/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/180912.mbx C L A S S A C T I O N R E P O R T E R Wednesday, September 12, 2018, Vol. 20, No. 183 Headlines AETNA INC: Bid to File 1st Amended Peters RICO Suit Denied AETNA INC: Not Compelled to Produce Redacted/Withheld Docs AIR SERV: Hussein Suit Settlement Has Preliminary Approval ALLIANCEONE RECEIVABLES: Madorskaya Sues Over FDCPA Violation ALLY FINANCIAL: Rougeaux-Luna Files Suit Over Illegal Termination AMTRUST FINANCIAL: Bartholomew and Myhre Sue over Merger AMTRUST FINANCIAL: Consolidated Securities Suit Underway in NY AMTRUST FINANCIAL: Faces Multiple Merger-Related Class Suits AMTRUST FINANCIAL: Faces Pompano Police & Firefighters' Suit AMTRUST FINANCIAL: Faces Suit by Cambridge Retirement System ANDEAVOR: Raul Action Seeks to Halt Sale to Marathon ANTARES PHARMA: Pomerantz to Lead in Smith Securities Suit ARCADIA RECOVERY: Summ. Judgment Bid in Vullings Partly Granted ARYZTA LLC: Faces Stewart Suit over Race Discrimination AXON ENTERPRISES: To Seek Dismissal of Richey Suit BERKSHIRE MANUFACTURED: Smith Suit Seeks to Recover Unpaid Wages CAMERON PARISH, LA: SPL's Bid to Dismiss Landowners' Suit Granted CAPITAL MANAGEMENT: Violates Fair Debt Collection Act, Corea Says CASTLE PARKING: Court Denies Recusal Bid in Bankhead Suit CBS CORP: Samit Files Suit Over Share Price Drop CHEBURECK INC: Kikirov Sues over Breach of Fiduciary Duties CHIASMA INC: Discovery Sought in Gerneth Class Action CNX GAS: Judge Approves Settlement in Gas Royalties Case COCHRAN WHOLESALE: Attys' Fee/Incentive Awards in Camp Affirmed CONSUMER REPORTS: Faces Watterson Class Suit in S.D. New York CREDIT CONTROL: Ramos FDCA Suit Settlement Has Prelim Approval CV SCIENCES: Block & Leviton Files Securities Class Action DECORE-ATIVE SPECIALIST: Valenzuela Seeks Unpaid Wages, Penalties DEVERUS INC: Violates Fair Credit Reporting Act, Robinson Claims DEVILLE ASSET MANAGEMENT: Woods Disputes Vague Collection Letter DIAMOND RESORTS: Violates Fair Debt Collection Act, Gross Suit Says DIRECT FUNDING: Loyhayem Hits Autodialed Telemarketing Calls DIRECTV LLC: Court Denies Bid to Arbitrate Revitch's TCPA Suit DISTRICT OF COLUMBIA: Court Narrows Claims in Suit vs SNAP DITECH HOLDING: Continues to Defend Lee Class Action in Nevada DITECH HOLDING: Initial Approval of Elkin Settlement Sought EROS INT'L: Reports Dismissal of Class Action Lawsuit ESSA BANCORP: Accord in Motor Vehicle Repossession Suit Okayed ESSA BANCORP: Unit Still Defends Alleged RESPA Violations FAMILY COUNSELING: Conditional Class Cert in Coons Suit Suggested FIRST BANCORP: Puerto Rico High Court Won't Review Torres Rulings FLINT, MI: Seeks 6th Cir. Review of Ruling in Waid Suit FLOWERS FOODS: Farr Files Suit in Ala. Over FLSA Breach FORTERRA INC: Court Consolidates 3 Related Securities Suits FRITO-LAY NORTH: Allred Couple Can File FAC FULL CITIZENSHIP: Court Certifies Class in Craighead FLSA Suit GARDAWORLD CORP: Faces $25-Mil. Class Action Suit Over Unpaid OT GOLDEN ENTERTAINMENT: Nevada Class Suits Ongoing GOLDEN ENTERTAINMENT: Transient Tax Suit Voluntarily Dismissed GREEN DOT: Pays $2.2 Million in Service Disruption Related Suit H&M INTERNATIONAL: Yates Suit Asserts Racial Discrimination HANDI-HOUSE MFG: Class Certification Bid in Brantley Suit Denied HERTZ CORP: Hirsi Labor Suit Settlement Has Prelim Approval HOUSTON, TX: Beckwith Appeals S.D. Texas Ruling to 5th Cir. IMPINJ INC: Montemarano Files Securities Class Suit in W.D. Wash. J2 GLOBAL: 8th Cir. Grants More Time to Seek Rehearing JAMBA JUICE: Facing Lawsuit Over Deceptively Marketed Smoothies KANDI TECHNOLOGIES: Lead Plaintiffs File Amended Complaint KELLOGG SALES: Seeks 9th Cir. Review of Ruling in Hadley Suit KONA GRILL: Parties in Boots Class Action Fail to Reach Accord LASALLE HOTEL: Faces Erie County Employees Retirement System Suit LEFTOM FOODS: Rodriguez Sues Over Unpaid Overtime LIBERTY AND MARCUS: Lawyer Sued Over Alleged $50-Mil. Fraud LIBERTY MUTUAL: MSPA Appeals Dismissal of Amended Complaint LIONS GATE: Settles Class Action Suit With Starz Shareholders LOGMEIN INC: Kessler Topaz Files Securities Fraud Class Suit LOUISIANA: Judge Grants Class Status to Public Defense Suit LTD FINANCIAL: Mirzadjanyan Files Suit Over FDCPA Violation MCCLATCHY CO: Appeal in Becerra Class Suit Still Pending MDL 2672: Court Grants Admin Motion to Seal Portions of Complaint MEDPRO GROUP: Settlement in Carrel FMLA Suit Has Final Approval MELINTA THERAPEUTICS: Bid to Dismiss Merger Suit Stll Pending MEZZI MARKETING: Motion to Compel Filed in Katz Suit MINNESOTA: Suit Over Sex Offenders Commitment Program Ends MSG BEACON: Reyes Files ADA Suit in N.Y. NATIONWIDE FUNDING: Wendell H. Stone Hits Illegally Faxed Ads NEW YORK ALLERGY: Picon Suit Alleges Disabilities Act Violations NINETY NINE RESTAURANTS: Hughes Sues over Take-Out Food Charges NOVO NORDISK: Carr Suit Remanded to State Court ODWALLA INC: 9th Cir. Appeal Filed in Wilson Class Suit PAYAM INC: Contreras Sues to Recover Withheld Gratuities PC SHIELD INC: Wendell H. Stone Co. Files Suit Over TCPA Breach PERRIGO CO: Bid to Dismiss Roofers Securities Suit Partly Granted PERSONAL TOUCH: Faces Taylor Suit Alleging FLSA Violations PLAIN GREEN: Jurisdictional Discovery in Gibbs RICO Suit Granted PLAINS ALL AMERICAN: 9th Cir. to Review Class Certification Ruling PLAINS ALL AMERICAN: Appeal in Texas Class Suit Underway PRIMERICA INC: Kelly Sues Over Illegal Bank Account Withdrawals PUMA BIOTECHNOLOGY: Hearing on Summary Judgment Set for Sept. QUEENS MEDICAL: Violates Disabilities Act, Picon Suit Alleges RAINBOW NAILS: Yang Files FLSA Class Suit in New York RESOLUTE FOREST: Settlement in Reynolds Case Wins Final Approval REWALK ROBOTICS: Court Narrows Claims in Jasinski's PSLRA Suit RYZE CLAIM: Fails to Pay Overtime Wages, Templar Suit Says SANDRIDGE ENERGY: West & Hopson Amended Suit Underway in Oklahoma SANTA BARBARA, CA: Fails to Pay Proper Wages, Griguoili et al. Say SAUCEY INC: Cole Labor Suit Removed to C.D. Calif. SECURITY CREDIT: Huspon Sues Over Alleged FDCPA Violation SELECT PORTFOLIO: Williams Files Suit in Illinois Over FCRA Breach SIDHDHY VINAYAK: Faces Mercer Suit in S.D. New York SIERRA ONCOLOGY: Appeal in New York Class Action Still Pending SIERRA ONCOLOGY: Parties in California Suits Reach Settlement SPEEDY CASH: Faces Delisle Suit in Calif. Dist. Ct. SS&C TECHNOLOGIES: Unit Faces Ferguson Class Action STEMLINE THERAPEUTICS: 2nd Cir. Orders Withdrawal of Appeal SYNACOR INC: Continues to Defend New York Securities Class Suit TARGET CORP: Ference Appeals Ruling in Meta Suit to 6th Cir. TRUECAR INC: Bid for Class Certification in Rose Suit Denied TRUECAR INC: Oklahoma Police Pension Fund Named Lead Plaintiff UBER TECH: Waxler Sues Over Missed Breaks, Missing Paystubs UNIFIED WINDOW: Picon Sues Over Disabilities Act Violations VALENTINE & KEBARTAS: Vintila Disputes Collection Letter VANGUARD NATURAL: Dec. 14 Final Approval Hearing in Hurwitz Deal VERMYCK LLC: Gomes Suit Seeks Damages for Rent Overcharges, Fees WEBCOLLEX LLC: Hightower Alleges Wrongful Debt Collections WESTPORT HOMES: Compelled to Produce Docs in Coleman Suit WINDMILL HEALTH: Casillas Files Suit Over Under-filled Snack Food WINDSTREAM HOLDINGS: Doppelt Class Action Concluded WISCONSIN: Court Grants Bid for Summary Judgment in Austin Suit ********* AETNA INC: Bid to File 1st Amended Peters RICO Suit Denied ---------------------------------------------------------- In the case, SANDRA M. PETERS, on behalf of herself and all others similarly situated, Plaintiff, v. AETNA INC., AETNA LIFE INSURANCE COMPANY, and OPTUMHEALTH CARE SOLUTIONS, INC., Defendants, Civil Case No. 1:15-cv-00109-MR (W.D. N.C.), Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina, Asheville Division, (i) denied the Plaintiff's Motion for Leave to File First Amended Class Action Complaint; and (ii) deemed withdrawn (a) the Parties' Joint Motion for Leave to File Under Seal Portions of Plaintiff's Motion for Leave to File a First Amended Class Action Complaint and Proposed First Amended Class Action Complaint; and (b) the Defendants' Motion for Leave to File under Seal Portions of Defendants' Combined Opposition to Plaintiff's Motion for Leave to File First Amended Class Action Complaint and Exhibits C and D. On June 12, 2015, Peters filed the putative class action against the Defendants, asserting claims pursuant to the Racketeer Influenced and Corrupt Organizations Act and the Employee Retirement Income Security Act of 1974. In her Complaint, the Plaintiff alleged that Aetna engaged in a fraudulent scheme with Optum and other subcontractors, which were employed to process and administer health care claims, whereby insureds were caused to pay the subcontractors' administrative fees because the Defendants misrepresented such fees as medical expenses. The Plaintiff alleged that these misrepresentations allowed Aetna to illegally (i) obtain payment of the subcontractors' administrative fees directly from insureds when the insureds' deductibles have not been reached; (ii) use insureds' health spending accounts to pay for these fees; (iii) inflate insureds' co-insurance obligations using administrative fees; (iv) artificially reduce the amount of available coverage for medical services when such coverage is subject to an annual cap; and (v) obtain payment of the administrative fees directly from employers when an insured's deductible has been exhausted or is inapplicable. The Plaintiff asserted two claims based on RICO violations. In Count I of the Complaint, the Plaintiff alleged that Aetna and its subcontractors, including Optum, violated 18 U.S.C. Section 1962(c) by engaging in acts of mail and wire fraud in furtherance of a common purpose to collect administrative fees from Aetna insureds and plans by improperly characterizing them as payment for covered medical expenses, and as such, constitute an associated-in-fact "enterprise" as defined in 18 U.S.C. Section 1961(4). Alternatively, the Plaintiff alleged that Aetna has conducted multiple bilateral association-in-fact RICO enterprises with each of its subcontractors. In Count II of the Complaint, the Plaintiff alleged that the Defendants conspired to violate 18 U.S.C. Section 1962(c), in violation of 18 U.S.C. Section 1962(d). The Plaintiff also asserted two claims under ERISA, alleging that the Defendants breached their fiduciary duties as plan administrators, in violation of 29 U.S.C. Section 1132(a)(2) (Count III) and 29 U.S.C. Section 1132(a)(1), (a)(3), and/or 29 U.S.C. Section 1104 (Count IV). Aetna and Optum moved to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the Plaintiff lacked standing to assert her claims and that her Complaint otherwise failed to state claims upon which relief can be granted. On Aug. 31, 2016 the Court entered an Order, granting in part and denying in part the Defendants' motions. Specifically, the Court concluded that the Plaintiff had standing to assert claims regarding Aetna's actions with respect to Optum but that the Plaintiff lacked standing to assert any claims with respect to Aetna's interactions with other subcontractors. It, however, dismissed the Plaintiff's RICO claims with prejudice. On Nov. 21, 2016, the Court entered a Pretrial Order and Case Management Plan, setting a fact discovery deadline of June 1, 2017 and a class certification motion deadline of Oct. 10, 2017. In April 2017, upon motion of the parties, the Court amended the Case Management Plan to extend the fact discovery deadline to Oct. 1, 2017 and the class certification motion deadline to Feb. 16, 2018. In September 2017, the Case Management Plan was modified again at the parties' request to extend these deadlines to Dec. 15, 2017 and May 9, 2018, respectively. In November 2017, the Case Management Plan was modified a third time at the request of the parties to extend the fact discovery deadline to Jan. 31, 2018 and the class certification motion deadline to June 22, 2018. In January 2018, the Court granted the parties' fourth request for a modification of the Case Management Plan, extending the fact discovery deadline to March 8, 2018 and the class certification motion deadline to Aug. 3, 2018. In the Order, however, the Court cautioned that absent a showing of extraordinary circumstances, no further extensions of these deadlines will be permitted. On May 29, 2018, the Plaintiff filed the present motion seeking leave to file an Amended Complaint. For grounds, the Plaintiff contends that she has uncovered evidence in discovery showing that the Defendants have coordinated in establishing and directing a RICO enterprise to illegally collect Optum's charges from members and plans under the guise that the charges are medical expenses. Accordingly, the Plaintiff seeks leave to amend her Complaint to reflect these new facts about the Defendants' enterprise and to test her RICO claims on the merits. The Defendants oppose the Plaintiff's motion. Judge Reidinger finds that the Court dismissed the Plaintiff's RICO claims more than two years ago. The Plaintiff, however, never sought reconsideration of this dismissal order. Regardless of the appropriate procedural vehicle for the Plaintiff's request, the fact remains that amendment of the Plaintiff's Complaint would only be proper if such amendment were not futile. Here, the Plaintiff asserts that her amended pleading is based on evidence which was disclosed during discovery in the litigation. These newly discovered facts, however, are not materially different from the factual allegations that the Court previously considered in dismissing her RICO claims. The Judge finds that the Plaintiff's proposed amended allegations do nothing to change the Court's prior Rule 12(b)(6) analysis. In addition to the futility of the Plaintiff's proposed amendment, the Judge finds that the Plaintiff's amendment is dilatory and would require a significant modification of the Case Management Plan. The Plaintiff waited more than 11 weeks after the discovery period ended to file her motion to amend. The fact discovery period has closed, and the Plaintiff is on the verge of filing her motion for class certification. Granting the Plaintiff leave to amend the Complaint at this late date in order to re-assert her RICO claims would prejudice the Defendants by forcing them to conduct further discovery, thereby adding even further expense. For all these reasons, Judge Reidinger denied the Plaintiff's motion for leave to file an amended complaint is denied. Further, in light of the representations of the parties as set forth in the Defendants' Supplemental Submission Regarding Pending Motions to Seal, the parties' motions to seal are deemed withdrawn. A full-text copy of the Court's June 27, 2018 Memorandum of Decision and Order is available at https://is.gd/VOUJvo from Leagle.com. Sandra M. Peters, on behalf of herself and all others similarly situated, Plaintiff, represented by Carl Spencer Kravitz -- ckravitz@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, D. Brian Hufford -- dbhufford@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, David M. Wilkerson -- dwilkerson@vwlawfirm.com -- The Van Winkle Law Firm, Heather Whitaker Goldstein -- HGoldstein@vwlawfirm.com -- The Van Winkle Law Firm, Jason S. Cowart -- jcowart@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Jason M. Knott -- mclark@zuckerman.com -- Zuckerman Spaeder, LLP, pro hac vice, Nell Z. Peyser -- npeyser@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Richard Miles Clark , Zuckerman Spaeder LLP, pro hac vice & Larry S. McDevitt -- lmcdevitt@vwlawfirm.com -- The Van Winkle Law Firm. Aetna Inc. & Aetna Life Insurance Company, Defendants, represented by E. Thomison Holman, Holman Law, PLLC, Geoffrey Manson Sigler -- gsigler@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Jason N. Kleinwaks -- jkleinwaks@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Jason E. Neal, Gibson, Dunn & Crutcher, pro hac vice, Matthew Scott Roberson -- mroberson@mwblawyers.com -- Adams Hendon Carson Crow & Saenger, P.A. & Richard Joseph Doren -- rdoren@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice. OptumHealth Care Solutions, Inc., Defendant, represented by Bowen R. Shoemaker, Alston & Bird LLP, pro hac vice, Brian D. Boone, Alston & Bird LLP, Emily Claire McGowan -- emily.mcgowan@alston.com -- Alston & Bird LLP, Mark Timothy Calloway -- mark.calloway@alston.com -- Alston & Bird LLP, Michael R. Hoernlein -- michael.hoernlein@alston.com -- Alston & Bird LLP, Rebecca L. Gauthier -- rebecca.gauthier@alston.com -- Alston & Bird LLP & Jahnisa T. Loadholt -- jahnisa.loadholt@alston.com -- Alston & Bird LLP, pro hac vice. AETNA INC: Not Compelled to Produce Redacted/Withheld Docs ---------------------------------------------------------- In the case, SANDRA M. PETERS, on behalf of herself and all others similarly situated, Plaintiff, v. WILL ., AETNA LIFE INSURANCE COMPANY, and OPTUMHEALTH CARE SOLUTIONS, INC., Defendants, Civil Case No. 1:15-cv-00109-MR (W.D. N.C.), Judge Martin Reidinger of the U.S. District Court for the Western District of North Carolina, Asheville Division, denied the Plaintiff's Motion to Compel Aetna and Optum to Produce Documents Improperly Redacted or Withheld as Privileged. The case is a putative class action brought by the Peters against the Defendants, asserting claims pursuant to the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"). The Plaintiff is a former member of an ERISA plan self-funded by her husband's former employer, Mars, Inc., for its employees and retirees. Mars, through its benefits committee, is the Plan Administrator for the Plan. Through a Master Service Agreement, the Mars Plan hired Aetna to perform certain enumerated administrative services for the plan. In that regard, Mars delegated discretionary authority to Aetna to determine entitlement to benefits, including discretionary authority to determine and evaluate facts and evidence, and discretionary authority to construe the terms of the Plan. Beginning in 2012, Aetna entered into a series of provider contracts with Optum, by which Aetna agreed to pay Optum flat "per visit" rates for physical therapy, occupational therapy, and chiropractic services in particular markets. In exchange, Optum agreed to provide Aetna and its customers with access to Optum's network of treating providers, along with clinical oversight, claims processing, and other administrative services related to this network. Optum would also pay its contracted providers for the services they performed. Because of this structure, there would often be a difference between the per visit rate paid by Aetna to Optum and the rate paid by Optum to its downstream treating provider, which would be paid to Optum as an "administrative fee." In her Complaint, the Plaintiff alleges that Aetna and Optum fraudulently misrepresented such administrative fees as medical expenses. The Plaintiff alleges that these misrepresentations allowed Aetna to illegally (i) obtain payment of Optum's administrative fees directly from insureds when the insureds' deductibles have not been reached; (ii) use insureds' health spending accounts to pay for these fees; (iii) inflate insureds' co-insurance obligations using administrative fees; (iv) artificially reduce the amount of available coverage for medical services when such coverage is subject to an annual cap; and (v) obtain payment of the administrative fees directly from employers when an insured's deductible has been exhausted or is inapplicable. The The Plaintiff alleges that in so doing, the Defendants breached their fiduciary duties as plan administrators, in violation of 29 U.S.C. Section 1132(a)(2) (Count III) and 29 U.S.C. Section 1132(a)(1), (a)(3), and/or 29 U.S.C. Section 1104 (Count IV). In November 2016, the Plaintiff served discovery requests on the Defendants, seeking the production of certain documents. In response, the Defendants served their initial privilege logs asserting the attorney-client privilege. After meeting and conferring, the Defendants agreed to serve revised privilege logs, and the Plaintiff agreed to provide a list of categories of documents that were of particular interest to the Plaintiff under the fiduciary exception to the attorney-client privilege. The Plaintiff's categories included legal advice related to the following topics: (i) Whether Optum was providing services that were covered under the terms of Aetna's plans; (ii) Whether the Defendants were permitted to use Optum's rates when assessing member and plan responsibility; (iii) Whether it was proper for the Defendants to represent Optum as a provider to plans and members; (iv) The Defendants' use of CPT4 codes for services not performed by actual providers (dummy codes) when administering claims for benefits; (v) Communications with plans and members about the Optum arrangement or related plan changes; (vi) The Defendants' medical loss reporting obligations; (vii) The use of plan assets to compensate Optum (such as the provision in the Provider Agreements requiring Aetna to make direct payment to Optum from plans); and (viii) Whether Optum's services were medically necessary under Aetna plans. Aetna advised that it was not aware of any legal advice aside from advice falling into categories 5 and 6 (communications with plans and members about the Optum arrangement or related plan changes and the Defendants' medical loss reporting obligations), and Optum advised that it was only aware of the existence of legal advice falling into category 4 (the Defendants' use of CPT codes for services not performed by actual providers when administering claims for benefits). The Defendants, however, refused to stipulate that they received no legal advice regarding the other categories. The Defendants served revised privilege logs on December 8 and 11, 2017, and Optum served a supplemental log on Dec. 22, 2017. At the Defendants' request, the Plaintiff sought to further narrow the dispute by highlighting documents that the Plaintiff believed were either subject to the fiduciary exception to the attorney-client privilege or were likely to be subject to that exception. The parties met and conferred again but were unable to resolve the dispute. The Plaintiff now moves to compel the Defendants to produce certain documents that the Defendants have redacted or withheld as privileged. The Plaintiff contends that such documents must be produced because they are subject to the fiduciary exception to the attorney-client privilege. The Plaintiff further contends that Aetna is also improperly asserting work product privilege with respect to certain notes taken by Aetna employee Shiron Hagens ("Hagens' Notes") regarding her communications with Optum employees concerning the Plaintiff's ERISA plan. Accordingly, Plaintiff asks the Court to: (1) compel Aetna and Optum to produce the withheld documents that fall within the fiduciary exception; (2) conduct an in camera review of certain withheld documents that appear likely to be subject to the fiduciary exception; and (3) compel Aetna to produce Hagens' Notes. The Defendants filed Responses in opposition, and the Plaintiff filed Replies to each Response. The Court held a hearing on the Plaintiff's motion on June 19, 2018. Judge Reidinger concludes that the Plaintiff has failed to demonstrate that Optum was functioning as a fiduciary with respect to any aspect of the Mars Plan. Accordingly, het concludes that the fiduciary exception does not apply, and Optum is not required to produce any documents that it has claimed are subject to the attorney-client privilege. The Plaintiff has also failed to show how the reporting of the data falls within Aetna's fiduciary functions to her or her Plan. Indeed, because the Plaintiff's plan is self-funded, these MLR requirements are not even applicable to the Mars Plan. Accordingly, the Judge concludes that Aetna should not be required to produce these documents under the fiduciary exception to the attorney-client privilege. Further, the Judge finds that the Plaintiff has failed to establish a factual basis sufficient to support a good faith belief that in camera inspection may reveal evidence that the information in these documents relate to plan administration. Accordingly, he, in the exercise of his discretion, declines to conduct an in camera review of these additional documents. Finally, Hagens' notes fall squarely within the work product doctrine. They were prepared at the direction of counsel in the midst of ongoing litigation with the Plaintiff. And even assuming that the fiduciary exception applies to work product, it is clear that Aetna's relationship with the Plan was adversarial at the time these notes were taken. As such, the fiduciary exception is simply not applicable. Further, the Plaintiff has not demonstrated any substantial need for these notes, as the Plaintiff's counsel has already been able to question two Optum employees regarding any non-privileged facts that could be learned from their discussions with Hagens, and has discovered the notes of those Optum employees. For all of these reasons, the Plaintiff's motion to compel Hagens' Notes is denied. Accordingly, Judge Reidinger deneid the Plaintiff's Motion to Compel Aetna and Optum to Produce Documents Improperly Redacted or Withheld as Privileged. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/1aDPNu from Leagle.com. Sandra M. Peters, on behalf of herself and all others similarly situated, Plaintiff, represented by Carl Spencer Kravitz -- ckravitz@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, D. Brian Hufford -- dbhufford@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, David M. Wilkerson -- dwilkerson@vwlawfirm.com -- The Van Winkle Law Firm, Heather Whitaker Goldstein -- HGoldstein@vwlawfirm.com -- The Van Winkle Law Firm, Jason S. Cowart -- jcowart@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Jason M. Knott -- mclark@zuckerman.com -- Zuckerman Spaeder, LLP, pro hac vice, Nell Z. Peyser -- npeyser@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Richard Miles Clark , Zuckerman Spaeder LLP, pro hac vice & Larry S. McDevitt -- lmcdevitt@vwlawfirm.com -- The Van Winkle Law Firm. will . & Aetna Life Insurance Company, Defendants, represented by E. Thomison Holman, Holman Law, PLLC, Geoffrey Manson Sigler -- gsigler@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Jason N. Kleinwaks -- jkleinwaks@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Jason E. Neal, Gibson, Dunn & Crutcher, pro hac vice, Matthew Scott Roberson -- mroberson@mwblawyers.com -- Adams Hendon Carson Crow & Saenger, P.A. & Richard Joseph Doren -- rdoren@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice. OptumHealth Care Solutions, Inc., Defendant, represented by Bowen R. Shoemaker, Alston & Bird LLP, pro hac vice, Brian D. Boone, Alston & Bird LLP, Emily Claire McGowan -- emily.mcgowan@alston.com -- Alston & Bird LLP, Mark Timothy Calloway -- mark.calloway@alston.com -- Alston & Bird LLP, Michael R. Hoernlein -- michael.hoernlein@alston.com -- Alston & Bird LLP, Rebecca L. Gauthier -- rebecca.gauthier@alston.com -- Alston & Bird LLP & Jahnisa T. Loadholt -- jahnisa.loadholt@alston.com -- Alston & Bird LLP, pro hac vice. AIR SERV: Hussein Suit Settlement Has Preliminary Approval ---------------------------------------------------------- In the case, MOHAMED A. HUSSEIN, an individual, and HASSAN HIRSI, an individual, Plaintiffs, v. AIR SERV CORPORATION, a foreign corporation, Defendant, Case No. 2:16-cv-00278 RSL (W.D. Wash.), Judge of the U.S. District Court for the Western District of Washington, Seattle, granted the parties' Stipulated Motion for Preliminary Approval of the Class Action Settlement and Appointment of Class Representatives, and the Stipulated Motion and Submission of Amended Notice. Based on his review of the Agreement and all of the files, records, and proceedings herein, the Judge preliminarily approved the Agreement as fair, reasonable and adequate and within the range of reasonableness for preliminary settlement approval. On March 1, 2017, the Court granted the Parties' Stipulated Motion for Class Certification, Appointment of Class Counsel and Class Representatives. A Class was certified under Fed. R. Civ. P. 23(b) defined as all employees of Air Serv who have been Transportation Workers and who worked one or more hours within the City of SeaTac at any time during the time period from Jan. 1, 2014 to Feb. 12, 2016 who can be ascertained from Air Serv's records as having been paid less than the prevailing minimum wage prescribed by City of SeaTac Ordinance 7.45.050 and who have not recovered back wages under separate legal action. The Court also appointed Mohamed A. Hussein and Hassan Hirsi as Class Representatives and the law firm of Badgley Mullins Turner PLLC as class counsel. Following certification of the Class, Class Representative Hassan Hirsi chose to join a parallel action pending in King County Superior Court, Isse v. Air Serv, King County Superior Court Case No. 17-2-02687-5 SEA. As such, Mr. Hirsi cannot effectively serve in his capacity as Class Representative. To remedy this and to ensure Class Members' interests are protected by a quorum of diligent representatives, Mr. Hussein seeks the appointment of Class Members Hodan Ahmed Dahir and Mohamed Yusef as additional Class Representatives. Accordingly, the Judge approvesd Ms. Dahir and Mr. Yusef as the Class Representatives. A final approval hearing will be held on Dec. 5, 2018, at 10:30 a.m. as set forth in the Notice to the Settlement Class. After the Settlement Hearing, the Court may enter a settlement order and final judgment in accordance with the Agreement that will adjudicate the rights of the Settlement Class Members with respect to the Released Claims being settled. The scope of the Released Claims will be a full and complete release of any and all claims, known or unknown, asserted or unasserted, arising under any provisions of Proposition 1 and Chapter 7.45 et seq. of the City of SeaTac Municipal Code, the Washington Minimum Wage Act, and the Fair Labor Standards Act. The Class Notice will be sent within 21 days following entry of the Order. The Settlement Administrator (Simpluris) will provide mail notice to persons in the Settlement Class for whom the Defendant possesses a mailing address. The Settlement Administrator will also provide email notice to persons in the Settlement Class for whom the Defendant possesses an email address. The Judge confirmed that it is appropriate for the Defendant to provide the information necessary for the Settlement Administrator to provide the notice contemplated herein and to administer the settlement, including names, addresses and Individual account information. All persons in the Settlement Class will possess the right to opt out by sending a written request to a designated address within 30 days after the Notice Deadline. Not later than 15 days from the exclusion deadline, the Settlement Administrator will provide Class Counsel with all objections received, which will then be filed with the Court. The deadline to respond to objections will be 15 days following the Objection/Exclusion deadline. The Judge approved the following timeline: a. Preliminary Approval Order Entered - July 27, 2018 b. Initial Notice Mailing Date - Aug. 17, 2018 c. Class Counsel's Fee Motion Submitted - Aug. 17, 2018 d. Notice Deadline - Setp. 10, 2018 e. Exclusion/Objection Deadline - Oct. 10, 2018 f. Final Approval Brief and Response to Objections - Oct. 25, 2018 g. Final Approval Hearing/Noting Date - Dec. 5, 2018 h. Final Approval Order Entered - At the Court's Discretion The Final Hearing is scheduled on Dec. 5, 2018 at 10:00 a.m. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/LxrHEh from Leagle.com. Mohamed A Hussein, an individual, Plaintiff, represented by Daniel R. Whitmore -- amber@whitmorelawfirm.com -- & Duncan Calvert Turner -- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC. Hassan Hirsi, an individual, Plaintiff, represented by Duncan Calvert Turner, BADGLEY MULLINS TURNER PLLC. Air Serv Corporation, a foreign corporation, Defendant, represented by Darren Anthony Feider -- dfeider@sebrisbusto.com -- SEBRIS BUSTO JAMES & Jeffrey A. James -- jaj@sebrisbusto.com -- SEBRIS BUSTO JAMES. Abdisalan Fitaye, Objector, represented by David N. Mark -- david@marklawoffice.com -- WASHINGTON WAGE CLAIM PROJECT. ALLIANCEONE RECEIVABLES: Madorskaya Sues Over FDCPA Violation ------------------------------------------------------------- A class action lawsuit has been filed against Allianceone Receivables Management, Inc. The case is styled as Olga Madorskaya, on behalf of herself and all others similarly situated v. Allianceone Receivables Management, Inc., Case No. 1:18-cv-04967 (E.D.N.Y., August 31, 2018). The lawsuit arises from alleged violations of the Fair Debt Collection Practices Act. Allianceone Receivables Management, Inc., provides financial services. The Company offers collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: Daniel C. Cohen, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: dan@cml.legal ALLY FINANCIAL: Rougeaux-Luna Files Suit Over Illegal Termination ----------------------------------------------------------------- Hollie Rougeaux-Luna, on behalf of herself and all others similarly situated, Plaintiffs, v. Ally Financial, Inc., Defendant, Case No. 18-cv-00321 (W.D. N.C., June 20, 2018), seeks to recover unpaid wages, unpaid overtime compensation, liquidated damages, statutory penalties, prejudgment interest, attorneys' fees and costs and other damages under the Fair Labor Standards Act and the North Carolina Wage and Hour Act. Rougeaux-Luna was hired to work as a Change Manager for Defendant through CompuGroup Technologies, a staffing agency. On November 20, 2017, without advance notice, Plaintiff was terminated. She contends that the reasons for terminating her employment were a pretext for illegal discrimination and retaliation. [BN] Plaintiff is represented by: Philip J. Gibbons, Jr., Esq. Craig L. Leis, Esq. GIBBONS LEIS, PLLC 14045 Ballantyne Corporate Place, Ste. 325 Charlotte, NC 28277 Email: phil@gibbonsleis.com craig@gibbonseleis.com - and - James B. Zouras, Esq. Teresa M. Becvar, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Email: jzouras@stephanzouras.com tbecvar@stephanzouras.com AMTRUST FINANCIAL: Bartholomew and Myhre Sue over Merger -------------------------------------------------------- AmTrust Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company faces merger-related class action suits entitled, Bartholomew v. AmTrust Fin'l Services, Inc., et al. and Myhre v. AmTrust Fin'l Services, Inc., et al., respectively. On March 1, 2018, the Company entered into an agreement and plan of merger with Evergreen Parent, L.P., an entity formed by private equity funds managed by Stone Point Capital LLC, together with Barry D. Zyskind, the Company's Chairman and CEO, George Karfunkel and Leah Karfunkel pursuant to which Evergreen Parent will acquire all of the Company's outstanding common shares, par value $0.01 per share that are not currently owned or controlled by the Karfunkel-Zyskind Family and its affiliates and certain related parties. The deal is valued at about $2.7 billion. The Karfunkel-Zyskind Family and its affiliates and certain related parties own or control approximately 55% of the Company's outstanding shares of Common Stock at the time of the merger deal. On June 6, the parties entered into Amendment No. 1 to the Merger Agreement. On June 21, the Amended Merger Agreement was adopted by the affirmative vote of (i) the holders of at least a majority of all outstanding shares of Common Stock and (ii) the holders of at least a majority of all outstanding shares of Common Stock held by the "Public Stockholders", in each case, entitled to vote on the merger at a meeting of stockholders duly called and held for such purpose. Consummation of the merger remains subject to certain customary closing conditions, including regulatory approvals. On May 9, 2018, purported stockholders of the Company filed putative class action lawsuits against the Company and members of the Board (other than Mr. Serock) in the United States District Court for the Southern District of New York, captioned Bartholomew v. AmTrust Fin'l Services, Inc., et al., Case No. 1:18-cv-04178 (S.D.N.Y.) and Myhre v. AmTrust Fin'l Services, Inc., et al., Case No. 1:18-cv-04175 (S.D.N.Y.), respectively. The complaints are substantially identical and allege that the defendants violated Sections 14(a) and 20(a) of the Exchange Act because the preliminary proxy statement filed with the SEC on April 9, 2018 allegedly omitted material information with respect to the merger, thus rendering the preliminary proxy statement false and misleading. The complaints seek, among other things, injunctive relief preventing the consummation of the merger and costs of the applicable action, including reasonable allowance for plaintiff attorneys' and experts' fees. AmTrust Financial Services, Inc. provides property and casualty insurance in the United States and internationally. The company operates in three segments: Small Commercial Business, Specialty Risk and Extended Warranty, and Specialty Program. AmTrust Financial Services, Inc. was founded in 1998 and is based in New York, New York. AMTRUST FINANCIAL: Consolidated Securities Suit Underway in NY -------------------------------------------------------------- AmTrust Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the consolidated class action lawsuit entitled In re AmTrust Financial Services, Inc. Securities Litigation, is still ongoing. The Company and certain of its officers and directors are also defendants in three putative securities class action lawsuits filed in March and April of 2017 in the U.S. District Court for the Southern District of New York. Another putative class action, filed in February 2017 in the U.S. District Court for the Central District of California, was voluntarily dismissed (Miller v. AmTrust, Zyskind, and Pipoly). The three cases in the Southern District of New York have been consolidated under the case name In re AmTrust Financial Services, Inc. Securities Litigation. Plaintiffs in this proceeding filed a consolidated, amended complaint on August 21, 2017. Plaintiffs assert in the consolidated, amended complaint claims under Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated thereunder and Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended. The consolidated, amended complaint adds as defendants BDO USA LLP, Citigroup Global Markets Inc., Keefe, Bruyette & Woods, Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC, and UBS Securities LLC. Plaintiffs seek an unspecified amount in damages, attorneys' fees, and other relief. AmTrust Financial said, "The Company believes the allegations are unfounded and is vigorously pursuing its defenses." AmTrust Financial Services, Inc. provides property and casualty insurance in the United States and internationally. The company operates in three segments: Small Commercial Business, Specialty Risk and Extended Warranty, and Specialty Program. AmTrust Financial Services, Inc. was founded in 1998 and is based in New York, New York. AMTRUST FINANCIAL: Faces Multiple Merger-Related Class Suits ------------------------------------------------------------ AmTrust Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company is facing multiple merger-related class action lawsuits. On March 1, 2018, the Company entered into an agreement and plan of merger with Evergreen Parent, L.P., an entity formed by private equity funds managed by Stone Point Capital LLC, together with Barry D. Zyskind, the Company's Chairman and CEO, George Karfunkel and Leah Karfunkel pursuant to which Evergreen Parent will acquire all of the Company's outstanding common shares, par value $0.01 per share that are not currently owned or controlled by the Karfunkel-Zyskind Family and its affiliates and certain related parties. The deal is valued at about $2.7 billion. The Karfunkel-Zyskind Family and its affiliates and certain related parties own or control approximately 55% of the Company's outstanding shares of Common Stock at the time of the merger deal. On June 6, the parties entered into Amendment No. 1 to the Merger Agreement. On June 21, the Amended Merger Agreement was adopted by the affirmative vote of (i) the holders of at least a majority of all outstanding shares of Common Stock and (ii) the holders of at least a majority of all outstanding shares of Common Stock held by the "Public Stockholders", in each case, entitled to vote on the merger at a meeting of stockholders duly called and held for such purpose. Consummation of the merger remains subject to certain customary closing conditions, including regulatory approvals. On May 15, 2018, a purported stockholder of the Company filed a putative class action lawsuit against the Company and members of the Board in the United States District Court for the Northern District of Ohio, captioned Shust v. AmTrust Fin'l Services, Inc., et al., Case No. 1:18-cv-01129 (N.D. Ohio). On May 18, 2018, a purported stockholder of the Company filed a putative class action lawsuit against the Company and members of the Board in the United States District Court for the Southern District of New York, captioned Raul v. AmTrust Fin'l Services, Inc., et al., Case No. 1:18-cv-04440 (S.D.N.Y.). On May 21, 2018, a purported stockholder of the Company filed a putative class action lawsuit against the Company, members of the Board, Evergreen Parent, Merger Sub and Stone Point in the United States District Court for the Southern District of New York, captioned Rabinowitz v. AmTrust Fin'l Services, Inc., et al., Case No. 1:18-cv-04484 (S.D.N.Y.). The complaints allege that the defendants violated Sections 14(a) and 20(a) of the Exchange Act because the definitive proxy statement, in the case of the Shust complaint and the Rabinowitz complaint, and the preliminary proxy statement, in the case of the Raul complaint, omitted or misrepresented material information concerning the merger. The complaints seek, among other things, injunctive relief preventing the consummation of the merger unless additional disclosure is provided and costs of the applicable action, including for plaintiff attorneys' and experts' fees. AmTrust Financial Services, Inc. provides property and casualty insurance in the United States and internationally. The company operates in three segments: Small Commercial Business, Specialty Risk and Extended Warranty, and Specialty Program. AmTrust Financial Services, Inc. was founded in 1998 and is based in New York, New York. AMTRUST FINANCIAL: Faces Pompano Police & Firefighters' Suit ------------------------------------------------------------ AmTrust Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company is defending against a putative class action suit filed by the Pompano Beach Police & Firefighters' Retirement System, City of Lauderhill Police Officers' Retirement System and West Palm Beach Police Pension Fund. On March 1, 2018, the Company entered into an agreement and plan of merger with Evergreen Parent, L.P., an entity formed by private equity funds managed by Stone Point Capital LLC, together with Barry D. Zyskind, the Company's Chairman and CEO, George Karfunkel and Leah Karfunkel pursuant to which Evergreen Parent will acquire all of the Company's outstanding common shares, par value $0.01 per share that are not currently owned or controlled by the Karfunkel-Zyskind Family and its affiliates and certain related parties. The deal is valued at about $2.7 billion. The Karfunkel-Zyskind Family and its affiliates and certain related parties own or control approximately 55% of the Company's outstanding shares of Common Stock at the time of the merger deal. On June 6, the parties entered into Amendment No. 1 to the Merger Agreement. On June 21, the Amended Merger Agreement was adopted by the affirmative vote of (i) the holders of at least a majority of all outstanding shares of Common Stock and (ii) the holders of at least a majority of all outstanding shares of Common Stock held by the "Public Stockholders", in each case, entitled to vote on the merger at a meeting of stockholders duly called and held for such purpose. Consummation of the merger remains subject to certain customary closing conditions, including regulatory approvals. On May 31, 2018, Pompano Beach Police & Firefighters' Retirement System, City of Lauderhill Police Officers' Retirement System and West Palm Beach Police Pension Fund filed a putative class action lawsuit against the Company's board of directors, Stone Point, Trident Pine Acquisition ("Trident Pine"), Trident VII Professionals Fund, Trident VII, Trident VII DE Parallel Fund, and Trident VII Parallel Fund (collectively, the "Trident Funds") in the Court of Chancery of the State of Delaware, Case No. 2018-0396-AGB. The complaint alleges that defendants Zyskind, G. Karfunkel. L. Karfunkel, Gulkowitz, Fisch, DeCarlo, and Rivera breached their fiduciary duties, which resulted in an unfair merger stock price through an unfair process. The complaint alleges additional claims for breaches of fiduciary duty against Zyskind, G. Karfunkel and L. Karfunkel in their capacity as officers and directors of the Company and as controlling stockholders of the Company. The complaint alleges that Stone Point, Trident Pine and the Trident Funds aided and abetted the breaches of fiduciary duties. AmTrust Financial Services, Inc. provides property and casualty insurance in the United States and internationally. The company operates in three segments: Small Commercial Business, Specialty Risk and Extended Warranty, and Specialty Program. AmTrust Financial Services, Inc. was founded in 1998 and is based in New York, New York. AMTRUST FINANCIAL: Faces Suit by Cambridge Retirement System ------------------------------------------------------------ AmTrust Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company is facing a putative class action suit filed by one of the Company's stockholders, Cambridge Retirement System. On March 1, 2018, the Company entered into an agreement and plan of merger with Evergreen Parent, L.P., an entity formed by private equity funds managed by Stone Point Capital LLC, together with Barry D. Zyskind, the Company's Chairman and CEO, George Karfunkel and Leah Karfunkel pursuant to which Evergreen Parent will acquire all of the Company's outstanding common shares, par value $0.01 per share that are not currently owned or controlled by the Karfunkel-Zyskind Family and its affiliates and certain related parties. The deal is valued at about $2.7 billion. The Karfunkel-Zyskind Family and its affiliates and certain related parties own or control approximately 55% of the Company's outstanding shares of Common Stock at the time of the merger deal. On June 6, the parties entered into Amendment No. 1 to the Merger Agreement. On June 21, the Amended Merger Agreement was adopted by the affirmative vote of (i) the holders of at least a majority of all outstanding shares of Common Stock and (ii) the holders of at least a majority of all outstanding shares of Common Stock held by the "Public Stockholders", in each case, entitled to vote on the merger at a meeting of stockholders duly called and held for such purpose. Consummation of the merger remains subject to certain customary closing conditions, including regulatory approvals. On June 4, 2018, Cambridge filed a putative class action lawsuit against the Company's board of directors, the Estate of Michael Karfunkel, Evergreen Parent, K-Z Evergreen, LLC, Merger Sub, Trident Pine Acquisition LP and Stone Point in the Court of Chancery of the State of Delaware, Case No. 2018-0402-AGB. Similar to the 2018 Pompano Beach action, the complaint alleges that the director defendants breached their fiduciary duties, which resulted in an unfair merger stock price through an unfair process. The complaint alleges an additional claim for breach of fiduciary duty against Zyskind, G. Karfunkel, L. Karfunkel, and M. Karfunkel in their capacity as controlling shareholders of the Company and alleges that Evergreen Parent, Stone Point, and Trident Pine aided and abetted the foregoing breaches of fiduciary duties. AmTrust Financial Services, Inc. provides property and casualty insurance in the United States and internationally. The company operates in three segments: Small Commercial Business, Specialty Risk and Extended Warranty, and Specialty Program. AmTrust Financial Services, Inc. was founded in 1998 and is based in New York, New York. ANDEAVOR: Raul Action Seeks to Halt Sale to Marathon ---------------------------------------------------- Malka Raul, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Andeavor, Gregory James Goff, Jeff A. Stevens, Paul L. Foster, William H. Schumann, Edward G. Galante, Jimmy W. Nokes, Mary Pat Mccarthy, David Lilley and Rodney Frank Chase, Defendants, Case No. 18-cv-00611 (W.D. Tex., June 20, 2018), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Andeavor by Marathon Petroleum Corporation and Mahi LLC; rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger; costs of this action, including reasonable allowance for attorneys' and experts' fees; and such other and further relief under the Securities Exchange Act of 1934. Each share of Andeavor common stock issued and outstanding will have the right to receive either 1.87 shares of Marathon Petroleum common stock, which is referred to as the stock consideration, or $152.27 in cash. However, the complaint says in addition to failing to conduct a fair and reasonable sales process, Defendants agreed to certain deal protection provisions in the Merger Agreement that operate conjunctively to deter other suitors from submitting a superior offer for Andeavor. Andeavor engages in the refining and marketing of petroleum products. [BN] Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Tel: (713) 227-7720 - and - Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER LLP 821 Franklin Ave, Suite 209 Garden City, NY 11530 Telephone: (516) 493-9780 Facsimile: (516) 280-7376 Email: jml@jlclasslaw.com ANTARES PHARMA: Pomerantz to Lead in Smith Securities Suit ---------------------------------------------------------- In the case, RANDY SMITH, individually and on behalf of all others similarly situated, Plaintiff, v. ANTARES PHARMA, INC., et al., Defendants, Civil Action No. 17-8945 (MAS) (DEA) (D. N.J.), Judge Michael A. Shipp of the U.S. District Court for the District of New Jersey appointed Serghei Lungu as the Lead Plaintiff; Pomerantz LLP as the Lead Counsel; and Lite DePalma Greenberg, LLC as the Liaison Counsel. The matter comes before the Court on two motions: (i) Faraj Touchan's Motion for Appointment as Lead Plaintiff and Approval of Lead Counsel; and (ii) Lungu's Motion for Appointment as Lead Plaintiff and Approval of Counsel. Touchan and Lungu each filed opposition and Lungu replied. The case is a putative securities class action brought on behalf of the investors who acquired Antares securities between Dec. 21, 2016 and Oct. 12, 2017. Defendants Antares, Robert F. Apple, Antares's CEO, and Fred M. Powell, Antares's CFO, allegedly made materially deceptive and misleading disclosures about the FDA approval process of Xyosted in certain press releases and SEC filings. Specifically, Antares allegedly made false and/or misleading statements and/or failed to disclose that: (i) Antares had provided insufficient data to the FDA in connection with its NDA for Xyosted; (ii) and accordingly, Antares had overstated the approval prospects for Xyosted; and (iii) as a result of the forgoing, Antares's public statements were materially false and misleading at all relevant times. First-filed Plaintiff Randy Smith initiated the action on Oct. 23, 2017. Pursuant to 15 U.S.C. Section 78u-4(a)(3)(A)(i), Smith published notice via Globe Newswire on that same day, informing investors within the putative class that they had until Dec. 22, 2017to move for appointment as the lead Plaintiff in the action. Both Touchan and Lungu timely moved for appointment, as both motions were filed on Dec. 22, 2017, and both filed certifications pursuant to 15 U.S.C. Section 78u-4(a)(2). Judge Shipp finds that Lungu is the presumptively most adequate Plaintiff because he suffered the greatest loss, the factor that carries the most weight in the Court's analysis. Lungu also retained a greater number of shares. The Judge finds that Touchan has not carried his burden to rebut the presumption of Lungu's adequacy. In support of the proposition that Lungu and Touchan suffered essentially equivalent amounts of loss, Touchan cites two out-of-circuit district court cases that involved losses of different magnitude. The Judge further finds that Lungu sufficiently satisfies the typicality and adequacy requirements of Rule 23 at this stage of the litigation. Based on only one same-day purchase and sale, Touchan asserts that Lungu is a day trader and, therefore, subject to a special defense. Finally, he finds the counsel of Lungu's choice, Pomerantz LLP and Lite DePalma Greenberg, LLC, to be sufficiently experienced in class actions and securities litigation to serve as Lead Counsel and Liaison Counsel, respectively. The Judge notes, however, that if, as the litigation progresses, circumstances warrant that the Court revisit its decision, the decision reached here regarding appointment of the lead Plaintiff and the lead counsel may be re-opened. Accordingly, for the reasons set forth, Judge Shipp granted Lungu's Motion for Appointment as Lead Plaintiff and Approval of Counsel is granted, and denied Touchan's Motion for Appointment as Lead Plaintiff and Approval of Lead Counsel. He appointed Lungu as the Lead Plaintiff, Pomerantz LLP as the Lead Counsel, and Lite DePalma Greenberg, LLC as the Liaison Counsel. An order consistent with the Memorandum Opinion will be entered. A full-text copy of the Court's June 27, 2018 Memorandum Opinion is available at https://is.gd/GXtK2y from Leagle.com. Faraj Touchan, Movant, represented by SHERIEF MORSY -- smorsy@faruqilaw.com -- FARUQI & FARUQI LLP. Tai Duong, Dennis Roof, Robert Szczodrowski, Qiang Xie & Daniel DeYoe, Movants, represented by EDUARD KORSINSKY -- ek@zlk.com -- LEVI & KORSINSKY LLP. Rehan Khan, Movant, represented by DONALD A. ECKLUND -- DEcklund@carellabyrne.com -- CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. SERGHEI LUNGU, Lead Plaintiff, represented by BRUCE DANIEL GREENBERG -- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC. RANDY SMITH, Individually and on behalf of all others similarly situated, Plaintiff, represented by BRUCE DANIEL GREENBERG, LITE DEPALMA GREENBERG, LLC. ANTARES PHARMA, INC., ROBERT F APPLE & FRED M POWELL, Defendants, represented by DAVID A. KOTLER -- david.kotler@dechert.com -- DECHERT LLP. ARCADIA RECOVERY: Summ. Judgment Bid in Vullings Partly Granted --------------------------------------------------------------- In the case, MICHELLE W. VULLINGS, individually and on behalf of others similarly situated, Plaintiff, v. ARCADIA RECOVERY BUREAU, LLC, Defendant, Civil Action No. 17-4361 (E.D. Pa.), Judge Edward G. Smith of the U.S. District Court for the Eastern District of Pennsylvania granted in part and denied in part the Defendants' motion for summary judgment on all of the Plaintiff's claims. The Plaintiff alleges that the Defendant violated the Fair Debt Collection Practices Act ("FDCPA") when it sent her a letter seeking to collect a debt owed by her deceased mother's estate. On Sept. 29, 2017, Vullings filed a complaint individually and on behalf of others similarly situated against the Defendant. The purported class action complaint sought relief due to various alleged violations of the FDCPA. Shortly thereafter, Arcadia filed a motion to dismiss the complaint. The motion asserted that Vullings lacked standing to sue on her own behalf because the alleged debt was in the name of an estate for which she was a personal representative and that even if she did have standing, her complaint failed to state a claim upon which relief could be granted. On Dec. 1, 2017, the Court granted the motion to dismiss on both grounds, but granted Vullings leave to file an amended complaint. The parties then filed cross-motions for reconsideration. In general terms, Arcadia believed that the Court should not have granted Vullings leave to file an amended complaint, and Vullings believed the court should not have granted the motion to dismiss in the first instance. The Court discussed the motions for reconsideration with the counsel in the Rule 16 scheduling conference on Jan. 10, 2018. During the Rule 16 conference, the Court was able to resolve the issues raised in the motions. One of these issues was whether Vullings needed to pursue the lawsuit in her individual capacity and/or in her capacity as the administrator of Gertrude Birtwistle's estate. She filed her original complaint solely in her individual capacity. At the Rule 16 conference, the Court informed Vullings of the need to also sue in her capacity as administrator to have any chance of recovery on two of her five claims. After hearing the Court's views on the matter, Vullings agreed to file an amended complaint and pursue relief both in her individual capacity and in her capacity as administrator of the Birtwistle's Estate. Accordingly, the Court entered a scheduling order on Jan. 10, 2018, which, inter alia, ordered Vullings to file an amended complaint by Jan. 17, 2018. Vullings timely filed an amended complaint on Jan. 16, 2018. In the amended complaint, Vullings claimed violations of the FDCPA in her individual capacity and as administrator of the estate. Arcadia then filed a motion to dismiss the amended complaint insofar as Vullings was asserting claims against it as the administrator of Birtwistle's Estate. Shortly thereafter, the court held a telephone conference with the counsel for the parties during which Vullings's counsel informed the Court that Vullings agreed to dismiss herself as a named Plaintiff insofar as she was the administrator of Birtwistle's Estate. As such, the Court entered an order on Feb. 21, 2018, which (1) dismissed by agreement Vullings as the administrator of the estate of Gertrude Elizabeth Birtwistle, and (2) denied the motion to dismiss as moot. Notably, Vullings did not agree to dismiss the claims that the Court believed she could only pursue in her capacity as administrator of Birtwistle's Estate. Those claims are still in the case. On May 7, 2018, Arcadia filed the instant motion for summary judgment. Arcadia raises numerous arguments in the motion, but one of them is that Vullings does not have standing to pursue two of the five claims in her individual capacity (i.e., she could only have succeeded on those claims if she was suing in her capacity as administrator of the estate). Vullings filed a response in opposition to the motion for summary judgment on May 21, 2018. Arcadia filed a reply in support of the motion for summary judgment on May 29, 2018. Judge Smith concludes that two of Vullings's claims fail because in her individual capacity, she is not a consumer and therefore lacks standing to sue. Two others fail because the undisputed facts do not, as a matter of law, support a claim for relief under the FDCPA. Thus, the only claim which survives is Vullings's section 1692e claim because the undisputed facts do not warrant summary judgment in favor of Arcadia under current Third Circuit precedent. In addition to her substantive arguments, Vullings attempts to thwart summary judgment by arguing (1) that the motion is premature and (2) that Arcadia never filed a claim on the underlying debt. Neither of these arguments are persuasive. Vullings's arguments regarding timing are unavailing because the motion was resolvable (and ultimately, resolved) almost entirely on the pleadings, the letter, and the envelope. Similarly, Vullings's argument that Arcadia never filed a claim on the underlying debt is irrelevant to the present motion because the amended complaint does not contemplate claims based on facts of that nature. For these reasons, Judge Smith granted the motion for summary judgment in part and denied it in part. The Court will enter a separate order. A full-text copy of the Court's June 27, 2018 Memoradandum Opinion is available at https://is.gd/tlMGLW from Leagle.com. MICHELLE W. VULLINGS, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiff, represented by BRENT F. VULLINGS -- bvullings@vullingslaw.com -- VULLINGS LAW GROUP LLC. ARCADIA RECOVERY BUREAU, LLC, Defendant, represented by RONALD S. CANTER -- rcanter@roncanterllc.com -- THE LAW OFFICES OF RONALD S. CANTER LLC. ARYZTA LLC: Faces Stewart Suit over Race Discrimination ------------------------------------------------------- ANTHONY STEWART, individually and on behalf of all others similarly situated, Plaintiff v. ARYZTA, LLC d/b/a ARYZTA CHICAGO and ARYZTA CICERO; LABOR NETWORK, INC.; and MIDWEST INVESTORS GROUP, INC. d/b/a METRO STAFFING SERVICES, Defendants, Case No. 1:18-cv-05346 (N.D. Ill., Aug. 6, 2018) is an action against the Defendants alleging violation of the Civil Rights Act of 1866, and the Racketeering Influenced and Corrupt Organizations Act. The Plaintiff alleges in the complaint that the Defendants attempted to avoid providing African American laborers almost any work at its Galewood and Cicero Plants by entering into a conspiracy with two staffing agencies, Labor Network and Metro Staffing, in order to redirect laborers seeking work assignments from the Defendants' plants to the two staffing agencies and utilize the staffing agencies to segregate out African American laborers and to provide the Defendants with its preferred laborers, Hispanic laborers. Aryzta LLC produces, markets, and sells sweet baked goods. The company offers frozen cookie dough, thaw and serve cookies, muffins, pastries, and other baked goods. Aryzta LLC was formerly known as Otis Spunkmeyer, Inc. The company was founded in 1977 and is based in San Leandro, California with additional offices in Ogden, Utah; Dallas and Austin, Texas; Los Angeles, Manteca, and San Leandro, California; Geneva and Chicago, Illinois; Battle Creek, Michigan; and McDonough, Georgia. Aryzta LLC operates as a subsidiary of Otis Spunkmeyer Holdings, Inc. [BN] The Plaintiff is represented by: Christopher J. Williams, Esq. WORKERS' LAW OFFICE, P.C. 53 W. Jackson Blvd, Suite 701 Chicago, IL 60604 Telephone: (312) 795-9121 AXON ENTERPRISES: To Seek Dismissal of Richey Suit -------------------------------------------------- Axon Enterprise, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the Company will seek dismissal of the complaint filed by Douglas Richey, which it believes is meritless. On June 25, 2018, consumer weapon purchaser Douglas Richey ("Richey") filed a class action lawsuit against the Company in the Northern District of California (Case No. 3:18-cv-03751-WHA) purporting to assert claims on behalf of all persons in the United States who purchased or acquired a TASER Pulse, TASER X2 and TASER X26P model CEW in the four-year period preceding the complaint. Richey claims his Pulse CEW discharged while in its case in his jacket pocket due to a faulty safety switch. He was not injured. He alleges violation of the Magnuson-Moss Warranty Act, 15 U.S.C. Section 2310(D)(1), the Song-Beverly Consumer Warranty Act for Breach of Express Warranty, Cal. Civ. Code Section 1790, and California's Consumers Legal Remedies Act, as well as fraudulent omission and unjust enrichment. The Company is preparing to file a motion to dismiss the complaint, which it believes is meritless. Axon Enterprise, Inc. develops, manufactures, and sells conducted electrical weapons (CEWs) worldwide. The company operates through two segments, TASER Weapons, and Software and Sensors. Axon Enterprise, Inc. was founded in 1993 and is headquartered in Scottsdale, Arizona. BERKSHIRE MANUFACTURED: Smith Suit Seeks to Recover Unpaid Wages ---------------------------------------------------------------- Jessica Smith, individually and on behalf of a class of persons similarly situated, Plaintiff, v. Berkshire Manufactured Products, Inc., Case No. 18-cv-01228 (D. Mass., August 27, 2018), seeks to recover unpaid wages under the Massachusetts Wage Act. Berkshire Manufactured Products -- https://www.whitcraftgroup.com/products/berkshire-manufacturing/ -- provides production and prototype parts for domestic and international markets in aerospace, medical, high tech, communications and numerous other industries. Berkshire employed Ms. Smith as a Mechanical Inspector. She claims that Berkshire rounds down her time rendered, thus receiving less than what she is entitled to. [BN] Plaintiff is represented by: John W. Davis, Esq. DAVIS & DAVIS, P.C. 350 Park Street Park Place South, Ste. 105 North Reading, MA 01864 Tel: (978) 276-0777 Email: jdavis@davisanddavispc.com CAMERON PARISH, LA: SPL's Bid to Dismiss Landowners' Suit Granted ----------------------------------------------------------------- The United States District Court for Middle District of Louisiana granted Sabine Pass Liquefaction, LLC's Motion to Dismiss the case captioned JMCB, LLC, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, v. THE BOARD OF COMMERCE & INDUSTRY; LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT; AND SABINE PASS LIQUEFACTION, LLC. Civil Action No. 17-77-JWD-JCW. (M.D. La.) This case is about the alleged invalidity of a contract between the State Defendants and SPL granting an exemption to ad valorem taxes (Contract). The Plaintiff is a company that owns property (land) in Cameron Parish which is subject to ad valorem taxes for which no exemption is available and purports to bring this action on behalf of itself and individuals who own property in Cameron Parish that is subject to ad valorem taxation, and any and all Cameron Parish governmental bodies that are entitled to receive Cameron Parish ad valorem taxes. the Plaintiff maintains that it will have an inflated ad valorem tax liability due and payable to Cameron Parish taxing bodies that receive ad valorem taxes as a result of the exemption granted to SPL through the Contract. Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has explained: "The complaint (1) on its face (2) must contain enough factual matter taken as true (3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant evidence of each element of a claim. Asking for such plausible grounds to infer the element of a claim does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal that the elements of the claim existed." SPL's Original Memorandum SPL first argues that the Plaintiff fails to adequately challenge the manufacturing establishment status of SPL's facility. SPL asserts that the Plaintiff's allegations are conclusory and that, while the Plaintiff alleges that the information provided by SPL was inadequate, the Plaintiff fails to describe what that information was. SPL further contends that this was an intentional omission by Plaintiff, as the documents SPL submits demonstrate that SPL's facility was a manufacturing establishment. Plaintiff thus pleads no facts supporting its conclusion that the SPL facility was not a manufacturing establishment. Plaintiff's Opposition The Plaintiff begins by explaining how it originally moved to dismiss SPL because the State Defendants were the only parties alleged to have committed the unconstitutional acts outlined in the original Complaint as public servants or governmental entitles and because the State Defendants only moved for dismissal of certain claims. According to the Plaintiff, State Defendants acknowledged that Louisiana law grants a citizen the right to seek judicial review of acts of public servants that are alleged to have been illegal or unconstitutional, and to enjoin any unlawful action by those public servants. Thus, Plaintiff argues, it did state a cognizable claim against the State Defendants, and this was one that State Defendants recognized. Plaintiff Has Failed to State Any Viable Claim As a preliminary note, the Plaintiff did not respond to the substance of any of SPL's arguments. The Fifth Circuit makes it clear that when a party does not address an issue in his brief to the district court, that failure constitutes a waiver on appeal. On this ground alone, the Court could dismiss Plaintiff's Amended Complaint. Nevertheless, the Court finds that SPL has shown that Plaintiff has still failed to state a cognizable claim. As the Louisiana First Circuit explained in Robinson v. Ieyoub, 97-2204 (La. App. 1 Cir. 12/28/98), 727 So.2d 579, 583, in interpreting La. Const. art. VII, Section 21(F): In general, the constitution is subject to the same rules of interpretation as other laws and written instruments. When a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent. Every provision must be interpreted in light of the purpose of the provision and the interests it furthers and resolves. When a constitutional provision is identical or very similar to that of a former constitution, it is presumed that the same interpretation will be given to it as was attributed to the former provision. Because the question of how the constitution was understood by the people adopting it, not merely how it was viewed by the drafters, the debates of a convention, as a general rule, cannot be resorted to for the purpose of varying the otherwise clear and unambiguous meaning of a constitutional provision. Here, the Court agrees with SPL that Plaintiff has failed to demonstrate arbitrary or capricious action by the State Defendants; to the contrary, the documents submitted by SPL contradict Plaintiff's conclusory allegations and demonstrate a considered decision by the State Defendants. According to the Amended Complaint, the Board received an initial description of the manufacturing process from SPL, informed SPL that after several discussions internally about the proposed project, the consensus was that SPL's description was not satisfactory, and asked SPL for a better description. Plaintiff acknowledges that SPL did provide further information to LDED about its purported manufacturing process yet claims this still did not meet the qualification of manufacturing under the constitutional provision. But, as shown above, the documents submitted by SPL provide a firm basis for the State Defendants' decision. Even if the Board's choice was wrong, it did not rise to the level of arbitrary and capricious conduct. As SPL contends, the constitutional provision authorizes an exemption for new manufacturing establishment or additions, and there is nothing in this section that would invalidate an exemption if an application said it was one when it was in fact the other. Further, Plaintiff has failed to point to any regulation or statute that would nullify the Contract under this set of facts. The Court finds that Plaintiff has failed to state a claim upon which relief can be granted. As a result, SPL's motion should be granted. Plaintiff's Estoppel Argument Is Without Merit Without any opposition to the substance of SPL's arguments, Plaintiff makes the following circuitous argument: (1) because State Defendants allegedly admit that Plaintiff has stated a claim, (2) because SPL cannot seek dismissal of claims against State Defendants, and (3) because SPL is a necessary, indispensable party, SPL is estopped from seeking dismissal of the Amended Complaint. The Court rejects Plaintiff's argument. The Court has reviewed the State Defendant's alleged admission, and the Court does not believe it can be reasonably construed as Plaintiff would like.5 But, even putting this aside, State Defendants have since made absolutely clear that they do not admit that Plaintiff stated a claim and in fact seek dismissal of the Complaint on the same grounds as SPL, inter: JMCB posits that the State Defendants do not dispute and clearly recognize that the Plaintiff has stated a claim upon which relief may be granted against them. This is incorrect. In its original memorandum, the State Defendants observed, as a general proposition, that Louisiana law recognizes a cause of action, enjoyed only by taxpayers, to enjoin unconstitutional actions by state agencies. The State Defendants have never conceded that the particular allegations made in the First Amended Complaint are sufficient to state this cause of action. To the contrary, the State Defendants' agree with their codefendant's assertion that these allegations do not state a cause of action. Given this clear and unambiguous rejection of the central premise of Plaintiff's argument, Plaintiff's entire opposition fails. Even putting State Defendants' clear and unambiguous statement aside, the Court disagrees with Plaintiff's argument. The Court previously ruled that SPL was an indispensable party to this suit because it was a party to a contract which Plaintiff sought to invalidate. The Court found that any judgment invalidating the Contract in SPL's absence would be extraordinarily prejudicial to it. Plaintiff now is essentially trying to circumvent the Court's ruling by preventing SPL from defending its own interest. The Court rejects Plaintiff's procedural defense. A full-text copy of the District Court's August 23, 2018 Ruling and Order is available at https://tinyurl.com/yc7ox6wq from Leagle.com. JMCB, LLC, On Behalf of Itself and All Others Similarly Situated, Plaintiff, represented by Patrick Wayne Pendley -- pwpendley@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP, Brian Andrew Eddington, Christopher D. Shows, Pierce & Shows, Stanley P. Baudin -- sbaudin@pbclawfirm.com -- Pendley, Baudin & Coffin, LLP & Troy D. Morain, Morain & Murphy. The Board of Commerce & Industry & Louisiana Department of Economic Development, Defendants, represented by Shelton Dennis Blunt -- dennis.blunt@phelps.com -- Phelps Dunbar, LLP, Alfred Paul LeBlanc, Jr. -- paul.leblanc@phelps.com -- Phelps Dunbar, LLP, Jack Brandon Stanley, L&B Holdings, LLC & Richard Earold Matheny -- richard.matheny@phelps.com -- Phelps Dunbar, LLP. Sabine Pass Liquefaction, LLC, Intervenor Defendant, represented by William M. Backstrom, Jr. -- bbackstrom@joneswalker.com -- Jones, Walker, Brett S. Venn -- bvenn@joneswalker.com -- Jones Walker LLP, Jesse R. Adams, III -- jadams@joneswalker.com -- Jones Walker LLP & Thomas A. Casey, Jr. -- tcaseyjr@joneswalker.com -- Jones Walker LLP. CAPITAL MANAGEMENT: Violates Fair Debt Collection Act, Corea Says ----------------------------------------------------------------- A class action lawsuit has been filed against Capital Management Services, L.P. The case is titled as Steve Corea, on behalf of himself and all others similarly situated v. Capital Management Services, L.P., Case No. 2:18-cv-04960 (E.D.N.Y., August 31, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Capital Management Services, L.P., a collections agency, provides delinquent receivables resolutions. The Company monitors and tracks debt collection laws, state licensing, company profile, and client contractual expectations. The Company was formerly known as Ventus Capital Services, LP and changed its name to Capital Management Services L.P. in October 2006. Capital Management Services L.P. was incorporated in 2004 and is based in Buffalo, New York.[BN] The Plaintiff is represented by: Mitchell L. Pashkin, Esq. MITCHELL PASHKIN ATTORNEY AT LAW 775 Park Avenue, Suite 255 Huntington, NY 11743 Telephone: (631) 335-1107 E-mail: mpash@verizon.net CASTLE PARKING: Court Denies Recusal Bid in Bankhead Suit --------------------------------------------------------- In the case, Donald C. Bankhead, et al., Plaintiffs, v. Castle Parking Solutions, et al., Defendants, Case No. 1:17-cv-04085 (N.D. Ga.), Judge Michael L. Brown of the U.S. District Court for the Northern District of Georgia, Atlanta Division, denied the Plaintiffs' Motion for Recusal. Plaintiffs Bankhead and Thompson sued Defendants claiming they systematically disabled and "booted" cars in the City of Atlanta despite that signs they posted at booting locations did not comply with relevant city ordinances. More specifically, the Plaintiffs allege that Defendant Beacon Management Services, LLC (a property management company) directed Defendant Castle Parking to boot or immobilize vehicles on properties Defendant Beacon managed. Since Defendant Beacon removed the case, the Plaintiffs have filed a series of motions aimed at defeating diversity jurisdiction to send the case back to the state court from which it came. The Plaintiffs, for example, alleged in the initial complaint that the Defendants have collected millions of dollars in fees from the booting of vehicles in violation of Atlanta ordinances. The very next day, the Plaintiffs moved to amend their complaint to drop this allegation, claiming that they did not intend to include it. They also moved for jurisdictional discovery, arguing that the amount in controversy may only be in the hundreds of thousands. The judge assigned to the case at that time denied the motion for discovery. He allowed Plaintiffs to amend the complaint but ruled that federal jurisdiction had been determined at the time of removal, so they could not defeat diversity jurisdiction through the proposed amendment. On the day they received that order, Plaintiffs moved to dismiss Defendant Beacon (the diverse Defendant), claiming that they recently learned that Defendant Beacon did not, in fact, direct Defendant Castle to boot vehicles on properties Beacon managed. At about that time, the case was transferred to the undersigned. The Court held a hearing on Plaintiffs' motion to dismiss and found that Plaintiffs had not shown their motion to dismiss was based on newly discovered information but rather sought to subvert the prior judge's ruling that Defendant Beacon had properly removed the case. The Court asked Defendant Beacon whether it would prefer to stay in federal court or to have the matter dismissed and obtain appropriate attorneys' fees. The Defense counsel asked for time to consult with their client. But, immediately after the hearing, the Plaintiffs withdrew their motion to avoid paying attorneys' fees. On April 10, 2018, the Plaintiffs filed their Motion to Add Party and Remove Defendant Beacon based largely on the same facts the Plaintiffs cited in their earlier motion to dismiss. So the Plaintiffs moved to dismiss Defendant Beacon from the case, to add the homeowners association, and to amend their complaint to allege claims against the association. That amended complaint shows that Plaintiffs are looking for a wholesale redrafting of their complaint, changing the scope of the putative class from a citywide class against Defendants Beacon and Castle for booting at properties all over Atlanta to a class against Defendant Castle and one homeowners association for booting at only one property. Above all, the Plaintiffs sought another avenue for defeating diversity jurisdiction by dismissing Defendant Beacon from the case. While that motion was pending, the Plaintiffs' counsel brought an unrelated lawsuit in Union City, Georgia. Neither the Plaintiffs nor the Defendants in the case are parties to the Union City matter. The Plaintiffs in that case allege that the various companies in Union City booted vehicles at locations in Union City in violation of that city's ordinances. One of the defendants in the Union City case removed the case from state court to the Court. That case is now known as Polson v. Kenny McElwaney, et al., Case No. 1:18-cv-2674 (N.D. Ga.). The removing defendant checked a box on te Court's Civil Cover Sheet claiming Polson is related to the matter before the Court because they involve the same issue of fact or arises out of the same event or transaction. Polson thus was first assigned to the Court. The Plaintiffs' counsel called the Court's chambers to challenge the automatic assignment of Polson to it. While the Court believes that the counsel asserted that the cases were mistakenly marked as related, the Plaintiffs' counsel does not recall making that assessment. He admits, however, that he called to ask how to "dispute" the removing Defendant's designation that the Polson case was sufficiently factually related to the case so as to cause Polson's assignment to the Court. He also stated that the Court should refuse to accept the Polson case because the removing Defendant was represented by Alston & Bird, the firm at which the undersigned worked before joining the District Court and the firm at which his wife continues to work. Before receiving that call, the Court was unaware that Polson had been assigned to it. The Court immediately confirmed that Alston & Bird represented one of the Defendants and, therefore, recused itself from the matter. The very next day, the Plaintiffs moved to disqualify the Court from the case, arguing that the cases are so closely related that recusal is required. The Court held a telephonic hearing on the motion for recusal. The next day, it held another telephonic hearing the next day to discuss the Court's concern about the Plaintiff's counsel's repeated telephone calls to the Clerk's office about the assignment of Polson. During the second hearing, the Court denied the Plaintiff's motion for recusal. On June 18, 2018, the Plaintiff filed a Supplemental Brief in Support of Motion for Recusal or, in the Alternative, Motion for Reconsideration. Although the Court denied the Plaintiff's motion for recusal before the filing of the Plaintiffs' supplemental brief, the Court has considered the additional authority sited therein. Judge Brown files the Opinion to supplement its earlier explanation for the denial of the Plaintiffs' motion to recuse. The Judge holds that the objective lay observer standard endorsed by the Eleventh Circuit does not support recusal here for several reasons. First, neither the Plaintiff nor the Defendants in Polson are parties in the matter before the Court. Second, the matter before the Court involves conduct in Atlanta and allegations that the Defendants' signage violated Atlanta municipal ordinances. Third, the signs posted by the Defendants in the case -- according to the two complaints -- are very different than the signs at issue in the Polson matter. In short, the two matters involve different parties, different law, and different facts. And the Court recused from the matter involving the Alston & Bird client. No reasonable person would doubt the Court's impartiality under these circumstances. The Judge further holds that the Plaintiffs do not argue -- nor could they -- that any decision in Bankhead could create law of the case in Polson, or that a decision in Bankhead could support collateral estoppel in Polson. There are no overlapping parties, facts, contracts, or law. At most, a decision in the case could be cited as authority on the Polson matter or vice versa. To require recusal under these facts, would require the Court to recuse itself whenever a decision it might render could be cited as authority in any matter involving an Alston & Bird client. Neither Matter of Hatcher, In re Aetna Casualty & Surety Co., nor any other case extend Section 455(a) that far. For the reasons set forth, Judge Brown denied the Plaintiffs' Motion for Recusal. A full-text copy of the Court's June 27, 2018 Opinion and Order is available at https://is.gd/h8u731 from Leagle.com. Donald Carl Bankhead & Keith Thompson, Individually, and on behalf of a class of similarly situated persons, Plaintiffs, represented by Kevin Charles Patrick -- kevin@patricktriallaw.com -- Kevin Patrick Law, LLC, Matthew Q. Wetherington -- matt@wernerlaw.com -- The Werner Law Firm, P.C., Michael L. Werner -- mike@wernerlaw.com -- The Werner Law Firm, P.C., Robert Neil Friedman -- Robert@wernerlaw.com -- The Werner Law Firm, P.C., James Darren Summerville , The Summerville Firm, LLC & Kurt G. Kastorf , The Summerville Firm, LLC. Castle Parking Solutions, LLC, Defendant, represented by John Colquitt Rogers , Carlock Copeland & Stair, LLP. Beacon Management Services, LLC, Defendant, represented by Brian Richard Noethlich, Baker & Hostetler LLP, Brynda Rodriguez Insley -- binsley@insleyrace.com -- Insley & Race, Harry Christopher Jackson, Jr., Insley & Race, Jared Harrison Jacobs, Gray Rust St. Amand Moffett & Brieske, LLP, Michael J. Rust -- mrust@grsmb.com -- Gray Rust St. Amand Moffett & Brieske, LLP, Myada El-Sawi Baudry, Gray Rust St. Amand Moffett & Brieske, LLP, Rand Lawrence McClellan --rmcclellan@bakerlaw.com --, Baker & Hostetler LLP, Rodger Lee Eckelberry, Baker & Hostetler LLP & Trevor Grant Hiestand -- thiestand@wachp.com -- Waldon Adelman Castilla Hiestand & Prout. CBS CORP: Samit Files Suit Over Share Price Drop ------------------------------------------------- Gene Samit, individually and on behalf of all others similarly situated, Plaintiff, v. CBS Corporation, Leslie Moonves and Joseph R. Ianniello, Defendants, Case No. 18-CV-07796, (S.D. N.Y., August 24, 2018), seeks to recover damages caused by violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. CBS is a mass media company with operations in the entertainment, cable networks, publishing, and local media segments. Its voting Class A Common Stock and non-voting Class B Common Stock are listed and traded on the New York Stock Exchange. The complaint says CBS failed to disclose that CBS executives tolerated widespread workplace sexual harassment which subjected CBS to heightened legal liability. On this news, CBS's stock price fell $3.52, or 6.12%, to close at $54.01 on July 27, 2018. Samit acquired CBS securities at artificially inflated prices and lost upon the revelation of the alleged corrective disclosures, notes the complaint. [BN] Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 Email: pdahlstrom@pomlaw.com CHEBURECK INC: Kikirov Sues over Breach of Fiduciary Duties ----------------------------------------------------------- ILYAVU KIKIROV, individually and on behalf of all others similarly situated, Plaintiff v. ISAK SIONOV; CHEBURECK, INC. D/B/A SHASHLICHNAYA; and JOHN DOES 1-10, Defendants, Case No. 712095/2018 (N.Y. Sup., Queens Cty., Aug. 6, 2018) is an action against the Defendants for breach of contract, fraud, breach of fiduciary duties, and violation of the New York Business Corporation Law. According to the complaint, on October 3, 2017, Kikirov and Sionov entered into a shareholders' agreement. Sionov is the President of Chebureck, and Kikirov as Vice President and Secretary. On January 3, 2018, Chebureck began operating as a restaurant. On January 23, 2018 Sionov began to exclude Kikirov from certain operations of the restaurant. On February 28, 2018, Sionov took action to remove Kikirov from the restaurant and Sionov has been in sole control of the operations of Chebureck. As President of Cheburek, Sionov failed to provide any financial information about cheburek to the directors since the start of the business operations. Cherbureck, Inc. D/B/A Shashlichnaya is a domestic corporation organized and existing under the laws of the State of New York, with business address ant Rego Park, New York. [BN] The Plaintiff is represented by: CYRULI SHANKS HART & ZIZMOR, LLP 420 Lexington Avenue, Suite 2320 New York, NY 10170 Telephone: (212) 661-6800 CHIASMA INC: Discovery Sought in Gerneth Class Action ----------------------------------------------------- Chiasma, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend against a class action suite styled as Gerneth v. Chiasma, Inc., et al. Judge Denise J. Casper entered an order dated September 7, 2018, referring the case to Magistrate Judge M. Page Kelley, with respect to Lead Plaintiff's Motion to Compel Discovery. On June 9, 2016, Chiasma, Inc. and certain of its current and former officers were named as defendants in a federal securities class action lawsuit filed in the United States District Court for the District of Massachusetts, styled Gerneth v. Chiasma, Inc., et al. This lawsuit challenges the company's public statements regarding its Phase 3 clinical trial methodology for octreotide capsules and its ability to obtain FDA approval for the marketing and sale of octreotide capsules. In December 2016, a lead plaintiff was appointed in the case. An amended complaint was filed by the lead plaintiff on February 10, 2017 similarly challenging the company's statements regarding the Phase 3 clinical trial methodology and results, and its ability to obtain FDA approval for octreotide capsules, purportedly in violation of Sections 11 and 15 of the Securities Act of 1933. The amended complaint adds as defendants current and former members of the company's board of directors, as well as the investment banks that underwrote our initial public offering ("IPO") on July 15, 2015. The lead plaintiff seeks to represent a class of all purchasers of the company's stock in its IPO. The plaintiff is seeking an unspecified amount of compensatory damages on behalf of himself and members of a putative shareholder class, including interest and reasonable costs and expenses incurred in litigating the action, and any other relief the court determines is appropriate. The defendants filed a motion to dismiss the amended complaint on March 27, 2017 and on February 15, 2018, the court denied defendants' motion to dismiss. The defendants filed an answer to the amended complaint on March 30, 2018. Chiasma said, "We believe this lawsuit is meritless and intend to vigorously defend against it. At this time, no assessment can be made as to the likely outcome of this lawsuit or whether the outcome will be material to us." Chiasma, Inc., a clinical-stage biopharmaceutical company, focuses on developing oral medications using transient permeability enhancer technology platform for the treatment of rare and serious chronic disease in the United States, Europe, and internationally. The company offers oral octreotide capsules for adult patients under the MYCAPSSA name, which is in two Phase III clinical trials for the treatment of acromegaly, a condition that results in the body's production of excess growth hormone. Chiasma, Inc. was founded in 2001 and is headquartered in Waltham, Massachusetts. CNX GAS: Judge Approves Settlement in Gas Royalties Case -------------------------------------------------------- David McGee, writing for Bristol Herald Courier, reports that eight years after the first lawsuit was filed, Kenneth Osborne sat on a bench inside courtroom 1 at the U.S. District Courthouse on August 23 and held his right thumb and forefinger about a half-inch apart. "We've made this much progress," said Osborne, after Judge James P. Jones granted motions approving a $4 million settlement in the case of Jeffrey C. Hale and others against CNX Gas Co., of Pittsburgh. Osborne was one of 1,161 members who joined that suit, which Jones certified as class action in April 2017. "Today was a small victory," said Osborne, whose family's land in Buchanan County contains more than 20 gas wells. "But there is still a long way to go." Osborne and the Hale brothers, Jeffrey and Jamie, were among about 15 plaintiffs who attended the August 23 hearing. Jamie Hale, of Haysi, who spoke on behalf of his family, said they are satisfied. "I think it's fair and realistic," Jamie Hale said. "It was a tough fight; no one thought it would take this long. . . . The attorneys did a good job, and we wouldn't have gotten anything if they hadn't all worked so hard." Jones also granted a separate motion regarding attorneys' fees, which were described as substantially less than their normal billable hourly rates. Written orders are forthcoming, according to a court document. "I believe the settlement is fair and reasonable. Not everyone is going to be happy with the amount, but, in my experience, I believe it is a very reasonable settlement," Jones said from the bench, adding that without the action there would be "no benefit to class members." Jones described the case as "hard- fought." He also noted it was the longest running case on his docket in 23 years on the federal bench. In September 2010, Hale and other landowners in Buchanan, Dickenson and other Southwest Virginia counties originally filed lawsuits accusing CNX and other gas companies of cheating them out of millions of dollars and stating that landowners couldn't access about $30 million in gas royalties held in an escrow account controlled by the Virginia Oil and Gas Board. The landowners said that Virginia's Gas and Oil Act of 1990 allowed companies to access coalbed methane via a pooling order, which "consolidates all adjoining tracts of land with subsurface coalbed methane into a single pool or unit of interests, enabling the coalbed methane producer to extract the gas from a common reservoir," according to the act. Under the law, the pooling order deprives potential coalbed methane owners of the right to prevent extraction but does entitle coalbed methane owners to a royalty payment. Landowners never gave permission to access the gas beneath their land. Daniel Seltz, Esq. the plaintiff's lead attorney, said all involved parties will automatically receive a check. Attorneys were able to contact all but eight class members prior to securing the settlement agreement. "Nobody has to do anything," Seltz said after the hearing. "Within 45 days, all members of the class should receive a check. It will be a pro rata share." Under terms of the settlement, the money will be distributed based on the amounts of money that a class member has received as distributions from the escrow account, a court document shows. "At the time the settlement was reached, CNX had distributed slightly more than $5.9 million to class members; thus this settlement creates a fund representing an additional 67 percent of monies that have come out of escrow," according to the document. In exchange for the money, CNX receives a full release of the claims certified for class treatment. Claims not certified for class treatment are not released and can be pursued by individual class members. Peter Glubiak, Esq. -- Office@GlubiakLaw.com -- another attorney for the plaintiffs, explained that this was a mediated settlement, meaning "neither side" got all it wanted. Both attorneys said the most important aspect of this case is it was a catalyst for the Virginia General Assembly to approve House Bill 2058 in 2015. That legislation requires an operator of a previously pooled coalbed methane gas well to request, by the beginning of 2016, the release of any funds held in escrow or suspense to the person who possesses a claim through a gas title. For a well that is pooled after July 1, 2015, the bill requires the operator to pay royalties directly to the gas claimant unless the coal claimant provides evidence of an agreement or a proceeding within a certain time. A similar class action lawsuit against EQT Production of Pittsburgh is ongoing. On August 22, Judge Jones granted an EQT motion seeking an extension until Sept. 28 to provide additional information to plaintiffs Robert Adair and Eva Mae Adkins.[GN] COCHRAN WHOLESALE: Attys' Fee/Incentive Awards in Camp Affirmed --------------------------------------------------------------- In the case, CAMP DRUG STORE, INCORPORATED, Plaintiff-Appellant, v. COCHRAN WHOLESALE PHARMACEUTICAL, INCORPORATED, Defendant-Appellee, Case No. 17-2086 (7th Cir.), Judge Kenneth Francis Ripple of the U.S. Court of Appeals for the Seventh Circuit affirm the district court's judgment that approved the settlement on behalf of the class, but reduced the proposed attorney fee and incentive awards. Camp Drug Store filed the action, on its own behalf and as a representative of a proposed class, against Cochran. Camp Drug Store alleged that Cochran had violated the Telephone Consumer Protection Act ("TCPA"), by faxing unsolicited advertisements to the class members. The parties entered into early mediation and reached a settlement. The district court approved the settlement on behalf of the class, but reduced the proposed attorney fee and incentive awards. In that order accepting the settlement and dismissing the action, the court reiterated that a fee of $233,333.33 was not appropriate in the case because the settlement did not create a "common fund." It therefore awarded attorneys' fees in the amount of $73,468.13, which represents 33.3% of the $220,625.00 claims payment. Similarly, the $15,000 incentive award did not reflect properly the amount of time and effort the named Plaintiffs had expended in pursuing the litigation. Consequently, the court reduced the incentive award to $1,000 for each of the named Plaintiffs. Camp Drug Store appeals. It maintains that the settlement created a common fund against which the reasonableness of the attorney fee award should be assessed. It also notes that the proposed incentive awards were commensurate with other awards to the named Plaintiffs for claims under the TCPA. Judge Ripple cannot accept Camp Drug Store's characterization of the settlement as a common fund. Neither the case law, nor that of the Supreme Court, supports that characterization. Moreover, given the early stage at which the litigation was settled, the reductions in the attorney fee and incentive awards were not an abuse of discretion. He therefore affirmed the district court's judgment. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/YlsiMl from Leagle.com. Phillip Andrew Bock -- phil@classlawyers.com -- for Plaintiff-Appellant. Cindy D. Hanson -- cindy.hanson@troutman.com -- for Defendant-Appellee. David Max Oppenheim, for Plaintiff-Appellant. Ross Andre, for Defendant-Appellee. CONSUMER REPORTS: Faces Watterson Class Suit in S.D. New York ------------------------------------------------------------- A class action lawsuit has been filed against Consumer Reports, Inc. The case is captioned as Robert Watterson, individually and on behalf of all others similarly situated v. Consumer Reports, Inc., Case No. 7:18-cv-08001 (S.D.N.Y., August 31, 2018). The nature of suit is stated as other fraud. Consumer Reports, Inc. provides product ratings and reviews. The Company offers advice about products and services, personal finance, health and nutrition, energy, food, gimmicks and gotchas, phones and media, safety, and other consumer concerns.[BN] The Plaintiff is represented by: Joseph Ignatius Marchese, Esq. BURSOR & FISHER, P.A. 888 Seventh Ave. New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-mail: jmarchese@bursor.com CREDIT CONTROL: Ramos FDCA Suit Settlement Has Prelim Approval -------------------------------------------------------------- In the case, HENRY A. RAMOS and ROXANN RAMOS, individually and on behalf of all others similarly situated, Plaintiffs, v. CREDIT CONTROL, LLC, a Missouri Limited Liability Company; and JOHN AND JANE DOES NUMBERS 1 THROUGH 10, Defendants, Case No. 2:16-cv-04098-JMA-SIL (E.D. N.Y.), Judge John M. Azrack of the U.S. District Court for the Eastern District of New York granted the Parties' motion for preliminary approval of the Class Settlement Agreement. The Judge certified the class defined as all persons with addresses in the State of New York to whom Credit Control, LLC mailed a collection letter between July 25, 2015, and Oct. 5, 2017, to collect a debt on behalf of Kohls Department Stores, Inc., which debt was charged-off by the creditor prior to the date the letter was sent to the consumer, and the letter either: (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; or (ii) offered to settle the debt when the debt was in default for more than three years prior to the date of the letter and did not disclose the debt may be barred by the statute of limitations. The Judge defined the Class Claims as those claims arising under the Fair Debt Collection Practices Act from Credit Control's collection letters which: (i) stated that, "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:; or (ii) offered to settle the debt when the debt was in default for more than three years prior to the date of the letter and did not disclose the debt may be barred by the statute of limitations. He appointed the Plaintiffs as the Class Representatives; Stern Thomasson LLP and Kleinman, LLC as the Class Counsel; and Heffler Claims Group, LLC as the Settlement Administrator. The Judge approved the Parties' proposed Class Notice and directed that it be mailed to the last known address of each member of the Settlement Class as shown in Credit Control's business records. The Settlement Administrator shall cause the Class Notice to be mailed to Class Members by Aug. 17, 2018 (21 days from the date of the Order). The Class Members shall have until Oct. 1, 2018 (66 days from the date of this Order), to return a claim form, exclude themselves from, or object to, the Settlement. To be effective, any claim form, request for exclusion, or objection must be postmarked by Oct. 1, 2018. If not already filed, Credit Control shall file with the Court a notice indicating its compliance with the requirements of the Class Action Fairness Act of 2005. A final hearing on the fairness and reasonableness of the Agreement and whether final approval shall be given to it and the requests for fees and expenses by Class Counsel will be held on Oct. 29, 2018, at 5:15 p.m. (90 days from the date of the Order). The Plaintiffs shall file their Motion for Attorney's Fees, costs, and service awards by Aug. 13, 2018. Any submissions concerning final approval must be filed by Oct. 15, 2018. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/yi8zMT from Leagle.com. Henry A. Ramos & Roxann Ramos, Individually and on behalf of all other similarly situated, Plaintiffs, represented by Abraham Kleinman -- akleinman@kleinmanllc.com -- Kleinman, LLC, Andrew T. Thomasson, Stern Thomasson LLP, pro hac vice, Philip D. Stern, Stern Thomasson LLP, pro hac vice & Heather B. Jones, Stern Thomasson LLP, pro hac vice. Credit Control, LLC, A Missouri Limited Liability Company, Defendant, represented by Patrick A. Watts, Watts Law Group LLC, pro hac vice, Gracie Christine Wright -- gracie.wright@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker, LLP & Peter A. Meisels -- peter.meisels@wilsonelser.com -- Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. John and Jane Does Numbers 1 through 10, Defendant, represented by Patrick A. Watts, Watts Law Group LLC, pro hac vice. CV SCIENCES: Block & Leviton Files Securities Class Action ---------------------------------------------------------- Block & Leviton LLP has filed a securities fraud class action against CV Sciences, Inc., and certain of its officers alleging violations of the federal securities laws and encourages shareholders to contact Block & Leviton ahead of the October 23, 2018 lead plaintiff deadline. On August 20, 2018, Citron Research published a report on twitter alleging that CV Sciences' management misrepresented the status of one of its key patents. According to Citron Research, the Company failed to disclose a rejected patent that the Company "continue[d] to hype." As a result of the Citron report, CV Sciences stock plunged over 63% in volatile trading. The complaint, filed in the United States District Court District of Nevada, captioned Smith v. CV Sciences, Inc. et al., Case No. 2:18-cv-01602 (D. Nev.), alleges that between June 19, 2017 and August 20, 2018, inclusive (the "Class Period"), Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose that its Patent #15/426,617: (1) received a non-final rejection from the USPTO on April 27, 2017; (2) a final rejection from the USPTO on December 14, 2017; and (3) as a result of the foregoing, Defendants' statements about CV Sciences' business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. If you purchased CVSI shares between June 19, 2017 and August 20, 2018 and wish to serve as a lead plaintiff, you must move the Court no later than October 23, 2018. If you wish to become involved in the litigation or have questions about your legal rights, you are encouraged to contact Attorney John DeFelice at (888) 868-2385, by email at john@blockesq.com or by visiting https://shareholder.law/cvsi. Confidentiality to whistleblowers or others with information relevant to this investigation is assured. The court in which this case is pending is located at 333 S Las Vegas Blvd, Las Vegas, NV 89101. John DeFelice, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398-5600 Email: john@blockesq.com [GN] DECORE-ATIVE SPECIALIST: Valenzuela Seeks Unpaid Wages, Penalties ----------------------------------------------------------------- Armando Valenzuela individuals and on behalf of all others similarly situated, Plaintiff, v. Decore-Ative Specialists and Does 1 through 100, Defendants, Case No. BC710732 (Cal. Super., June 20, 2018), seeks recovery of unpaid wages and penalties, missed breaks compensation and redress for failure to provide wage statements under California Business and Professions Code, California Labor Code and applicable Industrial Welfare Commission Wage Orders in addition to seeking declaratory relief and restitution. Decore-Ative in in the business of manufacturing custom cabinet components for the commercial and residential markets in the United States. Valenzuela was employed by Defendants as a non-exempt employee in their Assembly and Cutting Departments from approximately September 2015 through on or about August 21, 2017, at which time he suffered a workplace injury and started a leave of absence. He has since been terminated from his employment. Decore-Ative allegedly utilized a timekeeping system that rounded down their workers actual time. [BN] The Plaintiff is represented by: Paul K. Haines, Esq. HAINES LAW GROUP, APC 222 N. Sepulveda Blvd., Suite 1550 El Segundo, CA 90245 Tel: (424) 292-2350 Fax: (424) 292-2355 Email: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com - and - Scott M. Lidman, Esq. Elizabeth Nguyen, Esq. LIDMAN LAW, APC 222 N. Sepulveda Blvd., Suite 1550 El Segunao, CA 90245 Tel: (424) 322-4772 Fax: (424) 322-4775 Email: slidman@lidmanlaw.com enguyen@lidmanlaw.com DEVERUS INC: Violates Fair Credit Reporting Act, Robinson Claims ---------------------------------------------------------------- A class action lawsuit has been filed against Deverus Inc. The case is captioned as Dedrick Robinson, individually and on behalf of others similarly situated v. Deverus Inc., Case No. 4:18-cv-02415-RBH (D.S.C., August 31, 2018). The Plaintiff alleges violations of the Fair Credit Reporting Act. Founded in 1998, deverus, Inc., helps companies in the background screening industry work better, faster and smarter by providing the highest quality software, mobile applications, SaaS cloud-based solutions, integrations, compliance, automation, security, privacy and customer support services available. deverus helps HR departments make critical hiring decisions using data such as criminal records, education and employment verifications, drug screening, and more. The Company delivers its services to over 43,000 businesses, hiring more than 4.1 million employees per year, partnering with more than 150 integrated partners.[BN] The Plaintiff is represented by: Lance V. Oliver, Esq. Thomas David Hoyle, Esq. MOTLEY RICE LLC 28 Bridgeside Boulevard Mt Pleasant, SC 29464 Telephone: (843) 216-9061 Facsimile: (843) 216-9450 E-mail: loliver@motleyrice.com dhoyle@motleyrice.com DEVILLE ASSET MANAGEMENT: Woods Disputes Vague Collection Letter ---------------------------------------------------------------- Cedric Woods, individually and on behalf of all others similarly situated, Plaintiff, v. DeVille Asset Management, Ltd., Defendants, Case No. 18-cv-00948, (N.D. Ala., June 20, 2018), seeks to recover statutory damages, costs, and reasonable attorneys' fees under the Fair Debt Collection Practices Act. DeVille is a credit collection agency who attempted to collect a defaulted consumer debt Woods allegedly owes GM Services. They sent collection letter without the statutorily required information of how long he had to exercise his validation rights, to whom he had to exercise them or to whom he needed to make payment, notes the complaint. [BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Tel: (708) 974-2900 Fax: (708) 974-2907 Email: davephilipps@aol.com mephilipps@aol.com - and - Bradford W. Botes, Esq. BOND, BOTES, REESE & SHINN, P.C. 600 University Park Place Suite 510 Birmingham, AL 35209 Tel: (205) 802-2200 Fax: (205) 802-2209 Email: bbotes@bondnbotes.com DIAMOND RESORTS: Violates Fair Debt Collection Act, Gross Suit Says ------------------------------------------------------------------- A class action lawsuit has been filed against Diamond Resorts Management Incorporated. The case is titled as Joseph Gross, individually, and on behalf of those Arizona residents similarly situated v. Diamond Resorts Management Incorporated, Case No. 2:18-cv-02759-JZB (D. Ariz., August 31, 2018). The lawsuit is brought over alleged violations of the Fair Debt Collection Practices Act. Diamond Resorts Management, Inc., was formerly known as Sunterra Resort Management, Inc. and changed its name to Diamond Resorts Management, Inc. in October 2007. The Company was incorporated in 1991 and is based in Las Vegas, Nevada. Diamond Resorts Management, Inc., operates as a subsidiary of Diamond Resorts Corporation, which owns and manages a network of resorts in the Caribbean, Europe, and North America.[BN] The Plaintiff is represented by: Brian Parker, Esq. Robert John Heieck, Esq. DC CAPITAL LAW 700 12th St. NW, Suite 700 Washington, DC 20005 Telephone: (202) 888-1144 E-mail: bparker@dccapitallaw.com rheieck@dccapitallaw.com DIRECT FUNDING: Loyhayem Hits Autodialed Telemarketing Calls ------------------------------------------------------------ Jonathan Loyhayem, on behalf of himself and all others similarly situated, Plaintiff, v. Direct Funding Now LLC and Does 1 through 10, inclusive, and each of them, Defendants, Case No. 18-cv-05502 (C.D. Cal., June 20, 2018), seeks damages and any other available legal or equitable remedies resulting from Defendants contacting Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act. Direct Funding Now is a loan provider who contacted Loyhayem in an attempt to solicit their financial services 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. 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 DIRECTV LLC: Court Denies Bid to Arbitrate Revitch's TCPA Suit -------------------------------------------------------------- The United States District Court for the Northern District of California denied Defendant's Motion to Compel Arbitration in the case captioned JEREMY REVITCH, Plaintiff, v. DIRECTV, LLC, Defendant. Case No. 18-cv-01127-JCS. (N.D. Cal.). DirecTV brings a Motion to Compel Arbitration and to Stay Litigation (Motion), arguing that because Revitch is a wireless customer of AT&T Mobility LLC (AT&T Mobility), his claim is governed by the arbitration provision contained in his agreement with AT&T Mobility, which covers claims asserted against affiliates of AT&T. Plaintiff Jeremy Revitch brings a putative class action against Defendant DirecTV, LLC (DirecTV) based on an automated call he received from DirecTV advertising its services. Revitch alleges that the call was made without his prior express written consent and therefore violated the Telephone Consumer Protection Act (TCPA). The Customer Agreement The Customer Agreement begins with a preamble (Preamble) and is divided into ten sections setting forth the terms of service related to AT&T's wireless services. Below, the Court summarizes the sections that are relevant to the instant motion. First, the Preamble provides that the terms AT&T, we, us or our "refer to AT&T Mobility LLC, acting on behalf of its FCC-licensed affiliates doing business as AT&T. The Preamble goes on to state, in all capital letters, as follows: THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. General Legal Standards Governing the FAA Under the FAA, a written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Because arbitration is a matter of contract, the question of arbitrability is, in principle, an issue for judicial determination. The court's role in addressing a question of arbitrability is limited to determining (1) whether a valid agreement to arbitrate exists, and if it does, (2) whether the agreement encompasses the dispute at issue. Whether There is A Valid Agreement to Arbitrate Between Plaintiff and DirecTV DirecTV contends Revitch entered into an agreement to arbitrate his claim against it because the arbitration provision in the Customer Agreement covers affiliates and under the generally accepted definition of that term, DirecTV is an affiliate of AT&T Mobility. According to DirecTV, other courts also have concluded that arbitration clauses containing similarly broad language describing the parties covered by the agreement could be enforced by related corporate entities. DirecTV further asserts that to the extent there is uncertainty as to whether Revitch's claims are arbitrable the Supreme Court has instructed that as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Revitch rejects DirecTV's argument that it is an affiliate under the Wireless Agreement, arguing that the terms of the Wireless Agreement and the conduct of AT&T Mobility support the opposite conclusion. With respect to the terms of the Wireless Agreement, Revitch points to Section 1.9 of the Customer Agreement, which contains a definition of affiliate that is limited to providers of landline telephone service whereas DirecTV provides satellite television services. He also points to the website link referenced in Section 2.2(3), provided to explain the arbitration provision to non-lawyers. California Law Governing Contract Interpretation California Civil Code section 1636 provides that a contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. A contract is ambiguous when it is capable of two or more constructions, both of which are reasonable. If terms are ambiguous or uncertain, the court should rely on the reasonable expectation of the parties at the time of the contract. Where there is doubt as to the intent of the parties, ambiguities in written agreements are to be construed against the drafters, a rule that applies with particular force in the case of a contract of adhesion. As a preliminary matter, the Court rejects DirecTV's argument that forward looking language in the arbitration provision shows that the parties intended that it would cover future affiliates, regardless of when or how an entity became an affiliate. DirecTV relies on the fact that the arbitration provision states that references to AT&T, you andus' include successors and assigns but it is undisputed that DirecTV is neither a successor nor an assign of AT&T Mobility. DirecTV reasons that the reference to successors and assigns shows that the arbitration provision was intended to cover claims against entities whose identities could not be known until the future, but nothing in this language suggests that it was intended to cover any entity whose identity was unknown at the time of contracting. The Court also rejects DirecTV's reliance on that fact that the arbitration provision covers claims that may arise after the termination of this Agreement. While this language is, indeed, forward looking, it governs only the types of claims that must be arbitrated, not the entities that may invoke the arbitration clause. Therefore, the Court rejects DirecTV's argument that the terms of the Wireless Agreement show that the arbitration provision covers claims asserted against a future affiliate. The Court concludes that the arbitration provision in the contract between Plaintiff and AT&T Mobility does not reflect an intent to arbittrate the claim Plaintiff asserts against DirecTV in this action. A full-text copy of the District Court's August 23, 2018 Order is available at https://tinyurl.com/ya5a7olu from Leagle.com. Jeremy Revitch, on behalf of himself and all others similarly situated, Plaintiff, represented by Joel Dashiell Smith -- jsmith@bursor.com -- Bursor & Fisher, P.A., Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A. & Yeremey O. Krivoshey -- ykrivoshey@bursor.com -- Bursor Fisher, P.A. DirecTV, LLC, Defendant, represented by Archis Ashok Parasharami -- aparasharami@mayerbrown.com -- Mayer Brown LLP, Anne M. Selin -- aselin@mayerbrown.com -- Mayer Brown LLP, Hans Joseph Germann -- hgermann@mayerbrown.com -- Mayer Brown LLP & Kyle Steinmetz -- ksteinkamp@mayerbrown.com -- Mayer Brown LLP. DISTRICT OF COLUMBIA: Court Narrows Claims in Suit vs SNAP ---------------------------------------------------------- The United States District Court, District of Columbia, granted in part and denied in part Defendant's Motion to Dismiss the case captioned SHONICE G. GARNETT et al., Plaintiffs, v. LAURA ZEILINGER, Defendant. Case No. 17-cv-1757 (CRC). (D.D.C.). The District has moved to dismiss the amended complaint. A group of District of Columbia residents filed suit against Laura Zeilinger, director of the department that administers the District's Supplemental Nutrition Assistance Program (SNAP). They alleged that the District's administration of the program fails to adhere to statutory, regulatory, and constitutional requirements. The Plaintiffs contend that the District (1) failed to process their SNAP benefit applications in a timely manner; (2) failed to send timely notices that their eligibility to receive benefits needed to be recertified; and (3) failed to provide any notice of benefit processing delays and the right to a hearing. Legal Standards The District has moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In addressing such a motion, the court assumes the truth of all well-pleaded factual allegations in the complaint and construes reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept the plaintiff's legal conclusions as correct. The District moves to dismiss each of the plaintiffs' three claims on the same three grounds: that the plaintiffs lack standing, that they have no cause of action under 42 U.S.C. Setion 1983, and that, even if they met those threshold requirements, they have not stated a valid claim. Whether plaintiffs have standing Claim 1 In their first claim, plaintiffs allege that the District is failing to process benefits for SNAP applications both initial applications and recertification applications within the timelines imposed by statute. To establish standing to seek injunctive relief, the named plaintiffs must demonstrate that at the time the complaint (or amended complaint) was filed they suffered (1) an actual injury that was ongoing (or a sufficiently definite threat of future injury), (2) that was traceable to the defendant's challenged conduct, and (3) that is redressable by an injunction from this Court. First, all but one of the individual named plaintiffs pled an ongoing actual injury at the time of suit. According to their sworn affidavits, at the time the suit was filed the named plaintiffs were not receiving SNAP benefits they were entitled to under the law. The lack of SNAP benefits is, as the Court discussed in its preliminary injunction opinion, clearly an actual injury. And since the plaintiffs were at that moment deprived of SNAP benefits, they suffered an ongoing injury as required for injunctive relief. Second, despite the District's arguments to the contrary, the named plaintiffs stated an injury that was traceable to the relevant challenged conduct. As to Shonice Garnett, the remaining named plaintiff representing the class of individuals with delayed processing of initial applications, her declaration states that she filed an initial application on July 10, 2017. Ms. Garnett further alleges that she was not receiving benefits associated with that application as of August 24, 2017, more than 30 days after her application was filed. Director Zeilinger's declaration states that Ms. Garnett was provided benefits by August 31, 2017, seemingly confirming Ms. Garnett's account of events. Thus, Ms. Garnett has attested that she was not receiving SNAP benefits she was due under the law because the District had failed to process her application within 30 days. Her injury (lack of benefits is thus traceable to the conduct she challenges the failure to process initial applications within the mandated timelines. Whether plaintiffs' claims are now moot The Court will consider whether any exceptions to mootness apply. Plaintiffs point to two: voluntary cessation and the inherently transitory exception. Because the Court concludes that the latter applies, it need not address the former. The inherently-transitory exception applies when (1) it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class and (2) there will be a constant class of persons suffering the deprivation complained of in the complaint. Turning to the second prong, as noted in the ruling on the motion for the preliminary injunction, the District has admitted that it is not processing all applications within the proper timelines. As such, at any given moment there are recipients who are not receiving SNAP benefits owed under the law because of a delay in processing their applications. There is thus a constant class of individuals suffering the injury complained of loss of SNAP benefits because of the challenged conduct. Consequently, since both requirements are met, the inherently transitory exception applies here. In sum, the named plaintiffs had standing at the time the complaint or amended complaint was filed. And since the inherently-transitory exception to mootness applies, the Court will deny the District's motion to dismiss Claim 1. Claim 2 In their second claim, the plaintiffs allege that the District is failing to send out recertification notices as required by the statute. In light of the present record before the Court, plaintiffs have adequately demonstrated that they face a sufficient risk of future injury. For one, households that receive SNAP benefits are only certified for a limited period of time, typically lasting 6-12 months. Benefit recipients like Mr. Stanley and Mr. Gaines are thus required to recertify eligibility at least every 6-12 months, meaning they can regularly anticipate receiving a recertification notice. It is therefore nearly certain that Mr. Stanley and Mr. Gaines, within a year, will face the possibility of not receiving a recertification notice and losing benefits. The Court is not relying on other class members' failure to receive notices and their resulting injury to establish plaintiffs' standing. However, the fact that the District has repeatedly failed to send notices sheds light on whether it is likely that Mr. Stanley and Mr. Gaines will again suffer a loss of SNAP benefits because of a failure to receive a notice. Though this evidence may have been insufficient to establish a systemic failure to send recertification notices as required for a preliminary injunction, it does suffice to show that Mr. Stanley and Mr. Gaines face a realistic danger of sustaining a direct injury as required for standing, This direct injury the risk of losing SNAP benefits is traceable to the challenged conduct failure to provide recertification notices and redressable by an injunction akin to that the class seeks one directing the District to send the notices due under law. As such, Mr. Stanley and Mr. Gaines have established standing at this juncture as to Claim 2. Claim 3 In their third claim, the plaintiffs allege that the District is failing to provide written notice of processing delays and of the right to a hearing, in violation of the Due Process Clause of the Fourteenth and Fifth Amendments and the relevant statute. As to Claim 3, the Court agrees with the District that the individual plaintiffs (and Bread for the City) have not adequately alleged standing because they fail to identify an actual injury traceable to the relevant challenged conduct or redressable by the desired relief. The named plaintiffs cannot rely on a statutory violation alone to provide injury, but rather must point to a concrete harm flowing from the statutory violation. While the loss of benefits (or, for Bread for the City, economic resources) is such a concrete harm, that harm is not traceable to the conduct challenged in Claim 3. The plaintiffs' failure to receive benefits (and Bread for the City's need to expend resources) stems from the District's failure to process applications or to issue recertification notices, not from any failure to provide a notice of delayed processing or of the right to a hearing. The plaintiffs have not identified an actual injury that is traceable to the challenged conduct or redressable by the desired relief and lack standing to pursue Claim 3. Whether plaintiffs have a cause of action Whether the SNAP Act creates a right enforceable under section 1983 The Supreme Court has laid out a three-part test to determine whether a federal statute provides a right enforceable through section 1983: (1) Congress must have intended that the provision in question benefit the plaintiff (2) the plaintiff must demonstrate that the right assuredly protected by the statute is not so vague and amorphous' that its enforcement would strain judicial competence and (3) the statute must unambiguously impose a binding obligation on the States. Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). The District does not strongly contest that these statutory provisions meet the latter two requirements of the Blessing test. The statute imposes an obligation on the States: the statutory text uses the mandatory shall and the statutory scheme is clear that if States wish to receive money they must follow these requirements. Nor are any of these provisions too vague or precatory to allow for judicial enforcement. The first provision, section (a) mandates that eligible households receive benefits, an analysis that only requires the Court to determine whether a household is eligible. Subsections 2020(e)(3), (e)(4), and (e)(9) all involve specific timelines for when States must take certain actions, which courts are clearly capable of enforcing. Rather, the hardest prong of the Blessing test here is the first: whether the statutory text creates rights that are intended to benefit individuals. Indeed, the District primarily argues that the plaintiffs lack a cause of action under section 1983 because the statutory text here imposes conditions upon the states receiving federal funds for SNAP, not rights for beneficiaries. In support of its argument, it notes that the relevant statutory language focuses on the State plan of operation, not on the individual beneficiaries of SNAP. But under the Supreme Court's decision in Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), this statutory text is sufficient to create a right intended to benefit an individual. Whether the administrative scheme impliedly forecloses a remedy under section 1983 The District argues that even if the statutory text creates rights under section 1983, that does not necessarily mean that section 1983 provides a remedy. Under Supreme Court precedent, once a plaintiff has demonstrated that a statute creates a right, there is a presumption that right is enforceable through section 1983. In Wright, the Supreme Court rejected the argument that the role the Department of Housing and Urban Affairs (HUD) played in enforcing public housing laws precluded section 1983 suits. Similarly, in Wilder the Supreme Court held the existence of an administrative oversight regime did not preclude section 1983 suits. The regulatory scheme here is akin to that in Wilder. As there, the Food and Nutrition Service here oversees State compliance with the statutory requirements and has authority to revoke federal funds and impose other sanctions for States that fail to substantially comply with requirements. And as in Wilder and Wright, the SNAP Act does not contain its own judicial remedies. Thus, the more limited and differently-focused oversight role of the Service is not sufficiently comprehensive to displace section 1983. Whether plaintiffs state a claim Starting with Claim 1, the plaintiffs have adequately alleged that the District is not processing applications in accordance with the statutory timelines. Indeed, the District conceded in the hearing on the class certification and preliminary injunction motions that it is failing to do so. Particularly in light of the Court's ruling that plaintiffs have demonstrated a likelihood of succeeding on Claim 1 Claim 1 states a claim upon which relief can be granted. So, too, with Claim 2. Again, the complaint contains sufficient factual allegations to allege a systemic failure to issue recertification notices. And while the Court did not find plaintiffs have established a likelihood of succeeding on this claim in ruling on the preliminary injunction motion, it certainly did not foreclose the possibility that they would be able to prevail after further discovery. They have therefore adequately alleged a claim upon which relief can be granted as to Claim 2. Whether to substitute the District as a defendant The Court will reserve judgment on these arguments. It is unclear at this juncture whether substitution of the District will materially alter the standard plaintiffs must meet to prove their case: namely, whether the policy or practice standard for municipal liability applies to a suit against a municipal officer in her official capacity alone. The Court will wait to resolve this issue until the proper standard that applies in this case has been clarified, and invites the parties to address this issue in more detail in any future briefing. The Court will grant in part and deny in part the Defendant's Motion to Dismiss. A full-text copy of the District Court’s August 23, 2018 Memorandum Opinion is available at https://tinyurl.com/y8nnb5do from Leagle.com. SHONICE G. GARNETT, RICHARD MESSICK, JR, LINDA MURPH & BREAD FOR THE CITY, Plaintiffs, represented by Chinh Q. Le -- cle@legalaiddc.org -- LEGAL AID SOCIETY OF THE DISTRICT OF COLUMBIA, pro hac vice, Kaitlin Welborn -- kaitlin.welborn@hoganlovells.com -- HOGAN LOVELLS US LLP, pro hac vice, Marc Cohan , NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, pro hac vice, Peter R. Bisio -- peter.bisio@hoganlovells.com -- HOGAN LOVELLS US LLP, Susan Musser , HOGAN LOVELLS US LLP, pro hac vice, Travis England , NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, pro hac vice, Chelsea C. Sharon -- csharon@legalaiddc.org -- LEGAL AID SOCIETY OF THE DISTRICT OF COLUMBIA, Emily Goldman -- emily.goldman@hoganlovells.com -- HOGAN LOVELLS US LLP, Jennifer F. Mezey -- jmezey@legalaiddc.org -- LEGAL AID SOCIETY OF THE DISTRICT OF COLUMBIA & Lance Murashige -- lance.murashige@hoganlovells.com -- HOGAN LOVELLS US LLP. JAMES STANLEY, RODERICK GAINES & KATHRYN HARRIS, Plaintiffs, represented by Emily Goldman , HOGAN LOVELLS US LLP, Kaitlin Welborn , HOGAN LOVELLS US LLP, pro hac vice,Marc Cohan , NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, pro hac vice, Susan Musser , HOGAN LOVELLS US LLP, pro hac vice, Travis England , NATIONAL CENTER FOR LAW AND ECONOMIC JUSTICE, pro hac vice, Lance Murashige , HOGAN LOVELLS US LLP & Chinh Q. Le , LEGAL AID SOCIETY OF THE DISTRICT OF COLUMBIA, pro hac vice. LAURA ZEILINGER, in her official capacity as Director of the District of Columbia Department of Human Services, Defendant, represented by Conrad Z. Risher , OFFICE OF ATTORNEY GENERAL/DC, Fernando Amarillas , OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Jessica N. Krupke , OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA & Amanda J. Montee , OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA. DITECH HOLDING: Continues to Defend Lee Class Action in Nevada -------------------------------------------------------------- Ditech Holding Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend itself in a class action suit entitled, Kamimura, Lee C. v. Green Tree Servicing LLC. In Kamimura, Lee C. v. Green Tree Servicing LLC, filed on April 8, 2016 in the U.S. District Court for the District of Nevada, Ditech Financial is subject to a putative nationwide class action suit alleging Fair Credit Reporting Act (FCRA) violations by obtaining credit bureau information without a permissible purpose after the discharge of debt owed to Ditech Financial pursuant to Chapter 13 of the Bankruptcy Code. The plaintiff in this suit, on behalf of himself and others similarly situated, seeks actual and punitive damages, statutory penalties, and attorneys' fees and litigation costs. No further updates were provided in the Company's SEC report. Ditech Holding Corporation operates as an independent servicer and originator of mortgage loans, and servicer of reverse mortgage loans. The company operates through three segments: Servicing, Originations, and Reverse Mortgage. Ditech Holding Corporation was founded in 1958 and is based in Fort Washington, Pennsylvania. DITECH HOLDING: Initial Approval of Elkin Settlement Sought ----------------------------------------------------------- Ditech Holding Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the plaintiff in the case, Courtney Elkin, et al. vs. Walter Investment Management Corp., et al., has moved the court for preliminary approval of the parties' settlement agreement. A federal securities fraud complaint was filed against the Company, George M. Awad, Denmar J. Dixon, Anthony N. Renzi, and Gary L. Tillett on March 16, 2017. The case, captioned Courtney Elkin, et al. vs. Walter Investment Management Corp., et al., Case No. 2:17-cv-02025-JCJ, is pending in the Eastern District of Pennsylvania. The court has appointed a lead plaintiff in the action who filed an amended complaint on September 15, 2017. The amended complaint seeks monetary damages and asserts claims under Sections 10(b) and 20(a) of the Exchange Act during a class period alleged to begin on August 9, 2016 and conclude on August 1, 2017. The amended complaint alleges that: (i) defendants made material misstatements about the value of the Company's deferred tax assets; (ii) the material misstatement about the value of the Company's deferred tax assets required the Company to restate certain financials in the Quarterly Reports on Form 10-Q for the periods ended June 30, 2016, September 30, 2016 and March 31, 2017 and the Annual Report on Form 10-K for the year ended December 31, 2016, and caused the Company to violate the financial covenants and obligations in agreements with the Company's lenders and GSEs; and (iii) defendants made material misstatements concerning the Company's initiatives to deleverage the Company's capital structure. On November 3, 2017, the lead plaintiff voluntarily dismissed defendant Denmar J. Dixon from the action. On November 14, 2017, the remaining defendants moved to dismiss the amended complaint. From December 1, 2017 to February 9, 2018, the action was stayed pursuant to section 362 of the Bankruptcy Code. On July 13, 2018, the parties entered into a formal settlement agreement to settle the action for $2.95 million subject to notice to the alleged class and court approval, and the plaintiff moved the court for preliminary approval of the settlement. Ditech Holding said, "The settlement, if completed, will be paid by the Company's directors' and officers' insurance carrier." Ditech Holding Corporation operates as an independent servicer and originator of mortgage loans, and servicer of reverse mortgage loans. The company operates through three segments: Servicing, Originations, and Reverse Mortgage. Ditech Holding Corporation was founded in 1958 and is based in Fort Washington, Pennsylvania. EROS INT'L: Reports Dismissal of Class Action Lawsuit ----------------------------------------------------- Street Insider reports that Eros International Plc disclosed that the United States Court of Appeals for the Second Circuit has issued a Summary Order affirming the U.S. District Court's earlier dismissal, with prejudice, of the putative securities class action that was originally filed in November 2015 against Eros and certain of its officers and directors. Eros previously disclosed that, on October 23, 2017, lead plaintiffs filed a Notice of Appeal, individually and on behalf of the putative class, to the United States Court of Appeals for the Second Circuit. On August 21, 2018, the Court of Appeals issued a Summary Order affirming the District Court's dismissal with prejudice.[GN] ESSA BANCORP: Accord in Motor Vehicle Repossession Suit Okayed -------------------------------------------------------------- ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that a court has approved the settlement in the class action suit related to the non-compliance of Pennsylvania Uniform Commercial Code ("UCC"). ESSA Bank & Trust (the Bank) was named as the defendant in an action commenced on September 13, 2016 by one plaintiff. The plaintiff alleges that the Bank repossessed motor vehicles, sold the vehicles and sought to collect deficiency balances in a manner that did not comply with the notice requirements of the Pennsylvania Uniform Commercial Code ("UCC"). The plaintiff seeks to pursue the action as a class action on behalf of the named plaintiff and other similarly situated plaintiffs who had their automobiles repossessed and seek to recover damages under the UCC. The Bank denies the plaintiff's allegations. The parties attended a mediation in October 2017 where they reached an agreement to resolve the claims asserted against the Bank on a class wide basis. The terms of the settlement calls for the Bank to make a payment of $1,325,000 to the plaintiffs. The Bank's insurance carrier will cover the payment made by the Bank in excess of a $125,000 retention. The court has approved the settlement. ESSA Bancorp, Inc. operates as the holding company for ESSA Bank & Trust that provides a range of financial services to individuals, families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was founded in 1916 and is based in Stroudsburg, Pennsylvania. ESSA BANCORP: Unit Still Defends Alleged RESPA Violations --------------------------------------------------------- ESSA Bancorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the appellate court has tentatively scheduled oral arguments in a class action appeal in October or November 2018. The Bank was named as a defendant in an action commenced on December 8, 2016 by one plaintiff who will also seek to pursue this action as a class action on behalf of the entire class of people similarly situated. The plaintiff alleges that a bank previously acquired by ESSA Bancorp, Inc., in the process of making loans, received unearned fees and kickbacks in violation of the Real Estate Settlement Procedures Act. In an order dated January 29, 2018, the court granted the Bank's motion to dismiss the case. The plaintiff has appealed the court's ruling. The plaintiff submitted her brief in support of her appeal in May 2018, and the Bank submitted its opposition brief in July 2018. The appellate court has tentatively scheduled oral arguments for October or November 2018. ESSA Bancorp said "To the extent this litigation could result in exposure to the Bank, the amount of such exposure is not currently estimable." ESSA Bancorp, Inc. operates as the holding company for ESSA Bank & Trust that provides a range of financial services to individuals, families, and businesses in Pennsylvania. ESSA Bancorp, Inc. was founded in 1916 and is based in Stroudsburg, Pennsylvania. FAMILY COUNSELING: Conditional Class Cert in Coons Suit Suggested ----------------------------------------------------------------- In the case, MEAGAN COONS, Plaintiff, v. FAMILY COUNSELING CENTER OF FULTON COUNTY, INC., Defendant, Case No. 1:17-CV-439 (TJM/CFH) (N.D. N.Y.), Magistrate Judge Christian F. Hummel of the U.S. District Court for the Northern District of New York recommended that the Plaintiff's motion for conditional collective certification be granted. Coons worked for FCC as a Domestic Violence Coordinator ("DVC") from March 2015 until August 2015, and as Domestic Violence Residential Advocate from August 2015 through September 2016. The Plaintiff contends that she was required to work in excess of 40 hours per week on an almost weekly basis. She contends that FCC failed to pay Coons and others similarly-situated at any rate of pay, let alone at the statutorily-required overtime rate of one and one-half times their standard rate of pay, their agreed upon straight time rate of pay, or even the minimum wage rate, for virtually all hours that Coons and the FLSA Plaintiffs worked per week in excess of 40. The Plaintiff argues that she, and others similarly situated, should have been paid at an overtime rate of time and one-half for all hours worked over 40 hours per week, and that such failure violates the Fair Labor Standards Act ("FLSA"). Further, she contends that by failing to pay her and others similarly situated at the minimum hourly rate for each hour worked, defendant violated FLSA Section 206(a). The Plaintiff contends that the Defendant's failure to pay time and one-half for overtime work also violates New York Labor Law Section 652(1) and 12 NYCRR Section 142-2.1. Next, she alleges that the Defendant's failure to compensate employees who worked on call shifts at their regular rate of pay also violates New York Labor Law Sections 190, 191, and 633(1). Additionally, the Plaintiff contends that the Defendants willingly failed to furnish Coons and the FLSA Plaintiffs on each payday with accurate wage statements containing the criteria required, which violates New York Labor Law Section 195(3). Further, she contends that under New York Labor Law Section198(1-d), the Defendant is liable to Coons and the other potential Plaintiffs for $100 per failure to provide accurate wage statements. The Plaintiff also contends the Defendant failed to provide her and the potential Plaintiffs with a wage notice at the time of hire containing the accurate criteria enumerated under the NYLL. The Defendant is liable to the Plaintiff and the potential Plaintiffs for $50 for each work week that the violations occurred or continued to occur, but not to exceed a total $2,500. Presently pending before the Court is Coons' motion for conditional certification of the matter as a collective action pursuant to Federal Rule of Civil Procedure. She also seeks an order compelling the Defendant to provide her with the names and addresses of the potential opt-in Plaintiffs. FCC opposed the motion for conditional collective certification. The Plaintiff filed a reply. Magistrate Judge Hummel recommended that the Plaintiff's motion for conditional collective certification be granted, and that the Court compels the Defendant to provide the names and addresses of the potential opt-in Plaintiffs. He finds that Coons has made a modest factual showing sufficient to demonstrate that she and the potential Plaintiffs together were victims of a common policy or plan that violated the law by showing that she, and the potential opt-in Plaintiffs who performed on-call or back-up on call work were not sufficiently paid for such work. The Magistrate Judge also recommended that, should the District Judge adopt the Report-Recommendation and Order, within 30 days of entry the District Judge's Order, the Defendant must provide the Plaintiff with a list of the names and addresses all employees who served as Domestic Violence Counselors who worked on-call shifts or back-up shifts for three years prior to the date of the entry of the District Judge's Order. Finally, the Plaintiff requests that the Court permit her counsel to send to the opt-in Plaintiffs a proposed Court-Authorized Notice and Consent form to become a party Plaintiff. The Defendant does not address the proposed notice and consent form. As the notice informs the potential Plaintiffs about the lawsuit, their potential ability to join the suit, the representation agreement, and the financial arrangement with the attorney, it suffices to inform the opt-in Plaintiffs of nearly all of their rights and options in joining the suit. He recommended that the Plaintiff be permitted to sent the proposed notice and consent form to the potential opt-in Plaintiffs. Magistrate Judge Hummel recommended that the Court permits the Plaintiff to send the proposed notice and consent form to the opt-in Plaintiffs. He directed the Clerk of the Court serve parties with a copy of the Report-Recommendation and Order in accordance with local rules. A full-text copy of the Court's June 27, 2018 Report-Recommendation Order is available at https://is.gd/bQEpB3 from Leagle.com. Meagan Coons, on behalf of herself and all others similarly situated, Plaintiff, represented by Kelly A. Magnuson, Tully Rinckey & Nicholas A. Devyatkin -- ndevyatkin@tullylegal.com -- Tully, Rinckey Law Firm - Albany Office. Michael J. Murphy, Mediator, pro se. Family Counseling Center of Fulton County, Inc., Defendant, represented by Gregg T. Johnson, Johnson & Laws, LLC, Corey A. Ruggiero, Johnson & Laws, LLC & Loraine Clare Jelinek, Johnson & Laws, LLC. FIRST BANCORP: Puerto Rico High Court Won't Review Torres Rulings ----------------------------------------------------------------- First Bancorp said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the Puerto Rico Supreme Court has issued a resolution denying petitions for writ of certiorari sought by the defendants in the case, Ramirez Torres, et al. v. Banco Popular de Puerto Rico, et al. FirstBank Puerto Rico has been named Defendant in Ramirez Torres, et al. v. Banco Popular de Puerto Rico, et al., filed of February 17, 2017, at the Court of First Instance in San Juan, Puerto Rico. The Complaint seeks damages and preliminary injunctive relief on behalf of the purported class against Banco Popular de Puerto Rico and other financial institutions with insurance agency subsidiaries in Puerto Rico. Plaintiffs allege that Defendants have been unjustly enriched by failing to reimburse them for "good experience" commissions allegedly paid by Antilles Insurance Company and Puerto Rico Home Insurance Company. On March 30, 2017, FirstBank Puerto Rico filed a Motion to Dismiss and a Motion for Declaratory Judgment and Third Party Complaint against Antilles Insurance Company and the Insurance Commissioner's Office. All other Defendants filed Motions to Dismiss. Antilles Insurance Company filed a Motion against the Third Party Complaint filed by FirstBank Puerto Rico, which FirstBank Puerto Rico opposed. The Insurance Commissioner's Office filed a Motion for Summary Judgment. On July 28, 2017, the Court issued Judgment granting the Motions to Dismiss filed by Defendants, dismissing the Complaint with prejudice, except the Third Party Complaint filed by FirstBank Puerto Rico which was dismissed without prejudice. On August 30, 2017, Plaintiffs filed an Appeal before the Puerto Rico Court of Appeals and FirstBank Puerto Rico filed its Opposition. On March 20, 2018, the Court of Appeals entered Judgment revoking the lower court judgment. Oriental Bank filed for Reconsideration, which was denied. All other Defendants filed writs of certiorari before the Puerto Rico Supreme Court on May 29, 2018. On June 26, 2018, the Supreme Court issued Resolution denying all writs of Certiorari filed by Defendants. First Bancorpsaid, "Defendants are currently discussing the Supreme Court's Judgment in order to determine if a Reconsideration will be filed." First Bancorp operates as the bank holding company for First Bank that provides banking products and services for individuals and small to medium-sized businesses primarily in North Carolina and northeastern South Carolina. The Company was founded in 1934 and is headquartered in Southern Pines, North Carolina. FLINT, MI: Seeks 6th Cir. Review of Ruling in Waid Suit ------------------------------------------------------- Defendants City of Flint, MI, Gerald Ambrose, Howard Croft, Darnell Earley, Michael Glasgow and Daugherty Johnson filed an appeal from a court ruling in the lawsuit titled Luke Waid, et al. v. Rick Snyder, et al., Case No. 5:16-cv-10444, in the U.S. District Court for the Eastern District of Michigan at Ann Arbor. The appellate case is captioned as Luke Waid, et al. v. Rick Snyder, et al., Case No. 18-1999, in the United States Court of Appeals for the Sixth Circuit. As reported in the Class Action Reporter on Sept. 7, 2018, Defendants Stephen Busch, Patrick Cook, Michael Prysby and Liane Shekter Smith filed an appeal from a court ruling in the lawsuit. Other parties have also filed appeals. Richard Dale Snyder is sued in his official capacity as Governor of the state of Michigan. The state of Michigan is sued in its capacity of operating the Michigan Department of Environmental Quality. The lawsuit is one of the eight cases consolidated for all purposes, including trial, in the case captioned In re Flint Water Cases, Case No. 5:16-cv-10444-JEL-MKM (E.D. Mich.). The Plaintiffs seek recovery from the Defendants for alleged injuries, damages and losses suffered by the Plaintiffs as a result of exposure to the introduction of lead and other toxic substances from the Defendants' ownership, use, management, supervision, storage, maintenance, disposal and release of highly corrosive water from the Flint River into the drinking water of Flint, Michigan.[BN] The Plaintiffs-Appellees are represented by: Jordan W. Connors, Esq. SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101 Telephone: (206) 516-3814 E-mail: jconnors@susmangodfrey.com - and - Diana Gjonaj, Esq. Paul Francis Novak, Esq. Gregory Stamatopoulos, Esq. WEITZ & LUXENBERG PC 719 Griswold, Suite 620 Detroit, MI 48226 Telephone: (313) 800-4166 E-mail: dgjonaj@weitzlux.com pnovak@weitzlux.com gstamatopoulos@weitzlux.com - and - John McNeill Broaddus, Esq. WEITZ & LUXENBERG PC 220 Lake Drive E. Cherry Hill, NJ 08002 Telephone: (856) 755-1115 E-mail: jbroaddus@weitzlux.com - and - William H. Goodman, Esq. Julie H. Hurwitz, Esq. Kathryn Bruner James, Esq. GOODMAN & HURWITZ, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 Telephone: (313) 567-6170 E-mail: bgoodman@goodmanhurwitz.com jhurwitz@goodmanhurwitz.com kjames@goodmanhurwitz.com - and - Deborah A. LaBelle, Esq. LAW OFFICES OF DEBORAH A. LABELLE 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000 Telephone: (734) 996-5620 - and - Cary S. McGehee, Esq. Michael L. Pitt, Esq. Beth M. Rivers, Esq. PITT, MCGEHEE, PALMER & RIVERS 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 Telephone: (248) 398-9800 E-mail: cmcgehee@pittlawpc.com mpitt@pittlawpc.com brivers@pittlawpc.com - and - David J. Shea, Esq. SHEA, AIELLO & DOXSIE 26200 American Drive, Third Floor Southfield, MI 48034 Telephone: (248) 354-0224 E-mail: david.shea@sadplaw.com - and - Jessica B. Weiner, Esq. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 231 W. Lafayette Boulevard Theodore Levin U.S. Courthouse, Room 611 Detroit, MI 48226 Telephone: (313) 226-0003 - and - Conrad J. Benedetto, Esq. THE LAW OFFICES OF CONRAD J. BENEDETTO 1615 South Broad Street Philadelphia, PA 19148 Telephone: (215) 389-1900 E-mail: cjbenedetto@benedettolaw.com - and - Esther Berezofsky, Esq. BEREZOFSKY LAW GROUP, LLC 210 Lake Drive East, Suite 101 Cherry Hill, NJ 08002 Telephone: (856) 667-0500 E-mail: eberezofsky@wcblegal.com - and - Jayson Edward Blake, Esq. Mark McAlpine, Esq. MCALPINE LAW OFFICE 3201 University Drive, Suite 100 Auburn Hills, MI 48326 Telephone: (248) 373-3700 E-mail: jeblake@mcalpinepc.com mlmcalpine@mcalpinepc.com - and - Peretz Bronstein, Esq. BRONSTEIN, GEWIRTZ & GROSSMAN LLC 60 East 42nd Street, Suite 4600 New York, NY 10165 Telephone: (212) 697-6484 E-mail: peretz@bgandg.com - and - Emmy L. Levens, Esq. COHEN MILSTEIN SELLERS AND TOLL PLLC 1100 New York Avenue, N.W., Suite 500-W Washington, DC 20005 Telephone: (202) 408-4600 E-mail: elevens@cohenmilstein.com - and - Hunter J. Shkolnik, Esq. NAPOLI SHKOLNIK PLLC 400 Broadhollow Road, Suite 305 Melville, NY 11747 Telephone: (212) 397-1000 E-mail: hunter@napolilaw.com Defendant-Appellant CITY OF FLINT, MI, is represented by: Frederick A. Berg, Jr., Esq. BUTZEL LONG 150 W. Jefferson Avenue, Suite 100 Detroit, MI 48226 Telephone: (313) 225-7000 E-mail: bergf@butzel.com - and - Sheldon H. Klein, Esq. BUTZEL LONG 41000 Woodward Avenue Stoneridge West Building Bloomfield Hills, MI 48304 Telephone: (248) 258-1616 E-mail: klein@butzel.com - and - Reed E. Eriksson, Esq. William Young Kim, Esq. CITY OF FLINT 1101 S. Saginaw Street, Third Floor Flint, MI 48502 Telephone: (810) 766-7146 E-mail: reriksson@cityofflint.com wkim@cityofflint.com Defendant-Appellant DARNELL EARLEY is represented by: Todd Russell Perkins, Esq. THE PERKINS LAW GROUP PLLC 615 Griswold Street, Suite 400 Detroit, MI 48226 Telephone: (313) 964-1702 E-mail: tperkins@perkinslawgroup.net Defendant-Appellant GERALD AMBROSE is represented by: Barry A. Wolf, Esq. BARRY A. WOLF, ATTORNEY AT LAW, PLLC 503 S. Saginaw Street, Suite 1410 Flint, MI 48502 Telephone: (810) 762-1084 Defendant-Appellant HOWARD CROFT is represented by: Alexander Stephen Rusek, Esq. WHITE LAW PLLC 2549 Jolly Road, Suite 340 Okemos, MI 48864 Telephone: (517) 316-1195 E-mail: alexrusek@whitelawpllc.com Defendant-Appellant MICHAEL GLASGOW is represented by: Brett T. Meyer, Esq. O'NEILL, WALLACE, & DOYLE PC 300 St. Andrews Road, Suite 302 Saginaw, MI 48605 Telephone: (989) 790-0960 E-mail: bmeyer@owdpc.com Defendant-Appellant DAUGHERTY JOHNSON is represented by: David Wayne Meyers, Esq. THE LAW OFFICE OF DAVID W. MEYERS, PLC P.O. Box 88 Lexington, MI 48450 Telephone: (810) 662-0180 - and - Edwar Ayoub Zeineh, Esq. LAW OFFICE OF EDWAR A. ZEINEH 2800 E. Grand River Avenue, Suite B Lansing, MI 48912 Telephone: (517) 374-6034 E-mail: ZeinehLaw@gmail.com FLOWERS FOODS: Farr Files Suit in Ala. Over FLSA Breach ------------------------------------------------------- A class action lawsuit has been filed against Flowers Foods, Inc., et al. The case is styled as Carlton Keith Farr, Individually on behalf of himself and others similarly situated current and former employees v. Flowers Foods, Inc., Flowers Baking Co. of Opelika LLC and Flowers Baking Co. of Birmingham LLC, Case No. 3:18-cv-00774-WKW-GMB (M.D. Ala., August 31, 2018). The lawsuit arises from alleged violations of the Fair Labor Standards Act. Flowers Foods, Inc., produces and markets bakery products in the United States. The Company operates through two segments, Direct-Store-Delivery (DSD) and Warehouse Delivery. The DSD segment produces and markets fresh breads, buns, rolls, tortillas, and snack cakes. This segment offers its products primarily under the Nature's Own, Wonder, Cobblestone Bread Company, Tastykake, and Dave's Killer Bread brand names. The Warehouse Delivery segment produces snack cakes, frozen breads, and rolls for national retail, foodservice, vending, and co-pack customers. Flowers Baking Co. of Opelika LLC was founded in 1964. The Company's line of business includes the manufacturing of fresh or frozen bread and bread-type rolls, cakes, pies, and other perishable bakery products. Flowers Baking Co. of Opelika and Flowers Baking Co. of Birmingham operate as subsidiaries of Flowers Foods Inc.[BN] The Plaintiff is represented by: Gordan E. Jackson, Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON SHIELDS YEISER & HOLT ATTORNEYS AT LAW 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: gjackson@jsyc.com rbryant@jsyc.com pjackson@jsyc.com - and - Larry Brooks Moore, Esq. MOORE BERRY & LINVILLE P O Box 9 Florence, AL 35630 Telephone: (256) 718-0120 Facsimile: (256) 718-0251 E-mail: lbmoore@mblattorneys.com - and - Michael L. Weinman, Esq. WEINMAN THOMAS LAW FIRM P O Box 266 Jackson, TN 38302 Telephone: (731) 423-5565 E-mail: Mike@weinmanandassoc.com FORTERRA INC: Court Consolidates 3 Related Securities Suits ----------------------------------------------------------- In the cases, CHARLES FORRESTER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. FORTERRA, INC., JEFFREY BRADLEY, WILLIAM MATTHEW BROWN, LORI M. BROWNE, KYLE S. VOLLUZ, KEVIN BARNER, ROBERT CORCORAN, SAMUEL D. LOUGHLIN, CLINT McDONNOUGH, JOHN McPHERSON, CHRIS MEYER, JACQUES SARRAZIN, CHADWICK SUSS, GRANT WILBECK, FORTERRA US HOLDINGS, LLC, MID HOLDINGS, CONCRETE HOLDINGS, LSF9 CONCRETE LTD., LSF9 CONCRETE II LTD., STARDUST HOLDINGS, LSF9 STARDUST GP, LLC, LONE STAR FUND IX (U.S.), L.P., LONE STAR PARTNERS IX, L.P., LONE STAR MANAGEMENT CO. IX, LTD., JOHN P. ORAYKEN, GOLDMAN, SACHS & CO., CITIGROUP GLOBAL MARKETS INC., and CREDIT SUISSE SECURITIES (USA) LLC, Defendants. SUPANIN DISA YAW ATHAN A, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. FORTERRA, INC., JEFFREY BRADLEY, WILLIAM MATTHEW BROWN, LORI M. BROWNE, KYLES. VOLLUZ, KEVIN BARNER, ROBERT CORCORAN, SAMUEL D. LOUGHLIN, CLINT McDONNOUGH, JOHN McPHERSON, CHRIS MEYER, JACQUES SARRAZIN, CHADWICK SUSS, GRANT WILBECK, GOLDMAN, SACHS & CO., CITIGROUP GLOBAL MARKETS INC. and CREDIT SUISSE SECURITIES (USA) LLC, Defendants. MATTHEW SPINDLER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. FORTERRA, INC., JEFFREY BRADLEY, WILLIAM MATTHEW BROWN, LORI M. BROWNE, KYLE S. VOLLUZ, KEVIN BARNER, ROBERT CORCORAN, SAMUEL D. LOUGHLIN, CLINT McDONNOUGH, JOHN McPHERSON, CHRIS MEYER, JACQUES SARRAZIN, CHADWICK SUSS and GRANT WILBECK Defendants, Civil Action Nos. 2:17-cv-04763-JS-GRB, 2:17-cv-04824-JS-GRB, 2:17-cv-04978-JS-GRB (E.D. N.Y.), Judge Joana Seybert of the U.S. District Court for the Eastern District of New York has issued an order consolidating related actions and withdrawing the appearances of the named Plaintiffs. On Aug. 14, 2017, Forrester filed a putative class action complaint herein asserting claims pursuant to Sections 11 and 15 of the Securities Act of 1933 on behalf of purchasers in Forterra's Oct. 21, 2016 initial public stock offering ("IPO"). On Aug. 16, 2017, Disayawathana filed a related putative class action complaint also asserting claims pursuant to the Securities Act of 1933 on behalf of purchasers in Forterra's IPO and additional claims pursuant to Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 on behalf of purchasers during a related class period. On Aug. 23, 2017, Spindler filed a third related putative class action complaint herein also asserting claims pursuant to the Securities Act of 1933 and the Securities and Exchange Act of 1934. The the claims asserted in the Forrester, Disayawathana and Spindler Actions are all related in that they are brought on behalf of purchasers of Forterra securities during overlapping time periods, name similar Defendants and make similar claims. The claims asserted in the Related Actions are all also governed by the Private Securities Litigation Reform Act ("PSLRA"), which calls for the consolidation of all such related actions and provides for a procedure for the appointment by the Court of the lead Plaintiff(s) and lead counsel to represent the putative class. The motions for the consolidation of the Related Actions and the appointment of a lead Plaintiff and the Court's approval of the lead Plaintiffs selection of the lead counsel were filed on Oct. 13, 2017. By Nov. 3, 2017, all competing motions for appointment of the lead Plaintiff other than that of Movant Wladislaw Maciuga had been withdrawn and Movant Wladislaw Maciuga notified the Court that his motion for appointment as the lead Plaintiff was unopposed. Forrester seeks to withdraw as a named Plaintiff in the Related Actions, while remaining an absent class member, and his counsel of record, Robbins Geller Rudman & Dowd LLP and Holzer & Holzer LLP, seek to withdraw as the counsel in the Related Actions. Spindler seeks to withdraw as a named Plaintiff in the Related Actions, while remaining an absent class member, and his counsel of record, Pomerantz LLP and Bronstein, Gewirtz & Grossman, LLC, seek to withdraw as the counsel in the Related Actions. Disayawathana seeks to withdraw as a named Plaintiff in the Related Actions. Disayawathana's counsel of record, Glancy Prongay & Murray LLP will remain in this case in its capacity as counsel for unopposed lead plaintiff movant Wladislaw Maciuga. The parties have stipulated and Judge Seybert granted that the Related Actions are consolidated for all purposes into the low-numbered Forrester Action currently pending before the Court, Civil Action No. 2:17-cv-04763-JS-GRB, and the consolidated action will forthwith be captioned "In re Forterra, Inc. Securities Litigation." Any further related actions that are subsequently filed in, or transferred to, the district in which the action is pending will be consolidated into the consolidated action. The Order will apply to every such related action, absent order of the Court. A party that objects to such consolidation, or to any other provision of the Order, must file an application for relief from the Order within 30 days after the date on which a copy of the order is served on the party's counsel. The docket in Civil Action No. 2:17-cv-04763-JS-GRB will constitute the Master Docket for the action. Every pleading filed in the consolidated action will bear the following caption: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK IN RE FORTERRA, INC. SECURITIES Master File No. 2:17-cv-04763-JS-GRB LITIGATION CLASS ACTION This Document Relates To: The file in Civil Action No. 2:17-cv-04763-JS-GRB will constitute a Master File for every action in the consolidated action. The parties will file a Notice of Related Cases whenever a case that should be consolidated into this action is filed in, or transferred to, the district in which the action is pending. If the Court determines that the case is related, the clerk shall: a) place a copy of thes Order in the separate file for such action; b) serve on the Plaintiff's counsel in the new case a copy of this Order; c) direct that the Order be served upon defendants in the new case; and d) make the appropriate entry in the Master Docket. No Defendant named in the Related Actions will be required to answer or otherwise respond other than as detailed in the Court's order entered in the Forrester Action on Sept. 5, 2017. Forrester is withdrawn as a named Plaintiff in the consolidated action and his counsel of record, Robbins Geller Rudman & Dowd LLP and Holzer & Holzer LLP, are withdrawn as the counsel in the consolidated action. Forrester remains an absent class member with rights to participate in any recovery obtained by the class. Spindler is hereby withdrawn as a named Plaintiff in the consolidated action and his counsel of record, Pomerantz LLP and Bronstein, Gewirtz & Grossman, LLC, are withdrawn as the counsel in the consolidated action. Spindler remains an absent class member with rights to participate in any recovery obtained by the class. Disayawathana is hereby withdrawn as a named Plaintiff in the consolidated action. Disayawathana's counsel of record, Glancy Prongay & Murray LLP, will remain in the case in its capacity as the counsel for lead Plaintiff movant Wladislaw Maciuga. Disayawathana remains an absent class member with rights to participate in any recovery obtained by the class. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/vOLpRa from Leagle.com. Sorterra, Inc., Jeffrey Bradley, Lori M. Browne, Kyle S. Volluz, Kevin Barner, Robert Corcoran, Samuel D. Loughlin, Clint McDonnough, John McPherson, Chris Meyer, Chadwick Suss & Grant Wilbeck, Defendants, represented by Melissa Colon-Bosolet -- MCOLON-BOSOLET@SIDLEY.COM -- Sidley Austin LLP. FRITO-LAY NORTH: Allred Couple Can File FAC ------------------------------------------- In the case, BARRY ALLRED and MANDY C. ALLRED, on behalf of themselves, all others similarly situated, and the general public, Plaintiffs, v. FRITO-LAY NORTH AMERICA, INC. and FRITO-LAY, INC., Defendants, Case No. 17-CV-1345 JLS (BGS) (S.D. Cal.), Judge Janis L. Sammartino of the U.S. District Court for the Southern District of California granted the Plaintiffs' Motion for Leave to File First Amended Complaint. The Plaintiffs filed a class action complaint in state court. The Defendants removed the case to federal court. The Plaintiffs bring causes of action under: (1) the Consumer Legal Remedies Act; (2) Unfair Competition Law (unlawful prong); (3) Unfair Competition Law (unfair prong); (4) False Advertising Law; (5) Breach of Express Warranties; and (6) Breach of Implied Warranties. In broad summary, the Plaintiffs allege the Defendants manufacture and sell Salt and Vinegar Flavored Potato Chips. They allege the label of the Product violates California law in various ways. The Plaintiffs seek to represent a class of consumers defined as all consumers who purchased the Product from a retailer within the state of California for personal, family, or household purposes, and not for resale, at any time during the period six years prior to the filing of the Complaint and continuing until the Class is certified. The Defendants filed a motion to dismiss, which the Court denied. The Defendants then filed a motion for reconsideration, which is pending. The Plaintiffs then filed the present motion seeking leave to file a FAC. The Plaintiffs seek to amend their Complaint to add additional factual allegations relating to the function and effect of malic acid in the Lay's Salt & Vinegar Flavored Potato Chip Product that is at issue in the action. They argue their request is timely, as it filed it on the final day in which the Parties were permitted to seek leave to amend to add new claims. They state their amendment does not change the nature of the lawsuit. The Plaintiffs also state the deadline to complete discovery is not until Nov. 1, 2018, and the Defendants have served only one set of discovery. In response, the Defendants point to their motion for reconsideration where they argue that the Plaintiffs have failed to plausibly allege that malic acid imparts a vinegar flavor. The Defendants argue the Plaintiffs are attempting to salvage their claims but the amendments actually undermine their claims. In sum, they argue the Plaintiffs' complaint is subject to dismissal and the amendments are futile. Judge Sammartino finds that the Defendants are effectively asking the Court to turn their opposition into a motion to dismiss. They are moving for reconsideration on the exact issue which the Plaintiffs state they are bolstering with their proposed amendment, so she finds it is appropriate to allow the Plaintiffs leave to amend before evaluating the Defendants' request on the merits. For the foregoing reasons, the Judge granted the Plaintiffs' Motion for Leave to File Amended Complaint. Accordingly, she denied as moot the Defendants' Motion for Reconsideration. The Plaintiffs will file an amended complaint on or before seven days of the electronic docketing of the Order. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/3Ui6PF from Leagle.com. Barry Allred, on behalf of themselves, and all other similarly situated, and the general public & Mandy C Allred, on behalf of themselves, and all others similarly situated, and the general public, Plaintiffs, represented by Alexis M. Wood, Law Offices of Ronald A. Marron, David Elliot -- david@westonfirm.com -- The Elliott Law Firm, Kas L. Gallucci, Law Offices of Ronald A. Marron, Ronald Marron, Law Office of Ronald Marron & Michael Houchin, Law Offices of Ronald A. Marron. Frito-Lay North America, Inc., a Delaware corporation & Frito-Lay, Inc., a Delaware corporation, Defendants, represented by Andrew S. Tulumello -- atulumello@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Arianna Maureen Scavetti -- ascavetti@gibsondunn.com -- Gibson Dunn & Crutcher LLP, pro hac vice, Frederick William Kosmo, Jr. -- fkosmo@wilsonturnerkosmo.com -- Wilson Turner Kosmo LLP, Jason R. Meltzer -- jmeltzer@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Jocelyn D. Hannah, Wilson Turner Kosmo LLP & Christopher Chorba -- cchorba@gibsondunn.com -- Gibson Dunn & Crutcher. FULL CITIZENSHIP: Court Certifies Class in Craighead FLSA Suit -------------------------------------------------------------- In the case, TALIA CRAIGHEAD, et al., Plaintiffs, v. FULL CITIZENSHIP OF MARYLAND, INC., et al., Defendants, Civil Action No. PX-17-595 (D. Md.), Judge Paula Xinis of the U.S. District Court for the District of Maryland granted the Plaintffs' Motion to Certify Class under Federal Rule of Civil Procedure 23. The case was the subject of the Court's previous Memorandum Opinion and Order granting conditional certification under the FLSA. As noted in that Opinion, the Plaintiffs were employed by FCI, a Maryland corporation, which provides residential, rehabilitative, and vocational training services to adults with cognitive disabilities. The Plaintiffs worked as Residential Coordinators, Residential Counselors, Vocational Coordinators, and Vocational Counselors. They group those positions together as residential and vocational staff, and assert they perform overlapping duties and are subject to the same compensation policies and practices. The Plaintiffs initiated the suit on March 1, 2017. On Aug. 4, 2017, the Plaintiffs' Amended Complaint was filed. The parties then engaged in class and jurisdictional discovery. Following the close of class and jurisdictional discovery, on Feb. 12, 2018, the Plaintiffs filed the pending motion, moving for class certification pursuant to Federal Rule of Civil Procedure 23. In their motion, the Plaintiffs argue that classwide treatment of the case is efficient and practical to adjudicate the claims of those employees who were subjected to a uniform illegal compensation scheme. The proposed class consists of all persons who were, are, or will be employed by the Defendants as residential and vocational staff, who were paid by the hour, and who allegedly were not paid the legal minimum wage and/or overtime wage (one and one-half times their regular hourly rate) for hours worked in excess of 40 in a workweek, from March 1, 2014, through the present. The Plaintiffs have provided 65 potential class members who allegedly did not receive their full overtime wages, and 25 potential class members who allege minimum wage violations. Some individual putative class members have both minimum wage and overtime claims. The Plaintiffs have also provided a classwide damages summary sheet for approximately 80 individuals who worked as residential and vocational staff. The Defendants oppose certification, arguing that the Plaintiffs fail to meet the requirements of Rules 23(a) and 23(b) of the Federal Rules of Civil Procedure. Judge Xinis agrees with the Plaintiffs. She finds that the Plaintiffs have met each of the Rule 23(a) and Rule 23(b)(3) requirements. Therefore, she granted the Plaintiffs' Motion for Class Certification. The parties will have 14 days from the entry of the Order to jointly propose a scheduling order for the merits phase of the case. The Clerk is directed to transmit copies of the Memorandum Opinion and Order to the counsel for the parties. A full-text copy of the Court's June 27, 2018 Memorandum Opinion and Order is available at https://is.gd/UtqJvO from Leagle.com. Talia Craighead, on behalf of herself and all similarly situated individuals, Vernice Headen, Opt-In, Vernesha Hutchinson, Opt-In, Pamela Omar Ransom, Opt-In & Jennifer Bumbray, Opt-in, Plaintiffs, represented by Jonathan Philip Tucker -- jt@dcwagelaw.com -- Law Office of Justin Zelikovitz, PLLC, Molly Brooks -- mb@outtengolden.com -- Outten and Golden LLP, pro hac vice, Sally J. Abrahamson -- sabrahamson@outtengolden.com -- Outten and Golden LLP, pro hac vice & Justin Zelikovitz -- justin@dcwagelaw.com -- DCWAGELAW. Eddie L. Dallas, Jr., Opt-in, Gia L. McGill, Opt-in, DeMarcus N. Green, Opt-in, Shauna S. Moody, Opt-in & Brandy M. Boone-Jones, Opt-in, Plaintiffs, represented by Sally J. Abrahamson, Outten and Golden LLP, pro hac vice & Justin Zelikovitz, DCWAGELAW. Full Citizenship of Maryland, Inc. & Pansy Stancil-Diaz, Defendants, represented by Tamara B. Goorevitz -- tgoorevitz@fandpnet.com -- Franklin and Prokopik PC. GARDAWORLD CORP: Faces $25-Mil. Class Action Suit Over Unpaid OT ---------------------------------------------------------------- Sara Mojtehedzadeh, writing for The Star, reports that an Ontario-based company owned by security giant Garda failed to appropriately compensate employees and misled them about the existence of a so-called averaging agreement to avoid paying overtime, a proposed $25 million class-action lawsuit claims. According to the class action, which requires court approval to proceed, Garda subsidiary Primary Response also instructed security guards to arrive 15 minutes before their official start time to perform unpaid duties and made illegal deductions from their paycheques for uniform expenses. "This is about defending core employment standards protections for a group of precarious workers facing well-documented barriers to enforcing their rights," said Joshua Mandryk, Esq. -- jmandryk@goldblattpartners.com -- a lawyer with Toronto-based labour law firm Goldblatt Partners, which initiated the suit. "Although the law is quite clear, off-the-clock work and unpaid overtime similar to that alleged in this case are all too common in our economy. We hope this case sends a strong reminder that 'off-the-clock' time required by an employer is work which must be compensated." The statement of claim was served on August 21. Garda is the sole owner and operator of Primary Response after purchasing the company, which employs around 2,000 security guards across Ontario, earlier this year. The proposed class action spans from August 2016 to the date it receives certification from the courts. Primary Response directed the Star to Garda when asked to comment on the suit. In an emailed statement, a spokesperson for Garda said "the alleged accusations happened under the previous ownership." "The judicial process will follow its course, therefore GardaWorld will not comment further," the statement said. Representative plaintiff Kionna Horner worked for the company Primary Response as a security guard at Conestoga College in Kitchener between 2016 and June 2018. In a statement, she said she was stepping forward because she "witnessed firsthand how many security guards were afraid to file individual employment standards complaints." "By joining together to file this lawsuit, we can stand up for our rights without fear of reprisal." Worker advocates have raised concerns that precariously employed workers across many sectors do not file complaints for fear of reprisal. Research conducted for a two-year review of the province's workplace standards found that more than 90 per cent of the approximately 15,000 annual complaints made to the Ontario Ministry of Labour are filed by people who have left or lost their jobs — bolstering criticism that workers struggle to come forward without risking their livelihood. Mandryk said the ministry had already issued numerous orders to Primary Response to pay thousands of dollars in unpaid wages following complaints made by workers. Overtime averaging agreements allow workplaces to average employees' excess hours over a fortnight, limiting their entitlement to time-and-half pay when they work more than 44 hours a week. The agreements require approval from the Ministry of Labour, which the Goldblatt class action says Primary Response was denied last year after its first agreement expired. The statement of claim says the company "unlawfully concealed" that fact from workers and then continued to average their overtime hours. It also alleges Primary Response failed to accurately monitor and record employees' hours and failed "to compensate the class members as required for all hours worked." Citing excerpts from the company's employee handbook, the statement of claim says workers had to be at their job site 15 minutes prior to their shift, during which time they were required to have a "shift change conversation" with their supervisor. The class action also alleges that Primary Response made unlawful deductions for uniform expenses; the province's Employment Standards Act says employers can't withhold wages or make deductions from workers' paycheques unless required by a court order or where the employee has provided written consent. "Security guards work long hours in challenging and potentially dangerous situations. Like all workers, they deserve to be paid fairly for their hard work," said Goldblatt co-counsel Christine Davies. The private security sector has featured in several Ministry of Labour blitzes focused on precarious employment.[GN] GOLDEN ENTERTAINMENT: Nevada Class Suits Ongoing ------------------------------------------------ Golden Entertainment, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the Company has agreed to settle the first of two class action lawsuits involving wage violation, subject to court approval. The second case is in the discovery phase. In February and April 2017, several former employees filed two separate purported class action lawsuits against the Company in the District Court of Clark County, Nevada, and on behalf of similarly situated individuals employed by the Company in the State of Nevada. The lawsuits allege that the Company violated certain Nevada labor laws including payment of an hourly wage below the statutory minimum wage without providing a qualified health insurance plan and an associated failure to pay proper overtime compensation. The complaints seek, on behalf of the plaintiffs and members of the putative class, an unspecified amount of damages (including punitive damages), injunctive and equitable relief, and an award of attorneys' fees, interest and costs. In the second half of 2017, the Company agreed to settle the first of these two cases, subject to court approval. The second case is in the discovery phase. No further updates were provided in the Company's SEC report. Golden Entertainment, Inc., together with its subsidiaries, focuses on distributed gaming, and resort casino operations in the United States. The company was founded in 1998 and is headquartered in Las Vegas, Nevada. GOLDEN ENTERTAINMENT: Transient Tax Suit Voluntarily Dismissed -------------------------------------------------------------- Golden Entertainment, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the plaintiff in the class action complaint related to the alleged violations of the federal Internet Tax Freedom Act have filed a notice of voluntary dismissal of the case against the Company. In February 2018, a prior guest of the Stratosphere filed a purported class action complaint against the Company in the United States District Court, District of Nevada, on behalf of similarly situated individuals and entities that paid the Clark County Combined Transient Lodging Tax ("Tax") on the portion of a resort fee that constitutes charges for Internet access, during the period of February 6, 2014 through the date the alleged conduct ceases. The lawsuit alleges that the Tax was charged in violation of the federal Internet Tax Freedom Act, which imposes a national moratorium on the taxation of Internet access by states and their political subdivisions, and seeks, on behalf of the plaintiff and the putative class, damages equal to the amount of the Tax collected on the Internet access component of the resort fee, injunctive relief, disgorgement, interest, fees and costs. The Company was served the complaint on May 4, 2018. On June 21, 2018 the plaintiff filed a notice of voluntary dismissal of the case against the Company. The plaintiffs in this matter may determine to refile the case in the applicable state court. Golden Entertainment, Inc., together with its subsidiaries, focuses on distributed gaming, and resort casino operations in the United States. The company was founded in 1998 and is headquartered in Las Vegas, Nevada. GREEN DOT: Pays $2.2 Million in Service Disruption Related Suit --------------------------------------------------------------- Green Dot Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company has paid approximately $2.2 million of accrued liability in a class action related to service disruption. During the quarter ended June 30, 2016, the company is in the process of its planned conversion of customer files from its legacy third-party card processor to its current third-party card processor. As part of the conversion process, a small percentage of its active account holders experienced limited disruptions in service. As a result of this limited disruption in service, two putative class action complaints were filed during the second quarter of 2016. The company agreed with its third-party card processor that any payments to resolve the consolidated class actions would be borne equally between us and our third-party card processor. Green Dot said, "We previously recorded an accrual of approximately $2.3 million, which represented our portion of the estimated total settlement amount, all of which our insurance carrier agreed to reimburse us. During the three months ended June 30, 2018, we settled the class actions and began making payments to those members of the class. As of June 30, 2018, we have paid approximately $2.2 million of the accrued liability, the balance of which is expected to be paid to remaining class members shortly thereafter." Green Dot Corporation, together with its subsidiaries, operates as a pro-consumer bank holding company that provides personal banking for the masses. It operates through two segments, Account Services and Processing, and Settlement Services. Green Dot Corporation was incorporated in 1999 and is headquartered in Pasadena, California. H&M INTERNATIONAL: Yates Suit Asserts Racial Discrimination ----------------------------------------------------------- A class action lawsuit has been filed against H&M International Transportation Inc., et al. The case is captioned as Troy Yates, Mike Wills and Other Similarly Situated Individuals v. H&M International Transportation Inc., Dave Turbyfill and Other Unnamed Persons, Case No. 1:18-cv-06001 (N.D. Ill., August 31, 2018). The lawsuit arises from alleged job discrimination due to race. H & M International Transportation Inc. provides transportation services. The Company offers rail terminal operations, intermodal trucking, container freight, and other transportation services.[BN] The Plaintiffs are represented by: James Louis Bizzieri, Esq. BIZZIERI LAW OFFICES, L.L.C. 10258 South Western Avenue, Suite 210 Chicago, IL 60643 Telephone: (773) 982-5059 Facsimile: (773) 881-9009 HANDI-HOUSE MFG: Class Certification Bid in Brantley Suit Denied ---------------------------------------------------------------- In the case, LEROY BRANTLEY, JR; HAROLD H. RICKS; ROGER SMITH; and SHON BUTLER, on behalf of themselves and all others similarly situated, v. HANDI-HOUSE MFG. CO.; and DONALD FLANDERS, Defendants, Case No. CV 617-089 (S.D. Ga.), Judge J. Randal Hall of the U.S. District Court for the Southern District of Georgia, Statesboro Division, denied the Plaintiffs' Motion to Conditionally Certify a Collective Action Class and to Certify a Rule 23 Class. The Plaintiffs are former employees of Handi-House, which is owned by Defendant Donald Flanders. The Plaintiffs allege that Handi-House's General Manager, James Akridge, and Director of Sales, John Wilkerson, operated an illegal payday lending enterprise with Mr. Flanders's permission. Messrs. Akridge and Wilkerson would lend money to the Defendants' employees with an interest rate that was generally around $6 for every $20 borrowed. If an employee borrowed money, Messrs. Akridge and Wilkerson would endorse and cash the employee's paycheck, deduct the amount the employee had borrowed plus interest, and return the remainder to the employee. The Plaintiffs claim that the interest payments charged resulted in employees receiving less than minimum wage, in violation of the Fair Labor Standards Act ("FLSA"). They initiated the case on June 27, 2017, and now move for certification pursuant to the FLSA and Federal Rule of Civil Procedure 23. Judge Hall finds that the Plaintiffs' motion was filed one month after discovery began and is therefore in the notice stage. Even under this fairly lenient standard, however, the Plaintiffs have failed to demonstrate that conditional certification is warranted. Specifically, they provided no evidence that there are other employees who wish to opt-in to the action. Therefore, because the Plaintiffs have not submitted evidence showing that there are employees who wish to opt-in to the action that are similarly situated to the Plaintiffs, their motion to proceed as a collective action will be denied. As to their move for certification under Federal Rule of Civil Procedure 23, the Plaintiffs contend that class members can be identified by the Defendants' records. They first suggest that class members can be identified by using a list of the employee names and salaries. Yet the evidence shows that not every employee received loans from Messrs. Thus, records listing employee names and salaries would not identify which employee received a loan and is therefore a class member. The Plaintiffs also suggest that members may be identified by looking at the checks that were endorsed by Messrs. Akridge or Wilkerson. However, Messrs. Akridge and Wilkerson claim that they would sometimes cash employee checks as a favor to the employee even if the employee had not borrowed money. The Plaintiffs finally suggest that any problem with ascertainability can be remedied by including an opt-out provision. Again, the evidence shows that not every employee received a loan. Thus, to preserve tje Defendants' due process rights, the Judge would need to engage in a series of mini-trials to determine if every member who failed to opt-out had actually received a usurious loan from Messrs. Akridge or Wilkerson. Judge Hall concludes that the Plaintiffs have failed to demonstrate that class certification is appropriate. Conditional certification is inappropriate because the Plaintiffs have provided no evidence that there are other employees who wish to opt-in. The certification under Rule 23 is likewise unsuitable because the Plaintiffs have not identified an administratively feasible method for identifying class members. Accordingly, the Judge denied the Plaintiffs' Motion to Conditionally Certify a Collective Action Class and to Certify a Rule 23 Class. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/tzJl6U from Leagle.com. Leroy Brantley, Jr., Harold H. Ricks, on behalf of themselves and all others similarly situated, Roger Smith, on behalf for themselves and all others similarly situated & Shon Butler, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Jeffrey Francis Peil -- jpeil@hugginsfirm.com -- Joe Edward Mathews, Jr. -- matt@edenfieldlaw.com -- Edenfield, Cox, Bruce & Classens, PC, John J. Czura -- john@czuralaw.com -- John J. Czura, PC, Travers W. Paine, III -- tpaine@painefirm.com -- Travers W. Paine, III, P.C., V. Sharon Edenfield -- sharri@edenfieldlaw.com -- Edenfield, Cox, Bruce & Classens, PC & Matthew Wade Padgett -- packages@hugginsfirm.com -- Huggins Peil LLC. Handi-House MFG. CO. & Donald Flanders, Defendants, represented by Allan C. Galis -- agalis@HunterMaclean.com -- Hunter Maclean, Exley & Dunn, P.C., Timothy D. Roberts -- troberts@olivermaner.com -- Oliver Maner, LLP, Larry Evans -- levans@olivermaner.com -- Oliver Maner, LLP & Wade Wilkes Herring, II -- wherring@HunterMaclean.com -- Hunter Maclean, Exley & Dunn, P.C.. HERTZ CORP: Hirsi Labor Suit Settlement Has Prelim Approval ----------------------------------------------------------- In the case, HASSAN HIRSI, an individual, Plaintiff, v. THE HERTZ CORPORATION, a Delaware corporation, HERTZ TRANSPORTING, INC, a Delaware corporation, FIREFLY RENT A CAR LLC, a Delaware company and DTG OPERATIONS, INC., an Oklahoma corporation, Defendants, Case No. 2:16-cv-00333 RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, granted the parties' Stipulated Motion for Certification of Settlement Class and for Preliminary Approval of Class Action Settlement. The Judge has reviewed the Parties' Conditional Settlement Agreement, as well as the files, records, and proceedings to date in the matter. Based on his review of the Agreement and all of the files, records, and proceedings, he preliminarily approved the Agreement as fair, reasonable, and adequate, and within the range of reasonableness for preliminary settlement approval. Pursuant to Federal Rule of Civil Procedure 23(c), he conditionally certified, for settlement purposes only, the Settlement Class defined as all employees of The Hertz Corp., Hertz Transporting, Inc., Firefly Rent-A-Car, LLC, and DTG Operations, Inc. who: (a) at any time during the period from Jan. 1, 2014, to Oct. 31, 2015, reported to (i.e., clocked in and clocked out at) a worksite within the City of SeaTac; (b) can be ascertained from Hertz's records as having had a base hourly wage rate at any time during this same period that was less than the minimum hourly wage prescribed by the City of SeaTac's Ordinance Setting Minimum Employment Standards for Hospitality and Transportation Industry Employers, City of SeaTac Municipal Code Chapter 7.45; and (c) prior to March 1, 2018, did not file a wage complaint against Hertz with L&I pursuant to the 2006 Wage Payment Act, asserting a claim of underpayment of wages during this same period premised upon an alleged violation of the Ordinance (provided, however, that any person who filed, but timely withdrew, such an L&I Wage Claim prior to March 1, 2018, is included in the Putative Class). The Plaintiff is appointed the Class Representative; and his counsel are appointed and designated as the Class Counsel. A final approval hearing will be held Dec. 5, 2018, at 10:00 a.m. Papers in support of final approval of the Agreement, the incentive award to the Plaintiff, and the Class Counsel's application for an award of attorneys' fees, costs and expenses will be filed with the Court according to the schedule set forth. The Final Settlement Approval Hearing, and all dates provided for herein, may, without further notice to the Class, be continued or adjourned by order of the Court. After the Settlement Hearing, the Court may enter a settlement order and final judgment in accordance with the Agreement that will adjudicate the rights of the Settlement Class Members with respect to the Released Claims being settled. The scope of the Released Claims will be: claims arising under, and/or otherwise dependent upon, the Fair Labor Standards Act, the Washington Minimum Wage Act, the Washington Wage Rebate Act, the Washington Industrial Welfare Act, Section 7.45 of the City of SeaTac City Code, the law of contract, and the law of equity; and any claim to attorneys' fees and costs based on the claims released and/or the Action. The Class Notice will be sent within 30 days following entry of the Order. Dahl Administration, LLC, is appointed as the Claims Administrator. The Claims Administrator will also provide email notice to persons in the Settlement Class for whom the Defendant possesses an email address. Judge Lasnik approved the Notice in substantially the same form as that attached as Exhibit 2 to the Declaration of Duncan C. Turner. He confirmed that it is appropriate for the Defendant to provide the information necessary to provide the notice contemplated and to administer the settlement, including names, addresses, and personal identifying information. The persons in the Settlement Class will possess the right to opt out by sending a written request to a designated address within 30 days after the Notice Mailing Date. Within 15 days after the exclusion deadline, the Claims Administrator will file a declaration that provides copies of all exclusions received. In order to be heard at the hearing, the person must make any objection in writing and mail it to the designated address not later than Oct. 29, 2018. The class counsel will file their fee request on or before the Notice Mailing Date. The deadline to respond to objections will be 15 days following the Exclusion/Objection deadline. The Judge approved the following timeline: a. Preliminary Approval Order Entered - July 27, 2018 b. Notice Mailing Date - Aug. 27, 2018 c. Plaintiff's Counsel's Fee Motion Submitted - Aug. 27, 2018 d. Exclusion/Objection Deadline - Oct. 29, 2018 e. Claims Administrator's Filing of Exclusion Requests - Nov. 13, 2018 f. Final Approval Brief and Response to Objections - Nov. 19, 2018 g. Final Approval Hearing/Noting Date - Dec. 5, 2018 h. Final Approval Order Entered - At the Court's Discretion The Final Hearing is scheduled on Dec. 5, 2018 at 10:00 a.m. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/Qp3gW8 from Leagle.com. Hassan Hirsi, an individual, Plaintiff, represented by Daniel R. Whitmore -- amber@whitmorelawfirm.com -- & Duncan Calvert Turner -- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC. The Hertz Corporation, a Delaware corporation, Hertz Transporting, Inc, a Delaware corporation, Firefly Rent A Car LLC, a Delaware company & DTG Operations, Inc., an Oklahoma corporation, Defendants, represented by Daniel P. Hurley -- daniel.hurley@klgates.com -- K&L GATES LLP, Mark Stephen Filipini -- mark.filipini@klgates.com -- K&L GATES LLP & Patrick M. Madden -- patrick.madden@klgates.com -- K&L GATES LLP. HOUSTON, TX: Beckwith Appeals S.D. Texas Ruling to 5th Cir. ----------------------------------------------------------- Plaintiffs DeJenay Beckwith and Beverly Flores filed an appeal from a court ruling in their lawsuit styled DeJenay Beckwith, et al. v. City of Houston, et al., Case No. 4:17-CV-2859, in the U.S. District Court for the Southern District of Texas, Houston. As previously reported in the Class Action Reporter, Plaintiff DeJenay Beckwith alleges that a serial rapist sexually assaulted her in 2011 and was not convicted of it until 2016, due to Houston officials' indifference to a backlog of more than 6,000 untested rape kits. The appellate case is captioned as DeJenay Beckwith, et al. v. City of Houston, et al., Case No. 18-20611, in the U.S. Court of Appeals for the Fifth Circuit.[BN] Plaintiffs-Appellants DEJENAY BECKWITH, on her Own Behalf and Others Similarly Situated, and BEVERLY FLORES, on her Own Behalf and Others Similarly Situated, are represented by: Randall Lee Kallinen, Esq. LAW OFFICE OF RANDALL L. KALLINEN, P.L.L.C. 511 Broadway Street Houston, TX 77012 Telephone: (713) 320-3785 E-mail: attorneykallinen@aol.com - and - Charles Henry Peckham, Esq. PECKHAM MARTIN, P.L.L.C. 800 Bering Drive 2 Bering Park Houston, TX 77057 Telephone: (713) 574-9044 E-mail: cpeckham@peckhampllc.com - and - Roy Joseph Rodney, Jr., Esq. RODNEY & ETTER, L.L.C. 365 Canal Street New Orleans, LA 70130 Telephone: (504) 483-3224 E-mail: rjr@rodneylaw.com Defendants-Appellees CITY OF HOUSTON, MAYOR SYLVESTER TURNER, POLICE CHIEF ART ACEVEDO, HOUSTON FORENSIC SCIENCE CENTER, PETER STOUT, ANNISE PARKER, LEE P. BROWN, KATHY WHITMIRE, CHIEF CHARLES MCCLELLAND, CHIEF CLARENCE BRADFORD and CHIEF SAM NUCHIA are represented by: Suzanne Reddell Chauvin, Esq. CITY OF HOUSTON 900 Bagby Street Houston, TX 77002 Telephone: (832) 393-6219 E-mail: Suzanne.Chauvin@houstontx.gov - and - Deidra Norris Sullivan, Esq. CITY OF HOUSTON P.O. Box 368 Houston, TX 77001-0368 Telephone: (832) 393-6299 E-mail: Deidra.Sullivan@houstontx.gov IMPINJ INC: Montemarano Files Securities Class Suit in W.D. Wash. ----------------------------------------------------------------- Richard Montemarano, individually and on behalf of all others similarly situated, Plaintiff, v. Impinj, Inc., Chris Diorio, Evan Fein and Eric Brodersen, Defendants, Case No. 18-cv-01264, (W.D. Wash., August 27, 2018) alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Plaintiff purchased publicly traded securities of Impinj between May 4, 2017, and August 2, 2018. Montemarano claims that Impinj's stock traded at artificially inflated prices due to continued concealment and misrepresented material facts regarding their business metrics, operations and financial prospects. Impinj sells integrated circuit tags that provides wireless information about tagged items, usually for apparel, medical supplies, automobile parts, driver's licenses, food and luggage. [BN] The Plaintiff is represented by: Steve W. Berman, Esq. Karl P. Barth, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Fax: (206) 623-0594 Email: steveb@hbsslaw.com karlb@hbsslaw.com - and - Samuel H. Rudman, Esq. David Rosenfeld, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: (631) 367-7100 Fax: (631) 367-1173 Email: srudman@rgrdlaw.com mblasy@rgrdlaw.com - and - David C. Walton, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Fax: (619) 231-7423 - and - Corey D. Holzer, Esq. HOLZER & HOLZER, LLC 1200 Ashford Parkway, Suite 410 Atlanta, GA 30338 Tel: (770) 392-0090 Fax: (770) 392-0029 Email: cholzer@holzerlaw.com mdees@holzerlaw.com J2 GLOBAL: 8th Cir. Grants More Time to Seek Rehearing ------------------------------------------------------ j2 Global, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the U.S. Eighth Circuit Court of Appeals has granted an extension of time to file a petition for rehearing in the putative class action suit initiated by Davis Neurology, P.A. On January 21, 2016, Davis Neurology, P.A. filed a putative class action against two j2 Global affiliates in the Circuit Court for the County of Pope, State of Arkansas (58-cv-2016-40), alleging violations of the Telephone Consumer Protection Act (TCPA). The case was ultimately removed to the U.S. District Court for the Eastern District of Arkansas (the "Eastern District of Arkansas") (No. 4:16-cv-00682). On June 6, 2016, the j2 Global affiliates filed a motion for judgment on the pleadings. On March 20, 2017, the Eastern District of Arkansas dismissed all claims against the j2 Global affiliates. On July 23, 2018, the Eighth Circuit Court of Appeals vacated the judgment and remanded to district court with instructions to return the case to state court. On August 1, 2018, the Eighth Circuit Court of Appeals granted an extension of time to file a petition for rehearing. j2 Global, Inc., together with its subsidiaries, engages in the provision of Internet services worldwide. It operates through two segments, Cloud Services and Digital Media. j2 Global, Inc. was founded in 1995 and is headquartered in Los Angeles, California. JAMBA JUICE: Facing Lawsuit Over Deceptively Marketed Smoothies --------------------------------------------------------------- Center For Science In The Public Interest reports that Jamba Juice smoothies are not what Jamba Juice claims and advertises them to be, according to a class action lawsuit filed in federal court. The company is facing allegations that it is tricking consumers by marketing its beverages as "whole fruit and vegetable smoothies" when, in fact, they often include juice blends made mostly from cheap pear and white grape juices from concentrate. Despite using statements like "Jamba blends whole fruits & veggies" and "Whole fruit! That's how we blend" on marketing materials, Jamba Juice uses large quantities of juice blends, sherbet, and other non-whole fruit and non-whole-vegetable ingredients in its smoothies, according to the complaint. Jamba Juice represents on menu boards that its Caribbean Passion smoothie, for instance, contains five whole-fruit ingredients: mango, strawberry, peach, orange, and passion fruit. In fact, that smoothie appears to have no whole mango, no whole orange, and no whole passion fruit. Instead of those advertised fruits, Caribbean Passion has as its first ingredient a "Passion Fruit-Mango Juice Blend," according to the company's website. And the blend is mostly pear and white grape juices from concentrate, according to the complaint. A large Caribbean Passion has 440 calories and a whopping 95 grams -- or approximately 24 teaspoons -- of total sugars. The company also makes prominent mention of "super ingredients" like kale in its marketing for its smoothies, when in fact, other cheaper ingredients predominate, according to the complaint. Advertising on social media and in emails urges consumers to "DRINK YOUR GREENS" and features images of kale and ginger root alongside Jamba's Greens N' Ginger smoothie. The menu board categorizes Greens N' Ginger as a "Fruit & Veggie" smoothie and lists mango, peaches, kale, lemon, and ginger as ingredients. Yet despite abundant images of kale, "lemonade" is the first listed ingredient in Greens N' Ginger, according to the company's website. Even that un-advertised "lemonade" is largely comprised of white grape juice from concentrate. "Jamba Juice's advertising and marketing is aimed at giving consumers the impression that their smoothies will be mostly whole fruits and vegetables, like mango, passion fruit, or kale," said Center for Science in the Public Interest litigation director Maia Kats. "In reality, consumers are paying premium prices for products that are primarily made of unadvertised, less nutritious, and cheap ingredients like pear and white grape juices from concentrate." The complaint also alleges that Jamba Juice gives consumers the impression that the only sugars in its smoothies are exclusively from whole fruits and vegetables and that the smoothies contain no additives, when neither of those facts are true. On Instagram, for instance, Jamba Juice posted: "NOT FAKE NEWS: Jamba blends only real, whole ingredients to power your day." Jamba's Aloha Pineapple smoothie, however, has pineapple juice from concentrate as its first ingredient, according to the company website. Its third ingredient, "Pineapple Sherbet," has more water, milk, sugar, corn syrup, whey, and cream than it does pineapple. A "Raspberry Sherbet" used in its Banana Berry smoothie also has more sugar and corn syrup than raspberries and contains additives such as mono- and diglycerides, locust bean gum, guar gum, and caramel color, among other ingredients. The lawsuit was brought in United States District Court for the Northern District of California. Besides CSPI's Kats, plaintiffs are represented by CSPI litigation associate Matthew Simon, Esq. -- msimon@cspinet.org -- and Michael R. Reese, Esq. -- michael@reesellp.com -- and George Granade, Esq. of Reese LLP. In recent years CSPI's litigation unit has negotiated numerous improvements to the marketing and labeling of products such as Naked Juice, Cheerios Protein, and Plum Organics baby food.[GN] KANDI TECHNOLOGIES: Lead Plaintiffs File Amended Complaint ---------------------------------------------------------- An amended complaint with jury demand was filed August 31, 2018, by lead plaintiffs in a shareholder class action lawsuit against Xiaoming Hu, Kandi Technologies Group, Inc., Bing Mei, Cheng Wang, Xiaoying Zhu. Kandi Technologies Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that beginning in March 2017, putative shareholder class actions were filed against Kandi Technologies Group, Inc. and certain of its current and former directors and officers in the United States District Court for the Central District of California and the United States District Court for the Southern District of New York. The complaints generally allege violations of the federal securities laws based Kandi's disclosure in March 2017 that its financial statements for the years 2014, 2015 and the first three quarters of 2016 would need to be restated, and seek damages on behalf of putative classes of shareholders who purchased or acquired Kandi's securities prior to March 13, 2017. All the remaining cases are in the New York federal court. In a May 29 Stipulation and Order, the Court held that: 1. Gary Vatter and Gerald W. Klein are appointed as Co-Lead Plaintiff's for the putative Class in the Related Actions; 2. Vatter and Klein's selections of Pomerantz and Gainey McKenna are appointed as Co Lead Counsel for the putative Class: 3. Co-Lead Plaintiff KELLOGG SALES: Seeks 9th Cir. Review of Ruling in Hadley Suit ------------------------------------------------------------- Defendant Kellogg Sales Company filed an appeal from a court ruling in the lawsuit entitled Stephen Hadley v. Kellogg Sales Company, Case No. 5:16-cv-04955-LHK, in the U.S. District Court for the Northern District of California, San Jose. As reported in the Class Action Reporter on August 31, 2018, the Hon. Judge Lucy H. Koh entered an order on August 17, 2018: 1. granting in part and denying in part Plaintiff's motion for class certification; 2. denying Kellogg's motion to exclude the opinion testimony of Steven P. Gaskin under Daubert; 3. certifying following Rule 23(b)(3) class, which is composed of three subclasses: "all persons in California who, on or after August 29, 2012, purchased for household use and not for resale or distribution"; Raisin Bran Subclass: "Kellogg's Raisin Bran (including Omega-3) or Kellogg's Raisin Bran Crunch Cereals in a 13.7 oz., 14.3 oz., 18.2 oz., 18.7 oz., 23.5 oz., 24.8 oz., 29 oz., 30.3 oz., 43.3 oz., 56.6 oz., or 76.5 oz. package stating heart healthy"; Smart Start Subclass: "Kellogg's Smart Start Original Antioxidants cereal in a 17.3 oz. package"; and Frosted Mini-Wheats Subclass: "Kellogg's Frosted Mini-Wheats Bite Size (Original, Maple Brown Sugar, Strawberry, or Blueberry varieties), Big Bites (Original variety), Little Bites (Chocolate or Cinnamon Roll varieties), or Touch of Fruit in the Middle (Mixed Berry and Raspberry varieties) cereals in a 15.2 oz., 15.5 oz., 15.8 oz., 16.5 oz., 18 oz., 21 oz., or 24 oz. package." 4. appointing Stephen Hadley as representative of the class. As Kellogg does not challenge the adequacy of proposed class counsel; 5. appointing Jack Fitzgerald of The Law Office of Jack Fitzgerald, P.C., as class counsel. The appellate case is captioned as Stephen Hadley v. Kellogg Sales Company, Case No. 18-80106, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Respondent STEPHEN HADLEY, on behalf of himself, all others similarly situated, and the general public, is represented by: Jack Fitzgerald, Esq. Trevor Flynn, Esq. THE LAW OFFICE OF JACK FITZGERALD, PC 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Telephone: (619) 692-3840 Facsimile: (619) 362-9555 E-mail: jack@jackfitzgeraldlaw.com trevor@jackfitzgeraldlaw.com Defendant-Petitioner KELLOGG SALES COMPANY is represented by: Kenneth K. Lee, Esq. Alexander Smith, Esq. JENNER & BLOCK LLP 633 West 5th Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 239-5152 E-mail: klee@jenner.com asmith@jenner.com - and - Dean N. Panos, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 923-2765 E-mail: dpanos@jenner.com KONA GRILL: Parties in Boots Class Action Fail to Reach Accord -------------------------------------------------------------- The parties in the case, Boots v. Kona Sushi, Inc., Case No. 0:17-cv-03401 (D. Minn., July 27, 2017), held a settlement before Magistrate Judge Steven E. Rau on August 3, 2018, but failed to reach a settlement. Kona Grill, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the class action complaint filed by Mitchell Boots against Kona Sushi, Inc. a company's wholly-owned subsidiary, is still ongoing in accordance with the court-scheduled dates. On July 27, 2017, a class action complaint was filed against Kona Sushi, Inc., a wholly-owned subsidiary of the Company, by Mitchell Boots, individually and on behalf of a Proposed Rule 23 Class, in the United States District Court for Minnesota claiming, among other things, that the Company violated Minnesota gratuity/tip pooling laws with respect to certain classes of restaurant employees. The plaintiff has brought claims on behalf of a putative Minnesota class and a putative national class of employees. On October 25, 2017, the plaintiff amended the complaint to withdraw the national class claims and other common law claims, leaving one claim on behalf of a putative Minnesota class, and added a second named Plaintiff, Tracy Fortman. On June 15, 2018, a revised pre-trial scheduling order was issued by the District Court, setting pre-trial dates and setting a trial date of April 1, 2019. The parties participated in mediation on August 3, 2018, which concluded without resolution. Therefore, the matter will proceed in accordance with the court-scheduled dates. The Company does not expect the result of such complaint to have a material adverse effect on the Company. However, there is no assurance that any adverse ruling or settlement in this matter would not have a material impact on the Company's cash position and operations. Judge Paul A. Magnuson presides over the case. Plaintiffs are represented by: Matthew L McMullen, Esq. Robert R Hopper, Esq. Robert R. Hopper & Associates, LLC Tel: 612-455-2199 E-mail: matthew.mcmullen@robertrhopper.com robert.hopper@robertrhopper.com Defendant Kona Sushi, Inc. is represented by: Michael C McCarthy, Esq. Jevon Bindman, Esq. Charles G Frohman, Esq. Maslon LLP Tel: 612-672-8347 E-mail: mike.mccarthy@maslon.com jevon.bindman@maslon.com charles.frohman@maslon.com Kona Grill, Inc. owns and operates upscale casual restaurants under the Kona Grill brand name. As of December 31, 2017, it owned and operated 46 restaurants in 23 states of the United States and Puerto Rico; and 3 franchised restaurants in Mexico, the United Arab Emirates, and Canada. The company is based in Scottsdale, Arizona. LASALLE HOTEL: Faces Erie County Employees Retirement System Suit ----------------------------------------------------------------- LaSalle Hotel Properties said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company is facing a purported class action suit entitled, Erie County Employees Retirement System v. LaSalle Hotel Properties, et al. On June 29, 2018, a purported class action complaint, Erie County Employees Retirement System v. LaSalle Hotel Properties, et al., No. 24-C-18-003922, was filed in the Circuit Court for Baltimore City, Maryland by purported Company shareholder Erie County Employees Retirement System in connection with the proposed Mergers. An amended complaint was filed on July 11, 2018. The amended complaint names as defendants the Company and the members of the Company's Board of Trustees. The amended complaint alleges that the Board of Trustees breached its duties in agreeing to the Merger Agreement, in not agreeing to a transaction with Pebblebrook Hotel Trust, and in failing to disclose certain supposedly material information to shareholders in the preliminary proxy statement filed in connection with the Mergers. The amended complaint also alleges that Michael D. Barnello breached his duties owed to the shareholders in supposedly favoring a transaction with Blackstone to a transaction with Pebblebrook Hotel Trust due to self interest. The amended complaint seeks declaratory and injunctive relief, including a preliminary injunction of the shareholder vote on the Mergers, as well as damages and attorneys' fees and costs. LaSalle Hotel said, "The Company is unable to predict the developments in, outcome of, and/or economic or other consequences of this litigation or predict the developments in, outcome of, and/or other consequences arising out of any potential future litigation or government inquiries related to the Mergers." LaSalle Hotel Properties is a leading multi-operator real estate investment trust. The Company focuses on owning, redeveloping and repositioning upscale, full-service hotels located in urban, resort and convention markets. The company is based in Bethesda, Maryland. LEFTOM FOODS: Rodriguez Sues Over Unpaid Overtime ------------------------------------------------- Jose Noe Rodriguez, on behalf of himself and all others similarly situated, Plaintiffs, v. Leftom Foods Ltd. and George Kanes, Defendants, Case No. 18-cv-03595, (E.D. N.Y., June 20, 2018), seeks recovery of lost wages (front and back pay), compensatory and punitive damages, reasonable judgment interest, reasonable attorneys' fees, court costs and litigation costs and such further relief for violation of the Fair Labor Standards Act and New York Labor laws. Leftom operates as Kanes Diner located at 4415 College Point Blvd., Flushing, NY 11355. Rodriguez was employed by the Defendants as a restaurant worker until October 12, 2017. He claims not having been paid any premium overtime compensation for hours worked beyond 40 in any single work week. [BN] Plaintiff is represented by: Amit Kumar, Esq. LAW OFFICE OF WILLIAM CALFARO l08 West 39th Street, Suite 602 New York, NY 10018 Tel. (212) 583-7400 LIBERTY AND MARCUS: Lawyer Sued Over Alleged $50-Mil. Fraud ----------------------------------------------------------- Jake Bleiberg, writing for Bangor Daily News, reports that the legal bramble around an embattled former Maine businessman has grown a new shoot, entangling a prominent Portland law firm. On August 22, women from Florida and Massachusetts filed a federal class-action lawsuit against a lawyer who has represented Michael Liberty and the law firm he helped found. They claim that George Marcus and the Marcus Clegg law firm knowingly helped Liberty with a scheme that the U.S. Securities and Exchange Commission say defrauded investors out of $50 million. Marcus and his firm were "co-conspirators" in a long-term scam that led people to believe they were investing in a financial technology company when their money was instead being used to pay for the lavish lifestyles of Liberty and his associates, the suit filed in a federal court in Portland claims. It piggybacks on the SEC's March fraud suit against Liberty, Marcus, and several other people and corporations associated with the company formerly known as Mozido. Tina Endicott and Denise Medina claim they were snookered by "faulty and misleading legal documents" that Marcus Clegg lawyers prepared for Liberty's company, now called MDO. Their 10-count lawsuit requests a jury trial and unspecified damages for a class of other investors. Since the SEC filed its suit, Liberty and Marcus have denied they committed fraud in public statements and court documents. A partner with Marcus Clegg said Thursday that the women bringing the new suit were never the firm's clients and that it will seek to have their case dismissed immediately. "The complaint is replete with numerous misrepresentations and inaccuracies, and is completely without legal merit," said Lee Bals, also noting that it "does not allege that the firm in any way misused client funds." The lawsuit is the latest in a series of court cases that have cropped up around Liberty and his businesses. Once a prominent Portland developer, Liberty, 58, now lives in Florida. His legal troubles, however, have continued to play out in Maine, including a criminal case over campaign finance violations that saw him sentenced to jail time last year. The new lawsuit against Marcus and his firm claim that the lawyers gave investors in MDO financial documents that "concealed critical facts" about the company's value and Liberty's past problems with the SEC. It also says they improperly handled investor funds that were deposited in a law firm-controlled account, affecting a class of more than 100 people spread across the country. "In some instances, [Marcus and his firm] knowingly assisted the MDO scheme, while in other instances they negligently participated in the victimization of investors," the lawsuit states. In addition to a local lawyer, the case is being handled by law firms based in Pennsylvania and Iowa. Bals said that opposing counsel is "fully aware that their real grievance is with individuals and entities unaffiliated with Marcus Clegg." [GN] LIBERTY MUTUAL: MSPA Appeals Dismissal of Amended Complaint ----------------------------------------------------------- The Plaintiffs have filed a notice to appeal to the U.S. Court of Appeals for the Eleventh Circuit from a court ruling in the case captioned as MSPA CLAIMS 1, LLC; MSP RECOVERY CLAIMS, SERIES LLC; and SERIES 16-05-456, a series of MSP RECOVERY CLAIMS, SERIES LLC, individually and on behalf of all others similarly situated, Plaintiffs v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant, Case No. 1:17-cv-22539-KMW (S.D. Fla., Aug. 6, 2018). The Plaintiffs seek to appeal the Order of the U.S. District Court for the Southern District of Florida granting the Defendant's Motion to Dismiss the Plaintiff's third amended complaint for lack of subject matter jurisdiction and failure to state a claim. Liberty Mutual Fire Insurance Company, Inc. provides auto, home, and life insurance products and services. The company was formerly known as United Mutual Fire Insurance Company and changed its name to Liberty Mutual Fire Insurance Company, Inc. in December 1949. Liberty Mutual Fire Insurance Company, Inc. was incorporated in 1908 and is based in Boston, Massachusetts. Liberty Mutual Fire Insurance Company, Inc. operates as a subsidiary of Liberty Mutual Group Inc. [BN] The Plaintiff is represented by: Andres Rivero, Esq. Jorge A. Mestre, Esq. Alan H. Rolnick, Esq. Charles E. Whorton, Esq. Kingsley C. Nwamah, Esq. David L. Daponte, Esq. RIVERO MESTRE LLP 2525 Ponce de Leon Blvd., Suite 1000 Miami, FL 33134 Telephone: (305) 445-2500 Facsimile: (305) 445-2505 E-mail: arivero@riveromestre.com jmestre@riveromestre.com arolnick@riveromestre.com cwhorton@riveromestre.com knwamah@riveromestre.com ddaponte@riveromestre.com npuentes@riveromestre.com LIONS GATE: Settles Class Action Suit With Starz Shareholders ------------------------------------------------------------- Etan Vlessing, writing for The Hollywood Reporter, reports that the studio in an SEC filing said both parties in the legal action against Lionsgate, former members of the Starz boardroom and billionaire investor John Malone, on August 22 reached an agreement in principle that would see the litigation dismissed in return for the settlement payment. Lionsgate on August 24 said it has reached a tentative $92.5 million settlement deal to end a class action suit brought by former Starz shareholders over its $4.4 billion merger with the premium cable channel in 2016. The studio in an SEC filing said both parties in the legal action against Lionsgate -- former members of the Starz boardroom and billionaire investor John Malone -- on Aug. 22 reached an agreement in principle that would see the litigation dismissed in return for the settlement payment. The Delaware Chancery Court must approve the settlement payment to end the litigation related to Lionsgate's takeover of Starz in December 2016. In all, seven separate class action lawsuits brought by disgruntled Starz stockholders against Lionsgate and other parties involved in its Starz merger were consolidated into one legal action. The suit implicated Malone for allegedly orchestrating the sale of Starz while standing on both sides of the transaction due to a series of share swap deals. The Starz deal legal action has implications for other top Hollywood execs being cited by investors for executing lucrative side deals in connection with mergers during the current industry consolidation. In the wake of the Starz deal, another SEC filing revealed Malone backed Lionsgate in its takeover bid for the cable premium channel against at least two other rival bids. The regulatory document revealed Malone was key to swaying the Starz boardroom and outside advisers to get behind the eventual merger deal with Lionsgate.[GN] LOGMEIN INC: Kessler Topaz Files Securities Fraud Class Suit ------------------------------------------------------------ The law firm of Kessler Topaz Meltzer & Check, LLP disclosed that a securities fraud class action lawsuit has been filed in the United States District Court for the Central District of California against LogMeIn, Inc. on behalf of purchasers of LogMeIn publicly traded securities between March 1, 2017 and July 26, 2018, inclusive (the "Class Period"). Important Deadline Reminder: Investors who purchased LogMeIn securities during the Class Period may, no later than October 19, 2018, seek to be appointed as a lead plaintiff representative of the class. For additional information or to learn how to participate in this action please visit https://www.ktmc.com/logmein-inc-securities-class-action According to the complaint, LogMeIn is a Delaware corporation, located in Goleta, California. LogMeIn provides a portfolio of cloud-based communication and collaboration, identity and access, and customer engagement and support solutions. On February 1, 2017, LogMeIn issued a press release which "announced the completion of its previously disclosed merger with Citrix Systems, Inc.'s (NASDAQ: CTXS) GetGo, Inc. subsidiary, a wholly owned subsidiary consisting of Citrix's GoTo family of service offerings." The Class Period commences on March 1, 2017, when LogMeIn filed its annual report for the fiscal year ended December 31, 2016 on Form 10-K with the SEC, which provided the company's annual financial results and position. The complaint alleges that on July 26, 2018, after market close, LogMeIn held an earnings call to report its second quarter 2018 earnings results. During the call, William R. Wagner, LogMeIn's President and Chief Executive Officer, and Edward K. Herdiech, LogMeIn's Chief Financial Officer, stated that LogMeIn implemented strategies which negatively impacted renewal rates of certain of its services, including amongst its GoTo clients. Following this news, shares of LogMeIn fell $26.60 per share or over 25% to close at $77.85 per share on July 27, 2018. The complaint alleges that during the Class Period, the defendants failed to disclose that: (1) LogMeIn's business practices had negatively impacted renewal rates for certain of its services; and (2) as a result, the defendants' public statements were materially false and misleading at all relevant times. If you wish to discuss this securities fraud class action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Kessler Topaz Meltzer & Check (James Maro, Jr., Esq. or Adrienne Bell, Esq.) at (888) 299–7706 or (610) 667–7706, or via e-mail at info@ktmc.com. LogMeIn investors may, no later than October 19, 2018, seek to be appointed as a lead plaintiff representative of the class through Kessler Topaz Meltzer & Check, or other counsel, or may choose to do nothing and remain an absent class member. A lead plaintiff is a representative party who acts on behalf of all class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. James Maro, Jr., Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (888) 299-7706 (610) 667-7706 Website: www.ktmc.com. Email: abell@ktmc.com jmaro@ktmc.com [GN] LOUISIANA: Judge Grants Class Status to Public Defense Suit ----------------------------------------------------------- Matt Sledge, writing for The New Orleans Advocate, reports that a Baton Rouge judge has granted class-action status to a lawsuit that aims to upend Louisiana's creaking public defense system. Judge Todd Hernandez of the 19th Judicial District ruled that every poor defendant in Louisiana represented by a public defender is eligible for participation in the lawsuit, with the exception of juveniles and defendants in capital cases. Hernandez's Aug. 17 ruling was opposed by attorneys for the state, who said that class certification would make far too many people eligible for participation. More than 20,000 poor people face criminal charges at any one time in Louisiana. Attorneys for the plaintiffs said that Louisiana's public defense structure is systematically broken and requires an all-around fix. The upshot of the judge's ruling is that if the lawsuit succeeds, officials will be forced to come up with a statewide plan for funding public defenders, rather than a solution that applies only to the 13 named plaintiffs. The lawsuit is set for trial on Jan. 28. The plaintiffs argued in the suit, which was filed in East Baton Rouge Parish in February 2017, that Louisiana systematically shortchanges poor defendants by saddling public defenders with high caseloads. Gov. John Bel Edwards, members of the Louisiana Public Defender Board and chief state Public Defender James Dixon were named as defendants. The lawsuit asks the judge to declare Louisiana's current public defender system unconstitutional because poor defendants do not receive equal protection and meaningful assistance of counsel. The judge cannot order the Legislature to pay more into the system, which is largely supported by court fees from convictions and traffic tickets rather than the state's general fund. However, the judge can appoint a special monitor to oversee changes and threaten to hold state officials in contempt until the system is fixed. Although Hernandez's decision was an important victory for the plaintiffs, he noted that it was "purely procedural" rather than a ruling on the merits of the case. "The persons contained within this class all have similar and/or common interests against each of the named defendants" and are so numerous "that it would be impracticable to require each one to individually appear before this court in pursuit of their claims," he said. The lawsuit is one of two filed against the state's public defense system in recent years. In 2016, the ACLU sued the Orleans Public Defenders and the state board over long waiting lists for access to an attorney. A district judge dismissed the suit last year, but a panel of 5th U.S. Circuit Court of Appeals judges heard a request to revive it in early August. Their decision is pending.[GN] LTD FINANCIAL: Mirzadjanyan Files Suit Over FDCPA Violation ----------------------------------------------------------- LTD Financial Services Limited Partnership is facing a class action lawsuit in New York. The case is titled as Lareta Mirzadjanyan, on behalf of herself and all others similarly situated v. LTD Financial Services Limited Partnership, Case No. 1:18-cv-04969 (E.D.N.Y., August 31, 2018). The lawsuit is brought over alleged violations of the Fair Debt Collection Practices Act. LTD Financial Services, LP, a collection agency, provides collection and custom call center solutions in the United States. The Company offers customer care accounts services; collection services, such as pre charge-off collection, pre charge-off system, and post charge-off collection; and commercial collection services. The Company serves credit grantors. The Company was founded in 1993 and is based in Houston, Texas.[BN] The Plaintiff is represented by: Daniel C. Cohen, Esq. COHEN & MIZRAHI LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Telephone: (929) 575-4175 Facsimile: (929) 575-4195 E-mail: dan@cml.legal MCCLATCHY CO: Appeal in Becerra Class Suit Still Pending -------------------------------------------------------- The McClatchy Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended July 1, 2018, that the appeal from the decision in the case, Becerra v. The McClatchy Company, is still pending. In December 2008, carriers of The Fresno Bee filed a class action lawsuit against the company and The Fresno Bee in the Superior Court of the State of California in Fresno County captioned Becerra v. The McClatchy Company ("Fresno case") alleging that the carriers were misclassified as independent contractors and seeking mileage reimbursement. In February 2009, a substantially similar lawsuit, Sawin v. The McClatchy Company, involving similar allegations was filed by carriers of The Sacramento Bee ("Sacramento case") in the Superior Court of the State of California in Sacramento County. The class consists of roughly 5,000 carriers in the Sacramento case and 3,500 carriers in the Fresno case. The plaintiffs in both cases are seeking unspecified restitution for mileage reimbursement. With respect to the Sacramento case, in September 2013, all wage and hour claims were dismissed and the only remaining claim is an equitable claim for mileage reimbursement under the California Civil Code. In the Fresno case, in March 2014, all wage and hour claims were dismissed and the only remaining claim is an equitable claim for mileage reimbursement under the California Civil Code. The court in the Sacramento case trifurcated the trial into three separate phases, independent contractor status, liability and restitution. On September 22, 2014, the court in the Sacramento case issued a tentative decision following the first phase, finding that the carriers that contracted directly with The Sacramento Bee during the period from February 2005 to July 2009 were misclassified as independent contractors. The company objected to the tentative decision but the court ultimately adopted it as final. In June 2016, the company was dismissed from the lawsuit, leaving The Sacramento Bee as the sole defendant. On August 30, 2017, the court issued a statement of decision ruling that the court would not hold a phase two trial but would, instead, assume liability from the evidence previously submitted and from the independent contractor agreements. The company objected to this decision but the court adopted it as final. The third phase has not yet been defined. The court in the Fresno case bifurcated the trial into two separate phases: the first phase addressed independent contractor status and liability for mileage reimbursement and the second phase was designated to address restitution, if any. The first phase of the Fresno case began in the fourth quarter of 2014 and concluded in late March 2015. On April 14, 2016, the court in the Fresno case issued a statement of final decision in favor of us and The Fresno Bee. Accordingly, there will be no second phase. The plaintiffs filed a Notice of Appeal on November 10, 2016. McClatchy said, "We continue to defend these actions vigorously and expect that we ultimately will prevail. As a result, we have not established a reserve in connection with the cases. While we believe that a material impact on our condensed consolidated financial position, results of operations or cash flows from these claims is unlikely, given the inherent uncertainty of litigation, a possibility exists that future adverse rulings or unfavorable developments could result in future charges that could have a material impact. We have and will continue to periodically reexamine our estimates of probable liabilities and any associated expenses and make appropriate adjustments to such estimates based on experience and developments in litigation." No further updates were provided in the Company's SEC report. The McClatchy Company provides news and advertising services in digital and print formats in the United States. Its publications include the Miami Herald, The Kansas City Star, The Sacramento Bee, The Charlotte Observer, The (Raleigh) News and Observer, The (Fort Worth) Star-Telegram, and The (Durham, NC) Herald-Sun. The McClatchy Company was founded in 1857 and is headquartered in Sacramento, California. MDL 2672: Court Grants Admin Motion to Seal Portions of Complaint ----------------------------------------------------------------- The United States District Court for the Northern District of California granted Plaintiffs' Administrative Motion to Seal in the case captioned IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION, This Order Relates To: MDL Dkt. No. 4493. Nemet v. Volkswagen Group of America, Inc., No. 3:17-cv-04372-CRB. MDL No. 2672 CRB (JSC). (N.D. Cal.). Plaintiffs in Nemet have filed an administrative motion to file portions of their complaint under seal. The request to seal is limited to the names and job titles of certain Bosch and Volkswagen employees who are not parties in this action. On several prior occasions in this MDL, the Court has held that redacting the names and job titles of certain non-parties was supported by a compelling reason: that disclosure of the employees' identifying information would infringe on those individuals' privacy rights. The Court reaches the same conclusion here. The requested redactions are narrowly tailored to non-parties whose names and titles are not relevant to the dispute and the disclosure of their identifying information would infringe on their privacy rights. The administrative motion to seal is granted. The unredacted version of the complaint shall remain under seal and the public will have access to the redacted version, which is available at Docket No. 7 in Nemet v. Volkswagen Group of America, Inc., No. 3:17-cv-04372-CRB A full-text copy of the District Court's August 23, 2018 Order is available at https://tinyurl.com/ybbfbwwr from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro , Shapiro Haber and Urmy, LLP. Nicholas Allen, Daniel Carroll, Giancarlo Ceci, Dominic Troffer, Paul Linnee, Sarah Hayden, Dario Medina, Shanice Boyette, Isaac Hoover, John Mazur & Forrest Tinsler, Plaintiffs, represented by Caleb Marker -- caleb.marker@zimmreed.com -- Zimmerman Reed LLP, pro hac vice & Charles S. Zimmerman -- charles.zimmerman@zimmreed.com -- Zimmerman Reed, PLLP, pro hac vice. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague , Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- chuck.baker@wbd-us.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker -- ctucker@rhodesokla.com -- Rhodes Hieronymus Jones Tucker & Gable, Dana Woodrum Lang -- dana.lang@wbd-us.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Baker, Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- henry.smythe@wbd-us.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, Hugh J. Bode -- hbode@reminger.com -- Reminger & Reminger Co LPA, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase -- JChase@herzfeld-rubin.com -- Herzfeld & Rubin PC, Jeffrey S. Rugg , Brownstein Hyatt Farber Schreck, LLP, Jennifer Marino Thibodaux , Gibbons PC, John W. Cowden -- cowden@bscr-law.com -- Baker, Sterchi, Cowden & Ric, LLC. MEDPRO GROUP: Settlement in Carrel FMLA Suit Has Final Approval --------------------------------------------------------------- In the case, GRETCHEN B. CARREL, on behalf of herself and others similarly situated, Plaintiff, v. MEDPRO GROUP, INC., Defendant, Cause No. 1:16-CV-130-TLS (N.D. Ind.), Judge Theresa L. Springmann of the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, granted the Plaintiff's Motion for Final Approval of Class-Wide Settlement of Family and Medical Leave Act Claim, and the Motion for Attorney Fees and Costs on FMLA Claim. The Plaintiff, on behalf of herself and others similarly situated, filed suit against her former employer, MedPro, alleging that the Defendant engaged in a policy that violated the Family Medical Leave Act of 1993 ("FMLA"), by reducing employees' Paid Time Off when an employee took FMLA leave. On Oct. 12, 2016, Carrel sought class certification on her FMLA claim at issue in the matter. On April 26, 2017, the Court granted the motion and certified the FMLA claim for the class of all current or former MedPro Group, Inc. employees who took FMLA leave after or through March 30, 2013, and whose annual allotment of PTO was adversely affected by taking such leave. After the Court granted the Plaintiff's Motion for Class Certification, the parties reached a proposed settlement that would resolve all claims in the case. On Aug. 11, 2017, the Plaintiff filed a Motion for Preliminary Approval of the class-wide settlement of the FMLA claim, as well as the Settlement Agreement and Full and Final Releas. The Settlement requires the Defendant to pay $2,000 to the Plaintiff as an incentive award, $72,330.78 in attorney's fees and litigation expenses, and the amounts included in Exhibit A of the Settlement, which were calculated as follows: The Class Members were divided into two groups: (1) the Class Members who used all of their PTO in the same year that their PTO was reduced as a result of taking FMLA (Settlement Class I); and (2) Class Members who did not use all their PTO in the same year that their PTO was reduced as a result of taking FMLA (Settlement Class II). The anticipated recovery for the members of Settlement Class I is 1.75 multiplied by their hourly rate of pay and the number of hours their PTO was reduced. The anticipated recovery for members of the Settlement Class II is 1.5 multiplied by their hourly rate of pay and the number of hours their PTO was reduced. The Court granted preliminary approval on Nov. 6, 2017, and in connection with the preliminary approval, the Court ordered that class members be sent a notice of the proposed settlement, which included a 60-day cut-off date to opt out of the class or to object to the proposed settlement. The Court also confirmed Matthew C. Elliott as the Class Counsel for the Class Representative and the Class. The Court conducted a Fairness Hearing on March 21, 2018 to consider: (i) the fairness, reasonableness, and adequacy of the settlement; (ii) the contents of the Final Order of Approval of Settlement; and (iii) the application of Class Counsel for attorney's fees and costs. Judge Springmann finds that the Settlement Agreement is fair, reasonable, and adequate. She also finds that the payment of $72,330.78 represents 30.4% of the total amount; approximately 30% is well within the normal amounts in common fund cases where the total payments are less than a million dollars. And, given the contributions of the Named Plaintiff, she finds that the additional $2,000 payment is appropriate. For these reasons, Judge Springmann granted the Motion for Final Order of Approval and the Motion for Attorney Fees and Costs on FMLA Claim. A Final Approval Order will be issued consistent with this Opinion and Order and with the Settlement Agreement. The parties are DIRECTED to file a final report within 60 days after completion of the payment process. A full-text copy of the Court's June 27, 2018 Opinion and Order is available at https://is.gd/0BOBFE from Leagle.com. Gretchen B Carrel, on behalf of herself and all other similarly-situated persons, Plaintiff, represented by Matthew J. Elliott -- mje@beckmanlawson.com -- Beckman Lawson LLP. MedPro Group Inc, Defendant, represented by Anna M. Konradi , Faegre Baker Daniels LLP, Edward E. Hollis -- Edward.Hollis@faegrebd.com -- Faegre Baker Daniels LLP, Rozlyn M. Fulgoni-Britton -- Rozlyn.Fulgoni-Britton@faegrebd.com -- Faegre Baker Daniels LLP & Sarah E. Caldwell Breslin -- sarah.breslin@FaegreBD.com -- Faegre Baker Daniels LLP. MELINTA THERAPEUTICS: Bid to Dismiss Merger Suit Stll Pending ------------------------------------------------------------- Melinta Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the motion to dismiss filed in the consolidated class action suit related to Cempra, Inc. now known as Melinta Therapeutics, Inc., is still pending. On November 3, 2017, Melinta merged with Cempra, Inc. in a business combination. Prior to the merger, on November 4, 2016, a securities class action lawsuit was commenced in the United States District Court, Middle District of North Carolina, Durham Division, naming Cempra, Inc. (now known as Melinta Therapeutics, Inc.) and certain of Cempra's officers as defendants. Two substantially similar lawsuits were filed in the United States District Court, Middle District of North Carolina on November 22, 2016, and December 30, 2016, respectively. Pursuant to the Private Securities Litigation Reform Act, on July 6, 2017, the court consolidated the three lawsuits into a single action and appointed a lead plaintiff and co-lead counsel in the consolidated case. On August 16, 2017, the plaintiff filed a consolidated amended complaint. Plaintiff alleges violations of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with allegedly false and misleading statements made by the defendants between July 7, 2015, and November 4, 2016 (the "Class Period"). Plaintiff seeks to represent a class comprised of purchasers of Cempra's common stock during the Class Period and seeks damages, costs and expenses and such other relief as determined by the court. On September 29, 2017, the defendants filed a motion to dismiss the consolidated amended complaint. On November 13, 2017, the plaintiff filed an opposition to the defendants' motion to dismiss the consolidated amended complaint. On December 4, 2017, the defendants filed a reply brief. On July 24, 2018, the court heard oral arguments on defendants' motion to dismiss the consolidated amended complaint. The motion remains pending. Melinta Therapeutics said, "We believe that we have meritorious defenses and we intend to defend the lawsuit vigorously. It is possible that similar lawsuits may yet be filed in the same or other courts that name the same or additional defendants." Melinta Therapeutics, Inc., a commercial-stage pharmaceutical company, discovers, develops, and commercializes various anti-infectives for the treatment of bacterial infectious diseases in North America. The company was founded in 2000 and is headquartered in New Haven, Connecticut. MEZZI MARKETING: Motion to Compel Filed in Katz Suit ---------------------------------------------------- A motion to compel and order to show cause has been filed by petitioners in the case captioned as Samuel Katz; Alexander Braurman; and Lynne Rhodes, individually and on behalf of all others similarly situated, Petitioners v. Mezzi Marketing LLC, Respondent, Case No. 1:18-mc-02122-NGG (E.D.N.Y., Aug. 6, 2018). The case is assigned to Judge Nicholas G. Garaufis. Mezzi Marketing LLC is a business solution company catering client's communication and IT needs. [BN] The Plaintiff is represented by: Grace E. Parasmo, Esq. PARASMO LIEBERMAN LAW 7400 Hollywood Blvd, #505 Los Angeles, CA 90046 Telephone: (844) 200-5623 Facsimile: (877) 501-3346 E-mail: gparasmo@parasmoliebermanlaw.com MINNESOTA: Suit Over Sex Offenders Commitment Program Ends ---------------------------------------------------------- Brian Lambert, writing for MinnPost, reports that according to Steve Karnowski for the AP, "A long-running class-action lawsuit over the constitutionally of Minnesota's civil commitment program for sex offenders effectively ended on August 23 when a federal judge dismissed the remaining claims but stood by his earlier statements that some revelations during the six-week trial shock his conscience. U.S. District Judge Donovan Frank cited a 2017 decision by the 8th U.S. Circuit Court of Appeals, which overturned his 2015 declaration that the program was unconstitutional because few people had ever been released from the program since began in the mid-1990s. The U.S. Supreme Court last October declined to hear the case, letting the 8th Circuit's ruling stand and the program to continue operating as it was."[GN] MSG BEACON: Reyes Files ADA Suit in N.Y. ----------------------------------------- A class action lawsuit has been filed against MSG Beacon, LLC under the Americans with Disabilities Act. The case is captioned Jose Reyes, on behalf of himself and all others similarly situated v. MSG Beacon, LLC, doing business as: The Beacon Theatre, Case No. 1:18-cv-08000 (S.D.N.Y., August 31, 2018). MSG Beacon, LLC, does business as The Beacon Theatre. The Company operates a theatre in New York City.[BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com NATIONWIDE FUNDING: Wendell H. Stone Hits Illegally Faxed Ads ------------------------------------------------------------- Wendell H. Stone Company, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Nationwide Funding Group Corp., a California corporation, Defendant, Case No. 18-cv-01133, (W.D. Pa., August 27, 2018) seeks statutory and treble damages, injunctive relief, compensation and attorney fees for violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. Nationwide allegedly sent unsolicited faxed ads to Plaintiff's phone in an effort to solicit their financial services, notes the complaint.[BN] The Plaintiff is represented by: Stuart C. Gaul, Jr., Esq. GAUL LEGAL LLC 100 Ross Street, Suite 510 Pittsburgh, PA 15219 Tel: (412) 261-5100 Fax: (412) 261-5101 Email: stuart.gaul@gaul-legal.com - and - Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. Taylor T. Smith, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 Facsimile: (303) 927-0809 Email: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com tsmith@woodrowpeluso.com NEW YORK ALLERGY: Picon Suit Alleges Disabilities Act Violations ---------------------------------------------------------------- New York Allergy & Sinus Group, PLLC is facing a class action lawsuit captioned as YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED v. NEW YORK ALLERGY & SINUS GROUP, PLLC, Case No. 1:18-cv-07975 (S.D.N.Y., August 31, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. New York Allergy & Sinus Group, PLLC, is a New York business organization. The Company provides services related to immunology and allergy.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY, 10014-5856 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com NINETY NINE RESTAURANTS: Hughes Sues over Take-Out Food Charges --------------------------------------------------------------- JOHN HUGHES, individually and on behalf of all others similarly situated, Plaintiff v. Ninety Nine Restaurants, Inc., Defendants, Case No. 181007 (Mass. Super., Norfolk Cty., Aug. 6, 2018) seeks to stop the Defendant's illegal, unfair, and deceptive charges to its customers on all take-out food or being served as take-out. The Plaintiff also seeks to obtain restitution under the Massachusetts General Consumer Protection Statute. The Plaintiff alleged in the complaint that the Defendant charges a fee called "To Go Packaging Charge" to its customers who receive take-out services from the restaurant. Such actions by charge the To Go Packaging Charge without adequate disclosure constitute a violation of the Massachusetts General Consumer Protection Statute. It is also unconscionable for the Defendant to charge a fee to package the food that customers take-out of the restaurant but not to patrons that eat at the restaurant and take some food home. Ninety Nine Restaurant, Inc. owns and operates a chain of restaurants in the Northeast. The company was founded in 1952 and is based in Woburn, Massachusetts. It has locations in Massachusetts, Connecticut, Rhode Island, Maine, Vermont, New York, and New Hampshire. Ninety Nine Restaurant, Inc. operates as a subsidiary of American Blue Ribbon Holdings, LLC. [BN] The Plaintiff is represented by: Samuel P. Reef, Esq. LAW OFFICE OF SAMUEL P. REEF 77 Pond Street Sharon, MA 02067 Telephone: (781) 784-7777 Facsimile: (781) 784-1856 E-mail: sam@reeflaw.com NOVO NORDISK: Carr Suit Remanded to State Court ----------------------------------------------- In the case, RODNEY DOUGLAS CARR, Plaintiff, v. NOVO NORDISK, INC., DAN O'NEILL, AMANDA AGUILOS, DOES 1 through 100; Defendants, Case No. CV 18-4370 FMO (FFMx) (C.D. Cal.), Judge Fernando M. Olguin of the U.S. District Court for the Central District of California granted in part and denied in part the Plaintiff's Motion to Remand. On June 12, 2017, Carr filed a Complaint in the Los Angeles County Superior Court ("state court") against Novo Nordisk, Dan O'Neill, Amanda Aguilos, Vincent Lamanna, and Does 1 through 100, asserting state law claims for: breach of express and implied contract; breach of the covenant of good faith and fair dealing; wrongful termination in violation of public policy; discrimination in violation of the California Fair Employment and Housing Act; intentional infliction of emotional distress ("IIED"); violation of California Business & Professions Code Section 17200; violation of the California Consumer Legal Remedies Act; intentional misrepresentation; negligent misrepresentation; and concealment. The Defendants removed the action to the Court on May 22, 2018, on the basis of diversity jurisdiction pursuant to 28 U.S.C. Sections 1332, 1441 and 1446. On June 21, 2018, the Plaintiff filed the instant Motion challenging removal of the action. On June 28, 2018, the Defendants filed an opposition to the Plaintiff's Motion, and the Plaintiff filed a reply to the Defendant's opposition on June 29, 2019. Judge Olguin's review of the Notice of Removal and the attached state court Complaint makes clear that the Court does not have subject matter jurisdiction over the instant matter. In other words, the Plaintiff could not have originally brought the action in federal court, as he does not competently allege facts supplying diversity jurisdiction. Therefore, removal was improper. On Feb. 9, 2018, Lamanna filed a Demurrer, or in the Alternative, Motion for Summary Judgment or Summary Adjudication. Among other things, the state court granted summary judgment as to the Plaintiff's harassment and IIED claims. In the alternative to granting summary judgment, the state court, in one paragraph, granted Lamanna's demurrer without leave to amend. The state court dismissed the causes of action against Lamanna, and dismissed Lamanna from the action. Even though the Plaintiff filed his Complaint on June 12, 2017, the Defendants removed the action on May 22, 2018, nearly a year later. Although the Notice of Removal does not specifically assert that Lamanna was fraudulently joined, i.e., that he is a sham Defendant, it does assert that during the course of the state court proceedings, it became evident to the Defendants that the Plaintiff named Lamanna solely for the improper purpose of defeating jurisdiction. Given that any doubt regarding the existence of subject matter jurisdiction must be resolved in favor of remanding the action to state court, the Judge is not persuaded, under the circumstances, that the Defendants have met their heavy burden of showing that Lamanna was fraudulently joined. Because Lamanna is a citizen of California, there is no basis for diversity jurisdiction, and the Court lacks subject matter jurisdiction over the matter. The Plaintiff provides no argument as to why the Court should award him costs and fees beyond a conclusory assertion that 28 U.S.C. Section 144(c) authorizes awards of costs and fees to a plaintiff who is successful on a remand motion. In any event, under the circumstances, the Judge is persuaded that there was an objectively reasonable basis for the Defendant to remove the case, and therefore attorney's fees are not warranted. Based on the foregoing, Judge Olguin granted in part and denied in part the Plaintiffs' Motion to Remand. He remanded the action to the Superior Court of the State of California for the County of Los Angeles, 111 North Hill Street, Los Angeles, CA 90012, pursuant to 28 U.S.C. Section 1447(c). The Clerk will send a certified copy of the Order to the state court. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/hGwet3 from Leagle.com. Rodney Douglas Carr, Plaintiff, represented by Suzanne E. Rand-Lewis -- srand-lewis@randandrand-lewisplcs.com -- Gary Rand and Suzanne Rand-Lewis PLCS. Novo Nordisk, Inc., Dan O Neill & Amanda Aguilos, Defendants, represented by Daryl S. Landy -- daryl.landy@morganlewis.com -- Morgan Lewis and Bockius LLP & Nancy My Ngoc Nguyen -- nancy.nguyen@morganlewis.com -- Morgan Lewis and Bockius LLP. ODWALLA INC: 9th Cir. Appeal Filed in Wilson Class Suit ------------------------------------------------------- Plaintiff Stephen Wilson filed an appeal from a court ruling in his lawsuit styled Stephen Wilson v. Odwalla, Inc., et al., Case No. 2:17-cv-02763-DSF-FFM, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the Plaintiff sought certification of these classes: -- Odwalla Orange Juice Class: All individuals who purchased one or more 15.2 oz. Bottles of Odwalla Orange Juice in California from June 2016, until the date of trial; -- 59 oz. Odwalla Orange Juice Class: All individuals who purchased one or more 59 oz. Bottles of Odwalla Orange Juice in California from April 2015, until the date of trial; and -- 128 oz. Odwalla Orange Juice Class: All individuals who purchased one or more 128 oz. Bottles of Odwalla Orange Juice in California from September 2016, until the date of trial. The appellate case is captioned as Stephen Wilson v. Odwalla, Inc., et al., Case No. 18-56183, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by October 1, 2018; -- Transcript is due on October 29, 2018; -- Appellant Stephen Wilson's opening brief is due on December 10, 2018; -- Appellees Odwalla, Inc. and The Coca-Cola Company's answering brief is due on January 7, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant STEPHEN WILSON, individually, and on behalf of a class of similarly situated individuals, is represented by: Ryan Wu, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4177 E-mail: ryan.wu@capstonelawyers.com Defendants-Appellees ODWALLA, INC., a California corporation, and THE COCA-COLA COMPANY, a Delaware corporation, are represented by: Jeffrey Alan Rosenfeld, Esq. Sean Crain, Esq. ALSTON & BIRD LLP 333 S. Hope Street Los Angeles, CA 90071-2901 Telephone: (213) 576-1000 E-mail: jeffrey.rosenfeld@alston.com sean.crain@alston.com - and - Rachel E. K. Lowe, Esq. DLA PIPER LLP 2000 Avenue of the Stars, Suite 400 North Tower Los Angeles, CA 90067-4704 Telephone: (310) 595-3000 E-mail: rachel.lowe@dlapiper.com PAYAM INC: Contreras Sues to Recover Withheld Gratuities -------------------------------------------------------- Alejandro Contreras, individually and on behalf of others similarly situated, Plaintiffs, v. Payam Inc., Mehisbar Inc., Colbeh, Inc., Colbeh T. B., Inc, Colbeh TT, LLC, Colbeh BY Carlyle, Inc., Benjamin Benyaminian, Pejman Toobian and any other related entities, Defendants, Case No. 18-cv-07469 (C.D. Cal., August 25, 2018), seeks to recover unlawfully retained tips and gratuities owed under New York Labor Law and New York Codes, Rules and Regulations. The Defendants operate a catering business in New York City where Contreras was employed as a catering service staff. The Defendants charge clients 20% in connection with the administration of catered events. Contreras claims that this amount is a form of a gratuity that should be distributed among the wait staff. [BN] Plaintiff is represented by: Laura R. Reznick, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 Email: jbrown@leedsbrownlaw.com PC SHIELD INC: Wendell H. Stone Co. Files Suit Over TCPA Breach --------------------------------------------------------------- Wendell H. Stone Company, Inc., individually and on behalf of all others similarly situated, Plaintiff, v. PC Shield Inc., Defendant, Case No. 18-cv-01135, (W.D. Pa., August 27, 2018) seeks statutory and treble damages, injunctive relief, compensation and attorney fees for violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. Nationwide sent unsolicited faxed ads to Plaintiff's phone in an effort to promote their hardware/software protection programs, says the complaint. [BN] The Plaintiff is represented by: Stuart C. Gaul, Jr., Esq. GAUL LEGAL LLC 100 Ross Street, Suite 510 Pittsburgh, PA 15219 Tel: (412) 261-5100 Fax: (412) 261-5101 Email: stuart.gaul@gaul-legal.com - and - Steven L. Woodrow, Esq. Patrick H. Peluso, Esq. Taylor T. Smith, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 Facsimile: (303) 927-0809 Email: swoodrow@woodrowpeluso.com ppeluso@woodrowpeluso.com tsmith@woodrowpeluso.com PERRIGO CO: Bid to Dismiss Roofers Securities Suit Partly Granted ----------------------------------------------------------------- In the case, ROOFER'S PENSION FUND, Plaintiff, v. PAPA, et al., Defendant, Civil Action No. 16-2805 (D. N.J.), Judge Madeline Cox Arleo of the U.S. District Court for the District of New Jersey granted in part and denied in part the Defendants' Motion to Dismiss. The case is a federal securities class action brought on behalf of purchasers of the common stock of Perrigo between April 21, 2015, and May 3, 2017, both dates inclusive, and owners of common stock as of Nov. 13, 2016, seeking to recover damages caused by the Defendants' alleged violations of securities laws. More specifically, the action arises from alleged misrepresentations that the Defendants made to investors while fighting a hostile takeover bid by Mylan, a pharmaceutical conglomerate, and throughout the Class Period. Generally, the Plaintiffs contend that Perrigo intentionally violated accounting rules in its treatment of a royalty stream it acquired prior to the Class Period and misrepresented the stream's value, misrepresented the pricing policy and competitiveness of the company's generic division in order to hide a price fixing scheme that garnered them hundreds of millions of dollars in collusive revenue, inflated organic growth rates despite knowing that organic growth had slowed substantially in the quarters preceding the Class Period, and misrepresented the success of Perrigo's integration of Omega Pharma N.V., the company's largest acquisition to date. As a result of their knowing misrepresentations and omissions, the Plaintiffs contend that the Defendants fended off the Mylan bid and reaped personal profits. The Plaintiffs filed the Amended Complaint on June 21, 2017. The FAC contains four counts: (1) for violations of Section 10(b) of the Exchange Act and Rule 10b-5 against all the Defendants; (2) for violations of Section 20(a) of the Exchange Act against the Director Defendants and Brown; (3) for violations of Section 14(e) of the Exchange Act against all Defendants; and (4) for violations of the Israel Securities Law, 1968, brought by the TASE Investor Class against all Defendants for purchases made on the TASE. The matter is before the Court by way of Defendants Perrigo, Joseph Papa, Judy Brown, Laurie Brlas, Gary M. Cohen, Jacqualyn A. Fouse, Ellen R. Hoffing, Michael Jandernoa, Gerland K. Kunkle, Jr., Herman Morris, Jr., and Donal O'Connor's Motion to Dismiss; and Defendant Mark Coucke's Motion to Dismiss the First Amended Complaint ("FAC"). The Defendants filed the instant Motion to Dismiss on Aug. 21, 2017. Lead Plaintiff Perrigo Institutional Investor Group ("Plaintiff") opposes the motion. The Plaintiffs argue that the Defendants made material misrepresentations about four areas to prevent the Perrigo shareholders from accepting a bid from Mylan, which had made a final tender offer. The Defendants assert that the Plaintiffs have failed to adequately allege either material misrepresentations or omissions or scienter with regard to the Tysabri royalty stream, generic prescription pricing, organic growth, or the Omega integration. They contend that these deficiencies defeat all of the Plaintiffs Exchange Act claims. Judge Arleo agrees in part and disagrees in part. She granted Defendant Coucke's Motion to Dismiss. She finds that she can not dismiss the Plaintiffs' actionable statements regarding the present success of the integration. She, however, dismissed the claims related to Defendant Coucke's statements and the purely forward-looking revenue and synergy projections described in the Amended Complaint. Defendant Coucke's alleged statement that Omega had an efficient management structure is inherently qualitative and, thus, not measurable. The Judge granted in part and denied in part the remaining Defendant's Motion to Dismiss without prejudice. Among other things, she finds that (i) dismissal based on immateriality is inappropriate at this juncture; (ii) the Plaintiffs have failed to plead facts which would create a strong inference that the Defendants knew their financials were not GAAP compliant and they have failed to plead that the Defendants knowingly or recklessly omitted that fact from their statements; (iii) the allegations and the misrepresentations and omissions identified in the Amended Complaint concerning collusive pricing are sufficient to withstand a motion to dismiss; (iv) neither of the alleged disclosures conveyed with a degree of intensity and credibility sufficient to counter-balance effectively the misrepresentations regarding Perrigo's current ability to meet its growth goals; (v) the mere fact that the Defendants signed GAAP and SOX certifications, accordingly, does not support the Plaintiffs' claim that the Defendants knew or must have known that their actions presented a danger of misleading buyers or sellers; (vi) the Defendants fail to articulate an innocent basis for their ignorance of the roadblocks facing integration at the time they made statements regarding the success of the acquisition; and (vii) inference of scienter is sufficient to withstand dismissal on the claims against Papa and Brown, in large part due to the context and substance of their response to questioning, but insufficient to withstand dismissal as to the other Individual Defendants against whom the allegations of scienter are far weaker. A full-text copy of the Court's June 27, 2018 Opinion is available at https://is.gd/cEleoF from Leagle.com. HAREL INSURANCE COMPANY, LTD, Movant, represented by PETER S. PEARLMAN, COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF, LLP. Dan Kleinerman, Movant, represented by DANIEL S. SOMMERS -- dsommers@cohenmilstein.com -- COHEN, MILSTEIN, SELLERS & TOLL, PLLC. Michael Wilson, Movant, represented by GARY S. GRAIFMAN, KANTROWITZ, GOLDHAMER & GRAIFMAN, ESQS. & PETER GEORGE SAFIRSTEIN -- psafirstein@safirsteinmetcalf.com -- Safirstein Metcalf LLP. ROOFER'S PENSION FUND, On behalf of itself and all othes similarly situated, Plaintiff, represented by DANIEL S. SOMMERS, COHEN, MILSTEIN, SELLERS & TOLL, PLLC, MICHAEL B. HIMMEL -- mhimmel@lowenstein.com -- LOWENSTEIN SANDLER LLP & MICHAEL THOMAS GRAY LONG -- mlong@lowenstein.com -- LOWENSTEIN SANDLER, PC. JOSEPH C. PAPA, Defendant, represented by GOUTAM UMESH JOIS -- gjois@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP. PERRIGO COMPANY PLC, Defendant, represented by ALAN S. NAAR -- anaar@greenbaumlaw.com -- GREENBAUM, ROWE, SMITH & DAVIS, LLP. JUDY BROWN, Defendant, represented by BRIAN THOMAS FRAWLEY -- FRAWLEYB@sullcrom.com -- SULIVAN & CROMWELL. LAURIE BRLAS, GARY M. COHEN, JACQUALYN A. FOUSE, ELLEN R. HOFFING, MICHAEL R. JANDERNOA, GERALD K. KUNKLE, JR., HERMAN MORRIS, JR. & DONAL O'CONNOR, Defendants, represented by JANE J. FELTON, Skoloff & Wolfe, P.C. & JONATHAN W. WOLFE, SKOLOFF & WOLFE, PC. MARC COUCKE, Defendant, represented by STEVEN WILLIAM SHULDMAN -- steven.shuldman@wilmerhale.com -- WILMERHALE LLP. PERSONAL TOUCH: Faces Taylor Suit Alleging FLSA Violations ----------------------------------------------------------- A class action lawsuit has been filed against Personal Touch Management, Inc. The case is styled as Lee Taylor, Eleazar Sepulveda, John Steward, on behalf of themselves and others similarly situated and Andrew Avelar v. Personal Touch Management, Inc. d/b/a Special Landscaping, Case No. 4:18-cv-03051 (S.D. Tex., August 31, 2018). The lawsuit arises from alleged violations of the Fair Labor Standards Act. Personal Touch Management, Inc., is a privately held company in Houston, Texas. The Company does business as Special Landscaping providing landscaping services, fencing, fences, gates & components and groundskeeping services.[BN] The Plaintiffs are represented by: Alfonso Kennard, Jr., Esq. KENNARD RICHARD PC 2603 Augusta Drive, 14th Floor Houston, TX 77057 Telephone: (713) 742-0900 Facsimile: (713) 742-0951 E-mail: alfonso.kennard@kennardlaw.com PLAIN GREEN: Jurisdictional Discovery in Gibbs RICO Suit Granted ---------------------------------------------------------------- In the case, DARLENE GIBBS, et al., Plaintiffs, v. PLAIN GREEN, LLC, et al., Defendants, Civil Action No. 3:17cv495 (E.D. Va.), Judge M. Hannah Lauck of the U.S. District Court for the Eastern District of Virginia, Richmond Division, (i) granted the Plaintiffs' Motion to Permit Jurisdictional Discovery, and (ii) denied Great Plains Lending, LLC's Motion to Stay Proceedings. The Defendants operate internet lending websites offering short-term loans to consumers. Allegedly, the Defendants offered loans to the Plaintiffs in amounts ranging from $300 to $3,000, charging interest rates ranging from 118% to 448%. The Plaintiffs bring the suit on behalf of themselves and all individuals similarly situated, alleging that the Defendants' lending enterprises violate state and federal lending laws. Specifically, the Plaintiffs allege that the Defendants structured their businesses to benefit from the protections of tribal sovereign immunity even though they do not constitute tribal entities. The Defendants did so, the Plaintiffs contend, in order to evade state and federal lending laws. They contend that the Defendants' fraudulent posture as tribal entities eradicates any potential claim to the protection of tribal sovereign immunity. The Plaintiffs filed a five-count putative class action Complaint against the Defendants alleging various state and federal violations associated with an illegally usurious loan enterprise. They seek: (1) a declaratory judgment that the loan agreements are void and unenforceable; (2) injunctive relief ordering the Defendants to divest themselves of any interest in the enterprise pled in the complaint, including the receipt of racketeering profits, prohibiting the Defendants from continuing to engage in the enterprise, and ordering the dissolution of each defendant that has engaged in the enterprise; (3) compensatory damages; and (4) costs and attorney's fees. Plain Green filed a Motion to Dismiss without Leave to Amend or, in the Alternative, to Compel Arbitration. Great Plains filed three separate motions: (1) a Motion to Dismiss for Lack of Jurisdiction; (2) a Motion to Compel Arbitration; and, (3) a Motion to Transfer Case. The Defendants each moved to dismiss based on a claim of sovereign immunity under Rule 12(b)(1). The Plaintiffs filed the Motion for Discovery, seeking jurisdictional discovery on the issue of the Defendants' claim of sovereign immunity. The Defendants each opposed the Motion for Discovery. The Court suspended briefing on the Defendants' Motions to Dismiss pending its ruling on the Motion for Discovery. On May 9, 2018, the Plaintiffs filed a Motion for Leave to File Supplemental Authority, requesting leave to submit a recent court order in a case they allege is similar to the one at bar. On May 9, 2018, Great Plains filed the Motion to Stay based on a case development. Specifically, it Plains has moved to consolidate and transfer the case in the Judicial Panel on Multidistrict Litigation ("JPML"). Great Plains seeks to consolidate three cases in a multi-district litigation ("MDL"). It requests a stay of these proceedings pending the JPML ruling on the Defendants' pending Motion for Consolidation and Transfer filed in In Re: Great Plains Lending, LLC Litigation, MDL No. 2851. The JPML was scheduled to hear the motion on July 26, 2018. No MDL exists until the JPML rules on the Motion for Consolidation and Transfer. On June 13, 2018, Great Plains filed a Motion for Leave to File Supplemental Authority, requesting leave to submit a recent court order granting a stay in one of the two other cases that is part of its JPML request. Judge Lauck finds that the Plaintiffs' allegations and supporting evidence raise legitimate questions about the Defendants' claim to sovereign immunity, going beyond mere speculation or conclusory statements. Hence, limited jurisdictional discovery is appropriate to clarify the true nature of the relationship between the Defendants and the Tribes. She also finds that limited jurisdictional discovery is necessary to resolve the Defendants' claim to tribal status. The information the Plaintiffs request will be necessary for the Court to determine whether the Defendants share in the Tribes' sovereign immunity. Finally, the Judge finds that the Plaintiffs' specific and substantive allegations against the Defendants justify jurisdictional discovery to determine whether the Defendants share in the Tribes' sovereign immunity. Limited jurisdictional discovery, therefore, will not undermine the principles of sovereign immunity. For the foregoing reasons, Judge Lauck granted the Plaintiffs' Motion to File Supplemental Authority, and Great Plains' Motion to File Supplemental Authority. She denied the Motion to Stay and granted the Motion for Discovery. Because the jurisdictional discovery will likely affect the parties' briefings, she dismissed without prejudice Plain Green's Motion to Dismiss, Great Plain's Motion to Dismiss, Great Plain's Motion to Compel Arbitration, and Great Plains's Motion to Transfer. An appropriate Order issued. A full-text copy of the Court's June 27, 2018 Memorandum Opinion is available at https://is.gd/57M0ai from Leagle.com. Darlene Gibbs, on behalf of themselves and all individuals similarly situated, Stephanie Edwards, on behalf of themselves and all individuals similarly situated, Lula Williams, on behalf of themselves and all individuals similarly situated, Patrick Inscho, on behalf of themselves and all individuals similarly situated & Lawrence Mwethuku, on behalf of themselves and all individuals similarly situated, Plaintiffs, represented by Kristi Cahoon Kelly -- kkelly@kellyandcrandall.co -- Kelly & Crandall PLC, Andrew Joseph Guzzo -- aguzzo@kellyandcrandall.com -- Kelly & Crandall PLC, Casey Shannon Nash -- casey@kellyandcrandall.com -- Kelly & Crandall PLC, Craig Carley Marchiando -- craig@clalegal.com -- Consumer Litigation Associates, Elizabeth W. Hanes -- elizabeth@clalegal.com -- Consumer Litigation Associates, James Wilson Speer -- jay@vplc.org -- Virginia Proverty Law Center & Leonard Anthony Bennett -- lenbennett@clalegal.com -- Consumer Litigation Associates. Plain Green, LLC, Defendant, represented by Matthew Donald Foster -- fosterm@pepperlaw.com -- Pepper Hamilton LLP, Francis Anthony Weber -- weberf@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice, Jeffrey Kyle Holth -- jholth@thejacobsonlawgroup.com -- Jacobson, Magnuson, Anderson & Halloran, P.C., pro hac vice, Joseph Fredericks Halloran -- jhalloran@thejacobsonlawgroup.com -- Jacobson, Magnuson, Anderson & Halloran, P.C., pro hac vice & Richard Joseph Zack -- zackr@pepperlaw.com -- Pepper Hamilton LLP, pro hac vice. Great Plains Lending, LLC, Defendant, represented by Charles Kalman Seyfarth -- cseyfarth@ohaganspencer.com -- O'Hagan Meyer PLLC, Elizabeth Scott Turner -- eturner@ohaganmeyer.com -- O'Hagan Meyer PLLC & Saba Bazzazieh -- sbazzazieh@rosettelaw.com -- Rosette LLP, pro hac vice. PLAINS ALL AMERICAN: 9th Cir. to Review Class Certification Ruling ------------------------------------------------------------------ Plains All American Pipeline, L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the U.S. Ninth Circuit Court of Appeals has granted the company's petition for leave to appeal the oil industry class certification in the litigation over the Line 901 crude oil release. In May 2015, the company experienced a crude oil release from its Las Flores to Gaviota Pipeline (Line 901) in Santa Barbara County, California. A portion of the released crude oil reached the Pacific Ocean at Refugio State Beach through a drainage culvert. Following the release, the company shut down the pipeline and initiated its emergency response plan. A Unified Command, which included the United States Coast Guard, the Environmental Protection Agency (EPA), the California Office of Spill Prevention and Response and the Santa Barbara Office of Emergency Management, was established for the response effort. Clean-up and remediation operations with respect to impacted shoreline and other areas has been determined by the Unified Command to be complete, and the Unified Command has been dissolved. The company's estimate of the amount of oil spilled, based on relevant facts, data and information, is approximately 2,934 barrels; of this amount, the company estimate that 598 barrels reached the Pacific Ocean. Shortly following the Line 901 incident, the company established a claims line and encouraged any parties that were damaged by the release to contact us to discuss their damage claims. The company has received a number of claims through the claims line and we are processing those claims for payment as we receive them. In addition, the company has also had nine class action lawsuits filed against it, six of which have been administratively consolidated into a single proceeding in the United States District Court for the Central District of California. In general, the plaintiffs are seeking to establish different classes of claimants that have allegedly been damaged by the release. To date, the court has certified three sub-classes of claimants and denied certification of the other proposed sub-class. The sub-classes that have been certified include (i) commercial fishermen who landed fish in certain specified fishing blocks in the waters adjacent to Santa Barbara County or persons or businesses who resold commercial seafood landed in such areas; (ii) individuals or businesses who were employed by or had contracts with certain designated oil platforms and related onshore processing facilities in the vicinity of the release as of the date of the release and (iii) beachfront property and easement owners whose properties were oiled. The Ninth Circuit Court of Appeals has granted the company's petition for leave to appeal the oil industry class certification. The company is also defending a separate class action lawsuit proceeding in the United States District Court for the Central District of California brought on behalf of the Line 901 and Line 903 easement holders seeking injunctive relief as well as compensatory damages. Plains All American Pipeline, L.P., through its subsidiaries, engages in the transportation, storage, terminalling, and marketing of crude oil, natural gas liquids (NGL), and natural gas in the United States and Canada. The company operates in three segments: Transportation, Facilities, and Supply and Logistics. Plains All American Pipeline, L.P. was founded in 1998 and is headquartered in Houston, Texas. PLAINS ALL AMERICAN: Appeal in Texas Class Suit Underway -------------------------------------------------------- Plains All American Pipeline, L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that plaintiffs have filed notice of intent to file an appeal of the dismissal of the consolidated class action lawsuit in Texas. There have been two securities law class action lawsuits filed on behalf of certain purported investors in the Partnership and/or Plains GP Holdings, L.P. (PAGP) against the Partnership, PAGP and/or certain of their respective officers, directors and underwriters. Both of these lawsuits have been consolidated into a single proceeding in the United States District Court for the Southern District of Texas. In general, these lawsuits allege that the various defendants violated securities laws by misleading investors regarding the integrity of the Partnership's pipelines and related facilities through false and misleading statements, omission of material facts and concealing of the true extent of the spill. The plaintiffs claim unspecified damages as a result of the reduction in value of their investments in the Partnership and PAGP, which they attribute to the alleged wrongful acts of the defendants. The Partnership and PAGP, and the other defendants, denied the allegations in, and moved to dismiss these lawsuits. On March 29, 2017, the Court ruled in the company's favor dismissing all claims against all defendants. Plaintiffs refiled their complaint. On April 2, 2018, the Court dismissed all of the refiled claims against all defendants with prejudice. Plaintiffs have filed notice of intent to file an appeal of the dismissal. Plains All American said, "Consistent with and subject to the terms of our governing organizational documents (and to the extent applicable, insurance policies), we have indemnified and funded the defense costs of our officers and directors in connection with this lawsuit; we have also indemnified and funded the defense costs of our underwriters pursuant to the terms of the underwriting agreements we previously entered into with such underwriters." Plains All American Pipeline, L.P., through its subsidiaries, engages in the transportation, storage, terminalling, and marketing of crude oil, natural gas liquids (NGL), and natural gas in the United States and Canada. The company operates in three segments: Transportation, Facilities, and Supply and Logistics. Plains All American Pipeline, L.P. was founded in 1998 and is headquartered in Houston, Texas. PRIMERICA INC: Kelly Sues Over Illegal Bank Account Withdrawals --------------------------------------------------------------- Troy Kelly, on behalf of themselves and others similarly situated, Plaintiffs v. Primerica, Inc., Defendants, Case No. 18-cv-05483, (C.D. Cal., June 20, 2018), seeks damages, restitution, and all other relief resulting from unjust enrichment and violation of the Electronic Funds Transfer Act, Electronic Communications Privacy Act, California's Unfair Competition Law and California's Consumer Legal Remedies Act. Primerica, Inc. is engaged in the business of selling insurance policies. Kelly, a former customer, cancelled his policies yet Primerica continued to withdraw funds from his bank accounts, without his consent, says the complaint. [BN] Plaintiffs are represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com abacon@toddflaw.com PUMA BIOTECHNOLOGY: Hearing on Summary Judgment Set for Sept. ------------------------------------------------------------- Puma Biotechnology, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that court in Hsu vs. Puma Biotechnology, Inc., et. al., is scheduled to hear the motions for summary judgment on September 2018. On June 3, 2015, Hsingching Hsu individually and on behalf of all others similarly situated, filed a class action lawsuit against the Company and certain of the Company's executive officers in the United States District Court for the Central District of California (Case No. 8:15-cv-00865-AG-JCG). On October 16, 2015, lead plaintiff Norfolk Pension Fund filed a consolidated complaint on behalf of all persons who purchased the Company's securities between July 22, 2014 and May 29, 2015. The consolidated complaint alleges that the Company and certain of its executive officers made false or misleading statements and failed to disclose material adverse facts about its business, operations, prospects and performance in violation of Sections 10(b) (and Rule 10b-5 promulgated thereunder) and 20(a) of the Exchange Act. The plaintiff seeks damages, interest, costs, attorneys' fees, and other unspecified equitable relief. On July 10, 2018, the Company and two of its executive officers filed a motion for summary judgment seeking judgment in their favor on all claims. At the same time, the lead plaintiff filed its own motion for summary judgment, seeking judgment in favor on some, but not all, of its claims. The motions are scheduled for a hearing in court in September 2018. Pending those motions, a trial date is currently set for November 6, 2018. The Company intends to vigorously defend against this matter. Puma Biotechnology, Inc., a biopharmaceutical company, focuses on the development and commercialization of products to enhance cancer care in the United States. Puma Biotechnology, Inc. was founded in 2010 and is headquartered in Los Angeles, California. QUEENS MEDICAL: Violates Disabilities Act, Picon Suit Alleges ------------------------------------------------------------- A class action lawsuit has been filed against Queens Medical Associates, P.C. The case is styled as YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED v. QUEENS MEDICAL ASSOCIATES, P.C., Case No. 1:18-cv-07973 (S.D.N.Y., August 31, 2018). The Plaintiff accuses the Defendant of violating the Americans with Disabilities Act. Queens Medical Associates, P.C., is a physician practice specializing in the care of patients with Hematology and Oncology conditions.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY, 10014-5856 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com RAINBOW NAILS: Yang Files FLSA Class Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against Rainbow Nails Salon IV Inc. and Gina Dang. The case is titled as Jun Hua Yang, On behalf of herself and all other employees similarly situated v. Rainbow Nails Salon IV Inc. d/b/a Rainbow Nails IV, and Gina Dang, Case No. 1:18-cv-04970 (E.D.N.Y., August 31, 2018). The lawsuit is brought over alleged violations of the Fair Labor Standards Act. Rainbow Nails Salon IV Inc., doing business as Rainbow Nails IV, is a domestic business corporation organized under the laws of the state of New York with a principal place of business located at 42-14 Broadway, in Astoria, New York.[BN] The Plaintiff is represented by: Xiaoxi Liu, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Ave., Suite 10G Flushing, NY 11354 Telephone: (718) 353-8588 Facsimile: (718) 353-6288 E-mail: xliu@hanglaw.com RESOLUTE FOREST: Settlement in Reynolds Case Wins Final Approval ---------------------------------------------------------------- Resolute Forest Products Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that a final order approving the class action settlement was entered in the case, Reynolds, et al v. Resolute Forest Products Inc., Resolute FP US Inc., Resolute FP US Health and Resolute Welfare Benefit Plan. The case is dismissed. Effective January 1, 2015, the company modified its U.S. OPEB plan so that unionized participants, upon reaching Medicare eligibility, are provided Medicare coverage via a Medicare Exchange program rather than via a Company-sponsored medical plan. On March 2, 2016, a proposed class action lawsuit (Reynolds, et al v. Resolute Forest Products Inc., Resolute FP US Inc., Resolute FP US Health and Resolute Welfare Benefit Plan) was filed in the United States District Court for the Eastern District of Tennessee (or the "District Court") on behalf of certain Medicare-eligible retirees who were previously unionized employees of our Calhoun, Catawba, and Coosa Pines mills, and their spouses and dependents (or the "proposed class"). The plaintiffs allege that the modifications breached the collective bargaining agreements and plan covering the members of the proposed class in the lawsuit. Plaintiffs seek reinstatement of the health care benefits as in effect before January 1, 2015, for the proposed class in the lawsuit. On May 23, 2016, the Company filed a motion to dismiss the complaint. The motion to dismiss was denied by the District Court on March 1, 2017. On June 28, 2017, a settlement agreement in principle was reached between the parties to the lawsuit subject to court approval. On June 5, 2018, the District Court issued an order providing for preliminary approval of the settlement. On August 3, 2018, a final order approving the class action settlement and dismissing the case was entered, which if no appeals are filed within the applicable 30-day appeal period, would result in an amendment of the company's U.S. OPEB plan and a corresponding increase to both "Pension and other postretirement benefit obligations" and "Accumulated other comprehensive loss" in its Consolidated Balance Sheet, as of the date the plan amendment is adopted. Resolute Forest said, "We do not expect that the resulting increase would have a material impact on our Consolidated Financial Statements." Resolute Forest Products Inc. operates in the forest products industry in the United States, Canada, Mexico, and internationally. The company operates in five segments: Market Pulp, Tissue, Wood Products, Newsprint, and Specialty Papers. Resolute Forest Products Inc. is headquartered in Montreal, Canada. REWALK ROBOTICS: Court Narrows Claims in Jasinski's PSLRA Suit -------------------------------------------------------------- The United States District Court for the District of Massachusetts granted in part and denied in part Defendant's Motion to Dismiss the case captioned WANG YAN, individually and on behalf of all other similarly situated parties, Plaintiff, v. REWALK ROBOTICS LTD., LARRY JASINSKI, AMI KRAFT, AMIT GOFFER, JEFF DYKAN, HADAR RON, ASAF SHINAR, WAYNE B. WEISMAN, YASUSHI ICHIKI, ARYEH DAN, GLENN MUIR, BARCLAYS CAPITAL INC., JEFFERIES LLC, and CANACCORD GENUITY INC., Defendants. Civil Action No. 17-10169-FDS. (D. Mass.). The Defendants have moved to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and the Private Securities Litigation Reform Act of 1995 (PSLRA). This is a putative class action alleging violations of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Exchange Act of 1934. The plaintiff class purchased common stock of ReWalk Robotics, Ltd. The consolidated amended complaint alleges that ReWalk, its officers and directors, and the IPO underwriters concealed material information in its IPO registration statement about ReWalk's failure to comply with FDA regulations, in violation of the Securities Act. The Defendants contend that the complaint fails to set forth a Securities Act violation because it does not identify a misleading statement or omission in the registration statement. They also argue that the complaint fails to set forth an Exchange Act violation because the lead plaintiff lacks standing and the information allegedly omitted was not material and was in fact disclosed. In addition, they contend that the complaint fails to allege specific facts that give rise to a strong inference of scienter and that it fails to plead loss causation. Allegedly Misleading Omissions in the Registration Statement Failure to Disclose the ReWalk Device's Safety Profile The complaint alleges that defendants failed to disclose in the registration statement that the ReWalk device was dangerous. Specifically, it alleges that defendants did not disclose that the device's failure to prevent a fall would be reasonably likely to cause serious injury or death to the user and place individuals assisting the user at the risk of harm from a potential fall. That allegation is based on, and mischaracterizes, the FDA letters concerning the postmarket surveillance requirement. For example, the June 26, 2014 letter from the FDA included the above-quoted text. However, the letter went on to state: The safety and effectiveness of the ReWalk has been demonstrated in an institutional environment (e.g. hospital, rehabilitation institution). However, there is limited information on use outside of the institutional setting (e.g. community and at home use) given that ARGO Medical Technologies, Inc. intends for the product's use in non-institutional settings. The letter further stated that the post-market surveillance study would be useful to help determine the product's safety in non-institutional environments. Nowhere did the FDA conclude that the ReWalk device was actually dangerous. The FDA referred to the study requirement in the context of the ReWalk product being a class II device on de novo review. The text of the registration statement accurately summarizes why the post-market surveillance requirement was imposed. In his opposition, plaintiff chiefly relies on the September 30, 2015 warning letter from the FDA. He notes that the letter was issued because the device's failure to prevent a fall would be reasonably likely to cause serious injury and/or death. Again, however, the FDA never stated that the ReWalk device was dangerous; rather, the letter's language was conditional, warning that a defect could cause serious injury and that further study would help ensure the product's safety. Further Alleged Misstatements in the Registration Statement The complaint also alleges that the registration statement included several statements that were misleading because they failed to disclose the nature of the post-market surveillance study requirement. Specifically, it alleges that the registration statement's representations concerning ReWalk's (1) compelling clinical data, (2) intention to conduct further clinical studies, (3) characterization of the device as a breakthrough product, (4) description of the post-market surveillance study requirement, and (5) discussion of regulatory risks were all materially false. First, the references to compelling clinical data, and to the ReWalk device as a breakthrough product, are mere puffery, at is, generic expressions of corporate optimism that are immaterial as a matter of law. It is well-established that not every unfulfilled expression of corporate optimism, even if characterized as misstatement, can give rise to a genuine issue of materiality under the securities laws. . Next, the reference to ReWalk's intent to conduct further clinical studies is a non-actionable forward-looking statement. The PSLRA provides, with certain limitations, that issuers of securities shall not be liable in any private action based on an untrue or misleading statement of a material fact with respect to any forward-looking statement if the statement is identified as a forward-looking statement, and is accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement or the plaintiff fails to prove that the forward-looking statement if made on behalf of a business entity by or with the approval of an executive officer was made with actual knowledge by that officer that the statement was false or misleading. Here, the statement that ReWalk intended to conduct further clinical studies squarely falls within the statutory safe harbor for forward-looking" statements concerning the plans and objectives of management for future operations. It did not rely on any representations of present facts. Finally, as to the allegedly inadequate description of the post-market surveillance study requirement and the regulatory risks, the claim likewise fails. Paragraph 94 of the complaint specifically mentions that the FDA imposed such a requirement, and the possible consequences of failing to comply. There is no basis to conclude that the description was inadequate or misleading, particularly since the study had not yet even been designed, much less implemented. Similarly, the claim of inadequate description of regulatory risks was not misleading. Those risks are described in considerable detail at paragraphs 92 and 94 of the complaint; it was not necessary to set out every possible regulatory consequence of every possible contingent event. Accordingly, the motion to dismiss will be granted as to Count One. Count Two: Section 15 Liability Count Two asserts a claim against the individual defendants under Section 15 of the Securities Act, which imposes joint and several liability on persons in control of entities that violate securities laws. However, violations of Section 15 depend on an underlying violation of the Securities Act. Because the complaint fails to state a claim for an underlying violation of the Securities Act, Count Two will be dismissed. Exchange Act Claims The Defendants contend that lead plaintiff Yan lacks standing to assert the Exchange Act claims because he purchased his shares after the relevant statements were made and therefore could not have relied on the alleged misstatements. That argument, however, is undercut by the manner in which plaintiff structured his complaint. The complaint clearly alleges that the Securities Act claims are based on defendants' failure to disclose the reason the FDA required the post-market surveillance study, and that the Exchange Act claims are based on ReWalk's failure to disclose its difficulties in meeting that requirement. And, it states that plaintiff disclaims any reliance upon the Exchange Act allegations or incorporation of these allegations in his Securities Act claims. There is also authority holding that a lead plaintiff in an action subject to the PSLRA need not have standing to bring every available claim under the securities laws. Because the PSLRA mandates that courts must choose a party who has, among other things, the largest financial stake in the outcome of the case, it is inevitable that, in some cases, the lead plaintiff will not have standing to sue on every claim. The alternative would require the Court to cobble together a lead plaintiff group that has standing to sue on all possible causes of action. The motion to dismiss will be denied without prejudice as to Counts Three and Four. Accordingly, the Defendants' motion to dismiss is granted in part as to Counts One and Two, and denied in part without prejudice as to Counts Three and Four. A full-text copy of the District Court's August 23, 2018 Memorandum and Order is available at https://tinyurl.com/yckrjktc from Leagle.com. Qian Deng, individually and on behalf of all others similarly situated & Narbeh Nathan, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jeffrey C. Block -- jeff@blockesq.com -- Block & Leviton LLP. David Hershlikovitz, individually and on behalf of all others similarly situated, Jackie888, Inc., individually and on behalf of all others similarly situated, Michael C. Kemmerling, individually and on behalf of all others similarly situated & Paul Sislin, individually and on behalf of all others similarly situated, Plaintiffs, represented by Jason M. Leviton -- Jason@blockesq.com -- Block & Leviton LLP &Jeffrey C. Block , Block & Leviton LLP. ReWalk Robotics Ltd., Larry Jasinski, Wayne B. Weisman & Glenn Muir, Defendants, represented by Douglas P. Baumstein -- dbaumstein@whitecase.com -- White & Case, LLP, pro hac vice, Susan L. Grace -- susan.grace@whitecase.com -- White & Case LLP, pro hac vice & Samuel R. Feldman -- susan.grace@whitecase.com -- White & Case, LLP. Ami Kraft, Amit Goffer, Jeff Dykan, Hadar Ron, Asaf Shinar, Yasushi Ichiki, Aryeh Dan & Kevin Hershberger, Defendants, represented by Susan L. Grace , White & Case LLP, pro hac vice, Douglas P. Baumstein -- dbaumstein@whitecase.com -- White & Case, LLP & Samuel R. Feldman , White & Case, LLP. RYZE CLAIM: Fails to Pay Overtime Wages, Templar Suit Says ---------------------------------------------------------- Katia Templar, individually and on behalf of others similarly situated, Plaintiff, v. Ryze Claim Solutions LLC, Defendants, Case No. 18-cv-01485, (M.D. Fla., June 20, 2018), seeks to recover overtime pay, monetary damages, liquidated damages and reasonable attorneys' fees and costs as a result of willful violation of the Fair Labor Standards. Ryze is an insurance claims adjuster where Templar worked as a claims adjuster. She claims to be misclassified as an independent contractor thus denied overtime pay for hours rendered in excess of 40 per week. [BN] Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, P.A. 191 Peachtree Street, N.E., Suite 4200 Post Office Box 57007 Atlanta, GA 30343-1007 Tel: (404) 965-8811 Facsimile: (404) 496-7405 Email: CLeach@forthepeople.com - and - Richard Celler, Esq. RICHARD CELLER LEGAL, P.A 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 Email: richard@floridaovertimelawyer.com SANDRIDGE ENERGY: West & Hopson Amended Suit Underway in Oklahoma ----------------------------------------------------------------- SandRidge Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend against an amended class action lawsuit filed by Lisa West and Stormy Hopson. On October 14, 2016, Lisa West and Stormy Hopson filed an amended class action complaint in the United States District Court for the Western District of Oklahoma against SandRidge Exploration and Production, LLC, among other defendants. In their amended complaint, plaintiffs asserted various tort claims seeking relief for damages, including the reimbursement of past and future earthquake insurance premiums, resulting from seismic activity allegedly caused by the defendants' operation of wastewater disposal wells. The court dismissed the plaintiffs' amended complaint on May 12, 2017, but permitted the plaintiffs to file a second amended complaint. On July 18, 2017, the plaintiffs filed a second amended class action complaint making allegations substantially similar to those contained in the amended complaint that was previously dismissed. SandRidge Energy said, "An estimate of reasonably possible losses associated with this action cannot be made at this time; therefore, the Company has not established any reserves relating to this action." SandRidge Energy, Inc. engages in the exploration, development, and production of oil, natural gas, and natural gas liquids primarily in the Mid-Continent and North Park Basin of the United States. The company is based in Oklahoma City, Oklahoma. SANTA BARBARA, CA: Fails to Pay Proper Wages, Griguoili et al. Say ------------------------------------------------------------------ RICHARD GRIGUOLI; DAVID AGUAILAR; ASHLAN ALLDREDGE; BRIAN BAXTER; GIBLERT CASH; JEREMY DENTON; PHIL FAULDING; KELL HARDIN; ROBERT HAZEL; KEVIN HOKOM; WILLIAM KAVANAUGH; ANDREW LEE; BRANDON PAIGE; TIA R. RODRIGUEZ; ROY SEGOVIA; ISAAC SIEGEL; KATHLEEN SIZEMORE; ROLAND T. SMITH; PAUL SPINALE; ADRIAN TOPETE; BRIAN WALSH; DANIEL J. WARREN; and CHRIS WOODCOCK, Plaintiffs v. CITY OF SANTA BARBARA, and DOES 1 THROUGH 10, inclusive, Defendants, Case No. 2:18-cv-06593-MRW (C.D. Cal., Jul. 31, 2018) is an action against the Defendant to recover unpaid overtime compensation under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendant as a non-exempt rank and file employees. Santa Barbara is a city on the central California coast, with the Santa Ynez Mountains as dramatic backdrop. Downtown, Mediterranean-style white stucco buildings with red-tile roofs reflect the city’s Spanish colonial heritage. [BN] The Plaintiff is represented by: Michael A. McGill, Esq. ADAMS FERRONE & FERRONE 4333 Park Terrace Drive, Suite 200 Westlake Village, CA 91361 Telephone: (805) 373-5900 Facsimile: (818) 874-1382 E-mail: mmcgill@adamsferrone.com SAUCEY INC: Cole Labor Suit Removed to C.D. Calif. -------------------------------------------------- The lawsuit titled Mervyn Cole, on behalf of himself and all others similarly situated v. Saucey Inc., Case No. BC707895, was removed on August 31, 2018, from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:18-cv-07655 to the proceeding. The lawsuit arises from labor-related issues. Saucey, Inc., operates an electronic platform for the purpose of connecting consumers to chosen partners to engage in the sale, service, delivery, and/or transportation delivery of beers, wines, and spirits. The Company delivers alcohol in Los Angeles, San Francisco, San Diego, and Chicago. The Plaintiff appears pro se.[BN] SECURITY CREDIT: Huspon Sues Over Alleged FDCPA Violation --------------------------------------------------------- A class action lawsuit has been filed against Security Credit Systems, Inc. The case is captioned as TREVA HUSPON, individually and on behalf of all others similarly situated v. SECURITY CREDIT SYSTEMS, INC., Case No. 1:18-cv-01169-STA-egb (W.D. Tenn., August 31, 2018). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Security Credit Systems Inc. was founded in 1983. The Company's line of business includes collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue Asbury Park, NJ 07712 Telephone: (845) 367-7146 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com SELECT PORTFOLIO: Williams Files Suit in Illinois Over FCRA Breach ------------------------------------------------------------------- Glenn Williams has filed a class action lawsuit against Select Portfolio Servicing, Inc., Equifax Information Services, LLC, Experian Information Solutions, Inc. and Transunion LLC. The case is styled as Glenn Williams, individually, and on behalf of all others similarly situated and Kathy Freeman, individually, and on behalf of all others similarly situated v. Select Portfolio Servicing, Inc., Equifax Information Services, LLC, Experian Information Solutions, Inc. and Transunion LLC, Case No. 1:18-cv-06015 (N.D. Ill., August 31, 2018). The Plaintiffs accuse the Defendants of violating the Fair Credit Reporting Act. Select Portfolio Servicing, Inc., operates as a mortgage servicing company. Select Portfolio specializes in the servicing of single-family residential mortgage loans. Equifax Information Services LLC collects and reports consumer information to financial institutions. Experian Information Solutions, Inc., an information services company, provides information, analytical, and marketing services to organizations and consumers to manage risk and reward of commercial and financial decisions. TransUnion LLC operates as a credit reporting agency that provides data/insights and information to help consumers and businesses make informed decisions.[BN] The Plaintiffs are represented by: Joseph Scott Davidson, Esq. Mohammed Omar Badwan, Esq. SULAIMAN LAW GROUP, LTD. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: (630) 575-8181 E-mail: jdavidson@sulaimanlaw.com mbadwan@sulaimanlaw.com SIDHDHY VINAYAK: Faces Mercer Suit in S.D. New York --------------------------------------------------- STACEY MERCER, individually and on behalf of all others similarly situated, Plaintiff v. SIDHDHY VINAYAK CORP., Defendant, Case No. 1:18-cv-07024-GBD (S.D.N.Y., Aug. 6, 2018) alleges violation of the Americans with Disabilities Act. The case is assigned to Judge George B Daniels. Sidhdhy Vinayak Corp. is a company engaged in the business as Exporter, Importer and supplier of food products. [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 SIERRA ONCOLOGY: Appeal in New York Class Action Still Pending -------------------------------------------------------------- An appeal by plaintiffs in a class action lawsuit involving Sierra Oncology, Inc. remains pending, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018. On November 9, 2016, a purported securities class action lawsuit was filed in the United States District Court for the Southern District of New York against the Company and certain of its executive officers (the New York Lawsuit). The New York Lawsuit was brought by purported stockholders of the Company seeking to represent a class consisting of stockholders who purchased stock between July 15, 2015 and June 6, 2016. The New York Lawsuit asserts claims under Sections 10(b) and 20(a) of the Exchange Act and seeks unspecified damages and other relief. On March 13, 2018, the United States District Court for the Southern District of New York granted the defendants' motion to dismiss and entered a final judgment dismissing the New York Lawsuit with prejudice. Plaintiffs have filed a notice of appeal. Sierra Oncology said "The Company believes that the claims in the New York Lawsuit are without merit and intends to defend the lawsuit vigorously. It is possible that additional similar lawsuits could be filed. Due to the early stage of the litigation, the Company is unable to predict the outcome of this matter. However, at this point in time, the Company does not expect the outcome of these claims will have a material impact on its consolidated financial statements." No further updates were provided in the Company's SEC report. Sierra Oncology, Inc., a clinical stage drug development company, researches, develops, and commercializes DNA Damage Response (DDR) therapeutics for the treatment of patients with cancer in the United States and internationally. Sierra Oncology, Inc. was founded in 2003 and is headquartered in Vancouver, Canada. SIERRA ONCOLOGY: Parties in California Suits Reach Settlement ------------------------------------------------------------- Sierra Oncology, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that all parties reached a mutually acceptable resolution to the California class action lawsuits by way of a mediated settlement. On November 18, 2016, a purported securities class action lawsuit was filed in the Superior Court of the State of California for the County of San Mateo against the Company, certain of its executive officers and directors, and the underwriters for the Company's initial public offering of its common stock. On February 9, 2017, a substantially identical putative class action suit was filed in the Superior Court of the State of California for the County of San Mateo asserting the same claims on behalf of the same putative class (the two lawsuits together, the California Lawsuits). The California Lawsuits were brought by purported stockholders of the Company seeking to represent a class consisting of stockholders who purchased stock pursuant to and/or traceable to the Company's Registration Statement on Form S-1. The lawsuits assert claims under Sections 11 and 15 of the Exchange Act and seek unspecified damages and other relief. On August 1, 2018, all parties reached a mutually acceptable resolution to the California Lawsuits by way of a mediated settlement, which is subject to the parties' execution of final settlement documents and the approval of the court. Sierra Oncology said, "While the Company believes that the claims are without merit, it believes settlement will reduce the ultimate cost and distraction of further litigation. The Company does not expect its portion of the settlement amount to have a material impact on its consolidated financial statements." Sierra Oncology, Inc., a clinical stage drug development company, researches, develops, and commercializes DNA Damage Response (DDR) therapeutics for the treatment of patients with cancer in the United States and internationally. Sierra Oncology, Inc. was founded in 2003 and is headquartered in Vancouver, Canada. SPEEDY CASH: Faces Delisle Suit in Calif. Dist. Ct. --------------------------------------------------- A class action lawsuit has been filed against Speedy Cash. The case is captioned as Cindy Delisle, Individually and On Behalf of All Others Similarly Situated v. Speedy Cash, Case No. 3:18-cv-02042-GPC-RBB (S.D. Cal., August 31, 2018). The nature of suit is stated as "Personal Property: Other." Speedy Cash provides cash services. The Company offers loans, payday, and title pawn cash advances.[BN] The Plaintiff is represented by: Ahren A. Tiller, Esq. BLC LAW CENTER, APC 1230 Columbia Street, Suite 1100 San Diego, CA 92101 Telephone: (619) 894-8831 Facsimile: (866) 444-7026 E-mail: ahren.tiller@blc-sd.com SS&C TECHNOLOGIES: Unit Faces Ferguson Class Action --------------------------------------------------- SS&C Technologies Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that DST Systems, Inc. is facing a putative class action lawsuit entitled, Ferguson, et al v. Ruane Cunniff & Goldfarb Inc, et al. A putative class action suit was filed against DST Systems, Inc. (DST), the Compensation Committee of DST's Board of Directors, the Advisory Committee of DST Systems, Inc. 401(k) Profit Sharing Plan (the "Plan") and certain of DST's present and/or former officers and directors, alleging breach of fiduciary duties and other violations of the Employee Retirement Income Security Act. On September 1, 2017, a complaint was filed purportedly on behalf of the Plan in the Southern District of New York, captioned Ferguson, et al v. Ruane Cunniff & Goldfarb Inc, et al., naming as defendants the DST, the Compensation Committee of DST's Board of Directors, the Advisory Committee of the Plan and certain of DST's present and/or former officers and directors. SS&C Technologies said, "The Company intends to defend this case vigorously, and, because it is still in its preliminary stages, has not yet determined what effect this lawsuit will have, if any, on its financial position or results of operations." SS&C Technologies Holdings, Inc. provides software products and software-enabled services to financial services providers. Its products and services allow its clients to automate and integrate front-office functions, such as trading and modeling; middle-office functions, including portfolio management and reporting; and back-office functions comprising accounting, performance measurement, reconciliation, reporting, processing, and clearing. SS&C Technologies Holdings, Inc. was founded in 1986 and is headquartered in Windsor, Connecticut. STEMLINE THERAPEUTICS: 2nd Cir. Orders Withdrawal of Appeal ----------------------------------------------------------- Stemline Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the U.S. Second Circuit Court of Appeals has directed the withdrawal of the appeal in a consolidated shareholder lawsuit in the U.S. District Court for the Southern District of New York, pursuant to Local Rule 42.1. On March 15, 2018, the United States District Court for the Southern District of New York granted a motion to dismiss in its entirety a consolidated shareholder action against the Company, its directors, certain of its officers, and the lead underwriter. On April 11, 2018, Plaintiffs filed a notice of appeal, and on July 13, 2018, the Second Circuit Court of Appeals ordered a withdrawal of the appeal pursuant to Local Rule 42.1. This matter originated from class action lawsuits filed in February 2017 alleging violations of the Exchange Act and Rule 10b-5 promulgated thereunder and violations of Section 11 and 15 of the Securities Act of 1933, or the Securities Act, arising from the Company's January 2017 follow-on public offering. Stemline Therapeutics, Inc., a clinical stage biopharmaceutical company, focuses on the discovery, acquisition, development, and commercialization of proprietary oncology therapeutics in the United States and internationally. Stemline Therapeutics, Inc. was founded in 2003 and is based in New York, New York. SYNACOR INC: Continues to Defend New York Securities Class Suit --------------------------------------------------------------- Synacor, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the company continues to defend itself in a putative securities class action lawsuit in the U.S. District Court for the Southern District of New York. The Company and two of its executive officers were recently named as defendants in a putative securities class action lawsuit filed April 4, 2018, in the United States District Court for the Southern District of New York. The complaint makes various allegations regarding statements related to the contractual arrangement between the Company and AT&T Inc. ("AT&T"), and the effect of that arrangement on the Company's revenue. The complaint seeks unspecified damages, interest and other costs. The court appointed a lead plaintiff and approved plaintiff's selection of lead counsel on July 6, 2018. On August 2, 2018, plaintiffs filed an amended complaint asserting the same claims arising from similar allegations as the first complaint. The Company's pre-motion letter regarding its anticipated motion to dismiss the amended complaint was due on August 17, 2018. The Company and its officers dispute these claims and will defend vigorously against any allegations of wrongdoing. Synacor, Inc. operates as a technology development, multiplatform services, and revenue partner for video, Internet, and communications providers; and device manufacturers, governments, and enterprises. Synacor, Inc. was founded in 1998 and is headquartered in Buffalo, New York. TARGET CORP: Ference Appeals Ruling in Meta Suit to 6th Cir. ------------------------------------------------------------ Plaintiff Sheila Ference filed an appeal from a court ruling in the lawsuit entitled Christopher Meta, et al. v. Target Corporation, et al., Case No. 4:14-cv-00832, in the U.S. District Court for the Northern District of Ohio at Youngstown. As previously reported in the Class Action Reporter, the Plaintiff asserts that he began purchasing the red, toddler wipes from a Target store in Boardman, Ohio, in July 2011. Mr. Meta alleges that the Up & Up brand of flushable wipes caused the problems when they caked together in his pipes and septic system after flushing, despite representations on the product packaging and on Target's Web site that the wipes are flushable, break apart after flushing, and are safe for sewers and septic systems. Based on these allegations, Mr. Meta seeks certification of a class consisting of all persons residing in the State of Ohio, who purchased Target-Brand 'up&up(R)' 'flushable' moist tissue wipes and toddler and family wipes. The appellate case is captioned as Christopher Meta, et al. v. Target Corporation, et al., Case No. 18-3828, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiff-Appellee CHRISTOPHER META, On behalf of himself and all others similarly situated, is represented by: Jeremy Tor, Esq. SPANGENBERG, SHIBLEY & LIBER LLP 1001 Lakeside Avenue, E., Suite 1700 Cleveland, OH 44114 Telephone: (216) 696-3232 E-mail: Jtor@spanglaw.com - and - Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street, N.W., Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 E-mail: hzavareei@tzlegal.com Plaintiff-Appellant SHEILA FERENCE is represented by: Simina Vourlis, Esq. THE LAW OFFICES OF SIMINA VOURLIS 1689 W. Third Avenue Columbus, OH 43212-6710 Telephone: (614) 487-5900 E-mail: svourlis@vourlislaw.com Defendants-Appellees TARGET CORPORATION and NICE-PAK PRODUCTS, INC., are represented by: John Q. Lewis, Esq. Jennifer L. Mesko, Esq. TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 Telephone: (216) 592-5000 Facsimile: (216) 592-5009 E-mail: john.lewis@tuckerellis.com jennifer.mesko@tuckerellis.com TRUECAR INC: Bid for Class Certification in Rose Suit Denied ------------------------------------------------------------ TrueCar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that plaintiff's motion for class certification in the putative class action lawsuit filed by Gordon Rose has been denied. On December 23, 2015, the Company was named as a defendant in a putative class action lawsuit filed by Gordon Rose in the California Superior Court for the County of Los Angeles. The complaint asserted claims for unjust enrichment, violation of the California Consumer Legal Remedies Act and violation of the California Business and Professions Code, based principally on factual allegations similar to those asserted in the NY Lanham Act Litigation and the CNCDA Litigation. The complaint sought an award of unspecified damages, interest, disgorgement, injunctive relief and attorney's fees. In the complaint, the plaintiff sought to represent a class of California consumers defined as "all California consumers who purchased an automobile by using TrueCar, Inc.'s price certificate during the applicable statute of limitations." On January 12, 2016, the court entered an order staying all proceedings in the case pending an initial status conference, which was previously scheduled for April 13, 2016. On March 16, 2016, the case was reassigned to a different judge. As a result of that reassignment, the initial status conference was rescheduled for and held on May 26, 2016. By stipulation, the stay of discovery was continued until a second status conference, which was scheduled for October 12, 2016. On July 13, 2016, the plaintiff amended his complaint. The amended complaint continues to assert claims for unjust enrichment, violation of the California Consumer Legal Remedies Act and violation of the California Business and Professions Code. The amended complaint retains the same proposed class definition as the initial complaint. Like the initial complaint, the amended complaint seeks an award of unspecified damages, punitive and exemplary damages, interest, disgorgement, injunctive relief and attorney's fees. On September 12, 2016, the Company filed a demurrer to the amended complaint. On October 12, 2016, the court heard oral argument on the demurrer. On October 13, 2016, the court granted in part and denied in part the Company's demurrer to the amended complaint, dismissing the unjust enrichment claim but declining to dismiss the balance of the claims at the demurrer stage of the litigation. At a status conference held on January 26, 2017, the court ruled that discovery could then proceed regarding matters related to class certification only. At a status conference held on July 25, 2017, the court set a deadline of January 8, 2018 for the filing of the plaintiff's motion for class certification and provided that discovery could continue to proceed regarding matters related to class certification only at that time. Subsequently, the court extended to February 7, 2018 the deadline for the filing of plaintiff's motion for class certification and for the completion of related discovery. On February 7, 2018, the plaintiff filed a motion for class certification. The court held a hearing on the plaintiff's class certification motion on July 12, 2018 and denied the motion on July 27, 2018. TrueCar said, "The Company believes that the amended complaint is without merit, and it intends to vigorously defend itself in this matter. The Company has not recorded an accrual related to this matter as of June 30, 2018 as the Company does not believe a loss is probable or reasonably estimable." TrueCar, Inc., together with its subsidiaries, operates as an Internet-based information, technology, and communication services company in the United States. It operates its platform on the TrueCar Website and mobile applications. TrueCar, Inc. was founded in 2005 and is headquartered in Santa Monica, California. TRUECAR INC: Oklahoma Police Pension Fund Named Lead Plaintiff -------------------------------------------------------------- TrueCar, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the court has appointed the Oklahoma Police Pension and Retirement Fund as lead plaintiff in the putative securities class action suit initially filed by Leon Milbeck. On March 30, 2018, the Company and one of its former officers were named as defendants in a putative securities class action filed by Leon Milbeck in the U.S. District Court for the Central District of California. The complaint seeks an award of unspecified damages, interest, attorney's fees and equitable relief based on allegations that the defendants made false or misleading statements about our business, operations, prospects and performance during a purported class period of February 16, 2017 through November 6, 2017 in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On June 27, 2018, the court appointed the Oklahoma Police Pension and Retirement Fund as lead plaintiff. The Company believes that the complaint is without merit and intends to vigorously defend itself in this matter. TrueCar, Inc., together with its subsidiaries, operates as an Internet-based information, technology, and communication services company in the United States. It operates its platform on the TrueCar Website and mobile applications. TrueCar, Inc. was founded in 2005 and is headquartered in Santa Monica, California. UBER TECH: Waxler Sues Over Missed Breaks, Missing Paystubs ----------------------------------------------------------- Geoffrey Waxler, on behalf of himself and others similarly situated, Plaintiffs, v. Uber technologies, Inc., Defendant, Case No. CGC-18-567423 (Cal. Super., June 20, 2018), seeks to recover, among other things, unpaid premium wages for meal breaks that were missed, short, or late, wages due to discharged or quitting employees, penalties for failure to maintain accurate records and to provide accurate itemized wage statements, and interest, attorneys' fees, costs and expenses under California Labor Code, Unfair Competition Law of the California Business and Professions Code and applicable Industrial Welfare Commission Wage Orders. Uber Technologies, Inc. is a Delaware corporation headquartered at 1455 Market Street, San Francisco, California, 94103. Uber allegedly misclassifies its drivers as contractors, not employees, thus denying them basic employee benefits minimum wages, overtime pay, workers' compensation. Benefits to include unemployment insurance, income tax withholding, the ability to participate in Uber's retirement plan(s), meal and rest breaks. Waxler is an Uber driver who provide on-demand transportation services for Uber. [BN]. The Plaintiff is represented by: David R. Markham, Esq. Michael J. Morphew, Esq. Maggie K. Realin, Esq. THE MARKHAM LAW FIRM 750 B Street, Suite 1950 San Diego, CA 92101 Tel: (619) 399-3995 Fax: (619) 615-2067 Email: dmarkham@markham-law.com mrealin@markham-law.com mmorphew@markham-law.com - and - Russel Myrick, Esq. THE RDM LEGAL GROUP 7979 Ivanhoe A venue, Suite 400 La Jolla, CA 92037 Tel: (888) 482-8266 Fax: (858) 244-7930 Email: russel@rdmlg.com UNIFIED WINDOW: Picon Sues Over Disabilities Act Violations ----------------------------------------------------------- A class action lawsuit has been filed against Unified Window Systems Inc. The case is titled as YELITZA PICON AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED v. UNIFIED WINDOW SYSTEMS INC., Case No. 1:18-cv-07970 (S.D.N.Y., August 31, 2018). The lawsuit is brought over alleged violations of the Americans with Disabilities Act. Unified Window Systems Inc. was founded in 1989. The Company's line of business includes the construction of single-family homes.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street, 3rd Floor New York, NY, 10014-5856 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com VALENTINE & KEBARTAS: Vintila Disputes Collection Letter -------------------------------------------------------- Theodore Vintila, individually and on behalf of all others similarly situated, Plaintiff, v. Valentine & Kebartas, LLC and LVNV Funding, LLC, Defendants, Case No. 18-cv-02650, (S.D. Ind., August 27, 2018), seeks actual and statutory damages, costs and reasonable attorneys' fees under the Fair Debt Collection Practices Act. Defendants operate a nationwide debt collection business and attempts to collect debts from consumers in virtually every state, including consumers in the State of Indiana. They attempted to collect a defaulted consumer debt, which was allegedly owed for a Capital One account. However, said letter failed to state effectively the name of the creditor to whom the debt was then owed.[BN] Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Carissa K. Rasch, Esq. Angie K. Robertson, Esq PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Tel: (708) 974-2900 Fax: (708) 974-2907 Email: davephilipps@aol.com mephilipps@aol.com carissa@philippslegal.com angie@philippslegal.com - and - John T. Steinkamp, Esq. 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Tel: (317) 780-8300 Fax: (317) 217-1320 Email: steinkamplaw@yahoo.com VANGUARD NATURAL: Dec. 14 Final Approval Hearing in Hurwitz Deal ---------------------------------------------------------------- Vanguard Natural Resources, Inc., said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that the court in Robert Hurwitz v. Eric Mullins et al., has scheduled a hearing to consider final approval of the settlement on December 14, 2018. In June and July 2015, purported unitholders of LRR Energy, L.P. ("LRE") filed four lawsuits challenging Vanguard's 2015 merger with LRE (the "LRE Merger"). These lawsuits were styled (a) Barry Miller v. LRR Energy, L.P. et al., Case No. 11087-VCG, in the Court of Chancery of the State of Delaware; (b) Christopher Tiberio v. Eric Mullins et al., Cause No. 2015-39864, in the District Court of Harris County, Texas, 334th Judicial District; (c) Eddie Hammond v. Eric Mullins et al., Cause No. 2015-40154, in the District Court of Harris County, Texas, 295th Judicial District; and (d) Ronald Krieger v. LRR Energy, L.P. et al., Civil Action No. 4:15-cv-2017, in the United States District Court for the Southern District of Texas, Houston Division. These lawsuits have been voluntarily dismissed or nonsuited. On August 18, 2015, another purported LRE unitholder (the "LRE Plaintiff") filed a putative class action lawsuit in connection with the LRE Merger. This lawsuit is styled Robert Hurwitz v. Eric Mullins et al., Civil Action No. 1:15-cv-00711-MAK, in the United States District Court for the District of Delaware (the "LRE Lawsuit"). On June 22, 2016, the LRE Plaintiff filed his Amended Class Action Complaint (the "Amended LRE Complaint") against LRE, the members of the board of directors of the general partner of LRE, Vanguard, Lighthouse Merger Sub, LLC, and the members of Vanguard's board of directors (the "LRE Lawsuit Defendants"). In the Amended LRE Complaint, the LRE Plaintiff alleges multiple causes of action under the Securities Act and Exchange Act related to the registration statement and proxy statement filed with the SEC in connection with the LRE Merger (the "LRE Proxy"). In general, the LRE Plaintiff alleges that the LRE Proxy failed, among other things, to disclose allegedly material details concerning Vanguard's (x) debt obligations and (y) ability to maintain distributions to unitholders. Based on these allegations, the LRE Plaintiff sought, among other relief, to rescind the LRE Merger, and an award of damages, attorneys' fees, and costs. On January 2, 2018, the court in the LRE Lawsuit certified a class of plaintiffs that includes all persons or entities holding LRE common units as of August 28, 2015, through the close of the LRE Merger on October 5, 2015, but excluding the LRE Lawsuit Defendants and certain related persons and entities (the "LRE Class"). The window for potential members of the LRE Class to request exclusion from the LRE Class closed on May 29, 2018, with 22 LRE unitholders timely requesting exclusion. On June 27, 2018, the LRE Lawsuit Defendants and the LRE Plaintiff, on his own behalf and on behalf of the LRE Class, entered into a stipulation of settlement (the "Stipulation"). As amended on July 11, 2018, and on July 25, 2018, the Stipulation provides that the LRE Class will settle and release all claims against the LRE Lawsuit Defendants relating to the LRE Merger, in exchange for an aggregate settlement payment of $8.0 million. Of that settlement amount, Vanguard will contribute $0.7 million, with the remainder to be paid by the insurers of the LRE Lawsuit Defendants. The LRE Lawsuit Defendants continue to deny all allegations of liability or wrongdoing. On July 18, 2018, the court held a hearing to consider whether to preliminarily approve the proposed settlement. In response to matters raised at that hearing, on July 25, 2018, the LRE Lawsuit Defendants and the LRE Plaintiff amended the Stipulation and submitted to the court a revised notice of proposed settlement, proof of claim and release form, and summary notice of proposed settlement. On July 26, 2018, the court entered an order preliminarily approving the settlement as set forth in the amended Stipulation. The court has scheduled a hearing to consider final approval of the settlement on December 14, 2018. At that hearing, the court will determine, among other things, whether the proposed settlement is fair and reasonable to the LRE Class and should be approved, thereby forever barring the LRE Class (other than potential members excluded therefrom) from asserting any of the released claims against the LRE Lawsuit Defendants. Vanguard Natural Resources, Inc., an independent exploration and production company, focuses on the production and development of oil and natural gas properties in the United States. The company was founded in 2006 and is headquartered in Houston, Texas. VERMYCK LLC: Gomes Suit Seeks Damages for Rent Overcharges, Fees ---------------------------------------------------------------- Jacobus Gomes and Kathryn Gomes, on behalf of themselves and all others similarly situated, Plaintiffs, v. Vermyck LLC, Defendant, Case No. 713219/2018 (N.Y. Sup., August 27, 2018), seeks money damages, disgorgement of profits from fees earned as a direct and proximate result of rent overcharges and fees, costs and disbursements incurred in accordance with the Rent Stabilization Law and the Rent Stabilization Code. Jacobus and Katherine Gomes reside in Apartment 4G at 28-30 34th Street which Vermyck owns and operates. The Defendants allegedly failed to provide their tenants with rent-stabilized leases as a condition of receiving the tax benefits under the Rent Stabilization Code. [BN] Plaintiff is represented by: Lucas A. Ferrara, Esq. Jarred I. Kassenoff, Esq. Roger A. Sachar Jr., Esq. NEWMAN FERRARA LLP 1250 Broadway, 27th Floor New York, NY 10001 Tel: (212) 619-5400 Email: lferrara@nfllp.com ikassenoff@nfllp.com rsachar@nfllp.com WEBCOLLEX LLC: Hightower Alleges Wrongful Debt Collections ---------------------------------------------------------- DUANE HIGHTOWER, individually and on behalf of all others similarly situated, Plaintiff v. WEBCOLLEX, LLC, d/b/a CKS FINANCIAL OLIPHANT FINANCIAL, LLC; and JOHN DOES 1-25, Case No. 3:18-cv-12457-FLW-LHG (D.N.J., Aug. 5, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Freda L. Wolfson, and referred to Magistrate Judge Lois H. Goodman. WEBCOLLEX, LLC, d/b/a CKS Financial Oliphant Financial, LLC is engaged in the business as debt collector. [BN] The case is represented by: Ben A. Kaplan, Esq. 280 Prospect Ave. 6G6G Hackensack, NJ 07601 Telephone: (201) 803-6611 Facsimile: (866) 596-4973 E-mail: benkap232@aol.com WESTPORT HOMES: Compelled to Produce Docs in Coleman Suit --------------------------------------------------------- In the case, JAMAL COLEMAN, et al., Movants, v. WESTPORT HOMES, INC., Respondent, Civil Action No. 2:18-mc-31 (S.D. Ohio), Magistrate Judge Chelsey M. Vascura of the U.S. District Court for the Southern District of Ohio, Eastern Division, granted the motion filed ants, Jamal Coleman and Sheena Coleman, seeking an Order compelling Respondent Westport to produce documents in response to a Nov. 29, 2017 subpoena issued in the underlying action, Jamal Coleman, et al. v. Weyerhaeuser Company, Case No. 1:17-cv-01093-VAC-SRF, pending in the U.S. District Court for the District of Delaware. On Aug. 4, 2017, the Movants initiated the Underlying Action by filing a class action complaint against Weyerhaeuser. Weyerhaeuser produces and sells joists for installation in homes and other structures. The Movants allege that Weyerhaeuser produced and sold TJI Joists with Flak Jacket Protection, a proprietary, factory-applied coating designed to enhance the Joists' fire resistance. They further allege that that the Joists are defective because the Flak Jacket Protection emits toxic formaldehyde fumes to extents that render the homes uninhabitable. According to them, the defective Joists affected thousands of homes around the country. They Movants assert claims against Weyerhaeuser in the Underlying Action for breach of express warranty, breach of implied warranty, violations of the Magnuson-Moss Warranty Act, negligence, failure to warn, violations of the Delaware Consumer Fraud Act, and unjust enrichment, and they further seek relief under the Declaratory Judgment Act. The Movants contend that they have identified at least 35 builders who were involved in the construction of new homes affected by the defective Joists, including Westport. According to them, Westport built and sold approximately 100 new homes containing the defective Joists. As such, they contend that Westport uniquely possesses relevant and discoverable information concerning the impact the Joists had on home value and marketability, as well as identifying information regarding class members. Movants served Westport with the Subpoena on Nov. 29, 2017, requesting production of 18 categories of documents. Following Westport's objections and various meet-and-confer efforts, the parties were able to reach agreement with respect to 10 out of the 18 categories of documents, whether through Westport's production of documents or Movants' agreement to forego certain requests. In briefing related to the instant dispute, the Movants agreed to forego their request for an additional four categories of documents, leaving the Court to resolve the parties' dispute over whether Westport must produce the following remaining four categories of documents: (i) all documents related to diminution in value of homes due to the defective Joists; (ii) purchase and sale agreements for all homes in the same development as affected homes, along with document sufficient to determine which homes have similar layouts or features and which homes did or did not have the Joists; (iii) documents sufficient to show how long homes with defective Joist remained on the market in comparison with homes that did not have defective Joists; and (iv) all disclosures to buyers and realtors regarding the defective Joists, formaldehyde, or remediation, as well as all related communications. The Movants maintain that the foregoing documents are relevant to the Underlying Action to determine how the Joists affected the value and marketability of homes containing the Joists. Westport counters that as a custom home builder it does not possess many of the documents the Movants request, and insists that the remaining documents are irrelevant to the Underlying Action. It maintains, the only documents it possesses that could be relevant to the Underlying Action are purchase and sales documents related to the Five Failed Closing Homes, and it has already produced those documents, albeit in redacted form. In addition, Westport argues that as a custom home builder, the majority of the homes it constructs are built for a specific buyer, not as inventory homes to place on the market, such that it has no relevant information concerning how long Affected Homes remained on the market. Westport acknowledges that it constructs a small number of inventory homes, but maintains that only four of its Select Inventory Homes contained defective Joists, and the Joists had no effect on the price or marketability of those homes. Thus, documents related to its Select Inventory Homes are irrelevant, according to Westport. Judge Vascura finds the Movant's Motion to be well taken. She directed the parties to meet and confer to reach agreement as to the protection of Westport's proprietary and trade secret information, consistent with the terms of the Stipulated Protective Order in the Underlying Action. She expects that the parties will be able to reach agreement using the confidentiality designations provided in the Stipulated Protective Order. Once agreement is reached, Westport is ordered to produce all documents related to the diminution in value of homes due to the defective Joists, including unredacted versions of the documents it has already produced relating to the Five Failed Closing Homes, as well as unredacted early and final purchase and sales documents related to all remaining Affected Homes. The Judge odered Westport to produce purchase contracts for all homes located in a development with an Affected Home, along with documents sufficient to determine which homes have similar layouts or features and which homes have defective Joists, from one year prior to the date the defect in the Joists was first disclosed to Westport through one year after the date Westport closed on the sale of the last Affected Home. Next, the Judge ordered Westport to produce documents sufficient to show how long homes with defective Joists remained on the market as compared to homes without defective Joists, including documents sufficient to determine how long affected Select Inventory Homes remained on the market in comparison with similar unaffected Select Inventory Homes. Finally, she ordered Westport to produce copies of all disclosures it provided to actual and prospective buyers and realtors regarding the defective Joists, as well as all related communications. In sum, Judge Vascura granted the Movants' Motion to Compel. She directed the parties to meet and confer in an effort to reach agreement on appropriate confidentiality designations to protect against the improper use or disclosure of Westport's proprietary and trade secret information. She expects that the parties will be able to reach agreement using the confidentiality designations provided in the Stipulated Protective Order in the Underlying Action. Once such agreement is reached, Westport is ordered to produce unredacted versions of the documents falling within the four categories set forth. A full-text copy of the Court's June 27, 2018 Opinion and Order is available at https://is.gd/pdJdIV from Leagle.com. Jamal Coleman & Sheena Coleman, Plaintiffs, represented by Matthew A. Dooley -- MDooley@omdplaw.com -- O'Toole, McLaughlin, Dooley & Pecora, Co. LPA, Joseph C. Hashmall -- jhashmall@bm.net -- Berger & Montague, pro hac vice & Lawrence Deutsch -- ldeutsch@bm.net -- Berger & Montague, P.C., pro hac vice. Westport Homes, Inc., Movant, represented by Hansel H. Rhee -- hansel.rhee@icemiller.com -- Ice Miller LLP. WINDMILL HEALTH: Casillas Files Suit Over Under-filled Snack Food ----------------------------------------------------------------- Miltita Casillas, individually and on behalf of all others similarly situated, Plaintiff, v. Windmill Health Products, LLC and Does 1 through 10, inclusive, Defendants, Case No. 18-cv-05484, (C.D. Cal., June 20, 2018), seeks damages, injunctive relief and any other available legal or equitable remedies for violation of California's Consumer Legal Remedies Act and the Fair Packaging and Labeling Act. Casillas purchased Defendant's Super Greens Organic Greens, Fruit & Vegetable Formula, Delicious Berry flavor product for personal consumption. Plaintiff alleges that the container had more than 50% empty space, or slack-fill. [BN] Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS - A PROFESSIONAL CORPORATION 4100 Newport Place, Ste. 800 Newport Beach, CA 92660 Tel: (949) 706-6464 Fax: (949) 706-6469 Email: sferrell@pacifictrialattorneys.com WINDSTREAM HOLDINGS: Doppelt Class Action Concluded --------------------------------------------------- Windstream Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 9, 2018, for the quarterly period ended June 30, 2018, that parties in the amended Doppelt v. Windstream Holdings, Inc., et al. lawsuit have reached a settlement of all claims that was approved by the court and the case was dismissed. On February 9, 2015, a putative stockholder filed a Shareholder Class Action Complaint in the Delaware Court of Chancery (the "Court"), captioned Doppelt v. Windstream Holdings, Inc., et al., C.A. No. 10629-VCN, against the Company and its board of directors. This complaint was accompanied by a motion for a preliminary injunction seeking to enjoin the spin-off. The Court, ruling from the bench on February 19, 2015, the day before a special meeting of stockholders was scheduled to vote on a reverse stock split and amended governing documents (the "Proposals"), denied plaintiff's motion for a preliminary injunction, reasoning that much of the information sought by plaintiff had been disclosed in public filings available on the United States Securities and Exchange Commission's website, the Windstream Holdings' board of directors was in no way conflicted, and while approval of the Proposals would facilitate the spin-off, approval was not necessary to effect the spin-off. On March 16, 2015, plaintiff, joined by a second putative Windstream stockholder, filed an Amended Shareholder Class Action Complaint alleging breaches of fiduciary duty by the Company and its Board concerning Windstream's disclosures and seeking to rescind the spin-off and unspecified monetary damages. On February 5, 2016, the Court dismissed Windstream as a named party and also dismissed the plaintiffs' demand to rescind the spin-off, but otherwise denied Windstream’s motion to dismiss plaintiffs' claims. On or about January 27, 2017, the plaintiffs filed a motion seeking class certification which the Court granted on April 17, 2017. The parties reached a settlement of all claims that was approved by the court at a hearing on June 20, 2018, and the case was dismissed. Windstream Holdings, Inc. provides network communications and technology solutions in the United States. Its Consumer & Small Business segment offers services, including traditional local and long-distance voice services, and high-speed Internet services; and value-added services, such as security and online back-up. The company was incorporated in 2013 and is based in Little Rock, Arkansas. WISCONSIN: Court Grants Bid for Summary Judgment in Austin Suit --------------------------------------------------------------- In the case, DAVID D. AUSTIN II, on behalf of himself and all others similarly situated, Plaintiff, v. JUDY P. SMITH, EDWARD WALL, REXFORD SMITH, and CATHY A. JESS, Defendants, Case No. 15-cv-525-jdp (W.D. Wis.), Judge James D. Peterson of the U.S. District Court for the Western District of Wisconsin granted summary judgment in the Defendants' favor. Austin, a former prisoner at the Oshkosh Correctional Institution ("OCI"), alleges that the acrylic sheets covering the windows of the cells in certain blocks of OCI cause the cells to be extremely hot and potentially unsafe. OCI is a medium-security correctional institution for adult male inmates. It comprises 12 housing units, each of which houses about 150 to 200 inmates. The S-Unit is a restrictive housing unit; the remaining 11 units house general population inmates and feature various programs, groups, and accommodations. The units also vary in their design and construction. The case concerns two units in particular: R-Unit and W-Unit. R-Unit and W-Unit were designed to be available for use as restrictive housing units if necessary. The cells in both units have steel doors and toilets, allowing the cells to be locked at night. And until recently, the cell windows in both units were covered with acrylic sheets and therefore could not be opened, whereas windows in other units may be opened between May and October. These acrylic coverings are the focus of the suit. Austin was an inmate at OCI from June 2012 to June 2016. During that time, he was housed in several units. He was housed in the R-Unit for two days in 2012 and again from Nov. 21, 2014, to June 2, 2016. On Aug. 19, 2015, he filed a complaint concerning the conditions in the R-Unit cells. The Judge allowed him to proceed on an Eighth Amendment conditions-of-confinement claim and a Fourteenth Amendment equal protection claim based on his allegations that the acrylic plastic coverings caused his cell to be extremely hot and therefore unsafe. Later, after Austin was released from prison and obtained counsel, the Judge allowed him to proceed on Fourteenth Amendment due process claims, too, and he allowed the case to proceed as a class action. The class members are all inmates who were housed in R-Unit between August 19, 2009, and April 30, 2016, or who were housed in W-Unit between Aug. 19, 2009, and Feb. 28, 2016. During this time, Deendant Judy Smith was the warden of OCI, and Defendant Rexford Smith was the Corrections Unit Supervisor of the R-Unit. Defendant Wall was the secretary of the Wisconsin Department of Corrections until Feb. 27, 2016. Defendant Jess is the current secretary of the Department of Corrections. The parties have filed cross-motions for summary judgment. The Defendants have also moved to decertify the class. Judge Peterson finds that courts are not in agreement that discriminating against an inmate for no rational reason -- but not for the inmate's membership in an identifiable group -- violates the inmate's rights under the Equal Protection Clause. Rather, as Judge Wood explained in Del Marcelle, qualified immunity will frequently relieve state actors of the burden of litigation in this area of class-of-one claims: if discretion is broad and the rules are vague, it will be difficult to show both a violation of a constitutional right and the clearly established nature of that right. So regardless whether the Defendants violated Austin's equal protection rights, they are entitled to qualified immunity, and the Judge will grant summary judgment in the Defendants' favor on Austin's equal protection claim. He will deny the Defendants' motion to decertify the class, including Wall's motion to join the state Defendants' briefing, as moot. At the beginning of the case, the Judge expected to get a good explanation of why the windows in R-Unit and W-Unit, but not other units at OCI, were covered with acrylic sheets. He never got that explanation. Wisconsin inmates cannot expect air-conditioned luxury, but neither should they swelter needlessly. He credits prison administration for removing the acrylic sheets, but it should not have taken the lawsuit to prompt that action. He concludes that conditions in R-Unit and W-Unit were not so dangerous that they violated the Constitution. Accordingly, Judge Peterson (i) granted Defendants Judy P. Smith, Rexford Smith, and Cathy A. Jess's motion for summary judgment; 9ii) granted Defendant Edward Wall's motion for summary judgment; (iii) denied the Plaintiff's motion for summary judgment; (iv) denied as moot Defendants Judy P. Smith, Rexford Smith, and Cathy A. Jess's motion for decertification of the class; and (v) denied as moot Defendant Edward Wall's motion to join the state Defendants' brief in reply. The clerk of court is directed to enter judgment in favor of the Defendants and close the case. A full-text copy of the Court's June 27, 2018 Order is available at https://is.gd/EucbHx from Leagle.com. David D. Austin, II, Plaintiff, represented by Thomas J. Nitschke -- tjnitschke@blaisenitschkelaw.com -- Blaise & Nitschke, P.C., Heather Lea Blaise -- hblaise@blaisenitschkelaw.com -- Blaise & Nitschke, P.C. & Lana Bajes Nassar, Blaise & Nitschke, P.C. Judy P. Smith, Warden, Oshkosh Correctional Institution, individually and in her official capacity, Rexford Smith, Unit Manager, R-Unit, Oshkosh Correctional Institution, individually and in his official capacity & Cathy A. Jess, Defendants, represented by Michael David Morris, State of Wisconsin Department of Justice, Gesina S. Carson, Wisconsin Department of Justice & Katherine D. Spitz, Wisconsin Department of Justice. Edward Wall, Secretary, Wisconsin Department of Corrections, individually and in his official capacity, Defendant, represented by Gesina S. Carson, Wisconsin Department of Justice, Katherine D. Spitz, Wisconsin Department of Justice, Samuel C. Hall, Jr., Crivello Carlson, S.C. & Zachary James Flood -- zflood@crivellocarlson.com -- CRIVELLO CARLSON, S.C. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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