reserve Fund
for Diversity Initiatives, Supplemental Monetary Awards, and
Administrative Costs.
The Plaintiffs move to provisionally certify a class of all African
American or Black Advisors, who work or worked for Defendants
within Chase Wealth Management at any time between April 13, 2013
and the Preliminary Approval Date.
The Plaintiffs also ask for an order appointing Class Counsel and
the Class Representatives, approving and directing distribution of
the Class of Notice, and setting a schedule for the final approval
process.
The Plaintiffs are represented by:
Linda D. Friedman, Esq.
Suzanne E. Bish, Esq.
George S. Robot, Esq.
STOWELL & FRIEDMAN, LTD.
303 W. Madison, 26th floor
Chicago, IL 60606
Telephone: (312) 431-0888
Facsimile: (312) 431-0228
E-mail: lfriedman@sfltd.com
sbish@sfltd.com
grobot@sfltd.com
KING COUNTY, WA: Court Names Guardian Ad Litem for Class Settlement
-------------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, granted Plaintiffs' Motion for Guardian Ad
Litem in the case captioned C.S., et al., Plaintiffs, v. KING
COUNTY, et al., Defendants. Case No. C17-1560-JCC. (W.D. Wash.).
The Plaintiffs ask the Court to approve settlements resolving their
outstanding claims against King County and the Kent School District
and to appoint a guardian ad litem for the minor Plaintiffs for
purposes of settlement. The Court must do so when a minor plaintiff
is involved in a settlement.
The proposed settlements resolve claims for alleged physical and
emotional injuries resulting from King County's use of solitary
involuntary confinement on the Plaintiffs at the Maleng Regional
Justice Center and the Kent School District's denial of educational
services to the Plaintiffs. While the Plaintiffs filed a class
action complaint, the case has not been certified as a class
action.
Therefore, the proposed settlement has no impact on claims that any
other party may have against the Defendants.
George Yeannakis has evaluated and advised minor Plaintiffs D.B.,
K.C., and J.R. about the settlement proposals offered by the
Defendants. The Court finds that Mr. Yeannakis is a fit and proper
person to do so and, therefore, should be appointed guardian ad
litem for the minor Plaintiffs.
A full-text copy of the District Court's August 20, 2018 Order is
available at https://tinyurl.com/ybw62x5j from Leagle.com.
C. S., a minor, by and through his mother, SONYA STOKES, J. R., a
minor, by and through his mother, QUINIECA TAYLOR, D. B., a minor,
by and through his mother, KIMBERLEY FALL & K. C., by and through
his guardian ad litem, MARIE CALLENDRET, on bhelaf of themselves
and all others similarly situated, Plaintiffs, represented by
Nicholas Broten Straley -- nick.straley@columbialegal.org --
COLUMBIA LEGAL SERVICES & Nicholas Brian Allen --
nick.allen@columbialegal.org -- COLUMBIA LEGAL SERVICES.
King County, Defendant, represented by Pascal Herzer , KING COUNTY
PROSECUTING ATTORNEY'S OFFICE & Samantha Kanner , KING COUNTY
PROSECUTING ATTORNEY'S OFFICE.
LJM PARTNERS: Lundgren-Wiedinmyer Sues Over Investment Mishap
-------------------------------------------------------------
Donna Lundgren-Wiedinmyer, and other similarly situated
individuals, Plaintiff, v. LJM Partners, Ltd, Anthony J. Caine,
Kathryn McBride, Anish Parvataneni, Arjuna Ariathurai, Lauren C.
Savino,, Defendant, Case No. 2018CH10712 (Ill. Cir., August 23,
2018), seeks damages, reasonable costs and expenses incurred in
this action, including counsel fees and expert fees and such other
equitable, injunctive or other relief resulting from breach of
fiduciary duty and breach of contract.
LJM is a commodity pool operator and a commodity trading advisor
engaging in the speculative trading of commodity futures contracts
and options on commodities or commodity futures contracts where
Lundgren-Wiedinmyer had a total investment of approximately
$223,478 as of January 31, 2018.
Said case arises out of the rapid collapse of the partnership
wherein it lost approximately 80% of its value over two days. LJM
marketed itself as a carefully hedged strategy but employed a
highly aggressive trading strategy, making massive and unmitigated
bets which exposed investors to excessive risk and catastrophic
losses of capital.
On February 5 and 6, 2018, the partnership lost approximately 80%
of its value despite a modest downturn of approximately 2% in two
days in the S&P 500. [BN]
Plaintiff is represented by:
Michael J. Freed, Esq.
William H. London, Esq.
Brian M. Hogan, Esq.
FREED KANNER LONDON & MILLEN, LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Telephone: (224) 632-4500
Facsimile: (224) 632-4521
Email: mfreed@fklmlaw.com
blondon@fklmlaw.com
bhogan@fklmlaw.com
LOCAL OYSTER: Fails to Pay for Overtime Work, Carleton Alleges
--------------------------------------------------------------
DAVID CARLETON, individually and on behalf of all others similarly
situated, Plaintiff v. THE LOCAL OYSTER LLC; NICHOLAS SCHAUMAN; and
PATRICK HUDSON, Defendants, Case No. 1:18-cv-02393-JKB (D. Md.,
Aug. 6, 2018) seeks to recover from the Defendants all unpaid
overtime wages, liquidated damages, attorney's fees and costs,
under the Fair Labor Standards Act.
Mr. Carleton was employed by the Defendants as an hourly employee
since October 24, 2017.
The Local Oyster LLC is a corporation organized and existing under
the laws of the State of Maryland, with principal place of business
in Baltimore, Maryland. [BN]
The Plaintiff is represented by:
Matthew K. Handley, Esq.
HANDLEY & ANDERSON PLLC
718 7th Street NW
Washington, DC 20001
Telephone: (202) 559-2411
E-mail: mhandley@hajustice.com
MANAGEMENT AND TRAINING: Fails to Pay OT, Mendoza Suit Alleges
--------------------------------------------------------------
JOSUE MENDOZA, individually and on behalf of all others similarly
situated, Plaintiff v. MANAGEMENT AND TRAINING CORPORATION; and
DOES 1 to 100, inclusive, Defendants, Case No.
37-2018-00038572-CU-OE-CTL (Cal. Super., San Diego Cty., Aug. 1,
2018) is an action against the Defendants for failure to pay
minimum wages, overtime compensation, authorize and permit meal and
rest periods, provide accurate wage statements, and reimburse
necessary business expenses.
The Plaintiff Mendoza was employed by the Defendants as anon-exempt
employee from September 2014 to the present.
Management & Training Corporation provides academic, technical, and
social skills training programs and services to students and young
adults worldwide. The company was incorporated in 1980 and is based
in Centerville, Utah with an additional office in Washington,
District of Columbia. It operates facilities and projects across
the United States and internationally. [BN]
The Plaintiff is represented by:
Theodore R. Tang, Esq.
Adam M. Rose, Esq.
Emanuel Starr, Esq.
FRONTIER LAW CENTER
23901 Calabasas Road, Suite 2074
Calabasas, CA 91302
Telephone: (818) 914-3433
Facsimile: (818) 914-3433
- and –
Stephen M. Harris, Esq.
LAW OFFICE OF STEPHEN M. HARRIS, P.C.
6320 Canoga Avenue, Suite 1500
Woodland Hills, CA 91367
Telephone: (818) 924-3103
Facsimile: (818) 924-3079
MATSU CORP: Zhu Moves for Collective Action Status Under FLSA
-------------------------------------------------------------
The Plaintiffs in the lawsuit captioned GUI ZHEN ZHU, and RONG JIAO
YIN, on their own behalf and on behalf of others similarly situated
v. MATSU CORP d/b/a Matsu; and MATSU GRILL CO. LLC, d/b/a Matsuri
and; KIMMING MARTY CHENG, and ZIQIAO CAO a/k/a Michael Cao, Case
No. 3:18-cv-00203-CSH (D. Conn.), ask the Court for an order:
(1) granting collective action status, under the Fair Labor
Standards Act, 29 U.S.C. Section 216(b);
(2) ordering the Defendants to produce a Microsoft Excel data
file containing contact information, including but not
limited to first and last name of the employee, the last
known mailing addresses (including apartment number if
applicable), last known telephone numbers, last known
email addresses, work locations, position and dates of
employment for all those individuals who have worked for
the Defendants as a non-managerial employee between
February 02, 2015 and the date this Court decides this
Motion;
(3) authorizing that notice of this matter be sent to members
of the putative class;
(4) authorizing equitable tolling of the statute of limitation
pending the expiration of the opt-in period;
(5) ordering the Defendants to post the approved Proposed
Notice in conspicuous locations at the location where the
Prospective Collective Action Members worked or are now
working;
(6) ordering the Plaintiffs to publish the Notice of Pendency,
in an abbreviated form to be approved by the Court, at
Defendants' expense should Defendants fail to furnish a
complete Excel list or more than 20% of the Notice be
returned as undeliverable with no forwarding address to be
published in English, and Chinese and Spanish; and
(7) ordering the equitable tolling on the statute of
limitation on this suit be tolled for 90 days until the
expiration of the Opt-in Period.
The Plaintiffs are represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: johntroy@troypllc.com
MCGRATH COLOSIMO: Khalil May Re-File Bid for Class Certification
----------------------------------------------------------------
The Clerk of the U.S. District Court for the Northern District of
Illinois made a docket entry on August 31, 2018, in the case styled
Khalil Khalil v. McGrath Colosimo, Ltd., Case No. 1:17-cv-07474
(N.D. Ill.), relating to a hearing held before the Honorable Harry
D. Leinenweber.
The minute entry states that:
-- Plaintiffs' Motion for Class Certification is denied
without prejudice as premature, given that the Seventh
Circuit overruled Damasco v. Clearwire Corp., 662 F.3d 891,
895 (7th Cir. 2011), in Chapman v. First Index, Inc., 796
F.3d 783, 787 (7th Cir. 2015); and
-- Plaintiffs are given leave to re−file their motion for
class certification at the appropriate time.
MDL 2036: Dasher Seeks Certification of Four Customer Classes
-------------------------------------------------------------
The Plaintiffs in the lawsuit titled Michael Dasher and Stephanie
Avery v. RBC Bank (USA), predecessor in interest to PNC Bank, N.A.,
Case No. 1:10-CV-22190-JLK (S.D. Fla.), move for certification of
these proposed classes:
* All RBC customers in the United States who, within the
applicable statute of limitations preceding the filing of
this action, incurred an overdraft fee as a result of RBC's
practice of re-sequencing debit card transactions from
highest to lowest and whose account was closed prior to
February 1, 2013 (the "Avery National Class");
* All RBC customers in the United States who, within the
applicable statute of limitations preceding the filing of
this action, incurred an overdraft fee as a result of RBC's
practice of re-sequencing debit card transactions from
highest to lowest and whose account remained open on or
after February 1, 2013 (the "Dasher National Class");
* All RBC customers having accounts at branches in the state
of North Carolina for the purpose of asserting claims under
North Carolina's consumer protection statute and whose
account was closed prior to February 1, 2013 (the "Avery
State Subclass"); and
* All RBC customers having accounts at branches in the state
of North Carolina for the purpose of asserting claims under
North Carolina's consumer protection statute whose account
remained open on or after February 1, 2013 (the "Dasher
State Subclass").
Excluded from the Classes are PNC, its parents, subsidiaries,
affiliates, officers and directors, any entity in which PNC
(previously RBC) has a controlling interest, all customers who make
a timely election to be excluded, governmental entities, and all
judges assigned to hear any aspect of this litigation, as well as
their immediate family members.
The lawsuit is part of the multidistrict litigation captioned IN
RE: CHECKING ACCOUNT OVERDRAFT LITIGATION, MDL No.
1:09-md-02036-JLK.
The Plaintiffs also move to be appointed representatives of the
Classes, and for the appointment of these firms as Class Counsel
pursuant to Rule 23(g): Bruce S. Rogow, P.A.; Podhurst Orseck,
P.A.; Grossman Roth Yaffa Cohen, P.A.; Baron & Budd, P.C.; Golomb &
Honik, P.C.; Lieff Cabraser Heimann & Bernstein LLP; Trief & Olk;
Webb, Klase & Lemond, LLC; Kopelowitz Ostrow Ferguson Weiselberg
Gilbert; and Darren Kaplan Law Firm, PC.
The Plaintiffs are represented by:
Aaron S. Podhurst, Esq.
Robert C. Josefsberg, Esq.
Peter Prieto, Esq.
PODHURST ORSECK, P.A.
SunTrust International Center
One S.E. 3rd Avenue, Suite 2300
Miami, FL 33131
Telephone: (305) 358-2800
E-mail: apodhurst@podhurst.com
rjosefsberg@podhurst.com
pprieto@podhurst.com
- and -
Bruce S. Rogow, Esq.
BRUCE S. ROGOW, P.A.
100 NE 3rd Avenue, Suite 1000
Fort Lauderdale, FL 33301
Telephone: (954) 767-8909
E-mail: brogow@rogowlaw.com
- and -
Robert C. Gilbert, Esq.
Stuart Z. Grossman, Esq.
GROSSMAN ROTH YAFFA COHEN, P.A.
2525 Ponce de Leon Boulevard, Eleventh Floor
Coral Gables, FL 33134
Telephone: (305) 442-8666
E-mail: rcg@grossmanroth.com
robert@gilbertpa.com
szg@grossmanroth.com
- and -
E. Adam Webb, Esq.
G. Franklin Lemond, Jr., Esq.
WEBB, KLASE & LEMOND, L.L.C.
1900 The Exchange, S.E., Suite 480
Atlanta, GA 30339
Telephone: (770) 444-9325
E-mail: Adam@WebbLLC.com
FLemond@WebbLLC.com
- and -
Russell W. Budd, Esq.
BARON & BUDD, P.C.
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Telephone: (214) 521-3605
E-mail: rbudd@baronbudd.com
- and -
Ruben Honik, Esq.
Kenneth J. Grunfeld, Esq.
GOLOMB & HONIK, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Telephone: (215) 985-9177
E-mail: rhonik@golombhonik.com
kgrunfeld@golombhonik.com
- and -
Michael W. Sobol, Esq.
Roger N. Heller, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P.
Embarcadero Center West
275 Battery Street, 30th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: msobol@lchb.com
rheller@lchb.com
- and -
David S. Stellings, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN L.L.P.
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
E-mail: dstellings@lchb.com
- and -
Ted E. Trief, Esq.
Barbara E. Olk, Esq.
TRIEF & OLK
150 E. 58th Street, 34th Floor
New York, NY 10155
Telephone: (212) 486-6060
E-mail: ttrief@triefandolk.com
bolk@triefandolk.com
MDL 2617: Court Awards $31MM Attorney's Fees in Data Breach Suit
----------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, granted in part and denied in part
Plaintiffs' Motion for Attorney's Fees, Litigation Expenses and
Service Awards in the case captioned IN RE ANTHEM, INC. DATA BREACH
LITIGATION. Case No. 15-MD-02617-LHK. (N.D. Cal.).
Before the Court is a motion for attorneys' fees, litigation
expenses, and service awards to class representatives arising out
of the class action settlement between individual and
representative Plaintiffs1 and the Settlement Class they represent
and Defendants.
Anthem experienced one of the largest data breaches in history.
Cyberattackers gained access to the personal information of
approximately 80 million individuals stored on Anthem's database
After Anthem publicly announced the breach, a number of lawsuits
were filed against Defendants.
The parties moved for preliminary approval of that Settlement. A
hearing was held and the Court granted preliminary approval of the
$115 million settlement.
Attorneys' Fees
The Appropriate Method: Lodestar vs. Percentage of Recovery
Where the percentage-of-recovery method is employed, it is well
established that 25% of a common fund is a presumptively reasonable
amount of attorneys' fees. Courts typically calculate 25% of the
fund as the benchmark' for a reasonable fee award, providing
adequate explanation in the record of any `special circumstances'
justifying a departure.
Under the lodestar method, a lodestar figure is calculated by
multiplying the number of hours the prevailing party reasonably
expended on the litigation as supported by adequate documentation)
by a reasonable hourly rate for the region and for the experience
of the lawyer. The district court may adjust this lodestar figure
upward or downward by an appropriate positive or negative
multiplier reflecting a host of 'reasonableness' factors.
Here, Class Counsel advocate for applying the
percentage-of-recovery method. Specifically, Class Counsel ask for
33% of the $115 million settlement (i.e., $37.95 million). This is
the maximum amount allowed by the Settlement Agreement.
The Special Master's Report and Recommendation makes three
alternative recommendations for how to calculate attorneys' fees in
this case. The first recommendation is to award 25% of the $115
million Settlement Fund. The second recommendation is to apply an
overall average rate to the entirety of the hours billed in the
case. The third, and final, recommendation is to use Class
Counsel's lodestar but reduce the total amount by (1) lowering the
hourly rate for contract and staff attorneys and (2) applying an
across-the-board 10% haircut for excessive hours.
The Special Master ultimately advises adopting the third approach
as the one that is considerate of counsel's efforts in light of the
results achieved for the present and the future, allows a
significant monetary reward for the class and recognizes the
overcharging outlined in the Report and Recommendation.
Having overseen this case for three years, the Court finds that
justice would be best served by applying the percentage-of-recovery
method. The percentage-of-recovery method is commonly used in the
legal marketplace to determine attorneys' fees in contingency fee
cases. By tying the award to the recovery of the Class, Class
Counsel's interests are aligned with the Class, and Class Counsel
are incentivized to achieve the best possible result. Here, the
percentage-of-recovery method rewards Class Counsel for assuming
the risks of the litigation in this developing area of the law and
for prosecuting the case to obtain a benefit proportional to the
Class's injury.
As such, the Court concludes that using the percentage-of-recovery
method with a lodestar cross-check would achieve the fairest and
most reasonable result in this case.
Percentage of Recovery
First, courts must ascertain the size of the fund against which the
percentage will be assessed. Second, courts must examine relevant
factors to determine the appropriate percentage of the fund that
should be awarded to counsel.
Here, Plaintiffs and Schulman spar over both of these inquiries.
With respect to the size of the fund, Plaintiffs seek to expand the
$115 million Settlement Fund by taking into account certain
nonmonetary benefits, whereas Schulman seeks to contract the $115
million Settlement Fund by excluding certain costs. As to the
percentage, Plaintiffs advocate for 33%, while Schulman puts the
figure at 15%.
Size of the Fund
Here, the starting baseline is the $115 million Settlement Fund.
Plaintiffs argue that the nonmonetary relief provided by the
Settlement warrants deviating up from that figure. Schulman
counters that the figure is too high because it includes
administrative costs and litigation expenses that confer no real
benefit on the Class. The Court disagrees with both Plaintiffs and
Schulman that any departure from $115 million is justified. The
Court first discusses Plaintiffs' contentions, then discusses
Schulman's contentions.
Plaintiffs identify two forms of nonmonetary relief that they argue
are not captured by the dollar figure of the Settlement Fund.
First, Plaintiffs point to the credit monitoring services available
to all Settlement Class Members who submit a claim form. Plaintiffs
note that because they are purchasing these services for a very
large group of individuals, the bulk discount is substantial: while
the Settlement is likely to secure four years of credit monitoring
for all Settlement Class Members for $26.2 million, the retail
price for four years of credit monitoring is approximately $479.52
($9.99 per month) per Settlement Class Member.
Second, Plaintiffs cite to the Settlement provision requiring
Anthem to almost triple its cybersecurity spending for three years.
Plaintiffs correctly explain that these business-practice changes
benefit the entire Class because Anthem must take specific steps to
protect its data warehouse which still stores the personal
information of Settlement Class Members from future breach.
Schulman seeks to exclude both the administrative costs and
litigation expenses from the percentage fund. He argues that
Settlement Class Members receive no benefit from these expenses.
Schulman contends that exclusion is particularly warranted here
because the administrative costs were high ($23.0 million) and
Class Counsel had little incentive to optimize the administrative
process. The Court disagrees.
Here, the Court concludes that litigation expenses and
administrative costs should be included. As to the former, the
litigation expenses were necessary to litigate this case and make
the entire action possible. As to the latter, investing in a
comprehensive notice and claims processing effort was critical to
inform the approximately 79.15 million Settlement Class Members
about the Settlement and their ability to seek reimbursement for
their losses. It is true that the administration has been costly in
this case. reaching $23.0 million, or 20% of the $115 million
Settlement Fund, but much of that amount over $14.0 million is
attributable to postage for mailing notice to more than 54 million
Settlement Class Members with known addresses. Such direct notice
is typically the preferred form of notification because of its
efficacy. To reach the remainder of the Settlement Class Members,
the Settlement Administrator used less-expensive forms of notice,
including notice by email, print publication, and online
advertisement. The Settlement Administrator estimates that the
combined individual and media notice efforts reached approximately
87.5% of likely class members on average 2.1 times each. These
costs of providing notice to the class can reasonably be considered
a benefit to the class in this case.
Thus, the Court finds that including these non-excessive
administrative costs and litigation expenses in the percentage fund
is proper in this case.
In sum, the Court refuses to depart upward or downward from the
$115 million Settlement Fund based on the nonmonetary benefits of
the Settlement or the administrative costs and litigation expenses.
Instead, the Court will use the $115 million figure and make a
final determination of a reasonable percentage and attorneys' fee
award. Accordingly, the Court's task is to compute a suitable
percentage.
Percentage
Here, Plaintiffs seek an upward departure from the 25% benchmark to
33% of the common fund, for a total of $37.95 million in attorneys'
fees. Schulman seeks to have the Court select 15%, resulting in an
attorneys' fees award of $17.25 million when applied to the $115
million Settlement Fund. As set forth below, the Court believes
that, particularly in light of the substantial results achieved in
this case and the risks associated with the litigation, the factors
set forth in Vizcaino weigh in favor of granting Class Counsel an
upward adjustment. However, the Court finds that a percentage award
of 27% of the common fund is appropriate, rather than the 33%
requested by Class Counsel.
The Results Achieved
First, the Court considers the overall result and benefit to the
Class. This factor has been called the most critical factor in
granting a fee award. Having seen the strengths and weaknesses in
each side's case throughout litigation over the past three years,
the Court finds that the results obtained in the Settlement are
exceptional.
Whether one looks at absolute or per-capita numbers, a settlement
fund of $115 million for approximately 79.15 million class members
is significant. According to the parties, the gross settlement
amount of $115 million constitutes the largest settlement to date
in a data-breach case in the United States. They point to
settlements approved in two consumer class actions involving data
breaches namely, the $27.2 million settlement fund (for over 52
million consumers) in the Home Depot data breach and the $23.3
million settlement fund (for approximately 110 million consumers)
in the Target data breach.
The Risks of Litigation
Second, the Court concludes that there were substantial risks of
litigation. To begin, databreach litigation is an actively
developing field of the law where much of the legal landscape is
still shifting and unsettled. This baseline uncertainty manifested
itself in a threshold question that threatened to end the
litigation at an early stage as well as ongoing issues that
endangered class recovery.
When Plaintiffs initiated this litigation, it was not a foregone
conclusion that they had suffered an injury-in-fact sufficient to
confer Article III standing to sue. Plaintiffs' entire case or at
least large swaths of the case—depended upon the assertion that
an imminent risk that hackers will misuse the data obtained in the
breach constitutes an injury-in-fact. This Court resolved that
issue in favor of standing in a separate case before the instant
case began. The Ninth Circuit had also concluded in 2010 that
plaintiffs had standing in a case involving similar facts.
However, the Ninth Circuit had not explicitly addressed standing in
the context of a data breach or confirmed that its 2010 decision
remained good law in light of the U.S. Supreme Court's intervening
decision in Clapper v. Amnesty International USA, 568 U.S. 398
(2013). The outcome was far from certain, as the circuits have
reached different answers on the issue of standing in various
data-breach cases presenting different facts. Earlier this year,
the Ninth Circuit reaffirmed that "the sensitivity of the personal
information, combined with its theft, can be sufficient to conclude
that the plaintiffs had adequately alleged an injury in fact
supporting standing." Before that ruling, Plaintiffs faced the
possibility that their lawsuit would be unsustainable or severely
trimmed on the ground that Plaintiffs lacked Article III standing
to sue.
The Skill Required and the Quality of Work
Third, with respect to the quality of the litigation, Class Counsel
include some lawyers who are experienced in litigating data-breach
and privacy class actions. While the Court does not have enough
information to comment on the work performed by the 49 other law
firms that Class Counsel brought into this case, the Court
concludes that Class Counsel demonstrated skillful preparation and
adept work. They performed significant factual investigation prior
to bringing these actions; engaged in motion practice, including
opposing two motions to dismiss and fully briefing a motion for
class certification and reply; engaged in written discovery; and
participated in protracted negotiations with Anthem, including
three full-day mediations with the assistance of a capable and
experienced mediator.
The Contingent Nature of the Representation
Fourth, this case was conducted on a contingent-fee basis against
well-represented Defendants. To be sure, Class Counsel were capable
of fronting the costs, but the financial risk of litigation was
assumed by Class Counsel throughout the pendency of the action.
Moreover, the representation has lasted for nearly three years and
the case schedule was compressed, thereby requiring Class Counsel
to forego work on other matters.
Awards in Similar Cases
It is important to underscore the size of the fund at issue here.
The fund of $115 million is significantly larger than the $27.2
million settlement fund for the consumer class in In re The Home
Depot (In re The Home Depot, Inc., Customer Data Sec. Breach
Litig., No. 14-MD-02583-TWT (N.D. Ga. Aug. 23, 2016)) and the $23.3
million settlement value for the consumer class in In re Target (In
re Target Corp. Customer Data Sec. Breach Litig., No.
14-MD-02522-PAM (D. Minn. Nov. 17, 2015)). Although a percentage
award in a megafund case can be 25% or even as high as 30-40%,
typically the percentage award in such a case is substantially less
than the 25% benchmark applicable to typical class settlements in
this Circuit. This rule reflects the basic reality that, at some
point, the increasing amount of a settlement may be a function of
class size, not counsel's efforts.
Although percentages tend to decrease as the fund increases, the
Ninth Circuit has rejected the argument that fee award percentages
must decrease as the fund increases. A simple example demonstrates
the perverse incentives that may result by following such a
formulaic approach: If courts award class counsel 30% of any
settlement under $100 million but only 20% of any settlement over
$100 million, then class counsel will prefer to settle cases for
$90 million (i.e., a $27 million fee award) instead of $125 million
(i.e., a $25 million fee award).
The Court need not adjust the benchmark unless awarding 25% of a
megafund would yield windfall profits for class counsel in light of
the hours spent on the case.
Based on this, the Court concludes that a percentage of 27% should
be applied to the $115 million Settlement Fund. Accordingly, the
percentage-of-recovery method produces a total attorneys' fee award
of $31.05 million.
A full-text copy of the District Court's August 16, 2018 Order is
available at
https://tinyurl.com/ycpzeyne from Leagle.com.
In Re Anthem, Inc., Customer Data Security Breach Litigation,
represented by Craig Alan Hoover , Hogan Lovells US LLP, E. Desmond
Hogan , Hogan Lovells, Eve Hedy Cervantez , Altshuler Berzon LLP,
Michael McDonald Maddigan , Hogan Lovells US LLP, Peter R. Bisio ,
HOGAN LOVELLS US LLP & Michael Ben Pasternak , Michael Pasternak.
Laura Fowles, Plaintiff, represented by Eric H. Gibbs --
ehg@classlawgroup.com -- Gibbs Law Group LLP, Anthony J. LoPresti
-- tlopresti@altshulerberzon.com -- Altshuler Berzon LLP, Danielle
Evelyn Leonard -- dleonard@altshulerberzon.com -- Altshuler Berzon
LLP, Eve Hedy Cervantez -- ecervantez@altshulerberzon.com --
Altshuler Berzon LLP, Michael W. Sobol -- msobol@lchb.com -- Lieff
Cabraser Heimann & Bernstein, LLP, Nicole Diane Sugnet --
nsugnet@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP &
RoseMarie Maliekel -- rmaliekel@clarencedyer.com -- Clarence Dyer &
Cohen LLP.
Danny Juliano, Plaintiff, represented by Eric H. Gibbs , Gibbs Law
Group LLP, Anthony J. LoPresti , Altshuler Berzon LLP, Danielle
Evelyn Leonard , Altshuler Berzon LLP, Donald W. Stewart , Eve Hedy
Cervantez , Altshuler Berzon LLP, Greg William Foster , STEWART AND
STEWART PC,Nicole Diane Sugnet , Lieff Cabraser Heimann &
Bernstein, LLP & T. Dylan Reeves , STEWART & STEWART PC.
MICHAEL P MORTON: Ortez Seeks Certification of Class Under FDCPA
----------------------------------------------------------------
The Plaintiff in the lawsuit styled HERMAN ORTEZ, on behalf of
himself and others similarly situated v. MICHAEL P. MORTON, P.A.,
Case No. 1:18-cv-00561-MN-CJB (D. Del.), asks the Court to certify
this class under the Fair Debt Collection Practices Act:
(1) All persons with an address in the United States, (2) to
whom Michael P. Morton, P.A. mailed an initial communication
that (a) did not state the amount of the debt, or (b)
advised the consumer that he should within ten (10) days
from the date of the letter, either pay the now overdue
assessment, fees and penalties in full, or contact the
creditor to discuss how the consumer could arrange for a
payment plan that will postpone collection actions by
Michael P. Morton, P.A., or (c) did not state that upon the
consumer's written request within the thirty-day period,
Michael P. Morton, P.A. would provide the consumer with the
name and address of the original creditor, if different from
the current creditor (3) between April 13, 2017 and
April 13, 2018, (4) in connection with the collection of a
consumer debt, (5) that was not returned as undeliverable to
Michael P. Morton, P.A.
Mr. Ortez also asks the Court to appoint him as class
representative, and to appoint his counsel as class counsel.
The Plaintiff is represented by:
Vivian A. Houghton, Esq.
LAW OFFICE OF VIVIAN A. HOUGHTON
800 N. West Street, 1st Floor
Wilmington, DE 19801
Telephone: (302) 658-0518
Facsimile: (302) 658-5731
E-mail: vivianhoughton@comcast.net
- and -
James L. Davidson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
Facsimile: (561) 961-5684
E-mail: jdavidson@gdrlawfirm.com
MIDLAND CREDIT: Proceedings on Bruchhauser's Bid for Cert. Stayed
-----------------------------------------------------------------
The Hon. William E. Duffin granted the Plaintiff's motion to stay
further proceedings on motion for class certification in the
lawsuit entitled HOWARD BRUCHHAUSER, ET AL. v. MIDLAND CREDIT
MANAGEMENT, INC., ET AL., Case No. 2:18-cv-01260-WED (E.D. Wisc.).
On August 14, 2018, the Plaintiffs filed a class action complaint.
At the same time, the Plaintiffs filed what the Court commonly
refers to as a "protective" motion for class certification,
according to the Order. In this Motion, the Plaintiffs moved to
certify the class described in the complaint but also moved the
court to stay further proceedings on that Motion.
In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),
the court suggested that class‐action plaintiffs "move to certify
the class at the same time that they file their complaint." "The
pendency of that motion protects a putative class from attempts to
buy off the named plaintiffs." However, Judge Duffin notes,
because parties are generally unprepared to proceed with a motion
for class certification at the beginning of a case, the Damasco
court suggested that the parties "ask the district court to delay
its ruling to provide time for additional discovery or
investigation."
Hence, Judge Duffin grants the Plaintiff's motion to stay further
proceedings. The parties are relieved from the automatic briefing
schedule set forth in Civil Local Rule 7(b) and (c).
Moreover, for administrative purposes, Judge Duffin states, it is
necessary that the Clerk terminate the Plaintiff's motion for class
certification. However, this motion will be regarded as pending to
serve its protective purpose under Damasco, Judge Duffin adds.
MYER: Reassures Investors of Profit Growth Amid Class Action
------------------------------------------------------------
Sue Mitchell, writing for Australian Financial Review, reports that
former Myer chief executive Bernie Brookes reassured investors
profits would grow in 2015 even though his board had backed away
from issuing such guidance a day earlier, a Melbourne court has
been told.
On the first day of a multi-million dollar class action claim
against the beleaguered retailer, Norman O'Bryan, QC, said Mr
Brookes told analysts and media in September 2014 he expected
profit growth in 2015, even though trading was down 15 per cent in
the first quarter and a draft profit announcement showed the Myer
board had decided not to include a profit forecast because it did
not have confidence in the budget.
Mr O'Bryan said Mr Brookes' claim was a "cloud cuckoo land"
assumption which relied on a strong rebound in profits in the
second quarter and second half.
"When a company makes a forecast it has an obligation . . . to keep
looking at the forecast and keep changing if it remains valid or
not," Mr O'Bryan told the Federal Court.
"Myer did not do that. Mr Brookes made a profit forecast on
September 11, 2014 and Myer pretended it didn't happen."
In March 2015, two weeks after taking the helm from Mr Brookes, new
CEO Richard Umbers announced a 23 per cent fall in first half
profit and warned that underlying net profit would fall, sending
Myer shares tumbling as much as 12 per cent.
Myer is being sued by TPT Patrol, the trustee of lead plaintiffs
the Amies Superannuation Fund.
It launched the class action in December 2016, alleging
shareholders suffered loss and damage because Myer engaged in
misleading or deceptive conduct and failed to abide by its
continuous disclosure obligations by providing profit guidance
without a reasonable basis and by failing to inform the market
about its earnings prospects for 2015.
The Amies bought 40,000 Myer shares in November 2014 for around
$1.65 a share, only to see the stock plummet to around $1.28 in
March after Mr Umbers' profit warning. Myer shares are now trading
around 47¢ after further warnings and writedowns.
Myer has previously claimed it became aware its guidance would fall
below consensus only the day before it finally announced the
first-half results.
The class action is being funded by Australian Funding Partners,
which is controlled by former Minter Ellison partner Mark Elliot.
Mr Elliott originally tried to sue Myer over the profit guidance in
2015, claiming misleading and deceptive conduct, but the class
action was thrown out as an abuse of process because Mr Elliott --
who has launched more than a dozen class action claims against
underperforming companies -- was the plaintiff, litigation funder
and initially the lawyer on the case.
The hearing is expected to take three weeks and former Myer
executives and board members are expected to appear. [GN]
NEVRO CORP: Oklahoma Police Fund Hits Share Drop Over Patent Row
----------------------------------------------------------------
Oklahoma Police Pension and Retirement System, individually and on
behalf of all others similarly situated, Plaintiff, v. Nevro Corp.,
Rami Elghandour and Andrew Galligan, Defendants, Case No.
18-cv-05181, (N.D. Cal., August 23, 2018), seeks damages,
prejudgment and post-judgment interest, as well as reasonable
attorneys' and experts' witness fees and other costs and such other
relief under the Securities Exchange Act of 1934.
Nevro, headquartered in Redwood City, California, designs, develops
and manufactures medical device treatments for patients suffering
from debilitating chronic pain. Its principal product and
revenue-driver is its HF10 therapy.
On April 27, 2018, Nevro's stock price began to decline after it
was revealed that Boston Scientific Corp. had filed an action
against Nevro asserting claims of patent infringement, theft of
trade secrets, and tortious interference with contract alleging
that Nevro had been recruiting and hiring dozens of its employees
and was using trade secrets contained in more than 34,000 documents
stolen from Boston Scientific by those former employees. Nevro then
reported first quarter 2018 financial results that fell drastically
short of estimates due to a 31% increase in quarterly operating
expenses, driven primarily by legal expenses associated with its
ongoing patent infringement litigation with Boston Scientific.
These events wiped out nearly half, or $1.345 billion, of Nevro's
market capitalization.
Oklahoma Police Pension and Retirement System purchased Nevro
common stock and lost substantially, the complaint relays. [BN]
The Plaintiff is represented by:
David R. Stickney, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Tel: (858) 793-0070
Fax: (858) 793-0323
Email: davids@blbglaw.com
- and -
Avi Josefson, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
Tel: (212) 554-1493
Fax: (212) 554-1444
Email: avi@blbglaw.com
- and -
Joseph E. White, III, Esq.
Maya Saxena, Esq.
Lester R. Hooker, Esq.
SAXENA WHITE PA
150 East Palmetto Park Road, Suite 600
Boca Raton, FL 33432
Tel: (561) 394-3399
Fax: (561) 394-3382
Email: msaxena@saxenawhite.com
white@saxenawhite.com
lhooker@saxenawhite.com
- and -
Steven B. Singer, Esq.
SAXENA WHITE PA
10 Bank St., 8th Floor
White Plains, NY 10606
Tel: (914) 437-8551
Fax: (888) 631-3611
Email: ssinger@saxenawhite.com
NORDSTROM INC: Stephens Moves to Certify Rolex Purchasers Class
---------------------------------------------------------------
Brunilda Stephens moves the Court to certify her case titled
BRUNILDA STEPHENS, on behalf of herself and all others similarly
situated v. NORDSTROM, INC.; HAUTELOOK, INC., Case No.
2:17-cv-05872-DSF-KS (C.D. Cal.), as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure.
The case arises from the sale of vintage Rolex watches by
HauteLook, a division of Nordstrom. The proposed class for this
action includes all persons or entities which purchased a vintage
Rolex watch from HauteLook from August 9, 2013 through August 8,
2017. According to the records produced by HauteLook, there were
1,556 purchases of Rolex watches during the class period, of which
139 orders were canceled, resulting in the fulfillment of 1,417
orders for vintage Rolex watches.
Ms. Stephens also asks to be appointed as class representative and
for her counsel to be appointed as class counsel.
The Court will commence a hearing on December 17, 2018, at 1:30
p.m., to consider the Motion.
The Plaintiff is represented by:
Roland C. Colton, Esq.
COLTON LAW GROUP
28202 Cabot Road, Third Floor
Laguna Niguel, CA 92677
Telephone: (949) 365-5660
Facsimile: (949) 365-5662
E-mail: rcc7@msn.com
- and -
Alexander Escandari, Esq.
L.A. TRIAL LAWYERS, INC.
8730 Wilshire Boulevard, Fifth Floor
Beverly Hills, CA 90211
Telephone: (310) 492-2000
Facsimile: (310) 492-2001
NOVATION CAPITAL: Ten Motions Mooted Due to Settlement in Buja Suit
-------------------------------------------------------------------
The Hon. Kenneth A. Marra denied as moot without prejudice 10
pending motions in the lawsuit entitled KEVIN BUJA v. NOVATION
CAPITAL, LLC, a foreign limited liability company; NOVATION
VENTURES, LLC, a foreign limited liability company; NOVATION
FUNDING,LLC; each doing business as "Novation Settlement
Solutions," an unregistered fictitious entity, Case No.
9:15-cv-81002-KAM (S.D. Fla.).
According to its order, this cause is before the Court upon the
Joint Report Regarding Settlement Status, advising the Court that
the Parties have executed a settlement agreement and are finalizing
the terms.
In light of this report, Judge Marra ordered and adjudged that the
10 pending motions at DE 142, 145, 147, 155, 159, 183, 186, 187,
196, and 202 are denied as moot without prejudice to refile them in
the event the settlement does not come to fruition.
NOVO NORDISK: Court Denies Bid to Dismiss Securities Suit
---------------------------------------------------------
The United States District Court for the District of New Jersey
denied Defendants' Motion to Dismiss the case captioned IN RE NOVO
NORDISK SECURITIES LITIGATION. Civil Action No.
3:17-cv-209-BRM-LHG. (D.N.J.).
Before this Court is Defendants Novo Nordisk A/S (Novo), Lars
Rebien Sorensen (Sorensen), Jesper Brandgaard (Brandgaard), and
Jakob Riis's (Riis) (Defendants) Motion to Dismiss pursuant to
Se3ction 78u-4(b) of Private Securities Litigation Reform Act of
1995 (PSLRA) and Federal Rules of Civil Procedure 9(b) and
12(b)(6).
In this federal securities class action, the Plaintiffs allege Novo
made a series of material misstatements and omissions about Novo's
sales of its core insulin drugs in the United States. The
Plaintiffs bring their claims on behalf of a proposed class of all
persons and entities who purchased or otherwise acquired Novo
American Depository Receipts (ADRs).
LEGAL STANDARD
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that
is plausible on its face. A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable
inference that the defendant is liable for misconduct alleged. This
plausibility standard requires the complaint allege more than a
sheer possibility that a defendant has acted unlawfully, but it is
not akin to a probability requirement.
To state a claim for securities fraud pursuant to Section 10(b) of
the Exchange Act, plaintiffs must allege (1) a material
misrepresentation or omission, (2) scienter, (3) a connection
between the misrepresentation or omission and the purchase or sale
of a security, (4) reliance upon the misrepresentation or omission,
(5) economic loss, and (6) loss causation.
The Defendants argue the Plaintiffs' claims should be dismissed
because: (1) Plaintiffs fail to plead a material misstatement or
omission; (2) the SEC Bulletin and Releases cited in the Amended
Complaint did not create a disclosure obligation and cannot give
rise to liability; (3) Plaintiffs fail to plead particular facts
giving rise to an inference of scienter; and (4) Novo's
forward-looking statements and its statements of opinion are
immunized by the PSLRA.
Alleged Material Misstatements and Omissions
The Defendants argue, contrary to Plaintiffs' claims, Novo publicly
disclosed the impact of PBM rebates and increased pricing pressures
during the Class Period. Defendants point to statements in Novo's
2014 Annual Report, which stated PBMs widely used tightly
controlled Preferred Drug Lists and asserted rebate negotiations
have become tougher for the pharmaceutical industry.
THe Defendants argue the Plaintiffs have failed to identify a
material misstatement or omission regarding Tresiba.
The Plaintiffs counter by arguing the Defendants violated the
Exchange Act not by concealing and misrepresenting rebates to PBMs,
but by falsely attributing Novo's success to the strength of its
products rather than the rebates paid.
The Court finds the Plaintiffs have adequately alleged Defendants
made material misstatements and omissions. The Plaintiffs cite
numerous specific statements in which Defendants attributed Novo's
success to the efficacy of its products only to later admit PBM
rebates were key to ensure Novo's products were included on
preferred drug formularies. Plaintiffs also cite several statements
in which Defendants assured investors Novo's growth would continue
despite increasing pressures in the market.
While the Defendants cite statements in Novo's 2014 and 2015 Annual
Reports in which the company acknowledged PBMs and the challenges
of the pricing environment in the U.S. market, these disclosures do
not preclude the possibility the Defendants' statements were
misleading. Despite the Defendants' statements acknowledging the
challenges of PBM contracts and pricing pressures in the market,
the Court finds the Plaintiffs have adequately alleged shareholders
were misled by Defendants' contrary statements.
As to the Defendants' statements regarding Tresiba, the Court finds
Plaintiffs adequately pled those statements were misleading.
Plaintiffs point out German and French regulators rejected Novo's
claims that Tresiba was superior to other insulins. Further, at
oral argument, counsel for Plaintiffs noted the Amended Complaint
alleges market analysts credited Novo's statements about Tresiba's
quality and ability to contribute to the company's growth. After
Novo's stock price dropped, analysts attributed Novo's more
negative projected growth, in part, to Tresiba's failure to live up
to the company's assertions about its quality.
Therefore, the Court finds the Plaintiffs have sufficiently pled
Defendants made materially misleading statements as to PBM rebates
and the pricing pressures in the U.S. Market and regarding
Tresiba.
Facts Supporting an Inference of Scienter
The Plaintiffs may establish a strong inference that the defendants
acted with scienter' either (a) by alleging facts to show that
defendants had both motive and opportunity to commit fraud, or (b)
by alleging facts that constitute strong circumstantial evidence of
conscious misbehavior or recklessness.
Here, the Defendants argue the Plaintiffs have failed to plead
scienter because the Amended Complaint relies on (1) witness and
confidential informant accounts that lack the required specificity,
and (2) boilerplate allegations that courts routinely reject. The
Court disagrees and finds Plaintiffs have sufficiently pled facts
that support a strong inference of scienter.
Witness Accounts
The Amended Complaint includes numerous allegations by witnesses,
including Lundstrom. Lundstrom claims Hoiland told him he warned
Novo's senior management throughout the class period that Novo
would not meet its long-term growth targets because of pricing
pressure in the U.S. market. The Amended Complaint also alleges
Hoiland and Novo's senior executives discussed the unsustainability
of Novo's financial forecasts as early as 2015. At oral argument
and in their motion papers, Defendants argued Lundstrom's accounts
of what Hoiland told him about Hoiland's interactions with Novo
management are hearsay and therefore of no probative value. But the
Third Circuit has held witness accounts in a complaint must only
include sufficient particularity to support the probability that a
person in the position occupied by the source would possess the
information alleged.
Plaintiffs' Additional Allegations Support Scienter
The Plaintiffs argue the Court can draw an inference of scienter
from the fact that the Defendants' alleged misstatements concerned
Novo's core business, insulin drugs. Plaintiffs rely on
Institutional Investors Group v. Avaya, Inc., 564 F.3d 242 (3d Cir.
2009), in which the shareholder plaintiffs alleged the defendant
company (1) falsely denied it was offering price discounts due to
increased pricing pressure and (2) released false or misleading
financial projections.
The Plaintiffs' additional evidence of scienter, Novo's share-based
compensation structure and Sorensen's and Hoiland's departure,
contribute to a finding of scienter. While these individual
allegations may not give rise to an inference of scienter on their
own, all of the facts alleged, taken collectively, give rise to a
strong inference of scienter.
Accordingly, the Court finds Plaintiffs have adequately alleged
scienter.
Safe Harbor
The PSLRA's safe harbor provision immunizes from liability any
forward-looking statement, provided that: the statement is
identified as such and accompanied by meaningful cautionary
language; or is immaterial; or the plaintiff fails to show the
statement was made with actual knowledge of its falsehood.
The Plaintiffs identify two categories of statements in which the
safe harbor should not apply: (1) claims related to Tresiba's
expected performance, and (2) Novo's projections regarding targets
and pricing.
Forward-looking statements about Tresiba
The Court agrees. The Plaintiffs have sufficiently alleged
Defendants were aware of negative issues related to Tresiba at the
time they made statements about the drug's efficacy. While portions
of the Defendants' statements about Tresiba were forward looking,
those elements were made in conjunction with present
representations about the drug. While the Defendants acknowledged
the negative developments in the German and French markets, the
cautionary language must be extensive yet specific and touch upon
the subject matter of the alleged misrepresentation in order for
the safe harbor to apply. The Court finds the disclosures upon
which Defendants rely were not adequate, particularly in light of
the strong positive statements Novo made concerning Tresiba.
Projections Regarding Targets & Pricing
The Plaintiffs also allege Defendants stated on an August 6, 2015
earnings call that insulin prices would be from flat to slight
positive pricing. While this is a statement regarding a future
occurrence, Plaintiffs allege Defendants based the statement on a
representation of present fact, namely that Defendants had entered
into contracts that gave them the price picture for the coming
year. Plaintiffs argue Defendants later acknowledged that statement
was false when Novo stated contract negotiations for 2017 resulted
in higher-than-anticipated rebates to obtain broader coverage for
our products. The Court agrees and finds Plaintiffs have
sufficiently alleged Defendants made material misstatements that
were not merely forward looking and are not protected by the safe
harbor.
Therefore, the Court finds the Defendants' statements do not fall
within the PSLRA's safe harbor, and the Plaintiffs have adequately
alleged the Defendants made material misstatements in violation of
the Exchange Act.
A full-text copy of the District Court's August 16, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/ybsht9kp from
Leagle.com.
Oklahoma Firefighters Pension and Retirement System, Boston
Retirement System & Employees Pension Plan of the City of
Clearwater, Movants, represented by JAMES E. CECCHI --
jcecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY &
AGNELLO, P.C. & CHRISTOPHER A. SEEGER -- cseeger@seegerweiss.com --
SEEGER WEISS LLP.
Longview Firemens Relief & Retirement Fund, Movant, represented by
BRUCE DANIEL GREENBERG -- bgreenberg@litedepalma.com -- LITE
DEPALMA GREENBERG, LLC.
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Movant,
represented by CHRISTOPHER A. SEEGER , SEEGER WEISS LLP.
DON ZUK, Individually and on Behalf of All Others Similarly
Situated, 17-358, Plaintiff Consolidated, represented by EDUARD
KORSINSKY -- ek@zlk.com -- LEVI & KORSINSKY LLP.
JOSEPH R. ZALESKI, JR., Individually and on Behalf of All Others
Similarly Situated, 17-506, Plaintiff Consolidated, represented by
BRUCE DANIEL GREENBERG , LITE DEPALMA GREENBERG, LLC.
NOVO NORDISK A/S, LARS REBIEN SORENSEN & JESPER BRANDGAARD,
Defendants, represented by MICHAEL R. GRIFFINGER --
mgriffinger@gibbonslaw.com -- GIBBONS, PC, BRIAN J. MCMAHON --
bmcmahon@gibbonslaw.com -- GIBBONS, PC & SAMUEL ISAAC PORTNOY --
sportnoy@gibbonslaw.com -- GIBBONS PC.
JACOB RIIS, Defendant, represented by MICHAEL R. GRIFFINGER ,
GIBBONS, PC.
NUCOR-YAMATO STEEL: Sanford Action Seeks Unpaid Overtime Premium
----------------------------------------------------------------
Kevin Sanford, individually and on behalf of all others similarly
situated v. Nucor-Yamato Steel Company and Nucor Corporation,
Defendant, Case No. 18-cv-00158, (E.D. Ark., August 23, 2018),
seeks monetary damages, liquidated damages, prejudgment interest,
costs, including reasonable attorneys' fees as a result of failure
to pay lawful overtime compensation for hours worked in excess of
forty hours per week under the Fair Labor Standards Act and the
Arkansas Minimum Wage Act.
Nucor-Yamato Steel Company operates a structural steel mill in
Mississippi County, Arkansas, where Sanford worked as a production
worker. Sanford claims to have regularly worked in excess of forty
hours per week throughout his at tenure Nucor-Yamato and insists on
including the bonuses and cash awards paid to him in calculating
his overtime pay. [BN]
Plaintiff is represented by:
Josh Sanford, Esq.
Chris Burks, Esq.
Daniel Ford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 S. Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
Email: josh@sanfordlawfirm.com
chris@sanfordlawfirm.com
daniel@sanfordlawfirm.com
OCWEN LOAN SERVICING: Reichman Action Hits Illegal Charges
----------------------------------------------------------
Linda Reichman, on behalf of herself and all others similarly
situated, Plaintiff, v. Ocwen Loan Servicing, LLC, Experian
Information Solutions, Inc. and Trans Union, LLC, Defendants, Case
No. 18-cv-81138 (S.D. Fla., August 23, 2018), seeks redress for
violation of the Real Estate Settlement Procedures Act and the Fair
Credit Reporting Act resulting from improper billing, inaccurate
credit reporting and false threats of foreclosure.
Ocwen is a national loan servicing company and was acting as a debt
collector with respect to the collection of Reichman's alleged
debt. Experian and Transunion are consumer reporting agencies
regularly engaged in the business of assembling, evaluating and
disseminating information concerning consumers of the purpose of
furnishing consumer reports for a fee.
Plaintiff has lived in her home located in Palm Beach County FL for
over eighteen years. From the inception of her mortgage on the
subject property, the condominium association has paid the annual
insurance needed for the property. Plaintiff had made her monthly
mortgage payments without issue. According to the complaint, Ocwen
began refusing and returning payments for failure to have proper
insurance on the property. These returned payments continued until
February 2018. Ocwen began force-placing its own insurance on
Plaintiff's property, while charging her for the insurance. [BN]
Plaintiff is represented by:
Max Story, Esq.
Austin J. Griffin, Esq.
MAX STORY, P.A.
328 2nd Avenue North, Suite 100
Jacksonville Beach, FL 32250
Telephone: (904) 372-4109
Email: max@storylawgroup.com
austin@storylawgroup.com
OPR PROPERTY: NY App. Div. Partly Reinstates Amended Rubman Suit
----------------------------------------------------------------
In the case, DAVID RUBMAN AND JENYA RUBMAN, INDIVIDUALLY, AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants, v.
WILLIAM OSUCHOWSKI AND OPR PROPERTY MANAGEMENT, LLC,
Defendants-Respondents, 761 CA 18-00191 (N.Y. App. Div.), the
Appellate Division of the Supreme Court of New York, Fourth
Department, unanimously modified on the law the order of the
Supreme Court, Onondaga County, entered Jan. 4, 2018, granting the
motion of Defendants to dismiss the amended complaint, by denying
the motion in part and reinstating the amended complaint insofar as
asserted by Plaintiff Jenya Rubman, individually, and on behalf of
all others similarly situated.
Jenay entered into a 12-month residential lease agreement with the
Defendants, who own and manage more than 200 residential units in
the City of Syracuse. Pursuant to the lease agreement, Jenya was
required to pay a security deposit that would be returned by the
Defendants within 30 days of the end of the lease term. After she
signed the lease and paid the security deposit, her father,
Plaintiff David Rubman (David), executed an addendum to the lease
agreement in which he agreed to cosign the lease with Jenya. After
the lease term concluded, the Defendants advised Jenya that only
part of her security deposit would be returned as a result of
various deductions that had been made by defendants.
The Plaintiffs commenced a class action against the Defendants
seeking damages and declaratory and injunctive relief on behalf of
themselves and all other persons who, within four years prior to
the date of the filing of the amended complaint, rented residential
property from the Defendants, provided them with a security
deposit, and were not returned the entire security deposit upon
termination of the lease. They alleged, inter alia, that the
Defendants failed to return their security deposit within the time
set forth in the lease, and commingled security deposit moneys with
other funds inasmuch as the Defendants used the same checking
account to return part of Jenya's security deposit and to reimburse
Jenya for "overpaid rent."
The Supreme Court granted the Defendants' pre-answer motion to
dismiss the amended complaint. The Court modifies the order by
denying the motion in part and reinstating the amended complaint as
asserted by Jenya, individually, and on behalf of all others
similarly situated.
The Court agrees with the Plaintiffs that the Supreme Court erred
in granting the motion with respect to the class action
allegations. The Plaintiffs adequately alleged all of the
prerequisites to class certification. They alleged that the class
of tenants consists of more than 200 members, thereby satisfying
the numerosity requirement. They also alleged that the common
issue is whether, by commingling the security deposits of their
tenants, the Defendants acted unlawfully, and that the individual
issues are the amount of the security deposit and the Defendants'
entitlement to deductions therefrom. Thus, it concludes that the
Plaintiffs sufficiently alleged that the common issues predominate.
Regarding the typicality requirement, the Plaintiffs alleged that
their claims arise from the same course of conduct and are based on
the same theories as the other class members. They also alleged
that they can fairly and adequately protect the interests of the
class inasmuch as they do not have conflicting interests with other
class members. The Plaintiffs satisfied the superiority
requirement by alleging that the damages likely suffered by each of
the tenants range between $475 and $4,500, and "the cost of
prosecuting individual actions would deprive many of the putative
class members of their day in court. Thus, the Court concludes
that the amended complaint contains sufficient allegations to state
a class action.
The Court further agrees with the Plaintiffs that the Supreme Court
erred in granting the motion with respect to the first cause of
action inasmuch as the amended complaint adequately alleges a cause
of action for conversion in violation of General Obligations Law
Section 7-103. It also agrees with the Plaintiffs that the court
erred in granting the motion with respect to the second cause of
action, alleging that defendants violated Property Conservation
Code of the City of Syracuse Section 27-125, inasmuch as that
section gives rise to a private cause of action.
The Court concludes that Property Conservation Code of the City of
Syracuse Section 27-125, which has the purpose of protecting the
tenant's security deposit from misuse and ensuring its prompt
return to the tenant, impliedly creates a private cause of action.
It concludes that the court erred in granting the motion with
respect to the Plaintiffs' third cause of action, for declaratory
and injunctive relief, and fourth cause of action, for attorney's
fees, inasmuch as those causes of action are based upon allegations
that defendants violated General Obligations Law Section 7-103 and
Property Conservation Code of the City of Syracuse § 27-125. It
rejects the Defendants' contention that the Plaintiffs abandoned
their request for attorneys' fees by failing to raise that issue in
their appellate brief.
Finally, the Court rejects the Plaintiffs' contention that the
court erred in determining that David does not have standing to
commence the action. Pursuant to the terms of the addendum to the
lease agreement, David's interest in the security deposit was
predicated on the default of Jenya, which did not occur. Thus,
Jenya's interest in the security deposit was not assigned to David,
and he therefore lacks standing to seek relief for defendants'
alleged conduct with respect to the security deposit.
The modified order is affirmed without costs.
A full-text copy of the Court's July 25, 2018 Order is available at
https://is.gd/gma4mp from Leagle.com.
THE LAW OFFICES OF E. DAVID HOSKINS, LLC, ALBANY (E. DAVID HOSKINS
OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BARCLAY DAMON LLP, SYRACUSE (DAVID G. BURCH, JR. --
dburch@barclaydamon.com -- OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
OPUS BANK: Appeal on Attorneys' Fees Award in Flores Suit Dismissed
-------------------------------------------------------------------
In the case, SANDRA D'AMATO FLORES, Plaintiff and Appellant, v.
OPUS BANK, Defendant and Respondent, 2d Civil No. B269866 (Cal.
App.), Judge Martin J. Tangeman of the Court of Appeals of
California for the Second District, Division Six, dismissed Flores'
appeal from an order awarding the fees jointly and severally
against Brown Gitt and a potential class representative, George
Lazar.
The appeal is one of three appeals by Flores: one from judgment
after a bench trial on her individual misclassification action
against Opus Bank (Los Angeles Superior Court Case No. BC514928),
and two from intermediate orders in her putative class action
against the Bank (Los Angeles Superior Court Case No. BC573070).
The first intermediate order in the class action is the subject of
the Court's opinion in 2d Civil Case No. B269866 in which it
dismisses Flores' appeal from an order granting the Bank's motion
to enforce a release of claims against George Lazar. After it
entered that order, the Bank moved for an award of attorney's fees
in the amount of $62,731.50 to be paid by Lazar and/or his attorney
of record, Brown Gitt. The request was based on a fee provision in
the release agreement. The resulting award of attorney's fees
against Lazar and Brown Gitt is the subject of the appeal.
The only parties to the release agreement were the Bank and Lazar.
Flores opposed the fee motion on the grounds that the motion to
enforce was not an action on the contract, but merely a proceeding
within a wage and hour action; that Labor Code provisions and
public policy do not permit an employer to recover fees or costs in
wage and hour actions absent bad faith; and the amount of fees
requested was unreasonable. She did not argue, as she does now,
that her counsel was not a party to the contract upon which the
Bank based its request.
The Court reduced the Bank's fee request by $8,000, and entered an
order awarding the Bank $54,691.50 in fees to be paid by Laza
and/or his attorneys of record, Brown Gitt. The record does not
show that Brown Gitt was Lazar's attorney of record or that Lazar
ever appeared in the action. In connection with the cross-motions,
Flores submitted two declarations that Lazar signed, but they do
not identify him as a party to the action.
Judge Tangeman holds that Flores does not have standing to appeal
the fee award because it does not affect her rights. Nothing in
the record demonstrates that she ever raised the issue again or
made any further effort to prosecute the class action. The Judge
does not reach the merits of Brown Gitt's objection, raised for the
first time on appeal that it was not a party to the contract upon
which the fee award was based because it is forfeited and Brown
Gitt does not appeal the fee order on its own behalf. He expresses
no opinion on the enforceability of the fee award against Lazar,
who was not a party to the proceedings and may or may not have been
served with notice of the motion for an award of attorney's fees.
Accordingly, he dismissed the appeal. The Bank is awarded costs on
appeal.
A full-text copy of the Court's July 25, 2018 Opinion is available
at https://is.gd/Ag6x4f from Leagle.com.
Brown Gitt Law Group, Cynthia E. Gitt and Thomas P. Brown, for
Plaintiff and Appellant.
Carothers DiSante & Freudenberger, Todd R. Wulffson --
twulffson@cdflaborlaw.com -- Robin E. Largent --
rlargent@cdflaborlaw.com -- and Ashley A. Halberda --
ahalberda@cdflaborlaw.com -- for Defendant and Respondent.
OPUS BANK: Flores' Appeal on Release Claims Enforcement Nixed
-------------------------------------------------------------
In the case, SANDRA D'AMATO FLORES, Plaintiff and Appellant, v.
OPUS BANK, Defendant and Respondent, 2d Civil No. B269866 (Cal.
App.), Judge Martin J. Tangeman of the Court of Appeals of
California for the Second District, Division Six, dismissed Flores'
appeal from order granting Opus Bank's motion to enforce a release
of claims against a third party, potential class representative
George Lazar.
It is one of three appeals by Flores: one from judgment after a
bench trial on her individual misclassification action against the
Bank, and two from intermediate orders in her putative class action
against the Bank. The appeal is from one of the intermediate
orders in the class action.
Flores is a former branch manager of the Bank. She filed her class
action against the Bank in February 2015. Her individual action
was already pending. In September, she conveyed to the court and
the Bank that she wished to substitute George Lazar in her place to
serve as the putative class representative. But before she amended
her complaint to do so, she and the Bank asked the trial court to
advise them whether it would enforce a release of claims that Lazar
had signed in exchange for severance pay from the Bank. The
parties stipulated that various other issues would be stayed while
cross-motions on the question would be heard.
Specifically, the parties stipulated that Flores intends to
substitute Lazar as the putative class representative, pending a
ruling from the court regarding the enforceability of the Severance
Agreement and General Release before doing so. The Bank contends
that this 'wait and see' approach is improper, and that Flores must
identify a putative class representative. Notwithstanding, the
parties have agreed that within five court days of the court's
ruling on the issues addressed at the Dec. 3, 2015 hearing, Flores
will file an amended putative class action complaint to substitute
a new putative class representative.
The court entered an order on the stipulation, and the parties
filed cross-motions. The Bank's motion asked the court to enforce
the release, preclude Lazar from participating in the action, and
dismiss the complaint for failure to identify an adequate class
representative. Flores's motion asked the court to find the release
was an unenforceable waiver of statutory employment benefits.
At the December 3 hearing, the court denied the Bank's motion to
dismiss the complaint. But it ordered that it would enforce the
release against Lazar and would not permit Lazar to act as class
representative.
Flores did not amend her complaint to substitute a new putative
class representative. Instead, she appealed from what she
characterized in her notice as the Dec. 3, 2015 Judgment after an
order granting summary judgment motion, judgment of dismissal after
an order sustaining a demurrer, and judgment enforcing
severance/general release. Division Three notified Flores that her
appeal would be dismissed if she did not file copies of the
dismissal order and notice of entry of dismissal from which she
appealed.
In April 2016, Flores's counsel prepared and obtained from the
trial court a written order granting the Bank's motion to enforce
the release, denying the Bank's motion to dismiss, and denying
Flores's motion to deny enforcement. Flores augmented the record
to include the April order.
Judge Tangeman finds that the April 2016 order is not appealable
because it is not final. The April 2016 order did not, as Flores
argues, effectively prevent her from proceeding with the class
action. The trial court did not decide whether Flores could
represent the class and did not prevent her from trying to locate
and substitute a different class representative. It expressly
reserved these issues for future proceedings.
Moreover, Flores does not cite to any further proceedings in which
she made any attempt to name another class representative or
proceed with the class action on her own behalf. Nothing in the
record supports her contention that a hunt for a new client would
be futile. Moreover, she does not have standing to appeal the
order enforcing the release because she is not a party to the
release agreement. And Lazar is not a party to the appeal.
Therefore, the Judge dismissed the appeal. The Bank is awarded its
costs on appeal.
A full-text copy of the Court's July 25, 2018 Opinion is available
at https://is.gd/cdiAzr from Leagle.com.
Brown Gitt Law Group, Cynthia E. Gitt and Thomas P. Brown, for
Plaintiff and Appellant.
Carothers DiSante & Freudenberger, Todd R. Wulffson --
twulffson@cdflaborlaw.com -- Robin E. Largent --
rlargent@cdflaborlaw.com -- and Ashley A. Halberda --
ahalberda@cdflaborlaw.com -- for Defendant and Respondent.
OVERSTOCK.COM INC: Plaintiffs Voluntarily Dismisses Class Action
----------------------------------------------------------------
Attorneys for the lead plaintiff, James Webb, filed a voluntary
dismissal in the class action securities lawsuit against
Overstock.com, Inc. (NASDAQ:OSTK) on August 7, 2018.
Prior to the dismissal, the plaintiffs were required to file an
amended complaint on August 7, 2018 as a result of a scheduling
order in the case. Rather than filing that amended complaint, the
plaintiffs elected to file the dismissal.
In response to the dismissal, Overstock.com CEO Patrick M. Byrne
said, "I commend the maturity and class of the plaintiff's class
action firm. They filed a lawsuit, but apparently when they did
enough research to realize there was nothing to it, they moved on.
Of how many law firms may that be said?"
About Overstock.com
Overstock.com, Inc. Common Shares (NASDAQ:OSTK) / Series A
Preferred (Medici Ventures' tZERO platform: OSTKP) / Series B
Preferred (OTCQX:OSTBP) -- http://www.overstock.com-- is an online
retailer based in Salt Lake City, Utah that sells a broad range of
products at low prices, including furniture, decor, rugs, bedding,
and home improvement. In addition to home goods, Overstock.com
offers a variety of products including jewelry, electronics,
apparel, and more, as well as a marketplace providing customers
access to hundreds of thousands of products from third-party
sellers. Additional stores include Pet Adoptions and
Worldstock.com dedicated to selling artisan-crafted products from
around the world. Forbes ranked Overstock in its list of the Top
100 Most Trustworthy Companies in 2014. [GN]
PENNSYLVANIA: Hepatitis C Class Action Against DOC Can Proceed
--------------------------------------------------------------
Kyla Asbury, writing for PennRecord, reports that a federal judge
on July 12 allowed portions of a class action lawsuit filed by
group of prisoners with Hepatitis C to proceed against the
Pennsylvania Department of Corrections (DOC).
Salvatore Chimenti, Daniel Leyva and David Maldonado sued the DOC,
Secretary John Wetzel, Chief Medical Director Paul Noel and two
medical services companies, for not providing proper care for
inmates with Hepatitis C.
While incarcerated, plaintiffs claim they sought treatment for
their Hepatitis C infections, but the DOC would only monitored some
patients instead of treating them.
According to court documents, the DOC treated 297 infected inmates
with DAAs out of the 7,521 diagnosed as of September 2017.
The plaintiffs argued that the DOC also chose to restrict treatment
based on cost instead of medical recommendations.
The plaintiffs alleged medical malpractice and violations of the
Eighth Amendment and Pennsylvania Constitution.
Judge John R. Padova of the U.S. District Court for the Eastern
District of Pennsylvania found most of the plaintiffs' claims
credible and denied the DOC's request for summary judgment.
However, Judge Padova did throw out Mr. Maldonado's claim, because
he is no longer an inmate. The judge also tossed Mr. Chimenti's
medical malpractice claim. In addition, Judge Padova ruled DOC did
not waive its sovereign immunity claims, which protect state
officials from many civil suits. [GN]
PETLAND INC: Diaz Suit Asserts Disabilities Act Breach
------------------------------------------------------
A class action lawsuit has been filed against Petland, Inc. The
case is titled Edwin Diaz, on behalf of himself and all others
similarly situated v. Petland, Inc., Case No. 1:18-cv-07906
(S.D.N.Y., August 29, 2018).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Petland, Inc., retails pet foods and merchandise. The Company
offers products for dogs, cats, fish, horse, bird, reptile, and
small pets. Petland serves customers worldwide.[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
PF HOMESTEAD: Ramos Sues Over Illegal SMS Ad Blasts
---------------------------------------------------
Jonnathan Ramos, individually and on behalf of all others similarly
situated, Plaintiff, v. PF Homestead, LLC, Defendant, Case No.
18-cv-23431 (S.D. Fla., August 23, 2018), seeks statutory damages
and any other available legal or equitable remedies under the
Telephone Consumer Protection Act.
PF Homestead, operating as Planet Fitness, owns and operates a
fitness center in Homestead, Florida and uses text messages as a
means of marketing its business and promoting sales to past members
who have since cancelled their membership, thereby causing
thousands of unsolicited text messages to be sent to the cellular
telephone subscribers, causing invasion of their privacy,
aggravation, annoyance, intrusion on seclusion, trespass and
conversion, says the complaint. [BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
PHARMACEUTICAL SPECIALTIES: Quinonez's Bid to Certify Class Tossed
------------------------------------------------------------------
The Hon. Terry J. Hatter, Jr., denied with prejudice the motion for
class certification filed by the Plaintiff in the lawsuit styled
BRIANNA QUINONEZ v. PHARMACEUTICAL SPECIALTIES, INC., Case No.
2:16-cv-05966-TJH-AGR (C.D. Cal.).
On August 10, 2016, Ms. Quinonez filed this putative class action
against PSI alleging that the sun protection factor of PSI's
Vanicream SPF 50+ Sunscreen was less than what was advertised on
the product's bottle. She retained attorneys Justin Farahi, Esq.,
and Raymond Collins, Esq., to represent her and the putative class,
which could exceed 500,000 members.
On May 5, 2017, Ms. Quinonez moved to certify: (1) A nationwide
class, seeking damages for breach of express warranty, unjust
enrichment, breach of the implied warranty of good faith and fair
dealing, declaratory judgment, and injunctive relief; and (2) A
California sub-class, seeking damages for unfair competition, false
advertising and a violation of the Consumer Legal Remedies Act.
On August 10, 2017, Judge Beverly Reid O'Connell denied Ms.
Quinonez's motion for class certification. Judge O'Connell found
that Farahi and Collins were inadequate to represent the putative
class due to, inter alia, their failure to: (1) Comply with the
Federal Rules of Civil Procedure and this District's Local Rules;
(2) Provide initial disclosures; and (3) Give the requisite
pre-suit notice.
Ms. Quinonez, now, moves, again, for class certification.
According to the Court's Order, nothing has changed to warrant a
deviation from Judge O'Connell's August 10, 2017, order, which
remains the law of the case. Judge Hatter notes that Ms. Quinonez
merely repeated, here, the same meritless arguments set forth in
her first motion for class certification regarding her counsels'
adequacy and failed to address opposing counsels' detailed
arguments and evidence of her counsels' inadequacies.
PORTAGE COUNTY, WI: Lieberman Granted Leave to Proceed on Claims
----------------------------------------------------------------
In the case, BRETT LIEBERMAN, individually and on behalf of all
others similarly situated, Plaintiff, v. PORTAGE COUNTY, PORTAGE
COUNTY SHERIFF'S OFFICE, PORTAGE COUNTY DISTRICT ATTORNEY'S OFFICE,
MIKE LUKAS in his individual capacity, CORY NELSON in his
individual capacity, DALE BOETTCHER in his individual capacity,
JOHN DOE PORTAGE COUNTY SHERIFF'S OFFICE PERSONNEL in their
individual capacities, and JOHN DOE PORTAGE COUNTY DISTRICT
ATTORNEY'S OFFICE PERSONNEL in their individual capacities,
Defendants, Case No. 18-cv-450-jdp (W.D. Wis.), Judge James D.
Peterson of the U.S. District Court for the Western District of
Wisconsin a) granted Lieberman leave to proceed on a claims that
the Defendants: (1) violated the Due Process Clause by transmitting
and using privileged communication that Lieberman had with his
lawyer; and (2) violated Article 1, Sections 7 and 11 of the
Wisconsin Constitution by recording and disclosing privileged
communication that Lieberman had with his lawyer; and (b) dismissed
with prejudice Defendants Portage County Sheriff's Office and the
Portage County District Attorney's Office.
The case is a proposed class action in which Lieberman alleges that
staff at the Portage County jail recorded confidential telephone
conversations that he had with his lawyers and then shared those
recordings with the district attorney's office, without obtaining
his consent to do either of those things.
Judge Peterson screened Lieberman's complaint and allowed him to
proceed on claims under the Fourth Amendment, Sixth Amendment, and
the Wisconsin Electronic Surveillance Act. But he directed him to
show cause why his claims under the Due Process Clause and the
Wisconsin Constitution and his claims against the Portage County
Sheriff's Office and the Portage County District Attorney's Office
should not be dismissed.
In his response, Lieberman concedes that his claims against the
Portage County Sheriff's Office and Portage County District
Attorney's Office should be dismissed and that he cannot obtain
damages for violations of the Wisconsin Constitution. But he says
that he should be allowed to proceed on a claim under the Due
Process Clause and on a claim under the Wisconsin Constitution for
declaratory and injunctive relief.
The Judge agrees. Although it seems unlikely that jail staff are
continuing to store recordings from several years ago, Lieberman is
entitled to an opportunity to prove that allegation. So he will
allow him to proceed on his claims under the Wisconsin Constitution
for injunctive relief. Accordingly, he granted Lieberman leave to
proceed on a claims that the Defendants: (1) violated the Due
Process Clause by transmitting and using privileged communication
that Lieberman had with his lawyer; and (2) violated Article 1,
Sections 7 and 11 of the Wisconsin Constitution by recording and
disclosing privileged communication that Lieberman had with his
lawyer. He dismissed with prejudice Defendants Portage County
Sheriff's Office and the Portage County District Attorney's
Office.
A full-text copy of the Court's July 25, 2018 Opinion and Order is
available at https://is.gd/OxCD4t from Leagle.com.
Brett Lieberman, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Brian Howard Eldridge --
beldridge@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, John
Shannon Marrese, Hart McLaughlin & Eldridge, LLC & Steven Alan
Hart, Hart McLaughlin & Eldridge, LLC.
Portage County, Mike Lukas, Cory Nelson & Dale Boettcher,
Defendants, represented by Lori Marie Lubinsky --
llubinsky@axley.com -- Axley Brynelson, LLP, Michael J. Modl --
mmodl@axley.com -- Axley Brynelson, LLP & Morgan Kathleen Stippel
-- mstippel@axley.com -- Axley Brynelson, LLP.
John Doe Portage County District Attorney's Office Personnel,
Defendant, represented by David C. Rice, Wisconsin Department of
Justice.
PRIORITY AUTOMOTIVE: Underpays Salespersons, Glassey Suit Alleges
-----------------------------------------------------------------
LYNDA GLASSEY, individually and on behalf of all others similarly
situated, Plaintiff v. PRIORITY AUTOMOTIVE, LLC; and WILLIAM GIBB,
Defendants, Case No. 18-0991 (Mass. Super., Norfolk Cty., Aug. 2,
2018) is an action against the Defendants for failure to pay
overtime and minimum wages under the Massachusetts Overtime Law,
Massachusetts Minimum Wage Law, and Massachusetts Wage Act.
Ms. Glassey was employed by the Defendants as salesperson from
January 2017 to March 2018.
Priority automotive, LLC is a domestic corporation with principal
office at North Kingston, Rhode Island. [BN]
The Plaintiff is represented by:
Brook S. Lane, Esq.
FAIR WORK, P.C.
192 South Street, Suite 50
Boston, MA 02111
Telephone: (617) 607-3260
Facsimile: (617) 488-2261
E-mail: brook@fairworklaw.com
- and -
Howard M. Brown, Esq.
BOSTON EMPLOYMENT LAW PC
1170 Beacon St, Suite 200
Brookline, MA 02446
Telephone: (617) 566-8090
Facsimile: (617) 566-8091
E-mail: hmb@bostonemploymentlaw.com
R.E.D.A. INC: Fails to Pay OT to Restaurant Workers, Aranda Says
----------------------------------------------------------------
SONIA ARANDA, individually and on behalf of all others similarly
situated, Plaintiff vs. R.E.D.A. INC.; DEMAZ INC.; RIDA I. "RICK"
ZUAITER; FATEMA M. ZUAITER, Defendants, Case No. 2:18-cv-01231-MHH
(N.D. Ala., Aug. 6, 2018) is an action against the Defendants to
recover unpaid overtime compensation under the Fair Labor Standards
Act.
Ms. Aranda was employed by the Defendants as restaurant workers
from January 2014 to January 2017.
R.E.D.A. Inc. is an Alabama corporation doing business in Shelby
County, Alabama. [BN]
The Plaintiff is represented by:
Brett W. Aaron, Esq.
E. Nathan Harris, Esq.
HARRIS & ASSOCIATES LAW, LLC
3021 Lorna Road, Suite 301
Hoover, AL 35216
Telephone: (205) 940-2233
Facsimile: (205) 822-3522
E-mail: baaron@birminghamattorney.com
nharris@birminghamattorney.com
RECOVERY SOLUTIONS: Smilowitz Files Suit Over FDCPA Breach
----------------------------------------------------------
A class action lawsuit has been filed against Recovery Solutions
Group, LLC. The case is styled as Yoel Smilowitz, individually and
on behalf of all those similarly situated v. Recovery Solutions
Group, LLC, Case No. 1:18-cv-04917 (E.D.N.Y., August 29, 2018).
The Plaintiff accuses the Defendant of violating the Fair Debt
Collection Practices Act.
Recovery Solutions is a Delaware limited liability company based in
Harrington, Delaware. Recovery Solutions was established in 2010
to address the increasing need for a national tax-based consulting
firm to provide innovative solutions for commercial business, tax
professionals, owner developers and retailers across the
country.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
SANDERS LAW, PLLC
100 Garden City PLaza, Suite 500
Garden City, NY 11530
Telephone: (516) 203-7600
Facsimile: (516) 281-7601
E-mail: csanders@sanderslawpllc.com
REGIONS BANK: Hodapp Moves for Certification of Class Under FLSA
----------------------------------------------------------------
The Plaintiff in the lawsuit titled JILL HODAPP, individually and
on behalf of all those similarly situated v. REGIONS BANK, Case No.
4:18-cv-01389-HEA (E.D. Mo.), moves the Court for an order:
(1) conditionally certifying this case as a nationwide Fair
Labor Standards Act collective action pursuant to
29 U.S.C. Section 216(b);
(2) approving the form of the Plaintiff's proposed notice;
(3) setting a 90-day notice period;
(4) authorizing the Plaintiff's counsel to mail and e-mail the
notice at the beginning of the 90-day notice period;
(5) authorizing the Plaintiff's counsel to mail and e-mail a
reminder notice 45 days prior to the notice deadline;
(6) ordering the Defendant to post the Court-approved notice
in a conspicuous location in all break/lunch rooms at
their bank branch locations; and
(7) ordering the Defendant to produce a list of all persons
employed by Defendant as non-exempt, hourly employees,
who, at any time during the three years prior to the
filing date of the complaint through the present,
performed the duties related to opening the Defendant's
bank branches on at least one day, including each person's
name, last known mailing address, last known personal
e-mail address, dates of employment, and location of
employment within 10 days of the Order.
The Plaintiff is represented by:
Matthew D. Miller, Esq.
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Highway N., Suite 402
Cherry Hill, NJ 08034
Telephone: (856) 685-7420
Facsimile: (856) 685-7417
E-mail: mmiller@swartz-legal.com
jswidler@swartz-legal.com
RELIN GOLDSTEIN: Violates Fair Debt Collection Act, Korey Claims
----------------------------------------------------------------
A class action lawsuit has been filed against Relin, Goldstein &
Crane, LLP. The case is captioned as Kalim Korey, individually and
on behalf of all others similarly situated v. Relin, Goldstein &
Crane, LLP, Case No. 1:18-cv-04900 (E.D.N.Y., August 29, 2018).
The lawsuit is brought over alleged violations of the Fair Debt
Collection Practices Act.
Relin, Goldstein & Crane, LLP, is a law firm based in Rochester,
New York. The Firm specializes in protecting creditors' rights in
collections, bankruptcy and residential foreclosure cases.
The Plaintiff appears pro se.[BN]
RIPPLE LABS: Rosen Law Firms Investigates Securities Claims
-----------------------------------------------------------
Niles Maurya, writing for CoinGape, reports that Rosen Law Firm, a
global investor-rights law firm, in its recent release, has said
that it is investigating whether Ripple Labs, Inc. violated federal
securities laws in connection with the sale of Ripple's XRP tokens,
also known as "Ripples." This investigation seems to be a follow-up
lawsuit after the case filed by Ryan Coffey who claims he lost
$551.89 trading Ripple's XRP tokens.
Rosen Law firm involvement makes the investigation serious Rosen
Law Firm represents investors throughout the globe, concentrating
its practice in securities class actions and shareholder derivative
litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for the number of securities class action
settlements in 2017. The firm has been ranked in the top 3 each
year since 2013. The case is being overlooked by Attorney Zachary
Halper and Attorney Phillip Kim which are also overlooking some
high-profile cases.
Rosen Law Firm is preparing a class action lawsuit to recover
losses suffered by purchasers of Ripple's XRP tokens. The firm has
also asked investors who have purchased Ripple's XRP tokens to
visit the firm's website and join the class action.
Ryan Coffey v/s Ripple
In May 2018, using services of law firm Taylor-Copeland Law, Ryan
Coffey (an individual on behalf of all other similarly situated)
had filed a class action suit against Ripple Labs, its wholly owned
subsidiary XRP II, and Ripple Labs' CEO Brad Garlinghouse as they
had sustained losses as a result of Ripple's sale of XRP tokens.
The complaint alleges Defendants have earned massive profits in
violation of state and federal securities laws by selling XRP to
the general public, in what is essentially a never-ending initial
coin offering. The complaint further alleges that XRP has all the
hallmarks of a security and that Ripple tries to obscure its sales
of XRP by doing so on exchanges rather than directly.
The lawsuit had mentioned,
"Unlike cryptocurrencies such as Bitcoin and Ethereum, which are
mined by those validating transactions on their networks, all 100
billion of the XRP in existence were created out of thin air by
Ripple Labs at its inception in 2013
"In other words, unlike some virtual currencies, XRP was fully
generated prior to its distribution."
20 billion XRP, or 20 percent of the total XRP supply, were given
to the individual founders of Ripple Labs, with the remaining 80
billion retained by Ripple Labs."
The lawsuit also mentioned that Ripple Inc. also reportedly offered
to bribe popular U.S.-based cryptocurrency exchanges Coinbase, Inc.
("Coinbase") and Gemini Trust Company, LLC ("Gemini") to list XRP.
In or about the fall of 2017, Ripple Labs is reported to have
offered Coinbase more than $100 million worth of XRP to start
letting users trade XRP. A Ripple executive is also reported to
have asked whether a $1 million cash payment could persuade Gemini
to list XRP in the third quarter of 2017.
Although both Gemini and Coinbase declined to pursue these
proposals, in late 2017 and early 2018 rumors that XRP would be
added to Coinbase fuelled its price increase. The allegations seem
serious and if proved correct could bring a downfall for Ripple and
XRP coins. [GN]
S & M CATERERS: Fails to Give Uniform to Servers, Hernandez Says
----------------------------------------------------------------
LEEANN HERNANDEZ, individually and on behalf of all others
similarly situated, Plaintiff v. S & M CATERERS INC., d/b/a
LEONARD'S PALAZZO, d/b/a LEONARD'S OF GREAT NECK, Defendant, Case
No. 712130/2018 (N.Y. Sup., County of Queens, Aug. 6, 2018) alleges
that the Defendant failed to supply uniform and reimburse business
expense to Plaintiff, in violation of the New York Labor Law.
The Plaintiff Hernandez was employed by the Defendants as server
from September 20, 2017 to October 20, 2017.
S&m Caterers Inc was founded in 1956. The company's line of
business includes the retail sale of prepared foods and drinks for
on-premise consumption. [BN]
The Plaintiff is represented by:
Mark Gaylord, Esq.
BOUKLAS GAYLORD LLP
400 Jericho Turnpike Suite 226
Jericho, NY 11753
Telephone: (516) 742-4949
Facsimile: (516) 742-1977
S&D TARR PITT: Faces Murillo Suit in San Joaquin, California
------------------------------------------------------------
An employment-related class action has been filed against S&D Tarr
Pitt LLC DBA Manteca Grocery Outlet. The case is captioned as
MATILDE MURILLO, individually, and on behalf of all others
similarly situated, Plaintiff v. S&D TARR PITT LLC D/B/A MANTECA
GROCERY OUTLET, Defendant, Case No. STK-CV-UOE-2018-0009490 (Cal.
Super., San Joaquin Cty., Aug. 2, 2018). The case is assigned to W.
Stephen Scott.
S & D Tarr Pitt, L.L.C. is a corporation organized and existing
under the laws of the State of California. [BN]
The Plaintiff is represented by Edwin Aiwazian, Esq.
SALRON DINER: Servers to Recover Unpaid OT Wages, Withheld Tips
---------------------------------------------------------------
Loretta Leon, Rita Trahan and Robbin Miles, individually and on
behalf of all others similarly situated, Plaintiffs, v. Salron
Diner Associates, Inc., George Hadjizacharias, Michelle
Hadjizacharias and Peter Sarka, jointly and severally, Defendants,
Case No. 18-cv-04838, (E.D. N.Y., August 24, seeks to recover
unpaid minimum wages and overtime premium pay owed pursuant to both
the Fair Labor Standards Act and the New York Labor Law including
claims for unpaid spread-of-hours premiums, unlawfully withheld
gratuities and for failure to provide proper wage notices and wage
statement violations.
Defendants operate as Sherwood Diner, a restaurant located at 311
Rockaway Turnpike, Lawrence, New York 11559 where Plaintiffs worked
servers. [BN]
The Plaintiff is represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
Email: pelton@peltongraham.com
graham@peltongraham.com
Website: www.PeltonGraham.com
SAN JOSE HEALTHCARE: Nursing Services Below Standard, Cooper Says
-----------------------------------------------------------------
MARGARETA COOPER, individually and on behalf of all others
similarly situated, Plaintiff v. SHLOMO RECHNITZ; RECHNITZ CORE GP;
SOL HEALTCARE, LLC; SAN JOSE HEALTHCARE & WELLNESS CENTER, LLC;
ROCKPORT ADMINISTRATIVE SERVICES, LLC; and DOES 1 through 250,
inclusive, Defendants, Case No. 18CV332340 (Cal. Super., Santa
Clara Cty., Aug. 1, 2018) alleges violations of the Consumer Legal
Remedies Act, and the California Health and Safety Code.
According to the complaint, the Defendants misrepresented that the
nursing services they have provided to the Plaintiff and the class,
would meet the particularized standards of the California health
laws. The Defendants intentionally concealed from the Plaintiff and
the class that the Defendants chronically understaffed the facility
with an inadequate number of staff to carry out the function of the
facility. The Defendants maximize profits from the operation of the
facility by underfunding and understaffing the facility.
San Jose Healthcare & Wellness Center, LLC is engaged in the
business of providing long-term custodial care nursing facility in
San Jose, California. [BN]
The Plaintiff is represented by:
Stephen M. Garcia, Esq.
GARCIA ARTIGLIERE & MEDBY
One World Trade Center, Suite 1950
Long Beach, CA 90831
Telephone: (562) 216-5270
Facsimile: (562) 216-5271
E-mail: edocs@lawgarcia.com
- and -
Robert S. Arns, Esq.
Julie C. Erickson, Esq.
THE ARNS LAW FIRM
515 Folsom Street
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
SANTANDER CONSUMER: Wins Prelim. Nod of Hinkle Suit Settlement
--------------------------------------------------------------
The Hon. John T. Copenhaver, Jr., preliminarily approves the
parties' settlement in the lawsuit entitled ROBIN L. HINKLE,
individually and on behalf of those similarly situated v. CASEY JOE
MATTHEWS, TIMOTHY MAY and CONNIE MAY, Husband and wife, SANTANDER
CONSUMER USA, INC., an Illinois Corporation; SAFE-GUARD PRODUCTS
INTERNATIONAL, LLC, A Georgia limited liability company; and JOHNNY
HINKLE, Case No. 2:15-cv-13856 (S.D.W. Va.).
Judge Copenhaver provisionally certifies the settlement class, and
approves hearing and administration of class notice.
The Settlement Class comprises of:
311 persons and their co-borrowers identified on Exhibit A
hereto, who purchased a GAP Addendum on a form supplied by
Safe-Guard International, LLC and bearing the name of
Safe-Guard International, LLC on said form.
Robin Hinkle is provisionally designated as the representative of
the Class. The Plaintiff's attorneys are provisionally appointed
as Class Counsel.
The Court also set these deadlines:
-- Class Notice mailed to Class Members: 30 days after entry
of this Order;
-- Plaintiff's Motions for Final Approval/Applications for
Attorney Fee/Litigation Cost and Class Representative
Awards: 14 days before the Final Approval Hearing;
-- Class Member Objection/Opt-out Deadline: 30 day after
notice is mailed;
-- Other submissions by Plaintiffs or Defendants: 14 days
before Court Approval Hearing; and
-- Final Approval Hearing: 10:00 a.m. on November 15, 2018.
The Plaintiff is represented by:
Jonathan R. Marshall, Esq.
BAILEY & GLASSER LLP
209 Capitol Street
Charleston, WV 25301
Telephone: (304) 340-2295
E-mail: jmarshall@baileyglasser.com
- and -
Howard M. Persinger, III, Esq.
PERSINGER & PERSINGER L.C.
237 Capitol Street
Charleston, WV 25301
Telephone: (304) 346-9333
E-mail: hmp3@persingerlaw.com
SEBERT LANDSCAPING: Underpays Laborers, Villanueva et al. Allege
----------------------------------------------------------------
LEOPOLDO VILLANUEVA; and ALBERTICO PASILLAS, individually and on
behalf of all other similarly situated, Plaintiffs v. SEBERT
LANDSCAPING COMPANY f/k/a GREAT IMPRESSIONS, INC.; and JEFFREY
SEBERT, individually, Defendants, Case No. 1:18-cv-05255 (N.D.
Ill., Aug. 1, 2018) is an action against the Defendants for failure
to pay overtime wages, unlawful deductions, and failure to
compensate earned and owed paid time off upon separation of
employment.
Mr. Villanueva was employed by the Defendants as laborer from the
year 2010 to December 2016. Mr. Pasillas was employed as laborer
and crew leader from April 1997 to December 2016.
Sebert Landscaping Company was founded in 1980. The company's line
of business includes providing a variety of lawn and garden
services. [BN]
The Plaintiff is represented by:
Christopher J. Williams, Esq.
Alvar Ayala, Esq.
WORKERS' LAW OFFICE, PC
53 W. Jackson Blvd, Suite 701
Chicago, IL 60604
Telephone: (312) 795-9121
- and -
Neil Kelley, Esq.
FARMWORKER & LANDSCAPER
ADVOCACY PROJECT
33 N LaSalle Suite 900
Chicago, IL 60602
Telephone: (312) 784-3541
SHARKNINJA OPERATING LLC: Wallace Sues Over Defective Blender
-------------------------------------------------------------
Krystal Wallace, individually, and on behalf of a class of
similarly situated individuals, Plaintiff, v. Sharkninja Operating
LLC, Defendant, Case No. 18-CV-05221, (N.D. Cal., August 24, 2018),
seeks redress for violations of Unfair Competition Law, California
Business & Professions Code, California's Consumers Legal Remedies
Act, and for breach of implied warranty pursuant to the
Song-Beverly Consumer Warranty Act and the Magnuson-Moss Warranty
Act.
Wallace purchased a Ninja Blender with a stacked blade assembly
designed, manufactured, marketed, distributed, sold and warranted
by SharkNinja Operating LLC. The said blade assembly failed to lock
in place inside the pitchers and, consequently, dislodges during
use and cleaning, exposing consumers to unexpected and sudden
direct contact with the sharp blades, notes the complaint. [BN]
Plaintiff is represented by:
Jordan L. Lurie, Esq.
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
Email: Jordan.Lurie@capstonelawyers.com
Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
SHELBY COUNTY: Court OKs Voluntary Dismissal Bid of Williams Suit
-----------------------------------------------------------------
The United States District Court for the Eastern District of
Arkansas, Jonesboro Division, granting Parties' Joint Voluntary
Dismissal of the case captioned KARLEY WILLIAMS, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, v. SHELBY
COUNTY HEALTHCARE CORPORATION d/b/a REGIONAL MEDICAL CENTER and
d/b/a REGIONAL ONE HEALTH; and AVECTUS HEALTHCARE SOLUTIONS, LLC,
Defendants. No. 2:18CV00070 JM. (E.D. Ark.).
Pending is the parties joint motion for voluntary dismissal
pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii). The motion is granted.
This action has not been certified as a class action and the
Plaintiff's dismissal of her individual claims will not deny the
unknown putative class members' rights to seek redress.
Accordingly, the Plaintiff's complaint and all causes of action
against these defendants is dismissed with prejudice. The Clerk is
directed to close the case.
A full-text copy of the District Court's August 20, 2018 Order is
available at https://tinyurl.com/y857cpa8 from Leagle.com
Karley Williams, Individually and on behalf of all others similarly
situated, Plaintiff, represented by Brandon W. Lacy , Lacy Law
Firm, Donald E. Knapp, Jr. , Knapp Lewis, & Jeffrey Owen Scriber ,
Attorney at Law.
Shelby County Healthcare Corporation, doing business as Regional
One Health, Defendant, represented by John I. Houseal, Jr. --
jhouseal@glanker.com -- Glankler Brown, PLLC & John Irving Houseal,
III , Easley & Houseal, PLLC.
Avectus Healthcare Solutions LLC, Defendant, represented by Jeffrey
W. Puryear -- jpuryear@wpmfirm.com -- Womack Phelps Puryear
Mayfield & McNeil, P.A., Mark Alan Mayfield --
mmayfield@wpmfirm.com -- Womack Phelps Puryear Mayfield & McNeil,
P.A. & Ryan M. Wilson -- rwilson@wpmfirm.com -- Womack Phelps
Puryear Mayfield & McNeil, P.A.
SINCLAIR BROADCAST: Intends to Vigorously Defend Class Action
-------------------------------------------------------------
Dade Hayes, writing for Deadline, reports that Sinclair Broadcast
Group said it continues to pursue its $3.9 billion acquisition of
Tribune Media despite a major regulatory setback and new lawsuits
claiming employees jumped the gun on the deal before it entered its
current limbo state.
The No. 1 local TV chain delivered the comments along with strong
second-quarter financial results. It reported diluted earnings per
share of 27 cents, a 37% decline from the same period a year ago
but well ahead of Wall Street forecasts. Total revenue gained
nearly 12% to $730.1 million.
"In regards to the acquisition of Tribune Media Co., we are working
with them to analyze approaches to the regulatory process that are
in the best interest of our companies, employees and shareholders,"
CEO Chris Ripley said in the company's earnings release.
Ripley and other executives discussed the results with Wall Street
analysts in a conference call, declining to address specific
Tribune questions while also asserting a healthy overall M&A
appetite regardless of the Tribune outcome. Speculation has swirled
that Tribune could walk away from the deal and find a new buyer.
The deadline for completing the deal was technically on
Aug. 8.
The merger, which would create a local TV behemoth reaching nearly
two-thirds of U.S. households, hit the rocks earlier this summer.
FCC Chairman Ajit Pai flagged "serious concerns" and led a
unanimous vote to refer the merger review to an administrative law
judge. Historically, few mergers have emerged intact from such a
referral. The commission objected to the so-called "sidecar" deals
Sinclair had set up in order to divest of stations and comply with
FCC limits on station ownership. Those divestitures would have left
the stations in semi-related entities over which Sinclair would
still exercise control, the FCC said, in violation of the rules.
More recently, the company has also been targeted with three
federal class-action lawsuits over alleged fixing of ad prices,
with sales teams from Sinclair and Tribune accused of colluding
before the merger got final approval. "The company believes these
class action lawsuits are without merit and intends to vigorously
defend against the allegations," the earnings release said.
Ripley said the remainder of 2018 will "continue to be robust,
underlined by increasing distribution revenues and strong political
advertising spend." The mid-term elections, he said, "are expected
by many to have the most spending in U.S. history, with broadcast
television a primary beneficiary." [GN]
SOUTHWEST AIRLINES: Judge Affirms Class Action Attorney Fee Award
-----------------------------------------------------------------
Amanda Bronstad, writing for Law.com, reports that the first trial
over whether Monsanto's Roundup causes cancer wrapped up on Aug. 7,
and plaintiff's lawyers weren't shy about what they wanted: $412
million. A New Jersey Supreme Court ruling set the bar higher for
admitting expert evidence. And the Seventh Circuit came out with
some key decisions in class actions.
A Big Ask in the Roundup Trial
A plaintiff's lawyer in the first trial alleging Monsanto's Roundup
caused cancer asked a San Francisco jury on Aug. 7 to come back
with a $412 million verdict. Ms. Bronstad covered closing arguments
by plaintiff's attorney R. Brent Wisner (Baum Hedlund) and George
Lombardi (Winston & Strawn), via Courtroom View Network's broadcast
of the trial.
Jurors were expected to begin deliberations on Aug. 8.
Lombardi insisted that 40 years of studies and regulatory reviews
concluded there's no link between the primary chemical in
Monsanto's weed killer and plaintiff's cancer. Mr. Wisner,
insisting otherwise, asked jurors to award $39 million in
compensatory damages and $373 million in punitive damages -- a
verdict that "will be heard around the world."
So how did he come up with that figure? The compensatory damages
include more than $2.2 million in economic expenses for the
plaintiff, a former school groundskeeper diagnosed with
non-Hodgkin's lymphoma after spraying weeds with Monsanto products
for two years. Punitive damages are based on the $62 million that
Monsanto makes each year in interest multiplied by the six years
that the plaintiff was expected to live beyond his first exposure
in 2014.
A Slam Dunk for Daubert
The New Jersey Supreme Court issued its long-awaited decision on
whether plaintiffs' experts in more than 2,100 lawsuits over
anti-acne drug Accutane should have been excluded from a mass tort
case against the drugmaker.
The court's answer? Yes.
The unanimous ruling is a big loss for plaintiffs lawyers Bruce
Greenberg of Lite DePalma and David Buchanan of Seeger Weiss, who
had managed to win last year on appeal. But it's a victory for
Hoffmann-La Roche and its lawyer, Paul Schmidt of Covington &
Burling. It's also a win for business groups that filed amicus
briefs asking the court to shift New Jersey's expert admissibility
standard to the stricter but more widely used Daubert standard.
Ms. Bronstad reached out to Edward Fanning -- efanning@mccarter.com
-- of McCarter & English, who represented those business groups. He
told Ms. Bronstad the decision is a "huge turning point."
"The perception that New Jersey law on expert admissibility
standards was weaker than the Daubert standard, combined with New
Jersey being home to so many pharmaceutical and medical technology
companies, had made this state a magnet for mass tort litigation.
This landmark decision sends a clear message that our trial courts
need to apply much more scrutiny to questions of expert
admissibility."
Class Notes
Since Richard Posner abruptly retired last year, the U.S. Court of
Appeals for the Seventh Circuit has been pretty quiet on the class
action front -- until now.
In a pair of rulings, the appeals court outlined its views on
attorney fees. An Aug. 2 ruling weighed in on one of the most
heated debates in class action law: The practice of objector
lawyers dropping their appeals in exchange for fees. The ruling,
which reversed an order that had rejected fees to objector counsel
Ted Frank of the Center for Class Action Fairness in a settlement
over Southwest Airlines drink vouchers.
CCAF senior attorney Melissa Holyoak told me: "Attorneys' fees
should always be based upon and proportionate to the relief
actually received by class members -- that's something we fight for
on a regular basis."
Then, in a July 27 ruling, the Seventh Circuit affirmed a $73,000
fee award to plaintiffs lawyers who had sought $233,000 in a class
action settlement. The panel based its award on the $220,000 in
claims.
Here's why it's important, according to Loeb & Loeb's Laura
McNally:
"This ruling strikes a blow against attorney's fee gamesmanship in
class actions. Class counsel have long been obtaining high fees
based on a percentage of a hypothetical maximum claim payout,
knowing that in all reality, the number of actual claims will never
approach that maximum claim payout. This structure has allowed
class counsel to obtain a third or more of a fantastical
extra-large pie, knowing full well that the true pie will end up
being more like the size of a MoonPie."
P.S.: For more on what Judge Posner has been up to in his
post-bench career, check out this update from my colleague Jenna
Greene at Litigation Daily:
Fourth Circuit Thumbs Its Nose at Posner and His Fight for Pro Se
Justice
Who Got the Work?
Hughes Hubbard & Reed represents Denmark's taxing authority, SKAT,
in its bid to coordinate 140 lawsuits it filed to recoup $2.1
billion allegedly lost in a tax fraud scheme. On July 23, New York
partner Sarah Cave filed a motion before the U.S. Judicial Panel on
Multidistrict Litigation to coordinate the lawsuits before U.S.
District Judge Lewis Kaplan in the Southern District of New York.
She was joined on the brief by New York partners William Maguire,
Marc Weinstein, Neil Oxford, and counsel John McGoey.
A bushel of fees: With the Syngenta corn settlement worth $1.5
billion, it's no surprise that lawyers would ask for a large fee
award—$500 million to be exact. But it's starting to look like
that still won't be enough to go around. As Ms. Bronstad reported,
plaintiffs' attorney Mikal Watts filed a motion for $150 million
for his firm, Watts Guerra, which represented 57,000 farmers with
contingency fee contracts. Lead plaintiffs lawyers in the MDL have
earmarked the fees for other firms. In an email, Watts was quick to
point out that his request wasn't just for his firm: "It is for 332
different law firms who are seeking enforcement of their private
fee contracts with over 57,000 individuals." According to court
documents, those firms, mostly small businesses along the Corn
Belt, spent most of their time communicating with their clients and
going to town halls with Watts to discuss the case. In
declarations, they stated that Watts Guerra was lead counsel.
Razorback Review: The Arkansas legislature is looking into a $4.1
million referral payment at the heart of a special master's report
in securities class action settlements with State Street. According
to this Law.com story, Arkansas legislators have contacted the
special master, Gerald Rosen. Rosen recommended slashing $10
million from a $75 million fee request, in large part due to an
undisclosed payment that one of the plaintiffs firms, Labaton
Sucharow, made to a Texas lawyer -- ostensibly to secure an
Arkansas pension fund as a client in the case.
Unlucky Number: The U.S. Judicial Panel on Multidistrict Litigation
had 13 cases to consider at the July hearing in Santa Fe -- but
granted transfer only in three cases. That's a large number of
rejections. But, in recent years, the panel has denied more
requests and raised more questions during oral arguments. Among
those it denied was the American Bar Association's petition to
coordinate three accreditation lawsuits (see here). Among those the
panel transferred were 100 lawsuits over Merck's shingle vaccine,
Zostavax. [GN]
SSA COOPER: Faces Class Action Over Unpaid Overtime Wages
---------------------------------------------------------
David Wren, writing for The Post and Courier, reports that a
company that hires stevedores to work at the Port of Charleston is
facing a proposed class-action lawsuit over allegations that it
fails to pay overtime wages to employees, months after settling a
similar case in federal court.
Nearly two dozen current and former employees of SSA Cooper filed a
lawsuit on Aug. 3 claiming the stevedoring company violates federal
labor laws by failing to pay them 1½ times their regular pay for
working beyond 40 hours per week.
The workers say the company has misclassified them as executives
who are exempt from overtime pay "to save on labor costs and make
higher profits," according to court documents.
"These stevedores sometimes work 75 hours a week in the heat and
the cold and in the hull of ships," said Marybeth Mullaney, a Mount
Pleasant lawyer representing the workers. "In my opinion, I think
these guys are being exploited."
SSA Cooper has not filed a response to the allegations. A spokesman
did not respond to a request for comment.
The company -- a joint partnership between SSA Marine and Cooper/T.
Smith, which has operations at seaports nationwide -- is one of
three companies hired by shipping lines to provide stevedores at
the Port of Charleston. Those stevedores supervise International
Longshoremen's Association workers who load and unload ships,
secure cargo containers and drive vehicles at the port's
terminals.
SSA Cooper settled a separate class-action lawsuit filed last year
by Charleston area stevedores, agreeing in December to pay $694,553
to 25 workers and Ms. Mullaney, who represented them in the case.
Ms. Mullaney said that while SSA Cooper paid the settlement in last
year's case, the company did not change its policies and continued
to withhold overtime pay to workers.
The most recent lawsuit could have national implications because
one of the stevedores worked at SSA Cooper's sites in Houston and
Port Arthur, Texas. While the rest of the stevedores are from the
Charleston area, Ms. Mullaney said she might seek to include SSA
Cooper employees from other parts of the country in the class
action "depending on how the litigation proceeds." A final decision
would be up to a judge, she said.
The lawsuit was filed in federal court in Charleston. No hearing
dates have been scheduled. [GN]
STEINHOFF INT'L: Law Firms to Launch Class Action in South Africa
-----------------------------------------------------------------
Warren Thompson, writing for BusinessDay, reports that a consortium
of law firms has applied to launch a class-action lawsuit in the
South Gauteng high court on behalf of investors in Steinhoff,
seeking damages that could potentially run to as much as R185bn.
The lawsuit brings claims on behalf of all investors who purchased
Steinhoff shares in the period from at least June 26 2013 up to the
date former CEO Markus Jooste resigned, on December 5 2017. The
2013 date relates to the initial purchase of European furniture
retailer Kika-Leiner by Genesis Investment Holdings, a Steinhoff
off-balance sheet entity. Steinhoff, which initially bought
Kika-Leiner's property assets, later acquired the retail operations
too.
The application names as defendants the Dutch incorporated
Steinhoff International Holdings NV; its South African predecessor,
Steinhoff International Holdings; as well as three banks and the
auditors that assisted Steinhoff with its Frankfurt listing. These
are Absa, Germany's Commerzbank and UK-based Standard Chartered
Bank, as well as auditors Deloitte and Rödl & Partner.
More than 30 current and former directors of Steinhoff and its
subsidiaries have been named as respondents, including former
Jooste, former CFO Ben la Grange, former chair Christo Wiese, as
well as Steinhoff's current CEO, Danie van der Merwe.
The application is brought by Johannesburg-based class-action law
firm LHL Attorneys, Dutch firm Bynkershoek Dispute Resolution, and
German firm TILP Litigation.
The case adds to a number legal actions that have been brought
against Steinhoff and related parties in recent months, including a
class action in Germany brought by TILP, and a Dutch investor
rights group suing Deloitte for damages in the Netherlands on
behalf of Steinhoff shareholders.
At least R187bn was wiped off the value of Steinhoff after
accounting irregularities came to light in December 2017, making it
one of the biggest corporate meltdowns in SA's history.
Zain Lundell, a member of LHL Attorneys, says there is a specific
reason why SA has been chosen for the class action. "SA has a
well-established and reliable legal system with favourable
legislation that we believe will allow aggrieved investors to be
fairly compensated for their losses. Moreover, SA's true opt-out
class-action procedure is superior to the proceedings available in
the Netherlands and Germany and, thus, will contribute to the
protection of all shareholders, large and small alike."
As opposed to Germany and the Netherlands that require investors to
opt in, all investors in SA are automatically a part of the
class-action unless they choose to opt out.
The effort to recover damages warrants the cross-jurisdictional
effort by the three law firms, Mr. Lundell says. "Steinhoff was
originally incorporated in SA, then the Netherlands, and was listed
on the Frankfurt Stock Exchange as well as the JSE. So, we are
seeking to provide a seamless solution to investors regarding
claiming damages."
LHL Attorneys was the first law firm to seek damages on behalf of
people who contracted listeriosis from Tiger Brands' processed meat
products and is now jointly prosecuting the listeriosis
class-action suit with Richard Spoor. [GN]
SWISSPORT SA: Underpays to Ramp Agents, Garcia and Miranda Claim
----------------------------------------------------------------
JOSE ALVARADO GARCIA and CARLOS MIRANDA, individually and on behalf
of all others similarly situated, Plaintiffs v. SWISSPORT SA, LLC;
and DOES 1 through 100, inclusive, Defendants, Case No. BC716020
(Cal. Super., Los Angeles Cty., Aug. 3, 2018) is an action against
the Defendants for unpaid regular hours, overtime hours, minimum
wages, wages for missed meal and rest periods.
The Plaintiffs were employed by the Defendants as ramp agents.
Swissport SA, LLC is a corporation organized and existing under the
laws of the State of Delaware. The Company is engaged in the
airline industry. [BN]
The Plaintiffs are represented by:
Andranik Tsarukyan, Esq.
Armen Zenjiryan, Esq.
REMEDY LAW GROUP LLP
610 E. Providencia Ave., Unit B
Burbank, CA 91501
Telephone: (818) 422-5941
E-mail: Tsarukyan@remedylawgroup.com
Armen.Zenjiryan@remedylawgroup.com
- and –
Mark Balali, Esq.
9465 Wilshire Blvd., Suite 300
Beverly Hills, CA 90212
Telephone: (310) 431-9774
E-mail: Mark@BalaiLaw.com
TAX EASE: Brown Appeals W.D. Kentucky Decision to Sixth Circuit
---------------------------------------------------------------
Plaintiffs Laura Branson, James Brown, Philip Leigh, Denise Puckett
and Third Century Development Corporation filed an appeal from a
court ruling in their lawsuit titled James Brown, et al. v. Tax
Ease Lien Servicing, LLC, et al., Case No. 3:15-cv-00208, in the
U.S. District Court for the Western District of Kentucky at
Louisville.
As previously reported in the Class Action Reporter, the Plaintiffs
sought certification of a class of:
"all persons who paid money to the defendants in connection
with a certificate of delinquency which included 1) charges
for prelitigation attorney's fees based upon letters bearing
the signature of Billy W. Sherrow and/or 2) title search
fees including charges from BGA".
The appellate case is captioned as James Brown, et al. v. Tax Ease
Lien Servicing, LLC, et al., Case No. 18-5909, in the United States
Court of Appeals for the Sixth Circuit.[BN]
Plaintiffs-Appellants JAMES BROWN, PHILIP LEIGH, DENISE PUCKETT,
Executrix of Theresa Cambron, on behalf of themselves and all
others similarly situated, LAURA BRANSON and THIRD CENTURY
DEVELOPMENT CORPORATION are represented by:
John H. Dwyer, Jr., Esq.
ZIELKE LAW FIRM
462 S. Fourth Avenue, Suite 1250
Louisville, KY 40202
Telephone: (502) 589-4600
E-mail: jdwyer@zielkefirm.com
Defendants-Appellees TAX EASE LIEN SERVICING, LLC; TAX EASE LIEN
INVESTMENTS 1, LLC; BLUE GRASS ABSTRACT, LLC; LIEN DATA SERVICES,
LLC; PHIL MIGICOVSKY; TAX EASE HOLDINGS, LLC, fka Tax Ease L.P.;
TAX EASE FUNDING TWO, LLC; BLUESHINE, LLC; and TREY GULLEDGE are
represented by:
Chadwick A. McTighe, Esq.
STITES & HARBISON, PLLC
400 W. Market Street, Suite 1800
Louisville, KY 40202
Telephone: (502) 587-3400
E-mail: cmctighe@stites.com
Defendant-Appellee RICHARD ERIC CRAIG is represented by:
William B. Baustien, Esq.
WEBER & ROSE, P.S.C.
471 W. Main Street, Suite 400
Louisville, KY 40202
Telephone: (502) 589-2200
E-mail: bbaustien@weberrose.com
Defendants-Appellees SHERROW, SUTHERLAND & ASSOCIATES, PSC, and
BILLY W. SHERROW are represented by:
Gregory A. Napier, Esq.
TROUTMAN & NAPIER, PLLC
4740 Firebrook Boulevard
Lexington, KY 40513
Telephone: (859) 253-0991
E-mail: gnapier@troutmannapier.com
TENNECO INC: Monteverde & Associates Files Class Action
-------------------------------------------------------
Monteverde & Associates PC on Aug. 7 disclosed that it has filed a
class action lawsuit in the United States District Court for the
District of Delaware, Case No.1:18-cv-01052-UNA, on behalf of
shareholders of Tenneco Inc. ("Tenneco" or the "Company") (NYSE:
TEN) who have been harmed by Tenneco's and its board of directors'
alleged violations of Sections 14(a) and 20(a) of the Securities
Exchange Act of 1934 in connection with the Company's proposed
acquisition of Federal-Mogul LLC ("Federal-Mogul") (the
"Transaction").
Pursuant to the Membership Interest Purchase Agreement Tenneco
entered into with Federal-Mogul, American Entertainment Properties
Corp. ("AEP"), and Icahn Enterprises L.P. ("IEP"), Tenneco has
agreed to pay AEP $800 million in cash (subject to increase if
Tenneco undertakes a primary offering of common stock prior to the
closing of the Transaction) and issue and deliver to AEP an
aggregate of 29,444,846 shares of Tenneco common stock (subject to
reduction if Tenneco undertakes a primary offering of Common Stock
prior to the closing of the Transaction) in order to acquire
Federal-Mogul. The complaint alleges that the proxy statement
regarding the Transaction fails to disclose material facts
concerning the Transaction, thereby preventing shareholders from
casting an informed vote for or against the Transaction.
Specifically, the complaint alleges that the proxy statement omits
and/or misrepresents material information concerning, among other
things, certain financial projections related to the Transaction
and the valuation analyses performed by Tenneco's financial advisor
Barclays Capital Inc.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 7, 2018. Any member of the putative
class may move the Court to serve as lead plaintiff through counsel
of their choice, or may choose to do nothing and remain an absent
class member. If you wish to discuss this action, or have any
questions concerning this notice or your rights or interests,
please contact:
Click here for more information:
https://monteverdelaw.com/case/tenneco. It is free and there is no
cost or obligation to you.
Monteverde & Associates PC is a national class action securities
and consumer litigation law firm committed that has recovered
millions of dollars and is committed to protecting shareholders and
consumers from corporate wrongdoing. Monteverde & Associates PC
lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions, whereby they protect
investors by recovering money and remedying corporate misconduct.
Mr. Monteverde, who leads the legal team at the firm, has been
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013 and 2017, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017 Top Rated Lawyer.
Contact:
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Ave, Suite 4405
New York, NY 10118
United States of America
jmonteverde@monteverdelaw.com
Tel: (212) 971-1341 [GN]
TITAN TRANSFER: Ratliff Sues over Background Checks
---------------------------------------------------
JEROME RATLIFF, JR., individually and on behalf of all others
similarly situated, the Plaintiff, v. TITAN TRANSFER, INC., a
Tennessee corporation, the Defendant, Case No. 2018CH10717 (Ill.
Cir. Ct., Cook Cty., Aug. 23, 2018), alleges that Defendant has
continually failed to follow reasonable procedures to ensure that
Plaintiff and the Class members are provided with their
statutorily-mandated right to the information contained in their
consumer reports.
According to the complaint, Titan is a self-proclaimed leader in
the trucking and transportation industry. Seeking to expand its
fleet, Titan encourages consumers to apply for driving positions by
visiting its website and completing an online application. As part
of its hiring process, Titan pulls applicants' background reports
from HireRight, LLC -- a leading pre-employment screening provider
-- to identify, among other things, their names, social security
numbers, dates of birth, previous employers, work records, and
trucking accident or incident histories. Using the information
contained in these reports, Titan then decides whether to continue
the hiring process or not.
Given the impact that these reports have on an individual's access
to employment, Congress enacted the Fair Credit Reporting Act,
specifically to protect consumers from the ill effects of erroneous
credit reporting and provide them with a means of ensuring that the
information being distributed about them is accurate and updated.
Titan Transfer provides trucking services in the United States and
Canada. It offers supply chain solutions, such as logistics,
warehousing and cross-docking.[BN]
The Plaintiff is represented by:
Adam C. York, Esq.
Michael Aschenbrener, Esq.
KAMBERLAW LLC
220 N Green St.
Chicago, IL 60607
Telephone: 212 920 3072
Facsimile: 212 202 6364
E-mail: ayork@kamberlaw.com
masch@kamberlaw.com
TRANSWORLD SYSTEMS: Removes Hoffman Suit to W.D. Washington
-----------------------------------------------------------
The Defendants in the case of ESTHER HOFFMAN; SARAH DOUGLASS;
ANTHONY KIM; IL KIM; AND DARIA KIM, individually and on behalf of
all others similarly situated, Plaintiff v. TRANSWORLD SYSTEMS
INCORPORATED; PATENAUDE AND FELIX, APC; MATTHEW CHEUNG; JANE DOE
CHEUNG; and DOES 1-10, Defendants, filed a notice to remove the
lawsuit from the Superior Court of the State of Washington, County
of Washington (Case No. 18-00002-15483-9 SEA) to the U.S. District
Court for the Western District of Washington on August 2, 2018,
2018, and assigned Case No. 2:18-cv-01132-JCC (W.D. Wash., Aug. 2,
2018). The case is assigned to Judge John C Coughenour.
Transworld Systems Inc. provides accounts receivable, debt
recovery, and past due accounts services for businesses, medical
companies, dental companies, education facilities, Fortune 500
companies, and small businesses in the United States and
internationally. The company has strategic alliances with
athenahealth, eClinicalWorks, LeonardoMD, MDeverywhere, QuickBooks,
Sikka Software Corporation, and TotalMD. Transworld Systems Inc.
was founded in 1970 and is based in Santa Rosa, California. [BN]
The Plaintiffs are represented by:
Amanda Martin, Esq.
NORTHWEST CONSUMER LAW CENTER
214 E. Galer Street, Suite 100
Seattle, WA 98102
Telephone: (206) 805-0989
E-mail: amanda@nwclc.org
- and -
Christina Latta Henry, Esq.
HENRY & DEGRAAFF, PS
150 Nickerson Street, Suite 311
Seattle, WA 98109
Telephone: (206) 330-0595
Facsimile: (206) 400-7609
E-mail: chenry@HDM-legal.com
- and -
Guy William Beckett, Esq.
BERRY & BECKETT, PLLP
1708 Bellevue Ave.
Seattle, WA 98122-2017
Telephone: (206) 441-5444
E-mail: gbeckett@beckettlaw.com
- and -
Samuel R Leonard, Esq.
LEONARD LAW
1001 4th Avenue Suite 3200
Seattle, WA 98154
Telephone: (206) 486-1176
Facsimile: (206) 458-6028
E-mail: sam@seattledebtdefense.com
The Defendants are represented by:
Damian Patrick Richard, Esq.
SESSIONS FISHMAN NATHAN & ISRAEL, LLP (CA)
1545 Hotel Circle South, Suite 150
San Diego, CA 92108
Telephone: (619) 222-1243
E-mail: drichard@sessions-law.biz
- and -
Matthew Brian Cheung, Esq.
PATENAUDE & FELIX APC
19401 40th Ave W Suite 280
Lynnwood, WA 98036
Telephone: (800) 832-7675
E-mail: matthew.cheung@pandf.us
- and -
Marc Rosenberg, Esq.
LEE SMART PS INC
701 Pike Suite, Suit 1800
Seattle, WA 98101-3929
Telephone: (206) 624-7990
E-mail: mr@leesmart.com
ULTA INC: Fails to Pay Proper Wages, Rezendes Suit Alleges
----------------------------------------------------------
DANIELLE REZENDES, individually and on behalf of all others
similarly situated, Plaintiff v. ULTA, INC.; ULTA SALON, COSMETICS
& FRAGRANCE, INC.; and DOES 1 through 50, inclusive, Defendants,
Case No. RG18915413 (Cal. Super., Alameda Cty., Aug. 1, 2018) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
The Plaintiff Rezendes was employed by the Defendants as ah hourly,
non-exempt employee.
Ulta, Inc. is a Delaware corporation. The Company offers cosmetics,
fragrance, skin, hair care products and salon services. [BN]
The Plaintiff is represented by:
Matthew J. Matern, Esq.
Joshua D. Boxer, Esq.
MATERN LAW GROUP, PC
1230 Rosecrans Avenue, Suite 200
Manhattan Beach, CA 90266
Telephone: (310) 531-1900
Facsimile: (310) 531-1901
E-mail: mmatern@maternlawgroup.com
jboxer@maternlawgroup.com
- and –
Corey B. Bennett, Esq.
MATERN LAW GROUP, PC
One Market Street, Suite 3676
San Francisco, CA 94105
Telephone: (855) 888-2651
Facsimile: (310) 531-1901
E-mail: cbenett@maternlawgroup.com
UNITED STATES: Catholic Charities Seeks to Cert. Class in "Gatore"
------------------------------------------------------------------
Plaintiff Catholic Charities moves the Court to certify the case
captioned RICA GATORE, et al. v. U.S. DEPARTMENT OF HOMELAND
SECURITY, Case No. 1:15-cv-00459-RBW (D.D.C.), as a class action
pursuant to Rule 23 of the Federal Rules of Civil Procedure.
The proposed class is as stated in the amended complaint:
"all persons who, since March 30, 2009, have made, or will
make during the pendency of this lawsuit, a FOIA request for
the Assessment of their asylum officer, but were provided no
portion of the Assessment."
Catholic Charities contend that the DHS has a policy and practice
of never providing the reasonably segregable portions of
Assessments written by asylum officers, in response to the Freedom
of Information Act requests by asylum applicants.
The Plaintiffs are represented by:
David L. Cleveland, Esq.
CATHOLIC CHARITIES
924 G Street, NW
Washington, DC 20001
Telephone: (202) 772-4345
Facsimile: (202) 386-7032
E-mail: 1949.david@gmail.com
UNITED STATES: Gatore Moves to Certify Class in Suit v. DHS
-----------------------------------------------------------
Individual Plaintiffs Rica Gatore, Isam Al Timemy, Georgine
Lumonika, Innocent Shaka, Charly Ayessa, Aminata Ouedraogo, Herve
Shaka and Veronica Carolina Lemus Miranda move the Court to certify
their case entitled RICA GATORE, et al. v. U.S. DEPARTMENT OF
HOMELAND SECURITY, Case No. 1:15-cv-00459-RBW (D.D.C.), as a class
action, under Rule 23(b)(3) of the Federal Rules of Civil
Procedure.
The proposed class is as stated in the amended complaint:
"all persons who, since March 30, 2009, have made, or will
make during the pendency of this lawsuit, a FOIA request for
the Assessment of their asylum officer, but were provided no
portion of the Assessment."
The Plaintiffs assert that the DHS has a policy and practice of
never providing the reasonably segregable portions of Assessments
written by asylum officers, in response to Freedom of Information
Act requests by asylum applicants. They contend that the DHS has
the policy and practice of not even attempting to determine if
there are segregable portions.
Certification of the proposed class will advance the broad remedial
purposes of FOIA, the Plaintiffs tell the Court. They also ask the
Court to name the Individual Plaintiffs as class representatives.
The Plaintiffs are represented by:
David L. Cleveland, Esq.
CATHOLIC CHARITIES
924 G Street, NW
Washington, DC 20001
Telephone: (202) 772-4345
Facsimile: (202) 386-7032
E-mail: 1949.david@gmail.com
UNITED STATES: Himyari Granted Leave to File Amended Complaint
--------------------------------------------------------------
The Hon. Arthur J. Tarnow granted the Motion for Leave to file
Amended Complaint filed by the Plaintiffs in the lawsuit styled AL
HIMYARI, ET AL. v. CISSNA, ET AL., Case No. 2:18-cv-10242-AJT-SDD
(E.D. Mich.).
The Plaintiffs' Motion to Certify Class, Defendants' Motion to
Dismiss, and Defendants' Motion to Extend are terminated as moot.
Lee Cissna is the director of the U.S. Citizenship and Immigration
Services.
Judge Tarnow notes that once an amended complaint is filed, the
original complaint "is a nullity, because an amended complaint
supersedes all prior complaints," citing B & H Med., L.L.C. v. ABP
Admin., Inc., 526 F.3d 257, 268 n.8 (6th Cir. 2008) (quoting Drake
v. City of Detroit, 266 Fed. App'x 444, 448 (6th Cir. 2008)).
Thus, Judge Tarnow explains, the motions associated with the
Complaint will be rendered moot, citing Brent v. Wayne Cnty. Dep't
of Human Servs., No. 11-10724, 2011 WL 5975265, *12 fn.13 (E.D.
Mich. Nov. 28, 2011).
UNITED STATES: More Counties Joining PILT Class Action
------------------------------------------------------
Route Fifty reports that PILT funding, or payments in lieu of
taxes, is relied on by many county governments -- especially in
western states -- that have considerable acreage of non-taxable
federal land in their jurisdictions. It doesn't usually make much
news beyond state and local finance wonks, but there's a
class-action lawsuit worth noting. More counties are joining
litigation led by Kane County, Utah alleging the federal government
isn't paying enough PILT funding. Mesa County, Colorado and
Campbell County, Wyoming are among the jurisdictions that are
joining the PILT funding legal fight. "We're stubborn and
hard-headed and we feel like they arbitrarily decided not to pay
the full amount," according Kane County Commissioner Jim Matson.
Kane County initiated the litigation against the federal government
in June 2017, which was certified as a class action a few months
ago. Mesa County officials argue that the feds owe their
jurisdiction at least $100,000; in Campbell County, officials are
looking to recoup $25,000 in PILT funding they say they're owed.
[GN]
UNITED STATES: Sajous Appeals S.D.N.Y. Ruling to Second Circuit
---------------------------------------------------------------
Plaintiff and Appellee-Cross-Appellant Augustin Sajous filed an
appeal from a court ruling in the lawsuit entitled Sajous v.
Decker, et al., Case No. 18-cv-2447, in the U.S. District Court for
the Southern District of New York (New York City).
The appellate case is captioned as Sajous v. Decker, et al., Case
No. 18-2591, in the United States Court of Appeals for the Second
Circuit.
As previously reported in the Class Action Reporter on Sept. 7,
2018, the Defendants filed an appeal from a court ruling in the
lawsuit. That appellate case is styled as Sajous v. Decker, et
al., Case No. 18-2560.
Thomas Decker is a Field Office Director in the U.S. Immigration &
Customs Enforcement.
The American Civil Liberties Union brought national firepower on
April 5 to the case of a man with schizophrenia, who has been
denied a bond hearing while he faces deportation to Haiti for
subway-turnstile mischief.
Kept in a cell at the Hudson County Correctional Facility since
September 2017, 60-year-old Augustin Sajous 'faces the prospect of
indefinite detention in a jail while he contests the government's
misguided efforts to deport him,' according to the ACLU's filing.
The ACLU took up the case, recasting it as a class action, just
over a month after it was originally filed by a public defender
with Brooklyn Defender Services.
When the original case was filed on March 19, Mr. Sajous had been
scheduled to get his bond hearing that same day after six months in
detention.[BN]
Plaintiff-Petitioner-Appellee-Cross-Appellant Augustin Sajous, on
behalf of himself and all others similarly situated, is represented
by:
Aadhithi Padmanabhan, Esq.
NEW YORK CIVIL LIBERTIES UNION
125 Broad Street
New York, NY 10004
Telephone: (212) 607-3300
E-mail: apadmanabhan@nyclu.org
Defendants-Respondents-Appellants-Cross-Appellees Thomas Decker, as
Field Office Director, New York City Field Office, U.S. Immigration
& Customs Enforcement; Kirstjen M. Nielsen, As Secretary, U.S.
Department of Homeland Security; Jefferson B. Sessions III, as
Attorney General, U.S. Department of Justice; Thomas Feeley, as
Field Officer Director, Buffalo Field Office, U.S. Immigrations &
Customs Enforcement; Jeffrey Searls, as Assistant Field Officer
Director, Buffalo Field Office, U.S. Immigrations & Customs
Enforcement; and James McHenry, as Director, Executive Office for
Immigration Review, are represented by:
Sarah Kathleen Eddy, Esq.
UNITED STATES ATTORNEY'S OFFICE FOR THE
SOUTHERN DISTRICT OF NEW YORK
1 St. Andrew's Plaza
New York, NY 10007
Telephone: (212) 637-1033
E-mail: sarah.eddy@usdoj.gov
UNITYPOINT HEALTH: May Face 2nd Data Breach Class Action
--------------------------------------------------------
Julie Spitzer, writing for Becker's Hospital Review, reports that
UnityPoint Health in West Des Moines, Iowa, could face a
class-action lawsuit over a recent data breach that affected 1.4
million patients, according to the Wisconsin State Journal.
This would mark the second class-action lawsuit against the system
since May. The first complaint involved an email phishing attack,
which compromised 16,429 patients' protected health information in
February. It alleged UnityPoint Health failed to notify patients in
a timely matter and falsely told affected patients no Social
Security numbers were compromised. The attorney who filed that suit
is investigating whether the most recent breach would warrant a
separate action.
The latest breach involves a separate phishing attack that
compromised patients' names, addresses and medical information, as
well as a limited number of driver's license, Social Security, and
payment card or bank account numbers. The breach was discovered May
31, and UnityPoint notified the 1.4 million individuals July 30.
The health system told the Wisconsin State Journal that the
phishing emails in the latest attack appeared to be sent from an
executive within the organization, which tricked some employees
into sharing their sign-in information. Hackers had access to an
undisclosed number of email accounts from March 14 to April 3.
UnityPoint has reset the passwords for the compromised accounts and
implemented two-factor authentication to prevent similar
situations, according to health system officials. Employees have
also undergone mandatory training on how to spot a phishing attack.
[GN]
VIRGIN AMERICA: Nov. 1 Hearing on Rule 37 Motion in Bernstein Suit
------------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order JULIA BERNSTEIN, et al., Plaintiffs, v.
VIRGIN AMERICA INC., et al., Defendants. Case No. 15-cv-02277-JST.
(N.D. Cal.).
The certified Class, and Defendants Virgin America Inc. and Alaska
Airlines, Inc., stipulate and agree as follows, inter alia:
a. September 6, 2018: Deadline for Plaintiffs to file their Rule
37 motion regarding Defendants' Career Choice defense;
b. September 27, 2018: Deadline for Defendants' Opposition to
Rule 37 motion;
c. October 11, 2018: Deadline for Plaintiffs' Reply to Rule 37
motion; and
d. November 1, 2018: Hearing on Plaintiffs' Rule 37 motion.
e. To the extent the Court allows Defendants to proceed with
their affirmative defense of release (e.g. the Court either denies
in whole, or in part, Plaintiffs' Rule 37 motion), the Court will
set a Case Management Conference to address how issues regarding
the Career Choice participants will be resolved.
Class Members Needing Notice: Defendants produced an updated class
list and additional data on August 10, 2018. The updated class list
contains approximately 98 newly-identified, putative Class Members
who were not previously sent court-ordered class notice. As a
result, notice to these putative Class Members will be provided in
accordance with the following schedule:
a. August 24, 2018: Notice to be sent to the 98 putative Class
Members; andb. October 23, 2018: Deadline to opt out of the Class.
A full-text copy of the District Court's August 20, 2018 Order is
available at https://tinyurl.com/y7j55sya from Leagle.com.
Julia Bernstein, Esther Garcia & Lisa Marie Smith, on behalf of
themselves and all others similarly situated, Plaintiffs,
represented by Monique Olivier -- monique@osclegal.com -- Olivier
Schreiber & Chao LLP, Alison L. Kosinski -- alison@ktlawsf.com --
Kosinski & Thiagaraj, LLP, Chiharu Gina Sekino --
csekino@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP,
Emily Ann Thiagaraj -- emily@ktlawsf.com -- Kosinski & Thiagaraj,
LLP, James Edward Miller -- jmiller@sfmslaw.com -- Shepherd
Finkelman Miller & Shah, LLP, James C. Shah , Shepherd Finkelman
Miller & Shah, LLP, Kolin C. Tang , Shepherd Finkelman Miller &
Shah, LLP, Nathan Curtis Zipperian , Shepherd Finkleman Miller &
Shah, LLC, pro hac vice & Ronald Scott Kravitz , Shepherd,
Finkelman, Miller & Shah, LLP.
Virgin America, Inc., Defendant, represented by Robert Jon
Hendricks -- rjhendricks@morganlewis.com -- Morgan, Lewis & Bockius
LLP, Brendan T. Killeen -- brendan.killeen@morganlewis.com --
Morgan Lewis Bockius LLP, pro hac vice, Jennifer Adkins Tomlin ,
Morgan, Lewis & Bockius LLP & Nancy Villarreal --
nvillarreal@morganlewis.com -- Morgan Lewis & Bockius LLP.
Alaska Airlines, Inc., Defendant, represented by Robert Jon
Hendricks , Morgan, Lewis & Bockius LLP.
WAL-MART ASSOCIATES: Fails to Pay OT, Anguiano-Tamayo Alleges
-------------------------------------------------------------
ANA ANGUIANO-TAMAYO, individually and on behalf of all others
similarly situated, Plaintiff vs. WAL-MART ASSOCIATES, INC.;
WAL-MART STORES, INC.; and DOES 1 through 50, Defendants, Case No.
3:18-cv-04598 (N.D. Cal., July 30, 2018) is an action against the
Defendants for failure to provide accurate itemized wage
statements.
Ms. Anguiano-Tamayo was employed by the Defendants as a non-exempt
employee. The Plaintiff is currently employed by the Defendants.
Walmart Inc. engages in the retail and wholesale operations in
various formats worldwide. The company was formerly known as
Wal-Mart Stores, Inc. and changed its name to Walmart Inc. in
February 2018. Walmart Inc. was founded in 1945 and is based in
Bentonville, Arkansas. [BN]
The Plaintiff is represented by:
Larry W. Lee, Esq.
Nicholas Rosenthal, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: lwlee@diversitylaw.com
nrosenthal@diversitylaw.com
WAL-MART STORES: Abbey Spanier Appeals Order in Hummel Suit
-----------------------------------------------------------
Abbey Spanier, LLP, filed an appeal from a lower court order
entered on July 19, 2018, in the lawsuit entitled Dolores Hummel,
on behalf of herself and all others similarly situated v. Walmart
Stores, Inc., A Delaware Corporation, and Sam's Club, an operating
segment of Walmart Stores, Inc., in the Philadelphia County Court
of Common Pleas.
As previously reported in the Class Action Reporter, Judge Paula
Francisco Ott of the Superior Court of Pennsylvania reversed the
Court of Common Pleas of Philadelphia County's award of attorneys'
fees in these cases: MICHELLE BRAUN, ON BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED, v. WAL-MART STORES, INC., A DELAWARE
CORPORATION, AND SAM'S CLUB, AN OPERATING SEGMENT OF WAL-MART
STORES, INC. Appellants, DOLORES HUMMEL, ON BEHALF OF HERSELF AND
ALL OTHERS SIMILARLY SITUATED, v. WAL-MART STORES, INC., A DELAWARE
CORPORATION, AND SAM'S CLUB, AN OPERATING SEGMENT OF WAL-MART
STORES, INC. Appellants. MICHELLE BRAUN, ON BEHALF OF HERSELF AND
ALL OTHERS SIMILARLY SITUATED Appellant, v. WAL-MART STORES, INC.,
A DELAWARE CORPORATION AND SAM'S CLUB, AN OPERATING SEGMENT OF
WAL-MART STORES, INC. DOLORES HUMMEL, ON BEHALF OF HERSELF AND ALL
OTHERS SIMILARLY SITUATED Appellant, v. WAL-MART STORES, INC., A
DELAWARE CORPORATION, AND SAM'S CLUB, AN OPERATING SEGMENT OF
WAL-MART STORES, INC., Case Nos. 3361 EDA 2016, 3633 EDA 2016 (Pa.
Super.).
Abbey Spanier, LLP, has represented Plaintiffs Michelle Braun, et
al.
According to the Class Action Reporter's coverage of the case,
Braun/Hummel was commenced in March 2002 in the Court of Common
Pleas in Philadelphia, Pennsylvania. On October 13, 2006, a jury
awarded back-pay damages to the Plaintiffs of approximately $78
million on their claims for off-the-clock work and missed rest
breaks. The jury found in favor of the Company on the Plaintiffs'
meal-period claims.
The appellate case is captioned as Hummel, D. v. Walmart Stores,
Inc., Case No. 2466-EDA-2018, in the Superior Court of
Pennsylvania.[BN]
Appellant Abbey Spanier, LLP, is represented by:
Matthew Roger Williams, Esq.
Douglas Evan Ress, Esq.
KAUFMAN, COREN & RESS P.C.
2001 Market St., Suite 3900
Philadelphia, PA 19103-7099
Telephone: (215) 735-8700
Facsimile: (215) 735-5170
E-mail: mwilliams@kcr-law.com
dress@kcr-law.com
Plaintiff-Appellee Dolores Hummel is represented by:
Michael D. Donovan, Esq.
DONOVAN LITIGATION GROUP LLC
15 St. Asaphs Rd.
Bala Cynwyd, PA 19004
Telephone: (610) 647-6067
Facsimile: (610) 647-7215
Defendant-Appellee Walmart Stores, Inc., is represented by:
James C. Sargent, Jr., Esq.
LAMB MCERLANE, PC; ROMAN J. KOROPEY LTD.
24 E Market St.
PO Box 565
West Chester, PA 19382-3151
Telephone: (610) 430-8000
E-mail: jsargent@lambmcerlane.com
- and -
Maureen Murphy McBride, Esq.
John J. Cunningham, IV, Esq.
LAMB McERLANE PC
PO Box 565
West Chester, PA 19381-0565
Telephone: (610) 430-8000
E-mail: mmcbride@lambmcerlane.com
jcunningham@lambmcerlane.com
Participant Franklin D. Azar & Associates is represented by:
Madeline M. Sherry, Esq.
Scott Joel Etish, Esq.
GIBBONS P.C.
130 N 18th St., Suite 1210
Philadelphia, PA 19103-2769
Telephone: (215) 665-0400
E-mail: msherry@gibbonslaw.com
setish@gibbonslaw.com
- and -
Marc J. Zucker, Esq.
Steven E. Angstreich, Esq.
WEIR & PARTNERS LLP
1339 Chestnut St., Suite 500
Philadelphia, PA 19107-3501
Telephone: (215) 241-7792
E-mail: mzucker@weirpartners.com
sangstreich@weirpartners.com
WASHINGTON TRUST: Court Grants $1.65MM Attorney's Fees
------------------------------------------------------
The United States District Court for the District of Idaho issued a
Memorandum Opinion and Order setting Amount of Attorney's Fees in
the case captioned ROBERT CAYNE; RONNIE RIVERA; SEAN RIVERA; KEN
McELROY; individually and on behalf of all others similarly
situated, Plaintiffs, v. WASHINGTON TRUST BANK, a Washington
corporation; and WEST SPRAGUE AVENUE HOLDINGS, LLC, a Washington
limited liability company, Defendants. Case No. 2:12-cv-00584-REB.
(D. Idaho)
The Motion seeks an award of attorney fees and costs incurred over
a period of multiple years, involving four different law firms.
In this certified class action lawsuit, Plaintiffs brought claims
for breach of contract, misrepresentation/fraud, and a consumer
protection act violation, and they sought to recover from
Washington Trust the membership deposits they had paid to the Club
and other alleged damages.
This Court granted in part and denied in part Defendants' Motion
for Judgment on the Pleadings.
However, the Court did not rule at that time upon the amount of any
attorney fee award because of the voluminous record and because of
the Court's concern over the potential for duplication of effort,
given that Defendants employed four different law firms in the
case, including one that was brought into the case only shortly
before trial.
LEGAL STANDARD
If the court grants attorney fees to a party or parties in a civil
action it must consider the following in determining the amount of
such fees:
(A) the time and labor required;
(B) the novelty and difficulty of the questions;
(C) the skill requisite to perform the legal service properly and
the experience and ability of the attorney in the particular field
of law;
(D) the prevailing charges for like work;
(E) whether the fee is fixed or contingent;
(F) the time limitations imposed by the client or the circumstances
of the case;
(G) the amount involved and the results obtained;
(H) the undesirability of the case;(I) the nature and length of the
professional relationship with the client;
(J) awards in similar cases;
(K) the reasonable cost of automated legal research (Computer
Assisted Legal Research), if the court finds it was reasonably
necessary in preparing a party's case;
(L) any other factor which the court deems appropriate in the
particular case.
Defendants seek recovery of fees from the work of nearly all of
those lawyers. In total, Defendants request $2,097,011.61 in
attorney fees for work performed.
Broken down, the amount includes $549,892.00 in fees for work
performed by Dunn & Black, P.S.; $1,402,323.65 in fees for work
performed by Davis Wright Tremaine LLP;
$9,676.46 for work performed by William Appleton; and $135,119.50
for work performed by K&L Gates, LLP.
Rule 54(e)(3) factors
(i) Factors (A) and (B)
These factors call on the Court to consider the time and labor
involved and the novelty and difficulty of the questions.
The time and labor expended by both sides to the case was enormous,
albeit generally, but not always, commensurate to the economic
stakes put at issue by the Plaintiffs claims, as described supra.
On balance, this factor supports an award of fees because of the
need for Defendant to mount a substantial legal effort, with its
attendant time and expense, to defend the claims.
However, this factor also requires that the Court consider the fact
that the Defendants hired multiple law firms, with many different
attorneys and support personnel, in doing so. The fact that the
Defendants brought in multiple law firms was a choice they were
free to make; however, doing so does not mean that it would be
reasonable to make an award for all such fees against the
Plaintiffs.
As to the novelty and difficulty of the questions, certain matters
were relatively straightforward and others were complex and
intricate. As with any class action, there were certain issues
relating to class action status at the beginning and which surfaced
again from time to time during the unfolding of the litigation. The
issues required a knowledge of class action procedures and law, and
counsel handled those matters without difficulty on both sides. The
various types of claims brought by Plaintiffs became the subjects
of dispositive motion practice, which required thorough and careful
briefing. These also were handled, for the most part, efficiently
and competently by defense counsel until the end of the case, at
which time many of the same issues were relitigated or sought to be
relitigated after the Dunn & Black firm became involved in the
case, along with issues that had not been raised previously.
Factor C
In considering factor (C), the Court considers the skill requisite
to perform the legal service properly and the experience and
ability of the attorney in the particular field of law. To make
this assessment, the Court first considers the particular field of
law involved, and then the skill and experience/ability prong.
Here, the case was filed as a class action case, which required
that the various requisites of a class action case under the
federal rules of procedure and applicable law be satisfied. The
Court is satisfied that defense counsel, particularly Mr. Burnside,
had sufficient expertise in this area of the law to properly deal
with the issues raised by the class action status and to conduct of
the defense of the case on those issues. Next, the case as
initially filed raised various types of legal claims, including
breach of contract claims and fraud claims.
Factor D
This factor considers the prevailing charges for like work, and in
particular the fee rates generally prevailing in the pertinent
geographic area, meaning the area from which it would be reasonable
to obtain counsel.
In the contemporary legal market of North Idaho, to include the
Coeur d'Alene area, it is commonplace for lawyers practicing in
both civil law and criminal law to be admitted to practice in both
Idaho and Washington. It is not a universal circumstance that a
lawyer will be licensed to practice in the courts of both states
(to include state and federal court), but it is frequently found
and more so each year. Particularly in federal court, the lawyers
who appear are generally lawyers who practice in both states.
The Court finds that the pertinent geographic area, that is, the
area from which it would be reasonable to obtain counsel for
purposes of this case is Idaho and Eastern Washington. The
prevailing rates charged by the lawyers for the Defendants who are
from outside those regions area are greater than the prevailing
rates charged for lawyers of similar experience and expertise from
within those regions, and therefore the Court has made reductions
in the allowed rates, as is further described elsewhere in this
decision.
Factor (E)
The Court is to consider whether the fee is fixed or contingent,
under factor (E). Here, there was a fixed fee agreement as to each
of the firms representing the Defendants. However, whether the fee
was fixed or contingent is not important here, where the court is
asked to determine the reasonableness of an award of fees and costs
to be awarded to the Defendants.
Factor (F)
This factor deals with the time limitations imposed by the client
or the circumstances of the case.
Here, the Court is to consider the amount involved and the results
obtained. As described elsewhere in this decision, the Plaintiffs
in this case valued their case in the tens of millions. Further,
the claims and the nature of the proof they put in the record, and
sought to put in the record, were intended to put the Defendants
and their officers in a very negative light. It quickly became
apparent in this case that both because the Plaintiffs valued their
case in the amount that they did, and because their litigation
strategy was purposefully intended to attack the reputation of the
Defendants and their employees, the Defendants understandably chose
to defend the Plaintiffs' claims fully and vigorously.
Factor (H)
This factor brings in an assessment of the undesirability of the
case, in that a lawyer's decision to take on an otherwise
undesirable case and to then prevail in the same is a factor that
would support an award of fees and costs. This factor is not
applicable to this case.
Factor (I)
Here, the Court is asked to evaluate the nature and length of the
professional relationship with the client. Other than as described
below with respect to attorney William Appleton, the Court has not
been provided with any information about this factor by the
different law firms. If the Court frequently saw cases involving
the Defendants and law firms representing the Defendants, such
information might be readily obvious to the Court; however, it is
not here. In addition, the Court sees no sensible connection
between the amount of any award and the nature and length of any
professional relationship between the law firms and the Defendants.
Therefore, this factor neither supports nor detracts from an award
of fees and costs except as to Mr. Appleton.
Factor (J)
An obvious place of comparison under Rule 54(e)(3) is to consider
awards that have been made in similar cases, which is the specific
language of factor (J). Defendants have not offered any specific
information on this factor. The Court's review of fee awards in
other cases in the District of Idaho has revealed cases that have
some similarities to this case, although none that is precisely
similar in the nature of the claims and the unfolding of this
lawsuit over its full course. Hence, the court finds this factor to
be of some support for an award, particularly as to the hourly
rates awarded to attorneys involved in such cases.
Factor K
This is a very specific factor, which allows the Court to permit
the recovery by a prevailing party of the cost of automated legal
research: the reasonable cost of automated legal research (Computer
Assisted Legal Research), if the court finds it was reasonably
necessary in preparing a party's case.
The Court is aware that contemporary litigation, particularly in a
case such as this one, draws heavily upon computer assisted legal
research. In the best use of such tools, there are efficiencies and
savings. But as with all such tools, they also lend themselves to
wasteful practices. It is sometimes difficult to know where the
line is between the two. In this case, however, one line can
clearly be drawn and that is the fact of the duplication of effort
that inescapably occurred when the Dunn & Black firm became
involved in the case. Even if the attorneys in the two offices
attempted to avoid such duplication, the very fact that a new law
firm became involved very late in the game required and resulted in
such duplication in obvious ways such as the need to learn what the
case was about, and to learn the facts and legal issues.
Similarly, the interactions between the two firms over strategies,
meetings with the clients, even decisions about who should do what,
all involved duplication of effort that would not have occurred but
for the Defendants' decision to bring in a law firm completely new
to the case only a few months before trial and to then give that
firm a significant amount of responsibility, if not the lead
responsibility, for handling the case going forward. Hence, the
Court has decided that the requested awards of both firms must be
reduced to account for duplication of efforts, as described
elsewhere in this decision, and the rationale for doing so is
equally applicable to the expense of computer assisted legal
research.
Accordingly, the Court will apply this factor to reduce the amount
requested for the cost of computer assisted legal research by ten
percent as described to follow.
Factor L
This is the catch-all factor, which permits the Court to consider
other relevant facts which the Court deems appropriate. The Court
discusses the reasons for its decision to award fees and costs, and
the amount of such an award, at great length in this decision and
to the extent that any of the reasoning described for its decision
is not specifically referenced above, or does not neatly fit within
any of factors (A) through (L), then the Court deems by this
reference to include such information, facts and reasoning as
additional factors deemed appropriate by the Court, for its
decision, under Factor L.
Dunn & Black, P.S. Fees
The attorney fee request for work done by Dunn & Black, P.S. is
supported by the affidavit of Bil G. Childress. The motion seeks
$549,892.00 for 2,143.3 hours of work performed by seven attorneys,
two paralegals, and one legal intern.
As a final step before ordering an award amount regarding Dunn &
Black, the Court evaluated whether the modified amount requested
was justified by considering the amount involved and the results
obtained, pursuant to I.R.C.P. 54(e)(3)(G). Defendants' total
attorney fee request for all timekeepers from all firms is
$2,097,011.61 (Dkt. 392). As late as September 2015, six months
before trial, Plaintiffs alleged total damages greater than
$175,000,000. Plaintiffs estimated a recovery of $4,800,000 in
attorney fees as part of that calculation. Id. Here, where
Defendants' total requested attorney fees are slightly more than 1%
of the amount Plaintiffs contended to be at risk in the lawsuit,
and significantly less than half of the attorney fee award
Plaintiffs estimated for themselves if they had prevailed, an award
of the modified amount requested above for Dunn & Black's work is
justified by the amount involved and the results obtained.
Therefore, Defendants are awarded the sum of $493,375.92 for work
performed by Dunn & Black.
Davis Wright Tremaine LLP Fees.
The attorney fee request for work done by Davis Wright Tremaine LLP
is supported by a declaration executed by attorney Fred B.
Burnside. Burnside Decl. The declaration was declared under penalty
of perjury and otherwise complies with 28 U.S.C. Section 1746.
Defendants seek $1,402,323.65 for 4,280.6 hours of work performed
by four attorneys and one paralegal with Davis Wright Tremaine.
Having decided the reasonable hourly rates for Davis Wright
Tremaine timekeepers, the Court next considered the time and labor
required, pursuant to I.R.C.P. 54(e)(3)(A). The firm became
involved in the case in July 2013 and continued representing
Defendants through, and after, trial. Mr. Burnside's declaration
details the firm's efforts in avoiding unnecessary effort and
controlling costs in a lengthy and complicated case. He describes
extensive document production and depositions, repeated parrying of
Plaintiffs' claims for fraud and punitive damages, protracted
pretrial motion practice, and other efforts.
He also notes that Defendants did not file any motions to compel
and that Davis Wright Tremaine attorneys participated in over
twenty depositions, only six of which were taken by Defendants.
Further, he lists several measures counsel undertook to expedite
the litigation and minimize costs, including taking some
depositions by video conference, consolidating other depositions to
reduce travel and preparation time, attempting to mediate their
claims, and staffing the case with as few people as possible to
maximize efficiency. Finally, Mr. Burnside explains that
Defendants are not seeking roughly $55,000 in attorney fees billed
by timekeepers besides the five individuals at Davis Wright
Tremaine who primarily staffed the case.
The Court finds that the time and labor expended by Davis Wright
Tremaine timekeepers was reasonable, relying in part in doing so
upon Mr. Burnside's undisputed assertions about the efforts
undertaken to limit costs. The Court will not strike or reduce any
of the time entries as clerical, excessive, or unrelated to the
case.
Therefore, Defendants are awarded the sum of $1,150,322.80 for work
performed by Davis Wright Tremaine.
William Appleton Fees
The attorney fee request for work done by William Appleton is
supported by an affidavit sworn by Mr. Appleton, who is an
attorney. The motion seeks $9,192.00 for 76.6 hours of work, at a
rate of $120 per hour, performed in March 2016.
The Court finds that Mr. Appleton's rate and billed hours are
reasonable. In making this finding, the Court has considered the
I.R.C.P. 54(e)(3) factors. Most relevant to the Court's
consideration were factors (A), (D), (I), and (J). As to factor
(A), the time and labor required, the Court notes that Mr. Appleton
served as local counsel for the attorneys from Davis Wright
Tremaine, so his presence during trial was required. Of the 76.6
hours Mr. Appleton billed, 72.0 hours are for time spent attending
trial and consulting with co-counsel. Only 4.6 hours were billed
for other purposes. Id. Of that, 4.0 hours were spent reviewing
documents and court rulings to prepare for trial, and 0.6 hours
were spent preparing the affidavit for attorney fees. These time
entries were all reasonable.
Because Mr. Appleton's rate and billed hours are reasonable,
Defendants are awarded the full $9,192.00 sought for Mr. Appleton's
time.
K&L Gates, LLP Fees
The Defendants seek $135,119.50 in attorney fees for work done by
K&L Gates, LLP.9 The request is supported by a declaration signed
by Amy Plotnik.
Submission of an attorney's affidavit is not a mere formality.
Attorneys are officers of the court. They are subject to discipline
by this Court and by the Idaho State Bar or by an equivalent
licensing body. An attorney's sworn certification provides inherent
indicia of reliability and truthfulness to a request for an award
of attorney fees, particularly as to the necessity for the work
performed and the reasonableness of the fees incurred. Moreover,
affidavits and declarations must be based on personal knowledge.
Implicit in an affidavit supporting a memorandum of costs is an
assertion, based on personal knowledge, that the attorney fees
requested are reasonable and appropriate.
The Defendants are awarded the sum of $1,652,890.72 in attorney
fees against Plaintiffs Robert Cayne, Ronnie Rivera, Sean Rivera,
and Ken McElroy.
A full-text copy of the District Court's August 16, 2018 Memorandum
Opinion and Order is available at https://tinyurl.com/y9hl59gu from
Leagle.com.
Robert Cayne, Plaintiff, represented by Douglas S. Marfice ,
RAMSDEN, MARFICE, EALY & HARRIS, LLP, Michael, Barr King --
king@carneylaw.com -- Carney Badley Spellman, pro hac vice, Adam H.
Springel -- aspringel@springelfink.com -- Springel & Fink, LLP, pro
hac vice, Christopher D. Gabbert , RAMSDEN, MARFICE, EALY &
HARRIS,LLP, & Michael A. Arata -- marata@springelfink.com --
Springel & Fink, LLP, pro hac vice.
Ronnie Rivera, Sean Rivera & Ken McElroy, Plaintiffs, represented
by Daniel W. Bower , MORRIS BOWER & HAWS PLLC, Douglas S. Marfice ,
RAMSDEN, MARFICE, EALY & HARRIS, LLP, Justin Jones , pro hac vice,
Michael Barr King , Carney Badley Spellman, pro hac vice, Adam H.
Springel , Springel & Fink, LLP, pro hac vice, Christopher D.
Gabbert , RAMSDEN, MARFICE, EALY & HARRIS,LLP & Michael A. Arata ,
Springel & Fink, LLP, pro hac vice.
Washington Trust Bank, Washington corporation & West Sprague Avenue
Holdings, LLC, Washington limited liability company, Defendants,
represented by Bil G. Childress , Dunn & Black, P.S., Marvin L.
Gray, Jr. -- montygray@dwt.com -- Davis Wright Tremaine, LLP, pro
hac vice, Robert A. Dunn , Dunn & Black, P.S., pro hac vice,
William M. Appleton , APPLETON & PIKE, Fred B. Burnside --
fredburnside@dwt.com -- Davis Wright Tremaine LLP, pro hac vice &
Rebecca J. Francis -- rebeccafrancis@dwt.com -- Davis Wright
Tremaine, LLP, pro hac vice.
WASHINGTON: Governor et al. Face Belgau Suit over Union Dues
------------------------------------------------------------
MELISSA BELGAU; DONNA BYBEE; MICHAEL STONE; RICHARD OSTRANDER;
MIRIAM TORRES; KATHERINE NEWMAN; and GARY HONC, individually and on
behalf of all others similarly situated, Plaintiffs v. JAY INSLEE
in His Official Capacity as Governor of the State of Washington;
DAVID SCHUMACHER, in His Official Capacity as Director of the
Washington Office of Financial Management; JOHN WEISMAN, in His
Official Capacity as Director of the Washington Department of
Health; CHERYL STRANGE, in Her Official Capacity as Director of the
Washington Department of Social and Health Services; ROGER MILLAR,
in His Official Capacity as Director of the Washington Department
of Transportation; JOEL SACKS, in His Official Capacity as Dir. of
Washington Department of Labor and Industries; WASHINGTON
FEDERATION OF STATE EMPLOYEES (AFSCME, COUNCIL 28), Defendants,
Case No. 3:18-cv-05620-RJB (W.D. Wash., Aug. 2, 2018) alleges that
union dues or fee deductions from State employees' wages are not
legal if the State employees have not clearly and affirmatively
consented to the deductions by waiving their constitutional right
to not fund union political advocacy.
The Plaintiffs were Washington State employees from whose wages the
State continues to deduct union dues or fees after the U.S. Supreme
Court issued Janus v. AFSCME, Council 31, on June 27, 2018, despite
the fact that the Plaintiffs have not clearly and affirmatively
consented to the deductions by waiving the constitutional right to
not fund union advocacy. The State remits those deductions to the
Washington Federation of State Employees.
The State of Washington, is a state in the Pacific Northwest region
of the United States. [BN]
The Plaintiffs are represented by:
James G. Abernathy, Esq.
Hannah Sells, Esq.
Christi C. Goeller, Esq.
Caleb Jon Vandenbos, Esq.
FREEDOM FOUNDATION
P.O. Box 552
Olympia, WA 98507
Telephone: (360) 956-3482
Facsimile: (360) 352-1874
E-mail: jabernathy@freedomfoundation.com
hsells@freedomfoundation.com
cgoeller@freedomfoundation.com
cvandenbos@freedomfoundation.com
WASTE CONNECTIONS: Dawson Moves to Certify Class Under FLSA
-----------------------------------------------------------
Plaintiff Cne Dawson moves the Court, pursuant to the Fair Labor
Standards Act, to certify the lawsuit captioned JERRY MONROE, ET
AL. v. WASTE CONNECTIONS OF LOUISIANA, INC., ET AL. and CNE DAWSON,
on behalf of herself and other persons similarly situated v.
PROGRESSIVE WASTE SOLUTIONS OF LA, INC., Case No.
2:17-cv-05695-ILRL-DEK (E.D. La.), as a collective action.
Cne Dawson, a former driver for Progressive, seeks compensation for
alleged unpaid overtime compensation. The Plaintiff contends that
the claim is based on a generally applicable practice of
Progressive altering the hours of drivers and helpers in the
electronic system, necessarily resulting in the underpayment of
overtime compensation.
The Plaintiffs are represented by:
Christina L. Carroll, Esq.
ROBEIN, URANN, SPENCER, PICARD & CANGEMI, APLC
2540 Severn Avenue, Suite 400
Metairie, LA 70002
Telephone: (504) 885-9994
Facsimile: (504) 885-9969
E-mail: ccarroll@ruspclaw.com
WAYPOINT RESOURCE: Faces Williams Suit Over FDCPA Violations
------------------------------------------------------------
A class action lawsuit has been filed against Waypoint Resource
Group, LLC. The case is captioned as Shana Williams, individually
and on behalf of all others similarly situated v. Waypoint Resource
Group, LLC, Case No. 1:18-cv-04921 (E.D.N.Y., August 29, 2018).
The lawsuit arises from alleged violations of the Fair Debt
Collection Practices Act.
Waypoint Resource Group, LLC, is a limited liability company
incorporated in Texas and based in Round Rock, Texas. Waypoint
provides accounts receivable management solutions across a variety
of industries.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Sanders Law PLLC
WELLS FARGO: Sept. 14 Response Deadline in Silverman Suit
---------------------------------------------------------
The United States District Court for Northern District of
California issued an Order setting Deadline for Filing Responsive
Pleading in the case captioned JOHN SILVERMAN and J. EDWARDS
JEWELRY DISTRIBUTING, LLC, as representatives of all similarly
situated persons, Plaintiffs, v. WELLS FARGO & COMPANY; WELLS FARGO
BANK, NATIONAL ASSOCIATION; and DOES 1-10, inclusive, Defendants.
Case No. 4:18-cv-03886-YGR. (N.D. Cal.).
The Defendants have accepted service of the Original Class Action
Complaint filed by the Plaintiffs in the above action. The
Defendants' deadline for filing a responsive pleading to the
Original Class Action Complaint is September 14, 2018.
A full-text copy of the District Court's August 20, 2018 Order is
available at https://tinyurl.com/ycl4hsoy from Leagle.com.
John Silverman & J. Edwards Jewelry Distributing, LLC, as
representatives of all similarly situated persons, Plaintiffs,
represented by Matthew Allen Berliner -- mberliner@fortislaw.com --
Fortis LLP, Robert A. Skipworth , Robert A. Skipworth, Attorney at
Law, pro hac vice, Scot Donaldson Wilson , Robinson Calganie, Inc.
& Walt D. Roper, The Roper Firm, P.C., pro hac vice.
Wells Fargo & Company & Wells Fargo Bank, National Association,
Defendants, represented by Regina Jill McClendon --
rmcclendon@lockelord.com -- Lock Lord LLP, Managing Partner, San
Francisco Office.
WILLIAMS-SONOMA: Rushing Suit Moved to N.D. California
------------------------------------------------------
The class action lawsuit titled WILLIAM RUSHING, individually and
on behalf of all others similarly situated, Plaintiff v.
WILLIAMS-SONOMA, INC., Defendant, was removed from the U.S.
District Court for the District of Columbia (Case No.
1:17-mc-02848), to the U.S. District Court for the Northern
District of California on August 9, 2018. The District Court Clerk
assigned Case No. 4:18-mc-80128-KAW (N.D. Cal., Aug. 3, 2018) to
the proceeding. The Case is assigned to the Magistrate Judge Kandis
A. Westmore.
Williams-Sonoma, Inc. operates as a multi-channel specialty
retailer of various products for home. It operates through two
segments, E-commerce and Retail. The company offers cooking,
dining, and entertaining products, including cookware, tools,
electrics, cutlery, tabletop and bar, outdoor, furniture, and a
library of cookbooks under the Williams Sonoma brand, as well as
home furnishings and decorative accessories under the Williams
Sonoma Home brand. Williams-Sonoma, Inc. was founded in 1956 and is
headquartered in San Francisco, California. [BN]
The Plaintiff is represented by:
Patrick A. Malone, Esq.
PATRICK MALONE & ASSOCIATES, P.C.
1310 L Street, NW, Suite 800
Washington, DC 20005
Telephone: (202) 742-1500
Facsimile: (202) 742-1515
E-mail: pmalone@patrickmalonelaw.com
- and -
Amber L. Eck, Esq.
HAEGGQUIST & ECK, LLP
225 Broadway, Suite 2050
San Diego, CA 92101
Telephone: (619) 342-8000
Facsimile: (619) 342-7878
E-mail: ambere@haelaw.com
Kathryn Honecker
- and -
Kathryn Honecker, Esq.
ROSE LAW GROUP, PC
7144 East Stetson Drive, Suite 300
Scottsdale, AZ 85251
Telephone: (480) 505-3936
Facsimile: (480) 505-3925
E-mail: khonecker@roselawgroup.com
The Defendant is represented by:
Benjamin O. Aigboboh, Esq.
SHEPPARD, MULLIN, RICHTER
& HAMPTON, LLP – LA
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA 90067
Telephone: (310) 228-3700
- and -
Eric James DiIulio, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
Telephone: (415) 434-9100
Facsimile: (415) 434-3947
E-mail: ediiulio@sheppardmullin.com
- and -
Phillip C. Cardon, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
1901 Avenue of the Stars, 16th Floor
Los Angeles, CA 90067
Telephone: (310) 228-3700
Facsimile: (310) 228-3924
- and -
Steven P. Hollman, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
2099 Pennyslvania Avenue, NW, Suite 100
Washington, DC 20006
Telephone: (202) 747-1941
Facsimile: (202) 747-3912
E-mail: shollman@sheppardmullin.com
WORLD FUEL: Jarquin Moves to Certify Class of UNIX Engineers
------------------------------------------------------------
The Plaintiff in the lawsuit entitled IVETTE JARQUIN v. WORLD FUEL
SERVICES CORPORATION, a Florida Profit Corporation, Case No.
1:17-cv-24699-MGC (S.D Fla.), seeks entry of an order permitting
notice to all potential collective action members affected by the
claims in the action and conditionally certifying a collective
action under the Fair Labor Standards Act.
The class consists of:
A. "UNIX Engineers Level I" and "UNIX Engineers Level II,"
who performed work for Defendants nationwide during the
last three (3) years prior to the filing of Plaintiff's
complaint until present who: (1) were classified as
"exempt" from the Fair Labor Standards Act's overtime
provisions;
B. who were subject to Defendant's "Exemption"; and
C. who were not paid proper overtime compensation (i.e. for
the hours over forty (40) during any work week of their
employment within the applicable statute of limitations
period.
Ms. Jarquin also asks the Court to require the Defendant to provide
her counsel with the list of each proposed class members'
last-known home address, telephone number, e-mail address, and
social security number, and to direct the Defendant to post at all
of its business locations located within its branches, a copy of
the initial notice. She further asks the Court to provide all
individuals whose names appear on the list produced by the
Defendant's counsel a total of 60 days from the date the notices
are initially mailed to file a Consent to Become Opt-In Plaintiff
form.
The Plaintiff is represented by:
Peter M. Hoogerwoerd, Esq.
Nathaly Lewis, Esq.
REMER & GEORGES-PIERRE, PLLC
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416-5000
Facsimile: (305) 416-5005
E-mail: pmh@rgpattorneys.com
nl@rgpatttorneys.com
The Defendant is represented by:
Margaret H. Mevers, Esq.
Kirsten I. Freiheit, Esq.
LYDECKER DIAZ
1221 Brickell Avenue, 19th Floor
Miami, FL 33131
Telephone: (305) 416-3180
Facsimile: (305) 416-3190
E-mail: mhm@lydeckerdiaz.com
kwegel@lydeckerdiaz.com
WORLD FUEL: Jarquin Moves to Certify Female UNIX Engineers Class
----------------------------------------------------------------
The Plaintiff in the lawsuit entitled IVETTE JARQUIN v. WORLD FUEL
SERVICES CORPORATION, a Florida Profit Corporation, Case No.
1:17-cv-24699-MGC (S.D Fla.), seeks entry of an order permitting
notice to all potential collective action members affected by the
claims in the action and conditionally certifying a collective
action under the Equal Pay Act of 1963.
The class consists of current and former female "UNIX Engineers
Level I" or "UNIX Engineers Level II," who worked for the Defendant
nationwide in the last three years prior to the filing of the
complaint and who were paid less than their male counterparts.
Ms. Jarquin also asks the Court to require the Defendant to provide
her counsel with the list of each proposed class members'
last-known home address, telephone number, e-mail address, and
social security number, and to direct the Defendant to post at all
of its business locations located within its branches, a copy of
the initial notice. She further asks the Court to provide all
individuals whose names appear on the list produced by the
Defendant's counsel a total of 60 days from the date the notices
are initially mailed to file a Consent to Become Opt-In Plaintiff
form.
The Plaintiff is represented by:
Peter M. Hoogerwoerd, Esq.
Nathaly Lewis, Esq.
REMER & GEORGES-PIERRE, PLLC
44 West Flagler Street, Suite 2200
Miami, FL 33130
Telephone: (305) 416-5000
Facsimile: (305) 416-5005
E-mail: pmh@rgpattorneys.com
nl@rgpatttorneys.com
The Defendant is represented by:
Margaret H. Mevers, Esq.
Kirsten I. Freiheit, Esq.
LYDECKER DIAZ
1221 Brickell Avenue, 19th Floor
Miami, FL 33131
Telephone: (305) 416-3180
Facsimile: (305) 416-3190
E-mail: mhm@lydeckerdiaz.com
kwegel@lydeckerdiaz.com
[*] Proskauer Attorney Discusses NLRB's Decisions on Waivers
------------------------------------------------------------
Mark Theodore, Esq. -- mtheodore@proskauer.com -- of Proskauer,
reported that since December 2017, when the Board issued a number
of decisions which restored precedent that had been changed in the
last few years, not much of note has been happening at the Board.
Indeed, there was not a full complement at the Board until April
when Chairman Ring was confirmed.
Two upcoming events may see some additional activity at the NLRB.
First, Board Member Pearce's term expires in a few weeks on August
27. This will leave the Board with four members. It is fair to
assume a number of decisions may issue in the coming weeks as
Pearce completes his term. No word on a replacement for Pearce.
Second, the NLRB's fiscal year ends on September 30, 2018, and the
preceding days up to and including that date usually see numerous
decisions issue as the Board attempts to maintain its productivity
statistics.
In the meantime, the NLRB recently issued a number of decisions
that fall in the category of "business as usual," following
existing precedent but with some interesting nuggets of
information.
NLRB No Longer Pursues Class Action Waivers as Unlawful
Contrary to the vast majority of handbook cases, where the NLRB
just finds a policy to be unlawful regardless of whether employees
read it or if it was enforced, the Board's banning of class action
waivers had real consequences. In May 2018, the Supreme Court
ruled that there was no such violation of the NLRA. Consistent
with the Supreme Court's ruling, the NLRB has started to dismiss
existing cases where the Administrative Law Judge found a
violation. See, for example, Kellog Brown & Root LLC, 363 NLRB No.
153 (August 2, 2018).
Employer Violated the Act by Refusing to Provide Union with Names
of Witnesses To Sexual Harassment
In American Medical Response West, 366 NLRB No. 146 (July 31,
2018), the Board found an employer violated Section 8(a)(5) of the
Act by refusing to provide the names of witnesses it had
interviewed in connection with a complaint of sexual harassment
lodged against a bargaining unit member. After an investigation,
the employer discharged the accused employee. The union requested
information related to the employer's investigation. The employer
provided redacted witness interview notes but refused to provide
the names. The union filed a charge and the ALJ concluded that the
employer violated the Act.
On appeal, the NLRB noted that the provision of witness names has
been the law for at least forty years, citing Transport of New
Jersey, 233 NLRB 694-695 (1977). What makes the case interesting,
however, is that the employer had asserted a need to maintain
confidentiality in the early stages of the investigation. This
assertion constituted the employer's defense. The NLRB rejected
this defensem noting that the employer had "presented no evidence
or argument to the Board to explain why its confidentiality
interests should prevail over the Union's need for information."
This conclusion was reached despite the employer having provided
testimony that during the investigation the witnesses expressed
concern of harassment or retaliation by the union.
The Board noted further that "even assuming the Respondent had
demonstrated its confidentiality interests in protecting witness
names outweighed the Union's need for the information, it
nonetheless violated" the Act by "failing to seek an
accommodation."
The content of information requests is rarely the issue and that is
what makes an outright refusal to provide relevant information
nearly indefensible. Of the few defenses that do exist, an
employer cannot simply raise the defense and not provide the
information. The employer can avoid liability by working to reach
an accommodation with the union.
A Past Practice Must be Supported By Evidence Before the Board Will
Enforce it.
One of the more misunderstood concepts in labor law is "past
practice." A true past practice is something that is essentially an
implicit agreement between the union and the employer on how
certain things are done. Changing a past practice without
bargaining with the union violates the Act. The NLRB recently
rejected an assertion that past practice can be based on the
perception of the union even when such belief is supported by an
errant employer statement.
In Consolidated Communications Holdings, Inc., 366 NLRB No. 152
(August 3, 2018), the Board was confronted with a situation where
the union claimed a past practice concerning how health care
premiums were calculated was violated when the employer did not
reduce premiums. In the parties' successive collective bargaining
agreements, there was provision for the amount the employees had to
pay for healthcare, which was expressed in a percentage of total
cost. This is a common way of expressing healthcare in a
collective bargaining agreement because it allows the amount
employees pay to fluctuate based on the actual cost to the
employer. The agreements, however, were silent on how the premiums
were calculated.
During bargaining for a successor agreement an employer
representative stated that it looked like premiums for the next
year would be going down because there were not many claims. When
the time came to adjust premiums, the rates were raised prompting
the charge. The union's claim was that a practice existed where
premium rates were based on the prior year's claims.
The employer denied expressing that premiums would go down. After
evaluating credibility, the ALJ concluded that the statement had
been made. The ALJ noted, however, that such a statement did not
necessarily establish that was the employer's practice and
evaluated the evidence. The ALJ noted that while the General
Counsel had several witnesses testify as to their belief that
premiums were sent on a single factor, it was "highly likely that
the GC's witnesses are confusing a correlated factor (i.e., past
year's claims are loosely correlated with the next year's premiums)
with a single conclusive factor (i.e., past year's claims always
and solely determine next year's premiums)." Perhaps most
important, the ALJ ruled that the GC's position is compromised by
the complete lack of any supporting documentary evidence."
(emphasis in original).
In his analysis, the ALJ set forth the basic law regarding
unilateral change and expressed how it applies in the past practice
context as follows:
The Act bars employers from taking unilateral action on mandatory
bargaining topics such as rates of pay, wages, hours of employment
and other conditions of employment. . . .It is well-established
that health benefits are mandatory bargaining topics. . An
employer's regular and longstanding practices that are neither
random nor intermittent become terms and conditions of employment
even where such practices are not expressly set forth within a
collective-bargaining agreement.
The ALJ noted that it was the burden of the party asserting the
practice to establish that it existed and that in this case the
General Counsel had failed to do so. The Board adopted the
decision on appeal.
One wonders how this case ever made it to trial, and then appeal,
when it appears there was no actual evidence as to the practice.
Still, the decision is instructive in helping define the elusive
term "past practice" and that even an employer's statement that
bears no relationship to reality cannot establish such a binding
practice. [GN]
[*] Simpson Attorneys Discuss Issue Certification Use, Limits
-------------------------------------------------------------
Corporate Litigation columnists Joseph McLaughlin, Esq. --
jmclaughlin@stblaw.com -- and Shannon McGovern, Esq. --
smcgovern@stblaw.com -- of Simpson Thacher & Bartlett LLP, discuss
the use and limits of issue certification.
The interplay between two provisions of Rule 23, the federal class
action rule, has engendered a longstanding circuit split which
deepened in July. Rule 23(b)(3) permits class certification where
the court finds that questions common to class members presented by
a claim predominate over individual ones. Rule 23(c)(4) provides
that, "[w]hen appropriate, an action may be brought or maintained
as a class action with respect to particular issues." If a claim as
a whole does not meet the predominance requirement, under what
circumstances does Rule 23(c)(4) nevertheless authorize the
district court to carve out one or more discrete issues for class
treatment? May a court effectively sidestep individualized issues
that would otherwise prevent class certification by the expedient
of issue certification? In Martin v. Behr Dayton Thermal Products,
2018 WL 3421711 (6th Cir. July 16, 2018), the U.S. Court of Appeals
for the Sixth Circuit joined the Second and Ninth Circuits and
endorsed broad use of issue classes, permitting class treatment of
seven issues going to the defendants' knowledge and conduct in a
groundwater contamination suit. Three day days earlier, a federal
court had declined to certify issue classes proposed by former NHL
players seeking medical monitoring for brain injuries allegedly
incurred during their professional careers. In re National Hockey
League Players' Concussion Injury Litigation, 2018 WL 3421343 (D.
Minn. July 13, 2018). As the plaintiffs increasingly propose issue
certification as an alternative to class certification of their
causes of action as a whole, the need for definitive parameters on
use of the device remains clear. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Copyright 2018. All rights reserved. ISSN 1525-2272.
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