/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181015.mbx C L A S S A C T I O N R E P O R T E R Monday, October 15, 2018, Vol. 20, No. 206 Headlines 21ST CENTURY: Motorist Not Entitled to Class Certification 650 PARLIAMENT: Fire Victims Meet with Class Action Lawyers ABBVIE INC: Rubinstein et al. Seek to Certify Class ADTALEM GLOBAL: Bid to Dismiss 3rd Amended Complaint Pending ADTALEM GLOBAL: Bid to Dismiss Refiled Petrizzo Complaint Underway ADTALEM GLOBAL: Bid to Dismiss Versetto Class Suit Underway AIR EVAC: 10th Cir. Affirms Dismissal of Schneberger Suit ALLTRAN FINANCIAL: Further Proceedings in Everhart Case Shelved AMERICAN CUSTOM: Fails to Pay Proper Wages, Crosby Suit Alleges BANDAS LAW: Seeks Judgment for Count V in Edelson's RICO Suit BANK OF AMERICA: Petition for a Writ of Certiorari Filed BANK OF AMERICA: Settlement in Farrell Suit Has Final Approval BAY STATE GAS: Crockett-Thornhill Sues over North Andover Fire BBVA COMPASS: Faces Murphy Suit in Sacramento BHH LLC: Court Denies Summary Judgment Bid in Hart Suit BRAAVOS INC: Hearings in Gordon Suit Continued to Nov. 1 BRAND ENERGY: Court Allows Filing of First Amended McClure Suit BREA FINANCIAL: Has Made Unsolicited Calls, Edelsberg Alleges CAMPBELL LIBRARY: Petition for Writ of Certiorari Filed CANADA: Agrees to Settle Disabled Veterans' Class Action CANADA: Quebec Mother Files Class Action Over Field Trips CEDAR RAPIDS, IA: Summary Judgment in Behm Suit Partly Affirmed CLEARVIEW ELECTRIC: Court Narrows Claims in Amended Gorecki Suit COMCAST CORP: Antitrust Suit Settlement Has Prelim Approval CV SCIENCES: Faces Alvarado Suit over 36% Drop in Share Price DASHUB LLC: Schlanger Law Group Files National Class Action DETROIT, MI: Court Declines to Certify Class in Davis Suit DOLGEN CALIFORNIA: Fails to Pay Proper Wages, Evans Suit Claims DR PEPPER: Kilpatrick Townsend Attorney Discusses Court Ruling DRINK DAILY: Court Dismisses "Daily Greens" Mislabeling Suit EASTON DIAMOND: Must Face False Advertising Class Action ENCORE RECEIVABLE: Proceedings in Untershine & Voeks Suit Shelved EQUIINET: Has Made Unsolicited Calls, Hayes Suit Alleges FANHUA INC: Faces Long Suit over 11% Drop in Share Price FLORIDA: Mattis Files Petition for Writ of Certiorari FREIGHT HANDLERS: Underpays Unloaders, James Kraft Alleges FRIENDFINDER NETWORKS: Removes Gutierrez Case to N.D. California FRITO-LAY: Oct. 17 Due to File Sanchez Deal Prelim Approval Bid FRONTIER AIRLINES: Court Grants Summary Judgment in Tarkov Suit G.I. TRUCKING: Fails to Pay Proper Wages to Clerks, Taylor Claims GACO WESTERN: Court Denies Bid to Dismiss Feamster Suit GADSDEN REGIONAL: Final Judgment in Brown Affirmed in Part GALLERIA FITNESS: Has Made Unsolicited Calls, Gerstenhaber Claims GOOD EGGS: Underpays Delivery Drivers, Doyle Suit Alleges GROUP HEALTH: 9th Cir. Flips Dismissal of State Claims in Hansen H&E EQUIPMENT: Must Produce All LDW Reports in FDUTPA Suit HARVEY WEINSTEIN: Loses Bid to Dismiss Rape Case HEALTHPORT TECH: Approval of Goldberg Settlement Affirmed HERMES LANDSCAPING: Court Certifies Class in Rodriguez FLSA Suit IRIS POUNDS: Portfolio Recovery Appeals Ruling to High Court JONES CREEK TEXAS: Underpays Deputy Marshalls, Harper Suit Says JOSEPH CORY: Deliverymen's Labor Suit Seeks Unpaid Overtime Wages KASHIF ABDUL KABANI: Alam Labor Suit to Recover Unpaid Overtime KPH TURCOT: Not Defendant in AGQ Class Action KRS GLOBAL: Class Certification in Sawyer TCPA Suit Denied LANGMAS GROUP: Has Made Unsolicited Calls, Internal Medicine Says LAW FOOD: Fails to Pay for Overtime, Cook and Richardson Allege LEADEXCEL INC: Abante Rooter Hits Illegal Telemarketing Calls LIBERTYVILLE PICNIC: Underpays Cooks, Estrada Suit Alleges LIONS GATE: Agreement in Principle Reached in Starz Class Suit LOEWS SANTA MONICA: Underpays Massage Therapists, Turner Alleges M&T BANK: Must Face ERISA Class Action, New York Judge Rules MAIZAL INC: Castro Labor Suit Seeks Unpaid Overtime Wages MARINA SECCHITANO: Fisher Sues over Mismanagement of Pension Plan MARRIOTT HOTEL: 9th Cir. Vacates Summary Judgment in McCray Suit MERCHANT GROUP: Has Made Unsolicited Calls, Abante Rooter Alleges MERCK & CO: 44 Lawsuits Filed over Zostavax Vaccine MICHIGAN: $199K Attorneys' Fees Awarded in Suit vs. MDHHS MICHIGAN: Settlement in Suit vs. MDHHS Has Final Approval MIDLAND CREDIT: Preston FDCPA Suit Dismissed MIDLAND CREDIT: Trichell FDCPA Suit Dismissed MITAC DIGITAL: Faces Livingston and McGill Suit in N.D. California MYRIAD GENETICS: Continues to Defend Kessman Class Action NATIONAL HOCKEY: Late White Bear Player's Family Files Suit NATIONWIDE INSURANCE: Remand of Sibalich to State Court Suggested NEBRASKA: Discovery Dispute Order in Sabata Prisoners Suit Issued NEW MEXICO: Revised Consent Degree in Hatten-Gonzales Approved NEW YORK: Koziol Files Petition for Writ of Certiorari NORTON HEALTHCARE: Clemons et al. File Appeal to Supreme Court NY STATE UNIVERSITY: Permissive Joinder Bid in Pejovic Granted OPKO HEALTH: Rosen Law Firm Files Securities Class Action P.F. CHANG'S: Belt et al. Suit Moved to E.D. Pennsylvania PEAK FORECLOSURE: Court Dismisses Pewitt Suit PFC FURNITURE: Fails to Pay Proper Wags, Salinas et al. Allege PHILIP MORRIS: Nov. 5 Lead Plaintiff Motion Deadline Set PLAIN GREEN: Court Certifies Appeals in Gibbs Suit as Frivolous PRECHECK INC: Denial of Bid to Dismiss Brent Suit Recommended PRETIUM RESOURCES: Holtan Sues over Share Price Drop PROPERTY MANAGEMENT: Fails to Pay Overtime Pay, Galvan Suit Says QURATE RETAIL: Bristol Retirement Sys. Sues over Share Price Drop REMCO INSURANCE: Contreras Labor Suit Seeks to Recover Overtime Pay RP AUTOMOTIVE: Fails to Pay Proper Wages, Kyriakides Alleges SAFE-GUARD PRODUCT: Court Grants Bid for Hinkle Partial Dismissal SAINT JOHN: Seeks to Block Estabrooks Sexual Abuse Class Action SALOV NORTH AMERICA: Olive Oil Class Action Settlement Okayed SAMSUNG ELECTRONICS: Must Face Shattering Phone Camera Lawsuit SAN FRANCISCO, CA: Judgment on Pleadings Bid in Lil' Man Suit OK'd SCHNEIDER NATIONAL: Seeks Dismissal of Wage-Fixing Class Action SEATTLE, WA: May Face Class Action Over Erroneous Electric Bills SERENITY TRANSPO: Court Won't Reconsider Certification Denial SOUTHBURY TRAINING: Bid to Correct Attys' Fees in Messier Denied STATE FARM: Settlement in Hale RICO Suit Has Prelim Approval STEAK 'N SHAKE: Dismissal of Summary Judgment Bid in Drake Denied SWAMI MANAGEMENT: Fails to Pay OT to Managers, Hockensmith Claims TEIKOKU: Judge Approves Lidoderm Class Action Settlement TEREX CORP: Securities Class Action Survives Motion to Dismiss TESLA INC: Andrew Left Sues over Musk's Misleading Tweets TESLA INC: Faces Xing Fan Suit over Drop in Share Price TEXAS: Clyce et al. File Appeal to 5th Circuit TITLE SOURCE: Settlement in Swamy FLSA Suit Has Final Approval TOTAL MERCHANT: Fails to Pay Proper Wages, Fowler Suit Says TRIAD MEDIA: Bid to Impose Sanctions in Sloatman TCPA Suit Denied TRIBUNE MEDIA: Arbitrage Event-Driven Fund Files Class Action TRINITY RESTAURANT: Whitfield Seeks to Certify Class of Servers U.S.A.: Mapuatuli et al. File Petition for Writ of Certiorari UBER TECH: 1st Amended Irving Firemen's' Securities Suit Dismissed UBER TECHNOLOGIES: Hunton Andrews Discuses Arbitration Ruling UBIQUITI NETWORKS: Competing Motions for Lead Plaintiff Pending UNITED STATES: Williams Files Petition for Writ of Certiorari US SECURITY ASSOCIATES: Underpays Security Workers, Langston Says UTAH: Summary Judgment in Suit Over Hospital Lien Statute Affirmed VAN RU CREDIT: Court Certifies Class in Deborah Al Suit VANGUARD GROUP: Partial Denial of Taksir Dismissal Bid Affirmed VEROS CREDIT: Has Made Unsolicited Calls, Engebretson Alleges VIRGINIA: Class Action Over License Suspensions Back to Court VOLKSWAGEN GROUP: Judge Hears Investors' Emissions Class Action VOX MEDIA: Court Denies Bid to Dismiss Bradley FLSA Suit VOYA RETIREMENT: Dezelan Appeals Case Dismissal to 2nd Circuit WALGREENS CO: Faces Consumer Fraud Class Action in Illinois WESTERN DIGITAL: Consolidated Securities Action Underway in Calif. WESTERN UNION: Court Approves Douglas TCPA Suit Settlement WESTPAC: May Face Class Action Over Irresponsible Home Loans WH ADMINISTRATORS: Court Denies Bid to Dismiss ERISA Suit YUM! BRANDS: Taco Bell Is Proper Defendant, Court Says [*] Gerry Brownlee Denies Class Action Lawyer's Bullying Claims ********* 21ST CENTURY: Motorist Not Entitled to Class Certification ---------------------------------------------------------- WorkCompCentral reports that the Arizona Court of Appeals ruled that a motorist was not entitled to certification of a class action against her automobile insurance carrier for its refusal to make medical payments for injuries subject to coverage under a workers' compensation policy. Case: Ferrara v. 21st Century North America Insurance Co., No. 2 CA-CV 2017-0195, 09/10/2018, published. Facts: Cynthia Ferrara suffered injuries in a work-related car accident. On the date of her accident, she was a covered person and beneficiary of an automobile insurance policy issued by the 21st Century North America Insurance Co. [GN] 650 PARLIAMENT: Fire Victims Meet with Class Action Lawyers ----------------------------------------------------------- Peter Edwards, writing for Toronto Star, reports that about 250 residents of 650 Parliament St., who remain out of their apartments after a fire in August, met with lawyers at a downtown church on Sept. 11 to hear about a proposed lawsuit seeking compensation for them. "We've done these cases before and we're hoping to represent all of you in this proposed class action," lawyer Ted Charney told the town hall meeting at Saint Luke's United Church on Sherbourne St. Lawyers Ted Charney and Sharon Strosberg told a town hall meeting on Sept. 11 that a class action lawsuit on behalf of residents displaced by a fire at 650 Parliament St. could get them compensation "for everything you've gone through." About 1,500 residents were forced to flee the highrise building on Aug. 21 during an electrical fire. None have been able to return, except to briefly collect belongings and pets, and Fire Chief Matthew Pegg has estimated that it could take "several months" for repairs to be completed. The displaced residents were told at the Sept. 11 meeting that they may be entitled to financial compensation for what lawyers call "loss of use and enjoyment of their homes, physical injury including smoke inhalation, emotional injuries, damage to property, costs of repair and cleanup of their property, expenses for mileage, food, and the costs of purchasing new clothing and essentials, costs of obtaining alternative accommodations and lost income." The defendants in the case would include the landlord, the building owner and "anyone else implicated in this electrical fire," Mr. Charney said. "We're never going to be able to make you whole," Mr. Charney said. "Everyone's been displaced … We may have some compensation available for you for everything you've gone through." The fraud began in the summer of 2017, when MacEwan was in the midst of constructing the $180-million Allard Hall: a state-of-the-art building boasting music studios and dance halls with room for 1,800 students. Mr. Charney told them they don't have to pay any money upfront and that the lawyers' fees -- which could come to 30 per cent of an eventual settlement -- would be taken from the final settlement and court-ordered costs paid by the defendants. "There is nothing that you have to pay upfront, and if we don't win, you don't pay anything at the end either," Mr. Charney said. Lawyer Sharon Strosberg urged residents to save receipts for expenses, and to record things like mileage for extra driving and days missed from work in order to estimate their losses. "We very much want your information," Ms. Strosberg said. "We want to understand how you've been affected." "It doesn't matter if you're employed or unemployed," Mr. Charney said. "None of this matters. You are all displaced." Mr. Charney and Ms. Strosberg described themselves in a written statement as "experienced class action litigators with particular expertise in residential tenancy class actions." "We did very well in our previous class actions," Mr. Charney told the displaced residents, who were driven from their homes at Parliament and Bloor Sts. when a six-alarm blaze sent heavy smoke throughout the building. It took about eight hours for 100 firefighters to extinguish the blaze. The residents have been told they won't be allowed back into their units until the building is cleared by the Toronto Fire Service and an Ontario Fire Marshal's investigation is finished. They spoke of the difficulties they face living in hotels and short term rental units. Some have been forced to move in with relatives or friends, and others said they had moved as far away as Guelph. Residents also spoke of expenses for damaged food, time lost from work, medical expenses and even pet misbehaviour. [GN] ABBVIE INC: Rubinstein et al. Seek to Certify Class --------------------------------------------------- In the class action lawsuit, MURRAY RUBINSTEIN, JEFFREY F. ST. CLAIR, WILLIAM MCWADE, HARJOT DEV and VIKAS SHAH, Individually and On Behalf of All Others Similarly Situated, the Plaintiffs, v. RICHARD GONZALEZ and ABBVIE INC., the Defendants, Case: 1:14-cv-09465 (N.D. Ill.), the Plaintiffs ask the Court for an order: 1. granting class certification of: "all persons who purchased or otherwise acquired American Depository Shares or "ADS" or purchased call options or sold put options (collectively, "Securities") of Shire plc ("Shire") during the short period between September 29 and October 14, 2014, inclusive (the "Class Period"); and 2. appointing Plaintiff Bradley as the Class Representative and requesting that her counsel, Gardy & Notis, LLP and Wolf Haldenstein Adler Freeman & Herz LLP be appointed Class Counsel.[CC] Counsel for Plaintiffs: Mark C. Rifkin, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545 4600 Facsimile: (212) 545 4758 - and - Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 70 West Madison Street, Suite 1400 Chicago, IL 60602 Telephone: (312) 984-0000 Facsimile: (312) 214-3110 - and - James S. Notis, Esq. Jennifer Sarnelli, Esq. Meagan A. Farmer, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10022 Telephone: (212) 905-0509 Facsimile: (212) 905-0508 ADTALEM GLOBAL: Bid to Dismiss 3rd Amended Complaint Pending ------------------------------------------------------------ Adtalem Global Education Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the motion to dismiss the third amended complaint is still pending. On May 13, 2016, a putative class action lawsuit was filed by the Pension Trust Fund for Operating Engineers, individually and on behalf of others similarly situated, against Adtalem, Daniel Hamburger, Richard M. Gunst, and Timothy J. Wiggins in the United States District Court for the Northern District of Illinois. The complaint was filed on behalf of a putative class of persons who purchased Adtalem common stock between February 4, 2011 and January 27, 2016. The complaint cites the ED January 2016 Notice and a civil complaint (the "FTC lawsuit") filed by the Federal Trade Commission (FTC) on January 27, 2016 against Adtalem, DeVry University, Inc., and DeVry/New York Inc. (collectively, the "Adtalem Parties"), which was resolved with the FTC in 2017, that alleged that certain of DeVry University's advertising claims were false or misleading or unsubstantiated at the time they were made in violation of Section 5(a) of the Federal Trade Commission Act, as the basis for claims that defendants made false or misleading statements regarding DeVry University's graduate employment rate and the earnings of DeVry University graduates relative to the graduates of other universities and colleges. As a result of these alleged false or misleading statements, the plaintiff alleged that defendants overstated Adtalem's growth, revenue and earnings potential and made false or misleading statements about Adtalem's business, operations and prospects. The plaintiff alleged direct liability against all defendants for violations of Section 10(b) and Rule 10b-5 of the Exchange Act and asserted liability against the individual defendants pursuant to Section 20(a) of the Exchange Act. The plaintiff sought monetary damages, interest, attorneys' fees, costs and other unspecified relief. On July 13, 2016, the Utah Retirement System ("URS") moved for appointment as lead plaintiff and approval of its selection of counsel, which was not opposed by the Pension Trust Fund for Operating Engineers and URS was appointed as lead plaintiff on August 24, 2016. URS filed a second amended complaint ("SAC") on December 23, 2016. The SAC sought to represent a putative class of persons who purchased Adtalem common stock between August 26, 2011 and January 27, 2016 and named an additional individual defendant, Patrick J. Unzicker. Like the original complaint, the SAC asserted claims against all defendants for alleged violations of Section 10(b) and Rule 10b-5 of the Exchange Act and asserted liability against the individual defendants pursuant to Section 20(a) of the Exchange Act for alleged material misstatements or omissions regarding DeVry University graduate outcomes. On January 27, 2017, defendants moved to dismiss the SAC, which motion was granted on December 6, 2017 without prejudice. The plaintiffs filed a Third Amended Complaint ("TAC") on January 29, 2018. The Adtalem parties moved to dismiss the TAC on March 30, 2018. No further updates were provided in the Company's SEC report. Adtalem Global Education Inc. provides educational services worldwide. It operates through three segments: Medical and Healthcare, Professional Education, and Technology and Business. Adtalem Global Education Inc. was founded in 1931 and is based in Chicago, Illinois. ADTALEM GLOBAL: Bid to Dismiss Refiled Petrizzo Complaint Underway ------------------------------------------------------------------ Adtalem Global Education Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the defendants filed a motion to dismiss the refiled Petrizzo complaint with a new lead plaintiff, Renee Heather Polly. On October 14, 2016, a putative class action lawsuit was filed by Debbie Petrizzo and five other former DeVry University students, individually and on behalf of others similarly situated, against the Adtalem Parties in the United States District Court for the Northern District of Illinois (the "Petrizzo Case"). The complaint was filed on behalf of a putative class of persons consisting of those who enrolled in and/or attended classes at DeVry University from at least 2002 through the present and who were unable to find employment within their chosen field of study within six months of graduation. Citing the Federal Trade Commission (FTC) lawsuit, the plaintiffs claimed that defendants made false or misleading statements regarding DeVry University's graduate employment rate and asserted claims for unjust enrichment and violations of six different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. On October 28, 2016, a putative class action lawsuit was filed by Jairo Jara and eleven others, individually and on behalf of others similarly situated, against the Adtalem Parties in the United States District Court for the Northern District of Illinois (the "Jara Case"). The individual plaintiffs claim to have graduated from DeVry University in 2001 or later and sought to proceed on behalf of a putative class of persons consisting of those who obtained a degree from DeVry University and who were unable to find employment within their chosen field of study within six months of graduation. Citing the FTC lawsuit, the plaintiffs claimed that defendants made false or misleading statements regarding DeVry University's graduate employment rate and asserted claims for unjust enrichment and violations of ten different states' consumer fraud, unlawful trade practices, and consumer protection laws. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. By order dated November 28, 2016, the district court ordered the Petrizzo and Jara Cases be consolidated under the Petrizzo caption for all further purposes. On December 5, 2016, plaintiffs filed an amended consolidated complaint on behalf of 38 individual plaintiffs and others similarly situated. The amended consolidated complaint seeks to bring claims on behalf of the named individuals and a putative nationwide class of individuals for unjust enrichment and alleged violations of the Illinois Consumer Fraud and Deceptive Practices Act and the Illinois Private Businesses and Vocational Schools Act of 2012. In addition, it purports to assert causes of action on behalf of certain of the named individuals and 15 individual state-specific putative classes for alleged violations of 15 different states' consumer fraud, unlawful trade practices, and consumer protection laws. Finally, it seeks to bring individual claims under Georgia state law on behalf of certain named plaintiffs. The plaintiffs seek monetary, declaratory, injunctive, and other unspecified relief. A motion to dismiss the amended complaint was filed by the Adtalem Parties and granted by the court, without prejudice, on February 12, 2018. Because the case was dismissed without prejudice, the plaintiffs can re-file the action. On April 12, 2018, the Petrizzo plaintiffs refiled their complaint with a new lead plaintiff, Renee Heather Polly. The plaintiffs refiled complaint is nearly identical to the complaint previously dismissed by the court on February 12, 2018. The Adtalem Parties moved to dismiss this refiled complaint on May 14, 2018. Adtalem Global Education Inc. provides educational services worldwide. It operates through three segments: Medical and Healthcare, Professional Education, and Technology and Business. Adtalem Global Education Inc. was founded in 1931 and is based in Chicago, Illinois. ADTALEM GLOBAL: Bid to Dismiss Versetto Class Suit Underway ----------------------------------------------------------- Adtalem Global Education Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that a motion to dismiss has been filed in the putative class action suit filed by Nicole Versetto. On April 13, 2018, a putative class action lawsuit was filed by Nicole Versetto, individually and on behalf of other similarly situated, against the Adtalem Parties in the Circuit Court of Cook County, Illinois, Chancery Division. The complaint was filed on behalf of herself and three separate classes of similarly situated individuals who were citizens of the State of Illinois who purchased or paid for a DeVry University program between January 1, 2008 and April 8, 2016. The plaintiffs claim that defendants made false or misleading statements regarding DeVry University's graduate employment rate and asserts causes of action under the Illinois Uniform Deceptive Trade Practices Act, Illinois Consumer Fraud and Deceptive Trade Practices Act, and Illinois Private Business and Vocational Schools Act, and claims of breach of contract, fraudulent misrepresentation, concealment, negligence, breach of fiduciary duty, conversion, unjust enrichment, and declaratory relief as to violations of state law. The plaintiffs seek compensatory, exemplary, punitive, treble, and statutory penalties and damages, including pre-judgment and post-judgment interest, in addition to restitution, declaratory and injunctive relief, and attorneys' fees. The Adtalem Parties moved to dismiss this complaint on June 20, 2018. Adtalem Global Education Inc. provides educational services worldwide. It operates through three segments: Medical and Healthcare, Professional Education, and Technology and Business. Adtalem Global Education Inc. was founded in 1931 and is based in Chicago, Illinois. AIR EVAC: 10th Cir. Affirms Dismissal of Schneberger Suit --------------------------------------------------------- Judge Jerome A. Holmes of the U.S. Court of Appeals for the Tenth Circuit affirmed the dismissal of the case, SUSAN SCHNEBERGER; LACY STIDMAN; JOHNNY TRENT, individually and as class representatives, Plaintiffs-Appellants, v. AIR EVAC EMS, INC., d/b/a Air Evac Lifeteam; EAGLEMED, LLC, Defendants-Appellees, Case No. 17-6154 (10th Cir.). The Defendants operate air-ambulance services in several states, including Oklahoma. They do not dispatch their own services, but instead respond to third-party dispatch requests and requests from medical professionals or first responders. The named Plaintiffs brought claims on behalf of themselves and a putative class of similarly situated individuals against air-ambulance operators in Oklahoma, alleging that the Defendants charged exorbitant rates for air-ambulance services. They claimed breach of implied contract because the parties did not agree on a particular price before services were provided; therefore, the Plaintiffs argued, the Defendants agreed to transport them and their family members for a reasonable price. They also brought claims, inter alia, for unjust enrichment and money had and received. The district court dismissed these claims as preempted by the Airline Deregulation Act ("ADA"). At least based on the arguments that the Plaintiffs presented to the district court and repeated to the Court, Judge Holmes finds that the district court correctly ruled against the Plaintiffs and granted the Defendants' motion to dismiss. He upholds the district court's ruling for substantially the reasons stated in its dismissal order. More specifically, the Judge finds that the Defendants had a sound basis for invoking ADA preemption against the Plaintiffs' state-law claims. He is persuaded by the district court's conclusion that an Oklahoma state-law claim that requires a court to determine a reasonable price for air-ambulance services self-evidently affects the price of those services. And, thus, ordinarily the ADA would preempt such claims. Furthermore, the Plaintiffs have failed to make an adequate showing that the narrow Am. Airlines, Inc. v. Wolens exception for claims relating to voluntarily undertaken contractual obligations applies to save the Plaintiffs' claims from preemption. Recall that this exception applies to common-law contract doctrines but only insofar as the doctrines serve to effectuate the intentions of parties or to protect their reasonable expectations, rather than to protect community standards of decency, fairness, or reasonableness. But, based on the Plaintiffs' arguments, the Judge cannot conclude that the Wolens exception applies. As the district court suggested, the Plaintiffs rely on concepts of fairness and reasonableness. In doing so, they lament the absence of price terms in their contracts with defendants and criticize the Defendants' ultimate after-the-fact charges for their services. Yet, as the district court aptly observed, such notions are found only outside the four corners of a contract. Consequently, the Judge is hard-pressed to see how they are calculated to effectuate the intentions of parties or to protect their reasonable expectations. And, more specifically, the Plaintiffs have failed to explain how imposing reasonable price terms under Oklahoma law would help to accomplish these ends. Finally, the Judge concludes that the Plaintiffs' "skeletal" judicial-estoppel arguments are waived. In their briefs on appeal, the Plaintiffs have not presented a single citation to a relevant state-court case where the Defendants allegedly took a contradictory position, nor have they identified specific arguments raised by the defendants in prior judicial proceedings that contradict arguments raised before the district court. The Plaintiffs' failure to adequately support their judicial-estoppel argument effectively waives the Court's review of it. For the foregoing reasons, Judge Holmes affirmed the judgment of the district court. A full-text copy of the Court's Aug. 31, 2018 Order and Judgment is available at https://is.gd/BHn5lJ from Leagle.com. ALLTRAN FINANCIAL: Further Proceedings in Everhart Case Shelved --------------------------------------------------------------- In the class action lawsuit styled STEVE EVERHART, the Plaintiff, v. ALLTRAN FINANCIAL LP, the Defendant, Case No. 18‐CV‐1480 (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order on Sept. 25, 2018, granting Plaintiff's motion to stay further proceedings. The Court said, "The parties are relieved from the automatic briefing schedule set forth in Civil Local Rules 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco. On September 21, 2018, the plaintiff filed a class action complaint. At the same time, the plaintiff filed what the court commonly refers to as a "protective" motion for class certification. In this motion the plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion." In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation."[CC] AMERICAN CUSTOM: Fails to Pay Proper Wages, Crosby Suit Alleges --------------------------------------------------------------- SOKMALENA CROSBY, individually and on behalf of all others similarly situated, Plaintiff v. AMERICAN CUSTOM MEATS LLC; and DOES 1 through 100, inclusive, Defendants, Case No. 12196 (Cal. Super., San Joaquin Cty., Sept. 28, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Crosby was employed by the Defendants as hourly-paid, non-exempt employee from May 2014 to February 2017. American Custom Meats, LLC provides controlled meat programs. The Company offers cutting-edge acility design, refrigeration, processing equipment, as well as food safety and sanitation services. American Custom Meats serves retail and foodservice market in the United States. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS FOR JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 - and - Amir Nayebdadash, Esq. Heather Davis, Esq. PROTECTION LAW GROUP LLP 136 Main Street, Suite A El Segundo, CA 90245 Telephone: (844) 294-3095 BANDAS LAW: Seeks Judgment for Count V in Edelson's RICO Suit ------------------------------------------------------------- In the case, EDELSON PC, an Illinois professional corporation, individually, and on behalf of all others similarly situated, Plaintiff, v. THE BANDAS LAW FIRM PC, a Texas professional corporation, CHRISTOPHER BANDAS, an individual, LAW OFFICES OF DARRELL PALMER PC d/b/a DARRELL PALMER LAW OFFICE, a suspended California professional corporation, JOSEPH DARRELL PALMER, an individual, NOONAN PERILLO & THUT LTD., an Illinois corporation, C. JEFFERY THUT, an individual, GARY STEWART, an individual, and JOHN DOES 1-20, Defendants, Case No. 1:16-cv-11057 (N.D. Ill.), the Bandas Defendants, pursuant to Federal Rule of Civil Procedure 58, respectfully move Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois for an entry of judgment against them for the entire relief sought by the Plaintiffs in the only remaining Count of the Plaintiff's First Amended Class Action Complaint and Demand for Jury Trial - Count V. On Aug. 10, 2018, the Bandas Defendants served the Plaintiffs within an Offer of Judgment pursuant to Federal Rule of Civil Procedure 68 allowing Judgment to be entered against them in the action finding that they engaged in the unauthorized practice of law in Illinois and further that the Court enters an order enjoining Christopher Bandas in the Bandas Law Firm P.C. from the further practice of law in Illinois unless and until they obtain authorization from the Supreme Court Illinois to practice law, as well as for judgment for the cost of then accrued, by the Plaintiffs, to be determined by the Court pursuant to FRCP 54, not including any attorney's fees. Pursuant to FRCP 68, the Plaintiff had 14 days to accept the Bandas Defendants' Offer of Judgment, or until Aug. 27, 2018. The Plaintiffs have not accepted the Bandas Defendants Offer of Judgment. Pursuant to FRCP 58, the Bandas Defendants move the Court for entry of Judgment against them for all of the relief sought against them in the sole remaining count of the Plaintiff's Complaint, Count V, finding that the Bandas Law Firm PC and Christopher Bandas engaged in the unauthorized practice of law in Illinois and ordering that the Bandas Defendants are enjoined from the further practice of law in Illinois unless and until they obtain authorization from the Supreme Court of Illinois to practice law. The Bandas Defendants further move the Court for the entry of Judgment against them to pay the Plaintiffs the costs then accrued to be determined by the Court pursuant to FRCP 54, not including attorney's fees. They respectfully request the Court to enter an Order of Judgment against them for all of the relief sought in Count V of the Complaint and for the payment of Plaintiff's costs then accrued. A full-text copy of the Motion is available at https://is.gd/xZRqw8 from Leagle.com. Edelson PC, Plaintiff, represented by Eve-Lynn J. Rapp -- erapp@edelson.com -- Edelson P.C., Alexander Glenn Tievsky -- atievsky@edelson.com -- Edelson Pc, Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC, Ryan D. Andrews -- randrews@edelson.com -- Edelson P.C. & Rafey S. Balabanian -- rbalabanian@edelson.com -- Edelson PC. The Bandas Law Firm PC, Christopher Bandas & Gary Stewart, Defendants, represented by Darren Mark Raven Van Puymbrouck -- dvan@freeborn.com -- Freeborn & Peters, LLP, Alexander S. Vesselinovitch -- avesselinovitch@freeborn.com -- Freeborn & Peters, LLP & Matthew Thomas Connelly -- mconnelly@freeborn.com -- Freeborn and Peters. Noonan Perillo & Thut Ltd & C. Jeffery Thut, Defendants, represented by Chris C. Gair -- cgair@gairlawgroup.com -- Gair Eberhard Nelson Dedinas Ltd, Joseph R. Marconi -- marconij@jbltd.com -- Johnson & Bell, Ltd., Kristi Lynn Nelson -- knelson@gairlawgroup.com -- Gair Eberhard Nelson Dedinas Ltd, Brian C. Langs -- langsb@jbltd.com -- Johnson & Bell Ltd., Thomas Reynolds Heisler -- theisler@gairlawgroup.com -- Gair Eberhard Nelson Dedinas Ltd & Victor J. Pioli -- pioliv@jbltd.com -- Johnson & Bell, Ltd. BANK OF AMERICA: Petition for a Writ of Certiorari Filed -------------------------------------------------------- WILLIAM L. PENDER AND DAVID L. MCCORKLE, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, the Applicants, vs Bank of America Corporation, Bank of America, N.A., Bank of America Pension Plan, Bank of America 401(k) Plan, Bank of America Corporation Corporate Benefits Committee, and Bank of America Transferred Savings Account Plan, the Respondents, Case No. 18A313 (U.S.), is an appeal filed in the Supreme Court of United States on Sept. 26, 2018, from a lower court decision in Case No. 17-1485 (4th Cir.). The Applicants ask the Court to extend the time to file a petition for a writ of certiorari from October 1, 2018 to October 31, 2018.[BN] Attorneys for William L. Pender, et al. Julia Penny Clark, Esq. BREDHOFF AND KAISER, PLLC 805 15th Street NW Suite 1000 Washington, DC 20005 E-mail: jpclark@bredhoff.com BANK OF AMERICA: Settlement in Farrell Suit Has Final Approval -------------------------------------------------------------- In the case, JOANNE FARRELL, et al. Plaintiffs, v. BANK OF AMERICA, N.A., Defendant, Case No. 3:16-cv-00492-L-WVG (S.D. Cal.), Judge M. James Lorenz of the U.S. District Court for the Southern District of California granted both the Class Counsel's unopposed motions for final approval of class action settlement and final approval of fees, costs, and service awards. The case is a putative class action focused on BoA's practice of levying $35 fees against deposit account holders for failing to rectify an overdrawn deposit account within five days. To open a deposit account with BoA, a customer had to first execute a Deposit Agreement. Under the terms of the Deposit Agreement BoA charged a $35 fee anytime a deposit account holder wrote a check against insufficient funds. When a deposit account holder thus over drafted his or her account, BoA had discretion as to whether to honor the overdrawn check by advancing funds to the payee sufficient to cover the note. However BoA levied the Initial Charge whether it advanced the funds or not. In the event BoA advanced the funds, deposit account holders were obligated under the Deposit Agreement to pay back BoA's advance plus any fees incurred. Failure to do so within five days triggered a $35 Extended Overdrawn Balance Charge ("EOBC"). The Plaintiff wrote some checks against insufficient funds. BoA honored the checks but charged her $35 fee for not having sufficient funds. When the Plaintiff failed to remedy her negative account balance within five days, BoA levied EOBCs. Because the EOBCs, as a percentage of her negative account balance, exceeded the interest rate permitted by the National Banking Act, the Plaintiff filed the putative class action against BoA, alleging violation of 12 U.S.C. Sections 85, 86 ("NBA"). A significant amount of pretrial activity followed. BoA moved to dismiss the Plaintiff's Complaint, arguing that the EOBCs were not "interest" and therefore cannot trigger the NBA. The Court disagreed, and therefore denied BoA's motion. BoA subsequently answered and then amended their answer, and the Plaintiff twice moved to dismiss certain of BoA's affirmative defenses. In part because every other court to consider the issue had held that EOBCs do not constitute interest, the Court found that there was substantial ground for a difference of opinion on the issue. It therefore granted BoA's motion for certification of an interlocutory appeal of the denial of BoA's motion to dismiss. BoA petitioned the Ninth Circuit for a permissive interlocutory appeal on April 21, 2017. The Plaintiff answered. The Ninth Circuit Granted BoA's Petition. While the permissive appeal was pending before the Ninth Circuit, the parties participated in settlement negotiations, exchanged informal discovery, and attended mediation before the Hon. Layn Philips (Ret.), a highly respected neutral. Through these efforts, the parties successfully reached a settlement agreement in early October 2017. After conducting confirmatory discovery and reducing terms to writing, the parties formally executed the Settlement Agreement on Oct. 31, 2017 and requested preliminary approval. On Dec. 21, 2017, the Court granted preliminary approval. The Plaintiffs now move unopposed for certification of a settlement class, final approval of the settlement, final approval of attorneys' fees and costs award, and final approval of service awards for the named Plaintiffs. In exchange for the release of the class members' claims, the settlement agreement provides four forms of consideration: 1. BoA ceases charging EOBCs for five years beginning Dec. 31, 2017. BoA's obligation will terminate during this timeframe only if the U.S. Supreme Court expressly holds that EOBCs or their equivalent do not constitute interest under the NBA. BoA testifies that this cessation will depress their revenue (and benefit BoA deposit account holders) by approximately $20 million per month, or $1.2 billion total over the five year period. 2. BoA provides cash payment (Cash Portion) of $37.5 million to the class members who (1) were charged an EOBC and (2) did not have their EOBC refunded or charged off. The Attorneys' fees ($14.5 million), the costs ($53,119.92), the named Plaintiff service awards ($20,000), and the settlement administrator hourly charges (approximately $62,242) will come off the top 3), The residue (approximately $22,864,638) to issue pro rata based upon how many EOBC's each qualifying class member paid as a percentage of all EOBC's paid by the class during the class period. The class members who do not opt out will receive their payment automatically. 3. BoA provides debt reduction (Debt Reduction) in the amount of at least $29.1 million. Debt Reduction will issue to class members whose BoA accounts closed with an outstanding balance stemming from one or more EOBC's levied during the class period. Each eligible class member will receive up to $35 in debt reduction. To the extent BoA reported any of this debt to the credit bureaus, BoA will update the Bureau's as to the effect of the debt reduction. This debt reduction will issue automatically to all qualifying members who do not opt out. It will apply only to debt which BoA has a legal right to collect. It will not apply to unenforceable debt, such as debt discharged in bankruptcy. 4. BoA is paying all settlement administration costs other than the administrator's hourly service charges. These costs are currently estimated at $2.9 milliion. If there is any residual Cash Portion settlement funds after the first distribution, the residue will go to the class by way of a secondary distribution, if economically feasible. Otherwise, the residue will go to the Center for Responsible Learning as cy pres beneficiary. one of the settlement funds will revert to BoA. Judge Lorenz overruled all objections and granted the Class Counsel's unopposed motions for final approval of class action settlement and final approval of fees, costs, and service awards. He dismissed with prejudice the Amended Complaint. The 100 class members who opted out are not bound by the settlement agreement. Provided it is economically feasible, should any funds remain after the initial distribution of the class member awards, the parties will do a second distribution to the Settlement Class members who received their class member awards, provided it was by direct deposit or by negotiated check. Should residual funds remain following a second distribution, or in the event a second distribution is not economically feasible, the Parties will distribute the remaining funds, if any, to cy pres recipient, Consumers for Responsible Lending (www.responsiblelending.org), a non-profit organization that fights against abusive financial practices. The Judge denied Objector Collins' motion for leave to file an amended Reply. To properly assess the fairness of the settlement and the requested fees, it is not necessary for the Court to determine whether Objector Collins' attorney verbally indicated to the Class Counsel that his client was satisfied by the $2 million reduction in the Class Counsel's prayer for fees. The Judge assumed Collins did not retract her objection, and overruled it. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/sGPryT from Leagle.com. Ronald Dinkins, Tia Little & Larice Addamo, Plaintiffs, represented by Jeffrey M. Ostrow -- ostrow@kolawyers.com -- Kopelowitz Ostrow Ferguson Weiselberg Gilbert & Hassan Ali Zavareei -- hzavareei@tzlegal.com -- Tycko & Zavareei LLP. Patrick Michael Farrell, Ryan Thomas Farrell, Timothy Gaelan Farrell & Brooke Ann Farrell, Plaintiffs, represented by Bryan Gowdy -- bgowdy@appellate-firm.com -- Creed and Gowdy, P.A., pro hac vice, Cristina Maria Pierson -- cmp@kulaw.com -- Kelley Uustal PC, pro hac vice, Hassan Ali Zavareei, Tycko & Zavareei LLP, Jeffrey Douglas Kaliel -- jdkaliel@gmail.com -- Kaliel PLLC, Jeffrey M. Ostrow -- ostrow@kolawyers.com -- Kopelowitz Ostrow Ferguson Weiselberg Gilbert, pro hac vice, John Russell Hargrove -- jrh@kulaw.com -- Kelley Uustal PC, pro hac vice, John Joseph Uustal -- jju@kulaw.com -- Kelley Uustal PC, pro hac vice, Robert C. Gilbert -- gilbert@kolawyers.com -- Kopelowitz Ostrow Ferguson Weiselberg Gilbert, pro hac vice & Walter W. Noss -- wnoss@scott-scott.com -- ScottScott LLP. Bank of America, N.A., Defendant, represented by Brian D. Boyle -- bboyle@omm.com -- O'Melveny & Myers LLP, Danielle N. Oakley -- doakley@omm.com -- O'Melveny & Myers LLP, Jonathan Hacker -- jhacker@omm.com -- O'Melveny & Meyers LLP, pro hac vice & Matthew William Close -- mclose@omm.com -- O'Melveny & Myers. BAY STATE GAS: Crockett-Thornhill Sues over North Andover Fire -------------------------------------------------------------- REBECCA CROCKETT-THORNHILL, individually and on behalf of all others similarly situated, Plaintiff v. BAY STATE GAS COMPANY D/B/A COLUMBIA GAS OF MASSACHUSETTS; and NISOURCE, INC., Defendants, Case No. 1877CV01404-A (Mass. Cmmw., Essex Cty., Sept. 28, 2018) is an action against the Defendants to recover economic losses arising from the disruption of business activity sustained by the Plaintiff. According to the complaint, on the afternoon of September 13, 2018, a catastrophic fire raged through the property located at 30 East Water Street in North Andover. Due to the fire, the daycare operated by the Plaintiff has been significantly impacted by the fire and as a result the Plaintiff has suffered loss and damage to business. The Plaintiff alleges that the Defendant failed to provide natural gas products at a safe pressure. It has been reported that on the day of the disaster, the lines were being operated at a pressure 12 times higher than normal. The unsafe pressure was the direct result of the Defendants' failure to reasonably update and monitor their gas transmission lines. This failure resulted in a breach of the Defendants' duty of reasonable care to the Plaintiff, thereby causing the fire which ravaged her property and caused damages. Bay State Gas Company, doing business as Columbia Gas of Massachusetts, offers natural gas transmission and distribution services. The company was formerly known as Springfield Gas Light Company and changed the name to Bay State Gas Company in 1974. Bay State Gas Company was founded in 1847 and is based in Westborough, Massachusetts. Bay State Gas Company operates as a subsidiary of NiSource Inc. [BN] The Plaintiff is represented by: Brian R. Cunha, Esq. BRIAN CUNHA AND ASSOCIATES 311 Pine Street Fall River, MA 02720 Telephone: (508) 675-9500 - and – Patrick N. Haines, Esq. NAPOLI SHKOLNIK PLLC 3001 Esperanza Xing Austin, TX 78758 Telephone: (832) 563-1356 - and – LAW OFFICE OF DAVID J. RAIMONDO 2780 Middle Country Rd., Suite 312 Lake Grove, NY 11755 Telephone: (631) 471-1222 BBVA COMPASS: Faces Murphy Suit in Sacramento --------------------------------------------- An employment-related class action lawsuit has been filed against BBVA Compass. The case is captioned as Janelle Murphy, individually and on behalf of all others similarly situated, v. BBVA Compass; BBVA Compass Bancshares Inc.; BBVA Compass Financial Corp.; and Does 1-50, Defendants, Case No. 34-2018-00241658-CU-OE-GDS (Cal. Super., Sacramento Cty., Sept. 28, 2018). Compass Bank, doing business as BBVA Compass, operates as a bank. The Bank offers offers saving and current account, investment and financial services, online banking, mortgage and non-mortgage loan facilities, as well as issues credit card and business loans. BBVA Compass serves client in the United States. [BN] The Plaintiff is represented by Larry W. Lee, Esq., and William L. Marder, Esq. BHH LLC: Court Denies Summary Judgment Bid in Hart Suit ------------------------------------------------------- Judge William H. Pauley, III, of the U.S. District Court for the Southern District of New York denied NHH's motion for summary judgment in the case, JOANNE HART and SANDRA BUENO, on behalf of themselves and all others similarly situated, Plaintiffs, v. BHH, LLC d/b/a BELL + HOWELL and VAN HAUSER LLC, Defendants, Case No. 15cv4804 (S.D. N.Y.). The lawsuit involves ultrasonic pest repellers manufactured and sold by BHH and purchased by the Plaintiffs. The Plaintiffs claim the Repellers are completely ineffective and that BHH committed fraud. BHH counters that its Repellers are effective under certain circumstances and that nothing in its marketing is fraudulent. The crux of the dispute is how effective BHH represented the Repellers to be. The Plaintiffs contend that BHH made three Common Representations: that the Repellers (1) are ultrasonic pest repellers, (2) repel ants, roaches, spiders, mice, and rats, and (3) will drive pests out of one's home. BHH counters that their disclaimers represented that the Repellers are not completely effective in the presence of furniture, carpeting, and other household objects. The Plaintiffs maintain that the Repellers do not work, and BHH does not disclaim all effectiveness. They also offer evidence that BHH may have known the Repellers were ineffective before marketing them. Moreover, they append a cavalcade of studies published before 2011, which they contend demonstrate that ultrasonic repellers are generally ineffective. BHH moves for summary judgment in the class-action lawsuit for fraud, breach of warranty, and violations of the California Legal Remedies Act. It sets forth various statute-of-limitations arguments. However, Judge Pauley finds that none of those arguments seek to bar claims completely -- they merely limit the date from which certain Plaintiffs may recover. The Plaintiffs make no counterargument as to whether some of their claims are time-barred. Rather, they argue that subclasses should be created so that the Court can address any time-barred claims separately. BHH agrees. In view of the parties' agreement regarding the applicability of various statute-of-limitations issues, the parties are directed to submit proposed subclasses to the Court. Finally, the parties disagree about the date the action commenced for statute of limitations purposes. Because a federal court evaluating the timeliness of state law claims must look to the law of the relevant state to determine whether, and to what extent, the statute of limitations should be tolled by the filing of a putative class action in another jurisdiction, the Judge looks to the law of New York. New York state courts have yet to decide the issue. But the most recent and persuasive case law in the District predicts that New York would permit cross-jurisdictional class-action tolling. As such, the action will be deemed commenced on April 16, 2015. For the foregoing reasons, Judge Pauley denied BHH's motion for summary judgment. He directed the parties to submit proposed subclasses to address the varying statutes of limitations by Sept. 26, 2018. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 139 and 159. The parties are further directed to appear for a status teleconference on Sept. 27, 2018 at 11:00 a.m. The counsel for the Defendants is directed to circulate dial-in information for the teleconference. A full-text copy of the Court's Sept. 5, 2018 Opinion and Order is available at https://is.gd/c1sx6v from Leagle.com. Joanne Hart, on behalf of herself and all others similarly situated, Plaintiff, represented by Frederick John Klorczyk -- fklorczyk@bursor.com -- Bursor & Fisher, P.A., Joshua David Arisohn -- jarisohn@bursor.com -- Bursor & Fisher P.A., Neal Jamison Deckant -- ndeckant@bursor.com -- Bursor & Fisher, P.A., Yitzchak Kopel -- ykopel@bursor.com -- Bursor & Fisher, P.A. & Joseph Ignatius Marchese -- jmarchese@bursor.com -- Bursor & Fisher, P.A. Sandra Bueno, Plaintiff, represented by Yitzchak Kopel, Bursor & Fisher, P.A. BHH LLC, doing business as Bell + Howell & Van Hauser LLC, Defendants, represented by Howard B. Randell -- hbr@lefltd.com -- Leahy, Eisenberg & Franenkel, Ltd., pro hac vice, Robert J. Ostojic -- ro@lefltd.com -- Leahy Eisenberg & Frankel, Ltd. & Scott Wing -- sw@lefltd.com -- Leahy, Eisenberg & Franenkel, Ltd., pro hac vice. BRAAVOS INC: Hearings in Gordon Suit Continued to Nov. 1 -------------------------------------------------------- In the case, KAYLA GORDON and JAMES MOLLO, Plaintiffs, v. BRAAVOS, INC., d/b/a BANNERMAN SECURITY; JONATHAN CHIN; and DOES 1 through 10, Inclusive, Defendants, Case No. C 17-06310 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California continued the Sept. 6, 2018 hearings on the Defendants' motion to stay the action and the Plaintiffs' motion to file an amended complaint to Nov. 1, 2018, at 8:00 a.m. The case is a wage-and-hour putative class action. At the initial case management conference, the Court reminded the counsel that they should not discuss class-wide settlement until after the class is certified. While settlements can always be discounted for risks of litigation on the merits of a claim, the class settlements should not be further discounted for the risk of denial of the class certification. Accordingly, it is important to learn whether the Plaintiffs will be adequately represented and if other requirements can be met before claims of absent class members are compromised. After the initial case management conference, both sides stipulated to continue the Sept. 6, 2018 hearings to allow the Plaintiffs and their counsel to intervene in a concurrent action in the Superior Court of California, County and City of San Francisco before Judge Mary Wiss. That action is against the same Defendants and is also for wage-and-hour violations. Because of the sequence of events stated, Judge Alsup is concerned that the parties may wish to reach a compromise that not only discounts the settlement based on the merits of the claims but also based on the risks of class certification. Nevertheless, he granted the continuance of the hearings to give Judge Wiss an opportunity to hear the motions before her. He ordered the parties to provide Judge Wiss a copy of the Order. The September 6 hearings on the Defendants' motion to stay the action and the Plaintiffs' motion to file an amended complaint are vacated and continued to Nov. 1, 2018, at 8:00 a.m. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/WXec3V from Leagle.com. Kayla Gordon & James Mollo, Plaintiffs, represented by Jennifer Lin Liu -- jliu@liulawpc.com -- The Liu Law Firm, P.C., Rebecca Peterson-Fisher -- rpetersonfisher@liulawpc.com -- The Liu Law Firm, PC, Alison L. Kosinski -- alison@ktlawsf.com -- Kosinski & Thiagaraj, LLP & Emily Ann Thiagaraj -- emily@ktlawsf.com -- Kosinski & Thiagaraj, LLP. Braavos, Inc., d/b/a Bannerman Security & Jonathan Chin, Defendants, represented by Jerome Schreibstein -- jschreibstein@jschreiblaw.com -- Law Office of Jerome Schreibstein. BRAND ENERGY: Court Allows Filing of First Amended McClure Suit --------------------------------------------------------------- In the case, MARLIN McCLURE, an individual, for himself and those similarly situated, Plaintiff, v. BRAND ENERGY SERVICES, LLC, a Delaware corporation doing business in California; BRAND ENERGY SERVICES OF CALIFORNIA, LLC, a Delaware corporation doing business in California; and DOES 1 through 100, inclusive, Defendants, Case No. 2:18-cv-01726-KJM-AC (E.D. Cal.), Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California granted the Plaintiff leave to file his First Amended Complaint. The Plaintiff will file said FAC electronically and serve it within five calendar days of the Order issuing. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/sscnc0 from Leagle.com. Marlin McClure, Plaintiff, represented by Michael A. Strauss -- mike@strausslawyers.com -- Strauss & Strauss, APC. Waveland Services, Inc., incorrectly named as Brand Energy Services, LLC and Brand Energy Services of California, LLC, Defendant, represented by Douglas J. Farmer -- doug.farmer@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, PC & Jason Phillip Brown -- jason.brown@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, PC. BREA FINANCIAL: Has Made Unsolicited Calls, Edelsberg Alleges ------------------------------------------------------------- MARK EDELSBERG, individually and on behalf of all others similarly situated, Plaintiff vs. THE BREA FINANCIAL GROUP, LLC D/B/A PUB CLUB LEADS, Defendants, Case No. 0:18-cv-62119-WPD (S.D. Fla., Sept. 7, 2018) seeks to stop the Defendants' practice of making unsolicited calls. The Brea Financial Group, LLC d/b/a Pub Club Leads is a corporation organized under the laws of the State of California. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400-4713 E-mail: mhiraldo@hiraldolaw.com - and - Ignacio Hiraldo, Esq. IJH Law 1200 Brickell Ave Ste 1950 Miami, FL 33131 Telephone: (786) 496-4469 E-mail: ijhiraldo@ijhlaw.com CAMPBELL LIBRARY: Petition for Writ of Certiorari Filed ------------------------------------------------------- CHARLIE COLEMAN, JOHN P. ROTH, JR., AND ERIK HERMES, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, the Petitioners, v. CAMPBELL COUNTY LIBRARY BOARD OF TRUSTEES, the Respondent, Case No.: 18-283 (U.S., Sept. 5, 2018), is an appeal filed in the Supreme Court of United States from a lower court decision in Case No. 2016-CA-001642-MR (Court of Appeals of Kentucky). A Petition for a Writ of Certiorari was filed on Aug. 31, 2018. Response due was October 5, 2018. The initial decision of the Campbell County Circuit Court finding the library tax illegal was rendered on April 1, 2013, is not reported and is reproduced at Pet. App. 1. The Kentucky Court of Appeals' decision harmonizing the statutes governing the library tax and remanding the Campbell Circuit Court's decision for further instructions is reported at 475 S.W.3d 40 (Ky. App. 2015) and reproduced at Pet. App. 30a. The order denying petitioners' Motion for Discretionary Review by the Kentucky Supreme Court is reported at 2015 Ky. LEXIS 2047 and reproduced at Pet. App. 29a. The Final Order of the Campbell Circuit Court holding the Kentucky Court of Appeals' decision shall be given a prospective-only effect and dismissing petitioners' complaint was rendered on September 16, 2016, is not reported but is at Pet. App. 22a. The Order of the Circuit Court denying petitioners' motion to alter, amend, or vacate was entered on October 21, 2016, is not reported but is at Pet. App. 18a. The Opinion of the Kentucky Court of Appeals from which this Petition arises is reported at 547 S.W.3d 526 (Ky. App. 2018) and reproduced as Pet. App. 1a. The denial of petitioners' Motion for Discretionary Review by the Kentucky Supreme Court is reported at 2018 Ky. LEXIS 235 and reproduced at Pet. App. 62a.[BN] Counsel for Petitioners: Timothy J. Eifler, Esq. Walter L. Sales, Esq. Stephen A. Sherman, Esq. STOLL KEENON OGDEN PLLC 2000 PNC Plaza 500 W. Jefferson St. Louisville, KY 40202 Telephone: (502) 333 6000 E-mail: timothy.eifler@skofirm.com - and - Brandon N. Voelker, Esq. GATLIN VOELKER, PLLC 2500 Chamber Center Dr., Suite 203 Fort Mitchell, KY 41017 Telephone: (859) 905 0946 CANADA: Agrees to Settle Disabled Veterans' Class Action -------------------------------------------------------- The Canadian Press reports that the federal government says it's agreed to pay $100 million to settle a legal battle with disabled veterans, who had launched a class-action lawsuit after some of their financial benefits were clawed back. The settlement would provide thousands of veterans with payments of between $2,000 and $50,000 depending on when they served and the severity of their disabilities. The settlement must still be approved by the Federal Court. A settlement approval hearing is set for December in Ottawa. Veterans Affairs Minister Seamus O'Regan says he believes the proposed settlement is fair and provides both sides with needed closure. The lawsuit was launched in 2014 after the federal government deducted financial assistance from thousands of low-income veterans because they were also receiving disability pensions for injuries sustained while in uniform. [GN] CANADA: Quebec Mother Files Class Action Over Field Trips --------------------------------------------------------- Kathryn Greenaway, writing for Montreal Gazette, reports that there is some confusion about what field trips, if any, schools are planning this year. In the case of Lester B. Pearson School Board schools, there will be field trips but details are still being hammered out. A series of events has helped feed the confusion. It all began when a mother in Quebec City launched a class action lawsuit against school boards province-wide, including all nine English school boards. The lawsuit contested school fees parents were being charged for field trips and school supplies. The lawsuit was settled out of court in the spring and awaits legal ratification. The exact amount each child will receive has not been officially announced, but media reports say it will be $27 to $28 per child per year for the time period covered in the lawsuit. In June, Quebec Education Minister Sebastien Proulx announced that no fees may be charged for field trips designed to augment curriculum being taught in class. LBPSB assistant director general Tom Rhymes said schools are still struggling with the ambiguity of that new regulation. "Our philosophy is that every activity students participate in when they leave the building for a field trip, be it a visit to a museum or a play or concert, is somehow related to the curriculum," Mr. Rhymes said. So if schools can't charge for the trip, how will it be financed? In August, the Quebec government allocated $27 million to two programs -- Ecole inspirante and Sorties scolaires en milieu culturel -- to help finance field trips. And school boards heard they would be receiving more help from the government — an additional $9 per student to put toward the cost of field trips. The booking of field trips is done well in advance -- normally in the spring of the previous academic school year -- but since the funding was announced just recently, schools are still figuring out how the money will be spent. An unfortunate trickle-down effect of all this is that field trip destinations -- such as museum tours and live performances that rely on revenue from school tours -- are struggling to stay afloat while the schools scramble to decide, so late in the game, what field trips will be booked for this academic year. Mr. Rhymes said the money has already been distributed to LBPSB schools on a per-capita basis and that each school makes its own decision regarding field trips. The money may be there, but the ambiguity remains. "We are entering territory that is different," Mr. Rhymes said. "We need time to collectively see what we can and cannot do. I know it is frustrating for parents, teachers and principals, but it is something we need time to work through. "We're not anticipating any changes when it comes to fees for materials students use once, but when it comes to field trips, things are a little trickier for us. It's an evolving thing." In late June, the province's nine English school boards issued a statement saying the boards are committed to working with parents, teachers and the Education Ministry to further clarify what the fee structure will look like in the future. On the subject of field trips, the statement read, "The minister announced that he would undertake a consultative process titled Les Grands Chantiers en Éducation, which will begin in the fall of 2018 and lead to an amendment of the Education Act by the spring of 2019. Hopefully, this initiative will provide greater clarity on the question of what should be free and what parents may choose to pay for. Activities and field trips that are directly related to the classroom programs taught and for which the students are evaluated, shall be free. Conversely, optional complementary activities and field trips such as a visit to the zoo, a ski day, out-of-country trips, may be charged to parents." To read the full statement, visit http://parents.lbpsb.qc.ca/News-Info/ArticleID/3015/School-Fees-Class-Action-Lawsuit. [GN] CEDAR RAPIDS, IA: Summary Judgment in Behm Suit Partly Affirmed --------------------------------------------------------------- In the case, MYRON DENNIS BEHM, BURTON J. BROOKS, ROBBY LEE LANGSTON, DAVID LEON BRODSKY, JEFFREY R. OLSON, and GEOFF TATE SMITH, Appellants, v. CITY OF CEDAR RAPIDS and GATSO USA, INC., Appellees, Case No. 16-1031 (Iowa), Judge Brent R. Appel of the Supreme Court of Iowa (i) vacated the decision of the court of appeals; and (ii) affirmed in part and reversed in part the judgment of the district court. In the case, the Court once again consider a range of issues related to an automated traffic enforcement ("ATE") system. The City of Cedar Rapids enacted an ordinance designed to authorize and implement the establishment of an ATE system intended to detect drivers traveling in excess of speed limits within Cedar Rapids. Pursuant to the ordinance, Cedar Rapids contracted with Gatso to install the ATE system, which included mounted cameras and radar equipment, and to provide the City with evidence of vehicles violating the speed limit at the ATE locations. The ATE ordinance imposed a civil penalty for a violation. The Plaintiffs filed a class-action petition against Cedar Rapids and Gatso. They sought damages and declaratory and injunctive relief, claiming the ATE system as implemented by the defendants violated the equal protection, due process, and privileges and immunities clauses of the Iowa Constitution. The Plaintiffs also raised a number of other challenges, asserting that the administrative remedies under the ATE ordinance were in conflict with Iowa law, that the ATE ordinance as implemented by the City's contract with Gatso unconstitutionally delegated governmental power to a private entity, and that the Defendants were unjustly enriched by the revenues generated by the ATE system. The district court granted the Defendants summary judgment, and the Plaintiffs appealed. The Court transferred the case to the court of appeals. The court of appeals affirmed the district court, generally applying reasoning similar to the district court. With respect to the Plaintiffs' claim that Iowa statutes preempted the ordinance, however, the court of appeals engaged in additional analysis. It noted the argument was based upon implied rather than express preemption. The court recognized that a municipality cannot enact an ordinance that expressly or impliedly conflicts with state law. It, however, cited federal authority for the proposition that the ATE ordinance was not impliedly preempted. Relying on these principles, the court of appeals found no implied preemption. An important threshold question for equal protection, privileges and immunities, and substantive due process analyses is whether the ATE system in the case infringes on a fundamental right to intrastate travel. Judge Appel concludes that there is no basis to examine the constitutional validity of the ATE system using strict scrutiny arising from alleged infringement of the right to intrastate or interstate travel. Instead, he applies the RACI II rational basis test "with bite." And turning to the question of whether the ATE system violates substantive due process as the Plaintiffs' claim, he finds that it is possible to imagine a scenario in which the challenger develops a factual record that demonstrates an ATE system as implemented is so attenuated and remote from public safety concerns and is simply designed to raise revenues for the city that it violates rationale basis analysis. But he concludes that the Plaintiffs have not made such a showing in the case. Municipalities have home rule authority to enact legislation not inconsistent with the laws of the general assembly. This means that the general assembly has the power to preempt municipalities from enacting otherwise lawful legislation. In the case, the Plaintiffs challenge the ordinance because it allows the City to enforce civil penalties outside the judicial process for enforcing municipal infractions provided in Iowa Code section 364.22 and the jurisdictional provisions of Iowa Code section 602.6101. The Judge concludes that the provisions of the ordinance that purportedly impose liability on a protesting vehicle owner who does not respond to a notice of violation or who does not timely file a request with the City to institute a municipal infraction proceeding at the conclusion of the administrative process are irreconcilable with the provisions of Iowa Code section 364.22. Upholding these provisions of the ordinance would be tantamount to choosing the City's enactment over the legislature's enactment, contrary to Seymour, 755 N.W.2d at 541. If the City wishes to enforce liability under its ordinance upon a vehicle owner who does not voluntarily agree to pay, it must institute a municipal infraction action under Iowa Code section 364.22. As a result, the Judge concludes that the district court erred in granting summary judgment to the defendant on the question of whether Iowa Code section 364.22 preempted the ordinance. The Plaintiffs argue that the ATE system improperly delegates governmental authority to Gatso, a private entity. Cedar Rapids responds by emphasizing that the activities of Gatso are ministerial and not discretionary. The Judge holds that the judgment call that was involved in the determination of who should be sent notices of violation, namely, the decision to forward to the City only images of vehicles exceeding the speed limit by eleven miles per hour, was approved by Cedar Rapids as part of its business rules governing the ATE project. There was no unlawful delegation when the City approved the specifically challenged policy as part of its business rules governing an ATE system. Finally, the Plaintiffs bring a claim for unjust enrichment. They argue that as a result of the implementation of the unlawful ordinance, Cedar Rapids and Gatso were unjustly enriched. The Judge agrees with the line of cases that provide that when a statutory violation is alleged, the doctrine of voluntary payment does not apply. The Court has rejected all of the Plaintiffs' constitutional claims and the Plaintiffs' delegation challenges except on the calibration issue upon which the Court was deadlocked. No unjust enrichment arises from these rejected claims. However, the Court has the district court on the issue of preemption. Because of this changed legal landscape and because the Court has rejected the voluntary payment doctrine, the Judge vacated the district court's judgment on unjust enrichment and remanded the matter to the district court for further consideration in light of changed posture of the case. For these reasons, Judge Appel vacated the decision of the court of appeals and affirmed in part and reversed in part the judgment of the district court. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/NBdL33 from Leagle.com. James C. Larew of Larew Law Office, Iowa City, for appellants. Elizabeth D. Jacobi, Assistant City Attorney, for appellee City of Cedar Rapids. Paul D. Burns -- pburns@bradleyriley.com -- and Laura M. Hyer -- lhyer@bradleyriley.com -- of Bradley & Riley PC, Iowa City, for appellee Gatso USA, Inc. CLEARVIEW ELECTRIC: Court Narrows Claims in Amended Gorecki Suit ---------------------------------------------------------------- In the case, KAREN GORECKI, Plaintiff, v. CLEARVIEW ELECTRIC, INC., Defendant, Case No. 2:18-cv-00035 (W.D. Pa.), Judge Mark R. Hornak of the U.S. District Court for the Western District of Pennsylvania granted in part and denied in part Clearview's Motion to Dismiss the Amended Complaint for failure to state a claim. Around October 2012, a Clearview representative solicited the Plaintiff to change her utility service from Duquesne Light Co. to Clearview, promising she would save money if she made the switch. The Plaintiff switched to Clearview around that date. The Plaintiffs plan worked as follows: she was placed on an introductory, fixed-rate plan for electricity for six months. At the end of the six months, the plan automatically renewed for an additional twelve months. Around Feb. 10, 2014, Clearview sent her a letter stating that it was committed to providing her with continued value and notifying her that her electricity plan would continue on a variable rate plan. The letter contained the Sales Agreement and Terms of Service applying to the variable rate plan. The Plaintiff paid this rate from approximately May 2014 until approximately October 2017, when she canceled her service. Between Sept. 11, 2016, and Aug. 13, 2017, Clearview's rate was .1299/kwh each and every month. During those same months, the wholesale market price1 fluctuated; it was as low as .0484/kwh and as high as .0836/kwh. Gorecki filed a putative class action against Clearview, alleging that Clearview breached its service contract by not varying price based on wholesale market conditions, and charging Gorecki and the putative class substantially higher rates as a result (Count I). In the alternative, Gorecki alleges that Clearview unjustly enriched itself at her and the class' benefit by charging excessively for electricity (Count II). The Plaintiff brings the action on behalf of herself and similarly situated Clearview customers in the Commonwealth of Pennsylvania. Clearview now moves to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Hornak finds that Clearview has raised a number of arguments that, although they may ultimately prove meritorious, are not appropriate for resolution at this stage, when the Court must draw all reasonable inferences in the Plaintiffs favor. For instance, Clearview argues that wholesale market conditions are based on many factors besides the wholesale market price. However, the Plaintiff has plausibly alleged that Clearview did not follow its Sales Agreement term to base its rate on wholesale market conditions by averring facts supporting an inference that despite changes in those conditions, Clearview's rate never changed. Drawing all reasonable inferences in the Plaintiffs favor, as the Court must, the Judge concludes that the Plaintiff has stated a facially plausible claim for breach of contract. The parties concede the existence of a contract. A claim for unjust enrichment may be pleaded in the alternative to other contract claims, but such alternative pleading is plausible only when the validity of the contract is itself actually disputed, making unjust enrichment a potentially available remedy. Because the parties do not dispute the validity of the contract, the Judge will grant the Defendant's Motion to Dismiss, without prejudice, as it relates to Count II of the Amended Complaint. For the foregoing reasons, Judge Hornal concludes that Clearview's Motion to Dismiss will be granted in part (as to Count II) and denied in part (as to Count I). An appropriate Order will issue. A full-text copy of the Court's Sept. 5, 2018 Opinion is available at https://is.gd/FAqaS6 from Leagle.com. KAREN GORECKI, Individually and on behalf of all others simiarly situated, Plaintiff, represented by Charles E. Schaffer -- cschaffer@lfsblaw.com -- Levin Sedran & Berman, Jonathan Shub -- jshub@kohnswift.com -- Kohn, Swift & Graf, P.C., pro hac vice, Kevin Laukaitis -- klaukaitis@kohnswift.com -- Kohn, Swift & Graf, P.C., pro hac vice & Daniel C. Levin -- dlevin@lfsblaw.com -- Levin Sedran & Berman, pro hac vice. CLEARVIEW ELECTRIC, INC., doing business as CLEARVIEW ENERGY, INC., Defendant, represented by Allison L. Ebeck -- aebeck@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC & Jeffrey Brundage -- jbrundage@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, pro hac vice. COMCAST CORP: Antitrust Suit Settlement Has Prelim Approval ----------------------------------------------------------- In the case, IN RE: COMCAST CORP. SET-TOP CABLE TELEVISION BOX ANTITRUST LITIGATION, Civil Action No. 09-md-2034 (E.D. Pa.), Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania granted in part and denied in part the Plaintiffs' Motion for Certification of a Settlement Class and Preliminary Approval of a Class Action Settlement. The Judge preliminarily approved the Settlement Agreement and preliminarily certifies the Settlement Class. She denied the portion of the motion that seeks approval of the proposed Notice and proposed Claim Form, the appointment of a Claims Administrator, and the establishment of a schedule for completion of the Settlement approval process. The Judge directed the Plaintiffs that on Nov. 5, 2018, they must submit an amended motion that only seeks approval of revised proposed forms of Notice, a revised proposed Claim Form, appointment of a Claims Administrator, and a revised proposed schedule for completion of the Settlement approval process. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/F4BWu0 from Leagle.com. JAMES DEANNE, WILLIAM GONZALES & STATE OF WEST VIRGINIA, Appellants, represented by DIANNE M. NAST -- dnast@nastlaw.com -- NASTLAW LLC. CV SCIENCES: Faces Alvarado Suit over 36% Drop in Share Price ------------------------------------------------------------- LENNY ALVARADO, individually and on behalf of all others similarly situated, Plaintiff vs. CV SCIENCES, INC.; MICHAEL MONA, JR.; JOSEPH D. DOWLING; and MICHAEL MONA, III, Defendants, Case No. 2:18-cv-01709 (D. Nev., Sept. 6, 2018) is an action by the Plaintiff and the class who purchased or otherwise acquired CV Sciences securities between June 19, 2017 and August 20, 2018, seeking to recover damages caused by the Defendants' violations of the federal securities laws, and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, on May 16, 2016, CV Sciences filed a patent application with the US Patent Trademark Office ("USPTO") for CVSI-007, titled "Pharmaceutical Formulations Containing Cannabidiol and Nicotine For Treating Smokeless Tobacco Addiction." On February 7, 2017, CV Sciences filed a continuing patent application under the same title, Patent #15/426,617. On April 27, 2017, the USPTO made a non-final rejection decision on the Company's Patent and mailed CV Sciences a letter indicating the non-final rejection status of its Patent on June 6, 2017. On December 14, 2017, the USPTO made a final rejection decision on the Company's Patent and mailed CV Sciences a letter indicating the final rejection status of its Patent on December 20, 2017. During the Class Period, CV Sciences never disclosed the material information concerning the Patent to the public, either through its several SEC disclosures or in any other forum. Since the rejection of the Patent on April 27, 2017, CV Sciences has discussed CVSI-007 in four Form 8-K reports, four Form 10-Q reports, and a Form 10-K report for fiscal 2017—none of which disclose or indicate the Patent's rejected status. On August 20, 2018, Citron Research ("Citron") reported, via Twitter, the Defendants' failure to disclose either the April 27, 2017 non-final rejection or the December 14, 2017 final rejection of the Patent application for CVSI-007. Following publication of the Citron report, CV Sciences' stock price fell $2.40 per share, or 36.31%, to close at $4.21 per share on August 20, 2018. CV Sciences, Inc. operates as a life science company. The company focuses on developing and commercializing prescription drugs utilizing synthetic cannabidiol (CBD) as the active pharmaceutical ingredient. CV Sciences, Inc. was founded in 2010 and is based in Las Vegas, Nevada. [BN] The Plaintiff is represented by: Andrew R. Muehlbauer, Esq. MUEHLBAUER LAW OFFICE, LTD. 7915 West Sahara Ave., Suite 104 Las Vegas, Nevada 89117 Telephone: (702) 330-4505 Facsimile: (702) 825-0141 E-mail: andrew@mlolegal.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - 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 DASHUB LLC: Schlanger Law Group Files National Class Action ----------------------------------------------------------- On Sept. 12, Schlanger Law Group LLP filed nationwide and New York state class action claims against Dashub, LLC, a licensed automobile dealer doing business nationwide. The case, filed in the U.S. District Court for the Eastern District of New York, is Yacine Ounis v. Dashub, LLC. Dashub provides consumers with a means of purchasing vehicles listed at dealer auctions, which often accept bids only from licensed dealers. Dashub represents to consumers that the company will bid and purchase the vehicle on the consumer's behalf, and the consumer will then pay Dashub the final auction price plus specified fees and costs. However, plaintiff alleges that Dashub routinely misrepresents the price it pays for vehicles at auction, collecting the artificially inflated amount from the consumer and pocketing the difference. For example, Mr. Ounis says the vehicle he purchased through Dashub sold at auction for $10,100. However, Dashub advised Mr. Ounis that the car had cost $10,600. This inflated price was reflected in Mr. Ounis's final billing, resulting in him being overcharged by $500. The complaint also alleges that Dashub violated New York Vehicle & Traffic Law §417, which requires that a dealer selling a used vehicle in New York inspect the vehicle and certify it roadworthy. Rather than conducting inspections and providing the required certification, Dashub explicitly states that vehicles are sold "as is, with no warranty." The lawsuit seeks monetary compensation for the fraudulent charges, third party inspection of vehicles sold to New York consumers, and other appropriate remedies. Mr. Ounis also seeks punitive damages for Dashub's alleged practice of buying used vehicles at one price and then unlawfully charging consumers more and pocketing the difference. If you have purchased a vehicle through Dashub and believe you may have been overcharged, or are a New York consumer who purchased a used vehicle through Dashub and did not receive a certificate of roadworthiness, contact us at 212-500-6114, or fill out the contact form on our website. About Schlanger Law Group LLP Schlanger Law Group LLP -- http://www.consumerprotection.net-- is a consumer protection law firm with offices in New York City, Upstate New York, and Mississippi. SLG is dedicated to protecting consumer rights through class action litigation and sophisticated, zealous advocacy under the Fair Debt Collection Practices Act (FDCPA), Fair Credit Reporting Act (FCRA), Truth in Lending Act (TILA), and other state and federal consumer financial protection statutes. [GN] DETROIT, MI: Court Declines to Certify Class in Davis Suit ---------------------------------------------------------- In the case, TIMOTHY DAVIS and HATEMA DAVIS, Plaintiffs, v. CITY OF DETROIT, et al., Defendants, Case No. 15-10547 (E.D. Mich.), Judge Paul D. Borman of the U.S. District Court for the Eastern District of Michigan, Southern Division, denied the Plaintiffs' Motion for Class Certification. In the putative class action, nominal Plaintiffs Timothy and Hatema Davis allege that Defendant City of Detroi and various individual police officer Defendants violated their constitutional rights when officers of the City's Narcotics Unit searched Plaintiff Timothy Davis' duly licensed marijuana grow facility, seized property that he legitimately owned in connection with his operation of that facility, and arrested him, all without probable cause. The Plaintiffs seek certification of the proposed class of (a) individuals who were the owners and/or occupants of homes and/or businesses engaged in the licensed distribution of marijuana for medical purposes; (b) who were subjected to search and/or seizure by agents and/or members of the Detroit Police Department's Narcotics' Unit; (c) from the period of Feb. 11, 2012 until the date of judgment or settlement of the case; (d) who were never convicted of any offense arising from the search and/or seizure; (e) whose search and seizure were executed without probable cause; and (f) where such searches and/or seizures were conducted pursuant to Defendant City of Detroit's policies, practices, and/or customs. In a Report and Recommendation issued on May 11, 2018, Magistrate Judge David R. Grand recommended that the Court denies the Plaintiffs' Motion for Class Certification. The Plaintiffs have filed Objections to the Report and Recommendation, and the Defendants have filed a Response to the Plaintiffs' Objections. The Plaintiffs have raised separate objections to the Magistrate Judge's determinations that the proposed class does not meet Rule 23(a)'s ascertainability requirement, does not meet Rule 23(a)(1)'s numerosity requirement, and does not qualify for certification under Rule 23(b)(2). Judge Borman finds that these objections lack merit. First, he says the Plaintiffs have cited no binding authority suggesting that the Magistrate Judge committed legal error in determining that Plaintiffs have not satisfied the ascertainability requirement. Second, the Magistrate Judge regarded the Plaintiffs' prediction of the size of the putative class to be overly speculative, and he agrees. Third, the Plaintiffs' projection of a class of hundreds of members is too sparsely supported -- particularly given the amount of time that the case has been pending -- to be anything but speculative. Fourth, the Plaintiffs' argument that the proposed class satisfies various requirements of Rule 23(b)(1) and Rule 23(b)(3) class actions is premised on the notion that the Magistrate Judge's ascertainability finding was erroneous. The Judge finds that it was not. For these reasons, Judge Borman overruled the Plaintiffs' Objections, adopted the Magistrate Judge's May 11, 2018 Report and Recommendation, and denied the Plaintiffs' Motion for Class Certification. A full-text copy of the Court's Aug. 31, 2018 Opinion is available at https://is.gd/q3AzXN from Leagle.com. Timothy Davis & Hatema Davis, Plaintiffs, represented by Dennis A. Dettmer, Dettmer and Dezsi, PLLC & Michael R. Dezsi -- mdezsi@dezsilaw.com -- Law Office of Michael R. Dezsi, PLLC. City of Detroit, Charles Flanagan, Officer Amy Matellic, Officer Larry Barnett, Officer Steven Riley, Officer Matthew Bray, Officer Brian Johnson, Officer Reginald Beasley & Sgt. Stephen Geelhood, Defendants, represented by Calvert A. Bailey, Detroit City Law Department, James P. Allen, Allen Brothers & Lindsey R. Johnson, Allen Brothers, Attorneys and Counselors, PLLC. Arthur Leavells, Defendant, represented by Stephani J. LaBelle, LaBelle Law PLLC. DOLGEN CALIFORNIA: Fails to Pay Proper Wages, Evans Suit Claims --------------------------------------------------------------- JAMES EVANS, individually and on behalf of all others similarly situated, Plaintiff v. DOLGEN CALIFORNIA, LLC, and DOES I through 50, Defendants, Case No. 18CV335538 (Cal. Super., Santa Clara Cty., Sept. 27, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Evans was employed by the Defendants as non-exempt, hourly employee from September 9, 2017 to September 27, 2017. Dolgen California, LLC is a Tennessee limited liability company doing business in the State of California. [BN] The Plaintiff is represented by: Shaun Setareh, Esq. H. Scott Leviant, Esq. William M. Pao, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 Beverly Hills, CA 90212 Telephone (310) 888-7771 Facsimile (310) 888-0109 E-mail: shaun@setarehlaw.com scott@setarehlaw.com william@setarehlaw.com DR PEPPER: Kilpatrick Townsend Attorney Discusses Court Ruling -------------------------------------------------------------- Joe Reynolds, Esq. -- jreynolds@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for Lexology, wrote that there's been a string of cases by the Southern District of New York and Northern District of California dismissing deceptive labeling class actions based on the marketing of "diet" soda. See July 9, 2018 post, "S.D.N.Y. joins N.D. Cal. in rejecting claim that "diet" soda is deceptive to a reasonable consumer." One of those cases provided the class plaintiff one more opportunity to try and state a claim under California's consumer protection laws. In dismissing that plaintiff's renewed attempt, the Northern District of California made two key observations that will likely doom any future class action alleging that the marketing of "diet" soda is deceptive: (1) reasonable consumers understand that diet soda -- at best -- will help them lose or maintain weight relative to the consumption of regular (high calorie) soda, and (2) no scientific study to date has established that the sweetener used in diet soda actually causes weight gain, rending implausible any allegation to the contrary. In Becerra v. Dr Pepper/Seven Up, Inc., No. 17-CV-05921, 2018 WL 3995832 (N.D. Cal. August 21, 2018), the plaintiff -- a regular purchaser of Diet Dr Pepper for 13 years -- filed a putative class action against Dr Pepper/Seven Up, Inc. ("Dr Pepper") based on the term "diet" in Dr Pepper's marketing of Diet Dr Pepper. Just as in a recent case against Pepsi-Cola Company ("PepsiCo") regarding Diet Pepsi (featured in the prior post cited above), the plaintiff alleged that the term "diet" on a soft drink label leads consumers to believe that Diet Dr Pepper "assists with weight loss, or at least not weight gain," and that the sweetener in Diet Dr Pepper in fact leads to weight gain. Becerra, 2018 WL 3995832, at *3; see also Manuel v. Pepsi-Cola Co., No. 17-CV-7955-PAE, 2018 WL 2269247 (S.D.N.Y. May 17, 2018), appeal filed, No. 18-1748 (2d Cir. June 12, 2018). Based on this allegation, the plaintiff brought claims under California consumer protection laws (the FAL, CLRA, and UCL), and for breach of express and implied warranty. California's "reasonable consumer" test controlled the plaintiff's consumer protection claims, which require that a plaintiff plausibly allege that members of the public are "likely" to be deceived. Becerra, 2018 WL 3995832, at *4. The Becerra court had previously dismissed the plaintiff's claim because the plaintiff had not alleged any "facts or theories" to plausibly support the notion that "the label conveys more than that the drink has relatively less calories and sugar than normal soft drinks." Id. at *3 (emphasis in original). And, just as in the Southern District of New York's decision in Manuel, the Becerra court analyzed the scientific studies featured in the plaintiff's operative complaint (which the plaintiff relied on to substantiate the allegation that Diet Dr Pepper actually causes weight gain), ruling the studies only showed correlation and not causation. In her amended complaint, the plaintiff also added a number of allegations, regarding (i) dictionary definitions of the term "diet," (ii) examples of Dr Pepper's advertisements, (iii) statements about diet soda and weight loss from the American Beverage Association, (iv) the results from a consumer survey asking consumers about their understanding of the impact diet soda has on their weight, and (v) additional scientific studies about whether the sweetener in Diet Dr Pepper actually causes weight gain. None of these new allegations saved the plaintiff's putative class action. First, the Becerra court evaluated the plaintiff's eight new dictionary definitions of "diet," all of which associated the term with "losing weight, limiting food intake, or preventing disease." Id. at *4. But the Court refused to consider the term "diet" outside of the "context" in which it appeared – on the soft drink label. Highlighting the thorough reasoning of Judge Engelmayer in Manuel, the Becerra court held it is not plausible for reasonable consumers to look at "diet" in Diet Dr Pepper as "associated with weight loss, separate and apart from the specific context of the product." Id. Second, the Becerra court evaluated advertisements from as early as the 1970s that allegedly conveyed the "impression" that consumption of Diet Dr Pepper is beneficial in terms of weight loss and healthy weight management. For example, one advertisement showed a "bikini-clad woman" with the text, "[j]ust keep sipping, watch what you eat, and pretty soon you'll start looking better and better too." Id. at *5. But again, the Court found that these advertisements suffered from the same problems as the dictionary definitions: all they convey are benefits as compared to regular soft drinks. Third, the Becerra court rejected the plaintiff's reliance on two articles from the American Beverage Association, which discussed how drinking diet beverages can help consumers lose weight. Neither of these articles did anything more than support the Becerra court's view that a reasonable consumer "would simply not look at the brand name Diet [Dr Pepper] and assume that consuming it, absent any lifestyle change, would lead to weight loss." Id. at *6 (quoting Becerra v. Coca-Cola Co., C 17-05916 WHA, 2018 WL 1070823 (N.D. Cal. Feb. 27, 2018) (analyzing identical claims against Diet Coke)). Fourth, the plaintiff presented results from a survey of 400 California consumers purporting to show that 63.3 percent of them expected that soft drinks labeled "diet" would "help them maintain weight, or at least not affect their weight." Id. Dr Pepper contested the significance of the survey results, because the plaintiff had not also include allegations about the survey's methodology, what questions were asked, or who administered it. The Becerra court agreed and ruled that the amended complaint lacked other plausible allegations that could permit a reasonable inference that Diet Dr Pepper is misleading. It also concluded that the unsupported survey simply signified a "possible" consumer view, as opposed to a plausible one. Even so, the Becerra court found that the survey failed to challenge the view that "diet" only signals relatively fewer calories, as compared to regular soda. Finally, the plaintiff included additional allegations about scientific studies concerning the impact of Diet Dr Pepper's sweetener on weight, further alleging that causation is not the pleading requirement because "unequivocal proof of causation" does not always exist. The Becerra court agreed but ruled that the plaintiff must nonetheless plausibly allege causation. Having failed to offer a "single finding of causation" between the sweetener or diet soda products and weight gain, the plaintiff failed to supply "the plausibility of a causal link between Diet Dr Pepper and weight gain." Id. at *8. For this reason, the plaintiff failed to "cross the threshold from allegations of correlation to causation." Id. at *9. The Becerra court also noted that "continued scientific research" may allow the plaintiff to reach her desired conclusions but that her claims failed "today." Id. In sum, the plaintiff's new allegations could not overcome the two key conclusions shared by the federal district courts: First, the message and meaning of "diet" in diet soda must be viewed in context when assessing whether that term is deceptive. And when properly viewed in context, reasonable consumers understand the benefits of diet soda only in relation to regular soda – not independently as a weight loss tool. Second, to plausibly allege that diet soda causes weight gain, a plaintiff must point to scientific studies that establish such a causal link. Mere allegations of correlation will not survive scrutiny. These two conclusions likely spell trouble for any future "diet" soda class actions. [GN] DRINK DAILY: Court Dismisses "Daily Greens" Mislabeling Suit ------------------------------------------------------------ In the case, GERARD CAMPBELL, Plaintiff, v. DRINK DAILY GREENS, LLC, Defendant, Case No. 16-CV-7176 (E.D. N.Y.), Judge I. Leo Glasser of the U.S. District Court for the Eastern District of New York granted the Defendant's motion to dismiss the Second Amended Complaint, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim. The Plaintiff brings the putative consumer class action against the Defendant. The case is in federal court on the basis of diversity jurisdiction. Campbell asserts three causes of action: (i) deceptive business practices under New York General Business Law ("GBL") Section 349; (ii) false advertising under GBL Section 350; and (iii) common-law fraud. The crux of all three claims is the allegation that Defendant sells juice products with misleading labels. Pending now before the Court is Defendant's motion to dismiss the Second Amended Complaint, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim. The Defendant is a Texas-based company that manufactures and sells juice products bearing the name 'Daily Greens.' Two of its product lines are at issue in the case: Green Juices and Just Juices. The Defendant manufactures the Products through a two-step process. Step one is cold-pressing, itself a two-step process by which fruits and vegetables are first (i) shredded into a pulp and then (ii) the pulp is subjected to hydraulic pressure, which pressure extracts juice and water from the produce while leaving behind the pulp and fiber. After bottling comes step two: high pressure processing ("HPP"). During HPP, an FDA-approved method for eliminating harmful pathogens and bacteria, the bottles are placed into a cylindrical vessel and pressurized at levels up to 87,000 pounds per square inch. Plaintiff Campbell, a Brooklyn resident, claims that he purchased one of the Products in August 2016. More to the point, he claims that he paid a premium for the Products based on several purported misrepresentations on the Products' labels and on the Defendant's website. Specifically, Campbell claims that the Defendant, on its Products' labels and on its website, made a number of materially false or misleading representations—namely, that the Products (i) are cold-pressed; (ii) are not pasteurized; (iii) are fresh or have the quality of freshness; (iv) are never heated; and (v) have 4.5 pounds of produce pressed into every bottle. According to Campbell, these claims about the Products are all materially false or misleading in light of the fact that the Products undergo HPP. In addition, Campbell claims to have relied on the Defendant's website, drinkdailygreens.com, for its representation that the Products are not subjected to a process of pasteurization. What his Second Amended Complaint nowhere acknowledges, however, is that the Products' label also discloses, in boldfaced text, that the Products are High Pressure Processed. The images Campbell included in the Second Amended Complaint are carefully cropped, failing to include the portion of the Products' label pasted. The Defendant submitted the image of the Products' label as an attachment to a declaration in support of its motion to dismiss, and Campbell has not disputed its accuracy or authenticity. Accordingly, the Court takes judicial notice of this portion of the label under Rule 201(b)(2) of the Federal Rules of Evidence. This portion of the label is appropriate for consideration on a motion to dismiss because Campbell clearly relied on it in bringing his suit. The Second Amended Complaint repeatedly highlights two statements that appear only on this portion of the label: (i) pressing raw vegetables preserves nutrients and (ii) never heated to preserve freshness and nutritional value. Judge Glasser finds that since Campbell has not plausibly alleged any materially misleading statements or omissions by the Defendant, he has failed to state a claim under either Section 349 or Section 350 of the GBL. In addition, Campbell's fraud claim flounders on the first element: he has failed to allege a material misrepresentation or omission of fact. Moreover, Campbell has not alleged facts sufficient to satisfy the scienter element (i.e., intent to defraud). In any event, the Judge finds that Campbell appears to have abandoned his fraud claim. The Defendant made these and other points in its opening brief, and Campbell did not respond or otherwise defend (or even mention) his fraud claim in his opposition brief. For the foregoing reasons, Judge Glasser granted the Defendant's motion to dismiss the Second Amended Complaint. The action is dismissed with prejudice. A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinion and Order is available at https://is.gd/KXV6hY from Leagle.com. Gerard Campbell, individually on behalf of himself and all others similarly situated, Plaintiff, represented by Joshua Levin-Epstein, Levin-Epstein & Associates. Drink Daily Greens LLC, Defendant, represented by Jonas Noah Hagey -- hagey@braunhagey.com -- BraunHagey & Borden LLP, Matthew B. Borden -- borden@braunhagey.com -- BraunHagey & Borden LLP, pro hac vice & Amit Rana -- rana@braunhagey.com -- BraunHagey & Borden LLP, pro hac vice. EASTON DIAMOND: Must Face False Advertising Class Action -------------------------------------------------------- Ryan Boysen, writing for Law360, reports that Easton Diamond Sports LLC can't strike out a proposed class action alleging it mislabels the weights of its expensive bats, the customer leading the suit has told a California federal court. [GN] ENCORE RECEIVABLE: Proceedings in Untershine & Voeks Suit Shelved ----------------------------------------------------------------- In the class action lawsuit styled RONALD UNTERSHINE and JULIE VOEKS, the Plaintiffs, v. ENCORE RECEIVABLE MANAGEMENT, INC., the Defendant, Case No. 2:18-cv-01484-WED (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order on Sept. 25, 2018, granting Plaintiff's motion to stay further proceedings. The Court said, "The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco. On September 21, 2018, the plaintiff filed a class action complaint. At the same time, the plaintiff filed what the court commonly refers to as a "protective" motion for class certification. In this motion the plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion." In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class‐action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation."[CC] EQUIINET: Has Made Unsolicited Calls, Hayes Suit Alleges -------------------------------------------------------- KAROLINE HAYES, individually and on behalf of all others similarly situated, Plaintiff v. EQUIINET; and DOMINIC MARROCCO, Defendants, Case No. 0:18-cv-62112-WPD (S.D. Fla., Sept. 6, 2018) seeks to stop the Defendants' practice of making unsolicited calls. Equiinet is a corporation organized and existing under the laws of the State of Nevada. The company is a manufacturer of voice and security appliances and provides telecommunications, cloud services, and VoIP services. [BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 400 Miami, FL 33132 Telephone: 305-479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: 305-975-3320 E-mail: scott@edelsberglaw.com FANHUA INC: Faces Long Suit over 11% Drop in Share Price -------------------------------------------------------- MIAO LONG, individually and on behalf of all others similarly situated, Plaintiff v. FANHUA, INC.; CHUNLIN WANG, and PENG GE, Defendants, Case No. 1:18-cv-08183 (S.D.N.Y., Sept. 7, 2018) is a class action on behalf of a class consisting of all persons who purchased or otherwise acquired Fanhua securities between April 20, 2018 through August 27, 2018, seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, on October 31, 2007, the Company listed its American depositary shares ("ADS"), each of which represents 20 ordinary shares, on the Nasdaq Global Market ("NASDAQ"). Fanhua's ADSs trade under the symbol "FANH." The Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and misleading statements and failed to disclose that: (i) Fanhua engaged in improper business practices, including irregular accounting; (ii) the foregoing practices were intended to benefit Company insiders and overstated Fanhua's financial assets and performance metrics; and (iii) as a result, Fanhua's public statements were materially false and misleading at all relevant times. On August 27, 2018, stock analyst Seligman Investments published an article that described Fanhua as a "questionable company" and detailed a history of alleged fraud within the Company, including accounting irregularities in the Company's second quarter 2018 financial results. On this news, Fanhua's ADS price fell $2.75 per share, or 10.52%, to close at $23.40 on August 27, 2018. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages. Fanhua Inc. distributes insurance products in China. It operates through two segments, Insurance Agency and Claims Adjusting. The company was formerly known as CNinsure Inc. and changed its name to Fanhua Inc. in December 2016. Fanhua Inc. was founded in 1998 and is headquartered in Guangzhou, China. [BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Jonathan Lindenfeld, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@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 E-mail: pdahlstrom@pomlaw.com FLORIDA: Mattis Files Petition for Writ of Certiorari ----------------------------------------------------- Theadene Mattis filed a petition for writ of certiorari on Sept. 12, 2018. The proceeding is captioned as THEADENE MATTIS, on behalf of himself and all others similarly situated, the Petitioner, vs. STATE OF FLORIDA, the Respondent, Case No. 18-5962 (U.S.). Mr. Mattis said, "The denials by the 4th District Court of Appeal in Florida in this case raise issues of great practical importance and constitutional significance meriting this Court's intervention. This Court should agree that when police know that a "confidential informant" being used to secure a search warrant is a suspect's spouse, the failure to note the spousal relationship on the application for the search warrant and the failure to prove that the spouse waived her marital privilege when providing such information to police represents a constitutional violation."[BN] The Petitioner appears pro se. FREIGHT HANDLERS: Underpays Unloaders, James Kraft Alleges ---------------------------------------------------------- JAMES KRAFT, individually and on behalf of all others similarly situated, Plaintiff v. FREIGHT HANDLERS, INC.; and FHI, LLC, Defendants, Case No. 6:18-cv-01469-CEM-GJK (M.D. Fla., Sept. 7, 2018) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Mr. Kraft was employed by the Defendants as unloader. Freight Handlers, Inc. provides product handling and logistics services to retailers, distributors, manufacturers, and carriers in the grocery industry in the United States. Freight Handlers, Inc. was founded in 1991 and is based in Charlotte, North Carolina. [BN] The Plaintiff is represented by: Matthew R. Gunter, Esq. MORGAN & MORGAN, P.A. N. Orange Ave., 16th Floor Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (407) 867-4791 E-mail: mgunter@forthepeople.com - and - Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Road, Suite 400 Plantation, FL Telephone: (954) 327-5352 Facsimile: (954) 327-3017 E-mail: pbotros@forthepeople.com - and - Camar R. Jones, Esq. Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Road, Suite 285 Boca Raton, FL 33431 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: gshavitz@shavitzlaw.com cjones@shavitzlaw.com FRIENDFINDER NETWORKS: Removes Gutierrez Case to N.D. California ---------------------------------------------------------------- The Defendant removed the case captioned Alejandro Gutierrez, individually and on behalf of all other similar situated individuals, Plaintiff, v. FriendFinder Networks, Inc., a Delaware Corporation, the Defendant, Case No. 18CV332813 (filed on August 10, 2018) from the Superior Court of California, Santa Clara County, to the United States District Court for the Northern District of California. The Northern District of California Court Clerk assigned Case No. 5:18-cv-05918-SVK to the proceeding.[BN] Attorneys for Defendant: Jack Russo, Esq. Christopher Sargent, Esq. Lucy Goodnough, Esq COMPUTERLAW GROUP LLP 401 Florence Street Palo Alto, CA 94301 Telephone: (650) 327-9800 Facsimile: (650) 618 1863 E-mail: jrusso@computerlaw.com csargent@computerlaw.com lgoodnough@computerlaw.com FRITO-LAY: Oct. 17 Due to File Sanchez Deal Prelim Approval Bid --------------------------------------------------------------- In the case, ELIAZAR SANCHEZ, on behalf of himself and all others similarly situated, Plaintiff, v. FRITO-LAY, INC., Defendant, Case No. 1:14-cv-00797-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California has issued an order granting the joint stipulation to extend deadline and continue hearing on the Plaintiff's motion for preliminary approval of the class action settlement. On Aug. 31, 2018, the parties filed a stipulation to extend time for the Plaintiff's filing of a motion for preliminary approval of the class action settlement and to continue the scheduled hearing on that motion. Good cause appearing and the parties having so stipulated, the Judge ordered that the Plaintiff will have until Oct. 17, 2018 to file the motion for preliminary approval, and that the hearing on preliminary approval is continued to Nov. 20, 2018. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/r08Wmw from Leagle.com. Eliazar Sanchez, on behalf of himself and all others similarly situated, Plaintiff, represented by Brian D. Chase -- bchase@bisnarchase.com -- Bisnar Chase, LLP & Jerusalem F. Beligan -- jbeligan@bisnarchase.com -- Bisnar Chase, LLP. Frito-Lay, Inc., Defendant, represented by Samantha D. Hardy -- shardy@sheppardmullin.com -- Mullin Richter & Hampton LLP, Ashley Teiko Hirano -- ahirano@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & Daniel Francisco De La Cruz -- ddelacruz@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP. FRONTIER AIRLINES: Court Grants Summary Judgment in Tarkov Suit --------------------------------------------------------------- Judge John J. Tharp, Jr., of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted Frontier's motion for summary judgment in the case, ILYA and RIMMA TARKOV, Plaintiffs, v. FRONTIER AIRLINES, INC., Defendant, Case No. 15-CV-03430 (N.D. Ill.). Plaintiffs Ilya and Rimma Tarkov purchased round-trip airline tickets from Frontier for a vacation to Punta Cana, Dominican Republic. The Tarkovs sued the airline under Article 19 of the Montreal Convention, alleging that their flights to and from Punta Cana were delayed and seeking compensatory damages for the expenses they incurred as a result of the delays. Frontier is a Colorado corporation and the Tarkovs are residents of Deerfield, Illinois. The Tarkovs were scheduled passengers on a March 21, 2015 Frontier flight from Chicago, Illinois to Punta Cana, Dominican Republic ("Flight 40"). Flight 40 was scheduled to depart from Chicago's O'Hare Airport at 10:00 a.m. local time and to arrive at the Punta Cana Airport at 3:30 p.m. local time. On March 21, 2015, Flight 40 left O'Hare Airport at 10:01 a.m. and landed in Punta Cana at 3:12 p.m. The Tarkovs were also scheduled passengers on a March 28, 2015 Frontier flight from Punta Cana to Chicago ("Flight 41"). Flight 41 was scheduled to depart from Punta Cana at 4:25 p.m. local time and arrive in Chicago at 8:36 p.m. local time. According to Frontier, Flight 41 was cancelled on March 28, 2015 due to an outage in the radar system at the Punta Cana Airport, which was not within Frontier's control. Radar is essential for the safe control of air traffic. F rontier states that the cancellation of Flight 41 was categorized as an "uncontrollable" event. It asserts that it was impossible to operate Flight 41 without a working radar system and that it was required by law to cancel Flight 41 because of the radar outage. Ilya Tarkov, however, asserts that he personally observed another airplane departing the Punta Cana Airport on March 28, 2015. After Flight 41 was cancelled, Frontier re-booked the Tarkovs on the next available flight to Chicago, which was Flight 2041, scheduled to leave Punta Cana the next day, on March 29, 2015. Flight 2041 left the Punta Cana Airport on March 29, 2015, as soon as the radar system was operational. Frontier took all reasonable measures to ensure that Flight 2041 departed as soon as it had permission from air traffic control to do so. The Tarkovs assert that they incurred financial losses as a result of the delays, including the cost of a hotel, taxi fares, food, medication, phone charges, unused pre-paid theater tickets, and lost wages. Their complaint asserts two claims against Frontier under Article 19 of the Montreal Convention -- one for the delay of Flight 40 on March 21, 2015 (Count II) and one for the delay of Flight 41 on March 28, 2015 (Count 1). Frontier moves for summary judgment on both claims asserted by the Tarkovs. The air carrier argues that undisputed evidence shows that Flight 40 (the flight to Punta Cana) was not delayed. As to Flight 41, the return flight, Frontier admits that the flight was delayed but argues that it has presented sufficient undisputed evidence to establish the affirmative defense provided for in Article 19. Judge Tharp concludes that no juror could reasonably find in favor of the Plaintiffs based on the single piece of evidence they presented to show that the delay of Flight 41 was not impossible to avoid. In doing so, he does not improperly weigh conflicting evidence or make credibility determinations; such judgments are not permitted at the summary judgment stage. Instead, he finds that Ilya Tarkov's observation is not sufficiently probative to create a conflict with Frontier's evidence. Accordingly, the Plaintiffs cannot survive summary judgment on their Article 19 claim for the Flight 41 delay. Because Frontier has met its burden to establish that it is entitled to summary judgment on both claims asserted by the Tarkovs, the Judge will not address the air carrier's additional arguments regarding damages and discovery violations. He, however, does address the Tarkovs' failure to comply with Judge Kim's Aug. 1, 2017 Order requiring them to pay Frontier $1,040 for the attorney's fees related to a motion to compel discovery that Frontier was forced to file. Frontier has established that the Tarkovs have not made the Court-ordered payment and the Tarkovs do not dispute that fact in their brief or SOF. They are ordered to comply with Judge Kim's Aug. 1, 2017 Order and to file on the Court's docket proof of payment of the $1,040 by Sept. 10, 2018. For these reasons, Judge Tharp granted Frontier's motion for summary judgment. Judgment will be entered in favor of Frontier. The Plaintiffs are ordered to file on the docket by Sept. 10, 2018, proof of payment of $1,040 to Frontier. The claims of any putative class members are dismissed without prejudice. A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion and Order is available at https://is.gd/8kekjq from Leagle.com. Alisa Kolodizner, Helen Kolodizner, Ilya Tarkov, Rimma Tarkov, Nicole Adler, Alyona Adler & Leonid Adler, Plaintiffs, represented by Vladimir M. Gorokhovsky, Law Offices of Vladimir M. Gorokhovsky. Frontier Airlines, A foreign corporation, Defendant, represented by Brian T. Maye -- bmaye@amm-law.com -- Adler, Murphy, & McQuillen LLP & Michael Gerard McQuillen -- mmcquillen@amm-law.com -- Adler, Murphy & McQuillen. G.I. TRUCKING: Fails to Pay Proper Wages to Clerks, Taylor Claims ----------------------------------------------------------------- BROOKE TAYLOR, individually and on behalf of all others similarly situated, Plaintiff v. G.I. TRUCKING COMPANY d/b/a ESTES WEST; ESTES EXPRESS LINES, and DOES 1-50, Defendants, Case No. BC722778 (Cal. Super., Sept. 27. 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Taylor was employed by the Defendants as clerk. G.I. Trucking Company operates a trucking company that provides a range of transportation services. It also offers transportation services through terminals in the United States and Canada. The company was formerly known as G.I. Trucking Company and changed its name in August 2001. Estes West Express was founded in 1946 and is based in La Mirada, California. As of August 1, 2001, Estes West Express operates as a subsidiary of Estes Express Lines, Inc. [BN] The Plaintiff is represented by: Arnold M. Jackson, Esq. JACKSON LAW, APC, 2 Venture Plaza, Ste. 240 Irvine, CA 92618 Telephone: (949) 281-6857 Facsimile: (949) 777-6218 GACO WESTERN: Court Denies Bid to Dismiss Feamster Suit ------------------------------------------------------- Judge Haywood S. Gilliam, Jr., of the U.S. District Court for the Northern District of California denied Gaco's motion to dismiss the case, SCOTT FEAMSTER, Plaintiff, v. GACO WESTERN, LLC, Defendant, Case No. 18-cv-01327-HSG (N.D. Cal.). Gaco filed the motion on April 16, 2018. On April 30, 2018, the Plaintiff opposed the motion. The Defendant moves to dismiss the Plaintiff's putative class action complaint under the doctrine of claim splitting. According to the Defendant, this doctrine precludes the Plaintiff from raising individual personal injury claims in state court, and at the same time, pursuing his product liability claims on a class-wide basis in the Court. It argues that the Plaintiff's claims in these lawsuits stem from the same transactional nucleus of facts, and must be brought in the same proceeding. There is no dispute that: (1) the Plaintiff filed his state court lawsuit on the same day that he filed the action in federal court; and (2) the Plaintiff has not yet received a judgment in his state court lawsuit. Judge Gilliam declines to dismiss the Plaintiff's putative class action claims at this stage. He finds that the claim splitting doctrine is based on res judicata principles, and asks broadly whether a "prior judgment" precludes a subsequent action that, in effect, seeks to relitigate the same cause of action. As mentioned, the Plaintiff's state court lawsuit is proceeding in parallel with the action, and the state court has not yet issued a judgment on the Plaintiff's personal injury claims. The Judge also finds that the Defendant fails to present any analogous authority suggesting that claim splitting applies where two actions are proceeding in parallel. Considering the action's early stage, the Judge declines to decide now whether the Plaintiff's failure to expressly plead his personal injury claims substantively interferes with his adequacy as class representative in the action. That issue is better addressed on a motion for class certification. For the foregoing reasons, Judge Gilliam denied the Defendant's motion to dismiss the complaint. He set a case management conference for Sept. 18, 2018 at 2:00 p.m. The parties must submit a joint case management statement by Sept. 11, 2018. The Judge vacated the case management conference currently set for Sept. 13, 2018 at 2:00 p.m. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/cwMcYS from Leagle.com. Scott Feamster, on behalf of himself and all others similarly situated, Plaintiff, represented by Sheri L. Kelly -- slk@sherikellylaw.com -- Law Office of Sheri L. Kelly. Gaco Western, LLC, a Limited Liability Company, Defendant, represented by Nicolas Peter Martin -- nick.martin@wilsonelser.com -- WILSON ELSER LLP. GADSDEN REGIONAL: Final Judgment in Brown Affirmed in Part ---------------------------------------------------------- In the case, MARILYN BROWN, AARON R. GRINDSTAFF, Plaintiffs-Appellants, v. GADSDEN REGIONAL MEDICAL CENTER LLC, a foreign imited iability company, PROFESSIONAL ACCOUNT SERVICES INC, a foreign corporation, TRIAD HOLDINGS V LLC, a foreign imited iability company, TRIAD OF ALABAMA LLC, a foreign imited iability company, Defendants-Appellees. COMMUNITY HEALTH SYSTEMS INC, a foreign corporation, Defendant, Case No. 17-14310 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed in part and vacated in part the district court's final judgment in favor of Defendants Gadsden Regional Medical Center, LLC ("GRMC"), Triad Holdings V, LLC, Triad of Alabama, LLC, and Professional Account Services, Inc.; and remanded. The Plaintiffs challenge the Defendants' billing practices following GRMC's treatment of patients involved in car accidents. Each Plaintiff had personal health insurance through Alabama Blue Cross Blue Shield. The Plaintiffs assert that -- pursuant to a Participating Hospital Contract ("Provider Agreement") between GRMC and Blue Cross -- GRMC could seek reimbursement only from Blue Cross. Instead, GRMC filed a hospital lien for the costs of each Plaintiff's medical treatment. The Plaintiffs filed in state court the putative class action against the Defendants, alleging state law claims for breach of express contract, conversion, and breach of fiduciary duty. The case was then removed to federal district court. The district court dismissed without prejudice for lack of standing the Plaintiffs' claim for breach of express contract. The district court dismissed for failure to state a claim the Plaintiffs' conversion claim. The district court then entered judgment in favor of GRMC on the Plaintiffs' claim for breach of fiduciary duty. In the diversity action involving Alabama law, the Named Plaintiffs appeal the district court's final judgment in favor of the Defendants. On appeal, they challenge the district court's dismissal of their conversion claim based only on the theory that GRMC's hospital liens interfered unlawfully with their rights to their med-pay insurance benefits. The Plaintiffs next challenge the district court's entry of judgment in favor of GRMC on their claim for breach of fiduciary duty. The Appellate Court finds that the Plaintiffs made no allegations that GRMC received payment on Grindstaff's behalf or that GRMC placed Grindstaff's med-pay proceeds in a separate account. It cannot infer reasonably that the unpaid med-pay benefits constitute specific property that would support a claim for conversion under Alabama law. Thus -- under the federal pleading standard -- the Plaintiffs have alleged no plausible claim for relief. The Court affirmed the district court's dismissal of the Plaintiffs' conversion claim for failure to state a claim. The Court also finds that the district court provided no notice to the Plaintiffs that the Court -- notwithstanding the Defendants' omissions -- intended to rule regarding their breach-of-fiduciary-duty claim, as a matter for summary judgment. On this record, the Court concludes that the district court committed error in granting summary judgment sua sponte without first giving the Plaintiffs a full and fair opportunity to present legal argument and evidence in support of their claim. It vacated the district court's entry of judgment in favor of GRMC on the Plaintiffs' breach-of-fiduciary-duty claim and remand for further proceedings. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/9cAz14 from Leagle.com. Daniel B. King, for Plaintiff-Appellant. Benjamin T. Gardner, Jr., for Plaintiff-Appellant. Jonathan W. Macklem -- jwmacklem@csattorneys.com -- for Defendant-Appellee. John Thomas Richie -- trichie@bradley.com -- for Defendant-Appellee. Richard E. Smith -- resmith@csattorneys.com -- for Defendant-Appellee. Deborah Alley Smith -- dasmith@csattorneys.com -- for Defendant-Appellee. William Tipton Johnson, III, for Plaintiff-Appellant. Jeffrey Conett Kirby, for Plaintiff-Appellant. James Bradley Robertson -- brobertson@bradley.com -- for Plaintiff-Appellant. Lisa F. Gardner -- lgardner@donohoetalbert.com -- for Plaintiff-Appellant. J. Paul Zimmerman -- jpz@csattorneys.com -- for Defendant-Appellee. GALLERIA FITNESS: Has Made Unsolicited Calls, Gerstenhaber Claims ----------------------------------------------------------------- DANIEL GERSTENHABER, individually and on behalf of all others similarly situated, Plaintiff v. GALLERIA FITNESS CLUB, LLC d/b/a POWERHOUSE GYM FORT LAUDERDALE, Defendants, Case No. 0:18-cv-62108-CMA (S.D. Fla., Sept. 6, 2018) seeks to stop the Defendants' practice of making unsolicited calls. Galleria Fitness Club, LLC d/b/a Powerhouse Gym Fort Lauderdale is a limited liability company doing business in Fort Lauderdale, Florida. [BN] The Plaintiff is represented by: Ignacio J. Hiraldo, Esq. IJH Law 1200 Brickell Ave., Suite 1950 Miami, FL 33131 E-mail: ijhiraldo@ijhlaw.com Telephone: 786.496.4469 - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: 954.400.4713 E-mail: mhiraldo@hiraldolaw.com GOOD EGGS: Underpays Delivery Drivers, Doyle Suit Alleges --------------------------------------------------------- KELLY DOYLE, individually and on behalf of all others similarly situated, Plaintiff v. GOOD EGGS, INC. D/B/A GOOD EGGS TECHNOLOGY, INC.; and DOES 1 THROUGH 50, INCLUSIVE, Case No. CGC-18-569499 (Cal. Super., San Francisco Cty., Sept. 6, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Doyle was employed by the Defendants as delivery driver. Good Eggs, Inc. d/b/a Good Eggs Technology, Inc. is a corporation organized under the laws of the State of California. [BN] The Plaintiff is represented by: WORKMAN LAW FIRM, PC Robin G. Workman, Esq. Rachel E. Davey, Esq. 177 Post Street, Suite 800 San Francisco, CA 94108 Telephone: (415) 782-3660 Facsimile: ( 415) 788-1 028 E-mail: robin@workmanlawpc.com rachel@workmanlawpc.com GROUP HEALTH: 9th Cir. Flips Dismissal of State Claims in Hansen ---------------------------------------------------------------- In the case, KAREN HANSEN, on her own behalf and on behalf of other similarly situated persons; BETTE JORAM, on her own behalf and on behalf of other similarly situated persons, Plaintiffs-Appellants, v. GROUP HEALTH COOPERATIVE, Defendant-Appellee, Case No. 16-35684 (9th Cir.), Judge Ronald M. Gould of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's exercise of subject matter jurisdiction in dismissing some claims, and remanded with instructions for the district court to return the entirety of the action to the Washington superior court. Hansen and Bette Joram are mental health providers who live and work in Washington. Group Health Cooperative ("GHC"), now known as Kaiser Foundation Health Plan of Washington, is a health insurance company with its principal place of business in Washington. In August 2015, the Providers filed a class action complaint against GHC in a Washington state superior court. According to the complaint, in January 2007 GHC adopted screening criteria for mental healthcare coverage called the Milliman Care Guidelines. GHC allegedly uses these guidelines as the "primary criteria" for authorizing psychotherapy treatment. The Providers claim that GHC's use of the Milliman Care Guidelines has injured their practices in violation of the Washington Consumer Protection Act. That statute makes unlawful unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Three of the Providers' allegations are at issue in the appeal. First, the Providers allege that GHC's licensing of the guidelines is inherently unfair and deceptive because the treatment guidance is biased against mental healthcare. Second, the Providers allege that GHC deceptively uses the guidelines to avoid paying for mental healthcare coverage required by Washington's Mental Health Parity Act. And third, the Providers assert that GHC unfairly competes by employing its own psychotherapists who strictly adhere to the guidelines and by discouraging patients from seeking treatment from therapists who do not work for the company. The Providers bring the lawsuit on behalf of themselves and all Washington psychotherapists who are not employed by GHC. In September 2015, GHC removed the case to federal court. It determined that Hansen and Joram had been assigned benefits by three of their patients who were insured under employer-sponsored health plans governed by the Employee Retirement Income Security Act of 1974 ("ERISA"). The patients made these assignments so that their therapists could appeal adverse benefit determinations on their behalf. GHC argued that the benefit assignments caused the Providers' claims to be completely preempted by ERISA, meaning there was subject matter jurisdiction in federal court. A month later, the Providers moved to remand the case to state court, while GHC moved to dismiss the complaint. In a consolidated order, the district court denied the motion to remand and granted the motion to dismiss in part, concluding that the Providers' claims were subject to conflict and express preemption to the extent that they concerned GHC's business practices in administering ERISA plans. The court then declined to exercise supplemental jurisdiction over the Providers' claims as to GHC's administration of non-ERISA plans, and remanded that part of the case back to Washington state court. The Providers appeal. Judge Gould finds that Providers' three claims for unfair and deceptive business practices are based on independent duties beyond those imposed by three of their patients' ERISA plans. These claims do not satisfy the second prong of Aetna Health Inc. v. Davila, and hence the case was improperly removed to federal court. The Judge concludes that the federalism requires that federal courts refrain from adjudicating state-law claims between non-diverse parties unless a purported state-law claim is really a poorly disguised federal claim. But in the case, the Providers' claims for unfair and deceptive business practices are not federal claims improperly cloaked in the language of state law. Those claims are basically that, as mental health professionals, the Providers are unfairly being cut out of the market of suppliers of mental health services by GHC's unfair and deceptive use of treatment guidelines. To state their claims under Washington law, the Providers have alleged (1) an unfair or deceptive act or practice, (2) occurring in trade or commerce, (3) affecting the public interest, (4) injury to a person's business or property, and (5) causation. Business and property injuries of this sort are not of central concern to ERISA, but instead pose important public policy issues under state law that are best decided by a state court. The Judge expresses no opinion whether these state-law claims are valid as pleaded, but rather concludes only that these claims do not mirror a suit for benefits due under an ERISA plan. Judge Gould holds that the Providers' claims do not fall within the scope of, and so are not completely preempted by, ERISA section 502(a)(1)(B). He reversed the district court's exercise of subject matter jurisdiction in dismissing these claims, and remanded with instructions for the district court to return the entirety of the action to the Washington superior court. A full-text copy of the Court's Sept. 4, 2018 Opinion is available at https://is.gd/xA6oAN from Leagle.com. Albert H. Kirby -- ahkirby@soundjustice.com -- (argued), Sound Justice Law Group PLLC, Seattle, Washington, for Plaintiffs-Appellants. James Derek Little -- dlittle@karrtuttle.com -- (argued) and Medora A. Marisseau -- mmarisseau@karrtuttle.com -- Seattle, Washington, for Defendant-Appellee. H&E EQUIPMENT: Must Produce All LDW Reports in FDUTPA Suit ---------------------------------------------------------- Magistrate Judge Richard L. Bourgeois, Jr. of the U.S. District Court for the Middle District of Louisiana granted in part and denied in part the Plaintiff's Second Motion to Compel in the case, IN & OUT WELDERS, INC., v. H & E EQUIPMENT SERVICES, INC., ET AL, Civil Action No. 16-86-JWD-RLB (M.D. La.). On Oct. 5, 2015, In & Out brought the class action lawsuit against H&E claiming that certain Loss Damage Waivers and Environmental Charges contained in the H&E's equipment rental contracts constitute a breach of contract, violate the duty of good faith and fair dealing, and violate Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") and Texas's Deceptive Trade Practices-Consumer Protection Act ("TDTPA"). In & Out alleges that the Loss Damage Waivers ("LDW") and Environmental Charges are included on pre-printed contracts, and that H&E misrepresent the nature and purpose of these fees, which In & Out asserts were solely included to raise profits. The Plaintiff seeks an order requiring additional responses to Request for Production No. 2 and No. 5 of their Second Requests for Production, Interrogatory No. 6 of their First Interrogatories, and Requests for Production No. 3 and No. 5 of their Third Requests for Production. On Sept. 5, 2018, the Court denied the Plaintiff's Motion for Leave to Amend Complaint, which sought to allege that H&E was involved in an illegal RICO enterprise with its third-party insurers EPG Insurance, Inc. and Glynn General Corp. in which H&E marketed and resold its policies with EPG and Glynn to its customers as LDW. The Plaintiff's Second Request for Production No. 2 seeks production of all documents between H&E and any insurer (including but not limited to Travelers, EPG, and Glynn, as referenced by Kurt Sorenson) that in any way concern the insurance that H&E pay premiums on for insurance on equipment H&E rent and for which it charged a putative class member a LDW, also known as Physical Damage Waiver). The Plaintiff's Third Request for Production No. 5 seeks production of all correspondence (including emails) between H&E and EPG or Glynn regarding the LDW, including correspondence regarding payments and insurance policies. H&E objected on various grounds, including irrelevance, over breadth, and undue burden. The Plaintiff's Third Request for Production No. 3 seeks production of all LDW Reports (similar to H&E's Rule 30(b)(6) deposition exhibit 14). Their Second Request for Production No. 5 seeks production of all documents between H&E and Billtrust or between H&E and CCS that in any way concerns the Fees or Related costs. The Plaintiff's Interrogatory No. 6 requests all facts and evidence H&E believes support each of the affirmative defenses they raise in their Answer. Magistrate Judge Bourgeois granted in part and denied in part the Plaintiff's Second Motion to Compel. H&E must supplement their responses to the Plaintiff's Third Request for Production No. 3 within 14 days of the date of the Order. The Magistrate found that notwithstanding the fact that the Court has denied the Plaintiff leave to add a RICO claim, the Plaintiff's Third Request for Production No. 3 seeks information relevant to the claims in the action, namely, whether the LDWs are excessive and constitute unregulated insurance. He has reviewed an example of these reports filed under seal. The production of the two-page monthly reports will not result in an undue burden and is proportional to the needs of the case. Accordingly, the Magistrate required H&E to produce the documents sought pursuant to the Plaintiff's Third Request for Production No. 3. The parties will bear their own costs. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/K339Rb from Leagle.com. In & Out Welders Inc, Plaintiff, represented by Robert Lyle Salim , Lucas C. Montgomery, Montgomery Ponder, LLC, pro hac vice, Nicholas W. Armstrong -- nick@pricearmstrong.com -- Price Armstrong, pro hac vice, Oscar M. Price, IV, pro hac vice & Taylor C. Bartlett -- Taylor@hgdlawfirm.com -- Heninger Garrison Davis LLC, pro hac vice. H&E Equipment Services, Inc. & H&E Equipment Exchange LLC, Defendants, represented by Loretta G. Mince -- lmince@fishmanhaygood.com -- Fishman Haygood Phelps Walmsley Willis & Swanson, Jeanette Amedee Donnelly -- jdonnelly@fishmanhaygood.com -- Fishman Haygood Phelps Walmsley Willis & Swanson, Michael Ryan Dodson -- mdodson@fishmanhaygood.com -- Fishman Haygood & Molly Louise Wells -- mwells@fishmanhaygood.com -- Fishman Haygood LLP. HARVEY WEINSTEIN: Loses Bid to Dismiss Rape Case ------------------------------------------------ Dominic Patten, writing for Deadline, reports that just as video went public on Sept. 12 of Harvey Weinstein apparently sexual harassing a women in a business meeting, attempts by the once high-powered producer to close down a criminal case that could see him behind bars for life was called out by the New York County District Attorney's Office as "meritless" and that it "should be denied." "Defendant moves to dismiss the indictment or counts thereof on various grounds of alleged defect or deficiency in the presentation of the matter to the grand jury," said Cyrus Vance Jr's office on Sept. 12 in a response to a sprawling and politically charged August 3 motion to dismiss from Mr. Weinstein's primary attorney Ben Brafman. "Inspection will reveal that the evidence before the grand jury amply supported the offenses charged, that the grand jury was properly instructed on the law, and that the integrity of the proceedings was unimpaired, and the People deny all allegations to the contrary, and oppose disclosure of the grand jury minutes to the defense," adds the filing (read it here) in New York Supreme Court. The D.A. isn't saying more at this time, but Mr. Weinstein's lawyer isn't buying the response. "We believe that the People's response in its entirety makes it absolutely clear that the case against Mr. Weinstein cannot be successfully prosecuted," said Mr. Brafman in a statement to Deadline. "Period." While fending off "failure to provide exculpatory email evidence" and other claims, Deputy D.A. Joan Illuzzi-Orbon's response on Sept. 12 is admittedly not altogether publicly complete. "As a result of recent developments, the People serve this disclosure and additional letter on the defense relating to Count Six of the indictment," The Sept. 12 filing notes of a Protective Order signed by Justice James Burke. "The investigation into facts set forth in the disclosure are ongoing, and we will respond to defendant's motion addressing count Six at the conclusion of that investigation." Out on $1 million bail after having plead not guilty to the first round of indictment and having surrendered his passport earlier this year, Mr. Weinstein is set to be back in Burke's Manhattan courtroom September 20. The disgraced producer was last in court July 9 to enter another not guilty plea after the Manhattan D.A.'s office slapped him with additional and more damning sex crime charges July 2. Those charges this summer mark an additional count of Criminal Sexual Act in the First Degree for a forcible sexual act that allegedly occurred in 2006. Joining the two women identified in a previous indictment in late May, the new indictment relates to a new alleged victim and includes two counts of Predatory Sexual Assault. The response from the Big Apple D.A. comes the same day that Sky News revealed exclusive video of Weinstein allegedly sexually harassing Melissa Thompson in September 2011 in what was supposed to be a pitch meeting for a potential analytics service for the Weinstein Company. As detailed previously in her class action suit with Larissa Gomes and Caitlin Dulany, the video (watch the full Sky segment here) shot on Thompson's laptop shows Weinstein being very touchy. In addition to telling Thompson he wants "a part of her," Weinstein is apparently, out of the camera's view, running his hands up her leg as she objects -- "That's a little high, a little high," Thompson says in the video. In her jury-seeking action, Thompson says Weinstein raped her later that day in a nearly hotel. "What do I do?" Thompson told Sky she was thinking of the initial encounter with Weinstein. "How did I get myself here?" Also on Sept. 12, a hearing in federal court in New York City heard arguments on Ms. Thompson, Ms. Gomes and Ms. Dulany's class action and matters related to motions to dismiss. That hearing resulted in the presiding judge allowing the plaintiffs to file an amended complaint, which is due by October 31. At another hearing on another case against the ex-movie mogul hit a procedural bump in the road and saw RICO claims against Weinstein in a class action by half a dozen alleged victims dismissed, for now. After telling attorneys for Louisette Geiss, Katherine Kendall, Zoe Brock, Sarah Ann Masse, Melissa Sagemiller, and Nannette Klatt that they have not meant the legal standard to demonstrate that Weinstein had a pattern of actions that constituted sex trafficking, Judge Alvin Hellerstein offered the plaintiffs another chance. They now have until October 31, a significant date it seems in the world of Weinstein, to file an amended compliant in the matter, which was first filed in December of last year. As well as being investigated by federal prosecutors and probes by the Manhattan D.A.'s office and the NYPD, allegations against Weinstein have been reviewed by the LAPD, which sent an initial trio of cases to the L.A. County D.A. on February 8. Another case was handed over to that same office early in August. As UK police continue their investigation, the Beverly Hills Police first passed two cases of sexual assault that they say occurred in their jurisdiction to Lacey's office on January 2. [GN] HEALTHPORT TECH: Approval of Goldberg Settlement Affirmed --------------------------------------------------------- In the case, FISCHEL GOLDBERG and JERRY VELASQUEZ, individually and on behalf of all others similarly situated, Plaintiffs-Respondents, v. HEALTHPORT TECHNOLOGIES, LLC, KIMBALL MEDICAL CENTER, INC., COMMUNITY MEDICAL CENTER, INC., BARNABAS HEALTH, INC., OCEAN MEDICAL CENTER, JERSEY SHORE UNIVERSITY MEDICAL CENTER, and MERIDIAN HEALTH SYSTEM, INC., Defendants-Respondents, Case No. A-2657-16T3 (N.J. Super. App. Div.), the Superior Court of New Jersey, Appellate Division, affirmed the Law Division's approval of the class action settlement, and (ii) entry of a judgment of dismissal. Appellant, Diana Dos Santos, appeals from two Law Division orders, the first approving the class action settlement, the second entering a judgment of dismissal. She contends the Court's review is de novo. She submits that under de novo review, the Court must reverse the Law Division orders, because notice to the class members was constitutionally lacking. The Respondents, nominal Plaintiffs Goldberg and Velasquez, contend the Court should review the Law Division orders under an abuse-of-discretion standard. They submit that under the deferential abuse-of-discretion standard, it must affirm the Law Division orders, the trial court having properly exercised its discretion to approve the class action settlement and dismiss the case. According to the amended complaint, with the exception of Healthport Technologies, the Defendants operate hospital facilities throughout New Jersey. The complaint identifies Healthport as a medical record reproduction company and an agent of the Defendants that provides hospital records to requestors. The fees for records a hospital may charge a patient or the patient's authorized representative are regulated. The amended complaint, which alleged the Defendants charged an unauthorized, unlawful $5 fee for certifying copies of hospital records, included four counts: violation of the New Jersey Administrative Code, violation of the New Jersey Consumer Fraud Act, fraudulent and negligent misrepresentation, and unjust enrichment. The proposed class was all patients who, during the time period of March 4, 2008 through the present, requested copies of medical records in the State of New Jersey, either personally or through their legally authorized representatives (as such terms are defined in N.J.A.C. 8:43G-15.3(d)), in writing, from the Defendants and who have suffered economic damages as a result of the payment of service fees that were imposed by the Defendants in excess of those expressly authorized under N.J.A.C. 8:43G-15.3(d). The Court concludes that the trial court did not abuse its discretion in determining the class notice was the best notice practicable under the circumstances. In the underlying action, the known medical record requestors were the attorneys who requested the records on behalf of their clients. Although the attorneys may have been reimbursed the disputed certification fees by their clients, the only contact the Defendants had concerning the requested records was with the attorneys and law firms requesting them. Therefore, it was reasonable for notice to be sent to the attorneys. It does not find the trial court abused its discretion in finding the Appellant's proposed notice was less practicable than that used. The Appellant argues notice should be sent either directly to the underlying patients, or to both the underlying patients and their attorneys. However, the Court finds that the former method overlooks that the attorneys requested the documents and payed the certification fee, and the latter method raises the issue of duplicative claims. In addition, due to privacy considerations, it was unclear who was permitted to provide patient names. For these reasons, the Superior Court concludes the trial court did not abuse its discretion in determining that sending the notice to the requesting attorney was the most effective and efficient manner to ensure notice reached the proper claimant. Accordingly, it affirmed. A full-text copy of the Court's Sept. 5, 2018 Opinion is available at https://is.gd/bkM2x9 from Leagle.com. Clark Law Firm, PC, attorneys for appellant Diana Dos Santos (Gerald H. Clark, of counsel; Mark W. Morris, on the brief). Chase Kurshan Herzfeld & Rubin, LLC, attorneys for respondents Fischel Goldberg and Jerry Velasquez (Michael R. Rudick -- michael.rudick@rivkin.com -- Peter J. Kurshan -- PKurshan@chaselawnj.com -- and Maureen Doerner Fogel -- MFogel@herzfeld-rubin.com -- on the joint brief). Thompson Hine, LLP, attorneys for respondents HealthPort Technologies, LLC, Kimball Medical Center, Inc., Community Medical Center, Inc., Barnabas Health, Inc., Ocean Medical Center, Jersey Shore University Medical Center, and Meridian Health System, Inc. (Rebecca A. Brazzano -- rebecca.brazzano@thompsonhine.com -- and Seth A. Litman -- Seth.Litman@ThompsonHine.com -- (Thompson Hine, LLP) of the Georgia bar, admitted pro hac vice, on the joint brief). HERMES LANDSCAPING: Court Certifies Class in Rodriguez FLSA Suit ---------------------------------------------------------------- In the case, ANTONIO CHAVEZ RODRIQUEZ, et al., Plaintiffs, v. HERMES LANDSCAPING, INC., Defendant, Case No. 17-2142 (D. Kan.), Judge Carlos Murguia of the U.S. District Court for the District of Kansas granted the Plaintiffs' Motion to Certify Class. Rodriguez, Isaac Chavez Duarte, and Jose Alfredo Soto Servin filed their Second Amended Complaint on Aug. 16, 2017. The Plaintiffs are Mexican nationals who came to the United States under the federal H-2B or H-2R temporary foreign worker visa programs to work for defendant Hermes Landscaping, Inc. in Lenexa, Kansas. The H-2B program is a guest-worker visa program, and it allows persons having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in the country. It program is for returning H-2B workers. The Plaintiffs claim that the Defendant has sponsored workers since 2012 and in recent years has sponsored around 100 workers annually -- 105 in 2016; 90 in 2015; 115 in 2014; 92 in 2013; 100 in 2012. They claim the Defendant failed to pay them for all the hours they worked, including overtime doing residential and commercial landscape work for the Defendant in the greater Kansas City area, as well as incurring work and travel expenses for which they were not reimbursed. They bring the action pursuant to the Fair Labor Standards Act of 1938 ("FLSA"); the Kansas Wage Payment Act; the Missouri Minimum Wage Law; as well as for breach of contract and quantum meruit claims. The Plaintiffs bring the suit on behalf of themselves and all other H-2B or H-2R workers who worked for defendant since 2012 and who may seek to opt into the FLSA suit. On Jan. 4, 2018, the parties stipulated to conditional certification and notice of collective action to send to the putative class members, which the Court entered on Jan. 10, 2018. On Feb. 15, 2018, the Plaintiffs filed their motion to certify the case as a class action pursuant to Fed. R. Civ. P. 23(b)(3) for claims II (Missouri Overtime Compensation Violation); III (Kansas Wage Payment Violation); V (Breach of Contract); VII (Prevailing Wage Rate); and VIII (Quantum Meruit); to be appointed the class representatives; to have their counsel appointed as the class counsel, and for authorization to send notices to the putative class members. The Defendant opposes certification under Rule 23. Judge Murguia finds that the Plaintiffs have met the Rule 23(a) and (b) requirements for the class certification for claims II (Missouri Overtime Compensation Violation); III (Kansas Wage Payment Violation); V (Breach of Contract); VII (Prevailing Wage Rate); and VIII (Quantum Meruit). Therefore, he granted the Plaintiffs' Motion to Certify Class. A full-text copy of the Court's Sept. 5, 2018 Memorandum and Order is available at https://is.gd/UErKol from Leagle.com. Antonio Chavez Rodriguez, on behalf of himself and all others similarly situated, Isaac Chavez Duarte, Jose Alfredo Soto Servin, Oscar J Moreno, Eduardo Montaya Galicia, Eduardo Jiminez Hernandez, Jose Calderon Gonzalez, Nestor Animas Arredondo & Ruben Calderon Gonzalez, Plaintiffs, represented by Heather J. Schlozman -- heather@duganschlozman.com -- Dugan Schlozman LLC, Mark V. Dugan -- mark@duganschlozman.com -- Dugan Schlozman LLC & Patricia C. Kakalec -- pkakalec@kakalec-schlanger.com -- Kakalec & Schlanger, LLP, pro hac vice. Hermes Landscaping, Inc., Defendant, represented by Justin M. Dean -- justin.dean@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, PC & Patrick F. Hulla -- patrick.hulla@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, PC. IRIS POUNDS: Portfolio Recovery Appeals Ruling to High Court ------------------------------------------------------------ Portfolio Recovery Associates, LLC, the Petitioner vs. Iris Pounds, et al., the Respondents, Case. No. 18-204 (U.S., Aug. 16, 2018), is an appeal filed in the Supreme Court of United States from a lower court decision in Case No. 18-174 (4th Cir., May 17, 2018). In a March 2018 decision, Judge William L. Osteen, Jr. of the U.S. District Court for the Middle District of North Carolina granted in part and denied in part the Plaintiffs' Motion to Remand; (ii) denied as moot the Plaintiffs' Motion for Expedited Determination of Motion to Remand; and (iii) granted in part and denied in part the Plaintiffs' Motion to Defer Time to File Federal Motion for Class Certification. The Plaintiffs commenced the putative class action in Durham County in the Superior Court Division of the General Court of Justice of the State of North Carolina on Nov. 21, 2016, against Defendant PRA. The Defendant removed the case to federal district court on Dec. 9, 2016, on the basis of diversity jurisdiction pursuant to the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiffs moved the District Court under 28 U.S.C. Section 1447(c) to remand the case to state court on the grounds that the District Court lacks jurisdiction over the claims pursuant to the Rooker-Feldman doctrine. The Plaintiffs' Complaint seeks to set aside certain default judgments obtained by PRA in North Carolina state courts, and seeks to recover actual damages and civil penalties for alleged violations of N.C. Gen. Stat. Sections 58-70-115(7), 58-70-130, and 58-70-155. PRA is a debt buyer and collection agency under North Carolina law. As a debt buyer, PRA is required to file certain properly authenticated evidence with a court prior to entry of a default judgment against a debtor. Rule 55(b) of the North Carolina Rules of Civil Procedure also governs the entry of default judgments. When a plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, then the clerk has the authority to enter a default judgment. Absent a sum certain, the default judgment must be entered by a judge. Since Section 58-70-155 became effective in October 2009, PRA has filed thousands of lawsuits in North Carolina state courts in which it subsequently obtained default judgments. PRA obtained default judgments against each of the named Plaintiffs in the action. The Plaintiffs claim that PRA failed to satisfy the Section 58-70-155 prerequisites that required it to file properly authenticated business records providing an itemization of the amount claimed to be owed. Plaintiff Townes has additionally filed and been granted a motion pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure to set aside her default judgment. In his ruling, Judge Osteen finds that the Court lacks jurisdiction over the claims of Plaintiffs Pounds, Miller, Sayaphet-Tyler, and Hall pursuant to the Rooker-Feldman doctrine. He granted in part and denied in part the Plaintiffs' Motion to Remand. He remanded the claims of Plaintiffs Pounds, Miller, Sayaphet-Tyler, and Hall to the General Court of Justice, Superior Court Division, Durham County, North Carolina, for further disposition. He denied the motion as to the claims of Plaintiff Townes. The Judge directed the Clerk of Court to send a certified copy of the Memorandum Opinion and Order to the Clerk of Superior Court in Durham County. A full-text copy of the Court's March 28, 2018 Memorandum Opinion and Order is available at https://is.gd/sRH3Vi from Leagle.com. A petition for writ of certiorari was filed on Aug. 14, 2018.[BN] Attorneys for Portfolio Recovery Associates: Troy D. Shelton, Esq. Sean W. Fernandes, Esq. Jonathan A. Berkelhammer, Esq. Joseph D. Hammond, Esq. ELLIS & WINTERS, LLP 4131 Parklake Avenue, Suite 400 Raleigh, NC 27612 Telephone: (919) 865 7098 E-mail: jon.berkelhammer@elliswinters.com JONES CREEK TEXAS: Underpays Deputy Marshalls, Harper Suit Says --------------------------------------------------------------- EDMON KEITH HARPER, individually and on behalf of all others similarly situated, Plaintiff v. VILLAGE OF JONES CREEK, TEXAS; JONES CREEK POLICE DEPARTMENT; and MARSHAL WILLIAM R. TIDWELL, in his official capacity, Defendants, Case No. 3:18-cv-00267 (S.D. Tex., Sept. 8, 2018) seeks payment of unpaid overtime compensation, regular wage, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. Mr. Harper was employed by the Defendants as deputy marshall. Village of Jones Creek, Texas is a Texas municipal governmental agency created as part of a political subdivision of the U.S. and the State of Texas. [BN] The Plaintiff is represented by: Paul H. LaValle, Esq. LAW OFFICES OF PAUL HOUSTON LAVALLE & ASSOCIATES, P.C. 2501 Palmer Hwy., Ste. 112 Texas City, TX 77592-3073 Telephone: (409) 945-3314 Facsimile: (409) 945-2310 E-mail: paul@lavalle-law.com JOSEPH CORY: Deliverymen's Labor Suit Seeks Unpaid Overtime Wages ----------------------------------------------------------------- Jorge Astudillo, Julio Astudillo, Luis Astudillo and Ariel Vela, individually and on behalf of all others similarly situated, Plaintiff, v. Joseph Cory Holdings LLC, Joseph Cory Holdings, LLC of New York and Bob's Discount Furniture, LLC and Patrick Cory, Defendants, Case No. 18-CV-005262, (E.D. N.Y., September 19, 2018), seeks to recover damages for egregious violations of New York State labor laws and the Fair Labor Standards Act; compensatory and liquidated damages; interest; attorneys' fees; costs and all other legal and equitable remedies. Joseph Cory Holdings operate as "Cory 1st Choice Home Delivery" and "Bob's Discount Furniture," furniture shop with a warehouse at 70 Marcus Avenue, Melville, New York 11747. Plaintiffs worked as delivery personnel. Defendants owe Plaintiffs unpaid wages for overtime and willfully failed to post notices of the minimum wage and overtime wage requirements in a conspicuous place at the location of their employment and failed to keep payroll records, notes the complaint. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@gmail.com KASHIF ABDUL KABANI: Alam Labor Suit to Recover Unpaid Overtime --------------------------------------------------------------- Burhan Alam, and all others similarly situate, Plaintiffs, v. Kashif Abdul Kabani, Defendant, Case No. 18-cv-03350 (S.D. Tex., September 19, 2018), seeks to recover unpaid overtime wages, equitable relief, compensatory and liquidated damages, attorney's fees, all costs of the action, and post-judgment interest for Defendant's failure to pay overtime wages under the Fair Labor Standards Act. Alam was an employee who worked as a clerk at a gas station and convenience store owned, operated and controlled by Kabani. Alam did not receive overtime pay for hours worked in excess of 40 during each workweek. [BN] Plaintiff is represented by: Salar Ali Ahmed, Esq. ALI S. AHMED, P.C. One Arena Place 7322 Southwest Frwy., Suite 1920 Houston, TX 77074 Telephone: (713) 223-1300 Facsimile: (713) 255-0013 Email: aahmedlaw@gmail.com KPH TURCOT: Not Defendant in AGQ Class Action --------------------------------------------- P.A. Sevigny, writing for The Suburban, reports that contrary to what was published in a recent issue of The Suburban, the Attorney General of Québec (AGQ) is now the sole defendant in a class action suit that was initially filed against the AGQ and its partners that included the consortium known as KPH Turcot. According to court documents, (page 2, #3), ". . . the application was heard on January 22 and 23, 2018, at a time when the named defendants included the AGQ, but also a consortium and its partners, KPH Turcot, un partenariat S.E.N.C. (collectively KPH), and a contractor who was granted a design-built contract for certain work related to the project." However, further reading of the 30 page judgement indicates that on the second day of the hearing, KPH Turcot lawyers convinced the court to ". . . discontinue the authorization proceedings against KPH," after which the consortium was reduced to little more than a footnote in Superior Court Judge Karen Roger's decision to allow the case to proceed as requested. [GN] KRS GLOBAL: Class Certification in Sawyer TCPA Suit Denied ---------------------------------------------------------- In the case, WILLIAM P. SAWYER d/b/a SHARONVILLE FAMILY MEDICINE, Plaintiff, v. KRS GLOBAL BIOTECHNOLOGY, INC., et al., Defendants, Case No. 1:16-cv-550 (S.D. Ohio), Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio, Western Division, (i) overruled the Plaintiff's Objections to the Report and Recommendation; and (ii) denied the Plaintiff's Motion for Class Certification. Sawyer, doing business as Sharonville Family Medicine, is a primary care medical practice located in Sharonville, Ohio. Sawyer has a telephone number that is used to receive faxes. Defendant KRS Global Biotechnology, Inc. is a Florida compounding pharmacy with nearly 90 employees, almost 20 of whom are sales representatives. On Oct. 9, 2015, KRS sent an unsolicited one-page advertisement for intravenous infusion sets and/or other products ("Infusion Kit Fax") to Sawyer. KRS admits that it had no prior business relationship with Sawyer and that KRS did not seek or obtain permission from Sawyer to send the Infusion Kit Fax prior to doing so. Although KRS admits that it sent an unsolicited fax to Sawyer, it maintains that the fax was sent in violation of KRS's established business practice to send fax advertisements only to existing customers and others who have agreed to receive the faxed advertisements. In October 2015, RingCentral provided KRS' telecommunications services. In response to a subpoena, RingCentral produced KRS' call and fax log data. According to the fax log, KRS transmitted 34,773 outbound faxes on Oct. 8 and Oct. 9, 2015. More than 99% of these faxes originated from the same number as the number used to send Sawyer the Infusion Kit Fax. KRS disputes that it faxed 34,773 copies of the Infusion Kit Fax, but it admits it transmitted between 1,000 and 10,000 of that particular advertisement. The fax log reflects only whether a fax was successfully transmitted, not the content of the fax. Sawyer initiated the putative class action under the "junk fax" provision of the Telephone Consumer Protection Act of 1991 ("TCPA"). Sawyer filed a Motion for Class Certification in which it seeks to represent all 34,773 fax recipients it claims received the Infusion Kit Fax on Oct. 8 or Oct. 9, 2015. The Court referred the motion to a Magistrate Judge for a report and recommendation, pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. Section 636(b)(1)(B). The Magistrate Judge conducted oral argument on May 14, 2018. In a well-reasoned report, the Magistrate Judge explained, in part, that Sawyer failed to satisfy the "predominance" requirement of Federal Civil Rule 23(b)(3) as individualized questions of consent to receive the Infusion Kit Fax prevented common questions from predominating and recommended that Sawyer's Motion to Certify Class be denied. Sawyer has filed Objections to the Report and Recommendation to which KRS has responded. Specifically, Sawyer makes the following objections: (i) KRS' evidence of permission is insufficient to undermine the predominance requirement; (ii) KRS bears the burden of proof on the permission defense; (iii) the Magistrate Judge did not apply the appropriate legal standard for evaluating whether the prerequisites of commonality, typicality, and adequacy have been met; and (iv) the Magistrate Judge failed to make a clear recommendation as to whether the prerequisites of adequacy and superiority have been met. Judge Dlott holds that the Magistrate Judge entered a thorough and thoughtful Report and Recommendation in the case. As part of that report, she properly concluded that Sawyer has failed to satisfy the predominance requirement of Rule 23(b)(3). The Judge, after reviewing the matter de novo, agrees. Because Sawyer has failed to fulfill the requirements of Rule 23(b), his remaining objections are moot. For the foregoing reasons, the Judge orverruled the Plaintiff's Objections to the Magistrate Judge's Report and Recommendation, and denied the Plaintiff's Motion for Class Certification. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/2YaU6U from Leagle.com. William P. Sawyer, individually and as the representative of a class of similarly-situated persons, Plaintiff, represented by George Demetrios Jonson -- GJonson@mrjlaw.com -- Montgomery, Rennie & Johnson & Matthew E. Stubbs -- MStubbs@mrjlaw.com -- Montgomery, Rennie & Jonson. KRS Global Biotechnology, Inc., Defendant, represented by Paula Milsom Brown -- pbrown@kravitzllc.com -- Kravitz, Brown & Dortch, LLC, Richard R. Parsons -- rparsons@kravitzllc.com -- Kravitz Brown & Dortch LLC, Eric Bravin -- info@ellslaw.com -- Ellsworth Law Firm, P.A., pro hac vice & Sean M. Ellsworth, Ellsworth Law Firm, P. A., pro hac vice. LANGMAS GROUP: Has Made Unsolicited Calls, Internal Medicine Says ----------------------------------------------------------------- INTERNAL MEDICINE RURAL HEALTH CLINIC OF NEW ALBANY, P.A., doing business as New Albany Medical Group, individually and on behalf of all others similarly situated, Plaintiff v. THE LANGMAS GROUP, INC., Defendants, Case No. 3:18-cv-00192-GHD-RP (N.D. Miss., Sept. 7, 2018) seeks to stop the Defendants' practice of making unsolicited calls. The Langmas Group, Inc. is a public company that services in healthcare. The Company has its principal place of business in Bend, Oregon, is organized under the laws of the State of Oregon. [BN] The Plaintiff is represented by: L.N. Chandler Rogers, Esq. ROGERS LAW GROUP 201 E Bankhead Street New Albany, MS 38652 Telephone: (662) 538-5990 Facsimile: (662) 538-5997 E-mail: chandler@rogerslawgroup.com - and - Winston B. Collier, Esq. THE COLLIER FIRM 2090 Old Taylor Road Oxford, MS 38655 Telephone: (870) 347-2100 Facsimile: (870) 47-1164 E-mail: winston@thecollierfirm.com - and - Gregory M. Zarzaur, Esq. ZARZAUR MUJUMDAR & DEBROSSE-TRIAL LAWYERS 2332 2nd Avenue North Birmingham, AL 35203 Telephone: 205-983-7985 Facsimile: 888-505-0523 E-mail: Gregory@zarzaur.com LAW FOOD: Fails to Pay for Overtime, Cook and Richardson Allege --------------------------------------------------------------- WHITNEY COOK, and CECILIE RICHARDSON, individually and on behalf of all others similarly situated, Plaintiff v. LAW FOOD SERVICE, LLC, Defendant, Case No. 2:18-cv-2155 (W.D. Ark., Sept. 6, 2018) is an action for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, penalties, attorneys' fees and costs as a result of the Defendant's failure to pay the Plaintiff overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Cook was employed by the Defendants as an hourly-paid employee. The Plaintiff Richardson was employed as assistant general manager. Law Food Service, LLC owns and operates a restaurant in Arkansas. [BN] The Plaintiff is represented by: Lydia H. Hamlet, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC 650 South Shackleford, Suite 411 Little Rock, AR Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: lydia@sanfordlawfirm.com josh@sanfordlawfirm.com LEADEXCEL INC: Abante Rooter Hits Illegal Telemarketing Calls ------------------------------------------------------------- Abante Rooter and Plumbing Inc., individually and on behalf of all others similarly situated, Plaintiff, v. Leadexcel, Inc. and Does 1 through 10, inclusive, Defendant, Case No. 18-cv-05750 (N.D. Cal., September 19, 2018), seeks injunctive relief, statutory damages, treble damages and all other relief for violation of the Telephone Consumer Protection Act. Leadexcel, Inc. provides business process outsourcing, including offering live-transfer lead generation services for merchant funding businesses. Abante Rooter and Plumbing is a rooting and plumbing business in Emeryville, California. It received calls from the Defendant using an automatic telephone dialing system offering its services. [BN] Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Adrian R. Bacon, Esq. Tom E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St. Suite 780, Woodland Hills, CA 91367 Phone: (877) 206-4741 Fax: (866) 633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com LIBERTYVILLE PICNIC: Underpays Cooks, Estrada Suit Alleges ---------------------------------------------------------- MARCOS ESTRADA, individually and on behalf of all others similarly situated, Plaintiff v. THE LIBERTYVILLE PICNIC BASKET, INC.; and AHMED AMIN, Defendants, Case No. 1:18-cv-06606 (N.D. Ill., Sept. 27, 2018) is an action against the Defendants for failure to pay minimum wages and overtime compensation under the Fair Labor Standards Act. Mr. Estrada was employed by the Defendants as cook. Picnic Basket is an Illinois corporation that operates a restaurant located at 501 N. Milwaukee Avenue, Libertyville, IL 60048. The Plaintiff is represented by: Maureen A. Salas, Esq. Douglas M. Werman, Esq. Sarah J. Arendt, Esq. WERMAN SALAS, P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com LIONS GATE: Agreement in Principle Reached in Starz Class Suit -------------------------------------------------------------- The parties in the case entitled, In re Starz Stockholder Litigation, Consolidated C.A. No. 12584-VCG, have reached an agreement in principle providing for the settlement of and dismissal of the case for a settlement payment in the amount of $92.5 million. Lions Gate Entertainment Corp. said in its Form 8-K filing with the U.S. Securities and Exchange Commission said, "As previously disclosed by Lions Gate Entertainment Corp. (the "Company"), between July 19, 2016 and August 30, 2016, seven putative class action complaints were filed by purported stockholders of Starz, a subsidiary of the Company, in the Court of Chancery of the State of Delaware against former members of the board of directors of Starz, John C. Malone and the Company (the "Litigation") in connection with the acquisition of Starz by the Company in December 2016. The Litigation was consolidated into In re Starz Stockholder Litigation, Consolidated C.A. No. 12584-VCG." On August 22, 2018, the parties to the Litigation reached an agreement in principle providing for the settlement of the Litigation on the terms and conditions set forth in an executed term sheet (the "Term Sheet"). The Term Sheet provides for, among other things, the final dismissal of the Litigation in exchange for a settlement payment made in the amount of $92.5 million. Insurance reimbursement is being sought and is expected for a significant portion of this amount. The settlement of the Litigation is subject to the final approval of the Court of Chancery of the State of Delaware. In addition, the settlement of the Litigation is not contingent or dependent in any way on, and does not release or resolve claims for, the separate statutory appraisal action brought by petitioners in In re Starz Appraisal, Consolidated CA. No. 12968-VCG. Lions Gate Entertainment Corp. engages in motion picture production and distribution, television programming and syndication, home entertainment, interactive ventures and games, and location-based entertainment in Canada, the United States, and internationally. LOEWS SANTA MONICA: Underpays Massage Therapists, Turner Alleges ---------------------------------------------------------------- CAROLINE TURNER, individually and on behalf of all others similarly situated, Plaintiff v. LOEWS SANTA MONICA HOTEL, INC.; and DOES 1 THROUGH 10, INCLUSIVE, Defendants, Case No. BC723614 (Cal. Super., Los Angeles Cty., Sept. 28, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. Ms. Turner was employed by the Defendants as massage therapist. Loews Hotels, Inc. owns and operates a chain of hotels and resorts for business, leisure, and family travelers in the United States and Canada. Loews Hotels, Inc. operates as a subsidiary of Loews Corporation. [BN] The Plaintiff is represented by: Amab Banerjee, Esq. Ari Y. Basser, Esq. Ruhandy Glezakos, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 9434-0396 E-mail: Amab.Banerjee@capstonelawyers.com Ari.Basser@capstonelawyers.com Ruhandy.Glezakos@capstonelawyers.com M&T BANK: Must Face ERISA Class Action, New York Judge Rules ------------------------------------------------------------ Emily Brill, writing for Law360, reports that M&T Bank Corp. must face a pared-down proposed class action accusing it of improperly stuffing its 401(k) plan with its own costly investment products, a New York federal judge ruled on Sept. 11. [GN] MAIZAL INC: Castro Labor Suit Seeks Unpaid Overtime Wages --------------------------------------------------------- Pedro Miranda Castro, individually and on behalf of all others similarly situated, Plaintiff, v. Maizal, Inc. and Leonel Alberto Zelaya, Defendants, Case No. 18-CV-05263, (E.D. N.Y., September 19, 2018), seeks to recover damages for egregious violations of New York State labor laws and the Fair Labor Standards Act; compensatory and liquidated damages; interest; attorneys' fees; costs and all other legal and equitable remedies. Defendants operate as "Maizal Restaurant" in Astoria, New York where Castro worked as a dishwasher, delivery person and food preparer. Defendants owe Plaintiff unpaid wages for overtime in excess of 40 hours per week, notes the complaint. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@gmail.com MARINA SECCHITANO: Fisher Sues over Mismanagement of Pension Plan ----------------------------------------------------------------- CLINT FISHER, individually and on behalf of the participants in Inlandboatmen's Union of the Pacific National Pension Plan and its participants, Plaintiff v. MARINA SECCHITANO; LEE EGLAND; BRIAN DODGE; DONOVAN DUNCAN; PETER HART; GAIL MCCORMICK; JOHN SKOW; ADAM SMITH; ROBERT ESTRADA; MATT HAINLEY; PATRICK MURPHY; ALICE NG; MIKE O'CONNOR; and ROBERT RELLER, Defendants, Case No. 3:18-cv-01639-BR (D. Or., Sept. 7, 2018) alleges violation of the Employee Retirement Income Security Act of 1974. The Plaintiff is a participant in the Inlandboatmen's Union of the Pacific National Pension Plan (the "IBU Plan"). The IBU Plan was established on July 1, 1981, pursuant to a Trust Agreement between the Inlandboatmen's Union of the Pacific and several employers. The Plaintiff alleges in the compliant that the Defendants breached their fiduciary duties to the participants in the IBU Plan by allowing the IBU Plan to incur and failing to timely eliminate an unfunded vested benefit liability ("UVB") over the last nine years. That UVB has now grown to an amount in excess of $73 million as of June 30, 2017. The IBU Trust Documents required the trustees to meet and take action to modify plan benefits and contributions in order to eliminate and avoid incurring UVB. However, the trustees failed to do that despite full knowledge of the UVB, until now, in 2018, they seek to adopt a Rehabilitation Plan that imposes changes in benefits only on those who retire after July 1, 2018. If the Trustees would have eliminated the UVB when it was first incurred in 2009, all participants at that time would have shared in the reduction in benefits to eliminate the $37 million UVB. However, rather than eliminating the UVB in 2009, the Trustees let the UVB ride, and now, in 2018, it has grown to $73 million. The Plaintiff is represented by: Steve D. Larson, Esq. Cody Berne, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840 E-mail: slarson@stollberne.com cberne@stollberne.com MARRIOTT HOTEL: 9th Cir. Vacates Summary Judgment in McCray Suit ---------------------------------------------------------------- In the case, IAN MCCRAY, an individual, and on behalf of himself, and on behalf of all other persons similarly situated, Plaintiff-Appellant, v. MARRIOTT HOTEL SERVICES, INC., a Delaware corporation; SJMEC, INC., a California corporation, Defendants-Appellees, Case No. 17-15767 (9th Cir.), Judge Albert Diaz of the U.S. Court of Appeals for the Ninth Circuit vacated the district court's denial McCray's motion to remand and grant of summary judgment to Marriott. When the City of San Jose enacted an ordinance that established a minimum wage of $10/hour, the San Jose Marriott Hotel continued to pay McCray and other employees less. It turned out that McCray's union had negotiated with Marriott and agreed to waive the ordinance's minimum-wage requirement so that it could bargain for other benefits for its members. McCray sued Marriott in state court. He says that the ordinance doesn't allow for waiver, and so Marriott owes him the difference between what he was paid and the new minimum wage. Marriott removed the case to federal court on the basis that McCray's claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"). The district court concluded that McCray failed to first exhaust his claim through a required grievance process and granted summary judgment to Marriott. The appeal followed. Judge Diaz finds that the San Jose ordinance and relevant state law afford workers in San Jose the right to be paid the minimum wage established by the ordinance, subject to the requirements of California law. That the ordinance contains an opt-out mechanism doesn't change the fact that these rights originate outside of the collective-bargaining agreement ("CBA"). He therefore holds that McCray's claims arise independently under state law and are not subject to Section 301 preemption on that basis. The Judge next finds that the degree of analysis of the CBA the case requires isn't altogether different from checking an agreement to identify, for example, an employee's pay rate. And in many respects, it presents the inverse of the issue in Burnside v. Kiewit Pac. Corp.: there, the Court said that looking at a CBA to see whether it contained a valid waiver didn't require "interpreting" the agreement. The Judge fails to see why the result should be any different in the case simply because a waiver does exist. Finally, the Judge recognizes that although McCray hasn't yet challenged the substance of the waiver, he may attempt to do so later in the litigation. But that speculative possibility isn't enough to warrant preemption at this early stage. As McCray has framed his claims (and argued them thus far), his case will rise or fall based on interpretation of the local ordinance, not interpretation of the CBA. The possibility that things could change down the road is simply not enough to warrant preemption now. In sum, the Judge concludes that the district court didn't have jurisdiction to hear the case, because the LMRA doesn't preempt McCray's claims. The district court therefore erred in denying McCray's motion to remand this case to state court and shouldn't have reached the merits of Marriott's motion for summary judgment. Accordingly, Judge Diaz vacated the district court's denial of McCray's motion to remand and also vacated its grant of summary judgment in favor of Marriott. Upon remand, the district court should return the case to state court for further proceedings. A full-text copy of the Court's Aug. 31, 2018 Opinion is available at https://is.gd/ykBw60 from Leagle.com. James L. Pagano (argued) and Ian A. Kass -- ianakass@yahoo.com -- Pagano & Kass APC, San Jose, California, for Plaintiff-Appellant. William J. Dritsas (argued)-- wdritsas@seyfarth.com -- Seyfarth Shaw LLP, San Francisco, California; Michael W. Kopp -- mkopp@seyfarth.com -- Seyfarth Shaw LLP, Sacramento, California; for Defendants-Appellees. Paul L. More -- pmore@msh.law -- McCracken Stemerman & Holsberry LLP, San Francisco, California, for Amicus Curiae Unite Here Local 19. MERCHANT GROUP: Has Made Unsolicited Calls, Abante Rooter Alleges ----------------------------------------------------------------- ABANTE ROOTER AND PLUMBING, INC., individually and on behalf of all others similarly situated, Plaintiff v. THE MERCHANT GROUP USA, LLC d/b/a 1800 MONEY MERCHANT, and DOES 1 through 10, Defendants, Case No. 4:18-cv-05493-DMR (N.D. Cal., Sept. 7, 2018) alleges that the Defendant negligently, knowingly, and willfully contacted the Plaintiff on its cellular telephone in violation of the Telephone Consumer Protection Act. The Merchant Group USA, LLC d/b/a 1800 Money Merchant is a financing company. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler , Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com MERCK & CO: 44 Lawsuits Filed over Zostavax Vaccine --------------------------------------------------- At least 44 lawsuits have been filed against Merck & Co., Inc. early this year seeking to recover damages as a result of personal injuries suffered from the use of Zostavax (TM) vaccine. Each of the complaints relates that the Zostavax (TM) vaccine was and is intended for the long-term prevention of herpes zoster (or shingles). It is manufactured, designed, licensed, processed, assembled, marketed, promoted, packaged, labeled, distributed, supplied, and/or sold by Defendants. In each of the lawsuits, the Plaintiff was inoculated with the Zostavax (TM) vaccine for the long-term prevention of shingles. However, the Plaintiff was diagnosed with shingles after being inoculated with the Zostavax (TM) vaccine and suffered serious physical, emotional, and economic damages as a result of her shingles and associated injuries. The lawsuits are captioned as: "ADAMS, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 4:18-cv-00155-MW-CAS (M.D. Fla. Mar. 23, 2018)"; "DONNA ALFORD, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 6:18-cv-00093-PGB-DCI (M.D. Fla., Apr. 5, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG,, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 18-CA-5258 (Fla. Cir. Ct., Hillsborough Cty., Jul. 1, 2018)"; "ANGELO BENCIVENGA, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20014-HB (M.D. Fla., Jan. 26,2018)"; "MARYFAITH BLANCHARD, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20004-HB (M.D. Fla., Mar. 8, 2018)"; "JANE BODA, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20089-HB (M.D. Fla., May 1, 2018)"; "EILEEN BOWMAN, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20015-HB (M.D. Fla., Mar. 26, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20072-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20069-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20063-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20073-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20061-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "FRANZ DEKER, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20017-HB (M.D. Fla., Mar. 26, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20062-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20070-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PEGGY DISS, ERNEST MORRIS, MARC RAWITT, DEBORAH AUGENTI, MONIQUE COCHRAN, ROLAND HALLE, ALVAH HULETT, GAIL DIXON, SUSAN GAINES, SUSAN DETRIE, JOANNE HOLLAND, JOSEPH ENGOLIA, EILEEN GIDDINGS, JOHN BARRETT, SHIRLEY JARVIS, LINDA ARCH, JANET FORNEY, MARION GRAHAM JR., JUAN CASTRO, CECIL CAMPBELL, JUDY FISCHER, VICTOR RODRIGUEZ, INEZ ARCHER, PATRICIA DAMICO, and MARY HIGDON, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20074-HB (Fla. Cir. Ct., Hillsborough Cty., July 23, 2018)"; "WILLIAM DOLAN, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20018-HB (M.D. Fla., Mar. 23, 2018)" "ROBERT ERICKSON, VERNON PURDHAM, and REBECCA BELL,, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20002-HB (Fla. Cir. Ct., Hillsborough Cty., Sep. 21, 2017)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20058-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PHYLLIS FORD, and JUDITH ENDRESEN-WORTH, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20079-HB (M.D. Fla., July 1, 2018)"; "HOWARD E. GLASSCO, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20065-HB (M.D. Fla., Aug. 9, 2018)"; "JANE GREENAWALT, MARY OUTLAW, MARYANN INTAGLIATA, PALMA TRESCHAN, SHARON GODWIN, SARAH A MCCLELLAND, MARY SPEIGLE, RONALD STICHTER, CAROLE TRIPLETT, BETTY WARNER-WILLIAMS, BEATRICE WHITENER, WANDA MARTINEZ, and LORETTA MARTINEZ-FAVIER,, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20054-HB (Fla. Cir. Ct., Hillsborough Cty., May 17, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20071-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "JUDITH GRENIER, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20010-HB (M.D. Fla., Mar. 23, 2018)"; "CURTIS HIRAM, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20021-HB (M.D. Fla., Mar. 23, 2018)" "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20067-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "DAVID MALBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20013-HB (M.D. Fla., Jan. 26,2018)"; "PATTE MARTINEZ, TAMMY MEADE, EDNA MIDDLETON, and HELEN OPORTO,, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20053-HB (Fla. Cir. Ct., Hillsborough Cty., May 17,2018)"; "MILDRED SHEPPARD, KAREN STEPHENS, MARIAN McRAE, and BETTY MELUCCI, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20001-HB (Fla. Cir. Ct., Hillsborough Cty., Mar. 5, 2018)"; "PEDRO RIVERA MELENDEZ, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20011-HB (M.D. Fla., Mar. 23, 2018)"; "MILDRED SHEPPARD, KAREN STEPHENS, MARIAN McRAE, and BETTY MELUCCI, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20019-HB (Fla. Cir. Ct., Hillsborough Cty., Mar. 5, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20059-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "JANE PATTERSON, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20008-HB (M.D. Fla., Apr. 9, 2018)"; "JOYCE PILLITTERI, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20003-HB (M.D. Fla., Mar. 8, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20068-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "LILLIE PRATT, LEONARD REISS, GARRY SCHUEMANN, RICHARD MCDONALD, ROBERT MASUCCI, MARTHA WATSON, RUTH MUZZEY, ANDREA PRESTON, NICHOLAS SPEIDEL, JOYCE A. STEDMAN, WILLIAM F. KELSHAW JR., ALICE PEALE, JAMES SANTO, FRANCES LANE, NATALIE ROBINSON, SANDRA SIUDVINSK1, RUTH LINTEAU, JOSI ZEN DZIAN, VERNON LEE, JOSEPH YEPEZ, WILLIAM KELLY, SYLVIA LAGUERRA, and CAROL SNYDER;, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20051-HB (Fla. Cir. Ct., Hillsborough Cty., July 23, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20055-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "MILDRED SHEPPARD, KAREN STEPHENS, MARIAN McRAE, and BETTY MELUCCI, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20023-HB (Fla. Cir. Ct., Hillsborough Cty., Mar. 5, 2018)"; "SUZANNE SMITH, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20007-HB (Fla. Cir. Ct., Hillsborough Cty., Jan. 8, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20057-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; MILDRED SHEPPARD, KAREN STEPHENS, MARIAN McRAE, and BETTY MELUCCI, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20016-HB (Fla. Cir. Ct., Hillsborough Cty., Mar. 5, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20056-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; "PATRICIA A. RICHARDSON, MICHAEL STEPHENS, NORMA STANTON, SHELBY FELL, SANDRA MORRIS, ROSLYN BUDZINSKI, MITCHEL BASS, KATHLEEN CIRILLO, MARGARET DELAMORE, GERALD CARTER, SANDRA TRAPNESE, HOWARD E. GLASSCO, RODGER HENDERSON, LINDA HUTER, EARL POPLARS, NORMA CAMPBELL-HICKEY, JOHN DESTEPHANO, JANICE GREENE, ESTELLE BROWN, and EDWARD CEDERBERG, the Plaintiff, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20064-HB (Fla. Cir. Ct., Hillsborough Cty., July 18, 2018)"; and "BEULAH VANMETER, GAIL SANTORO, ANGELINA RICCI, LILLIAN MACOMBER, CYNTHIA LLINAS, LINDA RUSS, and ANNE LEVINSON, the Plaintiffs, v. MERCK & CO., INC.; MERCK SHARP & DOHME CORP.; and McKESSON CORP., the Defendants Case No.: 2:18-cv-20052-HB (Fla. Cir. Ct., Hillsborough Cty., Apr. 27, 2018)" Merck & Company, Inc., d.b.a. Merck Sharp & Dohme outside the United States and Canada, is an American pharmaceutical company.[BN] Attorneys for Plaintiffs: Carmen A. De Gisi, Esq. MARC J. BERN & PARTNERS LLP 101 West Elm Street, Suite 215 Conshohocken, PA Telephone: (610) 941 4444 Facsimile: (610) 941 9880 E-Mail: cdegisi@bernllp.com MICHIGAN: $199K Attorneys' Fees Awarded in Suit vs. MDHHS --------------------------------------------------------- In the case, M.R., on behalf of himself and all others similarly situated, Plaintiff, v. NICK LYON, in his official capacity Only as Executive Director of the MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant, Case No. 2:17-cv-11184-DPH-RSW (E.D. Mich.), Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Class Counsel's Motion for an Award of Attorneys' Fees and Reimbursement of Expenses. The Class Plaintiff and Defendant Lyon, in his official capacity only as the Executive Director of the Michigan Department of Health and Human Services ("MDHHS"), agree on the Motion for Attorneys' Fees. The Class Counsel requests that the Court issues an award of $199,000 in attorneys' fees, as agreed upon in the preliminarily approved Settlement Agreement. One Class Member, Mr. Kirk Leaphart, filed an Objection to the proposed settlement, arguing that the exclusive incentive award is unfair and that the Class Counsel's request for attorneys' fees is excessive. Leaphart requests that each Class Member who filed, and was unsuccessful, in bringing administration action against the Defendant's state agency for the relief sought in the litigation, also be granted an incentive award of $5,000. Judge Hood finds that the Class Counsel's requested attorneys' fee award is appropriate. First, the Plaintiff class will receive a tremendous benefit from the Class Counsel's work in the case. Second, she finds the requested amount of attorneys' fees reasonable considering that the Class Counsel has spent more than 896.3 hours pursuing the litigation, and the Class Counsel requests a fee substantially lower than the Class Counsel would normally receive for the services provided in the case. Third, the Class Counsel rendered services on a contingent fee basis. Fourth, public policy supports approving the Class Counsel's requested fees. Fifth, the case involved certifying a class to afford the Plaintiff Class Member's statewide relief in a case involving numerous factually and legally complex issues. Sixth, the Class Counsel is skilled and knowledgeable in prosecuting class actions, and has negotiated and recovered millions of dollars in class actions throughout the United States. Based on the factors considered, the Judge denied the objection to the amount of attorneys' fees, and granted the Plaintiffs' Motion for an Award of Attorneys' Fees and Reimbursement of Expenses pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2). The Plaintiffs are entitled to attorney fees in the amount of $199,000, which is inclusive of all costs and expenses incurred in the matter. Their Class Representative, M.R., is entitled to an incentive award in the amount of $5,000. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/aSbj9p from Leagle.com. J.V., on behalf of herself and all others similarly situated, Plaintiff, represented by John M. Traylor -- jtraylor@dickinson-wright.com -- Dickinson Wright PLLC, Randall L. Tatem, Dickinson Wright PLLC & Aaron V. Burrell, Dickinson Wright, PLLC. Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Defendant, represented by Joshua S. Smith, MI Department of Attorney General Health Education and Family Services & Kelley Turnock McLean, Department of Attorney General. MICHIGAN: Settlement in Suit vs. MDHHS Has Final Approval --------------------------------------------------------- In the case, M.R., on behalf of herself and all others similarly situated, Plaintiff, v. NICK LYON, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Defendant, Case No. 2:17-cv-11184-DPH-RSW (E.D. Mich.), Judge Denise Page Hood of the U.S. District Court for the Eastern District of Michigan, Southern Division, granted the Plaintiffs' Motion for Final Approval of Class Settlement. On Aug. 15, 2018, Plaintiff M.R. and Class Counsel Dickinson Wright, PLLC, for themselves and on behalf of the certified class, moved for final approval of the class action settlement and Release Agreement. The Court granted Preliminary Approval on May 29, 2018. The Defendant does not object to the Motion. A fairness hearing was held on Aug. 8, 2018. One objection and two letters were received by the Court. One objection was filed, "Class Member 60's Kirk Leaphart's Objections in Part to Class Action Settlement Agreement and Release." The sole objector to the class settlement argues that the amount of attorneys' fees requested by the Class Counsel is excessive. That objection is addressed in a separate order awarding attorneys' fees. On April 14, 2017, the Plaintiff filed the putative class action in the U.S. District Court for the Eastern District of Michigan, Southern Division captioned J.V. on behalf of herself and all others similarly situated v. Nick Lyon, in his official capacity only as executive director of the Michigan Department of Health and Human Services, Case No.: 2:17-cv-11184-DPH-RSW. The complaint alleged that the Defendant's current prior-authorization criteria for Hepatitis C treatment (the MDHHS Prior Authorization Criteria) violates three separate provisions of the Medical Assistance Program, Title XIX of the Social Security Act: (1) excluding qualified Medicaid recipients from medically necessary treatment as required by 42 U.S.C. Section 1396a(a)(10)(A); (2) discriminating among similarly situated Medicaid recipients in violation of 42 U.S.C. Section 1396a(a)(10)(B); and (3) failing to provide medically necessary treatment with reasonable promptness as required by 42 U.S.C. Section 1396a(a)(8). The terms of the Settlement Agreement include but are not limited to the following: a. The Defendant agrees to replace the MDDHS Prior Authorization Criteria and institute the Amended Prior Authorization Criteria to provide coverage for direct-acting antiviral treatment to all Eligible Michigan Medicaid beneficiaries diagnosed with chronic Hepatitis C. b. The Defendant agrees to expand direct-acting antiviral treatment coverage to all Eligible Michigan Medicaid beneficiaries diagnosed with chronic Hepatitis C based on the following schedule: (i) it will provide coverage for all eligible beneficiaries with a metavir fibrosis score of F-1 and above on Oct. 1, 2018; and (ii) it will provide coverage for all beneficiaries with a metarvir fibrosis score of F-0 an above on Oct. 1, 2019. c. The Amended Prior Authorization Criteria will include, but is not limited to, the following provisions; i. the direct-acting antiviral medication must be prescribed by a gastroenterologist, hepatologist, liver transplant or infectious disease physician. If the prescribing provider is not one of the identified specialists noted, the prescriber must submit documentation of consultation/collaboration of the specific case with one of the aforementioned specialists which reflects discussion of the history and agreement with the plan of care with the date noted in the progress note. ii. Documentation of the patient's use of Illegal Drugs or abuse of alcohol must be noted (i.e., current abuse of IV drugs or alcohol or abuse within the past 6 months). The Michigan Department of Health and Human Services will consider this information for the sole purpose of optimizing treatment. iii. Documentation of the patient's commitment to the planned course of treatment and monitoring (including SVR 12) as well as patient education addressing ways to reduce the risks for reinfection must be submitted. d. The Defendant reserves the right to revise the Amended Prior Authorization Criteria and Claim Form to incorporate updated clinical recommendations or other best practices, consistent with the Agreement. e. The Defendant agrees to provide coverage for direct-acting antiviral medications that are (i) approved by the U.S. Food and Drug Administration for the treatment of chronic Hepatitis C; (ii) have a federal Medicaid rebate; and (iii) are listed on the Defendant's Preferred Drug List as preferred at the time the beneficiary is approved for treatment. f. If a direct-acting antiviral medication is no longer approved by the U.S. Food and Drug Administration for the treatment of chronic Hepatitis C or no longer on the Defendant's Preferred Drug List, it will no longer be covered. Judge Hood, following the fairness hearing, finds there is no indication of fraud or collusion in the case. The opinions of the class counsel and class representative -- based on the Settlement Agreement entered into by the Parties -- show that they favor the Agreement and agree the terms are fair. The Judge finds that the Class Representative has obtained a significant, potentially life-saving benefit, for the Class. The Settlement Agreement is also in the public interest for people to receive access to needed health care. As the Court determined in granting preliminary approval on May 29, 2018, Dickson Wright PLLC (the "Firm") has invested significant time and effort identifying, researching, and investigating the claims in the action. The Firm has developed a litigation strategy for Plaintiff and the putative class members, and negotiated the proposed Settlement Agreement. It has been appointed as the class counsel in other recent health care-related litigation before the Court, has experience handling class actions and other complex litigation, and has the resources to represent this class in this action. The Firm is qualified to be the class counsel in the litigation pursuant to Federal Rule of Civil Procedure 23(g). For the reasons set forth, Judge Hood certified the controversy as a class action. The class certified is defined as all individuals that are or will be enrolled in Michigan's Medicaid Program at the time the Order is entered; have been or will be diagnosed with a chronic infection of the Hepatitis C Virus; are 18 years of age or older; require, or in the future will require, treatment for Hepatitis C with direct-acting antiviral medication; and do not meet the Michigan Department of Health and Human Services' current treatment criteria, which restricts direct-acting antiviral treatment to individuals with a minimum metavir fibrosis score criteria of F-2. Te Judge appointed named Plaintiff, M.R., as the class representative; and Dickinson Wright as the class counsel. The approval of the Parties' class action Settlement Agreement is granted. On Sept. 21, 2018, the Parties will mail notice of settlement approval and claim forms to class members. On Oct. 1, 2018, Settlement Agreement terms will go into full effect. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/5nPLlg from Leagle.com. J.V., on behalf of herself and all others similarly situated, Plaintiff, represented by John M. Traylor -- jtraylor@dickinson-wright.com -- Dickinson Wright PLLC, Randall L. Tatem, Dickinson Wright PLLC & Aaron V. Burrell, Dickinson Wright, PLLC. Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Defendant, represented by Joshua S. Smith, MI Department of Attorney General Health Education and Family Services & Kelley Turnock McLean, Department of Attorney General. MIDLAND CREDIT: Preston FDCPA Suit Dismissed -------------------------------------------- Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted MCM's motion to dismiss the case, NEAL PRESTON, individually and on behalf of a nationwide class of similarly situated individuals, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC., Defendant, Case No. 18 C 1532 (N.D. Ill.). After MCM sent a debt collection letter with an allegedly time-sensitive discount offer, Preston filed the putative class action suit against MCM claiming violations of the Fair Debt Collection Practices Act ("FDCPA"), and the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"). In July 2017, MCM sent Preston a debt collection letter, enclosed in an envelope with the words "Time Sensitive Document" printed on its exterior in bold font. The letter contained information regarding a debt that MCM sought to collect from Preston, as well as potential discounted plans for Preston to pay off his debt if he submitted a payment by a certain date. Specifically, the letter outlined two discounted payment options, with one offering 40% off the total debt balance if Preston made one single payment by Aug. 18, 2017, and another offering 20% off the balance if he made six monthly installment payments, with the first payment due by August 18, 2017. The letter urged Preston to "act now" to take advantage of the discounts. At the bottom of the letter, MCM stated that they're not obligated to renew any offers provided. Preston claims that the language on the exterior of the envelope violates Section 1692f(8) and that the language on its own and in combination with the letter's discount offer suggests a false sense of urgency in violation of Section 1692e(2)(A), e(10), and Section 1692f. MCM moves to dismiss the FDCPA claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Ellis agrees that MCM's use of language on the outside of the envelope falls within the benign language exception to Section 1692f(8) and so Preston's Section 1692f(8) claim fails. She also finds that the language, alone or in combination with the discount offer, does not violate Section 1692e(2)(A) or e(10) because MCM properly employed safe harbor language approved by the Seventh Circuit in connection with its discount offer. As this disposes of the FDCPA claims over which the Court has original jurisdiction, the Judge declines to exercise supplemental jurisdiction over the ICFA state law claim and dismisses that claim without prejudice. For the foregoing reasons, Judge Ellis granted MCM's motion to dismiss. She dismissed Preston's individual FDCPA claims (Counts I, III, V) with prejudice and his class based FDCPA claims (Counts II, IV, and VI) without prejudice. She dismissed the ICFA claim (Count VII) without prejudice to refiling in state court and terminated the case. A full-text copy of the Court's Sept. 4, 2018 Opinion and Order is available at https://is.gd/Yqnyw9 from Leagle.com. Neal Preston, Plaintiff, represented by Ahmad Tayseer Sulaiman -- osulaiman@sulaimanlaw.com -- Sulaiman Law Group, Ltd., Mohammed Omar Badwan, Sulaiman Law Group, Ltd., Omar Tayseer Sulaiman -- ahmad.sulaiman@sulaimanlaw.com -- Sulaiman Law Group, Ltd. & James C. Vlahakis -- jvlahakis@sulaimanlaw.com -- Sulaiman Law Group, Ltd. Midland Credit Management, Inc., Defendant, represented by David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP & Jennifer W. Weller -- jweller@hinshawlaw.com -- Hinshaw & Culbertson LLP. MIDLAND CREDIT: Trichell FDCPA Suit Dismissed --------------------------------------------- Judge Annemarie Carney Axon of the U.S. District Court for the Northern District of Alabama, Middle Division, granted the Defendants' motion to dismiss the case, JOHN TRICHELL, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC., et al., Defendants, Case No. 4:18-cv-00132-ACA (N.D. Ala.). Trichell filed the putative class action suit on behalf of himself and others similarly situated, naming as the Defendants two debt collectors: Midland Credit Management, Inc. and its sister company Midland Funding, LLC. Mr. Trichell alleges that the Defendants violated the Fair Debt Collection Practices Act ("FDCPA") by deceptive or misleading debt collection letters seeking repayment of legally unenforceable debts. Midland Funding is a company that buys defaulted consumer debts, which it collects through other collection agencies, such as Midland Credit Management. Mr. Trichell alleges that more than seven years before he filed this complaint, he allegedly defaulted on an unspecified amount of credit card debt. Consistent with its business model, Midland Funding acquired Mr. Trichell's defaulted debt and in 2017, it had Midland Credit Management send him three collection letters stating that he had a balance due of $42,859.55. But, under Alabama law, by the time Midland Credit Management sent those letters, the debt was legally unenforceable because the statute of limitations barred any lawsuit to recover the defaulted debt. Mr. Trichell, on behalf of himself individually and all persons similarly situated in the State of Alabama, asserts that the Defendants' actions (1) violated 15 U.S.C. Section 1692e by attempting to collect time-barred debts using deceptive and misleading collection letters (Count One); and (2) violated 15 U.S.C. Section 1692f by using unfair or unconscionable means to collect or attempt to collect a debt (Count Two). The Defendants move to dismiss the complaint for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). Judge Axon concludes that the collection letters do not deceptively or misleadingly imply that the debts are legally enforceable. She also concludes that the rest of the language from the collection letters is not, as a matter of law, deceptive or misleading. As a matter of law, even a least sophisticated consumer would not find Midland Credit Management's collection letters deceptive or misleading. Even accepting as true all facts asserted by Mr. Trichell and making all reasonable inferences in his favor, Midland Funding and Midland Credit Management have not violated Section 1692e of the FDCPA. Because a least sophisticated consumer would not find the collection letters sent to Mr. Trichell deceptive or misleading, Judge Axon garnted the motion to dismiss the complaint, and dismissed without prejudice the complaint. The Judge will enter a separate order consistent with her Opinion. A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion is available at https://is.gd/y6zRqq from Leagle.com. John Trichell, Individually and on behalf of all others similarly situated, Plaintiff, represented by Bradford W. Botes -- bbotes@bondnbotes.com -- Bond, Botes, Reese & Shinn, P.C., David J. Philipps, Philipps & Philipps, Ltd., pro hac vice & Mary Elizabeth Philipps, Philipps & Philipps, Ltd., pro hac vice. Midland Credit Management, Inc., A Kansas Corporation & Midland Funding, LLC, A Delaware Limited Company, Defendants, represented by Chase Tristian Espy -- cespy@balch.com -- BALCH & BINGHAM LLP & Jason B. Tompkins -- jtompkins@balch.com -- BALCH & BINGHAM LLP. MITAC DIGITAL: Faces Livingston and McGill Suit in N.D. California ------------------------------------------------------------------ A class action lawsuit has been filed against MiTAC Digital Corporation. The case is captioned as Michael Livingston, and Sharon McGill, individually and on behalf of all others similarly situated, Plaintiff v. MiTAC Digital Corporation, Defendant, Case No. 3:18-cv-05993-JST (N.D. Cal., Sept. 28, 2018). The case is assigned to Judge Jon S. Tigar. MiTAC Digital Corporation provides portable GPS navigation consumer electronics. The company was founded in 1986 and is based in Santa Clara, California. As of January 13, 2009, MiTAC Digital Corporation operates as a subsidiary of MiTAC International Corp. [BN] The Plaintiffs are represented by: Jordan L. Lurie, Esq. Cody Robert Padgett, Esq. Tarek H. Zohdy, Esq. Trisha Kathleen Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 9434-0396 E-mail: Jordan.Lurie@capstonelawyers.com Cody.Padgett@capstonelawyers.com Tarek.Zohdy@capstonelawyers.com trisha.monesi@capstonelawyers.com MYRIAD GENETICS: Continues to Defend Kessman Class Action --------------------------------------------------------- Myriad Genetics, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the company continues to defend a purported class action lawsuit filed by Matthew Kessman. On April 20, 2018, Matthew Kessman, individually and on behalf of all others similarly situated, filed a purported class action complaint in the United States District Court, District of Utah, No. 2:18-cv-0336-DAK-EJF, against the company, its President and Chief Executive Officer, Mark C. Capone, its former President and Chief Executive Officer, Peter D. Meldrum, its Executive Vice President and Chief Financial Officer, R. Bryan Riggsbee, and its former Chief Financial Officer, James S. Evans. The action is premised upon allegations that the defendants made false and misleading statements regarding the company's business, operational and compliance policies, specifically by allegedly failing to disclose that the Company was allegedly submitting false or otherwise improper claims for payment under Medicare and Medicaid for our hereditary cancer testing. The plaintiff seeks certification as the purported class representative and the payment of damages allegedly sustained by plaintiff and the purported class by reason of the allegations set forth in the complaint, plus interest, and legal and other costs and fees. Myriad Genetics said, "We intend to vigorously defend against this action." No further updates were provided in the Company's SEC report. Myriad Genetics, Inc., a molecular diagnostic company, focuses on developing and marketing novel predictive medicine, personalized medicine, and prognostic medicine tests worldwide. Myriad Genetics, Inc. was founded in 1991 and is headquartered in Salt Lake City, Utah. NATIONAL HOCKEY: Late White Bear Player's Family Files Suit ----------------------------------------------------------- Bruce Strand, writing for White Bear Press, reports that alleging that players like need not have suffered from avoidable brain damage, the family of the late White Bear Lake hockey player has filed a wrongful death lawsuit against the National Hockey League (NHL). Scott Parker, Jeff's brother, filed the suit late August in California Superior Court for Los Angeles County, in the capacity as trustee of his brother's estate, also naming Jeff's 5-year-old daughter as a plaintiff. "My brother Jeff signed up for the concussion lawsuit, and we feel obligated to follow up on his wish to do this," said Mr. Parker, a high school teacher and hockey coach in Chippewa Falls, Wisconsin. "We were instructed by the judge that this is the way to go about it. "It wasn't an easy decision for the family, but we kept going back to knowing that Jeff wanted to help younger players in the NHL, to let them know what is coming." Jeff Parker was among 150-plus former players in a lawsuit originally filed in 2013 alleging that the NHL promoted violence and fighting to make the league more popular and profitable, while downplaying health risks associated with concussions. That was intended to be a class-action case, but a federal judge in St. Paul, Susan Nelson, rejected the class-action status July 13, on the grounds that it would present "significant case management difficulties." As a consequence of that ruling, ex-players (or their families) had to choose whether to go it alone against the league. The Parkers elected to sue. The 83-page lawsuit acknowledged that former players knew they might get injured playing in the league, but did not sign up for avoidable brain damage. A key passage reads: "The NHL was aware of the evidence and the risks associated with repetitive traumatic brain injuries for many decades, but deliberately ignored and actively concealed the information from the players, including the late Jeff Parker." It goes on to claim that the league "either took no steps to protect and educate its players or took insufficient steps to make players aware of the real risks of playing in the NHL, which would have protected players from unnecessary long-term effects of head trauma." Jeff Parker played four NHL seasons for the Buffalo Sabres and Hartford Whalers. He suffered multiple concussions, most notably the one that ended his career in 1991 when his head struck a metal stanchion as he was driven hard into the glass, while playing with Hartford against the Washington Caps. Mr. Parker, who helped White Bear Mariner reach the state finals as a senior in 1982, and was one of the leaders of Michigan State's national champion team in 1986, passed away Sept. 11, 2017, at age 53. His death was attributed to a blood infection. The former hockey hero had been working as a bartender in a St. Paul bar in recent years. He told White Bear Press and other media outlets in interviews that he dealt with a constant ringing in his ears, loss of taste, and sensitivity to light, which was why he took the bartender job. He was also disoriented with memory loss at times, his brother said. After Mr. Parker's death, the family donated his brain to be studied at Boston University's CTE (chronic traumatic encephalopathy) Center. Examiners confirmed that he suffered from the neurodegenerative brain disease. "The second (reason for filing) was the result of the CTE test," Mr. Scott Parker said. "If we had not donated the brain, we would not have much of a case, but . . . the results of the test being what they were, knowing how far along his CTE was, that helped us make this very difficult decision." Mr. Parker's Facebook page is filled with links to stories of former NHLers struggling with head injuries. One article hitting close to home concerned Joe Murphy, a former Michigan State teammate of Jeff's and a first-round draft pick. Scott was dismayed to learn that Murphy is homeless and doesn't even have a cell phone. "Our whole objective is to make the NHL accountable," said Mr. Parker. "This is not about Jeff; it's about other young men who are suffering . . . This ruling, looking at it, I don't know, I think makes it more difficult for some of the guys who are distraught and don't have the resources, who don't even have a cell phone." Mr. Parker was interviewed about Jeff's case by the Chippewa Falls Leader-Telegram in May. About the CTE discovery in Jeff's brain, he commented, "I knew it all along -- when he was late for his brother John's wedding, when he went to the wrong place for a TV interview, when he would come to my house and go down in the basement because he needed to be in a dark place." [GN] NATIONWIDE INSURANCE: Remand of Sibalich to State Court Suggested ----------------------------------------------------------------- In the case, KAREN SIBALICH, et al., Plaintiffs, v. NATIONWIDE INSURANCE COMPANY, Defendant, Civil Action No. 18-7818 (SOW) (LDW) (D. N.J.), Magistrate Judge Leda Dunn Wettre of the U.S. District Court for the District of New Jersey recommended that the Court grants the Plaintiffs' motion for remand. Plaintiffs Sibalich, Margaret A. Owens, Spine Surgery Associates, and Ambulatory Surgical Center of Somerset bring the putative class action to recover Personal Injury Protection insurance benefits that Defendant Nationwide allegedly failed to pay. The Plaintiffs initially filed the action in the Superior Court of New Jersey, Law Division, Sussex County on March 12, 2018. On March 14, 2018 at 3:20 p.m., a process server personally delivered the summons and complaint to Kim Mangan, a legal department senior analist at One Nationwide Plaza in Columbus, Ohio. The Plaintiffs filed an affidavit of service with the New Jersey state court on March 29, 2018. Nationwide employs CSC, a third-party service provider, to electronically manage and track its receipt of legal process. On March 16, 2018, CSC generated a "Notice of Service of Process" alerting the appropriate personnel that Nationwide had been served in the action. The notice states that the summons and complaint were originally served on Nationwide and describes the method of service as "Client Direct." CSC also transmitted to Nationwide a copy of the summons and complaint bearing a handwritten notation "3/14/18 @ 3:20 p.m." However, CSC's notice erroneously reported the date of service as March 15, 2018. On April 16, 2018, the Defendant removed the state court action to the U.S. District Court for the District of New Jersey, asserting that federal subject matter jurisdiction exists based on diversity of citizenship and the Class Action Fairness Act of 2005 ("CAFA"). On April 17, 2018, the Plaintiffs moved to remand the action to the state court. They assert that the Defendant's purported removal of the action was untimely under 28 U.S.C. Section 1446(b) because it filed the notice of removal more than 30 days after personal service of the summons and complaint was effectuated. The Defendant does not dispute that its removal of the action was untimely, but it seeks to have the Court extend the removal period pursuant to Rule 6(b) of the Federal Rules of Civil Procedure and the doctrine of equitable tolling. Magistrate Judge Wettre finds that the Defendant's delay in removing admittedly was brief and the Plaintiffs do not argue that they will be prejudiced. However, the Defendant's failure to file a timely notice of removal falls squarely on its own shoulders. The Defendant submits that it reasonably relied on the notice from CSC which contained an erroneous date of service. But CSC warned the Defendant that the Notice of Service of Process does not constitute a legal opinion, and Nationwide itself is responsible for interpreting the documents and taking appropriate action. Moreover, she finds that the Defendant should have and easily could have verified the deadline for removal: as highlighted in the CSC Notice, Nationwide was personally served with the summons and complaint and could have discussed the date of service with its own employee; the complaint it received included a handwritten notation showing the correct date of service; and the Plaintiff filed an affidavit of service with the correct date on the state court docket on March 29, 2018 (more than two weeks before the Defendant's removal to the Court), of which the Defendant had at least constructive notice. Given the strict time limit for removal under Section 1446(b) and considering all the relevant circumstances, she says the Defendant has not shown excusable neglect. Finally, the Magistrate finds that CSC's reporting error cannot be considered egregious, and the Defendant's unfortunate -- but entirely preventable -- reliance on the date in the CSC Notice of Service of Process is not so extraordinary as to justify equitable tolling of the 30-day window for removal under Section 1446(b). For the foregoing reasons, Magistrate Judge Wettre recommended that the Plaintiffs' motion to remand the action be granted. The parties are advised that, pursuant to Fed. R. Civ. P. 73(b)(2), they have 14 days after being served with a copy of the Report and Recommendation to serve and file specific written objections to the Hon. Susan D. Wigenton, U.S.D.J. A full-text copy of the Court's Sept. 4, 2018 Report and Recommendation is available at https://is.gd/0Z4EmS from Leagle.com. KAREN SIBALICH, MARGARET A. OWENS, Individually, and as class representatives on behalf of others similarly situated & SPINE SURGERY ASSOCIATES, Plaintiffs, represented by CHARLES THOMAS KANNEBECKER -- info@kannebeckerlaw.com -- & CHRISTOPHER MICHAEL PLACITELLA -- cplacitella@cprlaw.com -- COHEN, PLACITELLA & ROTH, PC. AMBULATORY SURGICAL CENTER OF SOMERSET, Individually, and as class representatives on behalf of others similarly situated, Plaintiff, represented by CHARLES THOMAS KANNEBECKER. NATIONWIDE INSURANCE COMPANY, Defendant, represented by JOHN R. VALES -- john.vales@dentons.com -- Dentons US LLP. NEBRASKA: Discovery Dispute Order in Sabata Prisoners Suit Issued ----------------------------------------------------------------- Magistrate Judge Michael D. Nelson of the U.S. District Court for the District of Nebraska has issued an order regarding the parties' ongoing discovery disputes in the case, HANNAH SABATA; DYLAN CARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAEL GUNTHER; ANGELIC NORRIS; R. P., a minor; ISAAC REEVES; ZOE RENA; and BRANDON SWEETSER; on behalf of themselves and all others similarly situated; Plaintiffs, v. NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES; SCOTT FRAKES, in his official capacity as Director of the Nebraska Department of Correctional Services; HARBANS DEOL, in his official capacity as Director of Health Services of the Nebraska Department of Correctional Services; NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her official capacity as the Board of Parole Acting Parole Administrator; and DOES, 1 to 20 inclusive; Defendants, Case No. 4:17CV3107 (D. Neb.). The matter is before the Court following a telephone conference held with the counsel for the parties on Aug. 30, 2018. The Plaintiffs requested the telephone conference to discuss several ongoing discovery disputes. In advance of the telephone conference, and as ordered by the Court, the counsel for both parties submitted a number of written documents to the Magistrate Judge, including memorandum arguments and a Joint Discovery Dispute Chart. While there are numerous areas of dispute identified by the parties in their written submissions, during the telephone conference the parties primarily addressed issues related to the Plaintiffs' request that the Defendants disclose non-party inmate medical files, and whether a protective order is sufficient to address the Defendants' concerns regarding non-party inmates' privacy and HIPAA. Given the nature of this dispute and the potential privacy concerns at stake, Magistrate Judge Nelson will require supplemental briefing on that issue, as well as any other issues that the parties are unable to resolve following the additional meet and confer(s). In particular, the parties should provide the Court with any authority regarding whether a party can disclose medical records of non-party individuals in a putative class action, without the express consent of the non-parties. As discussed with the counsel during the telephone conference, upon receipt of the supplemental briefing, the Magistrate will rule on any outstanding discovery requests identified in the parties' Join Discovery Dispute Chart. In accordance with the matters discussed during the telephone conference, Magistrate Judge Nelson ordered the parties to meet and confer to further attempt to resolve their ongoing discovery disputes. On Sept. 13, 2018, the Plaintiffs will file supplemental briefing on any outstanding disputes. The Defendants will file their supplemental briefing on Sept. 27, 2018. Unless the Court is notified otherwise, it will then make its rulings on the parties' Joint Discovery Dispute Chart. The Magistrate terminated the Motion deadline for the document filed by non-party Jesse Blackstock. The document requires no Court ruling and is simply a putative class member's written interest in joining the class, if one is certified. He therefore granted the Defendants' unopposed Motion to Strike. The Defendants' exhibits at Filing No. 127-2 and Filing No. 127-47 are stricken from their Index of Evidence as they were filed in error. The Magistrate will consider the corrected exhibits at Filing No. 146 when ruling on the Defendants' Motion for Partial Summary Judgment. He also granted the Defendants' Motion for Extension of Time to serve objections to the Plaintiffs' proposed facility tours, as the Plaintiffs do not object to the extension. He granted the Plaintiffs' Unopposed Motion for Extension of Time to File a Brief in Opposition to the Defendants' Motion for Partial Summary Judgment. They will have an extension of time to Sept. 7, 2018, to file their response to the Defendants' Motion for Partial Summary Judgment. The Defendants are granted an extension to Sept. 21, 2018, to file a Reply. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/dXUhGN from Leagle.com. Hannah Sabata, on behalf of themselves and all others similarly situated, Dylan Cardeilhac, on behalf of themselves and all others similarly situated, James Curtright, on behalf of themselves and all others similarly situated, Jason Galle, on behalf of themselves and all others similarly situated, Richard Griswold, on behalf of themselves and all others similarly situated, Michael Gunther, on behalf of themselves and all others similarly situated, Angelic Norris, on behalf of themselves and all others similarly situated, Isaac Reeves, on behalf of themselves and all others similarly situated, Zoe Rena, on behalf of themselves and all others similarly situated & Brandon Sweetser, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Amy Fettig, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Andrew D. Day -- andrew.day@dlapiper.com -- DLA PIPER US LAW FIRM, pro hac vice, Anna P. Bitencourt Emilio, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Benjamin Bien-Kahn -- bbien-kahn@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice, Christopher M. Young -- christopher.young@dlapiper.com -- DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Dawn M. Jenkins -- dawn.jenkins@dlapiper.com -- DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Ernest Galvan -- egalvan@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice, Jennifer Eldridge -- jennifer.eldridge@dlapiper.com -- DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen -- kjanssen@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith -- ksmith@neappleseed.org -- NEBRASKA APPLESEED CENTER, Michael W. Bien -- mbien@rbgg.com -- ROSEN, BIEN LAW FIRM, pro hac vice, Rekha Arulanantham -- rarulanantham@aclusocal.org -- AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. R. P., a minor, on behalf of themselves and all others similarly situated, Plaintiff, represented by Amy Fettig , AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, Amy A. Miller, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Andrew D. Day, DLA PIPER US LAW FIRM, pro hac vice, Anna P. Bitencourt Emilio, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Benjamin Bien-Kahn, ROSEN, BIEN LAW FIRM, pro hac vice, Christopher M. Young, DLA PIPER LAW FIRM, pro hac vice, David C. Fathi, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice, David J. Tarrell, Berry Law Firm, Dawn M. Jenkins, DLA PIPER LAW FIRM, pro hac vice, Debra Patkin, NATIONAL ASSOCIATION OF THE DEAF LAW & ADVOCACY CENTER, pro hac vice, Ernest Galvan, ROSEN, BIEN LAW FIRM, pro hac vice, Jennifer Eldridge, DLA PIPER LAW FIRM, pro hac vice, Kara J. Janssen, ROSEN, BIEN LAW FIRM, pro hac vice, Kenneth M. Smith, NEBRASKA APPLESEED CENTER, Michael W. Bien , ROSEN, BIEN LAW FIRM, pro hac vice, Rekha Arulanantham, AMERICAN CIVIL LIBERTIES UNION - NATIONAL PRISON PROJECT, pro hac vice & Robert E. McEwen, NEBRASKA APPLESEED CENTER. Nebraska Department of Correctional Services, Scott Frakes, In his official capacity as Director of the Nebraska Department of Correctional Services, Harbans Deol, In his official capacity as Director of Health Services of the Nebraska Department of Correctional Services, Nebraska Board of Parole & Julie Micek, In her official capacity as the Board of Parole Acting Parole Administrator, Defendants, represented by Danielle L. Jones, ATTORNEY GENERAL'S OFFICE, David A. Lopez, ATTORNEY GENERAL'S OFFICE, Jessica M. Forch, ATTORNEY GENERAL'S OFFICE, Katherine O'Brien, ATTORNEY GENERAL'S OFFICE & Ryan S. Post, ATTORNEY GENERAL'S OFFICE. Marshall Lux, Movant, represented by Shawn D. Renner -- srenner@clinewilliams.com -- CLINE, WILLIAMS LAW FIRM. NEW MEXICO: Revised Consent Degree in Hatten-Gonzales Approved -------------------------------------------------------------- In the case, DEBRA HATTEN-GONZALES, et al., Plaintiffs, v. BRENT EARNEST, Secretary of the New Mexico Human Services Department, Defendant, Case No. CIV 88-385 KG/KBM, Consolidated with No. CIV 88-786 KG/KBM (D. N.M.), Judge Kenneth J. Gonzales of the U.S. District Court for the District of New Mexico granted the parties' Joint Motion to Approve and Adopt Revised Modified Consent Decree filed on Aug. 10, 2018. The parties in the case spent many months negotiating and updating the terms of a revised consent decree and have now reached agreement. The Judge has reviewed the Joint Motion and the agreed-upon Second Revised Modified Settlement Agreement (Consent Decree), and held a hearing on the matter on Aug. 21, 2018. The parties have informed the Court that the Second Revised Modified Settlement Agreement (Consent Decree) protects the interests of the Plaintiff class in the case and brings the current Consent Decree up to date with the current circumstances and practices of the New Mexico Human Services Department and with current federal mandates for the Supplemental Nutrition Assistance Program and Medicaid. Judge Gonzales has determined that approval of the Second Revised Modified Settlement Agreement filed on Aug. 10, 2018 is in the best interests of the Plaintiff-class and of the parties to the litigation. Therefore, he granted the Joint Motion to Approve and Adopt Revised Modified Consent Decree. He approved and adopted as the Order the Second Revised Modified Settlement Agreement, which has now been signed and re-named by the Court Second Revised Modified Settlement Agreement and Order and separately filed by the Court. The Second Revised Modified Settlement Agreement and Order became the operant Consent Decree in the case. The parties, their officers, agents, servants, employees and attorneys, and those persons in active concert with them who receive actual notice of the Second Revised Modified Settlement Agreement and Order are restrained from violating its terms, conditions and undertakings. A full-text copy of the Court's Aug. 21, 2018 Order and Consent Decree is available at https://is.gd/7oNNqb from Leagle.com. Debra Hatten-Gonzales, Individually and on behalf of all others similarly situated, Plaintiff, represented by Daniel Yohalem -- jbyohalem@gmail.com -- Daniel Yohalem Attorney at Law, Gail J. Evans -- gail@nmpovertylaw.org -- NM Center on Law and Poverty, Jane Yohalem, Law Office of Jane B Yohalem, Maria T. Griego, NM Center on Law and Poverty, Sovereign Hager, New Mexico Center on Law and Poverty & Adrianne R. Turner, NM Center on Law and Poverty. Brent Earnest, Secretary of the New Mexico Human Services Department, Defendant, represented by Christopher P. Collins, New Mexico Human Services Dept., Jessica M. Hernandez, Kennedy, Hernandez & Associates, P.C., Paul J. Kennedy, Kennedy, Hernandez & Associates, PC & George F. Heidke, Jr., Bernalillo County Attorney's Office. Lawrence M Parker, Special Master, Miscellaneous, pro se. Ramona McKissic, Compliance Officer, Miscellaneous, pro se. NEW YORK: Koziol Files Petition for Writ of Certiorari ------------------------------------------------------ Leon R. Koziol, individually, as natural parent of Child A and Child B, and on behalf of parents similarly situated, Petitioner, vs Janet DiFiore, Chief Judge of the New York Unified Court System; James Tormey, Chief Judge of the Fifth Judicial District; James McClusky, New York Supreme Court Judge; Family Judge; James Eby; Magistrate Natalie Carraway and Kelly Hawse-Koziol Respondents, Case No. 18-278 (U.S., Sept. 5, 2018), is an appeal filed in the Supreme Court of United States from a lower court decision in Case No. 18-00101 (N.Y. Sup. Ct., Fourth Judicial Department) The Petitioner asks the Court to grant his Petition for Writ of Certiorari to the New York Court of Appeals, a stay of enforcement of orders and proceedings, and alternatively, an order converting this petition to one for an extraordinary writ under Rule 20.[BN] The Petitioner appears pro se. NORTON HEALTHCARE: Clemons et al. File Appeal to Supreme Court -------------------------------------------------------------- Elizabeth A. Clemons, et al., Petitioners vs. Norton Healthcare Inc. Retirement Plan, Respondent, Case No. 18A251 (U.S., Sept. 11, 2018), is an appeal filed in the Supreme Court of United States from a lower court decision in Case No. 16-5063, 16-5124 (6th Cir.). The Application to extend the time to file a petition for a writ of certiorari from September 16, 2018 to November 15, 2018, has been submitted to Justice Elena Kagan.[BN] Attorneys for Petitioners: Michael Douglas Grabhorn, Esq. GRABHORN LAW OFFICE, PLLC 2525 Nelson Miller Parkway, Suite 107 Louisville, KY 40223 E-mail: m.grabhorn@grabhornlaw.com - and - William T. Payne, Esq. Joel R. Hurt, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC 429 Forbes Ave., 17th Floor Pittsburgh, PA 15219 Telephone: (412) 281 8400 NY STATE UNIVERSITY: Permissive Joinder Bid in Pejovic Granted -------------------------------------------------------------- In the case, ISIDORA PEJOVIC, CHAE BEAN KANG, ALBA SALA HUERTA, and CHASSIDY KING, individually and on behalf of all those similarly situated, and GORDON GRAHAM, Plaintiffs, v. STATE UNIVERSITY OF NEW YORK AT ALBANY, and MARK BENSON, Defendants, Civ. No. 1:17-CV-1092 (TJM/DJS) (N.D. N.Y.), Magistrate Judge Daniel J. Stewart of the U.S. District Court for the Northern District of New York granted the Plaintiffs' Motion for Permissive Joinder. The Plaintiffs have moved, pursuant to Federal Rule of Civil Procedure 20(a)(1), for an order allowing joinder of the four additional Plaintiffs: Courtney Trudeau, Olivia Schultz, Brianna Cicoria, and Danielle Duguid and to amend the Complaint accordingly. The proposed new Plaintiffs are college rowers, who are said to be harmed by the intentional discriminatory refusal of Defendant SUNY Albany to fully accommodate the capabilities and interests of females, in violation of Title IX. The Proposed Amended Complaint, including a red-lined version, has been submitted to the Court, as required by the local rules. The Defendants oppose the Motion for Permissive Joinder and to Amend, primarily for procedural reasons and, further, upon the grounds that any such amendment would be futile. The Class Action Complaint was initially filed on Sept. 29, 2017, by four members and the coach of the former women's varsity tennis team at the SUNY Albany. The Plaintiffs were notified of SUNY's intention to eliminate the women's tennis team in late March, 2016. Plaintiff Graham then filed a Title IX complaint with the Office of Civil Rights ("OCR"), which conducted an investigation and found SUNY to be in violation of Title IX. Thereafter, it is alleged that SUNY Albany, without making any admission, entered into a Resolution Agreement to resolve the issues identified by the OCR. The present lawsuit then followed, which sought class certification, monetary damages, and an injunction. After the Complaint was initially filed, the parties engaged in extensive motion practice, which had the ultimate effect of narrowing the claims. In particular, the Plaintiffs filed a Motion for a Preliminary Injunction, which was denied. On Nov. 29, 2017, the Defendants filed a Rule 12 Motion to Dismiss. The Plaintiffs, in turn, filed a Motion for Summary Judgment. In a Decision and Order dated July 26, Senior United States District Court Judge Thomas J. McAvoy denied the Plaintiffs' Motion for Summary Judgment, and granted in part and denied in part the Defendants' Rule 12 Motion. The Court dismissed Plaintiff Graham's Title IX retaliation claim (but allowed his discrimination claim under Title IX to proceed); dismissed all the Plaintiffs' 42 U.S.C. Section 1983 claims against Defendant Benson in his official capacity; dismissed the Plaintiffs' New York State Human Rights Law claims; dismissed the claim for declaratory relief; and dismissed claims for punitive damages under Title IX. The Court held that there were questions of fact as to whether Defendants violated Title IX. Accordingly, the claims that presently remain are as follows: (i) Count 1 - a proposed Class Action Title IX discrimination claim on behalf of individual female students at SUNY Albany against the Defendants; (ii) Count 2 - a Title IX discrimination claim by Plaintiff Graham; and (iii) Count 3 - a 42 U.S.C. Section 1983 Age Discrimination/Equal Protection Claim by Plaintiff Graham against Defendant Benson. A Rule 16 Initial Conference was scheduled in the case on Dec. 28, 2017, but at the request of the Defendants it was stayed pending the outcome of the Defendants' Motion to Dismiss. Having reviewed the Proposed Amended Complaint, Magistrate Judge Stewart concludes that the proposal for joinder of the four additional Plaintiffs satisfies both requirements of Rule 20(a). He finds that the new Plaintiffs seek a right of recovery arising out of the same series of occurrences or transactions. He also finds that the proposed class to be certified includes all present, prospective, and future female students who are harmed by and wish to end SUNY Albany's sex discrimination in the allocation of athletic participation opportunities. The proposed new Plaintiffs certainly fall within this sphere, and therefore there are common questions of law and fact that will arise in the action. Most importantly, in the Magistrate's view, is the fact that it would be a waste of judicial and litigation resources to split up these two cases, conduct separate and potentially overlapping discovery, and to allow multiple motions. Instead, the Court will impose an aggressive discovery schedule which will allow for a timely resolution of the matter. In the event that it later appears that a single trial is somehow unwarranted or unwieldy, remedies exist under Rule 20(b). As to futility, the District Court has already reviewed the Plaintiffs' Title IX claim, and while it found that questions of fact predominate which require discovery, at no point did it indicate that the female students' Title IX claim failed to state a cause of action. More generally, the Magistrate finds that the proposed Amended Complaint alleges continuing injuries to those female students due to ongoing discriminatory conduct. Therefore, the Defendants' claims of futility based upon standing or timeliness are unpersuasive. For these reasons, Magistrate Judge Stewart granted the Plaintiffs' Motion for Permissive Joinder, and to Amend. The Plaintiffs are to file an amended complaint within 10 days of the Decision and Order. For the sake of clarity, the Amended Complaint to be filed by the Plaintiffs will not contain any of the claims, or demand for punitive damages, that were dismissed by Judge McAvoy in his July 26, 2018 Decision and Order. Pursuant to FED R. CIV. P. 72(a), the parties have 14 days within which to file written objections to the foregoing order. Such objections will be filed with the Clerk of the Court. As specifically noted in Rule 72(a) a party may not assign as error a defect in the order not timely objected to. A full-text copy of the Court's Sept. 5, 2018 Decision and Order is available at https://is.gd/PtdTEY from Leagle.com. Isidora Pejovic, individually and on behalf of all those similarly situated, Chae Bean Kang, individually and on behalf of all those similarly situated, Alba Sala Huerta, individually and on behalf of all those similarly situated, Chassidy King, individually and on behalf of all those similarly situated & Gordon Graham, Plaintiffs, represented by Bernays T. Barclay -- buz.barclay@rimonlaw.com -- Rimon, P.C. State University of New York at Albany & Mark Benson, Defendants, represented by Mark G. Mitchell, New York State Attorney General. OPKO HEALTH: Rosen Law Firm Files Securities Class Action --------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Sept. 12 disclosed that it has filed a class action lawsuit on behalf of purchasers of the securities of OPKO Health, Inc. (NASDAQ:OPK) from September 26, 2013 through September 7, 2018, inclusive (the "Class Period"). The lawsuit seeks to recover damages for OPKO investors under the federal securities laws. To join the OPKO class action, go to http://www.rosenlegal.com/cases-1412.htmlor call Phillip Kim, Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or zhalper@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants made false and/or misleading statements and/or failed to disclose that: (1) OPKO and its Chairman and Chief Executive Officer, Phillip Frost, were engaged in a pump-and-dump scheme with several other individuals and companies in their investments in several penny stocks; (2) this illicit scheme would result in governmental scrutiny including from the SEC; and (3) as a result, defendants' statements about OPKO's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than November 13, 2018. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1412.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653 or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen—firm. Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. [GN] P.F. CHANG'S: Belt et al. Suit Moved to E.D. Pennsylvania --------------------------------------------------------- The employment-related class action lawsuit titled STEVEN BELT; LAURA COUNCIL; and JAMES HARRIS, individually and on behalf of all others similarly situated, Plaintiff v. P.F. CHANG'S CHINA BISTRO, INC., Defendant, Case No. 1:18-cv-02126 (D. Md., July 11, 2018), was removed from the U.S. District Court for the District of Maryland, to the U.S. District Court for the Eastern District of Pennsylvania on September 6, 2018. The Eastern District of Pennsylvania assigned Case No. 2:18-cv-03831-AB (E.D. Pa., Sept. 6, 2018) to the proceeding. The Case is assigned to the Hon. Anita B. Brody. P.F. Chang's China Bistro, Inc. is engaged in the sale of food and beverage items. The Company is headquartered in Scottsdale, Arizona. [BN] The Plaintiffs are represented by: Benjamin L. Davis, III, Esq. George E. Swegman, Esq. THE LAW OFFICES OF PETER T. NICHOLL 36 South Charles Street, Suite 1700 Baltimore, MD 21201 Telephone: (410) 244-7005 Facsimile: (410) 244-8454 E-mail: bdavis@nicholllaw.com gswegman@nicholllaw.com PEAK FORECLOSURE: Court Dismisses Pewitt Suit --------------------------------------------- In the case, JAMES B. PEWITT and ELIZABETH C. PEWITT, as a married couple and on behalf of others similarly situated, Plaintiffs, v. PEAK FORECLOSURE SERVICES OF WASHINGTON, INC., a Washington corporation; PEAK FORECLOSURE SERVICES, INC., a California corporation; and BANK OF NEW YORK MELLON CORPORATION, a Delaware corporation, Defendants, Case No: 2:15-CV-173-RMP (E.D. Wash.), Judge Rosanna Malouf Peterson of the U.S. District Court for the Eastern District of Washington (i) granted the parties' Stipulated Motion for Dismissal; (ii) denied as moot all pending motions; and (iii) struck all scheduled Court hearings, if any. The Judge dismissed without prejudice the Plaintiff's Complaint, with respect to the class action claims, and with prejudice with respect to the Plaintiff's individual claims, and without costs to any party. He directed the District Court Clerk to enter the Order, provide copies to the counsel, and close the case. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/r08Wmw from Leagle.com. James B Pewitt, as a married couple and on behalf of others similarly situated & Elizabeth C Pewitt, as a married couple and on behalf of others similarly situated, Plaintiffs, represented by Clay M. Gatens -- clayg@jdsalaw.com -- Jeffers Danielson Sonn & Aylward PS & Honea Lee Lewis, IV -- leel@jdsalaw.com -- Jeffers Danielson Sonn & Aylward PS. Peak Foreclosure Services of Washington Inc, a Washington corporation, Peak Foreclosure Services Inc, a California corporation & Bank of New York Mellon Corporation, a Delaware corporation, Defendants, represented by Behzad Ben Mohandesi -- bmohandesi@yumollp.com -- Yu Mohandesi, LLP, pro hac vice, Pavel Ekmekchyan -- pavel@yumollp.com -- Yu Mohandesi LLP, pro hac vice & Donald Gene Grant -- don@dongrantps.com -- Donald G Grant PS. Bank of New York Mellon, f/k/a The Bank of New York, as Trustee for the Benefit of the Certificateholders of the CWABS, Inc. Asset-Backed Certificates, Series 2006-SD4, Defendant, represented by Donald Gene Grant, Donald G Grant PS. PFC FURNITURE: Fails to Pay Proper Wags, Salinas et al. Allege -------------------------------------------------------------- EDUARDO SALINAS; ALEXIS RAMIREZ; EDUARDO LOPEZ; MIGUEL GUTIERREZ, individually and on behalf of all others similarly situated, Plaintiffs v. PFC FURNITURE INDUSTRIES, INC., Defendant, Case No. DC-18-13000 (D. Tex., Sept. 6, 2018) seeks to recover from the Defendant unpaid overtime compensation and minimum wages, damages, attorneys' fees and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendant as non-exempt employees. PFC Furniture Industries, Inc. distributes home furniture to retail stores. The company offers living room, bedroom, dining room, mattress sets, and kid’s bedroom furniture. It also sells products online. The company was founded in 2008 and is headquartered in Richardson, Texas. [BN] The Plaintiffs are represented by: Matthew R. Scott, Esq. Javier Perez, Esq. Carson D. Bridges, Esq. SCOTT PEREZ LLP 900 Jackson Street, Suite 550 Dallas, TX 75202 Telephone: (214) 965-9675 Facsimile: (214) 965-9680 E-mail: javier.perez@scottperezlaw.com matt.scott@scottperezlaw.com carson.bridges@scottperezlaw.com PHILIP MORRIS: Nov. 5 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Philip Morris International, Inc. ("Philip Morris") (NYSE: PM) between February 8, 2018 and April 18, 2018. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the Southern District of New York. To get more information go to: https://www.zlk.com/pslra-1/philip-morris-international-inc-loss-form?wire=3 or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. The complaint alleges that throughout the class period Defendants issued materially false and/or misleading statements and/or failed to disclose that: (1) Philip Morris was experiencing a faster decline in overall cigarette and e-cigarette (or "heated tobacco") sales volumes during the first quarter of 2018 than investors had been led to believe; (2) Philip Morris' much-lauded sales initiatives had stalled; (3) Philip Morris was experiencing adverse sales headwinds in key markets; and (4) as a result of the foregoing, defendants' statements about Philip Morris' business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. If you suffered a loss in Philip Morris you have until November 5, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, California, Connecticut, and Washington D.C. The firm's attorneys have extensive expertise and experience representing investors in securities litigation, and have recovered hundreds of millions of dollars for aggrieved shareholders. [GN] PLAIN GREEN: Court Certifies Appeals in Gibbs Suit as Frivolous --------------------------------------------------------------- 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, certified both Defendant Great Plains Lending, LLC's Notice of Appeal, and Defendant Plain Green, LLC's Notice of Appeal as frivolous. The Defendants operate internet lending websites offering short-term loans to consumers. The Plaintiffs allege that the Defendants offered loans to them 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, they 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. The Plaintiffs 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, including two civil Racketeer Influenced and Corrupt Organizations Act ("RICO") claims, associated with an illegally usurious loan enterprise. 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 for lack of subject matter jurisdiction under Rule 12(b)(1), claiming sovereign immunity. The Plaintiffs filed a Motion to Permit Jurisdictional Discovery, seeking limited jurisdictional discovery on the issue of the Defendants' claim of sovereign immunity. The Defendants each opposed the Motion for Discovery. On July 25, 2018, the Court granted the Plaintiffs' Motion for Discovery and dismissed without prejudice the Defendants' Motions to Dismiss based on sovereign immunity and the Defendants' Motions to Compel Arbitration. It concluded that it could not establish jurisdiction on the record before it and found that the Plaintiffs' specific and substantive allegations against the Defendants justify jurisdictional discovery to determine whether Defendants share in the Tribes' sovereign immunity. The Court dismissed the Defendants' Motions to Dismiss based on sovereign immunity because the jurisdictional discovery would affect parties' briefing on that issue. Because a finding that the Defendants had tribal sovereign immunity would deprive the Court of jurisdiction to compel arbitration, the Court also denied the Motions to Compel Arbitration for procedural reasons, stating that the jurisdictional discovery will likely affect the parties' briefings. On Aug. 3, 2018, Great Plains filed Great Plains' Appeal. On Aug.6, 2018, Plain Green filed Plain Green's Appeal. The Appeals invoked 9 U.S.C. Section 16(a)(1)(B)6 as a basis for interlocutory appeal. The Defendants contended that the Appeals automatically stayed the action pending resolution by the United States Court of Appeals for the Fourth Circuit. On Aug. 17, 2018, the Court ordered briefing on the effect, if any, of the Notices of Appeal on the case and the Aug. 30, 2018 deadline. All parties submitted briefing. On Aug. 24, 2018, the Court ordered additional briefing on the applicability of 9 U.S.C. Section 16(a)(1)(B) to the current proceeding. All parties briefed the issue. The Defendants have invoked 9 U.S.C. Section 16(a)(1)(B) to appeal the Court's denial without prejudice of their Motions to Compel Arbitration. Judge Lauck explains that the ability to invoke this provision relies on 9 U.S.C. Section 4. Section 4 allows a party to petition a district court to compel arbitration, pursuant to a written arbitration agreement, when the district court, save for such agreement, would have jurisdiction under title 28. At the same time it denied the Motions to Compel Arbitration, the Court denied the Motions to Dismiss based on sovereign immunity because it could not determine whether it had jurisdiction. Until the Court resolves this threshold jurisdictional issue, the Judge holds that the Defendants cannot invoke Section 16. Their arguments to the contrary are wholly without merit. Because Section 16 does not apply, none of the legal points are arguable on their merits. The inapplicability of Section 16 requires the Judge to deem the Defendants' Appeals frivolous. For the foregoing reasons, Judge Lauck certified the Defendants' Appeals as frivolous. Having made such a finding, she ordered the parties to proceed with the Court's July 25, 2018 Order for jurisdictional discovery. However, she extended the deadline for parties to agree upon a plan for limited jurisdictional discovery and submit a proposed order to the Court to Sept. 11, 2018. Other deadlines will similarly be advanced. Jurisdictional discovery will be completed by Oct. 19, 2018. The Defendants will file an answer or other responsive pleading by close of business Oct. 31, 2018. An appropriate Order will issue. A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion is available at https://is.gd/OCJxkt 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. PRECHECK INC: Denial of Bid to Dismiss Brent Suit Recommended ------------------------------------------------------------- In the case, GREG BRENT, individually and on behalf of all other similarly situated, Plaintiff, v. PRECHECK, INC., et al., Defendants, Case No. 3:16-cv-01747 (M.D. Tenn.), Magistrate Judge Jefferey S. Frensley of the U.S. District Court for the Middle District of Tennessee, Nashville Division, recommended the denial of Brent's Motion to Dismiss Without Prejudice. The matter is before the Court upon a Motion to Dismiss Without Prejudice filed by the Mr. Brent. PreCheck has filed a Response in Opposition. Defendants Columbia Medical Group - The Frist Clinic and HCA Human Resources have also filed a Response in Opposition. Mr. Brent filed his Motion to Dismiss in conjunction with his Motion to Modify Scheduling Order, stating that should the Court determine that Mr. Brent's motion in that regard should be denied, he respectfully requests, in the alternative, leave to dismiss the case without prejudice. Mr. Brent specifically incorporates his arguments associated with his Motion to Modify Scheduling Order regarding procedural delays that he asserts have been caused by others and lack of prejudice to opposing parties. PreCheck responds that dismissal without prejudice would be inappropriate at this time, citing the factors laid out by the Court of Appeals for the Sixth Circuit in Grover v. Eli Lilly & Co. If dismissal without prejudice is granted, PreCheck requests that the Court impose conditions upon that dismissal. The Frist Clinic and HCA HR respond by reiterating their arguments in opposition to Mr. Brent's Motion to Modify Scheduling Order, specifically, that conduct by other Parties and their counsel are not to blame for Mr. Brent's failure to file a motion to certify a class action. Regarding the instant Motion to Dismiss, these Defendants simply note that it is within the discretion of the Court under controlling law. Reviewing the Grover factors in light of the Court's recent Order, Magistrate Judge Frensley finds that allowing Mr. Brent to dismiss without prejudice and re-file the action would result in visiting upon the Defendants the unfair treatment against which Rule 41(a)(2) is supposed to protect. He has previously discussed the unreasonable delay and lack of diligence on the part of Mr. Brent in prosecuting the action, and his explanation for the need to take a dismissal is insufficient in that its only purpose is to allow Mr. Brent to circumvent the Court's ruling with respect to his Motion to Modify Scheduling Order. Additionally, as PreCheck's Motion to Dismiss is pending, PreCheck would suffer clear legal prejudice if Mr. Brent's voluntary dismissal is granted. For the foregoing reasons, the Magistrate recommended the denial of Mr. Brent's Motion to Dismiss Without Prejudice. Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has 14 days after service of the Report and Recommendation in which to file any written objections to the Recommendation with the District Court. Any party opposing said objections will have 14 days after service of any objections filed to the Report in which to file any response to said objections. Failure to file specific objections within 14 days of service of the Report and Recommendation can constitute a waiver of further appeal of the Recommendation. A full-text copy of the Court's Sept. 5, 2018 Report & Recommendation is available at https://is.gd/Z7MnPe from Leagle.com. Greg Brent, Plaintiff, represented by Benjamin M. Rose, RoseArters, PLLC & Joshua Douglas Arters, RoseArters, PLLC. Columbia Medical Group - The Frist Clinic, Inc. & HCA Human Resources, LLC, Defendants, represented by Robert Earl Boston -- bob.boston@wallerlaw.com -- Waller, Lansden, Dortch & Davis, LLP. PreCheck, Inc., Defendant, represented by Robert F. Chapski -- rchapski@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C. & Whitney H. Kimerling -- wkimerling@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C.. PRETIUM RESOURCES: Holtan Sues over Share Price Drop ---------------------------------------------------- RAMER B. HOLTAN, individually and on behalf of all others similarly situated, Plaintiff v. PRETIUM RESOURCES, INC.; JOSEPH OVSENEK; and TOM S.Q. YIP, Defendants, Case No. 1:18-cv-08199 (S.D.N.Y., Sept. 7, 2018) is a class action on behalf of persons and entities that acquired Pretium securities between July 21, 2016 and September 6, 2018, seeking to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, on January 23, 2018, the Company disclosed lower gold production for the Brucejack Mine than previously projected, and also delayed achievement of steady state gold production and operation of the grade control program. On this news, the Company's share price fell $2.86 per share, or over 26%, to close at $7.93 per share on January 23, 2018, on unusually heavy trading volume. On September 6, 2018, Viceroy Research published a report entitled "Pretium Resources – digging up dirt," alleging, among other things, that the Company's "reported grades and reserves are significantly inflated, a much greater amount of waste is being dumped into local lakes, and more explosives are being utilized." The report further alleged that "management is scrambling to find consistent, high-grade ore to maintain the charade that its debt and equity are viable." On this news, the Company's share price fell $0.77 per share, or approximately 10%, to close at $6.94 per share on September 6, 2018, on unusually heavy trading volume. The Defendants made materially false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the Defendants failed to disclose to investors: (1) that the Brucejack Project is not a high-grade, high-output mine; and (2) that, as a result of the foregoing, the Defendants' positive statements about the Company's business, operations, and prospects were materially false and misleading and lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Pretium Resources Inc. acquires, explores for, and develops precious metal resource properties in the Americas. Pretium Resources Inc. was incorporated in 2010 and is headquartered in Vancouver, Canada. [BN] The Plaintiff is represented by: Lesley F. Portnoy, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Avenue, Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: lportnoy@glancylaw.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Charles H. Linehan, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 PROPERTY MANAGEMENT: Fails to Pay Overtime Pay, Galvan Suit Says ---------------------------------------------------------------- JOSE A. GALVAN, individually and on behalf of all others similarly situated, Plaintiff v. PROPERTY MANAGEMENT ASSOCIATES, INC.; and DOES 1 THROUGH 10, Defendants, Case No. BC722781 (Cal. Super., Los Angeles Cty., Sept. 27, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Galvan was employed by the Defendants as non-exempt employee. Property Management Associates, Inc. is a corporation organized under the laws of the State of California. [BN] The Plaintiff is represented by: Zorik Mooradian, Esq. Haik Hacopian, Esq. MOORADIAN LAW, APC 5023 N. Parkway Calabasas Calabasas, CA 91302 Telephone: (818) 876-9627 Facsimile: (888) 783-1030 E-mail: zorik@mooradianlaw.com haik@mooradianlaw.com QURATE RETAIL: Bristol Retirement Sys. Sues over Share Price Drop ----------------------------------------------------------------- BRISTOL COUNTY RETIREMENT SYSTEM, individually and on behalf of all others similarly situated, Plaintiff v. QURATE RETAIL, INC.; MICHAEL A. GEORGE; GREGORY B. MAFFEI; DARRELL CAVENS; AND THADDEUS JASTRZEBSKI, Defendants, Case No. 1:18-cv-02300 (D. Colo., Sept. 6, 2018) is an action by the Plaintiff and the class who purchased or otherwise acquired Qurate securities between August 5, 2015 and September 7, 2016, seeking to recover damages caused by the Defendants' violations of the federal securities laws, and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, the Defendant offers a payment plan called Easy-Pay to its customers in the U.S., U.K., Germany and Italy (known as Q-Pay in Germany, and Italy). Easy Pay allows the Defendants' customers to pay for certain merchandise in two or more monthly installments. When Easy-Pay is elected by the customer, the first installment is billed to the customer's credit card upon shipment and an Easy-Pay receivable is established to account for the collection of subsequent installments. The Defendants failed to disclose that: (1) the Company was aggressively loosening the credit standards of its Easy-Pay program to attract a large group of new customers; (2) the Company's strong sales growth was due to this loose credit policy; (3) accounts receivable associated with this new group of customers posed a high risk of write-off; and (4) as a result of the foregoing, the Company's positive statements about its business, operations, and prospects lacked a reasonable basis. The slowdown in sales began to emerge on August 5, 2016, when the Company issued a press release announcing financial results for the second quarter ended June 30, 2016, in which the Company disclosed "significant headwinds" and sales declines as compared to prior periods. On news of sales slowdown, the Company's stock price fell $5.69 per share, or 21.63 percent, to close on August 5, 2016 at $20.61 per share. Then, on September 8, 2016, during a Goldman Sachs Global Retailing Conference in New York City, the Company finally disclosed the true impact of the Easy Pay issues, revealing to investors that it expects to see "higher default rates" associated with these sales. Moreover, the Company warned that this negative trend, while improved, would still, continue to impact its business. On this news, the Company's stock fell price $1.87 per share, or 8.71 percent, to close on September 8, 2016 at $19.59 per share. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Qurate Retail, Inc. provides e-commerce services. The Company engages in the video and digital commerce via television networks and e-commerce sites, social pages, mobile application, print catalogs, and in-store destinations. Qurate Retail serves customers worldwide. [BN] The Plaintiff is represented by: Ivy T. Ngo, Esq. FRANKLIN D. AZAR & ASSOCIATES, P.C. 14426 East Evans Avenue Aurora, CO 80014 Telephone: (303) 757-3300 E-Mail: ngoi@fdazar.com - and - Guillaume Buell, Esq. Thornton Law Firm, LLP 100 Summer Street, 30th Floor Boston, MA 02110 Telephone (617) 531-3933 E-Mail: gbuell@tenlaw.com REMCO INSURANCE: Contreras Labor Suit Seeks to Recover Overtime Pay ------------------------------------------------------------------- Ivette Contreras, on behalf of herself and all others similarly situated, Plaintiff, v. REMCO Insurance Agencies, Inc., Defendant, Case No. 18-cv-00976, (W.D. Tex., September 19, 2018), seeks declaratory relief, unpaid overtime pay, liquidated and/or other damages as permitted by applicable law, and attorney's fees, costs and expenses incurred for violation of the Fair Labor Standards Act. Defendant is an insurance company that specializes in personal and business insurance across Texas where Contreras worked as a salary paid insurance agent. She claims to have not been compensated at the overtime premium rate for all hours worked in excess of 40 hours per week. Defendant would also routinely deduct $70.00 per day for each day of work missed due to illness regardless of whether the employee was an hourly or salaried employee, notes the complaint. Plaintiff is represented by: James M. Loren, Esq. Rachael Rustmann, Esq. George Z. Goldberg, Esq. GOLDBERG & LOREN, PA 4801 Lang NE, Suite 110 Albuquerque, NM 87109 Office Line: (800) 719-1617 Direct Line: (505) 369-3699 Fax: (888) 272-8822 Email: jloren@lorenlaw.com ggoldberg@goldbergdohan.com rrustmann@goldbergloren.com RP AUTOMOTIVE: Fails to Pay Proper Wages, Kyriakides Alleges ------------------------------------------------------------ ANGEL KYRIAKIDES, individually, and on behalf of all others similarly situated, Plaintiff v. RP AUTOMOTIVE, INC., and DOES 1-10, Defendants, Case No. 37-2018-00049034-CU-OE-CTL (Cal. Super., San Diego Cty., Sept. 27, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Kyriakides was employed by the Defendants as non-exempt employee. RP Automotive, Inc. is a corporation organized under the laws of the State of California. [BN] The Plaintiff is represented by: William B. Sullivan, Esq. Eric K. Yaeckel, Esq. Andrea Torres-Figueroa, Esq. SULLIVAN LAW GROUP, APC 2330 Third Avenue San Diego, CA 92101 Telephone: (619) 702-6760 Facsimile: (619) 702-6761 E-mail: helen@sullivanlawgroupapc.com yaeckel@sullivanlawgroupapc.com andrea@sullivanlawgroupapc.com SAFE-GUARD PRODUCT: Court Grants Bid for Hinkle Partial Dismissal ----------------------------------------------------------------- In the case, ROBIN L. HINKLE, individually and on behalf of those similarly situated, Plaintiff, v. CASEY JOE MATTHEWS; TIMOTHY MAY and CONNIE MAY, husband and wife; SANTANDER CONSUMER, USA, INC., an Illinois corporation; SAFE-GUARD PRODUCTS INTERNATIONAL, LLC, a Georgia limited liability company; and JOHNNY HINKLE, Defendants, Civil Action No. 2:15-cv-13856 (S.D. W.V.), Judge John T. Copenhaver, Jr. of the U.S. District Court for the Southern District of West Virginia, Charleston, granted both (i) Hinkle's motion for reconsideration of the Court's memorandum opinion and order of July 19, 2016; and (ii) Safe-Guard's motion for partial dismissal. Hinkle is a resident of Delbarton, West Virginia. The Defendant, a Georgia limited liability company doing business in West Virginia, offered Guaranteed Auto Protection ("GAP") insurance to vehicle purchasers in West Virginia. In the event of an accident resulting in the total loss of a vehicle, GAP insurance is alleged by Hinkle to cover any "gap" between the purchaser's outstanding balance owed on the vehicle and the amount paid by the purchaser's primary insurer. In July 2006, Hinkle entered into a "Retail Installment Contract and Security Agreement" for the purchase of a vehicle. As part of that transaction, Hinkle also purchased GAP insurance from Safe-Guard by signing a "Gap Contract Insurance Policy' or 'Deficiency Waiver Addendum.'" The Security Agreement and the Insurance Policy, show that Hinkle paid $495 upfront for the GAP insurance, which was the only payment due to Safe-Guard for the purchase of the policy. On June 1, 2011, Hinkle was involved in an automobile accident resulting in the total loss of her vehicle. At the time, Hinkle's outstanding balance on the vehicle was $11,983.81. After Hinkle's primary insurer paid the vehicle's cash value, Hinkle still owed a "gap" of $4,698.81. By letter of July 21, 2011, Safe-Guard denied Hinkle's claim under the GAP policy and did not pay the deficiency, stating that Hinkle lacked coverage because of inconsistencies in her payment history, such as late payments, that caused the loan to be re-amortized. In effect, Safe-Guard asserts that had payments been timely made, the amount owing at the time of the accident would have been around $5,000, which is less than the $7,000 insurance accident recovery, leaving no gap to be covered by the Safe-Guard policy. Hinkle initiated the action on July 20, 2012, in the Circuit Court of Mingo County. In the state court, Safe-Guard sought a writ of prohibition from the Supreme Court of Appeals of West Virginia to prevent enforcement of an order finding that the GAP policy Safe-Guard sold to Hinkle was insurance, State ex rel. Safe-Guard Prods. Int'l, LLC v. Thompson. In that case, on March 11, 2015, the Supreme Court of Appeals found as a matter of first impression that Safe-Guard's GAP policy is insurance under the laws of West Virginia. Following that ruling, on May 28, 2015, Hinkle moved to amend her complaint to include class claims against Safe-Guard on behalf of all purchasers of GAP insurance in West Virginia. In the amended complaint, she claims that Safe-Guard sold GAP insurance without a license in violation of West Virginia Code section 33-3-1. Hinkle alleges that this unlawful sale of insurance constituted a violation of various provisions of the WVCCPA's debt collection provisions of article 2 and general consumer protections of article 6. After Hinkle moved to amend her complaint to add class allegations, Safe-Guard removed the action to the Court on Oct. 9, 2015, pursuant to the Class Action Fairness Act. On Nov. 23, 2015, Safe-Guard filed a motion for partial dismissal, arguing that its alleged conduct falls outside the protections of the West Virginia Consumer Credit and Protection Act ("WVCCPA") as a matter of law. On July 19, 2016, the Court entered a memorandum opinion and order dismissing Hinkle's claims under the debt collection provisions of the WVCCPA, West Virginia Code sections 46A-2-122 to 129a. Pending is Hinkle's motion, filed July 20, 2016, for reconsideration of the Court's memorandum opinion and order of July 19, 2016. Safe-Guard seeks wholesale dismissal of Hinkle's WVCCPA claims, arguing that the WVCCPA does not apply to the sale of insurance. Safe-Guard references West Virginia Code section 46A-1-105(a)(2), which provides that the WVCCPA does not apply to the sale of insurance by an insurer, except as otherwise provided in this chapter. It also contends that Hinkle's WVCCPA claims are preempted by West Virginia's insurance laws. Hinkle highlights the caveat in section 46A-1-105(a)(2), except as otherwise provided, and contends that various provisions of the WVCCPA provide for the coverage of insurance. First, Hinkle argues that the unlicensed sale of insurance is covered by the WVCCPA's debt collection provisions. Second, Hinkle insists that the statute's general consumer protections apply to insurance sales. Third, she argues that the WVCCPA allows for recovery for violations of other laws, including the insurance laws. Judge Copenhaver dismissed Hinkle's claim under West Virginia Code section 46A-2-127. He finds that the plain language of the statute is unambiguous and that, even liberally construed, Safe-Guard is not a "debt collector" within the protections of the WVCCPA's debt collection provisions. The contract was accepted and the sum of $495 was earmarked then for payment to Safe-Guard through financing when Hinkle (or Hinkle's then-spouse on her behalf) signed the Security Agreement and the Insurance Policy. Hinkle's agreement with Safe-Guard was, as she concedes, a point of sale exchange. Accordingly, because she had no duty to pay Safe-Guard money as a result of a prior purchase of GAP insurance, Safe-Guard's sale of GAP insurance is not a "claim" under the WVCCPA's debt collection provisions. The Judge reiterates the Court's prior decision that the sale of insurance is not encompassed within the WVCCPA's general consumer protections of article six. As noted in the court's prior order, article six's exclusions supplement, rather than supplant, the WVCCPA's generally-applicable exclusions in section 46A-1-105(a)(2). This is underscored by the subject matter of article six's exclusions, which merely shield news media from liability for innocently publishing "false, misleading or deceptive" advertisements. Hinkle also does not point to anything about article six in the court's previous order that warrants reconsideration under Rule 54(b). Instead, she simply restates her argument that Safe-Guard's sale of insurance falls within the purview of article six because "services" is defined by the WVCCPA to include "insurance." Finally, because the Judge dismissed Hinkle's debt collection and general consumer protection claims, he holds he needs not address Safe-Guard's preemption argument or Hinkle's contention that the WVCCPA allows for recovery for violations of West Virginia's insurance laws. Accordingly, Judge Copenhaver granted both (i) Hinkle's motion for reconsideration of the Court's memorandum opinion and order of July 19, 2016; and (ii) Safe-Guard's motion for partial dismissal, which he construes as limited to the issues adjudicated. The Judge directed the Clerk to transmit copies of his Memorandum Opinion and Order to all the counsel of record and to any unrepresented parties. A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion and Order is available at https://is.gd/UW0mam from Leagle.com. Robin L. Hinkle, individually and on behalf of those similarly situated, Plaintiff, represented by Howard M. Persinger, III, Esq. -- hmp2@persingerlaw.com -- PERSINGER & PERSINGER; Jonathan R. Marshall, Esq. -- jmarshall@baileyglasser.com -- andSandra Henson Kinney, Esq. -- skinney@baileyglasser.com -- BAILEY & GLASSER. Casey Joe Matthews, Defendant, represented by C. William Davis, Esq. -- calvin@starrlaw.com -- RICHARDSON & DAVIS. Timothy May & Connie May, husband and wife, Defendants, represented by David F. Nelson, ALLEN KOPET & ASSOCIATES. Santander Consumer, USA, Inc., an Illinois corporation, Defendant, represented by Daniel J. Konrad -- daniel.konrad@dinsmore.com -- DINSMORE & SHOHL. Safe-Guard Products International, LLC, a Georgia limited liability company; Defendant, represented by Debra Tedeschi Varner, Esq. -- dtvarner@wvlawyers.com -- James A. Varner, Sr., Esq. -- javarner@wvlawyers.com -- and Jeffrey D. Van Volkenburg, Esq. -- jdvanvolkenburg@wvlawyers.com -- MCNEER HIGHLAND MCMUNN & VARNER. Johnny Hinkle, Defendant, pro se. SAINT JOHN: Seeks to Block Estabrooks Sexual Abuse Class Action --------------------------------------------------------------- Philip Drost and Connell Smith, writing for CBC News, report that the City of Saint John is turning to the Supreme Court of Canada in an attempt to block a class action lawsuit on behalf of adults who say they were sexually abused as minors by the late police officer Kenneth Estabrooks. The class action suit was launched by Robert Hayes and other victims and has been certified by New Brunswick's Court of Queen's Bench. Saint John challenged that certification in the province's Court of Appeal and lost. The city is now asking the Supreme Court for leave to appeal that decision. City councillors voted unanimously on Sept. 10 to seek leave to appeal the certification. "From a pure legal perspective the advice has been that that's the right move to make from a legal perspective and council has agreed with that," Saint John Mayor Don Darling said on Sept. 10. Alleged abuse In 2017, the city launched an appeal on four legal issues: duty of care, vicarious liability, punitive damages and fiduciary duty. The only one of those that didn't stand in the August decision was the appeal on the breach of fiduciary duty. Mr. Estabrooks was a city police officer between 1953 and 1975, when he was fired after admissions to superiors he had sexually abused at least two boys. After that, he was transferred to the city works department and retired from that in 1983. In 2013, a private investigator hired by the city said that as many as 263 youths may have been sexually abused by Mr. Estabrooks over three decades. In 1999 Mr. Estabrooks was convicted of four charges of indecent assault and sentenced to six years in prison. He died in 2005. [GN] SALOV NORTH AMERICA: Olive Oil Class Action Settlement Okayed ------------------------------------------------------------- Metropolitan News Company reports that the Ninth U.S. Circuit Court of Appeals on Sept. 11 rejected a class member's challenge to the settlement of an action under which purchasers of Flippo Berio olive oil -- which proclaimed on their labels, "Imported From Italy" -- will receive, subject to provisos, 50 cents for every bottle they purchased between May 23, 2010 and June 30, 2015. The settlement came after two years of litigation and the production of about 30,000 pages of documents. According to the complaint filed by consumer Rohini Kumar on May 23, 2014 against the importer of the olive oil, Salov North America Corp and Italfoods, Inc.: "[B]y stating 'IMPORTED FROM ITALY' Defendants lead consumers to believe that these Products are made from Italian olives or. at a minimum, are pressed in Italy. This is false and deceptive. In fact, none of the Mock Italian Products are made from olives grown in Italy. Nor are they pressed in Italy. Rather, the Mock Italian Products are made from oil pressed in many different countries, trucked or shipped to Italy, mixed with oil from other countries, bottled and then exported." Salov's defense was that "imported" meant "shipped out of." Settlement Terms Under the settlement, the defendant agreed to pay a minimum of $2 to any household where members bought from one to four bottles during the specified period, up to $5 per household for up to 10 purchases, with no proof of purchase necessary. Proof of payment was required for those claiming 50 cents per bottle where more than 10 bottles were bought. The period for filing claims ended last year. Injunctive relief was also part of the settlement. The stipulation provides: "Defendant agrees not to use the phrases 'Imported from Italy,' 'Made in Italy,' 'Product of Italy,' or any other phrase on the label of a Product sold in the United States suggesting that olive oils in a Product originate from olives grown in Italy, and instead to use the designation 'Imported' on the front panel, until at least three years after the Effective Date, unless the Product so labeled is composed entirely of oil extracted in Italy from olives grown in Italy. Defendant is not required to remove or recall any Product that may remain in the marketplace that bears the designation 'Imported from Italy.' " Memorandum Decision The Sept. 11 Ninth Circuit decision arises from the protest of a non-participating class member, Theodore Frank, that the settlement was inadequate. In a memorandum decision, approval of the settlement by District Court Judge Yvonne Gonzalez Rogers of the Northern District of California was affirmed. The opinion says: "The district court considered the strength of the plaintiffs' case and the risk involved with further litigation, noting that Salov North America Corp. had a legitimate defense and that this 'was [not] the strongest case [she] ha[d] ever seen.' The district court also noted that proceeding to trial would be costly given the need for expert testimony, and that the best potential outcome at trial would not exceed the recovery per bottle offered by the settlement. Further, the court recognized that the litigation was 'hard fought' and that class counsel reached an 'excellent result' for the class, including achieving the class's non-monetary goal of 'get[ting] the defendants to improve their practices.' Because there is no 'strong showing that the district court's decision was a clear abuse of discretion,' we affirm." The case is Frank v. Salov North America Corp., No. 17-16405. [GN] SAMSUNG ELECTRONICS: Must Face Shattering Phone Camera Lawsuit -------------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that a California federal judge said on Sept. 12 she won't toss a putative class action claiming Samsung sold defective smartphones with camera lenses covered with glass that spontaneously shatters. [GN] SAN FRANCISCO, CA: Judgment on Pleadings Bid in Lil' Man Suit OK'd ------------------------------------------------------------------ In the case, LIL' MAN IN THE BOAT, INC., Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, Case No. 17-cv-00904-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted the Defendants' motion for judgment on the pleadings. Lil' Man owns and operates a licensed commercial charter Motor Vessel 'Just Dreaming' that provides transportation and hospitality services on the San Francisco Bay both for locals and visitors from all over the globe. Lil' Man filed the case because San Francisco changed the terms under which it allowed boats to dock at South Beach Harbor. For the years 2013 through 2015, the landing fee for commercial vessels such as Just Dreaming was $160 per hour. In 2016, the Defendants introduced a Landing Agreement which required commercial vessel operators to enter a written landing rights agreement with the Defendant. The agreement increased landing fees to $220 for commercial vessel operators, gave the Defendants the right to increase the required fees at any time, and imposed a supplemental 7% Gross Revenue Fee. In June 2016, the Defendants ordered the Plaintiff and others similarly situated to either sign the 2016 Agreement or cease all commercial interstate operations as of Oct. 1, 2016. The Plaintiff paid the 7% gross revenue fee on two occasions in order to continue its previously reserved operations. The Plaintiff filed its original complaint on Feb. 22, 2017, making four claims: (1) violation of Section 1983 based on violations of the Tonnage Clause, the Commerce Clause, the First Amendment, and the Rivers & Harbors Act; (2) violation of the Bane Act; (3) declaratory and injunctive relief; and (4) unjust enrichment. On March 30, 2017, the Defendants moved to dismiss the complaint in its entirety. The Court denied the motion to dismiss with respect to the Tonnage Clause, Dormant Commerce Clause, and Rivers & Harbors Act, and granted it with respect to the Bane Act claim. It allowed the derivative claims for declaratory relief, injunctive relief, and restitution to survive. The Plaintiff filed its First Amended Complaint on Aug. 14, 2017. Its FAC makes three claims relating to the 2016 Agreement. First, the Plaintiff brings a claim for violation of 42 U.S.C. Section 1983 claim based on violations of the Tonnage Clause, the Commerce Clause, the First Amendment, and the Rivers & Harbors Act. Second, the Plaintiff brings a claim entitled "Declaratory and Injunctive Relief," although the body of the complaint seeks declaratory relief only. And third, it brings a claim for unjust enrichment. The Plaintiff's FAC also brings a putative class action. It seeks to represent the following four classes: (a) All persons and entities licensed by the USCG for commercial passenger service who, at any time during the four years preceding the filing of the action to the date of Class Certification have landed at, moored, or caused passengers to traverse South Beach Harbor and incurred or paid fees to Defendants for that opportunity; (b) All persons and entities who, at any time during the four years preceding the filing of the action to the date of Class Certification, were licensed commercial passenger vessel operators who were subject to the Defendants' demand that they execute and/or comply with the terms, payments, and conditions of the 2016 Landing Agreement in order to use South Beach Harbor; (c) All persons and entities who, at any time during the four years preceding the filing of the action to the date of Class Certification, were licensed commercial passenger vessel operators and signed the 2016 Landing Agreement and complied with its terms; (d) All persons or entities who, for the past four years to the present, have been licensed for sale and consumption of alcoholic beverages and who were or are subject to the Defendants' demand for payment of a percentage of revenues or profits. The Defendants filed the motion for judgment on the pleadings on Feb. 22, 2018. They argue that the following claims fail as a matter of law: (1) the Plaintiff's claims for unjust enrichment and declaratory relief to the extent they each rely on California Business and Professions Code section 23300; and (2) the Plaintiffs' claim for violation of the First Amendment right to access the courts. Both the Plaintiff and the Defendants ask the Court to take notice of legislative history documents from the California legislature relating to California Business and Professions Code section 23300.1. Judge Tigar concludes that the documents included by the parties are proper subjects of judicial notice and grants their respective requests. The Judge finds that the Plaintiff's claims for unjust enrichment and declaratory relief based on Section 23300 fail as a matter of law, and the Defendants' motion for judgment on these claims is granted. The legislative history of section 23300.1 suggests that a revenue-sharing agreement does not violate the statute. That history shows that the statute's author intended to clarify that the mere existence of revenue-sharing agreements does not constitute the exercising of license privileges. Thus, to the extent the language and legislative history of section 23300.1 can be read to favor either side in the case, they favor the Defendants. The Judge also finds that there is no freestanding coercive waiver claim. The Plaintiff must actually sign the waiver, then see if the Defendants assert it. At that point, the Plaintiff can dispute its validity. But Lil' Man may not bring a standalone claim for coercive waiver, because the law does not recognize such a claim. Accordingly, the Judge grants the Defendants' motion for judgment on the pleadings with respect to the Plaintiff's access to the courts claim. For the aforementioned reasons, Judge Tigar granted with prejudice the Defendants' motion for judgment on the pleadings as to the Plaintiff's First Amendment, and section 23300 unjust enrichment and declaratory relief claims. He set a further case management conference on Nov. 7, 2018 at 2:00 p.m. An updated joint case management statement is due Oct. 31, 2018. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/X1ZasM from Leagle.com. Lil' Man in the Boat, Inc., a California Corporation, Plaintiff, represented by David Raymond Ongaro -- dongaro@ongaropc.com -- Ongaro PC. City and County of San Francisco, San Francisco Port Commission, operating under the title Port of San Francisco, Elaine Forbes, Interim Executive Director, Peter Daley, Deputy Director, Maritime the San Francisco Port, Jeff Bauer, Deputy Director of Real Estate, the San Francisco Port & Joe Monroe, Harbormaster, South Beach Harbor, Pier 40, Defendants, represented by Tara M. Steeley, San Francisco City Attorney's Office. SCHNEIDER NATIONAL: Seeks Dismissal of Wage-Fixing Class Action --------------------------------------------------------------- Matt Bernardini, writing for Law360, reports that Schneider National Inc. has asked a California federal court to toss a proposed class action brought by a group of truck drivers who accused the company of conspiring to restrain competition. [GN] SEATTLE, WA: May Face Class Action Over Erroneous Electric Bills ---------------------------------------------------------------- David Kroman, writing for Crosscut, reports that for months, even years, Seattle City Light customers have complained about their erratic bills to anyone who'd listen -- the utility, elected officials, the press. Soon, a new avenue may open up: court. A high-profile Seattle law firm — a founding member has represented UW football coach Rick Neuheisel and former Mayor Ed Murray -- is investigating a class action lawsuit against Seattle City Light on behalf of customers who feel they've received erroneously high bills. "It is alleged that Seattle City Light overcharges its customers for electricity by billing customers for incorrect estimates of their electricity usage rather than billing customers for their actual electricity usage," says a call for customers on the website of McNaul Ebel Nawrot and Hellgren. Specifically, the firm points to reports in Crosscut and the Seattle Times laying out issues the department has experienced with its new (and over budget) billing system, which has occasionally created high bills based on estimated meter reads. As of Sept. 12, no lawsuit had been served to the City, according to Dan Nolte, spokesperson for the City Attorney's Office. The call for aggrieved customers was first posted in late June of this year. In an unrelated announcement on Sept. 11, Seattle City Councilmember Teresa Mosqueda is ordering an audit of the utility department's billing practices -- be they related to the new system or otherwise. Ms. Mosqueda said in a statement that her office had heard from customers concerned about their bills. The audit will be conducted by the Seattle City Auditor, and will look into how City Light prevents erroneous bills, checks the accuracy of bills, communicates with customers, resolves complaints, accommodates payment plans and reimburses customers who've been overcharged. "Ensuring that City Light has clear policies that customers and staff alike understand is important to delivering high-quality service," said Ms. Mosqueda. "My commitment is not only to ensure those policies are clearly articulated and followed, but that we are prepared to nimbly respond to constituent concerns about billing, and are inward-looking, identifying problematic policies and remedying them to best benefit our communities." The issues with city's new $109 million billing system go back to before it even rolled out —more than $40 million over budget. But when it got up and running, it did not function as intended. City Light employees are supposed to sign off on meter reads filed into the system. But the department fell behind and some readings were never approved. The more automated system then began rejecting legitimate but unapproved readings in favor of estimates, which were sometimes higher. "The machine thinks it's correcting, but it's not correcting well," Joel Vancil, a call taker in the city's Customer Contact Center, told Crosscut in February. Additionally, the department fell behind on account transfers and move-in setups, meaning some customers' first bills were backlogged and, when eventually produced, very large, even if technically correct. In a statement, City Light spokesperson Scott Thomsen declined to comment on the potential litigation. But he did say the department would work with the auditor to support the review and offered some explanation. "There have been times when locks have been changed on meter rooms in multifamily buildings and our meter readers have not been able to access them; meter readers were not able to complete a route; gates were locked; or dogs were left out in the yard," he said. "Situations like that will force an estimate for the reading. Once we do get an actual read, it will show whether our estimate was low or high. If we were too high, the next bill could be very small or have a credit. If our estimate was low, the next bill will account for all the electricity that was used but not paid for in previous billing cycles as well the current billing cycle's usage." Thomsen said the rollout of a new network of "smart meters" will improve the department's ability to deliver timely and accurate bills. This comes as utility rates across the board increase -- due to rise 4.5 percent annually over the next five years. Separating out what is standard sticker shock with genuinely incorrect bills can be challenging. Some instances are clear. Olivia Borrows moved into a 350-square-foot apartment near Green Lake last June. The first bill to arrive was outrageous -- $6,187.27, due July 11. "I kind of just laughed because it was completely impossible," said Borrows, a flight attendant. But then, she said, "I got a little scared." Ms. Borrows called City Light and the person on the other end also laughed. Within three minutes, said Ms. Borrows, her bill was corrected to its actual amount -- $45. It's unclear why Borrows received such a high bill. Others, though, may feel incorrect, even if they're right. In a recent City Council meeting, Councilmember Mosqueda mentioned a neighbor of hers who'd received a bill for more than $1,000. But according to City Light's Thomsen, that bill was accurate. "The property manager changed the locks on the meter room and did not provide us with access for 18 months, which forced us to estimate usage for that entire timeframe," he wrote in an email. "Once we got actual reads, the bills reflected electricity that had been used, but not paid for. In those circumstances, we will work out payment plans for up to the length of time that the estimates were in place." One of McNaul Ebel Nawrot and Helgren's founding members, Robert Sulkin, represented former UW football coach Neuheisel in his wrongful termination suit against the college. Mr. Sulkin also defended former Mayor Ed Murray in the sexual abuse allegations brought by Delvonn Heckard. The lawyer on the City Light case is Matthew Campos, according to his assistant. Campos represents Deadliest Catch star Sig Hansen in the molestation case brought against him by his estranged daughter. A spokesperson for the firm did not respond to a request for comment, so it's unknown how many customers may have responded to their call. Mayor Jenny Durkan has taken a keen interest in issues at Seattle City Light. In a statement responding to the audit, she said, "City Light has faced many challenges; we have been making significant positive progress including clearing a backlog of more than 74,000 account billing issues that created much of the frustration that customers have experienced." Her nominee to be the utility's next CEO, Debra Smith, has her first hearing before the Seattle City Council on Sept. 13. If approved, she will earn $340,000, on par with what her predecessor Larry Weis earned. Ms. Durkan is putting it on Smith, whom the mayor has described as obsessed with customer service, to take control of the department's issues: "She is what the utility needs at exactly this time -- an experienced leader who I trust will make any necessary corrections to ensure the utility is accountable to its customers." Crosscut reporter Lilly Fowler contributed reporting to this story. [GN] SERENITY TRANSPO: Court Won't Reconsider Certification Denial ------------------------------------------------------------- In the case, CURTIS JOHNSON, ET AL., Plaintiffs, v. SERENITY TRANSPORTATION, INC., et al., Defendants, Case No.15-cv-02004-JSC (N.D. Cal.), Magistrate Judge Jacqueline Scott Corley of the U.S. District Court for the Northern District of California granted in part and denied in part the Plaintiffs' motion for leave to file a motion for reconsideration of that portion of the Court's Aug. 1, 2018 order denying class certification. In the wage and hour class action, the Plaintiff drivers allege that Serenity Transportation misclassified their status as independent contractors and as a result failed to pay them overtime, among other wage and hour violations. They also seek to recover damages from defendant SCI California, Inc. By Order filed Aug. 1, 2018, the Court certified for class treatment the Plaintiffs' claims against Serenity Transportation, except that to the extent the trier of fact finds that their on-call time is not compensable; in that case their overtime and minimum wage claims must be tried individually. It also denied certification of the California Labor Code Section 2810.3 claim against SCI California, Inc. Now pending before the Court is Plaintiffs' motion for leave to file a motion for reconsideration of that portion of the Court's Aug. 1, 2018 order denying class certification. As stated at the case management conference on Aug. 23, 2018, Magistrate Judge Corley holds that leave is granted to file the motion for reconsideration as to the California Labor Code Section 2810.3 issues. She directed the parties to follow the briefing schedule set forth at the hearing. However, she denied leave as to the argument about individualized damages. The Plaintiffs insist that the Court erroneously denied certification because of the possibility that damages may have to be calculated on an individual basis and therefore manifestly failed to consider dispositive legal argument. The Magistrate disagrees. She holds that evidence of an employer's uniform policy to misclassify a group of employees as exempt from overtime requirements is not sufficient to support class certification because misclassification alone does not establish liability for overtime violations. In addition, the Magistrate Holds does not find on the class certification record that Serenity's business model required drivers to work overtime, unless the trier of fact finds that on-call time is compensable. The Plaintiffs' attempts at proving liability through common proof are unpersuasive. The Plaintiffs' proposal to calculate overtime based on Serenity's estimate that calls take between one to four hours, and use the mid-point for calculating overtime, is also unpersuasive. The Magistrate finds that there is a big difference between one hour and four hours for purposes of determining overtime and minimum wage violations, and the Plaintiffs have not offered any analysis or evidence that their proposal leads to a result that is anything close to accurate. For all these reasons, Magistrate Judge Corley declines to reconsider at this time its decision not to try on a classwide basis the claims that depend on hours worked if the trier of fact finds that on-call time is not compensable. This decision, however, can be revisited after the trial on the certified claims, if necessary. The Order disposes of Docket No. 282. A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/k9IrAi from Leagle.com. Curtis Johnson, on behalf of himself and all others similarly situated & Gary Johnson, on behalf of himself and all other similarly situated, Plaintiffs, represented by Peter Scott Rukin -- prukin@rukinhyland.com -- Rukin Hyland & Riggin LLP, Jessica Lee Riggin -- jriggin@rukinhyland.com -- Rukin Hyland & Riggins LLP & Valerie Jean Brender -- vbrender@rukinhyland.com -- Rukin Hyland & Riggin LLP. Jean Katheryn Hyams, Plaintiff, pro se. Serenity Transportation, Inc. & David Friedel, Defendants, represented by William Frederick Schauman -- wschauman@schauman-hubins.com -- Schauman & Hubins. Service Corporation International, Inc., Defendant, represented by John A. Mason -- info@gurneelaw.com -- Gurnee Mason & Forestiere LLP. SCI California Funeral Services, Inc., Defendant, represented by Steven Hazard Gurnee, Gurnee, Mason & Forestiere LLP, Candace Holly Shirley -- cshirley@gurnee-law.com -- Gurnee Mason Forestiere LLP & William Frederick Schauman, Schauman & Hubins. County of Santa Clara, Defendant, represented by Nancy Joan Clark, Office of County Counsel. Service Corporation International, Inc., Cross-claimant, represented by John A. Mason, Gurnee Mason & Forestiere LLP. SOUTHBURY TRAINING: Bid to Correct Attys' Fees in Messier Denied ---------------------------------------------------------------- In the case, RICHARD MESSIER et al., Plaintiffs, v. SOUTHBURY TRAINING SCHOOL et al., Defendants, Case No. 3:94-cv-01706 (VAB) (D. Conn.), Judge Victor A. Bolden of the U.S. District Court for the District of Connecticut denied the motion of one of the attorneys for the Plaintiffs, David C. Shaw, for the Court to correct certain alleged errors in its March 27, 2015 Ruling on the amount of attorney's fees, costs, and expenses that the Plaintiffs' counsel is to be awarded. Residents of Southbury Training School, an institution for the mentally disabled in Connecticut, brought the class-action case against Southbury Training School, the Director of Southbury Training School, and the Commissioner of the Connecticut Department of Developmental Services, seeking injunctive relief for alleged constitutional and statutory violations relating to the conditions, services, and programs at Southbury Training School, the appropriateness of individual placements in a more integrated setting, and the right to be free of discrimination with respect to having such placements made. In 1994, the Plaintiffs sued the Defendants. After a bench-trial that lasted 123 days, in 1999, the Court ruled that the Defendants had deprived the class members of their procedural due process and statutory rights to professional judgment regarding the appropriateness of community placements, as well as their statutory right to be free of discrimination with respect to such placements. Based on the Court's finding of liability on the Plaintiffs' community placement claim, the parties reached a settlement on the issue of remedies. The Plaintiffs' motion for attorneys' fees and costs followed. The petition, as supplemented through October 2014, sought a total award of $7,676,839.09. The Court ruled on the Plaintiffs' motion in two parts. The first ruling addressed the Plaintiffs' "degree of success" on the merits. The second ruling addressed what award of attorneys' fees, costs, and expenses was reasonable in light of the Plaintiffs' limited success in the case. Having considered a number of factors, including time reasonably expended on successful claims, excessive, redundant or unnecessary time and expenses, excessiveness in rates sought, and loss in the time-value-of-money that an award of interest would cover, the Court awarded the Plaintiffs an aggregate award of $2,724,763.28. The Public Interest Law Center of Philadelphia ("PILCO") and Mr. Shaw separately moved for the Court to correct what they alleged were errors in the Court's ruling awarding the Plaintiffs attorneys' fees, costs, and expenses. PILCO subsequently settled its portion of the fees award. On the Court heard oral argument on July 3, 2018, at which the Court granted leave for the parties to file post-hearing submissions. The parties submitted additional filings on July 20, 2018, and on Aug. 3, 2018, respectively. Mr. Shaw asks whether it makes sense to count 6.3 years during which no litigation occurred at all toward to the time it took to litigate the case, but the inquiry is whether the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion. Judge Bolden finds that Mr. Shaw has not made such a showing. Reconsideration is inappropriate if it is merely a second bite at a fully briefed and considered underlying ruling whose outcome disappointed one of the litigants. He therefore declines to reconsider the matter. Mr. Shaw also argues that the Court determined that the Plaintiffs' counsel were entitled to fees at the current rate but failed to use current rates when making the final fee award. The Judge determined that, although the rates the Plaintiffs sought were excessive and did not reflect the then-applicable prevailing market rates at any particular time, it would not make a downward adjustment of 20% to correct for inflated rates because any such adjustment would be offset by the complementary upward adjustment to all of the counsel's past billing to the now-higher prevailing market rates to account for the time-value-of-money that an award of interest would cover. The Court declined to adjust all of the counsel's past billing one way or the other, and the Judge declines to do so now. Finally, Mr. Shaw argues that the Court erroneously counted approximately 175 hours as time expended on the liability phase of the litigation when, in fact, these were hour spent on the fee petition. The Judge disagrees. He says on a motion for reconsideration, the issue is whether Mr. Shaw can point to controlling decisions or data that the Court overlooked in giving effect to the principle of rough justice. Absent such a showing and in due regard for her superior understanding of the litigation, the Judge declines to reconsider Judge Burns' ruling. For these reasons, Judge Bolden denied the motion. A full-text copy of the Court's Aug. 31, 2018 Ruling and Order is available at https://is.gd/zWRNZ4 from Leagle.com. Richard Messier, by guardian, Thomas Nerney, Thomas Maloney, by guardian and sister, Kate Clinton, Carole Ann Carr, by guardian, Ted Bergeron, Leon Horton, by mother and guardian, Emma Debiase, Raymond Mitchell, by guardian, Frank Wargo, Leonard Haversat, by guardian, Mary Tracy, Gregory Kabbai, by guardian, Jane Williams & People First of Connecticut, Inc., Plaintiffs, represented by David C. Shaw -- davidshawctatty@gmail.com -- Law Office of David C. Shaw, LLC, Frank J. Laski, Mental Health Legal Advisors Committee & David N. Rosen -- drosen@davidrosenlaw.com -- David N. Rosen & Associates, P.C. ARC/Connecticut, Inc & Western Connecticut Association for Human Rights, Plaintiffs, represented by Barbara E. Ransom -- Barbara.Ransom@ysterlinglaw.com -- Public Interest Law Center of Philadelphia, David C. Shaw, Law Office of David C. Shaw, LLC, Frank J. Laski, Mental Health Legal Advisors Committee & Judith A. Gran -- judith@rcglawoffices.com -- Public Interest Law Center of Philadelphia. all plaintiffs, Plaintiff, represented by David C. Shaw, Law Office of David C. Shaw, LLC & Martha M. Dwyer -- mmd@mdwyerlaw.com -- Novack Burnbaum Crystal LLP. Toni Richardson, Connecticut Department of Mental Retardation & Director Thomas Howley, Southbury Training School, Defendants, represented by David Paul Friedman -- dfriedman@murthalaw.com -- Murtha Cullina, LLP, James P. Welsh -- JPWelsh@omalleydeneen.com -- Director-Legal & Govt Affairs Dept. of Mental Retardation, Thomas B. York, York Legal Group LLC & Henry A. Salton, Attorney General's Office Health & Human Services. Commissioner Patricia Giardi, Connecticut Department of Social Services, Defendant, represented by David Paul Friedman, Murtha Cullina, LLP, Henry A. Salton, Attorney General's Office Health & Human Services, Hugh Barber, Attorney General's Office Health & Human Services & Richard J. Lynch, Attorney General's Office Health & Human Services. Commissioner Susan S. Addiss, Connecticut Department of Public Health and Addiction Services, Defendant, represented by David Paul Friedman, Murtha Cullina, LLP, Henry A. Salton, Attorney General's Office Health & Human Services, Marianne Horn, Attorney General's Office Department of Public Health & Richard J. Lynch, Attorney General's Office Health & Human Services. Home & School Association of Southbury Training School, Movant, represented by David Paul Friedman, Murtha Cullina, LLP, Frank J. Silvestri, Jr., Verrill & Dana LLP & Richard J. Scarola . Southbury Training School Foundation, Inc., Movant, represented by David Paul Friedman, Murtha Cullina, LLP, Frank J. Silvestri, Jr. -- fsilvestri@verrilldana.com -- Verrill & Dana LLP, Martha M. Dwyer, Novack Burnbaum Crystal LLP, pro hac vice & Robert M. Frost, Jr. -- rmf@frostbussert.com -- Frost Bussert, LLC. James C. Walen, by his parent and guardian, Edward D. Walen, Steven M. Bondy, by his parents and guardians, Philip K. Bondy, M.D. and Sarah E. Bondy, Michael Dougherty, by his sister and guardian, Ann Dougherty, Rebecca Benson, by her parents and guardians, Carleton J. Benson and Gloria P. Benson, Susan Hendricks, by her parents and guardians, Marylyn Hendricks and Laurence Hendricks, Alan Rotzal, by her sister and co-guardian, Carol A. Revere, Steven B. Gorski, by his parents and guardians, Henry P. Gorski and Bernadetta Gorski, Edward D. Walen, M.D. Philip K. Bondy, Sarah E. Bondy, Ann Dougherty, Carleton J. Benson, Gloria P. Benson, Marylyn Hendricks, Laurence Hendricks, Carol A. Revere, Henry P. Gorski, Bernadetta Gorski, Toni Richardson, Connecticut Department of Mental Retardation & Director Thomas Howley, Southbury Training School, Movants, represented by David Paul Friedman, Murtha Cullina, LLP & Frank J. Silvestri, Jr., Verrill & Dana LLP. Home and School Association of the Southbury Training School, Inc. & 611 Residents of Southbury Training School, Movants, represented by Richard J. Scarola -- rjjs@szslaw.com. Public Interest Law Center of Philadelphia, Movant, represented by David Richman -- richmand@pepperlaw.com -- Pepper Hamilton, pro hac vice, Hedya Aryani -- aryanih@pepperlaw.com -- Pepper Hamilton, pro hac vice, Dennis Mark Carnelli -- dcarnelli@npmlaw.com -- Neubert Pepe & Monteith, PC & Robert B. Flynn -- rflynn@oamlaw.com -- O'Connell, Attmore & Morris, LLC. Attorney David C. Shaw, Movant, represented by David N. Rosen -- drosen@davidrosenlaw.com -- David N. Rosen & Associates, P.C. USA, Interested Party, represented by Laurie J. Weinstein, United States Attorney's Office. STATE FARM: Settlement in Hale RICO Suit Has Prelim Approval ------------------------------------------------------------ In the case, MARK HALE, TODD SHADLE, and LAURIE LOGER, on behalf of themselves and all others similarly situated, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, ED MURNANE, WILLIAM G. SHEPHERD, Defendants, Case No. 3:12-cv-00660-DRH-SCW (S.D. Ill.), Judge David R. Herndon of the U.S. District Court for the Southern District of Illinois granted the Plaintiffs' unopposed motion for preliminary approval of the proposed class action Settlement Agreement. The Court has previously certified the Class pursuant to Rule 23(a) and Rule 23(b)(3) defined as all persons in the United States, except those residing in Arkansas and Tennessee, who, in between July 28, 1987, and Feb. 24, 1998, (1) were insured by a vehicle casualty insurance policy issued by Defendant State Farm and (2) made a claim for vehicle repairs pursuant to their policy and had non-factory authorized and/or non-OEM (Original Equipment Manufacturer) crash parts installed on or specified for their vehicles or else received monetary compensation determined in relation to the cost of such parts. It previously appointed and confirmed Mark Hale, Todd Shadle and Laurie Loger as the Class representatives. Pursuant to the Settlement Agreement, the Judge appointed Epiq Class Action & Claims Solutions, Inc. to serve as the Claims Administrator. Epiq, in consultation with its notice expert, Cameron R. Azari, Esq. of Hilsoft Notifications, previously provided the notice to the Class and reported to the Court regarding the implementation of the prior notice plan and opt outs. The Final Fairness Hearing is set for Dec. 13, 2018 at 9:00 a.m. No later than Oct. 16, 2018, which is 31 days prior to the deadline for the Class Members to object to the Settlement, the Class Plaintiffs must file papers in support of final settlement approval, and the Class Counsel's application for attorneys' fees and expenses and the requested service awards to the Class Representatives. No later than Dec. 6, 2018, which is seven days prior to the Final Approval Hearing, the Class Plaintiffs must file reply papers in support of final approval of the Settlement Agreement and respond to any written objections. The Defendants may (but are not required to) file papers in support of final approval of the Settlement Agreement and in response to written objections, so long as they do so no later than Dec. 6, 2018. The Court previously approved a Class Notice Plan. This Plan has been completed as approved. The Judge directed the Parties and the Claims Administrator to file the Class Settlement Notice Plan with forms of notice no later than Sept. 5, 2018 and to complete all aspects of the Settlement Notice plan no later than Nov. 1, 2018, in accordance with the terms of the Settlement Agreement. The Claims Administrator will file with the Court by no later than Dec. 6, 2018, which is seven days prior to the Final Approval Hearing, proof that Notice was provided in accordance with the Settlement Agreement and the Order, as well as proof that notice was provided to the appropriate State and federal officials pursuant to the Class Action Fairness Act. To object to the Settlement Agreement, the Class Members must follow the directions in the Notice and file a written Objection with the Court by the Objection Deadline. These are the deadlines by which certain events must occur: i. Oct. 16, 2018 - Deadline for Completion of Class Notice Program ii. Oct. 16, 2018 - Deadline for the Class Plaintiffs' Motion for Attorneys' Fees and Incentive Awards iii. Nov. 17, 2018 - Deadline for the Class Members to file Objections iv. Dec. 6, 2018 - Deadline for Parties to File the Following: (1) Proof of Class Notice and CAFA Notice; and (2) Motion and Memorandum in Support of Final Approval, including responses to any Objections. v. Dec. 13, 2018 at 9:00 a.m. - Final Approval Hearing A full-text copy of the Court's Sept. 4, 2018 Order is available at https://is.gd/2RmfOo from Leagle.com. Illinois Chamber of Commerce, Objector, represented by August M. Appleton, August Appleton - Attorney. Mark Hale, Plaintiff, represented by Bradley M. Cosgrove -- BMC@CliffordLaw.com -- Clifford Law Offices PC, Charles F. Barrett -- cbarrett@nealharwell.com -- Neal & Harwell, PLC, Kevin P. Durkin -- KPD@CliffordLaw.com -- Clifford Law Offices PC, Patrick W. Pendley -- pwpendley@pbclawfirm.com -- Pendley Law Firm, Robert A. Clifford -- rclifford@CliffordLaw.com -- Clifford Law Offices. P.C., Stephen A. Saltzburg, Stephen A. Saltzburg -- ssaltz@law.gwu.edu -- pro hac vice, W. Gordon Ball, Ball & Scott, Brent W. Landau -- blandau@hausfeld.com -- Hausfeld LLP, David T. Brown -- dbrown@muchshelist.com -- Much, Shelist et al. Cook County, Elizabeth J. Cabraser -- ecabraser@lchb.com -- Lieff, Cabraser et al., Erwin S. Chemerinsky -- echemerinsky@law.berkeley.edu -- University of California – School of Law, pro hac vice, George S. Bellas -- george@bellas-wachowski.com -- Clifford Law Offices P.C., Jeannine M. Kenney -- jkenney@hausfeld.com -- Hausfeld LLP, Jessica A. Perez -- jperez@pbclawfirm.com -- Pendley, Baudin & Coffin, L.L.P., John (Don) W. Barrett -- dbarrett@barrettlawgroup.com -- Barrett Law Group, Jonathan L. Loew -- jloew@muchshelist.com -- Much, Shelist et al., Kevin Reid Budner -- kbudner@lchb.com -- Lieff, Cabraser et al., Kristofer S. Riddle -- KSR@CliffordLaw.com -- Clifford Law Offices PC, Lance K. Baker -- lkbakerlaw@gmail.com -- Gordon Ball PLLC, Marcus Neil Bozeman -- bozemanmarcus@sbcglobal.net – Thrash Law Firm PA, pro hac vice, Megan Elizabeth Jones -- mjones@hausfeld.com -- Hausfeld LLP, pro hac vice, Melinda R. Coolidge -- mcoolidge@hausfeld.com -- Hausfeld LLP, Michael S. Krzak -- MSK@CliffordLaw.com -- Clifford Law Offices. P.C., Nicholas R. Rockforte -- nrockforte@pbclawfirm.com -- Pendley, Baudin & Coffin, L.L.P., Nimish Ramesh Desai -- ndesai@lchb.com -- Lieff, Cabraser et al., Richard R. Barrett -- rrb@rrblawfirm.net -- Barrett Law Office, Richard M. Heimann -- rheimann@lchb.com -- Lieff, Cabraser et al., Robert J. Nelson -- rnelson@lchb.com -- Lieff, Cabraser et al., Robert P. Sheridan -- RPS@CliffordLaw.com -- Clifford Law Offices, Of Counsel, Shannon M. McNulty -- SMM@CliffordLaw.com -- Clifford Law Offices, P.C., Steven P. Blonder -- sblonder@muchshelist.com -- Much, Shelist et al., Cook County, Thomas P. Thrash, Thrash Law Firm PA, pro hac vice & William P. Butterfield -- wbutterfield@hausfeld.com -- Hausfeld LLP. Todd Shadle, Plaintiff, represented by Bradley M. Cosgrove, Clifford Law Offices PC, Charles F. Barrett, Neal & Harwell, PLC, Kevin P. Durkin, Clifford Law Offices PC, Patrick W. Pendley, Pendley Law Firm, Robert A. Clifford, Clifford Law Offices. P.C., Stephen A. Saltzburg, Stephen A. Saltzburg, pro hac vice, W. Gordon Ball, Ball & Scott, Brent W. Landau, Hausfeld LLP, Elizabeth J. Cabraser, Lieff, Cabraser et al., Erwin S. Chemerinsky, University of California - School of Law, pro hac vice, George S. Bellas, Clifford Law Offices P.C., Jeannine M. Kenney, Hausfeld LLP, John (Don) W. Barrett, Barrett Law Group, Jonathan L. Loew, Much, Shelist et al., Kevin Reid Budner, Lieff, Cabraser et al., Kristofer S. Riddle, Clifford Law Offices PC, Lance K. Baker, Gordon Ball PLLC, Marcus Neil Bozeman, Thrash Law Firm PA, pro hac vice, Megan Elizabeth Jones, Hausfeld LLP, Melinda R. Coolidge, Hausfeld LLP, Michael S. Krzak, Clifford Law Offices. P.C., Nimish Ramesh Desai, Lieff, Cabraser et al., Richard R. Barrett, Barrett Law Office, Richard M. Heimann, Lieff, Cabraser et al., Robert J. Nelson, Lieff, Cabraser et al., Robert P. Sheridan, Clifford Law Offices- Of Counsel, Shannon M. McNulty, Clifford Law Offices. P.C., Steven P. Blonder, Much, Shelist et al. Cook County & Thomas P. Thrash, Thrash Law Firm PA. Laurie Loger, Plaintiff, represented by Bradley M. Cosgrove, Clifford Law Offices PC, Kevin P. Durkin, Clifford Law Offices PC, Robert A. Clifford, Clifford Law Offices. P.C., Stephen A. Saltzburg, Stephen A. Saltzburg, pro hac vice, Elizabeth J. Cabraser, Lieff, Cabraser et al., Erwin S. Chemerinsky, University of California - School of Law, pro hac vice, George S. Bellas, Clifford Law Offices P.C., Jeannine M. Kenney, Hausfeld LLP, Jonathan L. Loew, Much, Shelist et al., Marcus Neil Bozeman, Thrash Law Firm PA, pro hac vice, Megan Elizabeth Jones, Hausfeld LLP, Melinda R. Coolidge, Hausfeld LLP, Nimish Ramesh Desai, Lieff, Cabraser et al., Steven P. Blonder, Much, Shelist et al. Cook County & W. Gordon Ball, Ball & Scott. Mark Covington, Plaintiff, represented by Robert A. Clifford, Clifford Law Offices P.C., George S. Bellas, Clifford Law Offices P.C., Jeannine M. Kenney, Hausfeld LLP, Jonathan L. Loew, Much, Shelist et al., Marcus Neil Bozeman, Thrash Law Firm PA, pro hac vice, Megan Elizabeth Jones, Hausfeld LLP, Melinda R. Coolidge, Hausfeld LLP, Nimish Ramesh Desai, Lieff, Cabraser et al., Steven P. Blonder, Much, Shelist et al. Cook County & W. Gordon Ball, Ball & Scott. State Farm Mutual Automobile Insurance Company, Defendant, represented by Joseph A. Cancila, Jr. -- jcancila@rshc-law.com -- Riley Safer et al, Patrick D. Cloud -- pcloud@heylroyster.com -- Heyl, Royster et al., Ronald S. Safer -- rsafer@rshc-law.com -- Riley Safer et al, Harnaik Kahlon -- nkahlon@rshc-law.com – Riley Safer et al, J. Timothy Eaton -- teaton@taftlaw.com -- Taft Stettinius & Hollister, James P. Gaughan -- jgaughan@rshc-law.com -- Riley Safer et al, Jonathan D. Parente -- jonathan.parente@alston.com -- Alston & Bird LLP, pro hac vice, Jonathan M. Redgrave -- jredgrave@redgravellp.com -- Partner, Redgrave LLP, Matthew C. Crowl -- mcrowl@rshc-law.com -- Riley Safer et al, Michael P. Kenny -- mike.kenny@alston.com -- Alston & Bird LLP, pro hac vice, Monica McCarroll -- MMcCarroll@redgravellp.com -- Redgrave LLP, pro hac vice, Patricia B. Holmes -- pholmes@rshc-law.com -- Riley Safer et al & Patricia T. Mathy -- pmathy@rshc-law.com -- Riley Safer et al. Edward Murnane, Defendant, represented by Andrew Chinsky -- ACHINSKY@SIDLEY.COM -- Sidley Austin LLP, Karim Basaria -- KBASARIA@SIDLEY.COM -- Sidley Austin LLP, Patrick Edward Croke -- PCROKE@SIDLEY.COM -- Sidley Austin LLP & Paul E. Veith -- PVEITH@SIDLEY.COM -- Sidley Austin LLP. William G Shepherd, Defendant, represented by Russell K. Scott -- rks@greensfelder.com -- Greensfelder, Hemker & Gale PC & Clark W. Hedger -- ch1@greensfelder.com -- Greensfelder, Hemker & Gale, PC. Illinois State Bar Association, Stanley Tucker & April Troemper, Movants, represented by Michael J. Nester, Donovan Rose Nester PC. Board of Trustees of the University of Illinois, Movant, represented by Julie Fix Meyer -- jfixmeyer@armstrongteasdale.com -- Armstrong Teasdale LLP. Lloyd A Karmeier, Interested Party, represented by A. Courtney Cox -- ccox@sandbergphoenix.com -- Sandberg, Phoenix et al. & Anthony L. Martin -- amartin@sandbergphoenix.com -- Sandberg, Phoenix et al. Tillery Group, Interested Party, represented by J. William Lucco, Lucco, Brown et al. & Joseph R. Brown, Jr., Lucco, Brown et al. U.S. Chamber of Commerce & Institute for Legal Reform, Intervenors, represented by Bobby Roy Burchfield -- bburchfield@kslaw.com -- King & Spalding, LLP, pro hac vice. Institute for Legal Reform, Intervenor, represented by Bobby Roy Burchfield, King & Spalding, LLP, pro hac vice. STEAK 'N SHAKE: Dismissal of Summary Judgment Bid in Drake Denied ----------------------------------------------------------------- In the case, SANDRA DRAKE and RANDY SMITH, on behalf of themselves and others similarly situated, Plaintiffs, v. STEAK N. SHAKE OPERATIONS, INC., Defendant, Case No. 4:14-cv-01535-JAR (E.D. Mo.), Judge John A. Ross of the U.S. District Court for the Eastern District of Missouri, Eastern Division, denied the Plaintiffs' Motion to Dismiss Defendant's Motion for Summary Judgment as to Katrina Wolfshoefer. The matter is before the Court on SnS' Motion for Summary Judgment as to opt-in Plaintiff Katrina Wolfshoefer, and the Plaintiffs' Motion to Dismiss. On Oct. 25, 2017, the Court granted the Plaintiffs' Motion to Stay Briefing on two motions for summary judgment until it ruled on the Parties' competing motions to certify/decertify the Plaintiffs' class action. One of those motions for summary judgment was directed at Wolfshoefer on the ground that her deposition testimony conclusively established that she met the definition of an overtime-exempt managerial and/or administrative employee. In the Court's order granting the Motion to Stay, the Court opined that, in the event it certified the Plaintiffs' class action, the Defendant's arguments regarding Wolfshoefer will likely be common to the other class members. On Dec. 22, 2017, the Court granted the Plaintiffs' Motion to Certify. On Jan. 10, 2018, the Court lifted the stay on briefing. Rather than respond to SnS' Motion for Summary Judgment, the Plaintiffs moved to dismiss it, arguing that the Court's order granting certification rendered the motion moot. SnS opposes the Motion to Dismiss and has filed a sur-reply. Judge Ross concludes that SnS' Motion for Summary Judgment is not moot as the Plaintiffs argue. While the Court's certification order may bear directly on the merits of SnS' Motion for Summary Judgment, SnS retains a cognizable legal interest in the outcome of that motion. For this reason, he will deny Plaintiffs' Motion to Dismiss. Accordingly, the Judge denied the Plaintiffs' Motion to Dismiss Defendant's Motion for Summary Judgment as to Katrina Wolfshoefer. The Plaintiffs shall, no later than Sept. 7, 2018, file their response to the Defendant's Motion for Summary Judgment. The Defendant shall, no later than Sept. 12, 2018, file any reply. A full-text copy of the Court's Sept. 5, 2018 Memorandum and Order is available at https://is.gd/JY4OLm from Leagle.com. Sandra Drake & Randy Smith, on behalf of, Plaintiffs, represented by Brendan J. Donelon, DONELON, P.C. & Daniel W. Craig, DONELON, P.C. Steak N Shake Operations, Inc., an Indiana Corporation, Defendant, represented by Rene' Leigh Duckworth -- rene.duckworth@ogletree.com -- OGLETREE DEAKINS, Rodney A. Harrison -- rodney.harrison@ogletree.com -- OGLETREE DEAKINS, Erin E. Williams -- erin.williams@ogletree.com -- OGLETREE DEAKINS & Mallory M. Stumpf -- mallory.stumpf@ogletree.com -- OGLETREE DEAKINS. SWAMI MANAGEMENT: Fails to Pay OT to Managers, Hockensmith Claims ----------------------------------------------------------------- BRENDA HOCKENSMITH, individually and on behalf of all others similarly situated, Plaintiff v. SWAMI MANAGEMENT CORP. d/b/a THREE CROWNS MOTOR LODGE and THE COLTON MOTEL; MINESH PATEL; and PRERANA PATEL, Defendants, Case No. 1:18-cv-01766-SHR (M.D. Pa., Sept. 7, 2018) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Hockensmith was employed by the Defendants as manager from April 2011 to August 2017. Swami Management Corp., d/b/a Three Crowns Motor Lodge and The Colton Motel, is a corporation organized under the laws of the Commonwealth of Pennsylvania. The Company is engaged in the hospitality industry. [BN] The Plaintiff is represented by: Steve T. Mahan, Esq. Derrek W. Cummings, Esq. Larry A. Weisberg, Esq. Stephen P. Gunther, Esq. MC CARTHY WEISBERG CUMMINGS, P.C. 2704 Commerce Drive, Suite B Harrisburg, PA 17110-9380 Telephone: (717) 238-5707 Facsimile: (717) 233-8133 E-mail: smahan@mwcfirm.com dcummings@mwcfirm.com lweisberg@mwcfirm.com sgunther@mwcfirm.com TEIKOKU: Judge Approves Lidoderm Class Action Settlement -------------------------------------------------------- Cara Bayles, writing for Law360, reported that a California federal judge on Sept. 12 approved "excellent" settlements ending claims that Teikoku, Endo and Actavis violated antitrust laws by stalling the release of a generic form of the Lidoderm pain medicine. [GN] TEREX CORP: Securities Class Action Survives Motion to Dismiss -------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on Sept. 12 announced Terex Corporation (NYSE: TEX) may face damages caused by a pending securities class action lawsuit. Terex manufactures and sells aerial work platforms, cranes, and materials processing machinery worldwide. Investors filed a class action complaint against Terex for alleged violations of the Securities Exchange Act of 1934. According to the complaint, Terex used improper accounting practices and falsely touted the company's business prospects in order to disguise dramatically declining demand for its products. Specifically, Terex prematurely recognized revenue in connection with product sales by moving its products to off-site locations and reporting them as sold, even though they were not being sent to customers. Terex's attempts to boost sales, meet market expectations, and maintain unrealistic financial projections were in vain, as the company eventually admitted a significant net loss and massive goodwill impairment charges. On March 31, 2018, U.S. District Judge Robert N. Chatigny denied in part defendants' motion to dismiss plaintiff's complaint, paving the way for litigation to proceed. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/terex-corporation/ Terex Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] TESLA INC: Andrew Left Sues over Musk's Misleading Tweets --------------------------------------------------------- ANDREW E. LEFT, individually and on behalf of all others similarly situated, Plaintiff v. TESLA, INC.; amd ELON R. MUSK, Defendants, Case No. 4:18-cv-05463-JSW (N.D. Cal., Sept. 6, 2018) is a class action on behalf of all persons who purchased, sold, or otherwise transacted in Tesla securities between August 7, 2018 and August 17, 2018. The action is brought against Tesla and its Chairman and Chief Executive Officer Elon R. Musk for violations of the Securities Exchange Act of 1934. According to the complaint, the Defendant Musk has a long-standing public feud with short-sellers and often uses his personal Twitter account to taunt and confront skeptics of his company. For example, on May 4, 2018, he tweeted that the "short burn of the century was coming soon" and that the "sheer magnitude of the short carnage will be unreal. If you're short, I suggest tiptoeing quietly to the exit." He also tweeted on June 17, 2018, that Tesla short-sellers had "about three weeks before their short position explodes." The Defendants artificially manipulated the price of Tesla securities to damage the Company's short-sellers, and in the process, damaged all purchasers of Tesla securities by issuing materially false and misleading information. The Defendants' fraudulent scheme started on August 7, 2018, when Defendant Musk, via his verified personal Twitter account, issued the following tweet: "Am considering taking Tesla private at $420. Funding secured." Later that day, Defendant Musk issued another tweet, stating: "Investor support is confirmed. Only reason why this is not certain is that it's contingent on a shareholder vote." The lawsuit says Defendant Musk artificially manipulated the price of Tesla securities with objectively false tweets in order to "burn" the Company's short-sellers. In the succeeding days, the truth regarding the supposedly "secure" financing needed to effectuate the going-private transaction began to emerge, exposing the fraudulent scheme, and in the process, injuring Class Period investors as the price of Tesla securities deteriorated rapidly. As a result of Defendants' wrongful acts and misleading statements, and the precipitous artificial inflation in the market value of the Company's securities and subsequent decline, the Plaintiff and other Class members have suffered significant losses and damages. Tesla, Inc. designs, develops, manufactures, and sells electric vehicles, and energy generation and storage systems in the United States, China, Norway, and internationally. The company was formerly known as Tesla Motors, Inc. and changed its name to Tesla, Inc. in February 2017. Tesla, Inc. was founded in 2003 and is headquartered in Palo Alto, California. [BN] The Plaintiff is represented by: James M. Wagstaffe, Esq. Frank Busch, Esq. KERR & WAGSTAFFE LLP 101 Mission Street, 18th Floor San Francisco, CA 94105 Telephone: (415) 371-8500 Facsimile: (415) 371-0500 E-mail: wagstaffe@kerrwagstaffe.com busch@kerrwagstaffe.com - and - LABATON SUCHAROW LLP Christopher J. Keller, Esq. Eric J. Belfi, Esq. Michael P. Canty, Esq. David J. Schwartz, Esq. Francis P. McConville, Esq. 140 Broadway New York, NY 10005 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: ckeller@labaton.com ebelfi@labaton.com mcanty@labaton.com dschwartz@labaton.com fmcconville@labaton.com TESLA INC: Faces Xing Fan Suit over Drop in Share Price ------------------------------------------------------- ZHI XING FAN, individually and on behalf of all others similarly situated, Plaintiff v. TESLA, INC., and ELON R. MUSK, Defendants, Case No. 4:18-cv-05470-YGR (N.D. Cal., Sept. 6, 2018) is an action by the Plaintiff and the class who purchased or otherwise acquired Tesla securities between August 7, 2018 through August 17, 2018, seeking to recover damages caused by the Defendants' violations of the federal securities laws, and to pursue remedies under the Securities Exchange Act of 1934. According to the complaint, on August 7, 2018, the Defendant Elon Musk, Tesla's co-founder, Chairman, and Chief Executive Officer, issued the following statement via Twitter: "Am Considering taking Tesla private at $420. Funding secured." In reaction to Musk's tweet, the price of Tesla's common stock increased, reaching an intra-day high of $387.46 per share—$45.47 per share higher than the previous day's closing price—and closed at $379.57 per share on August 7, 2018, an increase of $37.58 per share, or approximately 11%. Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and misleading statements and/or failed to disclose that: (i) Defendants had not secured funding for a transaction to take Tesla private; (ii) Tesla's Board of Directors was unaware of any plan to take Tesla private; (iii) Musk had not retained advisors in connection with his purported plan to take Tesla private; (iv) the status and likelihood of Tesla going private was therefore misrepresented to the market; and (v) as a result, Tesla's public statements were materially false and misleading at all relevant times. On August 8, 2018, reports began to emerge that the SEC had made inquiries into Musk's tweet and whether it was truthful that he did, in fact, have "funding secured" to take Tesla private. Following this news, Tesla's stock price fell $9.23 per share, or 2.4%, to close at $370.34 per share on August 8, 2018. On August 9, 2018, Tesla's stock price continued to fall after facts emerged after the market closed on August 8, 2018 and later on August 9, 2018 that Musk's tweet had, in fact, triggered an SEC inquiry. The Wall Street Journal reported that the SEC "has asked Musk to produce proof that he's secured funding. . ." and numerous other media sources reported that Musk did not have funding secured prior to issuing his statement to that effect via Twitter. Following this news, Tesla's stock price fell by more than $17.89 per share, nearly 5%, to close at $352.45 per share on August 9, 2018, resulting in a two-day decline of more than 7%. On August 13, 2018, post-market, Musk stated via Twitter: "I'm excited to work with Silver Lake and Goldman Sachs as financial advisers, plus Wachtell, Lipton, Rosen & Katz and Munger, Tolles & Olson as legal advisors, on the proposal to take Tesla private." However, on August 14, 2018, Bloomberg reported that at the time of Musk's August 13, 2018 Twitter announcement, neither Goldman Sachs nor Silver Lake were yet working with Musk pursuant to a signed agreement or in an official capacity. On this news, Tesla's stock price fell $8.77 per share, or nearly 2.5%, to close at $347.64 per share on August 14, 2018. Then, on August 16, 2018, The New York Times published an interview with Musk in which he described the circumstances leading up to the tweet, including his high stress levels and his use of the sedative-hypnotic sleep medication Ambien in order to cope with his stress. On this news, the price of Tesla stock declined $29.95 per share, or 8.93%, to close at $305.50 per share on August 17, 2018. On August 24, 2018, Musk issued a statement on the Company's website stating that he would abandon his plan to take Tesla private. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages. Tesla, Inc. designs, develops, manufactures, and sells electric vehicles, and energy generation and storage systems in the United States, China, Norway, and internationally. The company was formerly known as Tesla Motors, Inc. and changed its name to Tesla, Inc. in February 2017. Tesla, Inc. was founded in 2003 and is headquartered in Palo Alto, California. [BN] The Plaintiff is represented by: Jennifer Pafiti, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Telephone: (818) 532-6499 E-mail: jpafiti@pomlaw.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 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 TEXAS: Clyce et al. File Appeal to 5th Circuit ---------------------------------------------- Chance Clyce, et al v. Nadine Butler, et al., Case No. 18-11189 (5th Cir, Sept. 10, 2018) is an appeal filed in the U.S. Court of Appeals for the Fifth Circuit from a lower court decision, Case No. 3:15-CV-793 (N.D. Tex., March 10, 2015). Attorneys for Plaintiff – Appellants Martin J. Cirkiel, Esq. CIRKIEL & ASSOCIATES, P.C. 1901 E. Palm Valley Boulevard Round Rock, TX 78664-0000 Telephone: (512) 244 6658 Attorneys for NADINE BUTLER, LESLY JACOBS, KEVIN DUBOSE, CONRAD JONES, and TEXAS JUVENILE JUSTICE DEPARTMENT: Christopher Lee Lindsey, Esq. OFFICE OF THE ATTORNEY GENERAL 300 W. 15th Street - 7th Floor William P. Clements Building Austin, TX 78701-1220 Telephone: (512) 463 2080 Attorneys for FREDERICK FARLEY, Investigator and Supervisor for Hunt County Juvenile Detention Center, individually and in his official capacity; KENNETH WRIGHT, individually and in his official capacity; SHANIGIA WILLIAMS, individually and in her official capacity; and DAVID REILLY, Interim Executive Director: Jason Eric Magee, Esq. ALLISON, BASS & MAGEE, L.L.P. 402 W. 12th Street AO Watson House Austin, TX 78701-0000 Telephone: (512) 482 0701 TITLE SOURCE: Settlement in Swamy FLSA Suit Has Final Approval -------------------------------------------------------------- In the case, SOM SWAMY, on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. TITLE SOURCE INC., Defendant, Case No. C 17-01175 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California (i) granted the parties' motion for final approval of a proposed class settlement and approval of an individual FLSA settlement; (ii) granted the Plaintiff's motion for an award of attorney's fees and costs to the class counsel; and denied the Plaintiff's motion for a service award. Swamy asserted class claims against his former employer, the Defendant, under the California Labor Code and the Fair Labor Standards Act for failing to reimburse necessary business expenses, failing to pay overtime, and providing inaccurate wage statements. A prior order certified a class only as to the Plaintiff's expense reimbursement and wage statement claims under California law . That same order declined to certify a class with respect to the Plaintiff's overtime claims and denied the Plaintiff's motion to certify a FLSA collective action. The class consists of all persons employed by defendant as an external staff appraiser in California between March 2013 and April 2018. A May 2018 order granted the parties' joint motion for preliminary approval of a proposed class action settlement. The order also approved, as to form and content, a notice concerning the class settlement agreement and final approval hearing. The claims administrator mailed the class notice to all 50 potential class members at addresses obtained from the Defendant. The Defendant also emailed the notice and opt-out forms to each class member. No objections to the settlement have been received by the counsel or the class administrator. Five members of the class opted out of the settlement agreement. The settlement agreement provides for an average cash payment of nearly $12,000 dollars to each class member. The classwide release is limited to the certified claims. The parties now move for final approval of the class settlement agreement and, separately, for approval of a settlement of the Plaintiff's individual FLSA claim. The lass counsel also moves for an award of (1) $900,216 in attorney's fees, (2) $99,433 in costs, and (3) a $5,000 incentive award to the class representative. Judge Alsup (i) granted final approval of the proposed class settlement, (ii) granted approval of the settlement of the Plaintiff's individual FLSA claim, (iii) granted the request for an award of attorney's fees and costs, and (iv) denied the request for an incentive award. Judgment will be entered separately. By Oct. 2, 2018, and every 14 calendar days thereafter, the parties will file a joint submission explaining whether or not the claims administration process is proceeding according to schedule and how any snafus will be cured. A full-text copy of the Court's Sept. 5, 2018 Order is available at https://is.gd/CmAKZO from Leagle.com. om Swamy, on Behalf of Himself and on Behalf of All Others Similarly Situated, Plaintiff, represented by Lorrie T. Peeters -- lpeeters@caffarelli.com -- Caffarelli & Associates Ltd., Don J. Foty -- dfoty@kennedyhodges.com -- Kennedy Hodges, LLP, pro hac vice, Galvin B. Kennedy -- gkennedy@kennedyhodges.com -- Kennedy Hodges, LLP & William Marshall Hogg , Kennedy Hodges, LLP. Title Source, Incorporated, Defendant, represented by James Milton Nelson -- nelsonj@gtlaw.com -- Greenberg Traurig LLP, Adil Mansoor Khan -- khanad@gtlaw.com -- Greenberg Traurig, LLP, Jeffrey B. Morganroth -- jmorganroth@morganrothlaw.com -- Morganroth and Morganroth PLLC, Lindsay Erin Hutner -- hutnerl@gtlaw.com -- Greenberg Traurig, LLP, Mark David Kemple -- kemplem@gtlaw.com -- Greenberg Traurig, Michelle L. DuCharme -- ducharmem@gtlaw.com -- Greenberg Traruig, LLP & Peter S. Wahby -- wahbyp@gtlaw.com -- Greenberg Traurig, LLP. TOTAL MERCHANT: Fails to Pay Proper Wages, Fowler Suit Says ----------------------------------------------------------- FARRAH FOWLER, individually and on behalf of all others similarly situated, Plaintiff v. TOTAL MERCHANTS SERVICES, LLC; TOTAL MERCHANT SERVICES, INC. and Does 1 through 100, Defendants, Case No. BC 722782 (Cal. Super., Los Angeles Cty., Sept. 27, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiff Fowler was employed by the Defendants as non-exempt, hourly employee from April 2013 to July 2017. Total Merchant Services, Inc. provides credit card processing services for small businesses and merchants in the United States and Canada. Total Merchant Services, Inc. was founded in 1996 and is based in Basalt, Colorado. As of July 11, 2017, Total Merchant Services, Inc. operates as a subsidiary of North American Bancard Holdings, LLC. [BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Telephone: (818) 265-1020 Facsimile: (818) 265-1021 TRIAD MEDIA: Bid to Impose Sanctions in Sloatman TCPA Suit Denied ----------------------------------------------------------------- In the case, LALA SLOATMAN, Plaintiff, v. TRIAD MEDIA SOLUTIONS, INC., d/b/a COMPARETOPSCHOOLS.COM Defendant, Civ. No. 17-cv-11383 (KM) (D. N.J.), Judge Kevin McNulty of the U.S. District Court for the District of New Jersey denied the Defendant's motion for an order imposing Rule 11 sanctions and striking the complaint. Sloatman, has filed the putative class action against Triad, alleging violations of the Telephone Consumer Protection Act ("TCPA"). The essential allegation is that Triad, using an automatic telephone dialing system, called Sloatman's cell phone number in September 2016 to make a commercial solicitation, without her prior consent. Triad's current motion asks the Court to strike the Complaint and impose sanctions under Rule 11, Fed. R. Civ. P. The Complaint in the case, according to Triad, lacks the necessary evidentiary support. It states without objection that such a commercial call is permissible with the recipient's prior consent. Triad has attached what it calls "irrefutable" evidence of consent in the form of an "opt-in" printout from its website, www.comparetopschools.com. This evidence, it says, demonstrates that on Sept. 9, 2016, Sloatman explicitly consented to being contacted at her cell phone number, which she supplied by typing it into the online form and checking the appropriate box. Sloatman's counsel explained that his client has never visited the website nor has she provided her information, including her cellular telephone number to the Defendant for any reason. He went on to state that the "consent" small print on the website would not have been visible and that contact information or consent may be supplied for limited purposes only. Judge McNulty finds that there is a factual dispute, which must be resolved by the usual means, not in the context of a sideshow motion for sanctions. While the focus of Rule 11 is on whether a claim is wholly without merit, and is not dictated by whether resources will be expended in deciding the motion, Rule 11 motions should conserve rather than misuse judicial resources. For these reasons, the Judge denied Triad's motion. A full-text copy of the Court's Sept. 4, 2018 Opinion and Order is available at https://is.gd/2mQJgv from Leagle.com. LALA SLOATMAN, individually and on behalf of all others similarly situated, Plaintiff, represented by ROSS H. SCHMIERER -- rschmierer@denittislaw.com -- DeNittis Osefchen Prince, P.C. TRIAD MEDIA SOLUTIONS, INC., doing business as COMPARETOPSCHOOL.COM, Defendant, represented by MARK M. TALLMADGE -- mtallmadge@bressler.com -- BRESSLER, AMERY & ROSS, PC & MEGHAN M. DOUGHERTY -- mdougherty@bressler.com -- BRESSLER, AMERY & ROSS, P.C. TRIBUNE MEDIA: Arbitrage Event-Driven Fund Files Class Action ------------------------------------------------------------- Adam Jacobson, writing for Radio+Television Business Report, reports that if you thought Tribune Media's now-imploded merger with Sinclair Broadcast Group was largely due to actions taken by Sinclair, you may want to look closely at what a private equity firm believes. This entity, named the Arbitrage Event-Driven Fund, on Sept. 10 filed a class action complaint with an Illinois federal district court against Tribune. A jury trial is being demanded. The charge? Tribune executives cost investors millions of dollars for failing to disclose Sinclair's ill-fated actions. As the fund sees it, Tribune CEO Peter Kern, EVP/CFO Chandler Bigelow and EVP/General Counsel Edward Lazarus each failed to reveal to the investors that Sinclair had declined to honor a request by the FCC to divest certain television stations -- a move Tribune has said would have cleared the transaction. Instead, the $3.9 billion merger was terminated by Tribune, resulting in competing lawsuits alleging breach of contract. For the Arbitrage Event-Driven Fund, managed by New York-based Water Island LLC, the lack of disclosure from Tribune's three C-Suite executives cost investors some $564 million. This is particularly vexing to the Fund, as Kern and his colleagues are believed to have known since November 2017 about the problems associated with the Sinclair merger. The Fund filed the complaint based on information gathered by its attorneys which included, among other things, a review of press releases and other public statements issued by Tribune Media, media and analyst reports about Tribune, publicly available information in Tribune Media Company v. Sinclair Broadcast Group, and other public information regarding Tribune. Noting the statement made July 16, 2018, from FCC Chairman Ajit Pai in which he expressed "serious concerns" about the well-publicized merger. In particular, Chairman Pai stated that "certain station divestitures that have been proposed to the FCC would allow Sinclair to control those stations in practice, even if not in name, in violation of the law." The Fund asserts, "This signal that Sinclair was not agreeing to the regulatory requirements necessary to complete the merger -- the station divestitures discussed frequently in Tribune's public filings since May 2017 -- caused Tribune stock to close down $6.44 per share (over 16%), costing investors more than $564 million in value." As such, the class action suit was filed in Illinois, based on "misrepresentations and omissions of material fact" made by Tribune in its public filings concerning Sinclair's conduct during the regulatory approval process necessary to complete the merger. The goal is to get the court to determine that the action is a proper class action under Rule 23 of the Federal Rules of Civil Procedure; to award compensatory damages; and to declare that a violation of Section 10(b) of the Exchange Act as well as Rule 10b-5 was done. Representing the Fund as legal counsel are Entwistle & Cappucci LLP and Moirano Gorman Kenny LLC. [GN] TRINITY RESTAURANT: Whitfield Seeks to Certify Class of Servers --------------------------------------------------------------- MERCEDES WHITFIELD, on behalf of herself and similarly situated employees, the Plaintiff, vs TRINITY RESTAURANT GROUP, LLC, the Defendant, Case 2:18-cv-10973-DML-EAS (E.D. Mich.), the Plaintiff moves the Court for entry of an order certifying Plaintiff's claim under the Michigan Workforce Opportunity Wage Act and proceed on behalf of the following class: "all current and former Servers who worked for Defendant Trinity Restaurant Group, LLC at its IHOP restaurants in the State of Michigan since March 26, 2015." The Plaintiff challenges Defendant's failure to pay its Servers the full minimum wage based on two uniform practices: (1) requiring Servers to perform certain types and amounts of sidework; and (2) requiring Servers to share a portion of their tips with other restaurant employees called expediters. The Defendant readily admits the existence of these practices but argues that they are permissible under the Michigan Workforce Opportunity Wage Act, the lawsuit says.[CC] Attorneys for Plaintiff: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 - and - Jesse L. Young, Esq. KREIS ENDERLE, P.C. 8225 Moorsbridge P.O. Box 4010 Kalamazoo, MI 49003 - and - Nicholas A. Migliaccio Jason S. Rathod MIGLIACCIO & RATHOD LLP 412 H Street, NE, Suite 302 Washington, DC 20002 Attorneys for Defendant: Edward N. Boehm, Jr., Esq. Martin B. Heller, Esq. Joseph A. Starr, Esq. William Reed Thomas, Esq. FISHER PHILLIPS www.fisherphillips.com 450 E Las Olas Blvd Suite 800 Fort Lauderdale, FL 33301 Telephone: (954) 525 4800 Facsimile: (954) 525 8739 E-mail: tboehm@fisherphillips.com mheller@fisherphillips.com jstarr@starrbutler.com wthomas@starrbutler.com U.S.A.: Mapuatuli et al. File Petition for Writ of Certiorari ------------------------------------------------------------- In the case, ALAN MAPUATULI; GILBERT MEDINA; and GARY VICTOR DUBIN, a Member of the Hawaii Bar, doing business as THE DUBIN LAW OFFICES, for themselves and for all others similarly situated, the Petitioners, v. JEFFERSON B. SESSIONS III, in his official capacity as United States Attorney General; CHARLES E. SAMUELS, JR., in his official capacity as Director of the United States Bureau of Prisons; J. RAY ORMOND, in his official capacity as Warden of the Honolulu Federal Detention Center; and FLORENCE T. NAKAKUNI, in her official capacity as United States Attorney for the District of Hawaii, the Respondents, Case No. _____ (U.S.), the Petitioners filed an application to extend the time to file a petition for writ of certiorari submitted to the Hon. Judge Anthony M. Kennedy. The Petitioners said, "This application for a 60-day extension of time if necessary in which to file a petition for writ of certiorari is being timely filed by mail on May 21, 2018, pursuant to Supreme Court Rule 22, Rule 30 and Rule 33.2. The Memorandum decision of the Ninth Circuit Court of Appeals, was filed in this case on March 2, 2018, affirming an Order of the United States District Court for the District of Hawaii, the original parties having been substituted for by Order of the Circuit Court. A Petition for Writ of Certiorari to this Court by Petitioners is therefore due on or before May 31, 2018, ten days from today. This application for an extension of time is therefore being timely filed." In Alan Mapuatuli v. Jefferson Sessions, federal inmates challenge a Department Bureau of Prison's email policy.[BN] Attorneys for Petitioners: Frederick J. Arensmeyer, Esq. DUBIN LAW OFFICES 55 Merchant Street, Suite 3100 Honolulu, HI 96813 Telephone: (808) 537-2300 Facsimile: (808) 523-7733 E-mail: gdubin@dubinlaw.net Attorney for Respondents: Michael F. Albanese, Esq. ASSISTANT U.S. ATTORNEY Room 6-100, PJKK Federal Bldg. 300 Ala Moana Boulevard Honolulu, HI 96850 Telephone: (808) 541 2850 Facsimile: (808) 541 3752 E-mail: michael.albanese@usdoj.gov UBER TECH: 1st Amended Irving Firemen's' Securities Suit Dismissed ------------------------------------------------------------------ In the case, IRVING FIREMEN'S RELIEF & RETIREMENT FUND, Plaintiff, v. UBER TECHNOLOGIES, et al., Defendants, Case No. 17-cv-05558-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California (i) granted the Defendants' motions to dismiss the First Amended Complaint with leave to amend; and (ii) granted the Defendants' motions to stay discovery pending the Dismissal Order. Plaintiff Irving Firemen's Relief & Retirement Fund filed the putative class action on Sept. 26, 2017, asserting one violation of Cal. Corp. Code Sections 25400(d) and 25500 against Uber and Travis Kalanick, Uber's former CEO. On Dec. 22, 2017, the Plaintiff filed the FAC. The FAC asserts the same statutory violation. The Plaintiff defines the putative class to include all persons or entities who, directly or indirectly, purchased or committed to purchase (and subsequently closed a binding commitment to purchase) an interest in Uber securities between June 6, 2014 and Nov. 27, 2017. The gravamen of the FAC is that Uber and Kalanick disseminated false and misleading statements and omissions for the purpose of inducing the purchase of billions of dollars of Uber securities. The FAC divides the Defendants' allegedly fraudulent statements into six categories: (1) growth; (2) legal compliance; (3) competitive spirit; (4) ethical culture; (5) self-driving car technologies; and (6) data security. The Plaintiff claims that the price of Uber securities declined as Uber's various corporate scandals came to light, and class members consequently lost billions of dollars. Currently pending before the Court are the Defendants' separately filed motions to dismiss the FAC. The Defendants contend that the Plaintiff fails to state a claim for relief under Rules 8(a) and 9(b). On Feb. 16, 2018, the Plaintiff filed an omnibus opposition to the Defendants' motions. Each Defendant replied on March 9, 2018. They also filed motions to stay and/or bifurcate discovery. On Feb. 2, 2018, the Plaintiff opposed the stay motions. On Feb. 9, 2018, the Defendants each replied. On April 19, 2018, the Court held a hearing on the motions. Judge Gilliam finds that (i) the Defendants' allegedly false or misleading growth statements fail to conform with the presentation requirements of Rules 8(a) and 9(b); (ii) the Defendants' omission of the information did not violate the securities laws; (iii) the Defendants never claimed that Uber would never again suffer a data breach, nor does the Plaintiff suggest as much; and in the absence of additional factual allegations showing that these statements were either false or misleading, the Defendants' representations that they were protecting users' privacy are not actionable; and (iv) none of the challenged statements are specifically linked to practices alleged to be unlawful (including for instance, institutionalized gender discrimination and misappropriation of other companies' technologies) in a way that plausibly suggests the representations are false or misleading. Notwithstanding the discussed deficiencies, the Judge cannot definitively say at this stage that the Plaintiff could not state its claims with sufficient specificity. He therefore provided the Plaintiff with an additional opportunity to amend its complaint. Finally, the Judge does not need further factual development to analyze the complaint's sufficiency. He accordingly also deferred deciding whether to bifurcate discovery until the litigation advances beyond the pleading stage. For the foregoing reasons, Judge Gilliam granted the Defendants' motions with leave to amend, and granted their motions to stay discovery pending the Order. Any amended complaint must include a statement-by-statement analysis of the allegedly actionable statements, and must be filed within 28 days of the date of the Order. A full-text copy of the Court's Aug. 31, 2018 Order is available at https://is.gd/c7Yzq0 from Leagle.com. Irving Firemen's Relief & Retirement Fund, Plaintiff, represented by Angel Puimei Lau , Robbins Geller Rudman Dowd LLP, Brian Edward Cochran -- bcochran@rgrdlaw.com -- Robbins Geller, et al., Jason A. Forge -- jforge@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Jeffrey James Stein -- jstein@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP, Luke O. Brooks -- lukeb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Darryl James Alvarado -- dalvarado@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Erika Limpin Oliver -- eoliver@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Darren Jay Robbins -- darrenr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Uber Technologies, Defendant, represented by Alvin Matthew Ashley -- mashley@irell.com -- Irell & Manella LLP, Andra Barmash Greene -- agreene@irell.com -- Irell & Manella LLP, David Siegel -- dsiegel@irell.com -- Irell & Manella LLP, Michael David Harbour -- mharbour@irell.com -- Irell and Manella & Nathaniel H. Lipanovich -- nlipanovich@irell.com -- Irell & Manella LLP. Travis Kalanick, Defendant, represented by James Neil Kramer, Orrick, Herrington & Sutcliffe LLP, Joseph G. Petrosinelli, Williams and Connolly LLP, Kenneth Jerome Brown, Williams and Connolly LLP & Walter F. Brown, Orrick Herrington & Suutcliffe LLP. New Riders LP & Morgan Stanley Investment Management Inc., Miscellaneouss, represented by James Glenn Kreissman, Simpson Thacher & Bartlett LLP & Stephen Patrick Blake, Simpson Thacher Bartlett LLP. UBER TECHNOLOGIES: Hunton Andrews Discuses Arbitration Ruling ------------------------------------------------------------- Hunton Andrews Kurth LLP disclosed that on September 5, 2018, the U.S. District Court for the Central District of California held that a class action arising from a 2016 Uber Technologies Inc. ("Uber") data breach must proceed to arbitration. The case was initially filed after a 2016 data breach that affected approximately 600,000 Uber drivers and 57 million Uber customers. Upon registration with Uber, the drivers and customers entered into a service agreement that contained an arbitration provision. Based on this provision, the defendants moved to compel arbitration. They argued that the provision's express language delegated the threshold issue of whether the case should be arbitrated (also called an issue of "substantive arbitrability") to an arbitrator, not to the court. The plaintiffs countered, arguing that the arbitration clause was both inapplicable to the 2016 data breach and unconscionable, and that Uber customers did not receive reasonable notice of the electronic terms agreement when they registered. The court rejected each of the plaintiffs' arguments. First, citing Mohammed v. Uber Techs., Inc., 848 F.3d 1201, 1209 (9th Cir. 2016), the court held that the agreement's language "clearly and unmistakably" delegated to the arbitrator the threshold and substantive issue of whether the 2016 breach was one that should be arbitrated. Second, whether the arbitration provision was unconscionable was similarly a question of substantive arbitrability "expressly delegated to the arbitrator." Third, the court noted that the plaintiffs offered no evidence of confusion or lack of notice, and that many other courts had found similar electronic notice to be reasonable. The case has been stayed pending completion of the arbitration. [GN] UBIQUITI NETWORKS: Competing Motions for Lead Plaintiff Pending --------------------------------------------------------------- Ubiquiti Networks, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that competing motions for lead plaintiff is still pending. On February 21, 2018, a purported class action, captioned Paul Vanderheiden v. Ubiquiti Networks, Inc. et al., No. 18-cv-01620 (the "Vanderheiden Action"), was filed in the United States District Court for the Southern District of New York against the Company and certain of its current and former officers. The Vanderheiden Action complaint alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false and/or misleading statements, including purported overstatements of the Company's online community user engagement metrics and accounts receivable. On February 28, 2018 and March 13, 2018, substantially similar purported class actions, captioned Xiya Qian v. Ubiquiti Networks, Inc. et al., No. 18-cv-01841 (the "Qian Action") and John Kho v. Ubiquiti Networks, Inc. et al., No. 18-cv-02242 (the "Kho Action", together with the Vanderheiden Action and the Qian Action, the "Class Actions"), respectively, were filed in the United States District Court for the Southern District of New York. Plaintiff Xiya Qian has moved to be appointed lead plaintiff, and Plaintiff John Kho has opposed Plaintiff Qian's motion and sought to have himself appointed lead plaintiff. The issue is pending before the court. Within ten days of the court's order appointing lead plaintiff and lead counsel, Plaintiffs are required either to inform defendants that a consolidated class action complaint will be served within 60 days or notify defendants that one of the original complaints will be the operative complaint, and defendants will have 60 days thereafter in which to respond. Ubiquiti Networks said, "While the Company believes that the Class Actions are without merit and plans to vigorously defend itself against these claims, there can be no assurance that the Company will prevail in the lawsuits. The Company cannot currently estimate the possible loss or range of losses, if any, that it may experience in connection with these litigations." No further updates were provided in the Company's SEC report. Ubiquiti Networks, Inc. develops networking technology for service providers, enterprises, and consumers. It focuses on three principal technologies, including high-capacity distributed Internet access, unified information technology, and consumer electronics for home and personal use. UNITED STATES: Williams Files Petition for Writ of Certiorari ------------------------------------------------------------- Valerie Louise Williams filed a petition for writ of certiorari to the U.S. Supreme Court from the decision of the United States Court of Appeals for the Fourth Circuit in the case captioned Valerie Louise Williams, the Petitioner, v. United States of America, the Respondent, Case No. 17-4686 (4th Cir.).[BN] Counsel for Petitioner: Seth A. Neyhart 6011 Farrington Road, Suite 300 Chapel Hill, NC 27517 Telephone: (202) 870 0026 Facsimile: (919) 490 5551 E-mail: setusn@hotmail.com US SECURITY ASSOCIATES: Underpays Security Workers, Langston Says ----------------------------------------------------------------- PAUL LANGSTON, individually and on behalf of all others similarly situated, Plaintiff v. U.S. SECURITY ASSOCIATES, INC., Defendant, Case No. 5:18-cv-00868-SLP (W.D. Okla., Sept. 6, 2018) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. Mr. Langston was employed by the Defendant as security workers. U.S. Security Associates, Inc. is a corporation organized under the laws of the State of Delaware. The Company provides security services to clients. [BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Telephone: (330) 470-4428 Facsimile: (330) 754-1430 E-mail: hans@ohlaborlaw.com sdraher@ohlaborlaw.com UTAH: Summary Judgment in Suit Over Hospital Lien Statute Affirmed ------------------------------------------------------------------ The Supreme Court of Utah issued an Opinion affirming the District Court's judgment granting the Hospital's Motion for Summary Judgment in the case captioned ZACHARY BRYNER, NENITA R. EZAR, MICHELLE GALLAGHER, and CHRISTOPHER FURR, Appellants, v. CARDON OUTREACH, LLC, IHC HEALTH SERVICES, INC., ST. MARK'S HOSPITAL, UNIVERSITY OF UTAH HEALTH CARE, and STATE OF UTAH, Appellees. No. 20160818. (Utah). The question before the state Supreme Court is not a particularly thorny one: what is the correct interpretation of Utah's Hospital Lien Statute? This proposed class action involves persons injured in car accidents who filed personal injury claims against the third parties at fault. All had hospital liens placed on any potential recovery from those claims, and all reached settlement agreements, paying their attorney fees by way of a contingent fee on the recovery. The patients contend that the hospitals failed to pay their fair share of the attorney fees including court costs and other necessary expenses the patients incurred in generating the settlement proceeds. The plaintiffs argued that the Hospital Lien Statute requires a hospital to pay its proportional share of an injured person's attorney fees and costs when a hospital lien is paid due to the efforts of the injured person or his or her attorney. The defendants countered that the statute contains no such language, and that the statute operates instead to establish a priority system as to entitlement to settlement funds to allow hospitals to get paid. The district court concluded that the hospitals' interpretation was correct, as it was the only reasonable interpretation that made sense given the context of the statute read as a whole. STANDARD OF REVIEW The Court affirms a grant of summary judgment when the record shows there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The parties disagree about the effect of the Hospital Lien Statute in allocating the attorney fees and costs of the personal injury litigation. In particular, the parties disagree about the meaning of subsections 1(a) and 1(b) of the statute. These subsections state. "(1) (a) Except as provided in Subsection (3), a hospital located within the state that furnishes emergency, medical, or other service to a patient injured by reason of an accident is entitled to assert a lien upon that portion of the judgment, settlement, or compromise going or belonging to the patient, or, in the case of death, to the patient's heirs or personal representatives, less the amount paid by the patient, or on behalf of the patient by heirs or personal representatives, for attorney fees, court costs, and other necessary expenses incidental to obtaining the judgment, settlement, or compromise. "(b) No reduction of the asserted lien amount is allowed other than the amount paid by the patient, or the patient's heirs, or personal representatives for attorney fees, court costs, and other necessary expenses incidental to litigation, unless otherwise agreed to in writing by the lien claimant." The Whole-Text Canon and the Grammatical Structure of Subsection (1) The whole-text canon calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Read as a whole, Utah Code section 38-7-1(1) creates a priority for the distribution of the judgment, settlement, or compromise going or belonging to the patient. The judgment is first used to pay attorney fees, court costs, and other necessary expenses accrued in obtaining the judgment. Subsection 1(a) allows a hospital to assert a lien on the remaining amount of the judgment to obtain payment for medical expenses incurred in treating the patient as a result of the action being litigated provided that the amount is greater than $100. Subsection 1(b) establishes that the hospital has priority over any other creditor or the patient to the entirety of the net judgment (total judgment less attorney fees) up to its asserted lien unless expressly agreed to by the hospital. In other words, the total amount of the judgment going or belonging to the patient is first used to pay or reimburse attorney fees, with the net judgment becoming available to cover the entirety of the hospital lien. Any remaining funds go to other lien holders, if they exist, and then the patient receives the final amount. The Substantive Terms Canon Nothing in the language of the Hospital Lien Statute allows for assessing the hospitals with a proportional share of the attorney fees. The patients' reading of the statute to incorporate proportional sharing does not comport with the language in the statute; in fact, substantive terms must be added to read it as assessing hospitals for a portion of the attorney fees. This goes four square against our case law. The Court will not infer substantive terms into the text that are not already there. Rather the interpretation must be based on the language used, and the Court have no power to rewrite the statute to conform to an intention not expressed. In short, where the legislature has not indicated an intention to enact an unprecedented legal requirement, we will not alter the statutory terms to surmise one. The Court rejects the patients' notion of proportional fee sharing. Common Fund Doctrine The patients' argument that the doctrine would avoid unjust enrichment because the hospitals otherwise would bear none of the litigation costs is inapposite. The relationship between a hospital and a patient is generally a contractual oneeither expressed through signing the forms upon admission and consenting to treatment or implied through receiving emergency treatment even without signing the forms. The existence of a claim, or right to payment, is at the heart of the debtor-creditor relationship. When hospitals have provided medical services to patients in accordance with the law, they are entitled to payment from the patients. This establishes a debtor-creditor relationship between the patients and the hospitals. The Hospital Lien Statute is just one mechanism that hospitals may use to recover the debt owed for treatment-an amount that would be owed regardless of whether a lawsuit against a tortfeasor ensued. To expect a creditor to help pay attorney fees for a lawsuit when they are entitled to collect on the debt owed them-regardless of whether a suit is filed or the outcome-is unrealistic and illogical. The Court affirms the district court in its grant of summary judgment to the hospitals. A full-text copy of the state Supreme Court's September 24, 2018 Opinion is available at https://tinyurl.com/y9ysaos7 from Leagle.com. Robert B. Sykes, Alyson Carter McAllister, Daniel Oswald, for appellants Gregory John Wilder, Provo, for appellant Nenita R. Ezar Sean D. Reyes, Att'y Gen., Peggy Stone, Asst. Sol. Gen., Salt Lake City, for appellees University of Utah Health Care and State of Utah. Derek J. Williams , P. Matthew Cox , Nathaniel J. Mitchell , Salt Lake City, for appellee Cardon Outreach, LLC Alan C. Bradshaw , Steven C. Bednar , Salt Lake City, for appellee IHC Health Services, Inc. Andrew G. Deiss , Billie Jean Siddoway , Salt Lake City, Sean Gallagher, Denver, CO, for appellee St. Mark's Hospital. VAN RU CREDIT: Court Certifies Class in Deborah Al Suit ------------------------------------------------------- In the class action lawsuit styled DEBORAH AL, the Plaintiff, v. VAN RU CREDIT CORPORATION, the Defendant, Case No. 2:17-cv-01738-JPS (E.D. Wisc.), the Hon. Judge J. P. Stadtmueller entered an order on Sep. 25, 2018. 1. denying as moot Plaintiff's first motion for class certification, to stay, and for relief from briefing requirement; 2. denying as moot Plaintiff's second motion for class certification; 3. granting Plaintiff’s third motion for class certification; 4. certifying a class of: "(a) all natural persons in the State of Wisconsin (b) who were sent a collection letter in the form represented by Exhibit A to the complaint in this action, (c) seeking to collect a debt allegedly owed for personal, family or household purposes, (d) between December 13, 2016 and December 13, 2017, (e) that was not returned by the postal service"; 5. appointing Plaintiff as class representative and appointing her counsel as class counsel; 6. granting Plaintiff's motions to seal related to the class certification briefing; 7. granting Plaintiff's motion seeking the Court's ruling on class certification prior to a ruling on summary judgment; and 8. staying parties' motions for summary judgment and related motions to seal.[CC] VANGUARD GROUP: Partial Denial of Taksir Dismissal Bid Affirmed --------------------------------------------------------------- In the case, ALEX TAKSIR; ORIT TAKSIR, on behalf of all others similarly situated, v. THE VANGUARD GROUP, Appellant, Case No. 17-3585 (3d Cir.), Judge Michael Chagares of the U.S. Court of Appeals for the Third Circuit affirmed the District Court's partial denial of Vanguard's motion to dismiss the claims against it and the denial of its motion for reconsideration. Vanguard is an investment services company that offers retail securities brokerage accounts to consumers. At all relevant times, its website stated that Vanguard offered a price of $2 commissions for stock trades for customers who maintained a balance in Vanguard accounts between $500,000 and $1 million. In May 2016, the Taksirs, whose holdings met the required balance threshold, availed themselves of Vanguard's services to make two purchases of Nokia Corp. stock. Vanguard charged the Taksirs a $7 commission for each of their respective purchases. Alex Taksir then contacted Vanguard in order to receive an explanation and refund. Vanguard responded by email, noting in relevant part that the Taksirs' accounts are not eligible for discounts for trading stocks and other brokerage securities because of IRS nondiscrimination rules and that unfortunately, the information is not listed on the Vanguard Brokerage Commission and Fee Schedule. Following additional correspondence from Alex Taksir, Vanguard reiterated its position that the accounts were not eligible for the $2 per-trade commission. Nevertheless, six weeks later, Orit Taksir acquired additional Nokia Corp. stock in the same Vanguard account and was charged only a $2 commission. The Taksirs came to believe that Vanguard was overcharging sales commissions to clients meeting certain balance thresholds. They filed the instant lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, bringing a putative class action for: (1) "fraud or deception" under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"); and (2) breach of contract under Pennsylvania state law. Thereafter, Vanguard moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on two grounds: (1) that the SLUSA bars both claims; and (2) that the UTPCPL claim fails for an additional reason, which is not relevant to the appeal. The District Court concluded that SLUSA did not bar the claims, but dismissed the UTPCPL claim on other grounds. The District Court denied Vanguard's motion to dismiss with respect to the breach of contract claim. Vanguard moved for reconsideration and alternatively sought leave to file an interlocutory appeal. The District Court denied the motion for reconsideration but certified its opinion and order for the Appellate Court's immediate review. The Court granted the petition for leave to appeal. Vanguard argues that the District Court erred by concluding that SLUSA does not bar the Taksirs' claim for breach of contract. Judge Chagares concludes that he relies on the Supreme Court's decisions in both Chadbourne & Parke LLP v. Troice and Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, and he holds that the two overcharges of commissions do not have a connection that matters to the securities transactions at issue. The Judge notes that the facts of the case are in plain contrast to: (1) the breach of duties in executing trades of covered securities that triggered the SLUSA bar in Goldberg v. Bank of Am., Lewis v. Scottrade, Inc., and Fleming v. Charles Schwab Corp.; and (2) the fraudulent manipulation of stock prices in Dabit. The overcharges are different in nature from these examples of fraud, and they were not objectively material to the decision to purchase securities from Vanguard. Because the SLUSA bar does not apply, the Taksirs' breach of contract claim may proceed. For these reasons, Judge Chagares affirmed the Orders of the District Court. A full-text copy of the Court's Sept. 4, 2018 Opinion is available at https://is.gd/P4g2cj from Leagle.com. Stuart T. Steinberg, Esq. [ARGUED] -- stuart.steinberg@dechert.com -- Selby P. Brown, Esq. -- selby.brown@dechert.com -- Ellen L. Mossman -- ellen.mossman@dechert.com -- Dechert LLP, Cira Centre, 2929 Arch Street, Philadelphia, PA 19104, Counsel for Appellant. Christopher L. Nelson, Esq. [ARGUED] -- cln@weiserlawfirm.com -- James M. Ficaro, Esq. -- mf@weiserlawfirm.com -- The Weiser Law Firm, P.C., 22 Cassatt Avenue, First Floor, Berwyn, PA 19312. Samuel L. Rosenberg -- samuelinjurylawyer@gmail.com -- 15 Astor Place, Monsey, New York 10952, Counsel for Appellees. VEROS CREDIT: Has Made Unsolicited Calls, Engebretson Alleges ------------------------------------------------------------- MICHELLE ENGEBRETSON, individually and on behalf of all others similarly situated, Plaintiff v. VEROS CREDIT, LLC; and DOES 1 through 10, inclusive, Defendants, Case No. 5:18-cv-02082-SHK (C.D. Cal., Sept. 28, 2018) is an action against the Defendant in negligently, knowingly, and willfully contacting the Plaintiff on the Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act. Veros Credit, LLC was founded in 2010. The company's line of business includes extending credit to business enterprises for relatively short periods. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Tom E. Wheeler , Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com VIRGINIA: Class Action Over License Suspensions Back to Court ------------------------------------------------------------- Justin Wm. Moyer, writing for The Washington Post, reports that a long-simmering federal class-action lawsuit that claims Virginia unjustly suspends the driver's licenses of those unable to pay fines returned to court when advocates for the poor sought to immediately stop the practice. In 2016, the Legal Aid Justice Center, which represents low-income Virginians, filed suit in U.S. District Court in Western Virginia, saying that more than 940,000 people in the state had their licenses suspended for nonpayment of fees and fines. The practice of suspending licenses for traffic debt was widely criticized after the Justice Department found law enforcement acting as collection agents in Ferguson, Mo., in 2015. After appealing the case's dismissal, the Legal Aid Justice Center filed an amended claim on Sept. 11 that said "the state traps thousands of Virginians in a nightmarish spiral from which there is no apparent exit" by automatically suspending the licenses of those who can't pay fines. The suspensions disproportionately affect people of color, as the state imposes more than $500 million in fines per year without considering the ability to pay, the suit alleges. "The indefinite suspension of the driver's licenses of low-income Virginians erects significant barriers to their ability to pursue a livelihood and meet basic human needs," the suit said. The Virginia Department of Motor Vehicles declined to comment on the suit. The lawsuit, Stinnie v. Holcomb, details the story of Damian Stinnie, a 26-year-old Charlottesville man who first lost his license in 2012 after he did not pay fines for three traffic infractions. He continued to drive while battling lymphoma, the suit said, receiving additional citations for driving with a suspended license and even serving jail time. The suit seeks an immediate halt to license suspensions for court debt and a declaration that the practice is a civil rights violation. In a statement, Angela Ciolfi, the Legal Aid Society's director of litigation and advocacy, said driver's license suspension "sets up two justice systems in Virginia." "Those who can immediately pay court fines or fees are able to quickly untether themselves from their infractions, while those who do not have the resources to pay continue to be punished well beyond their original infraction -- they are punished for their poverty, and set up for even harsher consequences as their debts compound, their jobs are lost, and their families struggle to make ends meet," the statement said. A Washington Post analysis in May found that more than 7 million people nationwide may have lost their licenses because of unpaid court debts. [GN] VOLKSWAGEN GROUP: Judge Hears Investors' Emissions Class Action --------------------------------------------------------------- Matt Posky, writing for the truth about cars, reports that a judge hearing a case brought by investors against Volkswagen has deemed its former corporate head, Martin Winterkorn, was too slow in addressing the emissions test cheating that steered the automotive giant into colossal U.S. fines. It's an early blow against the German company in a suit seeking $10.6 billion in damages for stock losses suffered when the scandal finally became public. "Anyone acting in good faith would have followed up on this information," Judge Christian Jaede of the ex-CEO during the second day of hearings held at the Braunschweig higher regional court. "This appears not to have happened." According to Reuters, Judge Jaede accused Mr. Winterkorn of "dragging his feet" after a top-level management meeting discussed how to best deal with U.S. regulators who were threatening to ban VW because of excessive pollution levels. That gathering occurred roughly two months before the U.S. Environmental Protection Agency issued a notice of violation in September of 2015 and the scandal became public. The judge continued by saying it was unclear why Volkswagen neglected to put out a statement after finding that engine software on numerous diesel models had been manipulated to circumvent emission testing, adding that it was reasonable to assume Mr. Winterkorn knew about the emissions cheating far earlier than claimed. Thomas Liebscher, a lawyer for VW, said it would be unfair to assume the chief executive knew how the company's engine management software worked. Volkswagen's official defense is that no high-ranking official had any knowledge of the defeat devices prior to the company's first official announcement. However, years of investigative efforts have placed those claims on some rather shaky ground. Mr. Winterkorn resigned shortly after the scandal broke. Last year, he told German lawmakers he learned of VW's illegal activities at roughly the same time the organization publicly admitted to them. He currently faces conspiracy charges in the United States but is in no danger of being extradited from Germany to stand trial there. Meanwhile, a consumer rights group said it will file a class-action lawsuit against Volkswagen on Sept. 12 over the manipulation of emissions software. It's seeking compensation for up to 2 million owners of the affected diesel models. [GN] VOX MEDIA: Court Denies Bid to Dismiss Bradley FLSA Suit -------------------------------------------------------- In the case, CHERYL C. BRADLEY, et al., Plaintiffs, v. VOX MEDIA, INC. d/b/a SB NATION, Defendant, Civil Action No. 17-1791 (RMC) (D. D.C.), Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia denied Vox's Motion to Dismiss, and Motion to Take Judicial Notice. Vox is a media corporation that maintains and operates approximately 319 sports websites through its business division, SB Nation. Each website is maintained by a Site Manager, who is in turn supervised by a League Manager. Vox manages its Site Managers through Blogger Agreements and direct supervision by League Managers. Each Blogger Agreement outlines when and how often Site Managers must create new content, specifies that Vox maintains the authority to edit or remove such content, and includes a non-compete clause. When a position becomes available, Vox posts a short description to its website that includes a list of requirements and responsibilities, as well as details on how to apply. It advertises for all its paid positions in the same manner. Bradley was a Site Manager for Vox's website, Mile High Hockey, from June 2013 until February 2015. Her relationship with Vox was governed by a Blogger Agreement that she signed on June 1, 2013. Ms. Bradley was interviewed, and later managed, by League Manager Travis Hughes. She was required to watch games featuring the Colorado Avalanche, a professional ice hockey team, and then to publish five to six articles per week, manage other writers, edit and approve articles by those writers, monitor search engine optimization, manage Mile High Hockey's comments section and social media accounts, and live-Tweet games and practices. Ms. Bradley was paid $125 per month. She regularly worked 30 to 40 hours per week, and up to 50 hours per week during peak times or when she was understaffed. In late 2013, Ms. Bradley complained to her League Manager that her wages were inadequate and was told that wages were dependent on team site traffic. Even though she increased Mile High Hockey's site traffic, her pay never increased. Ms. Bradley was fired in February 2015. Plaintiff John Wakefield was a Site Manager for Vox's website, Through it All Together, from December 2015 until May 2017. Mr. Wakefield applied for the position on Dec. 10, 2015 and was hired by Soccer League Manager Jeremiah Oshan. His relationship with Vox was governed by a Blogger Agreement that he signed on Jan. 1, 2016. He was required to watch or listen to games featuring the Leeds United Football Club, an English professional soccer team, and publish one to three articles per week, manage other writers, edit and approve articles, monitor search engine optimization, and manage Through It All Together's comments section and Twitter account. Mr. Wakefield was initially paid $50 per month; his pay was later increased to $75 per month. He regularly worked 30 to 40 hours per week, and up to 60 hours per week during peak times. Plaintiff Maija Varda is currently the Site Manager for Vox's website, Twinkie Town. She applied for the position of Site Manager in April 2016 after seeing a job posting and was interviewed and hired by Major League Baseball League Manager Justin Bopp. Her relationship with Vox is governed by a Blogger agreement that she signed on May 1, 2016. She is required to write daily interest articles about the Minnesota Twins, a professional baseball team, report breaking news, recruit and manage staff writers, and manage Twinkie Town's social media accounts. She is paid $400 per month. She regularly works 30 to 40 hours per week, and up to 50 hours per week during peak times or when she is understaffed. On Sept. 1, 2017, Ms. Bradley filed a Collective Action Complaint against Vox, alleging a violation of the minimum wage and overtime requirements of the FLSA. An Amended Complaint adding Mr. Wakefield and Ms. Varda as the named Plaintiffs was filed Oct. 23, 2017. Vox moved for partial dismissal of any claims outside the standard two-year statute of limitations on Nov. 6, 2017 and at the same time moved for the Court to take judicial notice of four exhibits attached to the partial motion to dismiss. How much employer control is required for an independent contractor to be considered an employee under the Fair Labor Standards Act of 1938 ("FLSA") is the question raised by a purported class of employees who provide blogging and supervision services to Vox on its various sports blogs. Vox moves for partial dismissal to limit the Plaintiffs' claims to the two-year, rather than three-year, statute of limitations provided by the FLSA. It argues that the Plaintiffs have failed to allege adequately its violation was willful, as required to fall under the three-year statute of limitations. Judge Collyer finds that in considering the motion to dismiss, she is concerned with whether these Plaintiffs have successfully stated a claim to relief that is plausible on its face. It is premature to consider whether Plaintiffs subjectively believed they were employees of Vox. She also realizes that LinkedIn profiles generally consist of self-reported employment information. However, at this point in the litigation, she cannot find that the accuracy of the information contained in these screen shots can be verifiable with certainty. The Judge declines to take judicial notice of Exhibits 2-5. The Judge also finds that the allegations of willfulness in the case are not as concrete or specific as those in Galloway v. Chugach Gov't Servs., Inc. or Wilson v. Hunam Inn, Inc.; however, they are sufficient to raise a plausible right to relief under the three-year statute of limitations. In evaluating a motion to dismiss, the Judge must accept all well-pleaded facts in the Amended Complaint as true. After discovery, Vox may move for summary judgment on the issue of willfulness if the record supports it. For now, the Plaintiffs may attempt to discover evidence to support their allegations. For the foregoing reasons, Judge Collyer denied Vox Media's Motion to Dismiss, and Motion to Take Judicial Notice. A memorializing Order accompanies the Memorandum Opinion. A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinion is available at https://is.gd/NVqDg8 from Leagle.com. CHERYL C. BRADLEY, Individually and on behalf of all persons similarly situated, Plaintiff, represented by James E. Goodley -- jgoodley@jslex.com -- JENNINGS SIGMOND, P.C., Judith A. Sznyter -- jsznyter@jslex.com -- JENNINGS SIGMOND, P.C., Marc L. Gelman -- mgelman@jslex.com -- JENNINGS SIGMOND, P.C., pro hac vice & Stephen J. Holroyd -- sholroyd@jslex.com -- JENNINGS SIGMOND, P.C., pro hac vice. JOHN M. WAKEFIELD & MAIJA LIISA VARDA, Plaintiffs, represented by James E. Goodley, JENNINGS SIGMOND, P.C. VOX MEDIA, INC.., doing business as SB NATION, Defendant, represented by Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP & Jason Craig Schwartz -- jschwartz@gibsondunn.com -- GIBSON, DUNN & CRUTCHER, LLP. VOYA RETIREMENT: Dezelan Appeals Case Dismissal to 2nd Circuit -------------------------------------------------------------- Darlene Dezelan, individually, on behalf of the Cedars Sinai Medical Center 403(b) Retirement Plan, and on behalf of all similarly situated Plans, the Plaintiff – Appellant, v. Voya Retirement Insurance and Annuity Company, the Defendant – Appellee, Case No. 18-2732 (2nd Cir., Sep. 13, 2018), is an appeal filed in the United States Court of Appeals for the Second Circuit from a lower Court decision in Case No. 16-cv-1251 (D. Conn., July 26, 2016). In an August 17, 2018 decision, the District Court granted Voya's motion to dismiss the Plaintiff's amended complaint, with prejudice. Plaintiff sued Voya concerning retirement funds managed by Voya on her behalf. She brought three claims under the Employee Retirement Income Security Act, on behalf of the Cedar-Sinai Medical Center 403(b) Retirement Plan, in which she was a participant, as well as all other ERISA-covered employee pension benefits plans whose assets were invested in similar funds managed by Voya. The District Court previously dismissed Ms. Dezelan's Complaint without prejudice. Following the dismissal, she filed an Amended Complaint, which Voya moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.[BN] Attorneys for Plaintiff – Appellant: Robert A. Izard, Jr., Esq. IZARD, KINDALL & RAABE, LLP 29 South Main Street West Hartford, CT 06107 Telephone: (860) 493 6295 Attorneys for Defendant – Appellee: Melissa D. Hill, Esq. MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178 WALGREENS CO: Faces Consumer Fraud Class Action in Illinois ----------------------------------------------------------- Angelica Saylo Pilo, writing for Madison-St. Clair Record, reports that Walgreen Company faces a class action lawsuit from a customer who alleges the pharmacy chain misrepresented the amount of peanuts in its bags of mixed nuts. Jessica Munton filed a complaint on Aug. 28 in St. Clair County Circuit Court against Walgreen Company, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. According to the complaint, Walgreen Company sells bags of mixed nuts that prominently state only 50 percent of the nuts included are peanuts. However, Ms. Munton claims the bags contain far more peanuts -- about 64 percent by her own count. Ms. Munton bought the nuts at a Belleville store in January, the suit claims. "On the label of the Nuts, Defendant prominently represents that the Nuts contain 50% peanuts," the suit says. "The Nuts, however, contain far more than 50% peanuts." Ms. Munton says peanuts are the most inexpensive nut in the bags, and had she known the bag contained more than 50 percent peanuts, she would not have purchased the mixed nuts. She claims customers have been overcharged for the $2.99 bags. "Although not technically a nut, peanuts are far and away the cheapest nut in the Defendant's Nuts," the complaint states. Ms. Munton compares the per pound wholesale cost of raw peanuts ($2.46) to other, real, nuts, such as almonds ($5.84), brazil ($8.75), cashews ($9.70), hazelnuts ($11.70) and pecans ($13.20). "By putting more than 50% peanuts in the Nuts, therefore, Defendant is able to save substantial amounts of money on the backs of customers," she claims. Ms. Munton seeks class action status for the lawsuit. She requests a jury trial and damages. She is represented by David C. Nelson of Nelson & Nelson, Attorneys at Law PC in Belleville and Matthew H. Armstrong of Armstrong Law Firm LLC in St. Louis. The lawyers have filed numerous other false advertising class actions that are pending in St. Clair County Circuit Court. St. Clair County Circuit Court case number 18-L-570 [GN] WESTERN DIGITAL: Consolidated Securities Action Underway in Calif. ------------------------------------------------------------------ Western Digital Corporation said in its Form 10-K report filed with the U.S. Securities and Exchange Commission for the fiscal year ended June 29, 2018, that the company still faces a consolidated class action suit in California. Beginning in March 2015, SanDisk and two of its officers, Sanjay Mehrotra and Judy Bruner, were named in three putative class action lawsuits filed with the U.S. District Court for the Northern District of California. Two complaints are brought on behalf of a purported class of purchasers of SanDisk's securities between October 2014 and March 2015, and one is brought on behalf of a purported class of purchasers of SanDisk's securities between April 2014 and April 2015. The complaints generally allege violations of federal securities laws arising out of alleged misstatements or omissions by the defendants during the alleged class periods. The complaints seek, among other things, damages and fees and costs. In July 2015, the District Court consolidated the cases and appointed Union Asset Management Holding AG and KBC Asset Management NV as lead plaintiffs. The lead plaintiffs filed an amended complaint in August 2015. In January 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In February 2016, the District Court issued an order appointing as new lead plaintiffs Bristol Pension Fund; City of Milford, Connecticut Pension & Retirement Board; Pavers and Road Builders Pension, Annuity and Welfare Funds; the Newport News Employees' Retirement Fund; and Massachusetts Laborers' Pension Fund (collectively, the "Institutional Investor Group"). In March 2016, the Institutional Investor Group filed an amended complaint. In June 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In July 2016, the Institutional Investor Group filed a further amended complaint. In June 2017, the District Court denied the defendants' motion to dismiss. Western Digital said, "The Company intends to defend itself vigorously in this matter." No further updates were provided in the Company's SEC report. Western Digital Corporation ("Western Digital") is a leading developer, manufacturer, and provider of data storage devices and solutions that address the evolving needs of the information technology ("IT") industry and the infrastructure that enables the proliferation of data in virtually every other industry. Western Digital Corporation was founded in 1970 and is headquartered in San Jose, California. WESTERN UNION: Court Approves Douglas TCPA Suit Settlement ---------------------------------------------------------- In the case, JASON DOUGLAS, individually and on behalf of all others similarly situated, Plaintiff, v. THE WESTERN UNION COMPANY, Defendant, Case No. 14 C 1741 (N.D. Ill.), Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) granted Douglas' motion to approve the class settlement and certify the settlement class; and (ii) granted in part and denied in part his motion for attorney fees, costs, and an incentive award. Douglas filed the suit as a putative class action against Western Union for alleged violations of the Telephone Consumer Protection Act ("TCPA") by sending unsolicited text messages to him and the putative class. Western Union answered two months later. One month after that, and before litigation efforts commenced in earnest, the parties reported that they would engage in a private mediation; a year later, they reported that they had reached a classwide settlement in principle. Confirmatory discovery followed, as did hearings at which the parties reported that they would soon file a preliminary approval motion. Douglas moved for preliminary approval of the class settlement and conditional certification of the settlement class, which the Court granted. The proposed class is defined as all Persons in the United States who received one or more unsolicited text messages sent by or on behalf of Western Union between March 12, 2010 and Nov. 10, 2015. The Settlement Agreement provides for a non-reversionary payment by Western Union of $8.5 million, to be distributed as follows: (1) $5,209,007.64 to the settlement class; (2) $5,000 to Douglas as an incentive award; (3) $2,804,850.27 in attorney fees; and (4) $481,142.09 in notice and administration costs (with a cap of $553,197, with the difference coming from the amount devoted to the settlement class). Because 54,315 individuals (approximately 7.3% of the class) submitted timely claims; each would receive $95.90 if the referenced figures held. Now before the Court are Douglas' (i) motion to certify the settlement class and for approval of the class settlement, and (ii) motion for attorney fees, costs, and incentive award. Judge Feinerman explains that certain matters transpired during the approval process that gave the court great pause, not about the appropriateness of the class certification or the size of the class settlement, but rather about the conduct and representations of the lead class counsel, Joseph Siprut of Siprut PC. Considering the importance of these matters, the Judge wished to give the most careful consideration to the record and to Siprut's explanations for his conduct; in addition, the Judge awaited the opinion in In re Southwest Airlines Voucher Litigation, which from the appeal's outset conceivably could, and ultimately did, address certain questionable conduct by Siprut as the lead class counsel in that case, including what the Seventh Circuit described as his rapacious requests for fees. Judge Feinerman holds that given the good result Siprut obtained for the class and the fact that he is responsible for covering additional administrative expenses, he will award Siprut $425,000 in attorney fees and costs, which is 5% of the settlement fund. This reduction reflects in part that Siprut failed to keep contemporaneous time records and, compounding the problem, failed to provide any support (other than his own say-so) for his reconstructed time calculations. The difference between Siprut's requested fees and costs, and the fees and costs awarded, will revert to the class. Judge Feinerman granted the motions for approval of the settlement, class certification, and incentive awards, while the motion for attorney fees is granted in part and denied in part. The Judge modified the settlement such that the distribution of the $8.5 million common fund is as follows: (1) the class member claims in the amount of $7,516,803; (2) the settlement administration expenses of $553,197 (the cap is likely to be reached given the supplemental notice), with the class counsel covering any costs incurred above that amount; (3) an incentive award to Douglas of $5,000; and (4) the attorney fees and costs to the class counsel of $425,000. The settlement administrator will re-send notice as described. After the new claims period expires, the administrator will file a status report indicating the number of notices that bounced back, the number of additional valid claims, and the re-calculated recovery per claimant. Then, 90 days after the settlement checks are distributed, the parties will file a status report indicating the amount of unredeemed funds and proposing whether those funds should be distributed through a second pro rata distribution or a cy pres award. In deciding whether to seek fees or take other action, the counsel for the objector who is not a class member should seriously consider whether it is proper for a non-class member's attorney to further burden the parties and the judiciary with additional filings. A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion and Order is available at https://is.gd/QOJjte from Leagle.com. Jason Douglas, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph J. Siprut, Siprut PC & Todd Lawrence McLawhorn -- tmclawhorn@siprut.com -- Siprut PC. Bethany Carol Price, Plaintiff, represented by Lloyd C. Chatfield, II -- LCC@lloydchatfieldlaw.com -- Law Offices Of Lloyd C. Chatfield II & Wallace Allen McDonald, Lacy, Price & Wagner. The Western Union Company, a Delaware corporation, Defendant, represented by Mark Steven Mester -- mark.mester@lw.com -- Latham & Watkins LLP, Andrew D. Prins -- andrew.prins@lw.com -- Latham & Watkins LLP, pro hac vice & Kathleen Patricia Lally -- kathleen.lally@lw.com -- Latham & Watkins LLP. WESTPAC: May Face Class Action Over Irresponsible Home Loans ------------------------------------------------------------ Stephen Long, writing for ABC News, reports that Westpac could be sued by its customers, funders and investors after admitting it breached responsible lending laws and a separate finding that it lacked appropriate lending controls. The bank recently reached a $35 million settlement with the corporate watchdog ASIC after admitting an "automated decision-making system" for home loans breached responsible lending laws, issuing more than 10,000 mortgages that should not have been approved. "These admissions expose Westpac to civil action by individuals who were provided with too much credit -- and inappropriately so -- during their application for a loan," Josh Mennen, a principal at the plaintiff law firm Maurice Blackburn, told the ABC. "In circumstances where people find themselves in default on their mortgages they will be able to bring an action against Westpac, potentially, for breaches of responsible lending laws. "It is early days in relation to any class action, but I don't think anyone who has been following this could seriously rule out the possibility of a class action being brought." International investors in the wholesale money markets who funded Westpac mortgages or invested in residential mortgage-backed securities underpinned by its loans could also have a case to sue in the future if default rates rise. "There is an argument that the international wholesale lending community who gave these banks a lot more money than they probably would have had they known that the banks did not have these controls in place would have grounds for legal action," Lindsay David of LF Economics said. Last year, in response to allegations of mortgage fraud and manipulation by major Australian banks, the Australian Prudential Regulation Authority (APRA) commissioned a series of confidential "targeted reviews" of major banks. The reviews probed the data and systems Westpac uses to assess applicants' ability to service housing loans. The findings on Westpac were damning. Eight out of 10 of its core lending controls were found to be "ineffective in their operation". Most were also poorly designed. The consequence was Westpac lacked effective measures to accurately assess the existing debts and expenses of home loan customers or properly assess their ability to service loans. "There were limited controls in place to ensure that borrower declared living expenses were complete and accurate," audit firm PWC, which conducted the review for APRA, concluded. With interest rates at historic lows, arrears and default rates on Westpac's mortgage book are low despite the adverse findings; Westpac maintains the loans which were the subject of its $35 million settlement with ASIC are performing well. The question is whether this will continue when interest rates rise, and borrowers face the potential "double whammy" of rising rates and falling property values. APRA findings 'never meant to see the light of day' The findings of the targeted review and the admissions of irresponsible lending expose Westpac to "very large litigation actions against them down the line should investors find themselves running at a loss or running at some sort of deficit due the fact that they invested into some sort of financial product that -- let's call it what it is -- [involved] fraud," Mr David said. APRA kept the targeted reviews secret -- the findings only became public when the documents surfaced earlier this year at the banking royal commission. "These findings were never meant to see the light of day," Mr David said. The banking regulator did not provide the results of the targeted reviews to the Treasurer, the Minister for Financial Services or the Finance Minister, the prudential regulator told Mr David in response to a request for documents under Freedom of Information laws. The ABC contacted APRA and asked why it had not formally communicated the results of the targeted reviews to relevant ministers, and why it had allegedly failed to inform the banking royal commission of the existence of the targeted reviews until after the commission was "tipped off" to their existence. APRA, in response, did not answer the questions, but it told the ABC: "APRA can and does instigate targeted reviews across all industries it regulates as part of the normal supervision process. "APRA does not comment on its supervision of specific entities. However, as has been noted in public statements regarding the outcomes of the program of targeted reviews on mortgage lending, a range of issues was identified across all institutions reviewed. Institutions were required to provide APRA with rectification plans to deal with the issues identified." Westpac declined a request for an interview. A spokesman said it was not able to comment because its settlement with ASIC was yet to be ratified by the Federal Court. [GN] WH ADMINISTRATORS: Court Denies Bid to Dismiss ERISA Suit --------------------------------------------------------- Judge S. Thomas Anderson of the U.S. District Court for the Western District of Tennessee, Eastern Division, denied the Defendant's Motion to Dismiss the case, KERRY YOUNG, on behalf of himself and all similarly situated persons, Plaintiff, v. WH ADMINISTRATORS, INC., Defendant, Case No. 1:17-cv-02829-STA-egb (W.D. Tenn.). Tennessee Tractor is a west Tennessee-based John Deere dealer engaged in the sale and service of John Deere tractors, mowers, and their respective parts. It also established the Tennessee Tractor LLC Health and Welfare Benefit Plan for the benefit of its employees and their eligible dependents. Young is and, at all times relevant to the lawsuit, was a full-time employee of Tennessee Tractor. The Defendant is and, at all times relevant to the lawsuit, was a third-party provider of ERISA plan administration and claims services. In February 2016, the Defendant, through its own actions in Tennessee and those of its agent and broker, marketed a self-funded group health plan in Tennessee to Tennessee Tractor for the benefit of its employees. This health plan would be and indeed was an employee welfare benefit plan as defined under ERISA. On April 18, 2016, Tennessee Tractor entered into a Patient Protection and Affordable Care Act Compliance Service Agreement with Defendant WH Administrators to administer the Plan. Under the Agreement, the Defendant was to, among other things, ensure Tennessee Tractor's compliance with the Patient Protection and Affordable Care Act and administer the Plan. The Plan was to commence on June 1, 2016. Tennessee Tractor was named as Plan Sponsor. The Defendant was the duly appointed Plan Administrator and named fiduciary. Tennessee Tractor's employees, including Young, were participants in the Plan and therefore eligible to receive benefits under it. Over the course of the parties' contractual relationship, Tennessee Tractor performed all of its duties and obligations under the Agreement. But in December 2016, the Defendant abruptly, and without explanation, ceased processing or paying the claims of Tennessee Tractor's employees, including those of Young. On Nov. 10, 2017, Plaintiffs Tennessee Tractor and Young, on behalf of himself and all similarly situated persons, filed a class-action Complaint under ERISA against Defendant WH Administrators. On Nov. 27, 2017, they filed a still-pending Motion for Preliminary Injunction. On Dec. 4, 2017, the Defendant filed a Motion to Compel Arbitration. Then on Dec. 11, 2017, the Plaintiffs filed an Amended Complaint, resulting in the Defendants' re-filed Motion to Compel Arbitration. After the parties filed a Response, a Reply, and a Sur-Reply, the Court granted the Defendant's Motion to Compel Arbitration in Part and compelled Tennessee Tractor to take its claims against Defendant to arbitration. The Defendant sought reconsideration of its Motion as to Young and the other class Plaintiffs, which the Court denied in its April 13, 2018 Order. Since that time, the Court has rejected the Defendant's efforts to quash various subpoenas because the Defendant lacked standing to move the Court to do so, and the parties agreed to a Consent Order that resolved the Motion for Preliminary Injunction. Before the Court is the Defendant's Motion to Dismiss for Failure to Join a Necessary and Indispensable Party. It seeks the dismissal of the class action under Federal Rule of Civil Procedure 12(b)(7) because Young failed to join his co-plaintiff and employer Tennessee Tractor and insurance broker Jas. D. Collier & Co. The Plaintiff filed a Response in Opposition to the Defendant's Motion, asserting that neither Tennessee Tractor nor Collier is necessary and indispensable to the case. Judge Anderson finds that the Defendant has failed to meet its burden of showing that an absent party is necessary and indispensable to the litigation. Accordingly, dismissal is not warranted under Rule 12(b)(7). He explains that the Defendant asserts that Tennessee Tractor is the Plan Administrator and, therefore, Tennessee Tractor's presence is required because it is the entity in control of the funds and in the best position to provide the Plaintiff with relief. But, as the Plaintiff noted in his Response and as the Court noted in its Order on the Motion to Compel, there are, at the very least, reasons to doubt the Defendant's assertion here. Ultimately, however, the Judge needs only, and indeed must, accept the Plaintiff's allegations as true for the purposes of the Motion. And the Plaintiff alleges that the Defendant is the Plan Administrator. Therefore, the Judge lacks a basis to conclude that Tennessee Tractor is a necessary party. The Defendant's additional argument that Collier is a necessary party because the Plaintiff relies on representations made by Collier in setting forth his claims must also fail. He finds that the Amended Complaint only mentions Collier to the effect that Collier assisted the Defendant in marketing its health plans in Tennessee to Tennessee Tractor. But the Plaintiff's claims against the Defendant involve the Defendant's statutory duties under ERISA and are not based in Collier's representations. Thus, complete relief can be sought from Defendant as Plan Administrator. Once again, he lacks a basis to conclude that Collier is a necessary party because the nature of the Plaintiff's allegations suggests that relief, if he is entitled to it, should come completely from the Defendant. As the Defendant does not assert that either Tennessee Tractor or Collier claims an interest relating to the subject of the action, the Judge further concludes that there is no basis to find that either party is necessary under the second prong of Rule 19(a). Thus, there is no need to proceed to Rule 19(b). The Court holds that Rule 12(b)(7) and Rule 19 do not require dismissal of the Amended Complaint. He denied the instant Motion. A full-text copy of the Court's April 22, 2018 Order is available at https://is.gd/FA2TXq from Leagle.com. Tennessee Tractor, LLC, on behalf of itself and the Tennessee Tractor, LLC Health and Welfare Benefit Plan & Kerry Young, on behalf of himself and all similarly situates persons, Plaintiffs, represented by John I. Houseal, Jr. -- jhouseal@glankler.com -- GLANKLER BROWN, PLLC & Don Lester Hearn, Jr. -- dhearn@glankler.com -- GLANKLER BROWN, PLLC. WH Administrators, Inc., Defendant, represented by James Allison Holifield, Jr., HOLIFIELD JANICH & ASSOCIATES, PLLC & Ronald Scott Kravitz -- rkravitz@sfmslaw.com -- SHEPARD FINKELMAN MILLER & SHAH, LLP. YUM! BRANDS: Taco Bell Is Proper Defendant, Court Says ------------------------------------------------------ In the class action lawsuit styled JOHN WEST II, on behalf of himself and all other persons similarly situated, known and unknown, the Plaintiff, vs. YUM! BRANDS, INC., a Kentucky for-profit business, the Defendant, Case No. 2:18-cv-12750-GCS-RSW (E.D. Mich.), the Hon. Judge George Caram Steeh entered an order on September 25, 2018: 1. dismissing YUM! Brands, Inc. as a party from this action and substituting Taco Bell of America in its place; 2. directing Plaintiff to file an amended complaint properly identifying Taco Bell of America, LLC as the Defendant in this action; 3. giving Taco Bell of America 21 days after the date Plaintiff files its Amended Complaint to file its Answer or other responsive pleading; and 4. denying without prejudice Plaintiff's motion for conditional certification filed September 8, 2018, as moot.[CC] Attorneys for Plaintiff Bryan Yaldou, Esq. Elaina S. Bailey, Esq. THE LAW OFFICES OF BRYAN YALDOU, PLLC 23000 Telegraph, Suite 5 Brownstown, MI 48134 Telephone: (734) 692 9200 Facsimile: (734) 692 9201 E-mail: bryan@yaldoulaw.com Attorneys for Defendant: Allan S. Rubin, Esq. Daniel C. Waslawski, Esq. JACKSON LEWIS P.C. 2000 Town Center, Suite 1650 Southfield, MI 48075 Telephone (248) 936 1900 E-mail: rubina@jacksonlewis.com daniel.waslawski@jacksonlewis.com [*] Gerry Brownlee Denies Class Action Lawyer's Bullying Claims --------------------------------------------------------------- Colin Williscroft, writing for Stuff, reports that national MP Gerry Brownlee has rejected claims he bullied or intimidated a junior solicitor at an Auckland law firm behind a class action lawsuit against steel mesh providers. Any suggestion that he had deliberately set out to derail the class action was ridiculous, he said. Brownlee was responding to accusations that followed a phone call he made to Adina Thorn Lawyers after he received a letter from the law firm, sent to his Ilam address in Christchurch as a property owner, asking him to support the class action. The proposed lawsuit is a result of manufacturers of the mesh, used mainly under concrete floors and driveways between 2012 and 2016, being fined after pleading guilty to misrepresenting their product. Those guilty pleas were a good result for the Commerce Commission, the letter said, but did not provide any compensation for affected property owners, which was the purpose of the class action. The firm's principal, Adina Thorn, said she was disappointed that Brownlee had targeted one of her staff and appalled that a senior member of Parliament would attempt to intimidate anyone planning a legal action. "The junior solicitor was incredibly upset after the call she received from Mr Brownlee. She felt intimidated and harassed." Ms Thorn said Mr Brownlee's behaviour was unprofessional and that he did not identify himself until the very end of the call. "The motivation for the call seems unclear," she said. "However we do wonder if Mr Brownlee was attempting to intimidate us in order to try and derail a proposed class action related to the non-compliant steel mesh. We can see no other reason for the angry and intimidating call. We should all be concerned about this kind of behaviour; it's unacceptable for an MP to interfere in this way," Mr. Brownlee said it was only at the end of the call he realised that he was not speaking to Thorn but should have made no difference to the person at the other end of the phone who they thought they were talking to. "Are they saying that if I had said who I was at the start of the phone call I would have got a different answer?" Mr. Brownlee said he rang to question what he sees as the lawsuit's lack of clarity, saying the letter seeking support from property owners does not clearly state whether the class action is based on products being wrongly labelled or whether they were deficient. That was a big issue and it was irresponsible of the firm not to make that clear, he said, as the two companies so far fined over their mesh products were charged over misleading customers about whether their steel had been tested and certified as complying with a new earthquake safety standard, not because the product's strength had been proven to be substandard. Mr. Brownlee said property owners considering joining the class action needed to be aware that by adding their property's address to a legal action they could in effect be labelling it as having deficiencies, which could have an adverse affect in the future. "The potential to devalue property is quite strong. It was incumbent as a sitting MP for me to ask the questions that I did." Ms. Thorn said the lawsuit is based on people being sold a product that was not what it was promoted as being. About 75 per cent of the homes and businesses with the steel mesh are in Canterbury, she said.[GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***