/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181030.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 30, 2018, Vol. 20, No. 217 Headlines 1ST CLASS STAFFING: Fails to Pay Proper Wages, Buntun Suit Says A10 NETWORKS: Still Defends Securities Class Action in California ACETO CORP: Motions for Lead Plaintiff, Counsel Still Pending AKORN INC: Bid to Intervene in Securities Fraud Suit Denied ALLAN COMPANY: Fails to Pay Proper Wages, Avila et al. Suit Say ALLSTATE FIRE: Faces Schoenborn et al. Suit in M.D. Georgia ALTABA: Reaches Agreement in Principle in Data Breach Suit ALTABA: Shareholder Class Action Agreement Gets Final Court Okay AMCREST INDUSTRIES: Horner Sues over Sale of Unlicensed Radio AMERICAN FAMILY: Court Dismisses G. Anderson's Suit AMERICAN HONDA: Hamilton Suit Moved to District of Minnesota AMP: Analyst Estimates $6-Bil. for Customer Refunds APPLEWOOD WINERY: Faces Wu Suit in S.D. New York ASTA FUNDING: Maintains $2.3M Reserve for Class Action Settlement BALDWIN VINEYARDS: Faces Wu Suit in S.D. New York BAYADA HOME: Ct. Conditionally Certifies 2 Subclasses in FLSA Suit BCA FINANCIAL: Court Won't Reconsider Reyes Class Certification BHP BILLITON: Bid to Drop Samarco Bondholders Suit Still Pending BHP BILLITON: Reaches Tentative Settlement of Shareholders Suit BHP BILLITON: Still Defends Shareholder Suits in Australia BIG 5: Espinoza Seeks Unpaid Wage under Labor Code BMW: Settles Class Action Over Excessive Oil Consumption BNSF RAILWAY: WRG Workers' Asbestos Suit Remanded to State Court BURGER KING: Faces Arrington Suit over No-Poach Agreement CALIFORNIA: Dismissal of Class Claims in Flores Suit Recommended CARNIVAL CORP: Cruise Line Receives Kickbacks, Wolfe Suit Claims COBIZ FINANCIAL: Plaintiff Dismisses Class Action on BOK Merger CONNECTICUT: Class Action Mulled Over Garner Radon-Exposure CONVERGYS: Files Supplemental Disclosures to Appease Merger Suits CSX TRANSPORTATION: More People Speak Out on Railway Underpass CULPEPER, VA: Inks MOA with ICE Amid Class Action CVS RX: Summary Judgment Bid on PAGA Claim in Cabrera Granted DELEK: Faces Class Action in Haifa Court Over Vehicle Prices DENKA PERFORMANCE: Environmental Tort Suit Remanded to State Court DEUTSCHE BANK: Blackrock Advisors RMBS Suit in N.Y. Still Stayed DEUTSCHE BANK: Discovery Still Ongoing in BlackRock Suit in Calif. DEUTSCHE BANK: Royal Park's 2nd RMBS Lawsuit Remains Stayed ELECTROLUX HOME: Court Allows Alternative Service in Rice Suit ESSENDANT INC: Faces Nguyen Suit over Staples Merger EVERETT FINANCIAL: Baretich Labor Suit Remanded to State Court FERRELLGAS PARTNERS: Appeal in N.Y. Class Action Still Pending FERRELLGAS PARTNERS: Still Defends Class Action in Missouri FIVE GUYS: Court Conditionally Certifies Class in Finefrock Suit FORSTER & GARBUS: Antonov Sues over Debt Collection Practices FORT SMITH, AR: Recycling Cost Estimates Differ in Lawsuit FRED'S INC: 2 Suits Stayed Pending 11th Cir. Decision in "Taylor" FRED'S INC: Class Status Bid Pending in Southern Independent Suit FRED'S INC: Eddington Wage and Hour Class Lawsuit Still Ongoing FRED'S INC: Whitley Class Action Lawsuit in Ohio Still Ongoing FRONTIER COMMUNICATIONS: Beets Sues over Internet & Phone Services FUNKO INC: Court Denies Carl Berkelhammer's Lead Plaintiff Bid GENERAL INFORMATION: Court Dismisses Amended Morris FCRA Suit GRETNA, LA: Nelson Class Certification Bid Dismissed GUARANTY BANCORP: Files Supplemental Disclosures on Merger Accord HACOR INC: Fails to Pay Proper Wages, Salazar Suit Alleges HARVARD COLLECTION: Hanks Alleges Wrongful Debt Collections IDT ENERGY: Faces Mackey and Hernandez Suit in N.D. Illinois INTUITIVE SURGICAL: Final Settlement Approval Hearing on Dec. 20 J JILL INC: Still Defends Pension Trust Suit in Massachusetts JAMESPORT VINEYARDS: Wu Sues in Eastern District of New York K2M GROUP: Plaintiff in Brown Suit Drops Injunction Bid KEYS PRODUCTIONS: Fails to Pay OT to Dancers, Lasoyti Suit Claims KIMBERLY CLARK: Still Defends Bahamas Surgery Center's Suit LEVEL 3 COMMUNICATIONS: Fails to Pay Proper Wages, Autrey Alleges LG ELECTRONICS: Fridge Compressors Defective, Jackson et al. Say MAB COMMUNITY: Underpays House Managers, Duncan Suit Alleges MAGNANINI FARM: Faces Wu Suit in Southern District of New York MARVEL & MALONEY: Steinberg Alleges Wrongful Debt Collection MCGOWEN ENTERPRISES: Leary Class Settlement Has Final Approval MDL 2827: Court Denies Bid for Relief in iPhone Battery Suit MGT CAPITAL: Bragar Eagel Files Class Action Lawsuit MGT CAPITAL: Schall Law Firm Files Class Action Lawsuit MIDLAND CREDIT: Court OKs Bid to Dismiss Blackwell FDCPA Suit MONSANTO COMPANY: Lasseigne Suit Removed to N.D. California MONSANTO COMPANY: Ocasio Suit Removed to N.D. California MONSANTO COMPANY: Stevens et al. Suit Removed to N.D. California MOTT'S LLP: Rahman Remanded to California Superior Court MOUNTAIN AMERICA: Court Dismisses Tilley EFTA Suit MURRAY ENERGY: Court Allows Amendment to Mitchell WARN Suit NATIONAL FOOTBALL: Court Denies Certification of Treviso Class NATIONAL GRID: Nightingale Alleges Illegal Debt Collection NEIMAN MARCUS: Connolly Suit Stayed Pending Attia Settlement Deal NEIMAN MARCUS: Final Court OK on Cyber-Attack Suits Accord Pending NEIMAN MARCUS: Healthcare Plan Beneficiary Drops Class Claims NEIMAN MARCUS: Nguyen's PAGA Claims to be Resolved in Attia Pact NEIMAN MARCUS: NLRB Proceedings over Class Action Waiver Pending NEIMAN MARCUS: Roces Case Stayed Pending Approval of Attia Deal NEIMAN MARCUS: Rubenstein Settlement Wins Final Approval NEIMAN MARCUS: Settlement of Attia Suit Gets Initial Court Approval NEIMAN MARCUS: Still Defends NY Class Suit by Visually Impaired NEW AGE MEDICAL: Made Unsolicited Calls, Abedi Suit Alleges NEW LEGEND: Underpays Drivers, Nichols Suit Alleges NEW ORIENTAL: Bid to Drop Securities Class Lawsuit Still Pending NEW PRIME: Supreme Court Hears Oral Arguments in Trucker's Case NEWPORT TOWNSHIP, IL: Dismissal of Amended Reno Suit Affirmed NEXSTAR MEDIA: One Source Suit Moved to Northern Dist. of Illinois OHIO CIVIL SERVICE: Nathaniel Ogle Sues over Agency Fees PENN-RIDGE TRANSPORTATION: Removes Castellon Suit to C.D. Cal. PENNSYLVANIA: Court Dismisses R. Harold's Suit PETTA ENTERPRISES: Court Grants Settlement Deal Final Approval PETTA ENTERPRISES: Final Approval of Graybill Settlement Endorsed PINNACLE FOODS: Files Supplemental Info to Appease Merger Suits POST CONSUMER: Lima et al. Allege Cereal Products Mislabeled PRETIUM RESOURCES: Bronstein Gewirtz Files Class Action PRINCE DELI: Ochoa Seeks Overtime Wages under FLSA REA ENERGY: Dismissal of Suit Over Patronage Capital Affirmed RIPPLE LABS: Greenwald Securities Suit Remanded to Superior Court ROYAL WINE: Faces Wu Suit in Eastern District of New York SACRAMENTO COUNTY, CA: Court Dismisses Kononov Suit SANTANDER BANK: Court Dismisses Aversano TILA Suit SELIP & STYLIANOU: Court Narrows Claims in FDCPA Suit SHELBY COUNTY, TN: Court Narrows Claims in Unlawful Detention Suit SINCLAIR BROADCAST: My Philly Lawyer Suit Moved to Illinois SOUTH CAROLINA FARM: Underpays Agents, Laney and Steller Allege STATE FARM: 6th Cir. Affirms Denial of Bid to Dismiss Hicks Suit STERLING BANCORP: Parties Agree to Drop O'Connell Merger Suit SUBARU: Faces Class Action Over Engine Tuning Problems SYNTEL INC: Files Supplemental Disclosures to Appease Merger Suits TIME INC: Court Awards $2.96MM Attorney's Fee in Perlin Suit TRANS WORLD: Continues to Defend Store Manager Class Actions TRI-STATE CAREFLIGHT: Conditional Certification of Payne Denied UBER TECH: 9th Cir. Flips Denial of Arbitration Bid in O'Connor ULTA SALON: Fails to Pay Proper Wages, Tellez Suit Alleges UNITED STATES: ACLU Files Motion for Temporary Restraining Order UNITED STATES: Court Certifies Class in Smith-Williams FTCA Suit UNITED STATES: Justice Association Mulls Class Action v. Brown US BANK: Still Faces Various Lawsuits over RMBS Trusts VAN RU CREDIT: Court Certifies Class in FDCPA Suit VISA INC: Amends Settlement for Damages Class in Interchange MDL WALMART: Settles Class Action Over Lack of Seating for Cashiers WELLS FARGO: Still Faces RMBS Investors' New York Class Lawsuit WILLIAM PENN: Court Narrows Claims in 1st Amended Rich Suit [] New York State Urged to Establish Water Contamination Standards ********* 1ST CLASS STAFFING: Fails to Pay Proper Wages, Buntun Suit Says --------------------------------------------------------------- RAYNISHA BUNTUN, individually and on behalf of all others similarly situated, Plaintiff v. 1ST CLASS STAFFING, LLC; and DOES 1 THROUGH 100, INCLUSIVE, Defendants, Case No. STK-CV-UOE-2018-12531 (Cal. Super., San Joaquin Cty., Oct. 5, 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 Buntun was employed by the Defendants as hourly-paid, non-exempt employee in California. 1st Class Staffing, LLC is an Arizona limited liability company providing staffing services in the United States. [BN] The Plaintiff is represented by: Douglas Han, Esq. Shunt Tatavos-Gharajeh, Esq. Daniel J. Park, Esq. JUSTICE LAW CORPORATION 411 North Central Avenue, Suite 500 Glendale, CA 91203 Telephone: (818) 230-7502 Facsimile: (818) 230-7502 A10 NETWORKS: Still Defends Securities Class Action in California ----------------------------------------------------------------- A10 Networks, Inc. disclosed in its Form 10-Q filed on September 24, 2018, with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2018, that an operative amended complaint remains to be filed in a putative securities class action suit. On March 22, 2018, the Company, our Chief Executive Officer, our Chief Financial Officer, and certain former officers, were named as defendants in a putative class action lawsuit filed in the United States District Court for the Northern District of California, captioned Shah v. A10 Networks, Inc. et al., 3:18-cv-01772-VC (the "Securities Action"). The complaint in the Securities Action alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, and seeks unspecified damages and other relief. On August 31, 2018, the court appointed a lead plaintiff. An operative amended complaint remains to be filed. A10 Networks, Inc. provides software and hardware solutions in the United States, Japan, other Asia Pacific and EMEA countries, and internationally. The Company was incorporated in 2004 and is headquartered in San Jose, California. ACETO CORP: Motions for Lead Plaintiff, Counsel Still Pending ------------------------------------------------------------- Judge Joseph F. Bianco of the U.S. District Court for the Eastern District of New York on October 23, 2018, directed the parties in the class action lawsuits against Aceto Corporation to appear in-person on November 26, 2018, at 4:30 p.m. in Courtroom 1040, 100 Federal Plaza, Central Islip, New York 11722 for oral argument on IBEW Local 98 Pension Plan's motion for consolidation, appointment as lead plaintiff, and approval of selection of lead counsel. Oral argument will address the motions for consolidation, appointment as lead plaintiff, and approval of selection of lead counsel filed in both 18-CV-2425 (Mulligan v. Aceto Corporation, et al.) and 18-CV-2437 (Yang v. Aceto Corporation, et al.). On October 25, 2018, Charles Bouley, Stephen Cornell, Andrew Goodwin, Robert Herpst and Joseph Mun advised the Court that the so-called Aceto Investor Group has withdrawn its Motion to Consolidate Cases, Motion to Appoint Counsel, and Motion to Appoint Lead Plaintiff in class action lawsuits against Aceto Corporation et al. Aceto disclosed in its Form 10-K filed on September 28, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018, that the Company and certain of its current and former officers are named defendants in two putative securities class actions (the "Securities Class Action Lawsuits") filed in the United States District Court for the Eastern District of New York in April 2018, captioned Mulligan v. Aceto Corporation, et al, No. 2:18-cv-02425, and Yang v. Aceto Corporation, No. 1:18-cv-02437. The complaints arise from the April 19, 2018 drop in the Company's stock price following the Company's announcement on April 18, 2018 that it would recognize a substantial impairment charge for the third fiscal quarter. The complaints generally allege that the defendants violated the Securities Exchange Act of 1934 by making false and misleading statements in public filings with the SEC, and seek unspecified damages. On June 26, 2018, five motions were filed seeking to appoint lead plaintiff and approve lead plaintiff's counsel pursuant to the Private Securities Litigation Reform Act of 1995, as well as to consolidate the Mulligan or Yang actions. Three motions were subsequently withdrawn or abandoned, and the remaining two motions are pending before the Court. Following the appointment of a lead plaintiff, the Company expects that the appointed lead plaintiff will file a single consolidated amended class action complaint to supersede the earlier complaints. The Company intends to vigorously defend itself. Port Washington, N.Y.-based ACETO Corporation, is an international company engaged in the development, marketing, sale and distribution of Human Health products, Pharmaceutical Ingredients and Performance Chemicals. AKORN INC: Bid to Intervene in Securities Fraud Suit Denied ----------------------------------------------------------- In the cases, SHAUN A. HOUSE, individually and on behalf of all other similarly situated, Plaintiff, ROBERT CARLYLE, Plaintiff, DEMETRIOS PULLOS, individually and on behalf of all other similarly situated, Plaintiff, v. AKORN, INC.; JOHN N. KAPOOR; KENNETH S. ABRAMOWITZ; ADRIENNE L. GRAVES; RONALD M. JOHNSON; STEVEN J. MEYER; TERRY A. RAPPUHN; BRIAN TAMBI; ALAN WEINSTEIN, Defendants, Case Nos. 17 C 5018, 17 C 5022, 17 C 5026 (N.D. Ill.), Judge Thomas M. Durkin of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Theodore Frank's motion for reconsideration of the Court's denial of his motion to intervene. Six named Plaintiffs each filed an action against Akor and members of its board of directors in order to force Akorn to make certain revisions to the proxy statement it filed with the U.S. Securities and Exchange Commission in connection with Frensenius Kabi AG's bid to acquire Akorn. Akorn made the changes to its proxy statement, which the Plaintiffs conceded mooted their claims, and led them to stipulate to dismissal without prejudice of all six cases pursuant to Federal Rule of Civil Procedure 41(a)(1). Although five of the six cases were filed as class actions, the cases were voluntarily dismissed before any class was certified or any motion for class certification was filed. In the one of the six cases originally assigned to the Court, the motion seeking entry of a stipulation of dismissal provided that the Court would retain jurisdiction over all parties solely for the purposes of any claim by any Plaintiff for attorneys' fees and/or expenses. Two months later, on Sept. 15, 2017, the parties in that case filed another stipulation providing that the Plaintiffs in all six cases had reached a settlement agreement with the Defendant providing for $322,500 in attorneys' fees, and that there being no reason for the Court to retain jurisdiction over the matter, the case should be closed for all purposes. Three days later, before the Court could take any action with respect to the September 15 proposed order, Frank, an owner of 1,000 Akorn shares, filed motions to intervene in all six cases for purposes of objecting to the attorneys' fee settlement. Frank contends that the cases are part of a "racket," known as "strike suits," pursued for the sole purpose of obtaining fees for the Plaintiffs' counsel, which are successful because victim defendants like Akorn find it cheaper, and therefore rational, to pay nuisance value attorneys' fees rather than contest them, and further delay the merger. Frank contends that this is a misuse of the class action device for private gain Frank also sought to consolidate all six cases before the Court. The Court withheld ruling on that motion. Proceedings on Frank's motions in the five other cases paused while the Court addressed Frank's motion to intervene in the case before it. The Court denied Frank's motion, finding that Frank had failed to identify an interest in the case upon which his intervention could be based. Because the Court was concerned with the Plaintiff's apparent success in evading the requirements of Rule 23, the Court invited Frank to file a motion to reconsider addressing the questions the Court raised in its opinion denying intervention. Frank filed a renewed motion for intervention arguing that the Plaintiffs' counsel had breached their fiduciary duties to the putative class by abusing the class mechanism to "extort" attorneys' fees from Akorn, which were against the class members' interests as shareholders of Akorn. Whether in light of Frank's renewed motion, or possibly because the Akorn-Frensenius merger had failed and devolved into litigation, or for some other reason entirely, the Plaintiffs' counsel in three of the six cases disclaimed attorneys' fees and sought to withdraw their representations. At subsequent status hearings, the Court explained that, rather than consolidate all six cases, the Court would recommend to the district's executive committee that the five other cases be reassigned to the Court. Anticipating reassignment, the Court ruled that Frank's motions to intervene in the three cases in which counsel had disclaimed fees were moot, and that the Court's original denial of Frank's motion to intervene, and his motion for reconsideration, were deemed to be filed in all three of the remaining cases, with continued briefing being filed in case 17 C 5018. Remaining counsel filed a joint brief in opposition to Frank's motion for reconsideration, and Frank filed a reply. Frank's primary argument for intervention is that he has stated a claim against the Plaintiffs' counsel for breach of fiduciary duty. Judge Durkin finds that it is true that the counsel who file a case as class action have a fiduciary duty to the putative class even before it is certified. But the authority setting forth such a duty indicates that it is limited to protecting the class members' legal rights that form the basis of the claims at issue. In other words, the class counsel have a duty not to act in a manner that prejudices the class members' ability to secure relief for the alleged injuries at issue in the case. Next, the Judge finds that Frank does not claim that th ePlaintiffs' counsel caused any such prejudice. Rather, he alleges that the attorneys' fees paid to the class counsel are a loss to Akorn and thereby harmed Akorn shareholders, including the class members. Frank makes no allegation that the Plaintiffs' counsel prejudiced the class members' claims in any of the six cases. In fact, his underlying rationale for seeking to intervene is that the Plaintiffs' claims are worthless, which would mean that class members are not entitled to any recovery. It is difficult to see how worthless claims could ever be prejudiced. Moreover, the injury Frank identifies is not to the class members qua class members. Rather, it is an injury to Akorn that the class members might realize through their shares of Akorn. But an injury to Akorn can only be pursued by class members through a derivative action, which is not the procedural posture of any of the six cases. And in any event, the fact that all the class members are Akorn shareholders does not mean that plaintiffs' counsel's fiduciary duty to the putative class extends to a duty to refrain from injuring Akorn. Indeed, plaintiffs' claims are designed to compel Akorn to act in a way it otherwise had not, thereby causing some form of expense and injury. Clearly, the class members' claims and Akorn's interests are not coextensive. As such, there is a break in the causal chain connecting the class members to Akorn that Frank relies upon to support his theory of intervention. It is unsurprising that Frank must rely on injury to Akorn and cannot identify any prejudice to the class members since no class was ever certified and the claims were dismissed without prejudice. Without a certified class, Rule 23's mechanism for judicial review of class settlements is inapplicable. At least some of the class members' claims or rights to relief had been released, establishing an equitable basis for them to demand a fair portion of the settlement. Neither circumstance is present in the case, so the Judge will not permit Frank to intervene as a party. However, the Judge will exercise its inherent powers to police potential abuse of the judicial process -- and abuse of the class mechanism in particular -- and require the Plaintiffs' counsel to demonstrate that the disclosures for which they claim credit meet the Walgreen standard. This authority extends to any unprofessional conduct, including conduct that involves the exaction of illegal fees. Failure to demonstrate compliance with Walgreen's "plainly material" standard will result in the Court ordering the Plaintiffs' counsel to disgorge the attorneys' fees back to Akorn. Although the Court has denied Frank's motion to intervene, the Court invites him to continue to participate in the case as an amicus curiae, because the Defendants have abandoned the adverse perspective necessary for the Court to determine this issue. In the prior briefing, the Plaintiffs' counsel made arguments as to why certain disclosures met the Walgreen standard. Frank only briefly addressed these issues, as they were not immediately relevant to his motion to intervene. Judge Drukin Court requires further briefing to address this issue. The Plaintiffs' counsel should file a brief of no more than 15 pages in support of their position by Nov. 1, 2018, including addressing the arguments Frank has already made that the disclosures are not plainly material. Frank may then file a brief of no more than 15 pages in response by Dec. 3, 2018. The Defendants may also file a brief stating their position by Nov. 1, 2018. In sum, the Judge denied in part and granted in part Frank's motion for reconsideration. He is not granted leave to intervene as a party. But his motion is granted insofar as the Court will exercise its inherent authority to apply the standard set forth by the Seventh Circuit in Walgreen to the settlement at issue in the case, and Frank is granted leave to file a brief as an amicus curiae as described. Frank should file a notice in case 17 C 5018 by Oct. 1, 2018, stating whether he will accept the Court's invitation to participate as amicus curiae. A full-text copy of the Court's Sept. 25, 2018 Memorandum Opinion and Order is available at https://is.gd/Ioqh4F from Leagle.com. Shaun A. House, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher James Kupka -- ckupka@zlk.com -- Levi & Korsinsky, Lewis S. Kahn -- lewis.kahn@ksfcounsel.com -- Kahn Swick & Foti, Llc & Paul D. Malmfeldt, Blau & Malmfeldt. Akorn, Inc., John N. Kapoor, Kenneth S. Abramowitz, Adrienne L. Graves, Ronald M. Johnson, Steven J. Meyer, Terry A. Rappuhn, Brian Tambi & Alan Weinstein, Defendants, represented by Robert B. Bieck, Jr. -- rbieck@joneswalker.com -- Jones Walker LLP, Alexander Breckinridge, V -- abreckinridge@joneswalker.com -- Jones Walker LLP, Anthony C. Porcelli -- aporcelli@polsinelli.com -- POLSINELLI PC, Robert H. Baron -- rbaron@cravath.com -- CRAVATH, SWAINE & MOORE LLP, pro hac vice & Sohil M. Shah -- sshah@polsinelli.com -- Polsinelli, PC. Theodore H. Frank, Intervenor, represented by M. Frank Bednarz -- info@cei.org -- Center For Class Action Fairness. ALLAN COMPANY: Fails to Pay Proper Wages, Avila et al. Suit Say --------------------------------------------------------------- MARIA AVILA; PEDRO GUZMAN; and BLANCA PETRONA, individually and on behalf of all others similarly situated, Plaintiffs v. ALLAN COMPANY, INC.; SOURCE ONE STAFFING, LLC; INVO PEO, INC. III; GUILLERMO LRA; and DOES 1 through 25, inclusive, Case No. 37-2018-00050709-CU-OE-CTL (Cal. Super., San Diego Cty., Oct. 5, 2018) is an action against the Defendants for failure to pay wages and overtime compensation. The Plaintiffs were employed by the Defendants to sort waste materials in the Defendants' recycling facility located at San Diego, California. Allan Company Inc. operates as a full-service recycling company. The Company engages in the brokerage, packing, and exporting of recovered materials. Allan Co. provides services such as recyclable collection, collection and recycling equipment, curbside processing, on-site trucking, and recycling programs. [BN] The Plaintiffs are represented by: Justin Hewgill, Esq. Efaon Cobb, Esq. LAW OFFICE OF HEWGILL & COBB 2169 First Avenue San Diego, CA 92101-3542 Telephone: (619) 786-7459 Facsimile: (619) 377-6026 ALLSTATE FIRE: Faces Schoenborn et al. Suit in M.D. Georgia ----------------------------------------------------------- A class action lawsuit has been filed against Allstate Fire and Casualty Insurance Company. The case is captioned as DANIEL SCHOENBORN, and JILL SCHOENBORN, individually and on behalf of all others similarly situated, Plaintiff v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant, Case No. 5:18-cv-00368-MTT (M.D. Ga., Oct. 5, 2018). The case is assigned to Judge Marc Thomas Treadwell. Allstate Fire and Casualty Insurance Company was founded in 1931 and is based in California. Allstate Fire and Casualty Insurance Company operates as a subsidiary of The Allstate Corporation. [BN] The Plaintiffs are represented by: Adam P. Princenthal, Esq. 750 Hammond Drive Bldg 12 Suite 200 Sandy Springs, GA 30328 Telephone: (678) 534-1980 E-mail: adam@princemay.com - and - C. Cooper Knowles, Esq. LAW OFFICE OF C. COOPER KNOWLES, LLC 3405 Piedmont Road, N.E., Suite 500 Atlanta, GA 30305 Telephone: (404) 431-5900 E-mail: cknowles@cckfirm.com - and - Clinton W. Sitton, Esq. 5855 Sandy Springs Circle, Suite 300 Atlanta, GA 30328 Telephone: (404) 351-5900 E-mail: clint@kopelmansitton.com - and - James C. Bradley, Esq. PO Box 1007 Mt. Pleasant, SC 29465 Telephone: (843) 727-6500 E-mail: jbradley@rpwb.com - and - Kimberly Keevers Palmer, Esq. 1037 Chuck Dawley Blvd Bldg A Mt. Pleasant, SC 29464 Telephone: (843) 727-6500 E-mail: kkeevers@rpwb.com - and - Michael J. Brickman, Esq. PO Box 1007 Mt. Pleasant, SC 29465 Telephone: (843) 727-6520 E-mail: mbrickman@rpwb.com - and - Nina Fields Britt, Esq. PO Box 1007 Mt. Pleasant, SC 29465 Telephone: (843) 727-6500 E-mail: nfields@rpwb.com - and - Richard Kopelman, Esq. 5855 Sandy Springs Circle, Suite 300 Atlanta, GA 30328 Telephone: (404) 351-5900 E-mail: richard@kopelmansitton.com ALTABA: Reaches Agreement in Principle in Data Breach Suit ---------------------------------------------------------- Altaba Inc. disclosed in its Form 8-K filing with the U.S. Securities and Exchange Commission dated September 17, 2018, that the parties in the U.S. and California consumer class actions have entered into an agreement in principle to resolve all pending claims. The cases are In Re: Yahoo! Inc. Customer Data Security Breach Litigation, Case No. 5:16-md-02752-LHK (N.D. Cal.) and Yahoo! Inc. Private Information Disclosure Cases, Case No. JCCP 4895 (Cal. Sup. Ct.). Altaba, Verizon Communications Inc. and plaintiffs' counsel have reached an agreement in principle to resolve all pending claims. The agreement in principle is subject to certain conditions, including Court approval and therefore may not result in a final settlement. If a definitive agreement is reached which receives Court approval, Altaba would be responsible for one-half of the total settlement costs (with Verizon responsible for the other one-half pursuant to a commitment entered into in connection with its acquisition of Altaba's legacy Internet business). Altaba Inc. operates as a non-diversified, closed-end management investment company in the United States. Its assets consist primarily of equity investments, short-term debt investments, and cash. The company was formerly known as Yahoo! Inc. and changed its name to Altaba Inc. in June 2017. Altaba Inc. was founded in 1994 and is based in New York, New York. ALTABA: Shareholder Class Action Agreement Gets Final Court Okay ---------------------------------------------------------------- A U.S. court on September 6, 2018, granted final approval to the settlement agreement in the federal securities class action styled In re Yahoo! Inc. Securities Litigation, Case No. 5:17-cv-00373-LHK (N.D. Cal.), according to the Company's Form 8-K filing with the U.S. Securities and Exchange Commission dated September 17, 2018. Altaba Inc. operates as a non-diversified, closed-end management investment company in the United States. Its assets consist primarily of equity investments, short-term debt investments, and cash. The company was formerly known as Yahoo! Inc. and changed its name to Altaba Inc. in June 2017. Altaba Inc. was founded in 1994 and is based in New York, New York. AMCREST INDUSTRIES: Horner Sues over Sale of Unlicensed Radio ------------------------------------------------------------- Paul Horner; and David Byron, individually and on behalf of all others similarly situated, Plaintiff v. Amcrest Industries, LLC.; and Fujian Nan'an Baofeng Electronics Co., Ltd., Defendants, Case No. 2:18-cv-14409-DMM (S.D. Fla., Oct. 5, 2018) alleges violation of Florida's Deceptive and Unfair Trade Practices Act. According to the complaint, the Defendants manufactured and caused to be sold throughout Florida and throughout the United States, a series of radio transceivers under the general designation of UV-5 since 2013 and continues to do so. The UV-5 was certified by the Defendants solely under Federal Communications Commission ("FCC") Part 90, as Private and Mobile Radio Services. Operation outside FCC Part 90 is unlawful and thus the UV-5 series may not be sold or used in the United States. The UV-5 radio series manufactured by Fujian are unlawful to be sold in the United States as the UV-5 series may not have the capability to transmit on frequencies allocated to other services. Amcrest Industries, LLC is a security products manufacturer and distributor servicing customers worldwide primarily across the United States, Canada, the UK, Germany and France. [BN] The Plaintiff is represented by: Herbert R Kraft, Esq. 3030 N. Rocky Point Drive., Suite 150 Tampa, FL 33607 Telephone: (813) 343-4466 E-mail: herb344@aol.com AMERICAN FAMILY: Court Dismisses G. Anderson's Suit --------------------------------------------------- The United States District Court for the Middle District of Georgia, Macon Division, issued an Order granting Defendant American Family Insurance Company (AFIC)'s motion for summary judgment on the claims of Plaintiff Garth Anderson in the case captioned GARTH ANDERSON, Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant. Case No. 5:15-CV-475 (MTT). (M.D. Ga.). This is one of several putative class action cases filed in this Court by insureds, all represented by the same lawyers, who claim that their insurers have failed to pay for the diminished value their homes suffered as the result of a loss that is otherwise covered by their insurance policies. In this context, diminished value has a very specific meaning: the loss in value of a property notwithstanding full repairs due to an intangible stigma owing to the circumstances of the loss. SUMMARY JUDGMENT STANDARD A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In determining whether a genuine dispute of material fact exists, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Whether There Is Sufficient Evidence for a Reasonable Jury to Find that Anderson's Home Suffered Diminished Value AFIC contends that Anderson's claim for diminished value fails because the record contains no evidence supporting his allegation that stigma reduced the market value of his physically-improved home. AFIC points to undisputed facts and argues that nothing about the sale process of Anderson's home in 2016 suggests that a written disclosure of fully repaired damage affected the sale of Anderson's home in any way. Because Anderson is the non-moving party but bears the burden of proving his claim at trial, once AFIC has met its burden on summary judgment, Anderson must show a genuine dispute regarding AFIC's failure to pay. Anderson argues that the facts, when construed in the light most favorable to him, show that his home did suffer diminished value because of stigma arising from the water damage. Anderson points to two pieces of evidence to meet his burden: his deposition testimony that he believes his home lost value and what he claims is Kilpatrick's expert opinion that the post-repair diminished value attributable to the Anderson's January 2014 water loss was 13%. Anderson's Deposition Testimony that His Home Suffered Diminished Value Because of Stigma Anderson argues that this is evidence that his home suffered diminished value, and he cites a district court order stating that in Georgia, the owner of property is considered to be qualified to state his opinion as to value when based upon a proper foundation. Matthews v. State Farm Fire & Cas. Co., 2012 WL 12964370, at *7 (N.D. Ga. 2012) The court in Matthews relied on a well-known principle of codified Georgia common law that likely conflicts with Federal Rules of Evidence 701 but which Georgia nevertheless retained when it adopted most of the rest of the Federal Rules of Evidence. The plaintiff in Matthews was a building contractor who argued that he could give lay opinions on the cost of repairs. The district court did not disagree that Georgia law allowed lay witnesses to testify about market value but nevertheless granted the insurer's motion for summary judgment because the plaintiff had not established a proper foundation for his opinion. It is apparent that Matthews, if anything, demonstrates that Anderson's one-word affirmative response is not admissible evidence of his claimed loss. This is for at least two reasons. First, a lay opinion on value must be based upon a proper foundation, and Anderson offers no foundation for his opinion that his home suffered diminished value. There is nothing to suggest that he had an opportunity to form a reasoned opinion that his home suffered diminished value. He has certainly not been shown to have adequate relevant knowledge nor has he given reasons for his or her opinion as the plaintiff did in the Georgia Court of Appeals case which Matthews cites. There, the plaintiff had testified that he is a real estate investor, that he repairs houses, and that he has done contracting work and he had inspected the property after the fire, took many pictures, and listed the items that needed repair. Anderson, by contrast, has not testified to any basis for his opinion. Second, by its terms O.C.G.A. Section 24-7-701(b) contemplates evidence regarding the market value of an article or property. Anderson does not opine on the market value of his home. Rather, he offers his testimony that stigma caused the value of his home to decrease. Anderson has not shown any authority supporting his application of O.C.G.A. Section 24-7-701(b) to his causation opinion. Anderson's testimony does not constitute evidence of diminished value as the result of stigma. Dr. Kilpatrick's Opinion that Anderson's Home Suffered Diminished Value Because of Stigma AFIC was also confounded by Anderson's argument in response to its motion for summary judgment that Kilpatrick had found that Anderson's home diminished by 13% in value as a result of stigma. Notably, this 13% figure does not correspond to percentages reported for either the `case studies' or the contingent valuation survey, but only Kilpatrick's AVM analysis. AVM refers to automated valuation models, the method Kilpatrick used to determine the expected price of Anderson's home when it sold in 2016. Apparently, AFIC did not pick up on Anderson's admission that Kilpatrick's opinion based on the 2016 sale of his house was not evidence of diminished value resulting from stigma. But AFIC's point is well taken the 13% figure" is not found in Kilpatrick's case studies or survey. Tellingly, Kilpatrick also discusses in his report further steps that he could take in order to calculate diminished value if the class is certified. In paragraph 223, Kilpatrick states: If the class is certified, then my staff and I would conduct a new focus group in the exact same way in Atlanta, Georgia and, for the class, a Georgia-wide survey. His summary of the surveys he discusses in his report is found in Table 6 of his report, which is entitled Open-Ended Results for Water Damage Scenario in the Thompson v. State Farm Matter. Clearly, the survey Kilpatrick did in Thompson was not intended for use in this case, hence the need for the Atlanta survey. Thus, the new survey would be used to establish the diminished value of Anderson's home. Although Kilpatrick says he would expect the new survey to produce similar results within a reasonable level of statistical confidence due to the recentness of the previous survey in the same geographical location, the point is that a new study would be necessary. Kilpatrick clearly contemplated taking additional measures before opining on diminished value resulting from stigma in this case. But even assuming the Thompson survey could have been used to support an opinion that diminished value due to stigma exists here, Kilpatrick never did that. In short, Kilpatrick's report talks about what he will do, not what he has done, and certainly not what he has done to appraise Anderson's home for diminished value. Anderson has not presented any evidence that would allow a reasonable jury to find that AFIC is liable to him for failure to pay for diminished value due to stigma. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y8zfhlvd from Leagle.com. GARTH ANDERSON, individually and on behalf of all those similarly situated, Plaintiff, represented by ADAM P. PRINCENTHAL -- adam@princemay.com -- C. COOPER KNOWLES, Law Office of C. Cooper Knowles, LLC, CLINTON W. SITTON, JAMES C. BRADLEY -- jbradley@rpwb.com -- KIMBERLY KEEVERS PALMER -- kkeevers@rpwb.com -- MICHAEL J. BRICKMAN -- mbrickman@rpwb.com -- NINA FIELDS BRITT & RICHARD KOPELMAN. AMERICAN FAMILY INSURANCE COMPANY, Defendant, represented by COLLIER WEST MCKENZIE, HEATHER CARSON PERKINS -- heather.perkins@FaegreBD.com -- MICHAEL S. MCCARTHY -- michael.mccarthy@FaegreBD.com -- DULANY LUCETTA POPE -- lucetta.pope@FaegreBD.com -- FAEGRE BAKER DANIELS LLP & ROBERT C. NORMAN, Jr. AMERICAN HONDA: Hamilton Suit Moved to District of Minnesota ------------------------------------------------------------ Christopher Hamilton, on behalf of himself and all others similarly situated, the Plaintiff, vs American Honda Motor Company, Inc., the Defendant, Case No. 1:18-cv-04367, was transferred from the U.S. District of Georgia, to the U.S. District Court for the District of Minnesota on Oct. 15, 2018. The District of Minnesota Court Clerk assigned Case No. 0:18-cv-02933-DSD-LIB to the proceeding. The case is assigned to the Hon. Senior Judge David S. Doty. The American Honda Motor Company, Inc. is a North American subsidiary of the Honda Motor Company, Ltd. It was founded in 1959.[BN] AMP: Analyst Estimates $6-Bil. for Customer Refunds --------------------------------------------------- Adele Ferguson, writing for Financial Review, reports that leading banking analyst Brett Le Mesurier has put an estimate of at least $6 billion on consumer refunds, reviews and litigation for the big four banks and AMP. It comes as investors speculate that National Australia Bank will release some updated figures for its compensation scheme ahead of a grilling in the House Economics Committee on Oct. 12. The other big banks took some of their medicine in the lead-up to their appearance in parliament, where they apologised profusely for any number of things. Le Mesurier's $6 remediation billion figure is calculated on a pre-tax basis, and includes the cost of implementing the programs as well as forecasts for 2019. It is worth noting that the $6 billion-plus compensation bill is by no means definitive. It has been calculated as an explosion of litigation erupts, the corporate regulator gets tougher and more shoddy practices come to light. Since July 2011 the Australian Securities and Investments Commission (ASIC) has secured $1.83 billion in remediation for customers. The Commonwealth Bank has been embroiled in the most scandals in recent years and it is therefore little surprise it has the highest remediation payout at $2.3 billion. This includes a settlement with Austrac in relation to the money laundering scandal, where it was alleged CBA had "serious and systemic non compliance" and its controls and procedures were not effective, which in some cases enabled customers to create fake names, enabling organised crime syndicates and terrorists to launder money. CBA issued a statement to shareholders which showed it had spent $580 million in pre-tax improving the processes and administration of its advice business as well as determining the amounts to be refunded to customers. Only $270 million of that money had been spent remediating customers. The amount relates to the periods 2012 to 2018. CBA bought these advice businesses nearly 20 years ago, which begs the question what was happening in the first decade of ownership and why it took so long to start fixing things up. It is also worth noting that its Colonial Financial Planning business was subject to a two-year enforceable undertaking from ASIC in late 2011 due to rampant misconduct. Separately, Slater and Gordon lodged a "Get Your Super Back" class action against CBA and Colonial First State in the Federal Court, with the law firm estimating it could exceed $100 million. The case alleges trustees, who are supposed to act in the best interests of members, invested members' savings with CBA and received uncompetitive bank interest rates. CBA denies the allegations and is defending the claim. This is one of a number of class actions expected to be launched in the coming months. Other law firms are looking at misconduct in relation to credit cards, life insurance definitions and irresponsible lending. Le Mesurier of Shaw and Partners ranks ANZ Bank second highest in remediation costs at $1.2 billion pre-tax, with over $200 million spent on customer remediation in 2017 and the first half of 2018. The majority of the remediation relates to banking products. In the second half of 2018 ANZ allocated a further $300 million to customer remediation, again mostly related to banking products, and $230 million was spent setting up and running the scheme. AMP ranked a close third at $1.17 billion. AMP's remediation and associated costs in the first half of 2018 of more than $500 million pre-tax might seem like a large number but when it is put into the context that it has the largest funds under advice it starts to look inadequate, particularly given what has come out of the royal commission. Some of the sensational revelations that poured out of the royal commission triggered five separate class actions as AMP admitted it deliberately charged consumers fees for no services on a systematic basis. It then misled the corporate regulator, in the process letting down shareholders and decimating the share price. Westpac's remediation bill ranks fourth highest at an estimated $1 billion pre-tax. Unlike CBA, the majority of its $1 billion is likely to find its way into customer pockets. NAB's bill is likely to become clearer. Given the recent announcements from ANZ, Westpac and CBA, an after tax figure of more than $200 million, is unlikely to surprise the market. The total cost may well be larger than this. For instance, on July 26 NAB's super fund trustee NULIS agreed to refund 305,000 superannuation customers an average of $220 after failing to explain to customers they could switch off a financial planning fee. This amounts to $67 million and then there is interest on top of that. Since then ASIC has taken legal action against NULIS Nominees and MLC Nominees, alleging it misled super customers and wrongly took $100 million in fees. There is also a lot of interest in the sale of ANZ's OnePath Pensions and Investments business to IOOF after the boss of IOOF gave testimony at the royal commission that raised a series of issues and misconduct. The upshot was questions, including at a parliamentary hearing on Oct. 12 by shadow financial services minister Clare O'Neil, as to whether it was in the best interests of ANZ's OnePath members to be offloaded to a company that had serious regulatory issues. After the parliamentary hearing, ANZ executive Alexis George said the transaction with IOOF was scheduled for completion at the end of the first quarter of next year. The final report into the Hayne commission is due for release on February 1, which is expected to include findings on IOOF. She said ANZ and the trustees separately have been having a lot of discussions with IOOF, including the independence of the board, governance and controls it has in place. She said IOOF was being asked for "certain" commitments on governance and policies. She also admitted that some of the royal commission revelations were a surprise. During the royal commission it became known that the Australian Prudential Regulatory Authority had written to IOOF at various times outlining serious issues such as "difficulty in obtaining accurate and current information in relation to issues such as ... culture, identification of responsible persons and the information flow and relationship between the board and management and the Fairfax Media matter". That "Fairfax Media matter" related to serious misconduct including insider trading, allegations of front-running, misrepresentation of performance figures and the boss of the research division getting staff to cheat on his behalf on compliance exams. In mid-2017 an internal memo stated: "Since December 2015, APRA has identified a number of instances where IOOF has failed to adequately identify conflicts of interest and either avoid or appropriately deal with them." The lack of regard for governance and processes was highlighted when a board meeting held the week before IOOF boss Chris Kelaher gave testimony resulted in the production of handwritten minutes on scraps of paper. When asked by council assisting Michael Hodge, QC, if Kelaher understood what was on the bits of paper, he retorted that he wasn't a handwriting expert. If ANZ and the trustees determine it is in the best interests of ANZ members that the sale proceeds it will leave them open to litigation and reputational damage if the royal commission makes damning findings or something blows up in the future. The duty of trustees to act in members' best interests has opened up a huge can of worms for financial institutions that own retail funds. Entrenched underperformance in many cases and the conflict between acting in shareholders' best interests and members best interests is problematic. Opposition Leader Bill Shorten raised the issue when he said Labor would consider forcing for-profit funds to outsource the trusteeship to an independent organisation and give APRA the power to sack trustees of funds that regularly underperform. It is steeped in politics but given super is compulsory and conflicts have been on full display during the royal commission, it is an issue that needs to be addressed. In the meantime, there will be a lot of remediation to bandage up the wound. [GN] APPLEWOOD WINERY: Faces Wu Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Applewood Winery LLC. The case is captioned as Kathy Wu, individually and on behalf of all other similarly situated, Plaintiff v. Applewood Winery LLC, Defendant, Case No. 7:18-cv-09186-KMK (S.D.N.Y., Oct. 7, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Kenneth M. Karas. Applewood Winery LLC produces over a dozen wines and ciders on their farm in New York's Hudson Valley. [BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com ASTA FUNDING: Maintains $2.3M Reserve for Class Action Settlement ----------------------------------------------------------------- Asta Funding, Inc. said in its Form 10-K filed on October 12, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2017, that it currently has a reserve for settlement costs of US$2.3 million to cover a class action lawsuit. In June 2015, a punitive class action complaint was filed against the Company, and one of its third-party law firm servicers, alleging violation of the federal Fair Debt Collection Practice Act and Racketeer Influenced and Corrupt Organization Act ("RICO") and state law arising from debt collection activities and default judgments obtained against certain debtors. The Company filed a motion to strike the class action allegations and compel arbitration or, to the extent the court declines to order arbitration, to dismiss the RICO claims. On or about March 31, 2015, the court denied the Company's motion. The Company filed an appeal with the United States Court of Appeals for the Second Circuit. A mediation session was held in July 2015, at which the Company agreed to settle the action on an individual basis for a payment of US$13,000 to each named plaintiff, for a total payment of US$39,000. Payment was made on or about July 24, 2015. The third-party law firm servicer has not yet settled and remains a defendant in the case. The plaintiffs' attorneys advised that they are contemplating the filing of another punitive class action complaint against the Company alleging substantially the same claims as those that were asserted in this matter. In anticipation of such an eventuality, the Company agreed to non-binding mediation in order to reach a global settlement with other putative class members, which would avert the possibility of further individual or class actions with respect to the affected accounts. Through March 31, 2016, the parties had attended two mediation sessions and were continuing to discuss a global settlement. In connection with such discussions, the settlement demand from plaintiffs was US$4 million and the counteroffer from the Company and its third-party law firm servicer was US$3.875 million (which would be split equally between the Company and the law firm servicer). The Company and law firm servicer had also offered, as part of the counteroffer, to cease collection activity on the affected accounts. Accordingly, the Company set up a reserve for settlement costs of US$2.0 million during the three months ended March 31, 2016, which was included in general and administrative expenses in the Company's statement of operations. The Company reassessed the situation as of September 30, 2016 and deemed that an additional US$0.3 million was necessary to account for legal expenses, which were made during the three month period ended September 30, 2016. Asta Funding, Inc., together with its wholly owned significant operating subsidiaries Palisades Collection LLC, Palisades Acquisition XVI, LLC ("Palisades XVI"), VATIV Recovery Solutions LLC ("VATIV"), ASFI Pegasus Holdings, LLC ("APH"), Fund Pegasus, LLC ("Fund Pegasus"), GAR Disability Advocates, LLC ("GAR Disability Advocates"), CBC Settlement Funding, LLC ("CBC"), Simia Capital, LLC ("Simia") and other subsidiaries, not all wholly owned, is engaged in several business segments in the financial services industry including structured settlements through its wholly owned subsidiary CBC, funding of personal injury claims, through our 80% owned subsidiary Pegasus Funding, LLC ("Pegasus"), social security and disability advocates through its wholly owned subsidiary GAR Disability Advocates and the business of purchasing, managing for its own account and servicing distressed consumer receivables, including charged off receivables, and semi-performing receivables. BALDWIN VINEYARDS: Faces Wu Suit in S.D. New York ------------------------------------------------- Kathy Wu, individually and on behalf of all others similarly situated, Plaintiff v. Baldwin Vineyards, Inc., Defendant, Case No. 1:18-cv-09187-JPO (S.D.N.Y., Oct. 7, 2018). The lawsuit alleges violation of the American with Disabilities Act. The case is assigned to Judge J. Paul Oetken. Baldwin Vineyards, Inc. is engaged in the winery business. [BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com BAYADA HOME: Ct. Conditionally Certifies 2 Subclasses in FLSA Suit ------------------------------------------------------------------ In the case, SONYA IVANOVS and KATIE HOFFMAN, ON BEHALF OF THEMSELVES AND ALL OTHER OPINION SIMILARLY SITUATED EMPLOYEES, Plaintiffs, v. BAYADA HOME HEALTH CARE, INC., Defendant, Case No. 1:17-cv-01742-NLH-AMD (D. N.J.), Judge Noel L. Hillman of the U.S. District Court for the District of New Jersey granted the motion of the Plaintiffs to conditionally certify their collective action claims. Ivanovs and Hoffman, on behalf of themselves and all those similarly situated, allege that the Defendant unlawfully classifies all of its Client Service Managers ("CSMs") nationwide as exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act ("FLSA"). According to the Plaintiff, BAYADA is a home healthcare provider with more than 330 office locations in 21 States, and its operations are generally divided into two primary business lines: Home Health and Home Care. The Home Health business line offices provide home visit services (typically one hour or less) by various medical professionals and paraprofessionals providing nursing, therapeutic, and rehabilitative care primarily on a short-term basis. The Home Care business line offices provide nursing and personal care to people with chronic illness, injury, or disability, primarily on an ongoing shift (two hours or more) basis. Each office location typically employs one or more CSM. Plaintiff relates that Home Heath CSMs and Home Care CSMs perform the same primary duty but the method by which that duty is carried out differs slightly between Home Health CSMs and Home Care CSMs, as do their secondary duties. Ivanovs was a Home Health CSM and Hoffman was a Home Care CSM. The Plaintiffs claim that BAYADA classifies CSMs as exempt despite the fact that it requires CSMs to perform non-exempt duties as their primary duties, including but not limited to: scheduling health care professionals for patients, calling health care professionals for assignments, performing patient intake calls, contacting patient referrals, and verifying insurance coverage for patients. They claim that based upon this unlawful exempt classification, BAYADA has willfully refused to pay the CSMs the required overtime compensation for overtime hours worked. The Plaintiffs have moved for conditional certification of their FSLA collective action, and have proposed these two nationwide sub-classes: i. Sub-class 1, the BAYADA Home Health CSMs: Those who worked for BAYADA at any location nationwide during the three years prior to the Court's order allowing notice. ii. Sub-class 2, the BAYADA Home Care CSMs: Those who worked for BAYADA at any location nationwide during the three years prior to the Court's order allowing notice. The Plaintiffs have also provided forms of notices to be sent out to all the potential opt-in Plaintiffs, as well as proposed the modes of dissemination of those notices. The Defendant has objected to the Plaintiffs' motion, arguing that because the duties of CSMs differ significantly across its 330 offices, and the determination of whether an employee should be classified as exempt or non-exempt requires a very fact-specific analysis, the Plaintiffs' FLSA claims cannot be pursued as a nationwide collective action. The Defendant also opposes the Plaintiffs' forms of notice and methods of dissemination. Judge Hillman concludes that the Plaintiffs have met the standard for conditional certification of their two proposed sub-classes on their claims that the Defendant violated the FLSA by classifying Home Health CSMs and Home Care CSMs as exempt instead of non-exempt. Accordingly, he granted the conditional certification of the Plaintiffs' two nationwide sub-classes, which confers onto the Plaintiffs the right to distribute a notice of the putative collective action to all the potential opt-in Plaintiffs, the Defendant is obligated to participate in this process. The parties will have 30 days to meet and confer on a form of notice, the method of dissemination of that notice, and the database of employees to which the notice will be distributed. The Plaintiffs will provide the Court with a status update at the expiration of the thirtyday period, if not earlier. Although the Court strongly encourages the parties to come to an agreement on these issues, the parties may inform the Court via letter filed on the docket of any unresolved disputes. An accompanying Order will be entered. A full-text copy of the Court's Sept. 25, 2018 Opinion is available at https://is.gd/BDJfuJ from Leagle.com. SONYA IVANOVS & KATIE HOFFMAN, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED EMPLOYEES, Plaintiffs, represented by MICHAEL JOHN PALITZ -- mpalitz@shavitzlaw.com -- SHAVITZ LAW GROUP, P.A. BAYADA HOME HEALTH CARE, INC., Defendant, represented by MICHAEL D. HOMANS -- MHomans@HomansPeck.com -- HOMANS PECK LLC. BCA FINANCIAL: Court Won't Reconsider Reyes Class Certification --------------------------------------------------------------- The United States District Court for the Southern District of Florida, Miami Division, issued an Order denying Defendant's Motion for Reconsideration of the Court's ruling on the class certification motion in the case captioned ESTRELLITA REYES, Plaintiff, v. BCA FINANCIAL SERVICES, INC., Defendant. Case No. 16-24077-CIV-GOODMAN. (S.D. Fla.). Plaintiff Estrellita Reyes, individually and on behalf of others similarly situated, sued Defendant BCA Financial Services, Inc. for allegedly violating the Telephone Consumer Protection Act (TCPA). The TCPA prohibits, among other things, the use of an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to call a person's cellphone absent an emergency or prior express consent. To begin, the Court will not reconsider rulings on issues already resolved in the class certification motion unless BCA shows that there is a (1) manifest error of fact; (2) manifest error of law; or (3) newly discovered evidence. BCA has not established that the Court committed manifest errors of fact or law when resolving those issues in Reyes's favor. Nor does BCA present any newly discovered evidence relevant to those issues. Instead, BCA simply raises the same arguments on these issues and concludes that the Court got it wrong in the first place. A motion for reconsideration, however, is not a vehicle to re-argue issues resolved by the court's decision. The Court denies the reconsideration motion as to those already-resolved issues that BCA improperly reargues on reconsideration. The Court sees no reason to repeat the prior rulings on those issues in this order, so nothing else will be discussed now on those issues. Next, the Court rejects, on both procedural and substantive grounds, BCA's argument that the Court violated the prohibition against one-way intervention by certifying a TCPA class after it granted summary judgment on Reyes's individual claim. In her opposition response to the reconsideration motion, Reyes argues that BCA has waived the one-way intervention doctrine argument because, among other reasons,2 BCA never raised the issue before, despite multiple chances to do so. Reyes also disagrees with the merits of BCA's argument, positing that, according to Eleventh Circuit precedent and other authorities, the Court has the discretion to rule on summary judgment before class certification. The Court finds that BCA has waived its one-way intervention doctrine argument because it was raised too late. Just like a movant cannot on reconsideration reargue already-resolved issues, a movant cannot on reconsideration make additional argument on matters not previously raised by counsel. And yet BCA improperly raised the one-way intervention doctrine for the first time in its motion for reconsideration of the class certification order, despite multiple earlier opportunities to highlight that argument. BCA also failed to raise the one-way intervention doctrine in the intervening weeks between the Court's order granting summary judgment in Reyes's favor on her individual claim (May 14, 2018) and its later order granting class certification. And this omission occurred even though BCA also moved for reconsideration of the summary judgment ruling. But, again, BCA did not mention in any way directly or indirectly, expressly or implicitly the one-way intervention doctrine. Indeed, BCA did not file anything before the class certification order was issued to alert the Court that the summary judgment order supposedly required a summary denial of the class certification motion. It was only after the Court ruled against BCA on summary judgment and class certification that BCA advanced for the first time its one-way intervention argument. The Court denies Defendants' Motion for Reconsideration. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y73rwlje from Leagle.com. Estrellita Reyes, on behalf of herself others similarly situated, Plaintiff, represented by Michael Lewis Greenwald -- mgreenwald@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC, Alex Kruzyk -- akruzyk@gdrlawfirm.com -- Robbins Geller Rudman and Dowd & Aaron D. Radbil -- aradbil@gdrlawfirm.com -- Greenwald Davidson Radbil PLLC. BCA Financial Services, Inc., Defendant, represented by Ernest Henry Kohlmyer, III -- SKohlmyer@Shepardfirm.co -- Shepard, Smith, Kohlmyer & Hand, P.A., Joseph Charles Proulx, Golden Scaz Gagain, Charles James McHale, Jr., Golden Scaz Gagain, PLLC, Dale Thomas Golden -- dgolden@gsgfirm.com -- Golden Scaz Gagain, PLLC, Mary Grace Dyleski, Shepard, Smith, Kohlmyer & Hand, P.A & Rachel Malkowski Ortiz, Shepard Smith Kohlmyer & Hand, P.A. BHP BILLITON: Bid to Drop Samarco Bondholders Suit Still Pending ---------------------------------------------------------------- A motion to dismiss the second amended complaint in a U.S. bondholders' class action lawsuit against BHP Billiton Limited, among other entities, remains pending, according to the Company's Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018. On November 14, 2016, a putative class action complaint (Complaint) was filed in the U.S. District Court for the Southern District of New York on behalf of all purchasers of Samarco's ten-year bond notes due 2022-2024 between October 31, 2012 and November 30, 2015 against Samarco and the former chief executive officer of Samarco. The Complaint asserts claims under the U.S. federal securities laws and indicates that the plaintiff will seek certification to proceed as a class action. On March 6, 2017, the Complaint was amended to include BHP Billiton Limited, BHP Billiton Plc, BHP Billiton Brasil Ltda and Vale S.A. and officers of Samarco, including four of Vale S.A. and BHP Billiton Brasil Ltda's nominees to the Samarco Board. On April 5, 2017, the plaintiff dismissed the claims against the individuals. The remaining corporate defendants filed a joint motion to dismiss the plaintiff's Complaint on June 26, 2017. On March 7, 2018, the District Court granted the defendants' motion to dismiss the Complaint; however, the District Court granted the plaintiff leave to file a second amended Complaint, which it did on March 21, 2018. On May 21, 2018, the defendants' moved to dismiss the Complaint. The defendants' motion is pending before the District Court. The Company said, "The amount of damages sought by the plaintiff on behalf of the putative class is unspecified. Given the preliminary status of this matter, it is not possible at this time to provide a range of possible outcomes or a reliable estimate of potential future exposures to BHP Billiton Limited, BHP Billiton Plc and BHP Billiton Brasil Ltda." BHP Billiton PLC is a global resources company. BHP BILLITON: Reaches Tentative Settlement of Shareholders Suit --------------------------------------------------------------- Parties in the U.S. shareholders class action complaint against BHP Billiton Limited has reached a US$50-million in-principle settlement of the lawsuit, according to the Company's Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018. In February 2016, a putative class action complaint was filed in the U.S. District Court for the Southern District of New York on behalf of purchasers of American Depositary Receipts of BHP Billiton Limited and BHP Billiton Plc between September 25, 2014 and November 30, 2015 against BHP Billiton Limited and BHP Billiton Plc and certain of its current and former executive officers and directors. The Complaint asserts claims under US federal securities laws and indicates that the plaintiff will seek certification to proceed as a class action. On October 14, 2016, the defendants moved to dismiss the Complaint. In a decision of the District Court dated August 28, 2017, the claims were dismissed in part, including the claims against the current and former executive officers and directors. On August 6, 2018, the parties reached an in-principle settlement agreement of US$50 million to resolve all claims with no admission of liability by the Defendants. The agreement is subject to Court approval. BHP expects to recover the majority of the settlement payment under its external insurance arrangements. BHP Billiton PLC is a global resources company. BHP BILLITON: Still Defends Shareholder Suits in Australia ---------------------------------------------------------- BHP Billiton Limited continues to face shareholder class action in Australia, according to the Company's Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2018. On May 31, 2018, a shareholder class action was filed in the Federal Court of Australia (Melbourne) against BHP Billiton Ltd on behalf of persons who, during the period from October 21, 2013 to November 9, 2015, acquired BHP Billiton Ltd shares on the Australian Securities Exchange or BHP Billiton Plc shares on the London Stock Exchange or Johannesburg Stock Exchange. On August 31, 2018 an additional shareholder class action that makes similar allegations was filed in the Federal Court of Australia against BHP Billiton Ltd on behalf of persons who, during the period from August 27, 2014 to November 9, 2015, entered into a contract to acquire BHP Billiton Ltd shares on the Australian Securities Exchange or BHP Billiton Plc shares on the London Stock Exchange or Johannesburg Stock Exchange. Orders have been made for the Court to consider how to manage the competing shareholder class actions on October 29, 2018. The amount of damages sought by the plaintiff on behalf of the class is unspecified. BHP Billiton PLC is a global resources company. BIG 5: Espinoza Seeks Unpaid Wage under Labor Code -------------------------------------------------- YERI ESPINOZA, an individual, on behalf of herself and all others similarly situated, the Plaintiff, vs. BIG 5 CORP., a Delaware corporation; and DOES l through 100, inclusive, the Defendants, Case No. RG18924341 (Cal. Super. ct., Oct. 12, 2018), alleges that the Defendants failed to compensate for all hours worked, failed to provide adequate rest periods, failed to provide meal periods, failed to provide wages and waiting-time penalties, failed to provide accurate wage statements, and failed to pay overtime premium pay, pursuant to the California Labor Code. Big 5 Corp. operates as a retailer of sporting goods in the western United States. It provides products in a traditional sporting goods store format.[BN] Attorneys for Plaintiff Stephen Frayne, Esq. Craig Nicholas, Esq. Shaun Markley, Esq. NICHOLAS & TOMASEVIC, LLP 3090 Glascock Street, Suite 101 Oakland, CA 9460 l Telephone: (510) 479-1081 Facsimile: (619) 325-0496 E-mail: sfravne@nicholaslaw.org cnicholas@nicholaslaw.org smarklev@nicholaslaw.org BMW: Settles Class Action Over Excessive Oil Consumption -------------------------------------------------------- David A. Wood, writing for CarComplaints.com, reports that a BMW excessive oil consumption class-action lawsuit settlement may help owners and lessees who complained about multiple oil changes and drained batteries. The BMW class-action lawsuit includes the following vehicles purchased or leased in the U.S. or Puerto Rico and equipped with N63 engines. -- 2009-2012 BMW 7 Series Sedan (Built from March 2009 to June 2012) -- 2010-2013 BMW 7 Series Active Hybrid (Built from April 2010 to June 2012) -- 2010-2012 BMW 5 Series Gran Turismo (Built from March 2009 to June 2012) -- 2010-2013 BMW 5 Series Sedan (Built from March 2009 to July 2013) -- 2011-2012 BMW 6 Series Convertible (Built from March 2011 to July 2012) -- 2011-2012 BMW 6 Series Coupe (Built from July 2011 to July 2012) -- 2010-2013 BMW X5 SAV (Built from March 2010 to June 2013) -- 2009-2014 BMW X6 SAV (Built from July 2008 to June 2014) -- 2009-2012 BMW X6 Active Hybrid SAV (Built from September 2009 to September 2011) The lawsuit, Bang v. BMW, alleges the vehicles consume excessive amounts of engine oil and require repeated oil changes, in addition to suffering from premature drained batteries and battery replacements. According to the terms of the class-action settlement, customers may be eligible for numerous benefits, if certain conditions are met. Reimbursement for Past Oil Changes A customer can be reimbursed for the cost (not to exceed $75 each) of up to 3 past oil changes if the repair invoices are provided and if the work occurred prior to 10 years/120,000 miles from the date the vehicle first entered service. In addition, the oil change must have taken place less than 12 months or 10,500 miles after the previous oil change. In place of that, owners can choose to receive one free future oil change instead of reimbursement for past oil changes. Affected BMW customers are also eligible to be reimbursed for the cost of up to seven quarts of oil that were purchased between oil changes, up to $10 per quart, but only under these conditions: 1. The oil must of been of the same type and grade specified for the vehicles in the owner's manual and supported with proof of purchase, repair order or service invoice. 2. In addition, at least one prior oil consumption complaint must have been made with BMW or a BMW dealer, and there must be proof of the complaint as evidenced by a repair order, customer service report or other written documentation. 3. Along with meeting all those conditions, the vehicles must have had less than 120,000 miles (or less than 10 years old) at the time the oil was purchased. An owner will need to show proof of that by providing the service records from before and/or after the oil was bought. Reimbursement for Towing/Rental/Roadside Assistance It's possible to receive reimbursement up to $50 for the cost one one towing, rental or roadside assistance service related to oil consumption or premature battery failure, but only if a customer can provide proof. The lawsuit settlement says the BMW vehicle must have been towed to a BMW dealer or a third-party repair center as evidenced by a repair or service order. And the invoice must say the reason was related to premature battery failure or oil consumption problems. Reimbursement for Past Replacement of a Battery that Was Less than 3 Years Old A BMW owner can receive reimbursement for the cost of one replacement 90 Ah or 105 Ah battery purchased prior to the mailing of the class-action lawsuit notice. But the customer must provide proof the discharged battery was less than 3 years old and the new replacement battery was purchased outside the 4-year/50,000 mile vehicle warranty. In order to obtain reimbursement for eligible past expenses, you must submit a claim form and include all of the documentation described above. N63 Customer Care Package BMW has already made available to current owners and lessees of the vehicles the "N63 Customer Care Package," described as BMW service bulletin SI B11 06 14. The N63 service is intended to get rid of or reduce excess engine oil consumption and premature battery failure, and the campaign is available regardless of the age or mileage of a vehicle. Each affected BMW vehicle is entitled to receive the N63 package only once, but vehicles that haven't received the service can still get the service performed at BMW dealers. Three Free Future Oil Changes Current owners or lessees will receive three future oil changes (up to $75 per oil change) performed at a BMW dealer during the earlier of 10 years or 120,000 miles from the in-service date of the vehicle. Oil Consumption Testing Under certain conditions such as the mileage of the vehicle, BMW will perform up to three oil consumption tests if the low oil level light illuminates before other warning indicators such as the "oil service" light. The settlement says the test will help determine if the BMW vehicle is consuming too much oil, and if the vehicle fails the oil consumption test, BMW will provide repairs up to the earlier of 10 years or 120,000 miles from the in-service date at the time of the failed test. BMW N63 Engine Replacement The affected vehicles may be eligible to receive one replacement engine which includes the cylinder heads during the earlier of 10 years or 120,000 miles from a vehicle's in-service date. However, there are numerous conditions that must be met for BMW to replace the engine. In addition, there is a good chance the car owner would still need to pay something for the new engine. According to the N63 settlement terms, the vehicle must have already went through the N63 customer care package and the vehicle must have failed two oil consumption tests. In addition to those conditions, BMW must have failed to completely resolve the excessive oil consumption problems after the second failed oil consumption test and second repair attempt. In addition to all those conditions, a BMW dealer would need to confirm there is still an oil consumption problem before the engine is replaced. After all that, a customer will likely still need to "contribute" to cover the cost of replacing the engine. For example, if a vehicle has 50,000 - 60,000 miles on it, an owner would need to pay 5 percent of the cost to replace the engine. If the car has 70,000 to 80,000 miles, the owner would need to pay 30 percent of the replacement cost of the engine. If a vehicle has 100,000 to 110,000 miles, the owner would need to pay 75 percent to replace the engine and BMW would cover 25 percent of the cost. Replacement Battery For a vehicle that can be retrofitted with a 105Ah battery, BMW will provide one new 105Ah battery to replace the 90Ah battery if the owner did not previously receive a replacement battery, and, thereafter, 105Ah replacement batteries at a BMW dealer, if the 105Ah battery fails within two years of installation (not due to customer negligence) as evidenced by a prior invoice for replacement of the battery. For a vehicle with a 90Ah battery that cannot accommodate the 105Ah battery, BMW will provide a current owner or lessee with 90Ah replacement batteries at a BMW dealer if any such battery fails within two years of installation (not due to customer negligence) as evidenced by a prior invoice for replacement of the battery. And BMW says it will not guarantee any repairs performed at third-party (non-BMW) repair shops. New Vehicle Credit Voucher Affected customers will also receive a voucher good for $1,500 towards the purchase or lease of a new BMW 6 or 7 Series vehicle or $1,000 towards the purchase or lease of any other new BMW vehicle. The voucher will be transferable to immediate family members and will be valid for one year from the date of the settlement. Attorneys for the plaintiffs have requested more than $3 million in fees and expenses. Affected BMW customers may call 877-832-4402 or visit BangClassSettlement.com. [GN] BNSF RAILWAY: WRG Workers' Asbestos Suit Remanded to State Court ---------------------------------------------------------------- The United States District Court for the District of Montana, Great Falls Division, issued an Order granting Plaintiffs' Motion to Remand the case captioned KOREY L. AARSTAD, et al., Plaintiffs, v. BNSF RAILWAY COMPANY, et al., Defendants. No. CV-17-72-GF-BMM-JTJ. (D. Mont.). Plaintiff Korey L. Aarstad, along with 191 other named plaintiffs sought an order remanding this case to state court on the basis that the case was improperly removed from Montana state court based on defendant John Swing's (Mr. Swing) Montana citizenship. WRG operated the mill until 1990. The Plaintiffs were all workers of WRG or Zolonite Company. As a result of toxic asbestos present in the vermiculite ore, thousands of residents of Libby have been diagnosed with mesothelioma, asbestosis, or other asbestos-related diseases over the course of several decades. Standard of Review A defendant may remove an action from state court to a federal court if the federal court would have possessed original subject matter jurisdiction over the matter. A federal court possesses original jurisdiction if the parties are completely diverse and the amount in controversy exceeds $75,000. Mass Action A mass action is a class action which can be removed to federal court if it meets the following elements: (1) numerosity: the action must involve the monetary claims of 100 plaintiffs or more; (2) amount in controversy: $5,000,000 or more in the aggregate excluding interests and costs (3) diversity: minimal diversity must be met, and; (4) commonality: plaintiffs' claims involve common questions of law and fact. Judge Johnston determined that this action constitutes a mass action. It is undisputed that this action sets out monetary claims of 100 or more plaintiffs and that the amount in controversy exceeds five million dollars exclusive of costs and interest. Judge Johnston also found that Plaintiffs' claims all involve common questions of law or fact. In the Complaint, every single Plaintiff alleges a negligence claim and a strict liability claim against BNSF, which shows a common question of law. Local Controversy Exception The Local Controversy Exception states that if two-thirds of the plaintiffs are citizens of the State in which the action was filed, the district court shall decline jurisdiction if: (1) at least one defendant from whom significant relief is sought and whose alleged conduct forms a significant basis for the claims asserted by the plaintiffs is a citizen of the State in which the action was originally filed, and the alleged conduct of that one defendant also occurred in the State, or (2) the primary defendants are citizens in the State in which the action was originally filed. Two-thirds requirement The Plaintiffs must show that at least two-thirds of the members of the class are citizens of the State in which the action was originally filed. The Court may look to extrinsic evidence to determine a party's citizenship. Judge Johnston found that Plaintiffs met their burden of proving citizenship from the affidavit provided by Plaintiffs that alleged that over two-thirds of the class members are Montana citizens. Local Controversy The Plaintiffs must demonstrate that at least one of the defendants, who is a citizen of Montana, is a defendant: (1) from whom significant relief is sought and (2) whose alleged conduct in Montana forms a significant basis for the claims asserted. Judge Johnston found, and it was not contested, that Mr. Swing is a Montana citizen for the purposes of the analysis. Judge Johnston determined that the Court is not permitted to assume that Mr. Swing is indigent and cannot satisfy Plaintiffs' claim of damages. Accordingly, Judge Johnston determined that Plaintiffs had met their burden to show that they are seeking significant relief from Mr. Swing. Judge Johnston acknowledged that the Complaint set forth allegations that distinguish Mr. Swing's individual wrongful acts from those of BNSF. Judge Johnston looked to the Complaint which alleges that Mr. Swing personally knew of the danger of asbestos and personally failed to warn the Plaintiffs. Accordingly, based on the allegations set forth in the Complaint, Judge Johnston found that Plaintiffs met their burden to show that their claims against Mr. Swing form a significant basis for the claims. Accordingly, the Plaintiffs' Motion to Remand is granted and this case is to be remanded to the Montana 8th Judicial Court, Cascade County. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/ya8jdwbu from Leagle.com. Korey L. Aarstad, et al., Scott A. Albert, Mark D. Anderson, David B. Anderson, Albert C. Anderson, Charles H. Ashley, Jr., John E. Bache, Cecil F. Bache, P.R. Glenda Larson, Linda J. Backen, Daniel P. Backen, Randall W. Baeth, Richard D. Barnett, Gerald L. Bass, Douglas K. Bibb, Donna M. Black, Jimmy R. Blixt, Shelley A. Boursaw, Rhonda R. Braaten, Glenn L. Bredeson, Darlene K. Brese, P.R. Jack Brese, Michael E. Brooks, Daniel W. Brossman, Hazel M. Brossman, Douglas L. Brown, Kirk C. Brus, Robbin R. Butkus, James E. Butler, Larry L. Calloway, Joseph G. Camp, Hermine M. Campbell, P.R. Joseph Campbell, James T. Carabin, Sr., John E. Carlock, Betsy E. Carpenter, Gordon V. Carr, Cheri L. Carr, Violet M. Carroll, Keith Cassel, David L. Chapel, Wendy D. Christensen, Brian L. Coldiron, Robert A. Coleman, Katherine M. Craigmile, Stuart G. Crismore, Kurt C. Croucher, Cymon A. Curtiss, Robert L. Day, Roxann L. Dentlinger, David L. Doney, Linda L. Dorrington, Todd A. Dotson, Kenneth L Drake, Sheri A Edwards, Robert C Engebretson, Kelly W Evans, Rhonda S Farnes, Debra J Ferch, Ronald A Foote, Alton O Fore, Ralph E Fox, Anita F Fund, PR - Alvin Funk, Dale L Ginger, Kristine A Godsey, Joseph A Gostnell, Rick L Gullingsrud, Wayne W Hartmann, Dianna L Haywood, Joel B Hefty, Jeanette H Hoffman, Cheri L Javorsky, Robert J Javorsky, Ramona J Jellesed, Jimmy D Johnson, Melody L Johnson, Orville D Johnson, PR - Brenda Neuman Brunscher, Darald E Kelley, Sandra S Kenelty, David A Kingery, Benjamin F Klin, Lynn M Koskela, Leonard H Koskela, Bradley L LaBelle, Lee S Lampton, Linda L Lampton, Sidney L Leir, David L Leim, Deborah K Loomis, Steven R Madison, Terry D Magone, Sandra J Maile, Linda A Masterson, David D McDonald, Roberta J McNulty, Margaret A Molinelli, Norma T Munro, Sharon L Munson, Sandra D Murch, Shayne A Nelson, Kevin R Neubauer, Shirley M Nixon, Scott N Noble, Paulette D Nosler, Patrick H O'Brien, Drilda J O'Brien, Mark D Olsen, Wade L Olson, John M O'Neill, Carl L Orsborn, Lyndeen J Osborne, Michael J Parker, Betty L Pennock, PR - Alfred Pennock, Greg W Phillips, Dale B Phillips, Wayne B Posselt, James M Powers, Sr., A. Tony Price, Dennis G Quinn, Daniel K Quinn, Allan V Randall, Alvin G Randall, Clayton R Rayson, Pat N Rayson, Steven J Richard, Roberts Joellen, Todd E Robins, Gerald D Robins, June J Roose, Valerie D Root, Claire C Rose, William R Rowberry, PR - Clarise Rowberry, Peggy S Ruff, Patrick H Ryan, Rebecca J Saller, Salvador F Saracino, Marvin C Sather, Kathleen E Scharen, Dietmar G Schauss, Harold L Schiele, Jeffrey M Shelton, Leonard K Shoemaker, Betty A Sikes, David W Skranak, Florence E Slater, Donald Ray Smith, PR - Calvin Smith, Brenda S Stamper, Terry L Steiger, PR Tami M. Steiger, Timber K Stevens, Ellis D Stewart, Glenn N Stubbs, Melvin G. Sundt, Thomas V Swearingen, Hugh E Swimley, Lee Ann Switzer, Daniel W Torgison, Betty R Van Alstine, G. Michael Van Alstine, Betty F Vinion, Julie A Volkenand, Lana M Walen, Debbra K Welcome, Peggy A Kelley, Steven R Magone, Greg McNulty, Rebecca N Messick, Jessie M Parker, Steven J Riddle, Mary A Stineback, Thomas D. Thompson, George L West, Sue C West, Edwin B Weston, PR Melba Weston, Sara A Whitehouse, Robert D Wilburn, Larry J Wiley, David M Williams, Clarence J Winn, Harold M Wise, Judy M Woller, Patrick J Youso, David J Zwang, Debra K Chamberlain, Michael D Chapman, Michael J Clairmont, Delbert L Collins, Wesley M Decker, Mark D Dodge, Suzanne Dodge, Clarence Hunter, Sammy L Knowles, Shirley Y Koskela, Carol A Lockwood & Grover W Lockwood, Plaintiffs, represented by Allan M. McGarvey , McGARVEY HEBERLING SULLIVAN & McGARVEY, John F. Lacey , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C., Roger M. Sullivan , McGARVEY HEBERLING SULLIVAN & McGARVEY, Dustin A. Leftridge , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. &Ethan A. Welder , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. 345 1st Ave E, Kalispell, MT 59901 Ruth A. Choate, Plaintiff, represented by Allan M. McGarvey , McGARVEY HEBERLING SULLIVAN & McGARVEY, Dustin A. Leftridge , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C., Ethan A. Welder , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. &John F. Lacey , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. BNSF Railway Company, a Delaware corporation & John Swing, Defendants, represented by Anthony Michael Nicastro -- nicastro@knightnicastro.com -- KNIGHT NICASTRO, LLC, Chad M. Knight -- knight@knightnicastro.com -- KNIGHT NICASTRO, LLC, Kathryn T. Alsobrook , KNIGHT NICASTRO, LLC, pro hac vice, Nadia A. Patrick -- npatrick@knightnicastro.com -- KNIGHT NICASTRO, LLC & Steven T. Williams -- williams@knightnicastro.com -- KNIGHT NICASTRO, LLC. Maryland Casualty Company, a Maryland Corporation & Robinson Insulation Company, a Montana Corporation for profit, Defendants, represented by Allan M. McGarvey , McGARVEY HEBERLING SULLIVAN & McGARVEY, Dustin A. Leftridge , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C., Ethan A. Welder , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C.,John F. Lacey , McGARVEY HEBERLING SULLIVAN & McGARVEY, P.C. & Roger M. Sullivan , McGARVEY HEBERLING SULLIVAN & McGARVEY. BURGER KING: Faces Arrington Suit over No-Poach Agreement --------------------------------------------------------- Jarvis Arrington, individually and on behalf of all others similarly situated, Plaintiff v. Burger King Worldwide, Inc.; and Burger King Corporation, Defendants, Case No. 1:18-cv-24128-JEM (S.D. Fla., Oct. 5, 2018) alleges violation of the Sherman Act. The Plaintiff alleges in the complaint that the Defendants incorporate an employee no-solicitation and no-hiring clause in the standard form franchise agreement to all Burger King franchisees. This no-solicitation and no-hiring agreement was an illegal contract, combination and conspiracy between and among the Defendants and Burger King franchisees. The "no-poach" agreement is a naked restraint of trade and a per se violation of the federal antitrust laws. Burger King Worldwide, Inc., through its subsidiaries, owns, operates, and franchises a chain of fast food hamburger restaurants under the Burger King brand in the United States and internationally. It offers flame-grilled hamburgers, chicken and other specialty sandwiches, French fries, soft drinks, and other food items. The company was founded in 2012 and is based in Miami, Florida. Burger King Worldwide, Inc. operates as a subsidiary of Restaurant Brands International Inc. [BN] The Plaintiff is represented by: Peter Prieto, Esq. John Gravante, Esq. Matthew P. Weinshal, Esq. Alissa Del Riego, Esq. PODHURST ORSECK, P.A. One S.E. Third Ave., Suite 2300 Miami, FL 33131 Telephone: (305) 358-2800 Facsimile: (305) 358-2382 E-mail: pprieto@podhurst.com jgravante@podhurst.com mweinshall@podhurst.com adelriego@podhurst.com - and - Joseph H. Meltzer, Esq. Kimberly A. Justice, Esq. Peter A. Muhic, Esq. Melissa L. Troutner, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: jmeltzer@ktmc.com kjustice@ktmc.com pmuhic@ktmc.com mtroutner@ktmc.com CALIFORNIA: Dismissal of Class Claims in Flores Suit Recommended ---------------------------------------------------------------- Magistrate Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California recommended that the Court grants the Plaintiffs' motion to dismiss the class allegations in the case, ROSENDA FLORES, et al., Plaintiffs, v. CITY OF CALIFORNIA CITY, et al., Defendants, Case No. 1:18-cv-00703 DAD JLT (E.D. Cal.). On July 18, 2017, officers received a report that Ciriaco Flores "racked" a shotgun in response to a juvenile near his home. The officers arrived at the home about 20 minutes after Flores "racked" the shotgun. Officer Whiting attempted to convince the residents to exit the home but, when they did not, he drew his weapon and demanded they comply. As Ciriaco Flores exited the home, the officers arrested him and placed him in handcuffs. The officers also placed Rosenda and Jesus Flores in handcuffs and, while they remained restrained, took statements from them. During this time, officers searched the home where they found a "broken .22 rifle." Afterward, Acting Chief of Police Frank Huizar assigned an inexperienced officer, Alwaw, to write the report. The officer wrote that there were only two more occupants in the home though there were four and failed to include that Rosenda and Jesus Flores were handcuffed while they gave their statements. Two of the other officers, Whiting and Guillen, did not write reports. Huizar approved Alwaw's report. The charges were later dismissed. The Plaintiffs claim that the Defendants seized them, arrested Ciriaco Flores and searched their home in violation of the Constitution. Upon these facts they allege causes of action for trespass, denial of equal protection and/or due process, for violation of the Fourth, Fifth, Eighth1 and Fourteenth Amendments, wrongful arrest and false imprisonment. They claim that this conduct resulted from a policy of the City of California City and that others, similarly situated, have suffered the same unlawful conduct. Thus, they seek to state a class action. Repeatedly in the complaint, the Plaintiffs refer to Frank Garcia Huizar in an inflammatory manner without providing factual support for the references. How these facts bear on the case at hand is not demonstrated and it appears they are included only for harassment purposes. After the hearing, the Plaintiffs moved the Court to strike the last sentence of paragraph 51 (which is the assertion that that the Defendant molested a child). Thus, the Magistrate Judge recommends that the matter related to Huizar's prior conviction, his prior firing and other inflammatory material, e.g., referring to him as "corrupt," implying he is a child molester, and that he unlawfully engineered the removal of the prior Chief of Police, be stricken. The Magistrate also finds that the allegations against the entity are insufficient. First, it is not clear whether the Plaintiffs contend there are official policies that caused their damages or if they contend there were widespread customs at issue. Second, there are insufficient facts to support that the "policy" related to poor report writing caused the constitutional violations at issue. Finally, there are no facts to support the claim of a policy of hiring "corrupt" police officers. Thus, she recommends that the motion to dismiss the complaint as to the Monell claim be granted with leave to amend. After the hearing, the Plaintiffs moved to dismiss the class allegations. Thus, the Magistrate recommends that the Court grants the motion and the class claims be dismissed. Because the complaint fails to allege sufficient factual support for the Monell and class claims and because it asserts material that is included only for harassment purposes, Magistrate Judge Thurston recommended that the Plaintiff's motion to dismiss the complaint be granted with leave to amend; and that the material as to Defendant Huizar's previous arrest and conviction and claims that he is a child molester, should be stricken. The Findings and Recommendation is submitted to the U.S. States District Court Judge assigned to the case. Within 14 days after being served with a copy of the Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections will be served and filed within seven days after service of the Objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. Section 636 (b)(1)(C). The Magistrate advised the parties that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. A full-text copy of the Court's Sept. 25, 2018 Findings & Recommendation is available at https://is.gd/b9NzCf from Leagle.com. Rosenda Flores, Juan Flores, Jesus Flores, Rosanna Flores & Ciriaco Flores, Plaintiffs, represented by Olaf Arthur Landsgaard -- Olaf@OlafLegal.com -- Law Offices Of Olaf Landsgaard. City of California City, Defendant, represented by Daniel J. Dubin, Manning & Kass Ellrod Ramirez Trester, LLP & Eugene P. Ramirez -- epr@manningllp.com -- Manning & Kass Ellrod Ramirez Trester LLP. Steven Whiting & Frank Garcia Huizar, Defendants, represented by Daniel J. Dubin, Manning & Kass Ellrod Ramirez Trester, LLP. CARNIVAL CORP: Cruise Line Receives Kickbacks, Wolfe Suit Claims ---------------------------------------------------------------- Carnival Corporation disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarterly period ended August 31, 2018, that the "Wolfe" complaint alleges that Carnival Cruise Line concealed that it received "kickbacks" on the sale of the travel insurance portion of the product from an underwriter. On August 24, 2018, a proposed class-action lawsuit was filed by James Wolfe and others against Carnival Corporation in the United States District Court for the Southern District of Florida relating to the marketing and sales of our Carnival Vacation Protection product. The plaintiffs purport to represent an alleged class of passengers who purchased the Carnival Vacation Protection product. The Company further said, "We believe we have meritorious defenses to the claim and that any liability which may arise as a result of this action will not have a material impact on our consolidated financial statements." Carnival Corporation operates as a leisure travel and cruise company. The Company offers cruises under the Carnival Cruise Line, Holland America Line, Princess Cruises, and Seabourn brands in North America; and AIDA, Costa, P&O Cruises (Australia), Cunard, and P&O Cruises (UK) brands in Europe, Australia, and Asia. The Company operates approximately 100 cruise ships and owns Holland America Princess Alaska Tours, a tour company in Alaska; and the Canadian Yukon, which owns and operates hotels, lodges, glass-domed railcars, and motor coaches. COBIZ FINANCIAL: Plaintiff Dismisses Class Action on BOK Merger --------------------------------------------------------------- The plaintiff in a class action lawsuit related to CoBiz Financial Inc.'s proposed merger with BOK Financial Corporation has agreed to drop the case, according to CoBiz Financial's Form 8-K filing with the U.S. Securities and Exchange Commission dated September 20, 2018. On August 30, 2018, a purported individual shareholder of CoBiz Financial Inc. filed a lawsuit in the District Court for the City and County of Denver, Colorado (the "Court"), under the caption Richard Scarantino v. CoBiz Financial Inc., et al., Case No. 2018CV33236 (the "Action"). The complaint, which was filed as a putative class action on behalf of the individual plaintiff and the public shareholders of CoBiz Financial, generally alleges that CoBiz Financial's directors breached their fiduciary duties to CoBiz Financial and its shareholders by agreeing to the proposed merger with BOK Financial Corporation ("BOK") and by failing to disclose to CoBiz Financial shareholders in the proxy statement/prospectus (the "Proxy Statement/Prospectus") certain information alleged to be material to the shareholders of CoBiz Financial concerning the proposed merger. The complaint also alleges that BOK aided and abetted those alleged fiduciary breaches. The complaint seeks, among other things, injunctive relief against consummation of the merger and additional, allegedly corrective disclosures as well as attorneys' and expert fees. Solely to avoid the costs, risks, nuisance and uncertainties inherent in litigation and to allow CoBiz Financial shareholders to vote on the proposals required in connection with the proposed merger with BOK at the special meeting of CoBiz Financial shareholders to be held on September 27, 2018 (the "Special Meeting"), CoBiz Financial supplements the disclosures contained in the Proxy Statement/Prospectus (the "Additional Disclosures"). The Additional Disclosures are set forth in the Company's 8-K filing should be read in conjunction with the Proxy Statement/Prospectus. A full-text copy of the Form 8-K is available at https://is.gd/N30DjX In light of the Additional Disclosures, plaintiff has agreed to dismiss the Action with prejudice as to his individual claims and without prejudice to the claims of the members of the putative class. In dismissing the Action, plaintiff has reserved the right to seek an award of attorneys' fees from the Court. The agreement to make the Additional Disclosures will not affect the merger consideration to be paid to CoBiz Financial shareholders or the timing of the Special Meeting. CoBiz Financial and the other defendants, including BOK, vigorously deny that the Proxy Statement/Prospectus is deficient in any respect and that the Additional Disclosures are material or required. CoBiz Financial and BOK believe that the claims asserted in the Action are without merit, and that the Additional Disclosures do not provide information required by the federal securities laws or that is material to the decision of the CoBiz Financial shareholders as to how to vote their shares at the Special Meeting. The Additional Disclosures are being made solely to eliminate the burden, expense, and nuisance of further litigation, and to avoid any possible delay to the closing of the merger that might arise from further litigation. Nothing in this document shall be deemed an admission of the legal necessity or materiality under any applicable laws for any of the disclosures set forth herein. CoBiz Financial Inc., a diversified financial services company, provides various financial products and services in the United States. It operates through Commercial Banking and Fee-Based Lines segments. The Company was formerly known as CoBiz Inc. and changed its name to CoBiz Financial Inc. in May 2007. CoBiz Financial Inc., was founded in 1980 and is headquartered in Denver, Colorado. CONNECTICUT: Class Action Mulled Over Garner Radon-Exposure ----------------------------------------------------------- Pat Eaton-Robb, writing for Associated Press, reports that guards and inmates at a Connecticut prison find themselves on the same side of a legal fight against the state, which they say did not do enough to prevent their exposure to radon. A federal judge last month ruled against the state's attempt to dismiss a lawsuit by 13 inmates inside the Garner Correctional Institution in Newtown. They allege Correction Department officials exposed them to high levels of the radioactive gas, creating unconstitutional and inhumane conditions of confinement inside the maximum-security prison. A separate lawsuit was filed in state court in August by 16 former guards and staff members, several of whom suffer from respiratory ailments. It asserts the staff should have been informed of the radon problem. "They told the current guards, but they didn't tell the retirees," said Lori Welch-Rubin, an attorney who finds herself in the unusual position of representing both prisoners and their former guards. "There was one gentleman who found out two years later that he had Stage 4 lung cancer and died four months after the diagnoses. Had he known to get tested, they could have caught it earlier and saved his life." Frank Crose, who served as warden between 1992 and 1996, became the lead plaintiff after being diagnosed with nodules on his lungs. Ms. Welch-Rubin alleges the state knew about the potential for problems with radon at Garner when it was opened in 1992 but did not begin testing until 2013, when it was requested by a teacher at the prison's school. The state has required radon testing at all schools since 2003, she said. Those tests found extremely high levels of radon inside the classrooms, which are on the second floor, she said. "We're talking about levels in some places that are equivalent to smoking 2 ½ packs of cigarettes a day," she said. "Not just being exposed to smoke, actually smoking 2 ½ packs a day." Connecticut Correction Department spokesman Andrius Banevicius said the state now routinely tests for radon in the prison and recently completed the installation of a radon mitigation system there. The state, he said, is reviewing the Sept. 27 decision by U.S. District Judge Janet Bond Arterton, which rejected the state's attempt to have the federal lawsuit dismissed based on claims of qualified and sovereign immunity. Welch-Rubin asserts the mitigation system doesn't cover all areas of the prison and used pipes that were too small to properly vent the gas, which is naturally occurring and seeps into the prison from the surrounding bedrock. She plans to seek class-action status for the lawsuit on behalf of all inmates who have been housed at Garner. After the 2013 testing, she said, current guards were told to get a baseline chest X-ray and file forms that would allow them to seek workers compensation if they develop health problems in the future. "They still haven't tested where the prisoners are," she said, "so we don't know if what they are now doing is even adequate." [GN] CONVERGYS: Files Supplemental Disclosures to Appease Merger Suits ----------------------------------------------------------------- In an effort to avoid the risk of litigation delaying or adversely affecting the its merger plan with SYNNEX Corporation, among other entities, Convergys Corporation has provided supplemental disclosures to its Definitive Proxy Statement by filing its Form 8-K filing with the U.S. Securities and Exchange Commission dated September 25, 2018. A full-text copy of the Form 10-K is available at https://bit.ly/2AsPKtu On June 28, 2018, Convergys Corporation, an Ohio corporation, entered into that certain Agreement and Plan of Merger, dated as of June 28, 2018, as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of August 22, 2018 (as it may be amended, modified or supplemented from time to time, the "Merger Agreement"), with SYNNEX Corporation, a Delaware corporation ("SYNNEX"), Delta Merger Sub I, Inc., a Delaware corporation and wholly owned subsidiary of SYNNEX ("Delta Merger Sub I") and Concentrix CVG Corporation, a Delaware corporation and a wholly owned subsidiary of SYNNEX ("Concentrix CVG Corporation"), pursuant to which Delta Merger Sub I, Inc. will be merged with and into Convergys, and Convergys will continue as the surviving corporation and a wholly owned subsidiary of SYNNEX, and, immediately thereafter, Convergys will be merged with and into Concentrix CVG Corporation, and Concentrix CVG Corporation will continue as the surviving company and a wholly owned subsidiary of SYNNEX (the "Mergers"). On August 28, 2018, the Company filed its Definitive Proxy Statement on Schedule 14A (the "Definitive Proxy Statement") to obtain shareholder approval for the transactions contemplated by the Merger Agreement. On September 10, 2018, after the filing of the Definitive Proxy Statement, two lawsuits were brought by and/or on behalf of Convergys shareholders (the "Actions"). The first action, a putative class action and derivative lawsuit (captioned Franchi v. Ayers, et al., Case No. A 1804876) (the "Franchi Action"), was filed in the Ohio Court of Common Pleas, Hamilton County against Convergys, individual members of the Convergys Board, SYNNEX, Delta Merger Sub I and Concentrix CVG Corporation, alleging breach of fiduciary duty in connection with the Mergers. The complaint filed in the Franchi Action alleges that the individual defendants breached their fiduciary duties by (i) conducting an unfair sales process that was not designed to maximize shareholder value and (ii) failing to disclose to shareholders all material information necessary to make an informed vote on the Mergers. The Franchi Action seeks, among other things, orders (i) enjoining the defendants from proceeding with or consummating the Mergers, (ii) rescinding the Mergers if consummated or, alternatively, awarding unspecified rescissory damages, (iii) directing the defendants to account for all damages suffered as a result of their wrongdoing, and (iv) awarding plaintiff's costs and attorneys' and expert fees. A copy of the complaint filed in the Franchi Action is attached as Exhibit 99.1 hereto and incorporated by reference herein. The second action, a putative class action lawsuit (captioned Zalvin v. Ayers, et al., Case No. A 1804888) (the "Zalvin Action"), was filed in the Ohio Court of Common Pleas, Hamilton County against Convergys and individual members of the Convergys Board, alleging breach of fiduciary duty in connection with the Mergers. The complaint filed in the Zalvin Action alleges that the individual defendants breached their fiduciary duties by (i) conducting an unfair sales process that was not designed to maximize shareholder value and (ii) failing to disclose to shareholders all material information necessary to make an informed vote on the Mergers. On September 20, 2018, plaintiff filed a motion for a preliminary injunction. The hearing on that motion is scheduled for September 26, 2018. The Zalvin Action seeks, among other things, orders (i) declaring that the Mergers were agreed to in breach of the defendants' fiduciary duties or that the defendants aided and abetted such breaches, (ii) declaring that the defendants breached their duty of a full and fair disclosure, (iii) enjoining the defendants from proceeding with or consummating the Mergers until the requested disclosures are made, (iv) awarding plaintiffs compensatory damages, and (v) awarding plaintiff's costs and attorneys' and expert fees. A copy of the complaint filed in the Zalvin Action is attached as Exhibit 99.2 hereto and incorporated by reference herein. The defendants believe that these Actions are without merit, and that no further disclosure is required under applicable law. Nonetheless, to avoid the risk of the litigation delaying or adversely affecting the Mergers, the defendants are making supplemental disclosures (the "litigation-related supplemental disclosures") related to the Mergers, as set forth herein. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the supplemental disclosures set forth herein. Convergys Corporation provides customer management services to communications and media, technology, financial services, retail, healthcare, government, travel and hospitality, and other vertical markets worldwide. The Company operates through 140 contact centers. Convergys Corporation was founded in 1998 and is headquartered in Cincinnati, Ohio. CSX TRANSPORTATION: More People Speak Out on Railway Underpass -------------------------------------------------------------- Nia Watson, writing for WMBF News, reports that as the city of Lumberton deals with another blow from mother nature, more people are speaking out after a class action lawsuit against CSX transportation claimed some of the flooding was preventable. The lawsuit claims the railroad company was aware that the underpass they own was a threat for major flooding in the area and CSX ignored it. Rick Foreman, the pastor of The West Lumberton Baptist Church, knows first-hand of the amount of damage the opening can cause. The church is located right in front of the CSX railway under I-95. Foreman said currently they're in the process of repairing the church for the second time in two years because of the flooding that comes through that gap. "It looks like a small opening. You wouldn't think that it causes all the damage that it causes, that water just comes through with so much force," Foreman said. Foreman said the church got its first taste of what the opening could cause during Hurricane Matthew in 2016. "It washed out all our foundations. It just caused a tremendous expense," Foreman said. The cost of damages was 1.3 million dollars Foreman continued. Now, most of the repair is swept away with the flood waters of Hurricane Florence rushing through the opening again. "It was all brand new just a little over a year ago and you can see the damage today for the force of that water," Foreman said. Foreman said during Matthew 700 people in West Lumberton were displaced. Now with Hurricane Florence, he said it's caused the same impact to the same people that haven't fully rebuilt their lives. "West and South Lumberton has many, many people who are living in poverty and it's just hard for them to bounce back," Foreman said. Knowing what the gap caused during Matthew, Foreman said local officials asked CSX permission to build a temporary berm but claim CSX denied the request, as Florence moved across the Carolinas. Governor Roy Cooper issued an emergency order go through with it At that point, everyone from the national guard to residents worked tirelessly to fill the gap as a desperate attempt to prevent the flooding. "Filling 5,000 sandbags, they brought in concrete barriers, they brought truck load after truck load of dirt," Foreman said. He admitted the temporary berm did serve its purpose to some extent, but agrees a permanent floodgate would have helped even more. "Matthew taught us a lot of lessons and a lot of us have learned a lot of things, but CSX railroad hasn't learned a lot of things because they knew… this time they knew," Foreman said. We did reach out to CSX. Through email, a spokesperson with the company sent the following: "While CSX does not comment on pending litigation, it is important to point out that Hurricane Florence was an extraordinary storm that brought record flooding and left many communities throughout the region devastated including Lumberton. CSX has extensive operations in the impacted communities where so many of our employees, customers, and suppliers call home. Our thoughts are with those impacted by Hurricane Florence and we remain fully committed to working with the City of Lumberton to implement a permanent solution." The church is not a part of the class action lawsuit, but Foreman said they are considering the option. [GN] CULPEPER, VA: Inks MOA with ICE Amid Class Action ------------------------------------------------- Fredericksburg.com reports that seventy-eight jurisdictions in 20 states, including Culpeper and Prince William counties in Virginia, have signed a Memorandum of Agreement with U.S. Immigration and Customs Enforcement. Based on Section 287(g) of the federal Immigration and Nationality Act, the MOA authorizes and trains local law enforcement to assist in "the identification, apprehension, detention, or removal of aliens not lawfully present in the United States" -- including the controversial practice of holding criminal aliens on detainers for up to 48 hours after their jail release dates. "If your poor decisions cause you to enter our jail, after already being an illegal guest in our community, then I cannot understand why you think you shouldn't be handed over to ICE through this new screening process we're about to implement," Culpeper Sheriff Scott Jenkins said shortly after signing the MOA in April. Jenkins responded to critics by noting that the 287(g) program only affects criminals in custody, adding that immigrants who obey the law have nothing to fear. The Falls Church-based Legal Aid Justice Center and Alexandria attorney Victor Glasberg filed a federal class action lawsuit against Jenkins on behalf of Francisco Guardado Rios, who was arrested in August 2017 for driving without a license and contributing to the delinquency of a minor, both misdemeanors under Virginia state law. After being denied bail and spending three months in custody, Mr. Guardado Rios was convicted in the Culpeper General District Court and sentenced to 30 days in jail, according to the lawsuit. Due to time already served, the judge ordered him to be immediately released, but Jenkins continued to hold him on an ICE detainer. The lawsuit claims that since immigration detainers are not signed by a judge, the sheriff had "no legal authority" for holding Mr. Guardado Rios -- and nearly 100 other criminal aliens held beyond their release dates -- based on a 2015 written opinion by Virginia Attorney General Mark Herring, which stated that "an ICE detainer is merely a request and does not either impose a mandatory obligation or grant legal authority for a law enforcement agency to maintain custody of an individual who is otherwise subject to immediate release." There's no good reason why convicted criminals should be held in jail even 48 hours past their release dates, which are known well in advance. Once ICE has been notified of the date by local officials, it's up to the federal agency to have personnel waiting to intercept them at the county jail and initiate deportation proceedings. Neither the lawsuit nor Herring's opinion argued that foreign nationals convicted of crimes while illegally present in the U.S. cannot or should not be deported. Crimes have consequences, and possible deportation is one of them. Although many people are convinced that ICE removals under the Trump administration have dramatically increased, that is not actually the case. "Overall, ICE monthly custodial arrests since President Trump assumed office are actually down slightly since October 2014 during the last month of Secure Communities under President Obama," according to Syracuse University's Transactional Records Access Clearinghouse on Immigration. Two-thirds (74 percent) of all immigrants arrested by ICE last year had past criminal convictions, with the most common offense being driving under the influence, according to the Pew Research Center. Another 16 percent had criminal charges pending, with just 11 percent having no known convictions or pending criminal charges. In addition, Pew reported that the number of non-criminal arrests has dropped precipitously from 182,031 in 2009, the year Obama took office, to 37,734 in 2017, indicating that ICE is doing a much better job of targeting and deporting criminals who have shown by their actions that they don't deserve to stay in the U.S. By identifying criminal aliens while they are still incarcerated in local jails, the 287(g) program helps ICE do exactly that. That said, a recent study of the 287(g)program in North Carolina, a non-border state like Virginia, by the libertarian CATO Institute found "no statistically significant impact of 287(g) program participation on either violent or property crime rates" and "no significant relationship between the number of 287(g) program deportations and the major index crime rates …. Combined, these results demonstrate that the 287(g) program did not reduce crime in North Carolina. "Given the prior justifications for 287(g) programs as a means to assist law enforcement to reduce violent crime, no statistical change in violent crime rates associated with 287(g) removals suggests that this goal was not achieved." Although the 287(g) program does not appear to reduce the overall level of crime where it is in effect, it does help ICE to remove convicted criminals who have already shown their contempt for state and local laws. And that's at least half of the battle. [GN] CVS RX: Summary Judgment Bid on PAGA Claim in Cabrera Granted ------------------------------------------------------------- In the case, SIGFREDO CABRERA, ENKO TELAHUN, and CHRISTINE McNEELY, on behalf of themselves and all others similarly situated, Plaintiffs, v. CVS RX SERVICES, INC., a New York corporation, CVS PHARMACY, INC., a Rhode Island corporation, GARFIELD BEACH CVS, LLC, a California limited liability company, and DOES 1 to 10 inclusive, Defendants, Case No. C 17-05803 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of Califoria granted the Defendants' motion for summary judgment on the Plaintiffs' PAGA claim. The Defendants provide pharmacy services and operate retail stores. CVS employed Plaintiff Telahun as a pharmacist and pharmacy manager between June 2013 and February 2017. CVS also employed Plaintiff Cabrera as a pharmacy tech trainee from January 2016 through January 2017. Cabrera initiated the action in August 2017 in state court. He amended the complaint in September 2017 to add Telahun as a Plaintiff and to include a claim pursuant to California's Private Attorneys General Act of 2004. In October 2017, CVS removed the action to the district court and later moved to compel the Plaintiffs to bring their claims in individual arbitration. In the face of CVS' motions to compel, the Plaintiffs moved for leave to file a second amended complaint. The proposed second amended complaint dropped all of Cabrera and Telahun's putative class claims (keeping only their PAGA claim) and added Christine McNeely as a Plaintiff and putative class representative with respect to the non-PAGA claims. A March 16 order granted the Plaintiffs' motion for leave to amend and granted in part CVS' motions to compel arbitration. In allowing the Plaintiffs to add McNeely as a class representative, the March 16 order held that CVS had failed to show that her addition to the case would be futile. The March 16 order also held that the question of whether McNeely opted out of CVS's arbitration policy should be decided by the Court, not the arbitrator. An order later granted CVS' unopposed motion to stay the proceedings as to Plaintiff McNeely pending resolution of CVS' appeal of these issues. The operative complaint alleges that CVS required the Plaintiffs to complete ongoing training sessions outside of working hours or during breaks without compensation and failed to reimburse the Plaintiffs for expenses incurred as a result of their employment. The Plaintiffs also allege that CVS had a policy and practice of instructing pharmacy employees to work off-the-clock and during meal and rest breaks to meet the demands of the pharmacy. CVS now moves for summary judgment on Cabrera and Telahun's PAGA claim for civil penalties. Judge Alsup finds that in seeking leave to amend the complaint, Cabrera and Telahun abandoned their individual claims under the Labor Code, explaining that they didn't want to go to individual arbitration. As their counsel represented at the hearing on the Plaintiffs' motion for leave to amend, the Plaintiffs gave up their individual rights for those individual damages. Upon the his further inquiry, the Judge finds that the Plaintiffs counsel also represented that the Plaintiffs were not going to re-file their dropped claims in another court. Cabrera and Telahun accordingly waived their individual claims under the Labor Code and lost standing to sue under PAGA. The Judge also finds that the Plaintiffs' remaining attempts to avoid summary judgment are similarly unavailing. First, they do not dispute that they received fair notice of CVS' affirmative defense that the Plaintiffs are not "aggrieved employees" with standing to sue under PAGA. Second, they request leave to substitute in another representative who has standing. The Plaintiffs ignore, however, that they have already been afforded two opportunities to add new representatives. For the foregoing reasons, Judge Alsup concluded the Plaintiffs Cabrera and Telahun lack standing to sue under PAGA. CVS' motion for summary judgment is accordingly granted. The only claims that remain in the action are those asserted by Plaintiff McNeeley, which claims remain stayed pending CVS' appeal of the March 16 order granting the Plaintiffs' motion for leave to amend and granting in part CVS' motions to compel arbitration. The Plaintiffs' discovery letter brief is accordingly denied without prejudice to renewal upon a lifting of the stay. The parties will please file a joint status report on the progress of the appeal by Nov. 20, 2018 at noon. A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/gMpepE from Leagle.com. Sigfredo Cabrera, as individuals, on behalf of themselves and all other similar persons similarly situated, Plaintiff, represented by R. Craig Clark -- cclark@clarklawyers.com -- Clark Law Firm, Walter Lewis Haines -- walter@whaines.com -- United Employees Law Group, P.C. & Monique R. Rodriguez -- mrodriguez@clarklawyers.com -- Clark Law Group. Enko Telahun & Christine McNeely, Plaintiffs, represented by R. Craig Clark, Clark Law Firm & Monique R. Rodriguez, Clark Law Group. CVS RX Services, Inc., a New York corporation, CVS Pharmacy, Inc., a Rhode Island Corporation & Garfield Beach CVS, LLC, a California limited liability company, Defendants, represented by Tyler Ryan Andrews -- andrewst@gtlaw.com -- Greenberg Traurig, Christiana Lynn Signs -- signsc@gtlaw.com -- GREENBERG TRAURIG & James Norman Boudreau -- boudreauj@gtlaw.com -- Greenberg Traurig, LLP, pro hac vice. DELEK: Faces Class Action in Haifa Court Over Vehicle Prices ------------------------------------------------------------ Efrat Neuman, writing for Haaretz, reports that a request to join a class-action suit was filed last month with the Haifa District Court against Israel's major car importers, alleging that they only show part of the price of vehicles they sell. The principle plaintiff, Itai Hoefler, claims he was looking for a new car and discovered that car importers display prices on their websites without all taxes and fees, thereby making it harder to make a fair price comparison. It states that in wake of his request, some companies (Delek, Carasso and Champion Motors), corrected their prices. The plaintiff cited the consumer protection law, which obliges sellers to present all payments for a property or service, including any taxes collected by the seller. The lawsuit seeks 3.6 million shekels ($1 million) in damages, based on an estimated 96,000 shekels per person for wasting half an hour of time. [GN] DENKA PERFORMANCE: Environmental Tort Suit Remanded to State Court ------------------------------------------------------------------ The United States District Court for the Eastern District of Louisiana issued an Order and Reasons granting Plaintiffs' Motion to Remand the case captioned LEATRICE W. ARLIE, ET AL., v. DENKA PERFORMANCE ELASTOMER LLC; E.I. DUPONT DE NEMOURS AND COMPANY; ET AL., SECTION "F". Civil Action No. 18-7017. (E.D. La.). Before the Court is the plaintiff's motion to remand on the ground that the District Court lacks subject matter jurisdiction. This environmental tort litigation arises from the production of neoprene, which allegedly exposes those living in the vicinity of the manufacturing plant to concentrated levels of chloroprene well above the upper limit of acceptable risk, resulting in a risk of cancer more than 800 times the national average. Once a case has been removed, the removing party bears the burden of proving that the court has jurisdiction to hear the case. Should there be any doubt as to the propriety of removal, it should be resolved in favor of remand. If the matter is removed based on diversity of citizenship, the amount in controversy must exceed $75,000.00, complete diversity must exist and none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. The plaintiffs move to remand the action to state court on the grounds that this Court lacks subject matter jurisdiction under 28 U.S.C. Section 1332(a). Specifically, the plaintiffs contend that because they filed with their petition a binding pre-removal stipulation which waives their rights to any damages in excess of $50,000.000, the amount in controversy will not exceed $75,000.00. Here, each plaintiff attached their stipulation to their state court petition and filed before the defendants filed their notice of removal. Thus, if the plaintiffs can establish to a legal certainty that total recovery for each individual is less than $75,000.00, the analysis ends, both for purposes of 28 U.S.C. Section 1332(a) and the mass action provisions of CAFA, and the case must be remanded. First, the Court considers whether the plaintiffs' claims are for monetary damages, injunctive relief, or both. In the prayer for relief, the plaintiffs request: (a) All damages as are just and reasonable under the circumstances, both physical and mental, including but not limited to, compensation for reasonable and justified fear of cancer due to chloroprene exposure, nuisance, and civil battery, not to exceed $50,000.00 per plaintiff, including all penalties and attorneys' fees, but exclusive of interest and costs; (b) Interest from the date of the judicial demand; and (c) The value of each Plaintiff's claims is equal to or less than $50,000.00, including all penalties and attorneys' fees, but exclusive of interest and costs. Plaintiffs and undersigned counsel stipulate that they will not amend these pleadings to seek greater than $50,000.00 per plaintiff, including all penalties and attorneys' fees, but exclusive of interest and costs. Plaintiffs and undersigned counsel further stipulate that they will renounce any right to enforce or collect any judgment for each Plaintiff over and above $50,000.00, including all penalties and attorneys' fees, but exclusive of interest and costs. The Court is satisfied that this stipulation is sufficiently broad in scope and binding on the plaintiffs, restricting each from collecting any judgment, inclusive of injunctive relief, that exceeds $50,000.00. Consequently, the Court finds that the plaintiffs have established to a legal certainly that the stipulation restricts recovery in excess of the jurisdictional $75,000.00 amount in controversy, both for purposes of 28 U.S.C. Section 1332(a) and the mass action provisions of CAFA. A full-text copy of the District Court's October 15, 2018 Order and Reasons is available at https://tinyurl.com/ybkf2wbx from Leagle.com. Helen J Schnyder, Kernell P Butler & Milton Wingate, Jr., Plaintiffs, represented by Cayce Christian Peterson -- cpeterson@thelambertfirm.com -- Lambert Firm, APLC, Darryl Jude Tschirn, Law Office of Darryl J. Tschirn, Hugh Palmer Lambert -- lambert@thelambertfirm.com -- Lambert Firm, APLC, John J. Cummings, III, Cummings & Cummings, PLC. Joseph M. Bruno, Bruno & Bruno, 855 Baronne StreetNew Orleans, LA 70113 & Sylvia Elaine Taylor, Law Office of Sylvia Taylor, L.L.C.. Antonio A. Tovar, Jr. & Jamal R Toney, Plaintiffs, represented by Randal Leroy Gaines, Randal L.Gaines Law Office, Cayce Christian Peterson, Lambert Firm, APLC, Darryl Jude Tschirn, Law Office of Darryl J. Tschirn, Hugh Palmer Lambert, Lambert Firm, APLC, Joseph M. Bruno, Bruno & Bruno & Sylvia Elaine Taylor, Law Office of Sylvia Taylor, L.L.C. Denka Performance Elastomer LLC, Defendant, represented by James Conner Percy -- jpercy@joneswalker.com -- Jones Walker, Justin J. Marocco -- jmarocco@joneswalker.com -- Jones Walker & Michael R. Rhea -- mrhea@joneswalker.com -- Jones Walker. Dow Chemical Company, DowDuPont Inc. & E.I. DuPont de Nemours and Company, Defendants, represented by Deborah DeRoche Kuchler, Kuchler Polk Weiner, LLC, Joshua Doguet, Kuchler Polk Weiner, LLC & Sarah E. Iiams, Kuchler Polk Schell Weiner & Richeson, L.L.C. DEUTSCHE BANK: Blackrock Advisors RMBS Suit in N.Y. Still Stayed ---------------------------------------------------------------- Discovery remains stayed in a class action filed in New York on behalf of private-label RMBS trusts against Deutsche Bank National Trust Company (DBNTC) and Deutsche Bank Trust Company Americas (DBTCA), according to GS Mortgage Securities Trust 2012-GCJ7's Form 10-D filing with the U.S. Securities and Exchange Commission for the monthly distribution period from August 11, 2018 to September 12, 2018. On June 18, 2014, a group of investors, including funds managed by Blackrock Advisors, LLC, PIMCO-Advisors, L.P., and others, filed a derivative action against DBNTC and DBTCA in New York State Supreme Court purportedly on behalf of and for the benefit of 544 private-label RMBS trusts asserting claims for alleged violations of the U.S. Trust Indenture Act of 1939 ("TIA"), breach of contract, breach of fiduciary duty and negligence based on DBNTC and DBTCA's alleged failure to perform their duties as trustees for the trusts. Plaintiffs subsequently dismissed their state court complaint and filed a derivative and class action complaint in the U.S. District Court for the Southern District of New York on behalf of and for the benefit of 564 private-label RMBS trusts, which substantially overlapped with the trusts at issue in the state court action. The complaint alleges that the trusts at issue have suffered total realized collateral losses of U.S. US$89.4 billion, but the complaint does not include a demand for money damages in a sum certain. DBNTC and DBTCA filed a motion to dismiss, and on January 19, 2016, the court partially granted the motion on procedural grounds: as to the 500 trusts that are governed by pooling and servicing agreements, the court declined to exercise jurisdiction. The court did not rule on substantive defenses asserted in the motion to dismiss. On March 22, 2016, plaintiffs filed an amended complaint in federal court. In the amended complaint, in connection with 62 trusts governed by indenture agreements, plaintiffs assert claims for breach of contract, violation of the TIA, breach of fiduciary duty, and breach of duty to avoid conflicts of interest. The amended complaint alleges that the trusts at issue have suffered total realized collateral losses of U.S. US$9.8 billion, but the complaint does not include a demand for money damages in a sum certain. On July 15, 2016, DBNTC and DBTCA filed a motion to dismiss the amended complaint. On January 23, 2017, the court granted in part and denied in part DBNTC and DBTCA's motion to dismiss. The court granted the motion to dismiss with respect to plaintiffs' conflict-of-interest claim, thereby dismissing it, and denied the motion to dismiss with respect to plaintiffs' breach of contract claim (with some exceptions) and claim for violation of the TIA, thereby allowing those claims to proceed. On January 26, 2017, the parties filed a joint stipulation and proposed order dismissing plaintiffs' claim for breach of fiduciary duty. On January 27, 2017, the court entered the parties' joint stipulation and ordered that plaintiffs' claim for breach of fiduciary duty be dismissed. On February 3, 2017, following a hearing concerning DBNTC and DBTCA's motion to dismiss on February 2, 2017, the court issued a short form order dismissing (i) plaintiffs' representation and warranty claims as to 21 trusts whose originators and/or sponsors had entered bankruptcy and the deadline for asserting claims against such originators and/or sponsors had passed as of 2009 and (ii) plaintiffs' claims to the extent they were premised upon any alleged pre-Event of Default duty to terminate servicers. On March 27, 2017, DBNTC and DBTCA filed an answer to the amended complaint. On April 6, 2018, the court entered the parties' joint stipulation to dismiss the claims of Sealink Funding Limited and ordered that Sealink's claims be dismissed with prejudice. On April 24, 2018, the court entered the parties' joint stipulation to dismiss the claims of Kore Advisors LP and ordered that Kore's claims be dismissed with prejudice. On January 26, 2018, Plaintiffs filed a motion for class certification. On August 7, 2018, the presiding magistrate judge issued a report and recommendation recommending that the court: (i) deny Plaintiffs' motion for class certification; (ii) dismiss Plaintiffs' TIA claims as to 39 trusts; and (iii) decline to extend jurisdiction over, and therefore dismiss without prejudice, Plaintiffs' remaining claims as to the same 39 trusts, which claims all arise under state law. On August 9, 2018, the court stayed all discovery pending the resolution of any FRCP 72 objections to the report and recommendation that Plaintiffs may file. DEUTSCHE BANK: Discovery Still Ongoing in BlackRock Suit in Calif. ------------------------------------------------------------------ Discovery is ongoing related to a request for voluntary dismissal with prejudice in a potential class action suit against Deutsche Bank National Trust Company (DBNTC) and Deutsche Bank Trust Company Americas (DBTCA) in California, according to GS Mortgage Securities Trust 2012-GCJ7's Form 10-D filing with the U.S. Securities and Exchange Commission for the monthly distribution period from August 11, 2018 to September 12, 2018. On March 25, 2016, the BlackRock plaintiffs filed a state court action against DBTCA in the Superior Court of California, Orange County with respect to 513 trusts. On May 18, 2016, plaintiffs filed an amended complaint with respect to 465 trusts, and included DBNTC as an additional defendant. The amended complaint asserts three causes of action: breach of contract; breach of fiduciary duty; and breach of the duty to avoid conflicts of interest. Plaintiffs purport to bring the action on behalf of themselves and all other current owners of certificates in the 465 trusts. The amended complaint alleges that the trusts at issue have suffered total realized collateral losses of U.S. US$75.7 billion, but does not include a demand for money damages in a sum certain. On August 22, 2016, DBNTC and DBTCA filed a demurrer as to Plaintiffs' breach of fiduciary duty cause of action and breach of the duty to avoid conflicts of interest cause of action and motion to strike as to Plaintiffs' breach of contract cause of action. On October 18, 2016, the court granted DBNTC and DBTCA's demurrer, providing Plaintiffs with thirty days' leave to amend, and denied DBNTC and DBTCA's motion to strike. Plaintiffs did not further amend their complaint and, on December 19, 2016, DBNTC and DBTCA filed an answer to the amended complaint. On January 17, 2018, Plaintiffs filed a motion for class certification. On May 30, 2018, the court denied that motion. On June 8, 2018, Plaintiffs filed a notice of appeal from the denial of that motion. On July 16, 2018, the court stayed all trial court proceedings during the pendency of Plaintiffs' appeal from the denial of class certification. On July 18, 2018, Plaintiffs filed a request for voluntary dismissal with prejudice as to all claims asserted by Sealink Funding Limited, Kore Advisors LP, and the Nationwide plaintiffs, as well as all claims asserted by the AEGON plaintiffs related to one trust. Discovery is ongoing. DEUTSCHE BANK: Royal Park's 2nd RMBS Lawsuit Remains Stayed ----------------------------------------------------------- The second RMBS lawsuit of Royal Park Investments SA/NV against Deutsche Bank National Trust Company (DBNTC) in New York is still stayed pending the resolution of Royal Park's underlying case, according to GS Mortgage Securities Trust 2012-GCJ7's Form 10-D filing with the U.S. Securities and Exchange Commission for the monthly distribution period from August 11, 2018 to September 12, 2018. On June 18, 2014, Royal Park Investments SA/NV filed a class and derivative action complaint on behalf of investors in ten RMBS trusts against DBNTC in the U.S. District Court for the Southern District of New York asserting claims for alleged violations of the TIA, breach of contract and breach of trust based on DBNTC's alleged failure to perform its duties as trustee for the trusts. Royal Park's complaint alleges that the total realized losses of the ten trusts amount to over U.S. US$3.1 billion, but does not allege damages in a sum certain. On February 3, 2016, the court granted in part and dismissed in part plaintiffs' claims: the court dismissed plaintiff's TIA claim and its derivative theory and denied DBNTC's motion to dismiss the breach of contract and breach of trust claims. On March 18, 2016 DBNTC filed an answer to the complaint. On May 26, 2016, Royal Park filed a motion for class certification. On March 21, 2017, the court denied Royal Park's motion for class certification, but granted Royal Park leave to renew its motion to propose a redefined class. On May 1, 2017, Royal Park filed a renewed motion for class certification. On March 29, 2018, the court denied Royal Park's motion for class certification with prejudice. On April 13, 2018, Royal Park filed a petition to the Second Circuit Court of Appeals seeking appellate review of the district court's denial of Royal Park's motion for class certification. On August 7, 2018, the Second Circuit Court of Appeals denied Royal Park's petition for appellate review. Discovery is ongoing. On August 4, 2017, Royal Park filed a separate, additional class action complaint against DBNTC in the U.S. District Court for the Southern District of New York asserting claims for breach of contract, unjust enrichment, conversion, breach of trust, equitable accounting and declaratory and injunctive relief arising out of the payment from trust funds of DBNTC's legal fees and expenses in the other, ongoing Royal Park litigation. On October 10, 2017, DBNTC filed a motion to dismiss Royal Park's separate, additional complaint. On August 13, 2018, the court issued an order: (i) staying Royal Park's separate, additional case until the resolution of Royal Park's underlying case; and (ii) denying DBNTC's motion to dismiss Royal Park's separate, additional complaint without prejudice to the motion's refiling once the stay is lifted. ELECTROLUX HOME: Court Allows Alternative Service in Rice Suit -------------------------------------------------------------- The United States District Court for the Middle District of Pennsylvania granted in part and denied in part Plaintiffs' Ex Parte Motion to Allow Alternative Service on Defendants Midea Microwave and Electrical Appliances Manufacturing Co., Ltd. and Sharp Appliances Thailand Limited Pursuant to Federal Rule of Civil Procedure 4(f)(3) in the case captioned ELAINE RICE, ALEX KUKICH, ERIKA MENDOZA, JAMES HUNT, and DEAN MAURO, Individually, and on behalf of all others similarly situated, Plaintiffs, v. ELECTROLUX HOME PRODUCTS, INC., SHARP MANUFACTURING COMPANY OF AMERICA, a division of SHARP ELECTRONICS CORPORATION; SHARP APPLIANCES THAILAND LIMITED; MIDEA AMERICA CORP.; MIDEA MICROWAVE AND ELECTRICAL APPLIANCES MANUFACTURING CO., LTD; LOWE'S HOME CENTERS, LLC; MODESTO DIRECT APPLIANCE, INC.; and ABC CORP. 1-10, Defendants. No. 4:15-CV-00371. (M.D. Pa.). The Plaintiffs are to serve the Amended Consolidated Class Action Complaint on Midea Microwave and Electrical Appliances Manufacturing, Company, Limited through the Central Authority of the People's Republic of China pursuant to Hague Conference on Private International Law and Federal Rule of Civil Procedure 4(h) and 4(f)(1). Service of the Amended Consolidated Class Action Complaint on Sharp Appliances Thailand Limited shall be effectuated by the Clerk pursuant to Rule 4(h) and 4(f)(2)(C)(ii), which requires mail that the clerk addresses and sends to the corporation and that requires a signed receipt at the following address: 64 MOO 5 Tambol Bansamuk, Amphur, BangPakong, Chachoengsao Province, Thailand. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/yb354m77 from Leagle.com. Elaine Rice, Individually, and on behalf of all others similarly situated, Plaintiff, represented by Charles J. Kocher, Saltz, Mongeluzzi, Barrett & Bendesky, P.C., pro hac vice, Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Jason S. Kilene -- jkilene@gustafsongluek.com -- Gustafson Gluek PLLC, pro hac vice, Joseph G. Price -- jprice@dlplaw.com -- Dougherty Leventhal & Price, LLP, Patrick Howard, Saltz, Mongeluzzi, Barrett & Bendesky, P.C., Sean P. McDonough, Dougherty, Leventhal & Price, L.L.P., Simon Bahne Paris, Saltz, Mongeluzzi, Barrett & Bendesky, P.C. & Raina C. Borrelli , Gustafson Gluek PLLC. Electrolux Home Products, Inc., Defendant, represented by Eric C. Rusnak -- eric.rusnak@klgates.com -- K&L Gates LLP, Caitlin Comstock Blanche -- caitlin.blanche@klgates.com -- K&L Gates LLP, David R. Fine -- david.fine@klgates.com -- K&L Gates LLP, pro hac vice, David R. Osipovich -- david.osipovich@klgates.com -- K&L Gates LLP, pro hac vice, Loly G. Tor -- loly.tor@klgates.com -- K&L Gates, LLP, pro hac vice, Michael S. Nelson -- michael.nelson@klgates.com -- K & L Gates, LLP, pro hac vice & Patrick J. Perrone -- patrick.perrone@klgates.com -- K&L Gates, LLP. Sharp Manufacturing Company of America, a Division of Sharp Electronics Corporation, Defendant, represented by Bridget E. Montgomery -- bmontgomery@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, Kelly Robreno Koster , Eckert Seamans Cherin & Mellott, LLC & Steven R. Kramer -- skramer@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC, pro hac vice. ESSENDANT INC: Faces Nguyen Suit over Staples Merger ---------------------------------------------------- LONG NGUYEN, individually and on behalf of all others similarly situated, Plaintiff v. v. ESSENDANT INC.; RICHARD D. PHILLIPS; CHARLES K. CROVITZ; DENNIS J. MARTIN; SUSAN J. RILEY; ALEXANDER M. SCHMELKIN; STUART A. TAYLOR, II; PAUL S. WILLIAMS, and ALEX D. ZOGHLIN, Defendants, Case No. 1:18-cv-01546-UNA (D. Del., Oct. 5, 2018) is an action against the Defendants for violations of the Securities Exchange Act of 1934, and to enjoin the expiration of a tender offer on a proposed transaction, pursuant to which Essendant will be acquired by Staples, Inc., through its direct wholly owned subsidiary Egg Merger Sub Inc. According to the complaint, on September 14, 2018, Essendant issued a press release announcing that it had entered into an Agreement and Plan of Merger (the "Merger Agreement") to sell Essendant to Staples. Under the terms of the Merger Agreement, Merger Sub commenced the Tender Offer to purchase all outstanding shares of Essendant for $12.80 in cash per share of Essendant's common stock (the "Offer Price"). The Proposed Transaction is valued at approximately $996 million including debt. Staples commenced the Tender Offer on September 24, 2018 and the Tender Offer is scheduled to expire one minute after 11:59 p.m., New York City time, on October 22, 2018. On September 24, 2018, Essendant filed a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Recommendation Statement") with the SEC. The Recommendation Statement, which recommends that Essendant stockholders tender their shares in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) the background leading to the Proposed Transaction; (ii) potential conflicts of interest faced by the Company's financial advisor, Citigroup Global Markets Inc. ("Citi") and Company insiders; and (iii) the data and inputs underlying the financial valuation analyses that support the fairness opinion provided by Citi as well as Essendant management's projections (the "Management Projections") relied upon by Citi in connection with its analyses. The failure to adequately disclose such material information constitutes a violation of the Exchange Act as Essendant stockholders need such information in order to make a fully informed decision whether to tender their shares in support of the Proposed Transaction or seek appraisal. The Proposed Transaction will unlawfully divest Essendant's public stockholders of the Company's valuable assets without fully disclosing all material information concerning the Proposed Transaction to Company stockholders. To remedy Defendants' Exchange Act violations, Plaintiff seeks to enjoin the expiration of the Tender Offer unless and until such problems are remedied. Essendant Inc. operates as a distributor of workplace items in the United States and internationally. It offers janitorial and sanitation supplies, breakroom items, foodservice consumables, safety and security items, and paper and packaging supplies. The company was formerly known as United Stationers Inc. and changed its name to Essendant Inc. in June 2015. Essendant Inc. was founded in 1922 and is headquartered in Deerfield, Illinois. [BN] The Plaintiff is represented by: Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE, LLC 901 N. Market St., Suite 1000 Wilmington, DE 19801 Telephone: (302) 778-4000 E-mail: rernst@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly K. Moran, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 - and - Melissa A. Fortunato, Esq. BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue, Suite 3040 New York, NY 10022 Telephone: (212) 308-5858 Facsimile: (212) 486-0462 E-mail: fortunato@bespc.com EVERETT FINANCIAL: Baretich Labor Suit Remanded to State Court -------------------------------------------------------------- Judge Michael M. Anello of the U.S. District Court for the Southern District of California remanded the case, RICHARD BARETICH, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. EVERETT FINANCIAL, INC. d/b/a SUPREME LENDING, a Texas Corporation, Defendant, Case No. 18cv1327-MMA (BGS) (S.D. Cal.), to the Superior Court of California, County of San Diego. The Plaintiff, a California resident, previously worked for the Defendant as a non-exempt employee in California from October 2016 through March 2017. On May 18, 2018, the Plaintiff filed the putative class action in San Diego Superior Court on behalf of himself and all other similarly situated California employees, alleging eight claims for relief: (1) failure to pay overtime wages; (2) failure to provide meal periods; (3) failure to provide rest periods; (4) failure to pay minimum wages; (5) failure to timely pay wages; (6) failure to provide complete and accurate wage statements; (7) failure to reimburse necessary business-related expenses and costs; and (8) unfair and unlawful business practices. The Plaintiff defines the proposed class as all current and former non-exempt employees who worked for any of the Defendants within the State of California at any time during the period from four years preceding the filing of the Complaint to final judgment. The Defendant removed the action to the Court on June 19, 2018 pursuant to the Class Action Fairness Act ("CAFA"). On July 19, 2018, the Plaintiff filed a motion to remand the action back to state court. The Defendant filed an opposition, to which the Plaintiff replied. The Court further permitted the Defendant to file a sur-reply, which it filed on Aug. 31, 2018. Judge Anello finds that there is no dispute that the action involves more than 100 employees, or that minimal diversity exists. The sole issue is whether the Defendant has shown by a preponderance of the evidence that the amount in controversy exceeds $5 million. He proceeds by analyzing the Defendant's burden in removing the action, and then addresses the amount in controversy with respect to the Plaintiff's claims for relief. He finds that finds that the Defendant has failed to carry its burden to demonstrate by a preponderance of the evidence that the amount in controversy exceeds $5 million. As such, the Court lacks subject matter jurisdiction and remand is proper. Finally, the Plaintiff seeks and award of attorneys' fees incurred in filing the instant motion because the Defendant lacked an objectively reasonable basis in removing the action pursuant to 28 U.S.C. Section 1447(c). Upon due consideration, the Judge finds that the Defendant did not lack an objectively reasonable basis for removing the case to federal court. Accordingly, he will deny the Plaintiff's request for attorneys' fees. Based on the foregoing, Judge Anello granted the Plaintiff's motion to remand, and remanded the action back to the state court. The Judge denied the Plaintiff's request for attorneys' fees. The Clerk of Court is instructed to terminate all pending motions, deadlines, and hearings. A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/DrpUWO from Leagle.com. Richard Baretich, Individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Douglas Han -- dhan@justicelawcorp.com -- Justice Law Corporation & Shunt Tatavos-Gharajeh -- statavos@justicelawcorp.com -- Justice Law Corporation. Everett Financial, Inc., doing business as, Supreme Lending, a Texas Corporation, Defendant, represented by Charles L. Post -- cpost@weintraub.com -- Weintraub Genshlea Chediak and Sproul, Katherine A. Collins -- kcollins@weintraub.com -- Weintraub Tobin Chediak Coleman Grodin & Ryan E. Abernethy -- rabernethy@weintraub.com -- Weintraub Tobin Chediak Coleman Grodin. FERRELLGAS PARTNERS: Appeal in N.Y. Class Action Still Pending -------------------------------------------------------------- Ferrellgas Partners, L.P. disclosed in its Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2018, that the parties are preparing appellate briefs related to the dismissed securities class action lawsuits in New York. The Company has been named, along with several current and former officers, in several class action lawsuits alleging violations of certain securities laws based on alleged materially false and misleading statements in certain of the Company's public disclosures. The lawsuits, the first of which was filed on October 6, 2016 in the Southern District of New York, seek unspecified compensatory damages. Derivative lawsuits with similar allegations have been filed naming Ferrellgas and several current and former officers and directors as defendants. On April 2, 2018, the securities class action lawsuits were dismissed with prejudice. On April 30, 2018, the plaintiffs filed a notice of appeal to the United States Court of Appeals for the Second Circuit and the parties are preparing appellate briefs. The Company said, "At this time the derivative lawsuits remain stayed by agreement. We believe that we have defenses and will vigorously defend these cases. We do not believe loss is probable or reasonably estimable at this time related to the putative class action lawsuits or the derivative actions." Ferrellgas Partners, L.P. distributes and sells propane and related equipment and supplies. The Company was founded in 1939 and is headquartered in Overland Park, Kansas. FERRELLGAS PARTNERS: Still Defends Class Action in Missouri ----------------------------------------------------------- Ferrellgas Partners, L.P. continues to face consolidated class action lawsuits in Missouri, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 31, 2018. The Company has been named as a defendant, along with a competitor, in putative class action lawsuits filed in multiple jurisdictions. The lawsuits, which were consolidated in the Western District of Missouri on October 16, 2014, allege that the Company and a competitor coordinated in 2008 to reduce the fill level in barbeque cylinders and combined to persuade a common customer to accept that fill reduction, resulting in increased cylinder costs to direct customers and end-user customers in violation of federal and certain state antitrust laws. The lawsuits seek treble damages, attorneys' fees, injunctive relief and costs on behalf of the putative class. These lawsuits have been consolidated into one case by a multidistrict litigation panel. The Federal Court for the Western District of Missouri initially dismissed all claims brought by direct and indirect customers other than state law claims of indirect customers under Wisconsin, Maine and Vermont law. The direct customer plaintiffs filed an appeal, which resulted in a reversal of the district court's dismissal. The Company filed a petition for a writ of certiorari which was denied. An appeal by the indirect customer plaintiffs resulted in the court appeals affirming the dismissal of the federal claims and remanding the case to the district court to decide whether to exercise supplemental jurisdiction over the remaining state law claims. The Company said, "We believe we have strong defenses to the claims and intend to vigorously defend against the consolidated case. We do not believe loss is probable or reasonably estimable at this time related to the putative class action lawsuit." Ferrellgas Partners, L.P. distributes and sells propane and related equipment and supplies. The Company was founded in 1939 and is headquartered in Overland Park, Kansas. FIVE GUYS: Court Conditionally Certifies Class in Finefrock Suit ---------------------------------------------------------------- In the case, JODY FINEFROCK and JULIA FRANCIS, individually and on behalf of a collective of others similarly-situated, Plaintiffs, v. FIVE GUYS OPERATIONS, LLC, Defendant, Civil No. 1:16-CV-1221 (M.D. Pa.), Judge Sylvia H. Rambo of the U.S. District Court for the Middle District of Pennsylvania granted the Plaintiffs' motion for conditional collective action certification under 29 U.S.C Section 216(b). Finefrock and Francis filed their amended complaint on Jan. 31, 2018, asserting claims individually and on behalf of a collective of others similarly situated. The single count amended complaint asserts violations of the Fair Labor Standards Act of 1938 ("FLSA"), as amended by the Equal Pay Act of 1963 ("EPA"), alleging that Five Guys discriminated against the Plaintiffs and the members of the collective action class by paying them less than similarly situated male employees who performed jobs which required equal skill, effort, and responsibility, and were performed under similar working conditions. Specifically, they assert that corporate-owned Five Guys restaurants maintain centralized control over its employees, including hiring and wage decisions, and utilizes a rigid top down, hierarchical corporate structure, which results in wage discrimination. From July 2012 through September 2015, Plaintiff Finefrock worked at various Five Guys corporate-owned locations. On Feb. 6, 2013, she became an Assistant General Manager earning an annual salary of $30,000. On Aug. 12, 2013, Plaintiff Finefrock was promoted to General Manager with an annual salary of $38,000 per year and transferred to the Haines Road Store in York, Pennsylvania. Around August 2014, she was given a raise to $38,950 per year and on Feb. 9, 2015, Plaintiff Finefrock was transferred to the High Point store in Harrisburg, Pennsylvania. Shortly thereafter, on June 26, 2015, Plaintiff Finefrock was placed on a Performance Improvement Plan. Five Guys terminated Plaintiff Finefrock's employment on Sept. 1, 2015, citing the cause as a failure to meet the requirements of her Performance Improvement Plan. Plaintiff Francis was working as a General Manager with an annual salary of $38,000 at the Jonestown franchise store when Five Guys reacquired it. She was hired by the corporate-owned store on May 15, 2012, in the same position and salary. In May 2014, Plaintiff Francis received a raise to $40,413. She was subsequently transferred to the High Point store in Harrisburg, Pennsylvania on Nov. 17, 2014. In February 2015, Plaintiff Francis voluntarily left employment with Five Guys. During the time Plaintiff Finefrock and Francis were employed by Five Guys, both learned that Brandon Ridgeway, a male Assistant General Manager that was promoted to General Manager, earned $35,000 and $42,000, respectively. The Plaintiffs also learned about a male General Manager named James Tyler (last name unknown) who reportedly earned between $41,000 and $42,000 according to Plaintiff Francis, and $55,000 according to Plaintiff Finefrock. Separately, Plaintiff Finefrock learned that Michael De Rosa, a male Assistant General Manager, was paid $35,000. The Plaintiffs initiated the lawsuit by filing a complaint on June 21, 2016, which Five Guys answered on Aug. 12, 2016. Contemporaneously to filing the answer, Five Guys also submitted a motion to dismiss arguing that the Plaintiffs failed to adequately plead that separate Five Guys restaurants are a single establishment for purposes of the Equal Pay Act, and that the Plaintiffs failed to name specific male comparators who allegedly received higher pay. On March 31, 2017, the Court denied the Defendant's motion, and the Defendant thereafter filed an amended answer. Following limited discovery, the Plaintiffs' filed their motion for conditional collective action certification and brief in support. Meanwhile, the Plaintiffs' filed an amended complaint on Jan. 31, 2018, which the Defendant answered on Feb. 14, 2018. Presently before the court is the Plaintiffs' motion for conditional collective action certification under 29 U.S.C Section 216(b). They move for conditional certification of a collective action for their EPA claim, request that the Court issues an order providing notice to the collective, and request that the Plaintiffs' counsel be appointed as the counsel for the conditionally certified collective. The Plaintiffs submitted depositions of Sara Ortiz, Five Guys' Vice President of Human Resources, Plaintiff Finefrock, and Plaintiff Francis; several versions of the Assistant General Manager and General Manager job descriptions; and multiple versions of the Five Guys' Employee Handbook. Ms. Ortiz testified that all Assistant General Managers, regardless of location, have the same job responsibilities, perform the same tasks, and require the same baseline qualifications. The same is true nationwide for the General Manager position. Judge Rambo finds that the information submitted by the Plaintiffs shows that Assistant General Managers and General Managers, respectively, had the same job descriptions and responsibilities, required the same baseline qualifications nationwide, and were paid less than some allegedly similarly situated males. Compensation decisions, although based initially on input from their District Managers, were finalized by a central, common office, i.e. Mr. Kozura, Vice President of Operations. Although the parties presented limited evidence of actual salaries, the information submitted shows that Plaintiffs Finefrock and Francis, at various times, earned less than their alleged male comparators. Because the focus of the inquiry at this conditional certification stage is not whether there was an actual violation of law, but rather whether the proposed Plaintiffs are similarly situated, the court finds that Plaintiffs have met their modest factual burden. Accordingly, the Judge will grant the Plaintiffs' motion and conditionally certify the collective. Regarding the Plaintiffs' request that the Court authorizes an opt-in notice to be sent to all the potential members of the EPA collective action, the Judge recognizes that by monitoring preparation and distribution of the notice, a court can ensure that the notice is timely, accurate, and informative, and can settle disputes about the notice's content before it is distributed. Thus, the parties will submit a joint proposed notice to the court for approval by Oct. 25, 2018. If they cannot agree on the notice language, they will submit an explanation of disputes and proposed alternative language by Oct. 25, 2018. Finally, the Judge will appoint the Plaintiffs' counsel -- George A. Hanson and Alexander T. Ricke of Stueve Siege Hanson, and Larry A. Weisberg and Derrek W. Cummings of McCarthy Weisberg Cummings, P.C. -- as the counsel for the conditionally certified collective. Accordingly, Judge Rambo granted the Plaintiffs' motion for conditional collective action certification, appointed the Plaintiffs' counsel to represent the conditionally certified class, and require a joint proposed notice to be submitted by Oc. 25, 2018. An appropriate order will be issued. A full-text copy of the Court's Sept. 25, 2018 Memorandum is available at https://is.gd/h1YSE4 from Leagle.com. Jody Finefrock, individually and on behalf of a collective of others similarly-situated & Julia Francis, individually and on behalf of a collective of others similarly-situated, Plaintiffs, represented by Derrek William Cummings -- dcummings@mwcfirm.com -- McCarthy Weisberg Cummings, P.C., Larry A. Weisberg -- lweisberg@mwcfirm.com -- McCarthy Weisberg Cummings, P.C., Alexander T. Ricke -- ricke@stuevesiegel.com -- Stueve Siegel Hanson LLP & George A. Hanson -- hanson@stuevesiegel.com -- Stueve Siegel Hanson LLP. Five Guys Operations, LLC, Defendant, represented by Emilie R. Hammerstein -- ehammerstein@littler.com -- Littler Mendelson, Sarah J. Miley -- smiley@littler.com -- Littler Mendelson, PC, pro hac vice & Theodore Allen Schroeder -- tschroeder@littler.com -- Littler Mendelson PC. FORSTER & GARBUS: Antonov Sues over Debt Collection Practices ------------------------------------------------------------- Fedor Antonov, individually and on behalf of all others similarly situated, Plaintiff v Forster & Garbus LLP, Defendant, Case No. 1:18-cv-05613-PKC-SMG (E.D.N.Y., Oct. 8, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Pamela K. Chen and referred to Magistrate Judge Steven M. Gold. Forster & Garbus LLP provides legal services. The Company specializes in collecting debts. [BN] The Plaintiff is represented by: Maxim Maximov, Esq. Maxim Maximov, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com FORT SMITH, AR: Recycling Cost Estimates Differ in Lawsuit ---------------------------------------------------------- John Lovett, writing for Times Record, reports that the amount Fort Smith Sanitation spent on recycling and garbage trucks over the course of 20 months is under contention in a class-action lawsuit filed last year. A difference of nearly $667,000 is at odds between an unofficial baseline amount the city has offered to its attorneys and the $1.2 million figure released on Oct. 12 by attorneys for plaintiff Jennifer Merriott. Attorneys W. Whitfield Hyman of Fort Smith and Monzer Mansour of Fayetteville filed a lawsuit last June on behalf of Merriott, who claims "misuse of public funds" by the city of Fort Smith when it made "indiscriminate and unnecessary" use of recycling trucks to dump most of the city's recyclables in the landfill between mid-October 2014 and May 2017 without the public's knowledge. Colby Roe of Daily & Woods in Fort Smith, the city's legal team, said the number that will be presented in a potential trial over the matter would be even less than the $571,777 figure the city has offered. The number is calculated using the city's average monthly cost for the recycling function at $17,868 multiplied by 32 months. In an email, Mr. Roe labeled the figure an "approximation of the costs to run the recycling trucks during the time period at issue in the lawsuit" and the number "has not been reduced by the costs of picking and transporting the residential recyclables to the landfill via the garbage trucks." The city's approximation "does not take into consideration the costs which the city would have incurred had it used the garbage trucks to pick up and transport the residential recyclables to the landfill," Mr. Roe noted in the same email. "They claim somebody had to pick up the recycling anyway and get rid of it," Hyman said. "Our witness says the total tonnage is of so low volume that it would have been absorbed by the trash collection, and people may have taken it upon themselves to find a recycling alternative." Both sides are still in discovery mode, but no depositions have yet been scheduled. Somewhat complicating the matter is a defamation and Whistleblower Act lawsuit by Mark Schlievert, the former Sanitation director, against Fort Smith City Administrator Carl Geffken and Deputy City Administrator Jeff Dingman. A Sebastian County Circuit judge recently denied Mr. Schlievert's request for a deposition by video with city attorneys in that case. Mr. Hyman said the plaintiff's estimate of more than $1,238,000 being spent by the city for the recycling program over 32 months was conducted by a certified forensic accountant. The differences between the plaintiff's analysis and the defendant's, Hyman states, include the city's claim of a 15 percent discount from residential curbside recycling workers who help out with trash collection. "They say 50 percent of curbside recycling labor is for yard waste, 35 percent is for recycling, and 15 percent is for trash," Mr. Hyman writes. "Why does that 15 percent only come out of recycling?" The plaintiff's number also includes temporary worker's pay, fringe benefits in the labor costs, usage costs for two vehicles -- 118 and 101 -- they claim the city hasn't put into the equation, and fuel costs that are about 13 cents a gallon cheaper than the plaintiff's. The city does not include costs for recycling containers or the container's depreciation or the salary of a supervisor, Hyman added. Other factors the plaintiff's attorney says are not being calculated by the city include "all work codes that made up the pay, only overtime and standard pay." "We include insurance and estimated tag costs for the vehicles, they did not," Mr. Hyman wrote. "Our estimates are very conservative based on the information we have. We are not overreaching in anyway." Hyman also said the plaintiff's figure discounts $131,223 in grants the city received to pay for recycling carts because they were not being used and because those costs were not paid for by the customers of the Fort Smith Sanitation Department. Sebastian County Judge Stephen Tabor issued an order in July granting plaintiff Merriott's motion to strike the city's defense of sovereign immunity. Tabor also denied the city's request in May to have the case dismissed. As previously reported by the Times Record, the city dumped recyclable materials from October 2014 until June 2017 and allowed residents to assume it was still being recycled. At first, the city took a portion of the collected materials to Green Source Recycling in Clarksville, but began dumping all of it in June 2016. From October 2014 to June 2016, 89 percent of the recyclable material was dumped in the landfill. [GN] FRED'S INC: 2 Suits Stayed Pending 11th Cir. Decision in "Taylor" ----------------------------------------------------------------- Fred's, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018, that the "Wallace" and "Williams" actions remain stayed until the U.S Court of Appeals for the 11th Circuit decides on the appeal in the "Taylor" lawsuit. On March 30, 2017, a lawsuit entitled Tiffany Taylor, individually and on behalf of others similarly situated, v. Fred's Inc. and Fred's Stores of Tennessee, Inc. was filed in the United Stated District Court for the Northern District of Alabama Southern Division. The complaint alleges that the Company wrongfully and willfully violated the Fair and Accurate Credit Transactions Act ("FACTA"). On April 11, 2017, a lawsuit entitled Melanie Wallace, Sascha Feliciano, and Heather Tyler, on behalf of themselves and all others similarly situated, v. Fred's Stores of Tennessee, Inc. was filed in the Superior Court of Fulton County in the state of Georgia. The complaint alleges that the Company wrongfully and willfully violated FACTA. On April 13, 2017, a lawsuit entitled Lillie Williams and Cussetta Journey, on behalf of themselves and all others similarly situated, v. Fred's Stores of Tennessee, Inc. was filed in the Superior Court of Fulton County in the state of Georgia. The complaint also alleges that the Company wrongfully and willfully violated FACTA. The complaints are filed as Class Actions, with the class being open for five (5) years before the date the complaint was filed. The complaint seeks statutory damages, attorney's fees, punitive damages, an injunctive order, and other such relief that the court may deem just and equitable. The Company filed a Motion to Dismiss the Taylor complaint, and this Motion has been granted by the Court. Plaintiff's counsel has appealed the Taylor complaint, which appeal is pending before the 11th Circuit Court of Appeals. The Company filed, and the Court granted Motions to Remove and Motions to Transfer the Williams and Wallace matters to the U.S. District Court for the Northern District of Alabama. Since the Williams and Wallace matters were removed and transferred to the U.S. District Court for the Northern District of Alabama, the Company has filed a Motion to Consolidate the Williams and Wallace matters. When the court granted the Company's motion to dismiss in the Taylor case, the court simultaneously denied the Motion to Consolidate, in light of the dismissal in Taylor. In the Wallace and Williams actions, the District Court entered an order staying both cases until the U.S Court of Appeals for the 11th Circuit decides on the appeal. The Company said, "Future costs and liabilities related to this case may have a material adverse effect on the Company; however, the Company has not made an accrual for future losses related to these claims as future losses are not considered probable and an estimate is unavailable." Fred's, Inc., together with its subsidiaries, sells general merchandise through its retail discount stores and full service pharmacies. The Company was founded in 1947 and is headquartered in Memphis, Tennessee. FRED'S INC: Class Status Bid Pending in Southern Independent Suit ----------------------------------------------------------------- A motion for class certification in a lawsuit initiated by Southern Independent Bank is currently pending before the U.S. District Court, Middle District of Alabama, according to the Form 10-Q of Fred's, Inc. filed with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018. On October 15, 2015, a lawsuit entitled Southern Independent Bank v. Fred's, Inc. was filed in the U.S. District Court, Middle District of Alabama. The complaint includes allegations made by the plaintiff on behalf of itself and financial institutions similarly situated ("alleged class of financial institutions") that the Company was negligent in failing to use reasonable care in obtaining, retaining, securing and deleting the personal and financial information of customers who use debit cards issued by the plaintiff and alleged class of financial institutions to make purchases at Fred's stores. The complaint also includes allegations that the Company made negligent misrepresentations that the Company possessed and maintained adequate data security measures and systems that were sufficient to protect the personal and financial information of shoppers using debit cards issued by the plaintiff and alleged class of financial institutions. The complaint seeks monetary damages and equitable relief to be proved at trial as well as attorneys' fees and costs. The Company has denied the allegations and has filed a motion to dismiss all claims. This motion has since been denied, and the Company filed a motion to reconsider by certifying the question to the Alabama Supreme Court for clarity. However, the Company's motion was denied, and the Company has now completed discovery and is moving to trial. A motion for class certification is currently pending before the U.S. District Court, Middle District of Alabama. The Company said, "Future costs or liabilities related to the incident may have a material adverse effect on the Company. The Company has not made an accrual for future losses related to these claims at this time as the future losses are not considered probable. The Company has a cyber liability policy with a US$10 million limit and US$100,000 deductible." Fred's, Inc., together with its subsidiaries, sells general merchandise through its retail discount stores and full service pharmacies. The Company was founded in 1947 and is headquartered in Memphis, Tennessee. FRED'S INC: Eddington Wage and Hour Class Lawsuit Still Ongoing --------------------------------------------------------------- Fred's, Inc. continues to defend itself against a class action suit over alleged violations of Federal and state wage and hours laws, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018. On March 3, 2018, a lawsuit entitled Abel Eddington and Judy Hudson, individually and on behalf of all others similarly situated, v. Fred's Inc., and Fred's Stores of Tennessee, Inc. was filed in the United States District Court Eastern District of Texas, Marshall Division. The complaint alleges that the Company committed various Federal and state wage and hours violations. The complaint is filed as Class Action and seeks back wages, attorneys' fees, and all other damages allowable by law. The Company denies these allegations and believes it acted appropriately in its wage and hour calculations and payments. Future costs and liabilities related to this case may have a material adverse effect on the Company; however, the Company has not made an accrual for future losses related to these claims as future losses are not considered probable, and an estimate is unavailable. The Company has multiple insurance policies which the Company believes will limit its potential exposure. Fred's, Inc., together with its subsidiaries, sells general merchandise through its retail discount stores and full service pharmacies. The Company was founded in 1947 and is headquartered in Memphis, Tennessee. FRED'S INC: Whitley Class Action Lawsuit in Ohio Still Ongoing -------------------------------------------------------------- Fred's, Inc. continue to face a class action lawsuit initially filed in Tennessee and is now proceeding in Ohio, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018. On March 16, 2018, a lawsuit entitled Roxie Whitley, individually and as next friend of Baby Z.B.D., and Chris and Diane Denson, individually and as next friends of Baby L.D.L., on behalf of themselves and all others similarly situated, v. Purdue Pharma L.P.; Purdue Pharma, Inc.; The Purdue Frederick Company, Inc.; McKesson Corporation; Cardinal Health, Inc.; AmeriSourceBergen Corporation; Teva Pharmaceutical Industries, Ltd.; Teva Pharmaceuticals USA, Inc.; Cephalon, Inc.; Johnson & Johnson; Janssen Pharmaceuticals, Inc.; Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Janssen Pharmaceuticals, Inc. n/k/a Janssen Pharmaceuticals, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals, Inc; Allergan PLC; Watson Pharmaceuticals, Inc. n/k/a Actavis, Inc.; Watson Laboratories, Inc.; Actavis LLC; Actavis Pharma, Inc. f/k/a Watson Pharma, Inc.; and Fred's Stores of Tennessee, Inc. was filed in the Circuit Court of Fayette County, Tennessee for the 25th Judicial District at Somerville. The complaint fails to allege any wrong-doing by the Company. The Complaint is filed as a class action seeking various remedies allowed under Federal and state laws. The Company denies any purported wrong-doing. On May 9, 2018, the Company filed a Motion to Dismiss for Lack of Standing, a Motion to Dismiss Plaintiff's Product Liability Causes of Action, a Motion to Dismiss for Statute of Limitations, and a Motion to Dismiss for Failure to State a Claim on which Relief may be Sought (collectively, the "May 9, 2018 Motions"). The Court has not ruled on the May 9, 2018 Motions. On May 9, 2018, this matter was transferred to the United States District Court for the Northern District of Ohio as part of the National Prescription Opiate Litigation Multidistrict Litigation. The Company said, "Future costs and liabilities related to this case may have a material adverse effect on the Company; however, the Company has not made an accrual for future losses related to these claims as future losses are not considered probable, and an estimate is unavailable. The Company has multiple insurance policies which the Company believes will limit its potential exposure." Fred's, Inc., together with its subsidiaries, sells general merchandise through its retail discount stores and full service pharmacies. The Company was founded in 1947 and is headquartered in Memphis, Tennessee. FRONTIER COMMUNICATIONS: Beets Sues over Internet & Phone Services ------------------------------------------------------------------ CARRI BEETS, individually and on behalf of all others similarly situated, Plaintiff v. FRONTIER COMMUNICATIONS CORPORATION, Defendant, Case No. 18STCV00005 (Cal. Super., Los Angeles Cty., Oct. 5, 2018) alleges that the Defendant represents through its written mailers that its lifeline internet services will be provided at a particular price when this is in fact false. In addition, the Defendant represents to its consumers that there will be no installation charges, activation fees or other miscellaneous fees other than the advertised price of its service plans when this is in fact false as well. The Defendant misrepresented and falsely advertised to the Plaintiff and others similarly situated consumers these lifeline home internet and phone service. The Defendants conceal the fact that its lifeline home internet and telephone services are not going to be provided at the advertised price, in order to deceive consumers into paying more than they agreed to for the same level of service. Frontier Communications Corporation provides communications services to consumer, commercial, and wholesale customers in the United States. The company was formerly known as Citizens Communications Company and changed its name to Frontier Communications Corporation in July 2008. Frontier was founded in 1927 and is based in Norwalk, Connecticut. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. Thomas 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 FUNKO INC: Court Denies Carl Berkelhammer's Lead Plaintiff Bid -------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order denying Carl Berkelhammer's Motion for Appointment as Lead Plaintiff and Approval of His Selection of Lead and Liaison Counsel in the captioned SATYANARAYANA KANUGONDA, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. FUNKO, INC., et al., Defendants. Case No. C18-812RSM. (W.D. Wash). The Plaintiff contends that Funko's Form S-1, filed with the Securities and Exchange Commission, contained untrue statements of fact and omissions with regards to Funko's profits and growth, insulation from adverse industry, sales, and earnings trends, and materially misleading statements regarding Funko's business, operations, and prospects. This is the second round of motions seeking appointment of a lead plaintiff in this putative securities fraud class action. On the same day that the Plaintiff filed this lawsuit, Mr. A. Parikh sought to be appointed as lead plaintiff. Legal Standard In securities class actions under the Private Securities Litigation Reform Act (PSLRA), the Court is to appoint a lead plaintiff who is intended to monitor, manage, and control the litigation and who owes a fiduciary duty to all members of the proposed class. Proper Notice Was Not Provided The Plaintiff's notice in this action was not sufficient to fulfill its statutory purpose of aiding identification of the most adequate plaintiff. As the Court noted in its prior order, the PSLRA's notice requirement is intended to broaden the number of potential plaintiffs seeking to be appointed lead plaintiff. The notice Movant relies upon in this action indicated that the Plaintiff's counsel had filed a class action lawsuit, but did nothing to identify that lawsuit and allow potential class members to consider whether to seek appointment as the lead plaintiff. Providing adequate notice is also important to the PSLRA's statutory scheme as qualified investors must decide whether to intervene or compete for lead plaintiff appointment and to negotiate attorney arrangements so that the class representative that emerges is the `most capable of adequately representing the interests of the class. The notice relied upon, however, gave no information that would assist potential class members in obtaining information about the case. Much like Haung, Haung v. Acterna Corp., 220 F.R.D. 255 (D. Md. 2004), the notice did not identify the action or what court it was filed in and directed potential class members to contact Plaintiff's counsel's firm for information on the class action. While the notice did alert the class that if you wish to serve as lead plaintiff, you must move the Court no later than August 27, 2018, it gave no indication that the action was pending before this Court. The notice directed the class to Plaintiff's counsel's website for information and that webpage also did not give an indication of what court the action was pending. The Plaintiff may republish notice of this action that complies sufficiently with the requirements of the PSLRA. Accordingly, the Court finds and orders the Motion and Memorandum of Law of Carl Berkelhammer for Appointment as Lead Plaintiff and Approval of His Selection of Lead and Liaison Counsel is denied. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y7smr6na from Leagle.com. Satyanarayana Kanugonda, individually and on behalf of all others similarly situated, Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- THE ROSEN LAW FIRM, PA, pro hac vice, Spencer Hall, Jr. -- shall@hallgeorge.com -- HALL & GEORGE PLLC & Colin M. George -- cgeorge@hallgeorge.com -- HALL & GEORGE PLLC. Funko, Inc, Brian Mariotti, Russell Nickel, Ken Brotman, Gino Dellomo, Charles Denson, Diane Irvine, Adam Kriger & Richard McNally, Defendants, represented by Benjamin Naftalis -- benjamin.naftalis@lw.com -- LATHAM & WATKINS, pro hac vice, Kevin M. McDonough -- kevin.mcdonough@lw.com -- LATHAM & WATKINS, pro hac vice,Stellman Keehnel -- stellman.keehnel@dlapiper.com -- DLA PIPER US LLP & David Ian Freeburg -- david.freeburg@dlapiper.com -- DLA PIPER US LLP. GENERAL INFORMATION: Court Dismisses Amended Morris FCRA Suit ------------------------------------------------------------- In the case, ANTOINETTE MORRIS, et al., Plaintiffs, v. GENERAL INFORMATION SERVICES, INC., et al., Defendants, Civil Action No. 3:17cv195 (E.D. Va.), Judge M. Hannah Lauck of the U.S. District Court for the Eastern District of Virginia, Richmond Division, granted USPS' Motion to Dismiss the Amended Complaint. The Plaintiffs each applied for positions with USPS in October 2014 and September 2015. As part of its hiring process, USPS conducts background checks on applicants. In order to gain authorization to procure a background check, USPS provides applicants with Form 2181-A, which the applicants sign and return. USPS provided both the Plaintiffs with Form 2181-A, which they signed and returned. Form 2181-A was the only document USPS provided to the Plaintiffs that pertained to criminal background checks. Shortly after the Plaintiffs applied for employment, USPS, through General Information Services, Inc. ("GIS"), procured background checks for each of them. The Plaintiffs bring the action on behalf of a proposed Class, defined as all natural persons residing in the United States (including all territories and other political subdivisions of the United States), who (1) applied for an employment position with USPS within the five years immediately preceding the filing of the Complaint in this matter, (2) who executed a form substantially similar to form 2181-A as part of the USPS application process and (3) on whom the USPS obtained a background report. The Plaintiffs filed their First Amended Complaint, on behalf of themselves and all others similarly situated, alleging that GIS (Count I) and USPS (Count II) willfully violated the FCRA by failing to provide a clear and conspicuous written disclosure in a document that consists solely of the disclosure to the Plaintiffs that a consumer report may be obtained about her [or him] for employment purposes and by thereby failing to obtain from the Plaintiffs a valid, written authorization to procure a consumer report for employment purposes, as required by 15 U.S.C. Section 1681 b(b)(2)(A). The Plaintiffs seek declaratory relief, statutory damages, punitive damages, and attorneys' fees, litigation expenses, and costs. On May 1, 2017, Plaintiffs voluntarily dismissed GIS as a defendant. Accordingly, only Count II of the Amended Complaint remains. USPS moved to dismiss Count II. USPS moves to dismiss the Plaintiffs' Amended Complaint, arguing that the Court lacks subject-matter jurisdiction because, inter alia, Plaintiffs lack standing. It contends that the Plaintiffs fail to establish a concrete injury in fact. The Plaintiffs assert that they have standing because they have suffered a concrete, in-fact injury that is directly traceable to USPS's conduct and that is likely to be redressed by a favorable decision. Judge Lauck finds that, as alleged, the Plaintiffs lack standing because they have failed to plead facts that can establish an injury in fact. The Plaintiffs do not plead facts supporting a reasonable inference that they suffered the type of harm Congress sought to prevent by requiring disclosure. They do not allege that they were deprived of any statutorily-required information. The only factual allegations Plaintiffs plead regarding Form 2181-A are the contents of the form itself, that the Plaintiffs signed it, and that USPS therefore ran background checks on them. They Plaintiffs have failed to allege that they were either unaware of the disclosure or uncertain of its meaning, which are among the harms Congress sought to prevent in passing Section 1681b(b)(2)(A). Accordingly, the Judge cannot find on the facts as pled that the Plaintiffs have alleged any real harm with an adverse effect flowing from the alleged violation. The Judge concludes that the Plaintiffs' spartan allegations as to the effects they experienced from USPS' failure to comply with the stand-alone disclosure requirement cannot establish standing. Therefore, she granted the Motion to Dismiss. However, in part because of the most recent enunciation of standing law in the Circuit, the Judge granted the Plaintiffs leave to amend their complaint. A full-text copy of the Court's Sept. 25, 2018 Memorandum Opinion is available at https://is.gd/JfxKUV from Leagle.com. Antoinette Morris & Jaylen Cotman, Plaintiffs, represented by Elizabeth W. Hanes -- elizabeth@clalegal.com -- Consumer Litigation Associates, Leonard Anthony Bennett -- lenbennett@clalegal.com -- Consumer Litigation Associates & Craig Carley Marchiando -- craig@clalegal.com -- Consumer Litigation Associates. United States Postal Service, Defendant, represented by Jonathan Holland Hambrick, Office of the U.S. Attorney & Jennifer Elle Flurry, United States Attorney's Office. GRETNA, LA: Nelson Class Certification Bid Dismissed ---------------------------------------------------- In the case, TAMARA G. NELSON and TIMOTHEA RICHARDSON, ET AL, v. MAYOR BELINDA CONSTANT, ET AL, SECTION "B" (1), Civil Action No. 17-14581 (E.D. La.), Judge Ivan L.R. Lemelle of the U.S. District Court for the Eastern District of Louisiana dismissed without prejudice the Plaintiffs' Motion to Certify Class. On Dec. 05, 2017, the Plaintiffs filed a class action complaint seeking to rectify due process and equal protection violations in the Mayor's Court of Gretna, Louisiana. Specifically, the Plaintiffs allege that the Mayor's Court is improperly operated by the Defendants as a source of income for the municipality. The fines and fees that are assessed by the Mayor's Court fund the City of Gretna, the Mayor's Court, and the salaries of police officers, prosecutors, and judges. The Defendants and other officials of the Mayor's Court, who none of is disinterested or neutral, are incentivized to maximize arrests and prosecutions. A disproportionate number of those arrested are African American citizens of Gretna. The Plaintiffs further allege that the Defendants target the poor through their Deferred Prosecution Program. The instant motion seeks to certify two classes of prospective Plaintiffs, Class A and Class B. The Class A, purportedly represented by Plaintiff Nelson, is comprised of aall persons with criminal prosecutions pending before the Gretna Mayor's Court who are awaiting trial of their criminal or traffic offenses. The Class B, purportedly represented by Plaintiff Richardson, is comprised of persons who in the past year were denied participation in, terminated from, or threatened with termination from the Deferred Prosecution Program due to their inability to pay program fees. On June 20, 2018, the Court held oral argument on the Motion. Since then, pursuant to an Order by the Court, the parties have completed limited discovery and submitted additional briefing on legal questions raised at oral argument, including but not limited to sub-classes, standing, applicability of Younger, and numerosity. Judge Lemelle dismissed without prejudice the Plaintiffs' Motion to Certify Class to give the parties additional time to conduct discovery and pursue, in good faith, an amicable resolution. It appears that the case has core issues that preclude certification of a class, including individualized calculations of a potential claimant's financial ability to pay associated costs for deferred prosecution and workable alternatives to same. Those and related issues should be collectively considered by all parties with assistance of counsel. To that end, the Judge directed the parties to jointly propose agreeable status conference dates to meet with the undersigned no later than Oct. 23, 2018. A full-text copy of the Court's Sept. 25, 2018 Opinion is available at https://is.gd/nehbs3 from Leagle.com. Tamara G Nelson, individually and on behalf of all other persons similarly situated & Timothea Richardson, individually and on behalf of all other persons similarly situated, Plaintiffs, represented by Eric A. Foley -- eric.foley@macarthurjustice.org -- Roderick and Solange MacArthur Justice Center, James William Craig -- jim.craig@macarthurjustice.org -- Roderick and Solange MacArthur Justice Center & Katharine Murphy Schwartzmann -- katie.schwartzmann@macarthurjustice.org -- Roderick and Solange MacArthur Justice Center. Walter J LeBlanc, in his official capacity as City Prosecutor for the City of Gretna, Gretna City, Belinda C Constant, in her official capacity as Mayor of the City of Gretna, Louisiana, Raymond A Osborn, Jr., in his official capacity as Magistrate of the Gretna Mayor's Court & Olden C Toups, Jr., in his official capacity as Magistrate of the Gretna Mayor's Court, Defendants, represented by E. John Litchfield, Berrigan & Litchfield, LLC & Michael J. Marsiglia, Berrigan & Litchfield, LLC. Terri Brossette, in her official capacities as Clerk of the Gretna Mayor's Court and Lieutenant of the Gretna Police Department & Arthur Lawson, Jr., in his official capacities as Chief of Police and Marshal, Defendants, represented by Leonard Louis Levenson -- info@levensonlaw.com -- Leonard L. Levenson & Associates, Christian Wayne Helmke, Leonard L. Levenson & Associates & Donna R. Barrios, Leonard L. Levenson & Associates. GUARANTY BANCORP: Files Supplemental Disclosures on Merger Accord ----------------------------------------------------------------- Guaranty Bancorp continues to defend itself against a securities class suit related to its proposed merger with Independent Bank Group, Inc., according to Guaranty's Form 8-K filing with the U.S. Securities and Exchange Commission dated September 14, 2018. A putative securities class action complaint was filed in the United States District Court for the District of Colorado on August 22, 2018, against Guaranty, the members of the Guaranty board of directors and Independent. The complaint alleged, among other things, that the defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as amended, and certain rules and regulations promulgated thereunder by not disclosing certain allegedly material facts in the Joint Proxy Statement/Prospectus. The Joint Proxy Statement/Prospectus dated as of August 15, 2018 (the "Joint Proxy Statement/Prospectus") was filed by Guaranty Bancorp ("Guaranty") and Independent Bank Group, Inc. ("Independent") with the Securities and Exchange Commission (the "SEC") on August 16, 2018, and mailed on or about August 17, 2018 to Guaranty stockholders of record as of the close of business on August 14, 2018 and to Independent shareholders of record as of the close of business on August 14, 2018 in connection with the previously announced proposed merger between Independent and Guaranty (the "Merger"). Guaranty believes that the claims asserted in the lawsuit are without merit. However, to avoid the risk that the lawsuit may delay or otherwise adversely affect the consummation of the Merger and to minimize the expense of defending the lawsuit Guaranty wishes to voluntarily make the supplemental disclosures related to the Merger. A full-text copy of the Form 8-K is available at https://is.gd/6zIVIg HACOR INC: Fails to Pay Proper Wages, Salazar Suit Alleges ---------------------------------------------------------- MIGUEL SALAZAR, individually and on behalf of all others similarly situated, Plaintiff v. HACOR, INC.; and DOES 1 through 100, inclusive, Case No. BC723638 (Cal. Super., Los Angeles Cty., Oct. 5, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Salazar was employed by the Defendants as non-exempt employee in California. HACOR Inc. produces and sells in-flight meals. The company was founded in 1983 and is based in Los Angeles, California. As of July 25, 2018, HACOR Inc. operates as a subsidiary of Ourhome Co. Ltd. [BN] The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. Melissa M. Kurata, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile: (310) 553-3603 HARVARD COLLECTION: Hanks Alleges Wrongful Debt Collections ----------------------------------------------------------- TEDRA HANKS, individually and on behalf of all others similarly situated, Plaintiff v. HARVARD COLLECTION SERVICES, INC.; PENDRICK CAPITAL PARTNERS II, LLC; and JOHN DOES 1-25, Defendants, Case No. 2:18-cv-00541-RGD-RJK (E.D. Va., Oct. 8, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Harvard Collection Services Inc was founded in 1982. The company's line of business includes collection and adjustment services on claims and other insurance related issues. [BN] The Plaintiff is represented by: Aryeh E. Stein, Esq. MERIDIAN LAW, LLC 600 Reisterstown Rd., Ste 700 Baltimore, MD 21208 Tel: (443) 326-6011 Fax: (410) 653-9061 E-mail: astein@meridianlawfirm.com - and - Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Tel: (201) 282-6500 Fax: (201) 282-6501 E-mail: ysaks@steinsakslegal.com IDT ENERGY: Faces Mackey and Hernandez Suit in N.D. Illinois ------------------------------------------------------------ A class action lawsuit has been filed against IDT Energy, Inc. The case is captioned as Scott Mackey, and Daniel Hernandez, individually and on behalf of all others similarly situated, Plaintiff v. IDT Energy, Inc., Case No. 1:18-cv-06756 (N.D. Ill., Oct. 5, 2018). The case is assigned to Honorable Elaine E. Bucklo. IDT Energy, Inc. operates as a retail energy provider. The company supplies electricity and natural gas to residents, and small and medium enterprises in New York, New Jersey, Pennsylvania, Maryland, Illinois, and Washington, D.C. It also provides home services, rewards, and green electricity supply. The company was founded in 2004 and is based in Newark, New Jersey. IDT Energy, Inc. operates as a subsidiary of Genie Energy Ltd. [BN] The Plaintiffs are represented by: Anthony Paronich, Esq. BRODERICK & PARONICH, P.C. 99 High St., Suite 304 Boston, MA 02360 Telephone: (508) 221-1510 E-mail: anthony@broderick-law.com - and - Alan W. Nicgorski, Esq. HANSEN REYNOLDS LLC 150 S. Wacker Drive, 24th Floor Chicago, IL 60606 Telephone: (312) 265-2253 E-mail: anicgorski@hansenreynolds.com - and - Michael C. Lueder, Esq. HANSEN REYNOLDS LLC 301 N. Broadway, Suite 400 Milwaukee, WI 53202 Telephone: (414) 255-3044 E-mail: mlueder@hansenreynolds.com INTUITIVE SURGICAL: Final Settlement Approval Hearing on Dec. 20 ---------------------------------------------------------------- Intuitive Surgical, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2018, for the quarterly period ended September 30, 2018, that a final approval hearing is set for December 20, 2018, in the case entitled, In re Intuitive Surgical Securities Litigation, No. 5:13-cv-1920. On April 26, 2013, a purported class action lawsuit entitled Abrams v. Intuitive Surgical, et al., No. 5-13-cv-1920, was filed against a number of the Company's current and former officers and directors in the U.S. District Court for the Northern District of California. On October 15, 2013, plaintiffs in the Abrams matter filed an amended complaint. The case has since been retitled In re Intuitive Surgical Securities Litigation, No. 5:13-cv-1920. The plaintiffs seek unspecified damages on behalf of a putative class of persons who purchased or otherwise acquired the Company's common stock between February 6, 2012, and July 18, 2013. The amended complaint alleges that the defendants violated federal securities laws by allegedly making false and misleading statements and omitting certain material facts in certain public statements and in the Company's filings with the SEC. On June 11, 2018, the Company reached an agreement in principle to enter into a settlement agreement which stipulates a payment of $42.5 million by the Company, subject to approval by the U.S. District Court for the Northern District of California. The agreement in principle is subject to certain conditions, including court approval of a final settlement agreement. Plaintiffs filed an unopposed motion for preliminary approval of the settlement on September 11, 2018. The court granted preliminary approval on October 4, 2018, and set a final approval hearing for December 20, 2018. Intuitive Surgical said, "There can be no assurance that the parties will enter into a final settlement agreement or that such agreement will be approved by the court. During the three and nine months ended September 30, 2018, the Company recorded a pre-tax charge of zero and $42.5 million, respectively, for this matter." Intuitive Surgical, Inc. designs, manufactures, and markets da Vinci surgical systems, and related instruments and accessories. Intuitive Surgical, Inc. markets its products directly and through distributors in the United States, Europe, Asia, and internationally. The company was founded in 1995 and is headquartered in Sunnyvale, California. J JILL INC: Still Defends Pension Trust Suit in Massachusetts ------------------------------------------------------------- J.Jill, Inc. continues to defend itself against an amended shareholder class action complaint captioned The Pension Trust v. J.Jill, Inc., et al., according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018. On October 13, 2017, a securities lawsuit was filed in the United States District Court for the District of Massachusetts against the Company, several members of our Board of Directors and our Chief Financial Officer, among others. The complaint was brought under the Securities Act of 1933 and sought certification of a class of plaintiffs comprised of all shareholders that acquired stock issued by the Company in its initial public offering in March 2017. The plaintiffs sought compensation for losses they incurred since purchasing the stock. Following the filing of this lawsuit, two additional, similar actions were brought in the same court. The three matters were eventually consolidated, and a lead plaintiff was appointed by the court. On March 9, 2018, an amended complaint captioned The Pension Trust v. J.Jill, Inc., et al. was filed. The Company filed a motion to dismiss on May 14, 2018, which was opposed by the plaintiffs on July 17, 2018. The Company said it believes the claims in the case are without merit and intends to defend the matter vigorously. No material amount has been accrued. J.Jill is a premier omnichannel retailer and nationally recognized women's apparel brand committed to delighting customers with great wear-now product. The brand represents an easy, relaxed, inspired style that reflects the confidence and comfort of a woman with a rich, full life. J.Jill provides guiding service through more than 270 stores nationwide and a robust e-commerce platform. J.Jill is headquartered outside Boston. JAMESPORT VINEYARDS: Wu Sues in Eastern District of New York ------------------------------------------------------------ A class action has been filed against Jamesport Vineyards Inc. The case is captioned as Kathy Wu, individually and on behalf of all others similarly situated, Plaintiff v. Jamesport Vineyards Inc., Case No. 1:18-cv-05602-ERK-RML (E.D.N.Y., Oct. 8, 2018). The lawsuit alleges violation of the American with Disabilities act. The case is assigned to Judge Edward R. Korman and referred to Magistrate Judge Robert M. Levy. Jamesport Vineyards Inc. is engaged in selling wines. [BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm, PC 175 Varick Street, 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: brad@markslawfirm.net K2M GROUP: Plaintiff in Brown Suit Drops Injunction Bid ------------------------------------------------------- K2M Group Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 22, 2018, 2018, that the plaintiff in Brown vs K2M Group Holdings, Inc. et al., has agreed to withdraw the motion for preliminary injunction seeking to enjoin the stockholder vote on the merger pending the publication of additional disclosures. K2M Group Holdings, Inc. made an announcement of Agreement and Plan of Merger, dated August 29, 2018, together with Stryker Corporation, a Michigan corporation ("Stryker"), Austin Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of Stryker ("Merger Sub), pursuant to which, on the terms and subject to the conditions set forth in the merger agreement, Merger Sub will merge with and into K2M, with Merger Sub ceasing to exist and K2M surviving as a direct or indirect wholly owned subsidiary of Stryker (the merger). On October 18, 2018, two purported class action lawsuits were filed on October 11, 2018, in the United States District Court for the District of Delaware, challenging the merger. These lawsuits, Brown vs K2M Group Holdings, Inc. et al., Case No. 1:18-cv-01567-UNA and Franchi vs K2M Group Holdings, Inc. et al., Case No. 1:18-cv-01568-UNA (the "Actions"), name K2M and individual officers and members of the K2M Board of Directors as defendants. The Actions allege, among other things, that the defendants failed to disclose certain information relating to K2M's financial projections set forth in the proxy statement filed with the SEC on October 5, 2018. On October 17, 2018, plaintiff in the Brown lawsuit filed a motion for a preliminary injunction seeking to enjoin the stockholder vote on the merger pending the disclosure of additional information. K2M believes that the Actions are without merit and that no further disclosure is required to supplement the proxy statement under applicable law; however, to eliminate the burden, expense, and uncertainties inherent in such litigation, and without admitting any liability or wrongdoing, K2M has agreed to make certain supplemental disclosures to the proxy statement as. Nothing in the supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of any of the disclosures set forth herein. The defendants have vigorously denied, and continue vigorously to deny, that they have committed any violation of law or engaged in any of the wrongful acts that were alleged in the Actions. In consideration for such supplemental disclosures by K2M, plaintiffs in the Actions have agreed to voluntarily dismiss the Actions, and plaintiff in the Brown lawsuit has agreed to withdraw the motion for a preliminary injunction seeking to enjoin the stockholder vote on the merger pending the publication of additional disclosures. A copy of the supplemental disclosure is available at https://goo.gl/KSfcAx. K2M Group Holdings, Inc., a medical device company, provides spine and minimally invasive solutions in the United States and internationally. The company offers implants, disposables, and instruments primarily to hospitals for use by spine surgeons to treat spinal pathologies, such as deformity, trauma, and tumor. The company was founded in 2004 and is headquartered in Leesburg, Virginia. KEYS PRODUCTIONS: Fails to Pay OT to Dancers, Lasoyti Suit Claims ----------------------------------------------------------------- LARISA LASOYTI, individually and on behalf of all others similarly situated, Plaintiff v. KEYS PRODUCTIONS, INC. D/B/A RED GARTER SALOON, Defendant, Case No. 4:18-cv-10198-JLK (S.D. Fla., Oct. 5, 2018) is an action against the Defendant to recover overtime and minimum wages under the Fair Labor Standards Act. The Plaintiff Lasoyti was employed by the Defendant as dancer. Keys Productions, Inc. d/b/a Red Garter Saloon is a Florida corporation operating an adult entertainment club in Monroe, Florida. [BN] The Plaintiff is represented by: Christopher J. Saba, Essq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: csaba@wfclaw.com KIMBERLY CLARK: Still Defends Bahamas Surgery Center's Suit ----------------------------------------------------------- Kimberly-Clark Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 22, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself from a class action suit entitled, Bahamas Surgery Center v. Kimberly-Clark Corporation, et al. Kimberly-Clark said, "We are party to certain legal proceedings relating to our former healthcare business, Avanos Medical, Inc. ("Avanos", previously Halyard Health, Inc.), as described in our Form 10-K for the year ended December 31, 2017." During the first quarter of 2018, in the California consumer class action Bahamas Surgery Center v. Kimberly-Clark Corporation, et al., the Court reduced the punitive damages award against Kimberly- Clark from $350 to approximately $19. As a result, the total compensatory and punitive damages plus pre-judgment interest awarded against Kimberly-Clark is approximately $25. Kimberly-Clark said, "We intend to continue our vigorous defense of the Bahamas matter." Kimberly-Clark Corporation, together with its subsidiaries, manufactures and markets personal care, consumer tissue, and professional products worldwide. It operates through three segments: Personal Care, Consumer Tissue, and K-C Professional. Kimberly-Clark Corporation was founded in 1872 and is headquartered in Dallas, Texas. LEVEL 3 COMMUNICATIONS: Fails to Pay Proper Wages, Autrey Alleges ----------------------------------------------------------------- KURT AUTREY, individually and on behalf of all others similarly situated, Plaintiff v. LEVEL 3 COMMUNICATIONS, LLC; and DOES 1 THROUGH 50, INCLUSIVE, Defendants, Case No. 18CV335899 (Cal. Super., Santa Clara Cty., Oct. 5, 2018) is an action against the Defendants for failure to provide accurate wages itemized statements. Level 3 Communications, LLC provides switched access services. Its services include local switching, local transport, and carrier common line. The company was founded in 1997 and is based in Broomfield, Colorado. Level 3 Communications, LLC operates as a subsidiary of Level 3 Parent, LLC. [BN] The Plaintiff is represented by: Larry W. Lee, Esq. Kristen M. Agnew, Esq. Nicholas Rosenthal, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com kagnew@diversitylaw.com nrosenthal@diversitylaw.com - and - William L. Marder, Esq. POLARIS LAW GROUP, LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 E-mail: bill@polarislawgroup.com - and - Dennis S. Hyun, Esq, HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 LG ELECTRONICS: Fridge Compressors Defective, Jackson et al. Say ----------------------------------------------------------------- KEVIN JACKSON; JANET EICHENLAUB; DAVID LAW; LINDA DECKER; and EMILY MANN, individually and on behalf of all others similarly situated, Plaintiffs v. LG ELECTRONICS USA, INC., Defendant, Case No. 1:18-cv-06746 (N.D. Ill., Oct. 5, 2018) is an action against the Defendant for selling refrigerators with a faulty or defective compressors. The Plaintiffs allege in the complaint that the Defendant design, manufacture, market, and sale refrigerators with a faulty design or manufacturing process that results in defective compressors (the "Compressor Defect"). The Compressor Defect occurs in refrigerators designed, manufactured, marketed, and sold by LG ("Class Refrigerators"). The Compressor Defect prevents the refrigerators from cooling consumers' food and beverages, ultimately causing the food and beverages to spoil and rendering the refrigerators unusable for their intended purpose. The Compressor Defect usually manifests shortly after purchase and well before the end of the anticipated useful life of the Class Refrigerators. LG Electronics U.S.A., Inc. manufactures and sells home appliances, entertainment products, mobile communications products, and business solutions in the United States. LG Electronics U.S.A., Inc. operates as a subsidiary of LG Electronics Inc. [BN] The Plaintiffs are represented by: Katrina Carroll, Esq. Kyle A. Shamberg, Esq. LITE DEPALMA GREENBERG LLC 111 W. Washington Street, Suite 1240 Chicago, IL 60602 Telephone (312) 750-1265 Facsimile: (973) 623-0858 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com - and - Bruce D. Greenberg, Esq. Susana Cruz Hodge, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 E-mail: bgreenberg@litedepalma.com scruzhodge@litedepalma.com Joseph G. Sauder - and - Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 555 Lancaster Avenue Berwyn, PA 19312 Telephone: (610) 200-0580 Facsimile: (610)727-4360 E-Mail: jgs@sstriallawyers.com mds@sstriallawyers.com jbk@sstriallawyers.com MAB COMMUNITY: Underpays House Managers, Duncan Suit Alleges ------------------------------------------------------------ HOLLIE DUNCAN, individually and on behalf of all others similarly situated, Plaintiff v. MAB COMMUNITY SERVICES, INC.; MICHAEL O'FRIEL & GEORGE HERTZ, Defendants, Case No. 18-3129F (Mass. Super., Suffolk Cty., Oct. 5, 2018) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Duncan was employed by the Defendants as house manager. MAB Community Services, Inc. was founded as the Massachusetts Association for the Blind, and is the oldest social service agency in the country providing services to individuals who are blind or visually impaired. [BN] The Plaintiff is represented by: Adam J. Shafran, Esq. Nicholas J. Schneider, Esq. RUDOLPH FRIEDMANN LLP 92 State Street Boston, MA 02109 Telephone: (617) 723-7700 Facsimile: (617) 227-0313 E-mail: ashafran@rflawyers.com nschneider@rflawyers.com MAGNANINI FARM: Faces Wu Suit in Southern District of New York -------------------------------------------------------------- Kathy Wu, individually and on behalf of all other persons similarly situated, Plaintiff v. Magnanini Farm Winery, Inc., Case No. 1:18-cv-09189-VSB (S.D.N.Y., Oct. 7, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Vernon S. Broderick. Magnanini Farm Winery, Inc. produces and sells wines. The Company is also engaged in the restaurant business. [BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM PC 175 Varick Street 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: bmarkslaw@gmail.com MARVEL & MALONEY: Steinberg Alleges Wrongful Debt Collection ------------------------------------------------------------ SONIA STEINBERG, Executor to the Estate of GARY STEINBERG, individually and on behalf of all others similarly situated, Plaintiff v. MARVEL & MALONEY, Defendant, Case No. 3:18-cv-14660-BRM-DEA (D.N.J., Oct. 5, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Brian R. Martinotti and referred to Magistrate Judge Douglas E. Arpert. Marvel & Maloney is a law firm in Neptune, NJ. [BN] The Plaintiff is represented by: Ari Hillel Marcus, Esq. MARCUS ZELMAN LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail:ari@marcuszelman.com - and - Yitzchak Zelman, Esq. MARCUS ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (347) 526-4093 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com MCGOWEN ENTERPRISES: Leary Class Settlement Has Final Approval -------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum granting Parties' Motion for Final Approval of Settlement Agreement in the case captioned ALISON LEARY & TIMOTHY LEARY, Individually and on behalf of all others similarlysituated, Plaintiffs, v. McGOWEN ENTERPRISES, INC., Defendant. Civil Action No. 17-2070. (E.D. Pa.) Alison and Timothy Leary argue that McGowen Enterprises included an illegal tying provision in a warranty that the Learys received when they purchased a vehicle from CarSense, a car dealership which was owned by McGowen at the time. They claim that the warranty required the Learys to use a certain brand of motor oil or risk having the warranty voided. The Learys filed a class action contending that McGowen's actions violated the Magnuson-Moss Warranty Act (MMWA). Settlement Terms The proposed settlement agreement provided a number of forms of relief to the Class, as well as an incentive award to the named Plaintiffs. Under the settlement agreement, each claimant is entitled to a one-time cash payment of $30. Settlement The decision of whether a settlement is fair, reasonable, and adequate is guided by the nine-factor test enunciated in Girsh. The Girsh test directs the court to examine: (1) the complexity, expense, and likely duration of the litigation (2) the reaction of the class to the settlement (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability (5) the risks of establishing damages (6) the risks of maintaining the class action through the trial (7) the ability of the defendants to withstand a greater settlement; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of the settlement in light of all the attendant risks of litigation. Girsh, 521 F.2d at 157. Complexity, expense, and likely duration of the litigation The Court agrees that in the absence of this settlement, the parties would face a lengthy and expensive discovery process. This process would have included fact and expert witnesses, discovery on damages, and lengthy litigation on whether or not to certify a class. The Court also suspects that regardless of the outcome of the trial, post-trial motions and an appeal would follow. Although this case is not particularly complicated, it is likely that this case would be costly to prosecute and would proceed well into the future. Accordingly, the Court finds that this factor weighs in favor of approving the settlement. Reaction of the class to the settlement The class administrator sent email notice to 31,086 class members whose email addresses were available and mailed a postcard notice to 1,192 class members who did not have a valid email address. No objections were received and only two requests for exclusion from the class were received. This response (or, rather, lack thereof) weighs in favor of approving the settlement. Stage of the proceedings and the amount of discovery completed. Counsel has had ample time and information to learn the strengths and weaknesses of the case. The parties conducted significant discovery and briefed a number of issues. The Court is convinced that this factor weighs heavily in favor of approving the settlement. Risks of establishing liability and damages It would be difficult for Plaintiffs to establish liability in this case, as Defendant has raised a number of defenses that could allow it to avoid liability. Defendant also takes issue with Plaintiffs' damages assessment. Defendant also claims that its warranty did not include an illegal tying provision. Given these hurdles, the Court finds that these factors weigh heavily in favor of approving the settlement. Risk of maintaining the class action through the trial. The parties have not pointed the Court to any specific argument beyond the general legal principle that class certification is always open to review. This factor is neutral. Ability of Defendants to withstand a greater judgment The Court has little information in the record to form a conclusion about this factor. Although the Court has no reason to believe that a greater judgment would pose an economic hardship for McGowen, the Court also has no reason to believe that McGowen's continued solvency should weigh against approving the settlement. This factor is therefore neutral. Range of reasonableness of the settlement in light of the best possible recovery and in light of all the attendant risks of litigation Plaintiffs contend that this "is a very favorable settlement for the Class.The Court agrees that class members will receive a tangible benefit. Also, importantly, Defendant has agreed to injunctive relief that ensures both that the warranty at issue here remains intact and that future warranties do not include an improper tying provision. The injunctive relief here is important to current class members. Weighed against the very real possibility that class members would receive nothing, these factors weigh in favor of approval of the settlement. Prudential factors The Court also concludes that the Prudential factors weigh in favor of approving the settlement. First, this litigation has proceeded far enough that the lawyers and this Court can assess the possible outcome of a trial on the merits. Second, there are no objections to the settlement and only two class members opted-out of the settlement class. Third, as will be discussed below, the request for attorneys' fees is reasonable. Finally, the procedure for processing individual claims is fair and reasonable. The Court concludes that the requirements of Rule 23 have been satisfied, and that the settlement is fair, reasonable, and adequate. Similarly, the request for attorneys' fees and costs is also reasonable. The Court therefore grants the motion to approve the settlement. A full-text copy of the District Court's October 15, 2018 Memorandum is available at https://tinyurl.com/yd4ar8o5 from Leagle.com. ALISON N. LEARY & TIMOTHY M. LEARY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by EDWIN J. KILPELA -- ekilpela@carlsonlynch.com -- CARLSON LYNCH SWEET KILPELA & CARPENTER LLP, GARY F. LYNCH -- glynch@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter, LLP & MARK T. JOHNSON -- MJohnson@schneiderwallace.com -- SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP. MCGOWEN ENTERPRISES, INC., Defendant, represented by MELISSA B. HIRST -- mbhirst@jonesday.com -- JONES DAY & KIMBERLY A. BROWN -- kabrown@jonesday.com -- JONES DAY. MDL 2827: Court Denies Bid for Relief in iPhone Battery Suit ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, issued an Order denying Plaintiffs' motion for relief pursuant to Rule 23(d) of the Federal Rules of Civil Procedure in the case captioned IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION. Case No. 18-md-02827-EJD. (N.D. Cal.). The Plaintiffs contend that Apple Inc.'s pre-certification communications with putative class members regarding Apple's iPhone discounted battery replacement program are intensely misleading and trick the class members into releasing or limiting claims in this action. LEGAL STANDARDS Under Federal Rule of Civil Procedure 23(d), in conducting a class action the Court may issue orders that require to protect class members and fairly conduct the action giving appropriate notice to some or all class members of: (i) any step in the action (ii) the proposed extent of the judgment; or (iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action. Apple contends that Rule 23(d) is inapplicable for the simple reason that Apple is not communicating about the litigation, much less communicating misleading information about the litigation. Apple's Communications Do Not Threaten the Fairness Of The Litigation The Plaintiffs contend that Apple's communications with putative class members regarding the battery replacement program threaten the fairness of the litigation because the communications are designed to obtain class members' uninformed consent to waive, release, or settle some or all of the proposed class claims. The relevant portions of Apple's letter state as follows, inter alia: "Nothing in your letter demonstrates any sort of actionable conduct under the CLRA or any other law, as battery aging and associated device performance impact are innate characteristics of lithium-ion batteries.Your letter demands that Apple take the following action to address plaintiffs' unspecified claims: (1) Identify or make a reasonable attempt to identify to Co-Lead Counsel those individuals and entities who purchased the Devices; (2) In a format provided by Co-Lead Counsel, notify all such purchasers so identified that, upon their request, Apple will offer an immediate remedy for past wrongful conduct, including a full refund of the purchase price, plus interest, costs, and attorneys' fees; (3) Undertake (or promise to undertake within a reasonable time if it cannot be done immediately) the actions described above for all purchased Devices and (4) Cease from expressly or impliedly representing to consumers who purchased Devices are non-defective, as more fully described in the previously-filed complaints." As is evident from the cited text, Apple was simply replying to the relief Plaintiffs requested in the letter. Apple's July 5, 2018 letter does not support the Plaintiffs' contention that Apple is soliciting putative class members' uninformed consent to waive, release, or settle some or all of the proposed class claims. In Slavkov, plaintiffs asserted claims against their employer for wage and hour violations. Slavkov v. Fast Water Heater Partners I, LP, 2015 WL 6674575, at *1. The defendants sent two letters to the putative class members offering a settlement in exchange for a release of claims in the case. The Slavkov court held that the releases were both misleading and potentially harmful. Specifically, the Slavkov court found misleading the requirement in the release that the signor agree not to disclose any information concerning the dispute which resulted in the Agreement, because the requirement could reasonably be interpreted to mean that anyone who accepted the agreement could not talk to plaintiffs' counsel about the events surrounding the class action, whether as a witness or otherwise. The letter was also misleading insofar as it failed to notify putative class members that releases for certain claims required judicial approval. In Marino v. CACafe, Inc., No. 16-6291 YGR, 2017 WL 1540717 (N.D. Cal. Apr. 28, 2017), the court granted corrective action in a wage and hour case. While the case was pending, the defendant sent putative class members an email stating that the company was restructuring its processes and that to ensure there is no outstanding issue based on the member's relationship with the defendant, defendant was offering members $500 for their cooperation. The email stated that the $500 would be immediately wired to the member's bank account upon the member signing and returning a general release of claims and waiver of rights. The email made no mention of the pending lawsuit. The instant action is readily distinguishable from Slavkov and Marino. Apple has not issued any misleading or coercive communications to putative class members. Furthermore, Apple has repeatedly stated that the releases in the U.S. Retail Repair Terms and the Global Repair Terms do not extend to the claims in this case. Apple also stands ready to enter a stipulation establishing that participation in the $29 battery discount program or the related $50 credit program does not waive claims in this litigation. In sum, because Apple's communications are not misleading, coercive, and do not potentially interfere with class members' rights, there is no basis for the Court to take corrective measures. Accordingly, the Plaintiffs' motion for relief pursuant to Rule 23(d) of the Federal Rules of Civil Procedure and related discovery is denied. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y8eo4gyo from Leagle.com. Keaton Harvey, Plaintiff, represented by Dina Elizabeth Micheletti, Fazio & Micheletti LLP & Jeffrey Louis Fazio, Fazio & Micheletti LLP. Nicole Gallmann, Plaintiff, represented by Laurence D. King -- lking@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Mario Man-Lung Choi -- mchoi@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Matthew B. George -- mgeorge@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Aaron L. Schwartz -- ASchwartz@kaplanfox.com -- Kaplan Fox and Kilsheimer LLP, pro hac vice, Amy E. Keller -- akeller@dlcfirm.com -- DiCello Levitt & Casey LLC, David A. Straite -- dstraite@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Donald R. Hall -- dhall@kaplanfox.com -- Kaplan Fox and Kilsheimer, Frederic S. Fox -- ffox@kaplanfox.com -- Kaplan Fox & Kilsheimer, Joseph W. Cotchett -- jcotchett@cpmlegal.com -- Cotchett Pitre & McCarthy LLP, Mark Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman and Dowd LLP &Mark Cotton Molumphy -- mmolumphy@cpmlegal.com -- Cotchett, Pitre & McCarthy LLP. Apple Inc., Defendant, represented by Christopher Chorba -- cchorba@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, George Charles Nierlich, III -- gnierlich@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Rachel S. Brass -- rbrass@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theane Evangelis -- rbrass@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law Gibson, Dunn & Crutcher LLP & Timothy William Loose -- tloose@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. MGT CAPITAL: Bragar Eagel Files Class Action Lawsuit ---------------------------------------------------- Bragar Eagel & Squire, P.C., disclosed that a class action lawsuit has been filed in the U.S. District Court for the District of New Jersey on behalf of all persons or entities who purchased or otherwise acquired MGT Capital Investments, Inc., securities between October 9, 2015 through September 7, 2018 (the "Class Period"). The complaint alleges that throughout the Class Period, defendants made false and misleading statements to the market. The SEC filed a lawsuit against a former MGT Capital officer and others alleging a pump & dump scheme to artificially drive up the price of the Company's stock price. The management of MGT Capital was influenced by the scheme, ultimately resulting in the Company's stock being delisted by the New York Stock Exchange. On September 7, 2018, the U.S. Securities and Exchange Commission ("SEC") filed a lawsuit against a former officer of MGT Capital as well as other individuals and corporations, alleging violations of the federal securities laws. The SEC complaint alleges that defendants were participants in "highly profitable 'pump-and-dump' schemes . . . from 2013 through 2018" in the stock of three public companies, including MGT Capital, that, "while enriching Defendants by millions of dollars, left retail investors holding virtually worthless shares." On this news, MGT Capital's share price fell over 25%, closing at $0.44 per share on September 7, 2018. If you purchased MGT securities during the Class Period or continue to hold shares purchased before the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. For additional information concerning the MGT lawsuit, please go to https://bespc.com/mgti www.bespc.com. Brandon Walker, Esq. Melissa Fortunato, Esq. Bragar Eagel & Squire, P.C. Telephone: (212) 355-4648 Website: www.bespc.com Email: fortunato@bespc.com walker@bespc.com [GN] MGT CAPITAL: Schall Law Firm Files Class Action Lawsuit ------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, disclosed the filing of a class action lawsuit against MGT Capital Investments, Inc., for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between October 9, 2015 and September 7, 2018, inclusive (the "Class Period"), are encouraged to contact the firm before November 27, 2018. We also encourage you to contact Brian Schall, or Sherin Mahdavian, of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. The SEC filed a lawsuit against a former MGT Capital officer and others alleging a pump & dump scheme to artificially drive up the price of the Company's stock price. The management of MGT Capital was influenced by the scheme, ultimately resulting in the Company's stock being delisted by the New York Stock Exchange. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about MGT Capital, investors suffered damages. Join the case to recover your losses. Brian Schall, Esq. Sherin Mahdavian, Esq. The Schall Law Firm Telephone: 310-301-3335 Email: brian@schallfirm.com sherin@schallfirm.com [GN] MIDLAND CREDIT: Court OKs Bid to Dismiss Blackwell FDCPA Suit ------------------------------------------------------------- The United States District Court for the District of South Carolina, Charleston Division, issued an Order and Opinion granting Defendant's Motion to Dismiss the case captioned Terrence Blackwell, individually and on behalf of all others similarly situated, Plaintiff, v. Midland Credit Management, Inc., Midland Funding, LLC, and John Does 1-25, Defendants. Civil Action No. 2:18-cv-2205-RMG. (D.S.C.). The Plaintiff alleges that a collection letter sent by the Defendants was deceptive and misleading because the letter implied that the Defendants chose not to sue rather than disclosing that the debt being time-barred and the Defendants failed to disclose that making a partial payment on their debt could restart the statute of limitations and expose Plaintiff to liability for the full amount of his debt. The Defendants identify an earlier filed putative class action in this District with allegedly similar claims. The case, Jonathan Alston et al. v. Midland Credit Management, Inc., No. 8:18cv-0014 (Alston), was filed on January 3, 2018. The Alston complaint, included with Defendants' motion to dismiss,1 includes similar allegations as the Complaint here but was only filed against Defendant Midland Credit Management, Inc. The Alston complaint alleged that debt collection letters sent by Midland Credit Management violated the FDCPA because they did not advise the plaintiffs that making a partial payment on their time-barred debt could restart the statute of limitations and expose them to a lawsuit. Legal Standard A case in federal court may be dismissed for reasons of wise judicial administration whenever it is duplicative of a parallel action already pending in another federal court. The Plaintiff argues that this Court can only apply the first to file rule where there is an earlier action pending in a different jurisdiction, rather than in the same jurisdiction as is the case here. Plaintiff is incorrect. Other district courts in the Fourth Circuit have made clear that the first to file rule applies even where both actions are pending in the same district. Here, there is no dispute that the Alston action was filed first, over seven months before the Complaint in this action. The Court next determines whether the issues are substantially similar. The issues in these cases are almost identical. Both here and in the Alston action the parties have claims pending solely under Section 1692(e) of the FDCPA. Notably, in the Alston action while the case initially also included a claim under Section 1692(f), that claim has since been dismissed. Furthermore, both cases bring claims regarding almost identical collection letters. The letters in both cases offered three options for payment of the debt, contained identical disclosure language, and involved debt owned by Midland Funding LLC with a letter sent by Midland Credit Management, Inc. The plaintiffs in both actions also allege the same harm based on the defendants' alleged failure to inform the plaintiffs that making a partial payment on their time-barred debt could restart the statute of limitations and expose them to liability. Finally, both actions seek the same relief: actual damages, statutory damages, and attorneys' fees. Therefore, these actions involve substantially similar issues and facts. The Plaintiff further argues that the defendants in the two actions are different, as the Alstonaction includes only Midland Credit Management, Inc. as a defendant, whereas this action also includes Midland Funding, LLC.2 However, the same exact identity of the parties is not required for the first to file rule, and instead the parties must be substantially similar. Indeed, multiple courts have applied the first to file rule even where different actions include or omit additional defendants. Therefore, the Court rules that the Plaintiffs' addition of Midland Funding, LLC, does not defeat the application of the first to file rule. According to the Plaintiffs Complaint, Midland Funding contracted with Midland Credit Management to collect the debts they owed, and both the Alston complaint and the Complaint here assert claims based on debts owned by Midland Funding which Midland Credit Management attempted to collect. The Defendants therefore share similar interests, and the inclusion of Midland Funding, LLC does not defeat application of the first to file rule. A full-text copy of the District Court's October 15, 2018 Order and Opinion is available at https://tinyurl.com/ybumotfo from Leagle.com. Terrence Blackwell, individually and on behalf of all others similarly situated, Plaintiff, represented by Kenneth Edward Norsworthy, Jr. , Norsworthy Law Ltd Co. Midland Credit Management Inc & Midland Funding LLC, Defendants, represented by Robert Lesley Brown -- rlbrown@wjlaw.net -- Willson Jones Carter and Baxley PA. MONSANTO COMPANY: Lasseigne Suit Removed to N.D. California ----------------------------------------------------------- The class action lawsuit titled STACEY LASSEIGNE, individually and on behalf of all others similarly situated, Plaintiff v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01459, was removed from the U.S. District Court for the District of Missouri, to the U.S. District Court for the Northern District of California on October 5, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-06152-VC (N.D. Cal., Oct. 5, 2018) to the proceeding. The Case is assigned to the Hon. Vince Chhabria. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Ocasio Suit Removed to N.D. California -------------------------------------------------------- The class action lawsuit titled ANGEL OCASIO, individually and on behalf of all others similarly situated, Plaintiff, v. MONSANTO COMPANY; BAYER CORPORATION; and BAYER AG, Defendants, Case No. 4:18-cv-01058, was removed from the Eastern District of Missouri, to the U.S. District Court for the Northern District of California on October 5, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-06150 (N.D. Cal., Oct. 5, 2018) to the proceeding. The Case is assigned to the Hon. Vince Chhabria. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiff is represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Stevens et al. Suit Removed to N.D. California ---------------------------------------------------------------- The class action lawsuit titled JAN STEVENS, and MARJORIE STEVENS, individually, and on behalf of all others similarly situated, Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01451, was removed from the Eastern District of Missouri, to the U.S. District Court for the Northern District of California on October 5, 2018. The Northern District of California Court Clerk assigned Case No. Case No. 3:18-CV-06151-VC (N.D. Cal., Oct. 5, 2018) to the proceeding. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MOTT'S LLP: Rahman Remanded to California Superior Court -------------------------------------------------------- In the case, MOHAMMED RAHMAN, Plaintiff, v. MOTT'S LLP, Defendant, Case No. 13-cv-03482-SI (N.D. Cal.), Judge Susan Illston of the U.S. District Court for the Northern District of California (i) denied Rahman's motion for reconsideration of the Court's Oct. 14, 2014 order that determined he lacked Article III standing to pursue injunctive relief; and (ii) remanded the case to the Superior Court for the County of San Francisco. The case is a consumer class action. Mott's is the manufacturer of various food products containing the statement "No Sugar Added" on their labels and/or packaging. Rahman alleges that the use of the statement "No Sugar Added" on Mott's 100% Apple Juice does not comply with applicable Food and Drug Administration regulations, specifically 21 C.F.R Section 101.60(c)(2). On Aug. 12, 2014, the Defendant filed a motion for summary judgment of the Plaintiff's SAC. The ourt granted in part and denied in part the Defendant's motion. As relevant in the instant motion, the Court held the Plaintiff lacks Article III standing for injunctive relief because he cannot plausibly prove that he will, in the future, rely on the 'No Sugar Added' statement to his detriment. On Dec. 3, 2014, the Court denied the Plaintiff's motion for class certification. The Plaintiff appealed the Court's decision, and the Ninth Circuit affirmed the decision on July 5, 2017. The Ninth Circuit issued its mandate on Oct. 19, 2017. On Oct. 20, 2017, the Ninth Circuit held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an 'actual and imminent, not conjectural or hypothetical' threat of future harm. Now before the Court is the Plaintiff's motion to reconsider, filed on Dec. 1, 2017. The Plaintiff seeks reconsideration of the Court's finding that he lacks Article III standing for injunctive relief in light of the Ninth Circuit's holding in Davidson v. Kimberly-Clark Corp. Alternatively, he asks the Court to remand the action to state court if he lacks standing. Judge Illston finds that even if the Plaintiff were misled by the "No Sugar Added" statement to believe that Mott's 100% Apple Juice contained less sugar than, and was healthier than, other 100% apple juices, he is now aware that such a belief was unfounded. The Judge agrees with the reasoning in Fernandez v. Atkins Nutritionals, Inc. and finds that there is no future risk that the Plaintiff will be misled by the "No Sugar Added" label. Unlike Davidson, where a consumer's inability to rely on packaging misrepresentations in the future was an ongoing injury, Rahman is able to rely on the packaging now that he understands the "No Sugar Added" label. The Plaintiff asserts that under California law, if he has Article III standing to pursue injunctive relief, he can do so without an order certifying a class. As he discussed, the Judge holds that the Plaintiff does not have Article III standing and is not entitled to injunctive relief under federal law. Finally, the Plaintiff's claims for relief under the UCL, CLRA, and FAL do not arise under the Constitution, laws, or treaties of the United States. Accordingly, the Judge will remand the action to the Superior Court for the County of San Francisco for lack of federal jurisdiction. For the foregoing reasons, tJudge Illston denied Rahman's motion to reconsider and remanded to the Superior Court for the County of San Francisco. The clerk is directed to close the file in the case. A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/wiuEuw from Leagle.com. Mohammed Rahman, individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Bevin Elaine Allen Pike -- Bevin.Pike@CapstoneLawyers.com -- Capstone Law APC, Jordan L. Lurie -- Jordan.Lurie@CapstoneLawyers.com -- Capstone Law APC, Robert Kenneth Friedl -- Robert.Friedl@CapstoneLawyers.com -- Capstone Law APC, Cody Robert Padgett -- Cody.Padgett@CapstoneLawyers.com -- Capstone Law, APC, Lee Adam Cirsch -- lee.cirsch@lanierlawfirm.com -- Capstone Law, APC, Tarek H. Zohdy -- Tarek.Zohdy@CapstoneLawyers.com -- Capstone Lawyers, APC & Trisha Kathleen Monesi -- Trisha.Monesi@CapstoneLawyers.com -- Capstone Law APC. Mott's LLP, a Delaware limited liability partnership, Defendant, represented by Kevin Marshall Sadler -- kevin.sadler@bakerbotts.com -- Baker Botts L.L.P., Ryan Lee Bangert -- ryan.bangert@bakerbotts.com -- Baker Botts L.L.P. & Van H. Beckwith -- van.beckwith@bakerbotts.com -- Baker Botts L.L.P. MOUNTAIN AMERICA: Court Dismisses Tilley EFTA Suit -------------------------------------------------- Judge Jill N. Parrish of the U.S. District Court for the District of Utah granted Mountain America's motion to dismiss the case, LEWIS TILLEY, Plaintiff, v. MOUNTAIN AMERICA FEDERAL CREDIT UNION, Defendant, Case No. 2:17-cv-01120-JNP-BCW (D. Utah). Tilley had a checking account at Mountain America and had agreed to participate in its overdraft service. Under this service, the credit union agreed to cover a charge when there were insufficient funds in the account. Mountain America charged a $20 fee for each overdraft draw it covered. The opt-in agreement to Mountain America's overdraft service described the conditions under which it assesses an overdraft fee. There are two principal methods for determining the amount of money in a checking account. The first is the ledger balance method, which is the amount that a credit union member sees when he or she looks up their account balance. It includes the full amount of deposits even if the funds have not yet cleared. The second is the available balance method. The available balance takes into account authorized debit card charges that have not yet posted to the account and excludes deposits if the funds have not yet been cleared by the credit union. Mountain America uses the available balance method to determine whether a member has overdrawn his or her checking account. On Jan. 10, 2016, Tilley had a ledger balance of $49.31 in his checking account. He made a debit card purchase for $11.86. But the available balance of the account was insufficient to cover this charge, so Mountain America assessed a $20 overdraft fee. On Oct. 10, 2017, Tilley filed a complaint against Mountain America based upon this overdraft charge. He asserted a federal claim under the Electronic Fund Transfer Act ("EFTA"). Tilley also asserted six state-law claims: breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, money had and received, common law unconscionability, and a claim under the Utah Truth in Advertising Act. The complaint sought certification of a class-action lawsuit so that Tilley can represent similarly-situated individuals. Mountain America filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Tilley failed to state a claim upon which relief can be granted. Judge Parrish concludes that Tilley failed to state a claim under the EFTA for two reasons: (1) he did not file his complaint within the applicable limitations period and (2) Mountain America is insulated from liability by the EFTA's safe harbor provision. Leave to amend would be futile. The safe harbor provision is a fundamental legal impediment to the EFTA claim. Because the only facts that are relevant to the safe harbor defense are the language of the opt-in agreement and the language of Model Form A-9, pleading additional facts cannot change the operation of the safe harbor provision. The Judge, therefore, dismisses the EFTA claim with prejudice. As to the Plaintiff's state law claims, the Judge finds that the sole basis for him to hear the state-law claims against Mountain America is supplemental jurisdiction. The Court may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction. The Judge, therefore, declines to exercise supplemental jurisdiction over the remaining state-law claims and dismisses them without prejudice. Finally, in support of its motion to dismiss, Mountain America requested that the Court takes judicial notice of its opt-in agreement and its membership agreement. Because the complaint references the opt-in agreement and its authenticity is undisputed, the Judge takes judicial notice of this document. He, however, has no occasion to consider the membership agreement in resolving the motion to dismiss the ETFA claim. Accordingly, Mountain America's request to take judicial notice of the membership agreement is denied as moot. Tilley also requests judicial notice of several other documents and state-court orders. The Judge concludes that these documents are either not relevant to the motion to dismiss the EFTA claim or are not binding authority. He, therefore, denies Tilley's request for judicial notice. For the foregoing reasons, Judge Parrish granted Mountain America's motion to dismiss. He dismissed with prejudice EFTA claim, and dismissed without prejudice the remaining state-law claims. A full-text copy of the Court's Sept. 25, 2018 Memorandum Decision and Order is available at https://is.gd/iaXD2I from Leagle.com. Lewis Tilley, individually, and on behalf of all others similarly situated, Plaintiff, represented by Jae K. Kim -- jkk@mccunewright.com -- MCCUNE WRIGHT AREVALO LLP, pro hac vice, Jon V. Harper -- jharper@jonharperlaw.com -- HARPER LAW PLC, Richard D. McCune -- rdm@mccunewright.com -- MCCUNE WRIGHT AREVALO LLP, pro hac vice, M. Denise Dalton, HARPER LAW PLC & Taras Kick, THE KICK LAW FIRM APC, pro hac vice. Mountain America Federal Credit Union, Defendant, represented by Joseph A. Skinner , SCALLEY READING BATES HANSEN & RASMUSSEN, Andrew J. Demko -- andrew.demko@kattenlaw.com -- KATTEN MUCHIN ROSENMAN LLP, pro hac vice & Stuart M. Richter, KATTEN MUCHIN ROSENMAN LLP, pro hac vice. MURRAY ENERGY: Court Allows Amendment to Mitchell WARN Suit ----------------------------------------------------------- The United States District Court for the Southern District of Illinois issued an Order granting Plaintiff Mitchell's Motion for Leave to Amend Plaintiff's Class Action Complaint in the case captioned JETSON MITCHELL, Individually and on behalf of all others similarly situated, Plaintiffs, v. MURRAY ENERGY CORPORATION, AMERICAN COAL COMPANY, INC., and JOHN DOES 1-20, Defendants. Case No. 3:17-cv-444-NJR-RJD. (S.D. Ill.). This is a proposed class action brought pursuant to an alleged violation of the Worker Adjustment and Retraining Notification Act (WARN Act). The Plaintiff alleges Defendants failed to provide the required 60-day advanced notice of a mass layoff at its New Future Mine in Galatia, Illinois. Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that leave to amend should be freely given when justice so requires. The Seventh Circuit maintains a liberal attitude toward the amendment of pleadings so that cases may be decided on the merits and not on the basis of technicalities. Here, the Court finds it appropriate to allow the Plaintiff leave to file his amended class action complaint. When considering whether a proposed amendment is unduly delayed, courts look to the similarity of the factual basis for the claims in the original complaint to the newly-asserted claims, the moving party's explanation for their delay in raising the new claims, and whether granting the motion to amend will require new or duplicated discovery efforts. First, with regard to timing, it is not apparent that the Plaintiff was unduly delayed in seeking leave to amend. As the Plaintiff explains, only after receiving the Defendants' responses to certain discovery requests on March 22, 2018, did he become aware of Defendants' alleged failure to provide 60 days advance written notice of the plant closing at Galatia. Although proposed plaintiff Rider may have been laid off on October 3, 2017, Plaintiff Mitchell may not have been aware of the facts giving rise to his claim until he was in possession of Defendants' discovery documents. The Court is also not convinced that allowing the Plaintiff leave to amend would unduly prejudice Defendants. Although various employees and management representatives may have moved to different employers or geographic regions, and documentary evidence may be housed in Ohio, such circumstance is not sufficient for the Court to deny Plaintiff's motion as these issues would be present even if Plaintiff's motion was denied. Further, it appears there may be at least some overlap in the discovery related to the claim Plaintiff now seeks to add and the original claim, thus, the Court does not find that the proposed amendment would unduly increase discovery. The Court finds that the Defendants' futility arguments are better suited for a motion to dismiss that will allow for more robust briefing on the issues. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/yc4ef4qg from Leagle.com. Jetson Mitchell, Individually and on behalf of all others similarly situated, Plaintiff, represented by Thomas J. Lech, Goldenberg Heller & Antognoli PC, Thomas P. Rosenfeld, Goldenberg Heller & Antognoli PC, Thomas C. Horscroft, Goldenberg Heller & Antognoli PC & Kevin P. Green, Goldenberg Heller & Antognoli PC. Murray Energy Corporation & American Coal Company, Inc., Defendants, represented by R. Lance Witcher -- lance.witcher@ogletree.com -- Ogletree Deakins et al, Harrison C. Kuntz -- harrison.kuntz@ogletree.com -- Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Joseph T. Charron, Jr., Smith Amundsen, LLC, & Sarah Jean Kuehnel, Ogletree Deakins et al. John Doe, 1-20, Defendant, represented by Harrison C. Kuntz , Ogletree, Deakins, Nash, Smoak & Stewart, P.C. & Sarah Jean Kuehnel, Ogletree Deakins et al. NATIONAL FOOTBALL: Court Denies Certification of Treviso Class -------------------------------------------------------------- In the case, CARMELO TREVISO, Plaintiff, v. NATIONAL FOOTBALL MUSEUM, INC., Defendant, Case No. 1:17CV472 (N.D. Ohio), Judge Christopher A. Boyko of the U.S. District Court for the Northern District of Ohio, Eastern Division, denied Treviso's Motion for Class Certification. On Aug. 23, 2016, Plaintiff Greg Herrick, on behalf of himself and a putative class, filed the action with the U.S. District Court for the Central District of California against the National Football League ("NFL") and the National Football Museum, Inc., doing business as the Pro Football Hall of Fame. The Plaintiff purchased a ticket to attend the Hall of Fame Game set for Aug. 7, 2016 in Canton, Ohio between the Green Bay Packers and the Indianapolis Colts. Due to the alleged mismanagement of the Defendants, the game was cancelled on the very day the game was set to be played, causing injury to the Plaintiff and the putative class. The class discovery is complete and the Plaintiff has dismissed his claims against the NFL. On March 16, 2018, the Plaintiff filed a First Amended Complaint substituting a new class representative, Carmelo Treviso. In his First Amended Complaint for Breach of Contract, Treviso, a resident of Wisconsin, alleges he purchased a ticket to the 2016 Hall of Fame Game. The Plaintiff alleges the Court has subject matter jurisdiction under the Class Action Fairness Act of 2005 ("CAFA") as the purported class exceeds 100 members and their damages, in aggregate, exceed $5 million. Venue is proper as the Defendant resides in the Court's judicial district and the events giving rise to the claims occurred therein. According to the Plaintiff's First Amended Complaint, fans suffered damages including: out of pocket ticket costs, lodging and travel expenses, food and souvenir purchases and missed employment time. He brings a single claim for Breach of Contract on his own behalf and on behalf of a nationwide class of similarly situated ticket holders defined as all persons who paid for and/or acquired tickets to the 2016 NFL Hall of Fame Game ("The Canceled Game Class"). The Plaintiff seeks economic loss damages, reasonable attorneys' fees, court costs, pre and post judgment interest and all other relief to which they are entitled. The Plaintiff seeks to certify a nationwide class under Fed. R. Civ. P. 23(b)(3) made up of people who paid for and/or acquired tickets to the game. In the alternative, he seeks to certify a liability class under Fed. R. Civ. P. 23(c)(4) to determine whether the Defendant breached its contracts with ticket holders by cancelling the game. The Plaintiff's Class Certification Motion seeks to certify the defined class of ticket purchasers who purchased their game tickets in one of five versions, 1) a commemorative ticket, 2) a thermal ticket, 3) the Etix ticket, 4) the print-at-home ticket and 5) the mobile ticket. These tickets formed a contract between the purchaser and the Defendant wherein, according to the Plaintiff, the purchasers paid money for the seats to the game in exchange for the Defendant providing them a game to watch. None of the tickets absolved the Defendant from liability to pay legal damages if it cancelled the game nor do the tickets limit the types of damages recoverable for breach. The Plaintiff's damages expert, Dr. Justine Hastings, an economist, has opined that she can calculate classswide aggregate expenses in each of three categories of damages (tickets, lodging, travel). Dr. Hastings, Professor of Economics and International and Public Affairs at Brown University, has submitted three reports, all of which are subject to the Defendant's pending Motion to Strike. The Defendant opposes certification, contending that individualized inquiries are necessary to determine the validity of each class member's claim for breach of contract and damages. It also contends that almost 90% of the putative class has already settled their claims with the Defendant by accepting its settlement offer. According to the Defendant, of the approximately 22,000 tickets sold, nearly 19,000 ticket purchasers have accepted its reimbursement offer. The Defendant further contends Treviso cannot adequately represent the class because he lacks generalized knowledge of the case. Finally, it contends bifurcation and/or certification of a liability only class are inappropriate because the highly individualized damages inquiries would necessitate thousands of mini-trials rendering the superiority of class action meaningless as it will do little to streamline the litigation. Judge Boyko finds that the putative class numbers is approximately 3,000. Any attempt to determine damages would necessarily involve 3,000 mini-trials, defeating the purposes of a Rule 23 class action. Therefore, he finds individual questions of damages predominate over common question of law or fact and the Plaintiff has failed to meet its burden demonstrating that a class action is the superior method for resolving the breach of contract claims. Thus, he will deny the Plaintiff's Motion for Class Certification. The Plaintiff has asked in the alternative that the Court certifies a liability only class. Rule 23(c)(4) allows for certification of a class with respect to particular issues. However, this issue, the Judge says, was only discussed briefly in the alternative and the Court has insufficient briefing on the issue to decide. Furthermore, he acknowledges that the class definition could be redrafted to exclude from the class those members who have already signed releases. Therefore, the Judge will entertain a renewed motion for class certification on a liability only the class with a different class definition. The motion will also discuss whether subclasses are necessary based on the differing terms and conditions presented by the different tickets. The Motion should also discuss how the Court should consider the damages portion of the case should it certify a liability only class. Therefore, for the foregoing reasons, Judge Boyko denied the Plaintiff's Motion for Class Certification. The Plaintiff may file a Renewed Motion for Class Certification no later than Oct. 15, 2018. Also, having considered Dr. Hastings' expert report, he denied the Defendant's Motions to Strike. A full-text copy of the Court's Sept. 25, 2018 Opinion and Order is available at https://is.gd/4EuqY9 from Leagle.com. Carmelo Treviso, Individually, and on behalf of all others similarly situated, Plaintiff, represented by Michael J. Avenatti -- mavenatti@eaganavenatti.com -- Eagan Avenatti & Romney B. Cullers, Becker Law Firm. National Football Museum, Inc., doing business as Pro Football Hall of Fame, Defendant, represented by Scott M. Zurakowski -- szurakowski@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty, Aletha M. Carver -- acarver@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty, Amanda M. Connelly -- aconnelly@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty, James M. Williams -- jwilliams@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty & Joseph J. Pasquarella -- jpasquarella@kwgd.com -- Krugliak, Wilkins, Griffiths & Dougherty. NATIONAL GRID: Nightingale Alleges Illegal Debt Collection ---------------------------------------------------------- Robert Nightingale, on behalf of himself and all others similarly situated, the Plaintiff, vs National Grid USA Company, Inc., the Defendant, Case No.: 18-3190H (Mass. Super. Ct., Oct. 12, 2018), alleges that the Defendant repeatedly violated the Massachusetts Consumer Protection Act and the Massachusetts Debt Collection Regulations, in its illegal efforts to collect consumer debts. According to the complaint, the Plaintiff allegedly incurred a financial obligation. The debt arose from services which were primarily for family, personal, household purposes. National Grid attempted to collect the Debt from the Plaintiff and as such, initialed and engaged in "communications" as defined in 940 CMR section 7.03. In or around June 2018, National Grid began calling the Plaintiff s cellular telephone in an attempt to collect the Debt. National Grid called the Plaintiff at an excessive and harassing rate, placing more than two calls within a seven-day period. The Plaintiff suffered actual damages as a result of National Grid's unlawful conduct. As a direct consequence of National Grid's acts, practices and conduct. The Plaintiff suffered anger, anxiety, emotional distress, fear, frustration and embarrassment, the lawsuit says. National Grid USA, through its subsidiaries, operates as an electricity, natural gas, and clean energy delivery company in the United States.[BN] Attorneys for Plaintiff: Sergie Lemberg, Esq. LEMBERG LAW, LLC Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: slemberg@lemberglaw.com NEIMAN MARCUS: Connolly Suit Stayed Pending Attia Settlement Deal ----------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the California Labor Code Private Attorneys General Act ("PAGA") representative action filed by Milca Connolly has been stayed pending the settlement approval process in Holly Attia case. As previously reported by the Class Action Reporter, former employee Milca Connolly filed a representative action on July 28, 2016, alleging only PAGA claims against The Neiman Marcus Group raising substantially identical claims to those raised in both Attia and Nguyen. The Company filed a motion to dismiss or stay the case in light of Attia and Nguyen. In November 2016, the court granted the Company's motion to stay the case. At a status conference on September 5, 2017, the court maintained the stay and set a further status conference for November 8, 2017, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. In its Form 10-Q Report for the Quarterly Period Ended October 28, 2017, Neiman Marcus said that at a status conference on November 8, 2017, the court maintained the stay and set a further status conference for January 29, 2018. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Final Court OK on Cyber-Attack Suits Accord Pending ------------------------------------------------------------------ Neiman Marcus Group LTD LLC disclosed in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the motion for final approval of the Cyber-Attack Class Actions Litigation settlement remains pending. In January 2014, three class actions relating to a cyber-attack on the Company's computer systems in 2013 (the "Cyber-Attack") were filed and later voluntarily dismissed by the plaintiffs between February and April 2014. The plaintiffs had alleged negligence and other claims in connection with their purchases by payment cards and sought monetary and injunctive relief. Three additional putative class actions relating to the Cyber-Attack were filed in March and April 2014, also alleging negligence and other claims in connection with plaintiffs' purchases by payment cards. Two of the cases were voluntarily dismissed. The third case, Hilary Remijas v. The Neiman Marcus Group, LLC, was filed on March 12, 2014 in the U.S. District Court for the Northern District of Illinois. On June 2, 2014, an amended complaint in the Remijas case was filed, which added three plaintiffs (Debbie Farnoush and Joanne Kao, California residents; and Melissa Frank, a New York resident) and asserted claims for negligence, implied contract, unjust enrichment, violation of various consumer protection statutes, invasion of privacy and violation of state data breach laws. The Company moved to dismiss the Remijas amended complaint, and the court granted the Company's motion on the grounds that the plaintiffs lacked standing due to their failure to demonstrate an actionable injury. Plaintiffs appealed the district court's order dismissing the case to the Seventh Circuit Court of Appeals, and the Seventh Circuit Court of Appeals reversed the district court's ruling, remanding the case back to the district court. The Company filed a petition for rehearing en banc, which the Seventh Circuit Court of Appeals denied. The Company filed a motion for dismissal on other grounds, which the court denied. The parties jointly requested, and the court granted, an extension of time for filing a responsive pleading, which was due on December 28, 2016. On February 9, 2017, the court denied the parties' request for another extension of time, dismissed the case without prejudice, and stated that plaintiffs could file a motion to reinstate. On March 8, 2017, plaintiffs filed a motion to reinstate, which the court granted on March 16, 2017. On March 17, 2017, plaintiffs filed a motion seeking preliminary approval of a class action settlement resolving this action, which the court granted on June 21, 2017. On August 21, 2017, plaintiffs moved for final approval of the proposed settlement. In September 2017, purported settlement class members filed two objections to the settlement, and plaintiffs and the Company filed responses to the objections on October 19, 2017. At the fairness hearing on October 26, 2017, the Court ordered supplemental briefing on the objections. Objectors filed a supplemental brief in support of their objections on November 9, 2017, and plaintiffs and the Company filed their supplemental responses to the objections on November 21, 2017. On January 16, 2018, an order was issued by the District Court reassigning the case to Judge Sharon Johnson Coleman due to the prior judge's retirement. The motion for final approval of the settlement remains pending. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Healthcare Plan Beneficiary Drops Class Claims ------------------------------------------------------------- Neiman Marcus Group LTD LLC disclosed in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that it has entered into a tentative settlement of a putative class action filed by a plan beneficiary. On October 24, 2017, a putative class action complaint was filed against The Neiman Marcus Group LLC and the Company's Health and Welfare Benefit Plan in the U.S. District Court for the Western District of Washington by a plan beneficiary alleging violations of the Federal Mental Health Parity Act and the Affordable Care Act through the Employment Retirement Income Security Act of 1974 ("ERISA") in connection with the alleged failure to cover particular treatments for developmental health conditions. Plaintiffs have agreed not to pursue their class claims and the parties have agreed to a tentative settlement with the named plaintiff. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Nguyen's PAGA Claims to be Resolved in Attia Pact ---------------------------------------------------------------- Neiman Marcus Group LTD LLC disclosed in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the California Labor Code Private Attorneys General Act ("PAGA") representative action filed by Xuan Hien Nguyen will be resolved in connection with the settlement of Holly Attia's claims, as Nguyen and her claims have been amended into Attia. As previously reported by the Class Action Reporter, a PAGA representative action was filed on June 1, 2016 against The Neiman Marcus Group, Inc. in the same court as Attia by Xuan Hien Nguyen pleading only PAGA claims and asserting the same factual allegations as the plaintiffs in Attia. The Company filed a motion to dismiss or to stay the case. In September 2016, the court granted the Company's motion and stayed the Nguyen case in light of Attia. At a status conference on September 5, 2017, the court maintained the stay and set a further status conference for November 8, 2017, Neiman Marcus said in its Form 10-K report for the fiscal year ended July 29, 2017. At a status conference on November 8, 2017, the court maintained the stay and set a further status conference for January 29, 2018, Neiman Marcus said in its Form 10-Q Report for the Quarterly Period Ended October 28, 2017. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: NLRB Proceedings over Class Action Waiver Pending ---------------------------------------------------------------- Neiman Marcus Group LTD LLC disclosed in its Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the remanded portion of the case related to the Company's Arbitration Agreement and class action waiver is pending before the National Labor Relations Board. In August 2015, the National Labor Relations Board ("NLRB") affirmed an administrative law judge's recommended decision and order finding that the Company's Arbitration Agreement and class action waiver violated the National Labor Relations Act ("NLRA"). The Company filed its petition for review of the NLRB's order with the U.S. Court of Appeals for the Fifth Circuit. This case has been stayed while another similar case has been pending before the U.S. Supreme Court, which was decided on May 21, 2018 and held that class action waivers in arbitration agreements are lawful under the NLRA and must be enforced under the Federal Arbitration Act. On June 1, 2018, the NLRB filed a motion to remove this case from abeyance, grant the Company's petition for review regarding the class action waiver issue consistent with the U.S. Supreme Court's decision, and remand the remainder of the case to the NLRB. On June 11, 2018, the U.S. Court of Appeals for the Fifth Circuit granted the NLRB's motion, and the remanded portion of the case is pending before the NLRB. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Roces Case Stayed Pending Approval of Attia Deal --------------------------------------------------------------- Neiman Marcus Group LTD LLC disclosed in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the putative class and representative action filed by Ondrea Roces and Sophia Ahmed has been stayed pending the settlement approval process in Holly Attia case. As previously reported by the Class Action Reporter, the case styled ONDREA ROCES and SOPHIA AHMED, individually and on behalf of all others similarly situated, the Plaintiff, v. The Neiman Marcus Group, LTD, LLC; and the Neiman Marcus Group, LLC, the Defendant, Case No. CGC-17-562858 (Cal. Super. Ct., Dec. 5, 2017), alleges that Neiman Marcus has systematically failed to pay Plaintiffs and all other Sales Associates for the full amount of time they have worked at Neiman Marcus. Sales Associates are paid on a commission basis. Neiman Marcus fails to pay Sales Associates for time performing non-commission-generating duties assigned by the Company. This practice deprives Sales Associates of the wages to which they are rightfully entitled under the law and constitutes a violation of state law. The case was removed from the San Francisco County Superior Court, CGC-17-562858, to the U.S. District Court for the Northern District of California, Case No. 4:18-CV-0221-YGR, on Jan. 10, 2018. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Rubenstein Settlement Wins Final Approval -------------------------------------------------------- Judge S. James Otero on October 1, 2018, entered a final judgment approving the settlement in the case, Linda Rubenstein v. The Neiman Marcus Group LLC et al., Case No. 2:14-cv-07155 (C.D. Cal.), as fair and reasonable. As to the request for attorney's fees, costs, and service award, the Court has completed a thorough analysis of the basis for the request. The Court finds that an award of 30% of the Common Fund, in the amount of $870,000 in fees to Class Counsel, Kirtland and Packard LLP, is appropriate, along with reimbursement of costs in the amount of $32,574.41, and Service Award to the Class Representative consisting of a $5,000 payment. The Court finds that the sum of $902,574.41 is reasonable compensation for Settlement Class Counsel's Fees and Litigation Expense Payment. Within 30 days after the Settlement Effective Date, ARX Management shall pay Settlement Class Counsel the Settlement Class Counsels Fees and Litigation Expense Payment. According to Neiman Marcus Group LTD LLC's Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, a final approval hearing was scheduled for October 1, 2018. On August 7, 2014, a putative class action complaint was filed against The Neiman Marcus Group LLC in Los Angeles County Superior Court by a customer, Linda Rubenstein, in connection with the Company's Last Call stores in California. Ms. Rubenstein alleges that the Company has violated various California consumer protection statutes by implementing a marketing and pricing strategy that suggests that clothing sold at Last Call stores in California was originally offered for sale at full-line Neiman Marcus stores when allegedly, it was not, and that the Company lacks adequate information to support its comparative pricing labels. In September 2014, the Company removed the case to the U.S. District Court for the Central District of California. After dismissing Ms. Rubenstein's original and first amended complaint, the court dismissed her second amended complaint in its entirety in May 2015, without leave to amend, and Ms. Rubenstein appealed. In April 2017, the Court of Appeal reversed, holding that Ms. Rubenstein's allegations were sufficient to proceed past the pleadings stage of litigation. The case was transferred back to the district court. On September 7, 2017, the district court issued an order permitting Ms. Rubenstein to file a proposed Third Amended Complaint, which modifies the putative class period. Additionally, Ms. Rubenstein filed a motion for class certification, which was fully briefed by both parties. The parties reached an agreement in principle to settle the case, subject to court approval. A notice of settlement was filed, and the hearing on Ms. Rubenstein's motion for class certification was vacated. On May 21, 2018, the court granted the motion for preliminary approval of the settlement and scheduled a final approval hearing for October 1, 2018. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Settlement of Attia Suit Gets Initial Court Approval ------------------------------------------------------------------- Neiman Marcus Group LTD LLC disclosed in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the district court has preliminarily approved the settlement of the putative class action initiated by Holly Attia. The Company has several wage and hour putative class action matters pending in California. The earliest, filed in December 2015 and amended in February 2016, was filed against The Neiman Marcus Group, Inc. by Holly Attia and seven other named plaintiffs, seeking to certify a class of non-exempt employees for alleged violations for failure to pay overtime wages, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to timely pay wages due at termination and failure to provide accurate itemized wage statements. Plaintiffs also allege derivative claims for restitution under California unfair competition law and a representative claim for penalties under the California Labor Code Private Attorneys General Act ("PAGA"), and all related damages for alleged violations (restitution, statutory penalties under PAGA, and attorneys' fees, interest and costs of suit). The case was removed to the U.S. District Court for the Central District of California in March 2016, and the Company filed a motion to compel arbitration and requested to stay the PAGA claim. In June 2016, the court granted the motion and compelled arbitration of the individual claims. The court retained jurisdiction of the PAGA claim and stayed that claim pending the outcome of arbitration. In October 2016, the court granted the plaintiffs' motion for reconsideration of the arbitration decision based on a recent decision by the Ninth Circuit Court of Appeals in Morris v. Ernst & Young, LLP, and reversed its order compelling arbitration. The Company appealed. The U.S. Supreme Court granted certiorari of the Morris decision, and the Ninth Circuit appeal is currently stayed pending the Supreme Court's decision. In June 2017, the district court stayed the entire case pending the Supreme Court's decision in Morris. The parties reached an agreement in principle to settle this case, subject to court approval. The motion for preliminary approval of the settlement was filed with the court on July 24, 2018. On September 5, 2018, the district court preliminarily approved the settlement. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEIMAN MARCUS: Still Defends NY Class Suit by Visually Impaired --------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K filed on September 18, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended July 28, 2018, that the defendant companies in a putative class suit filed by Victor Lopez have filed a joint answer denying the claims. On October 27, 2017, a putative class action complaint was filed against Neiman Marcus Group, Inc., The Neiman Marcus Group LLC, and Bergdorf Goodman, Inc. in the U.S. District Court for the Southern District of New York by Victor Lopez, an allegedly visually-impaired and legally blind individual, in connection with his visits to Bergdorf Goodman, Inc.'s website. Mr. Lopez alleges, on behalf of himself and those similarly situated, that Bergdorf Goodman, Inc.'s website is not fully and equally accessible to legally blind individuals, resulting in denial of access to the equal enjoyment of goods and services, in violation of the Americans with Disabilities Act and the New York State and City Human Rights Laws. The defendant Companies have filed a joint answer denying the claims. Neiman Marcus Group LTD LLC is one of the largest omni-channel luxury fashion retailers in the world, with approximately $4.7 billion in revenues for fiscal year 2017, of which approximately 31% were transacted online. Its Neiman Marcus, Bergdorf Goodman and MyTheresa brands represent fashion, luxury and style to its customers. The company offers a distinctive selection of women's and men's apparel, handbags, shoes, cosmetics and precious and designer jewelry from premier luxury and fashion designers to its loyal and affluent customers "anytime, anywhere, any device." NEW AGE MEDICAL: Made Unsolicited Calls, Abedi Suit Alleges ----------------------------------------------------------- DEEBA ABEDI, individually and on behalf of all others similarly situated, Plaintiff v. NEW AGE MEDICAL CLINIC PA; and DOES 1-10, inclusive, Defendants, Case No. 2:18-cv-14680-KM-SCM (D.N.J., Oct. 5, 2018) is an action for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendants in negligently contacting the Plaintiff on the Plaintiff's cellular telephone, without any express consent, in violation of the Telephone Consumer Protection Act. New Age Medical Clinic PA provides nutritional and dietary related services in California. [BN] The Plaintiff is represented by: Ross H. Schmierer, Esq. DeNITTIS OSEFCHEN PRINCE, P.C. 525 Route 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 E-mail: rschmierer@denittislaw.com - and - Todd M. Friedman, 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 NEW LEGEND: Underpays Drivers, Nichols Suit Alleges --------------------------------------------------- JAMES NICHOLS, individually and on behalf of all others similarly situated, Plaintiff v. NEW LEGEND, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 18STCV00003 (Cal. Super., Los Angeles, Cty., Oct. 5, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. Mr. Nichols was employed by the Defendants as driver. NEW Legend, Inc., doing business as Legend Transportation, provides transportation services. The Company offers asset based trucking, dry and refrigerated van freight, and warehousing services. Legend Transportation operates in the United States. [BN] The Plaintiff is represented by: Edward W. Choi, Esq. LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa St. Suite 1250 Los Angeles, CA 90010 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 - and - Larry W. Lee, Esq. Nicholas Rosenthal, Esq. DIVERSITY LAW GROUP, P.C. 515 S. Figueroa St., Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 E-mail: lwlee@diversitylaw.com nrosenthal@diversitylaw.com - and - David Lee, Esq. DAVID LEE LAW 515 S. Flower Street, Suite 3600 Los Angeles, CA 90071 Telephone: (213) 236-3536 Facsimile: (866) 658-4722 E-mail: David@DavidJLeeLaw.com NEW ORIENTAL: Bid to Drop Securities Class Lawsuit Still Pending ---------------------------------------------------------------- New Oriental Education & Technology Group Inc.'s motion to dismiss a putative securities class action in New Jersey remains pending, according to the Company's Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended May 31, 2018. New Oriental said, "Our Company and certain of our officers and directors have been named as defendants in a putative securities class action filed in the United States District Court for the District of New Jersey: Amy Chan v. New Oriental Education & Technology Group Inc., et al., Civil Action No. 16-cv-9279-KSH-CLW (filed on December 15, 2016). On March 30, 2017, the court entered an order appointing lead plaintiffs of this action. On May 30, 2017, the lead plaintiffs filed an amended complaint. "The pending action was purportedly brought on behalf of a class of persons who allegedly suffered damages as a result of their trading in our ADSs between September 28, 2016 and December 1, 2016. The amended complaint alleges that our Company's public filings contained material misstatements and omissions in violation of the federal securities laws. On July 31, 2017, our Company filed a motion to dismiss the amended complaint, which motion is currently pending before the court. "The action remains in its preliminary stages, with the court still to rule on New Oriental's motion to dismiss. We believe the case is without merit and intend to defend the action vigorously." New Oriental Education & Technology Group Inc. provides private educational services under the New Oriental brand in the People's Republic of China. It operates through Language Training and Test Preparation Courses, and Others segments. The Company was founded in 1993 and is headquartered in Beijing, the People's Republic of China. NEW PRIME: Supreme Court Hears Oral Arguments in Trucker's Case --------------------------------------------------------------- Leisa Boley Hellwarth, writing for Ohio Country Journal, reports that on Oct. 3, the US Supreme Court heard oral arguments in New Prime v. Oliveira, No. 17-340. While this is not an agricultural case, it is an important matter that impacts all of us, whether it is through increased transportation costs (if Oliveira prevails) or costs society bears from poorly paid workers (if New Prime prevails). Oliveira is a long-haul trucker with New Prime, although the trucking company considers him an independent contractor not an employee. That means any issues regarding pay disputes must be handled by arbitration according to New Prime. Arbitration is favored by companies, including New Prime, as it is streamlined and less expensive than litigation. Plaintiffs like Oliveira, however, dislike the practice because it denies them their day in court, and arbitration is viewed as less impartial. Furthermore, arbitration may be much less convenient for the worker in terms of location and time. New Prime, Inc. is a national trucking company that recruits and trains new drivers through an apprenticeship program. Student apprentices participating in this program are unpaid, except during one phase of the program when they receive 14 cents per mile driven. New Prime waives the tuition of student apprentices who agree to work for New Prime for one year after completing the program. After Dominic Oliveira successfully completed the apprenticeship program, New Prime encouraged him to become an independent contractor and referred him to other entities with offices in the same building and owned by the same company as New Prime to help him form a limited liability company named Hallmark Trucking LLC and to secure a truck. Oliveira, through Hallmark, signed an Independent Contractor Agreement with New Prime. The contract specified that there was no employer-employee relationship between Oliveira and New Prime, and that Oliveira was an independent contractor. The contract also contained an arbitration clause. Oliveira alleges New Prime under paid him and exercised such control over him that he was unable to work for other companies. He stopped driving for New Prime as an independent contractor. He did, however, later rejoin New Prime as a company driver. Dissatisfied with the pay as a company driver as well, Oliveira sued New Prime in the US District Court for the District of Massachusetts in a putative class action proceeding. Oliveira alleged that New Prime had failed to pay minimum wages under the Fair Labor Standards Act and the Missouri minimum wage statute. He also claimed breach of contract or unjust enrichment. New Prime's apprenticeship program enables the company to put two drivers in a truck, one unpaid, and allow New Prime's trucks to remain on the road for longer periods of time. While the apprentice does gain new skills and knowledge as a truck driver, he also incurs liability for training and equipment that is only forgiven if he goes to work for the company. If he leaves the company as an unhappy contractor before the apprenticeship charges are fulfilled, New Prime will pursue him for thousands of dollars for training and New Prime will fight hard to prevent the case from getting to court in the first place, which is what transpired in this case and why the Supreme Court is now deciding the outcome. New Prime invoked the Federal Arbitration Act and insists that Oliveira is forced to arbitrate his claim. To date, Oliveira has mostly prevailed with his claims in the lower courts. The major issue seems to be the meaning of "contracts of employ" which is language from 1925 and the days of President Calvin Coolidge. On Oct. 3 when oral arguments were heard by the Supreme Court, only eight justices were on the Court, and since Oliveira prevailed in the lower court, he only needs four votes to tip the scales of justice in his favor. Trucking companies claim a decision in favor of Oliveira will lead to a significant increase in transportation costs. Those in support of Oliveira, however, claim this case is fundamentally about whether companies that routinely violate the law -- in this case by underpaying their workers who are called "independent contractors" can use that law breaking to deny working people access to the courts. Independent contractor agreements are common in the agricultural industry, namely vertical integration grower contracts. Anyone signing an independent contractor agreement might want to watch for the Supreme Court's decision in New Prime v. Oliveira. [GN] NEWPORT TOWNSHIP, IL: Dismissal of Amended Reno Suit Affirmed ------------------------------------------------------------- In the case, DOUGLAS RENO, Individually and as the Representative of a Class of Similarly Situated Persons, Plaintiff-Appellant, v. NEWPORT TOWNSHIP; THE NEWPORT TOWNSHIP HIGHWAY DISTRICT; RANDY WHITMORE, in His Official Capacity as Supervisor of Newport Township; RODGER EDMONDS, in His Official Capacity as Newport Township Highway Commissioner; COREY KIRSCHHOFFER, DIANE CRITTENDEN, RON MILLER, and BETH HARTFORD, in Their Official Capacities as Trustees of Newport Township; and CARLA WYCKOFF, in Her Official Capacity as Clerk of the County of Lake, Defendants-Appellees, Case No. 2-17-0967 (Ill. App.), Judge Kathryn E. Zenoff of the Appellate Court of Illinois for the Second District affirmed the judgment of the circuit court of Lake County granting the Defendants' motions to dismiss the amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure. Reno, filed in the circuit court of Lake County a class-action complaint challenging a permanent road tax that was assessed on properties in Newport Township. He named as Defendants, Newport Township; the Newport Township Highway District; the Newport Township supervisor, Randy Whitmore; the Newport Township highway commissioner, Rodger Edmonds; and the Newport Township trustees, Corey Kirschhoffer, Diane Crittenden, Ron Miller, and Beth Hartford. He also named Carla Wyckoff in her capacity as the county clerk. In his amended class-action complaint, the Plaintiff challenged what he termed a permanent New Road Fund Levy, which appeared on Newport Township residents' property tax bills for tax year 2014. He asked the Court to certify a class consisting of all owners of real property in Newport Township who have been charged and paid the New Road Fund Levy. It is undisputed that the levy was imposed on properties in the township without having been submitted for the approval of the voters at a general election. Instead, Wyckoff extended the levy1 after the measure was approved by a majority of the residents who attended a special township meeting in September 2014 that was held for the purpose of addressing whether to impose the tax. The Plaintiff alleged in his amended complaint that the manner in which the levy was approved and extended deprived the proposed class of its right to vote on the measure at a general election, in violation of section 18-190(a) of the Property Tax Extension Limitation Law ("PTELL"). He further contended that the September 2014 township meeting was not properly noticed and that certain township officials acted inappropriately by (1) depleting the permanent road fund prior to September 2014 to make it seem that there was a dire need for a tax to be imposed at the maximum rate allowed by law; (2) orchestrating the September 2014 meeting with knowledge that the levy would not pass at a general election; (3) packing the September 2014 meeting with their supporters and friends; (4) requiring the residents who attended the September 2014 meeting to publicly state their stances on the issue; and (5) intending to use the unlawful levy as a slush fund to pay certain expenses that ought to be paid from a different fund. Through the action, the Plaintiff sought both a refund of the levied funds taken under the illegally adopted measure and an injunction requiring the Township to comply with PTELL. The Plaintiff requested additional relief for the deprivation of the substantive right of the prospective class to vote on and authorize property taxes pursuant to the Illinois Constitution, the Election Code and the Property Tax Code. Specifically, in Count I, the Plaintiff sought a declaratory judgment plus damages against all the Defendants for the violation of PTELL. In Count II, the Plaintiff requested an injunction against all the Defendants to prevent future violations of PTELL resulting from the levy. In Count III, he alleged unjust enrichment against only Newport Township and the Newport Township Highway District for retaining money that was collected in connection with the levy. In Count IV, he alleged that all the Defendants deprived the class of due process of law, in violation of section 1983 of the federal Civil Rights Act. The Township Defendants moved to dismiss the amended complaint, pursuant to section 2-619.1 of the Code. They offered four distinct reasons why the amended complaint, or portions thereof, were subject to dismissal pursuant to section 2-619: (1) under Shirar v. Elbridge Township, a circuit court lacks jurisdiction to hear a complaint regarding conduct at a township special meeting; (2) the Plaintiff's lawsuit was actually a property-tax-objection case for which the sole and exclusive remedy was provided in article 23 of the Property Tax Code; (3) the levy was not a "new rate" within the meaning of section 18-190(a) of PTELL; and (4) the Plaintiff's request for punitive damages and attorney fees in Count IV was barred by section 2-102 of the Local Governmental and Governmental Employees Tort Immunity Act. Wyckoff filed a separate motion to dismiss the amended complaint. She argued that the matter should be dismissed pursuant to both section 2-619(a)(1) and section 2-615 of the Code, as the Plaintiff was limited to filing a tax-objection complaint in accordance with the Property Tax Code. Alternatively, she argued, count IV, which asserted a section 1983 claim, should be dismissed for three other reasons: (1) a purported violation of state law does not afford a basis for relief, (2) the Plaintiff failed to avail himself of the adequate remedy provided in the tax-objection procedures set forth in the Property Tax Code, and (3) Wyckoff's conduct in extending the levy was a ministerial duty. The court dismissed all counts of the amended complaint with prejudice. It agreed with the Defendants that Plaintiff was required to file a tax-objection complaint instead of pursuing class-wide equitable relief. Accordingly, it dismissed the entire amended complaint pursuant to section 2-619 of the Code. Although the Court recognized that its ruling on this point was probably enough to have the parties on their way to the Appellate Court, it nevertheless addressed certain of the Defendants' remaining contentions. The Plaintiff filed a timely notice of appeal. He argues that the case presents a clear violation of PTELL, as the levy was not approved by voters at a general election. According to him, a lawsuit, such as his, alleging a willful violation of PTELL is not truly a tax objection, because he is not challenging the actual assessment process. Moreover, although property owners generally are barred from seeking redress outside of the statutory tax-objection procedures, the Plaintiff claims that his amended complaint implicated the recognized "unauthorized-by-law" exception to that rule. He further maintains that the statutory tax-objection procedures do not provide an adequate remedy at law for intentional violations of PTELL, because the tax imposed on any particular property owner might easily be less than the fee to file a tax-objection complaint, and property owners would have to file new objections each year. Judge Zenoff holds that the trial court properly dismissed the amended complaint pursuant to section 2-619 of the Code, as the statutory tax-objection procedures provide the Plaintiff an exclusive and adequate remedy at law and no exception applies so as to allow his current claims to proceed. In light of her holdings, the Judge needs not address the numerous other reasons why the Defendants believe the Court may affirm the trial court's judgment. For the reasons stated, Judge Zenoff affirmed the judgment of the circuit court of Lake County. A full-text copy of the Court's Sept. 25, 2018 Opinion is available at https://is.gd/yYpEuQ from Leagle.com. NEXSTAR MEDIA: One Source Suit Moved to Northern Dist. of Illinois ------------------------------------------------------------------ ONE SOURCE HEATING & COOLING, LLC PO Box 739 Gardendale, Alabama 35071, the Plaintiff, vs. GRAY TELEVISION, INC. 4370 Peachtree Road, NE, Suite 400 Atlanta, Georgia 30319; HEARST COMMUNICATIONS INC. 300 West 57th Street New York, New York 10019; NEXSTAR MEDIA GROUP, INC. 545 East John Carpenter Freeway, Suite 700 Irving, Texas 75062; SINCLAIR BROADCAST GROUP, INC. 10706 Beaver Dam Road Hunt Valley, Maryland 21030; TEGNA, INC. 7950 Jones Branch Drive McLean, Virginia, 22107; TRIBUNE MEDIA COMPANY 515 North State Street Chicago, Illinois 60654; and TRIBUNE BROADCASTING COMPANY, LLC 435 N. Michigan Avenue Chicago, Illinois 60611, the Defendants, Case No.: 1:18-cv-02765, was transferred from the U.S. District Court for the District of Maryland, to the U.S. District Court for the Northern District of Illinois (Chicago) on Oct. 15, 2018. The Northern District of Illinois Court Clerk assigned Case No.: 1:18-cv-06882 to the proceeding. The case is assigned to the Hon. Judge Virginia M. Kendall. This antitrust class action arises from a conspiracy among Defendants and their co-conspirators to fix prices for commercials to be aired on broadcast television stations throughout the United States in violation of Sections 1 and 3 of the Sherman Act, by sharing competitively sensitive information through their advertising sales teams. Defendants' and their co-conspirators' unlawful collusion led to supracompetitive prices in the market for the sale of television advertising.[BN] Attorneys for Plaintiff: James M. Terrell, Esq. MCCALLUM, METHVIN & TERRELL, P.C. 2201 Arlington Avenue South Birmingham, AL 35205 Telephone: (205) 939-0199 - and - Jayne Conroy, Esq. Justin Presnal, Esq. SIMMONS HANLY CONROY LLC 112 Madison Avnenue, 7th Floor New York, NY 10016 Telephone: (212) 784-6400 E-mail: jconroy@simmonsfirm.com jpresnal@simmonsfirm.com - and - Lesley E. Weaver, Esq. BLEICHMAR FONTI & AULD LLP 555 12th Street, Suite 1600 Oakland, CA 94607 Telephone: (415) 445-4004 E-mail: lweaver@bfalaw.com - and - Jonathan Schochor, Esq. SCHOCHOR FEDERICO AND STATON PA 1211 Saint Paul St Baltimore, MD 21202 Telephone: (410) 234 1000 Facsimile: (410) 234-1010 E-mail: jschochor@sfspa.com Attorneys for Defendants: John Augustine Bourgeois, Esq. KRAMON AND GRAHAM PA One South St Ste 2600 Baltimore, MD 21202 Telephone: (410) 752-6030 E-mail: jbourgeois@kg-law.com - and - Daniel H. Levi, Esq. Jay Cohen, Esq. William B. Michael, Esq. PAULO, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3497 E-mail: dlevi@paulweiss.com jaycohen@paulweiss.com wmichael@paulweiss.com OHIO CIVIL SERVICE: Nathaniel Ogle Sues over Agency Fees -------------------------------------------------------- Nathaniel Ogle, on behalf of himself and a class similarly situated, the Plaintiff, v. Ohio Civil Service Employees Association, AFSCME, Local 11, the Defendant, Case: 2:18-cv-01227-ALM-CMV (S.D. Ohio, Oct. 15, 2018), seeks redress from the Ohio Civil Service Employees Association for its unconstitutional seizure of agency fees from public employees without their consent. According to the complaint, Ogle was compelled to pay fair share fees to OCSEA, which were automatically deducted from his paycheck. OCSEA's collective bargaining agreements with other public employers in Ohio also contain forced fee clauses that compelled nonmembers of the union to pay fees to the union as a condition of their employment. On June 27, 2018, the Supreme Court held in Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2486 (2018), that forced fee requirements is unconstitutional under the First Amendment and that unions could not constitutionally collect union dues or fees from public employees without their affirmative consent. OCSEA's seizure of fair share fees from Ogle, and from other employees who did not affirmatively consent to paying such fees prior to their exaction, violated their First Amendment rights, the lawsuit says.[BN] Attorneys for Plaintiffs: Donald C. Brey, Esq. TAFT STETTINIUS & HOLLISTER LLP 65 E. State Street, Suite 1000 Columbus, OH 43215 Telephone: (614) 334-6105 E-mail: dbrey@taftlaw.com - and - Aaron B. Solem, Esq. William L. Messenger, Esq. NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION 8001 Braddock Road, Suite 600 Springfield, VA 22160 Telephone: (703) 321-8510 E-mail: wlm@nrtw.org abs@nrtw.org PENN-RIDGE TRANSPORTATION: Removes Castellon Suit to C.D. Cal. -------------------------------------------------------------- In the case, CARLOS CASTELLON; ALEJANDRO AVILLA; JUAN GABRIEL ACOSTA, individually and on behalf of all others similarly situated, Plaintiffs v. PENN-RIDGE TRANSPORTATION, INC.; BEST BUY CO., INC. D/B/A MN BEST BUY CO.; BEST BUY ENTERPRISE SERVICES, INC.; BEST BUY PURCHASING LLC; BEST BUY WAREHOUSING LOGISTICS, INC.; BEST BUY STORES, L.P.; PACIFIC SALES KITCHEN AND BATH CENTERS, LLC; PATRICK MCCUSKEY; JILL REMICK; DONALD STANLSZEWSKI; KATHLEEN M BRUCE; FOX RIVER ACCOUNTING SERVICES, LLC; CONTROL TRANSPORTATION SERVICES, INC.; PENN-RIDGE TRANSPORTATION, INC.; XOCHITL I. PAZOS D/B/A JIREH LOGISTICS; and ROES 1 THROUGH 20 INCLUSIVE, Defendants, the Defendants a notice to remove the lawsuit from the Superior Court of the State of California, County of San Bernardino (Case No. CIVDS1508746) to the U.S. District Court for the Central District of California on October 5, 2018. The Central District of California clerk of court assigned Case No. 5:18-cv-02136-AG-KK (C.D. Cal., Oct. 5, 2018). The case is assigned to Judge Andrew J. Guilford, and referred to Magistrate Judge Kenly Kiya Kato. Penn-Ridge Transportation Inc provides trucking transportation services. The Company offers shuttle operations, cross-dock operations, warehouse inventory management, and home delivery services. Penn-Ridge Transportation serves customers in the United States. [BN] The Plaintiffs are represented by: David P Myers, Esq. Jason T Hatcher, Esq. Robert M Kitson, Esq. MYERS LAW GROUP APC 9327 Fairway View Place Suite 100 Rancho Cucamonga, CA 91730 Telephone: (909) 919-2027 Facsimile: (888) 375-2102 E-mail: dmyers@myerslawgroup.com jhatcher@myerslawgroup.com rkitson@myerslawgroup.com The Defendants are represented by: Christopher Chad McNatt, Jr., Esq. Megan Emslie Ross, Esq. SCOPELITIS GARVIN LIGHT HANSON AND FEARY LLP 2 North Lake Avenue Suite 560 Pasadena, CA 91101 Telephone: (626) 795-4700 Facsimile: (626) 795-4790 E-mail: cmcnatt@scopelitis.com mross@scopelitis.com - and - Christopher John Taylor, Esq. MORGAN LEWIS & BOCKIUS LLP 600 Anton Blvd Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0698 Facsimile: (949) 399-7001 E-mail: christopher.taylor@morganlewis.com - and - Barbara J Miller, Esq. MORGAN LEWIS AND BOCKIUS LLP 600 Anton Bouleard Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 Facsimile: (714) 830-0700 E-mail: barbara.miller@morganlewis.com PENNSYLVANIA: Court Dismisses R. Harold's Suit ---------------------------------------------- In the case, RUSSELL HAROLD and SEAN WILLIAMS, on behalf of themselves and others similarly situated Plaintiffs, v. LESLIE RICHARDS, in her official capacity as Secretary of Transportation of the Pennsylvania Department of Transportation; LEO BAGLEY, in his official capacity as Executive Deputy Secretary of the Pennsylvania Department of Transportation; KURT MYERS, in his official Capacity as Deputy Secretary for Driver and Vehicle Services of the Pennsylvania Department of Transportation; and TOM WOLF, in his official capacity as Governor of Pennsylvania Defendants, Civil Action No. 18-115 (E.D. Pa.), Judge Cynthia M. Ruffe of the U.S. District Court for the Eatern District of Pennsylvania (i) granted the Defendants' motion to dismiss, and (ii) dismissed as moot the Plaintiffs' motions for a preliminary injunction and for class certification. The Plaintiffs have filed a proposed class action on behalf of Pennsylvania residents whose driver's licenses are suspended upon conviction of any offense involving controlled substances, under Pennsylvania law, federal, law, or the law of any other state, regardless of whether the offense involved a vehicle or traffic safety.1 Defendants, sued in their official capacities, are the governor of Pennsylvania and officials of the Pennsylvania Department of Transportation, which has the exclusive authority to suspend or revoke driver's licenses. They allege that the suspension of their driver's licenses violates equal protection because it discriminates against people with drug convictions without a rational connection to a legitimate state purpose (Count One); violates procedural due process because it creates an irrebuttable presumption against Plaintiffs, depriving them of their property rights (Count Two); and violates substantive due process because it deprives them of the fundamental right to intrastate travel without being narrowly tailored to achieve a significant government interest (Count Three). The Plaintiffs request declaratory and injunctive relief barring the suspension of driver's licenses for drug offenses that do not involve traffic safety and ordering the reinstatement of their driver's licenses. The Plaintiffs move for a preliminary injunction and to certify the class of all individuals whose Pennsylvania driver's licenses are currently suspended or will be suspended due to a conviction of any offense involving the possession, sale, delivery, offering for sale, holding for sale, or giving away of any controlled substance under the laws of the United States, Pennsylvania, or any other state, pursuant to 75 Pa. Cons. Stat. Section 1532(c). The Defendants move to dismiss the Complaint for failure to state a claim upon which relief may be granted. Judge Ruffe holds that the Court in no way minimizes the burdens imposed by the suspension of a driver's license, and the Plaintiffs raise strong policy arguments against continued enforcement of the Pennsylvania statute that they may raise with the Governor and the legislature. But as the late Hon. Louis H. Pollak wrote, it is not, however, the province of a federal court to guard states from unwisdom unless that unwisdom transcends constitutional limitations. A state law that may be unwise, improvident, or out of harmony with a particular school of thought is not thereby unconstitutional. In the strong words of Justice Frankfurter, much that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The Court does not make policy decisions and takes no position as to whether the current framework is wise or socially beneficial. That is a decision to be made by the Pennsylvania legislative and executive branches in the first instance. The Court only determines that as a matter of law the Plaintiffs have not alleged a violation of rights secured under the Constitution of the United States. For these reasons, the Judge therefore dismissed the Complaint. A full-text copy of the Court's Sept. 25, 2018 Memorandum Opinion is available at https://is.gd/iJ7gjm from Leagle.com. RUSSELL HAROLD & SEAN WILLIAMS, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, Plaintiffs, represented by ZAK T. GOLDSTEIN -- ztg@goldsteinmehta.com -- Goldstein Mehta LLC, CATHERINE SEVCENKO -- catherine@equaljusticeunderlaw.org -- EQUAL JUSTICE UNDER LAW, MARISSA HATTON -- mhatton@equaljusticeunderlaw.org -- EQUAL JUSTICE UNDER LAW, PHIL TELFEYAN -- ptelfeyan@equaljusticeunderlaw.org -- EQUAL JUSTICE UNDER LAW & REBECCA RAMASWAMY -- rramaswamy@equaljusticeunderlaw.org -- EQUAL JUSTICE UNDER LAW. LESLIE RICHARDS, IN HER OFFICIAL CAPACITY AS SECRETARY OF TRANSPORTATION OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, LEO BAGLEY, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DEPUTY SECRETARY OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, KURT MYERS, IN HIS OFFICIAL CAPACITY AS DEPUTY SECRETARY FOR DRIVER AND VEHICLE SERVICES OF THE PENNSYLVANIA DEPARTMENT OF TRANSPORTATION & TOM WOLF, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF PENNSYLVANIA, Defendants, represented by A. MICHAEL PRATT -- prattam@pepperlaw.com -- PEPPER, HAMILTON & SCHEETZ, BARAK BASSMAN -- bassmanb@pepperlaw.com -- PEPPER HAMILTON LLP, HEDYA ARYANI, SHOOK, HARDY & BACON L.L.P., JANINE P. YANIAK -- yaniakj@pepperlaw.com -- PEPPER HAMILTON, JOSEPH ZAFFARESE -- jzaffarese@azlawllc.com -- AHMAD ZAFFARESE LLC & KAY KYUNGSUN YU -- kyu@azlawllc.com -- Ahmad Zaffarese LLC. PETTA ENTERPRISES: Court Grants Settlement Deal Final Approval -------------------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, issued an Order granting Plaintiff's Unopposed Motion for Final Approval of the Settlement Agreement in the case captioned JESSE GRAYBILL, Plaintiff, v. PETTA ENTERPRISES, LLC, Defendant. Case No. 2:17-cv-418. (S.D. Ohio). The United States Magistrate Judge issued a Report and Recommendation recommending that the Plaintiff's Unopposed Motion for Final Approval be granted and that the Settlement Agreement be approved by the Court. The Report and Recommendation is adopted and affirmed. For the reasons set forth in detail in the Report and Recommendation, the Court finds that the Plaintiff has met his burden of showing that the prerequisites for the certification of a class action pursuant to Rule 23(a) and Rule 23(b)(3) have been satisfied in this case, that the Settlement Agreement is fair, reasonable, and adequate, and that Class Counsel's requested award of fees and expenses is fair and reasonable. Accordingly, it is ordered that because the proposed settlement of the action on the terms and conditions set forth in the Settlement Agreement is fair, reasonable, adequate, and in the best interest of the Class, that Plaintiff's Unopposed Motion for Final Approval be granted and that the Settlement Agreement be finally approved by the Court. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y82svex8 from Leagle.com. Jesse Graybill, Plaintiff, represented by Matthew James Porter Coffman, Coffman Legal, LLC & Peter Alan Contreras, Contreras Law, Peter Alan Contreras, Contreras Law. Petta Enterprises, LLC, Defendant, represented by Daren S. Garcia -- dsgarcia@vorys.com -- Vorys Sater Seymour & Pease, Benjamin Adam Shepler -- bashepler@vorys.com -- Vorys, Sater, Seymour & Pease LLP & Jesse A. Meade -- jameade@vorys.com -- Vorys, Sater, Seymour and Pease. PETTA ENTERPRISES: Final Approval of Graybill Settlement Endorsed ----------------------------------------------------------------- In the case, JESSE GRAYBILL, Plaintiff, v. PETTA ENTERPRISES, LLC, Defendant, Case No. 2:17-cv-418 (S.D. Ohio), Judge Elizabeth A. Preston Deavers of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommended that the Court grants Graybill's Unopposed Motion for Final Approval and his counsel's Unopposed Motion for Attorneys' Fees and Reimbursement of Costs as well as a supplement to that request. The case is a collective action under the Fair Labor Standards Act, and a class action under Rule 23 of the Federal Rules of Civil Procedure, in which the Representative Plaintiff alleges the Defendant, a for-profit liability company that provides environmental and oil rig cleaning services for its oil and gas industry customers, failed to compensate individuals working as field supervisors or technicians with overtime pay in violation of the FLSA, the Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act, and the Ohio Constitution, Article II Section 34(a). Specifically, the Plaintiff alleges that the Defendants' field supervisors and technicians spent off-the-clock time before and after their shifts preparing the trucks for service and breaking them down at the end of the shift. The Defendant denies that any such violations occurred, taking the position that field supervisors were sufficiently paid for pre-shift and post-shift work and that technicians were not required to perform any pre-shift or post-shift work. After the case was filed, the parties engaged in informal discovery and private mediation. Thereafter, the parties reached a settlement and the Representative Plaintiff moved, unopposed, for the Court to preliminarily approve settlement of the Section 216(b) and Rule 23 class action claims. On April 25, 2018, the Court granted the Representative Plaintiff's unopposed motion and preliminarily approved the parties' settlement and preliminarily certified the settlement class and collective action, pursuant to Rule 23 and Section 216 of the FLSA, of all individuals who work or worked for the Defendant at any time from May 16, 2015, through April 25, 2018, as non-exempt and/or hourly employees and performed work as a field supervisor or technician. Pursuant to the parties' agreement, the Defendant would make funds available for settlement in the gross amount of $97,500, with $38,955 of that total available amount to be used for attorneys' fees to class counsel; $2,099.12, to be used for costs expended by class counsel; and $5,500 of that to be paid as a service award to the Representative Plaintiff. The Court appointed Coffman Legal, LLC and Contreras Law, LLC as the class counsel for purposes of the settlement and approved Jesse Graybill as the Representative Plaintiff. The Court further approved Optime Administration, LLC as the claims administrator for the purpose of the settlement, authorized notice to be sent to the potential Plaintiffs, and approved the proposed procedure for opting out of the class. The Court also referred the matter to the Magistrate Judge to conduct a fairness hearing and to issue a report and recommendation. Consistent with Paragraph 53(c), (e) of the Settlement Agreement, the Claims Administrator provided notice to the Settlement Class. The 60-day notice period began on May 21, 2018, when the Claims Administrator mailed out the notices. The Claims Administrator received no objections and no objections were filed with the Court. The Representative Plaintiff has filed an Unopposed Motion for Final Approval and his counsel has filed an Unopposed Motion for Attorneys' Fees and Reimbursement of Costs as well as a supplement to that request. On Sept. 18, 2018, a fairness hearing was conducted. Magistrate Judge Preston Deavers finds that the Plaintiff has met his burden of showing that the prerequisites for the certification of a class action pursuant to Rule 23(a) and Rule 23(b)(3) have been satisfied in the case, that the Settlement Agreement is fair, reasonable, and adequate, and that the Class Counsel's requested award of fees and expenses is fair and reasonable. Accordingly, she recommended that: (1) because the proposed settlement of the action on the terms and conditions set forth in the Settlement Agreement is fair, reasonable, adequate, and in the best interest of the Class, the Plaintiff's Unopposed Motion for Final Approval be granted and that the Settlement Agreement be finally approved by the Court; (2) the FLSA claims be finally certified pursuant to 29 U.S.C. Section 216(b), and that the following Settlement Class be finally certified pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3): All individuals who work or worked for the Defendant at any time from May 16, 2015, through April 25, 2018, as non-exempt and/or hourly employees and performed work as a field supervisor or technician; (3) the action be dismissed with prejudice pursuant to the terms of the Settlement Agreement; (4) the Settlement Class, the Representative Plaintiff, and the Defendant be bound by the release as set forth in the Settlement Agreement; and (5) the Class Counsel's Unopposed Motion for Fees and Costs be granted and that the Class Counsel be awarded reasonable attorneys' fees in the amount of $38,955, and reimbursement of expenses in the amount of $2,099.12, for a total combined amount of $41,054.12; and that the Representative Plaintiff be awarded a service award in the amount of $5,500, in addition to recovery for unpaid time expended on pre-shift and post-shift work. A full-text copy of the Court's Sept. 25, 2018 Report & Recommendation is available at https://is.gd/7DwBlf from Leagle.com. Jesse Graybill, Plaintiff, represented by Matthew James Porter Coffman -- mcoffman@mcoffmanlegal.com -- Coffman Legal, LLC & Peter Alan Contreras -- peter.contreras@contrerasfirm.com -- Contreras Law. Petta Enterprises, LLC, Defendant, represented by Daren S. Garcia -- dsgarcia@vorys.com -- Vorys Sater Seymour & Pease, Benjamin Adam Shepler -- bashepler@vorys.com -- Vorys, Sater, Seymour & Pease LLP & Jesse A. Meade -- jameade@vorys.com -- Vorys, Sater, Seymour and Pease. PINNACLE FOODS: Files Supplemental Info to Appease Merger Suits --------------------------------------------------------------- In order to avoid the risk of class actions delaying or adversely affecting its merger with Conagra Brands, Inc., and to minimize the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, Pinnacle Foods Inc. has determined to voluntarily file supplemental disclosures in its definitive proxy statement, which was filed with the U.S. Securities and Exchange Commission. A full-text copy of the supplemental disclosures as part of the Pinnacle's Form 8-K dated September 27, 2018 is available at https://bit.ly/2RgShws On June 26, 2018, Pinnacle Foods Inc., a Delaware Corporation (the "Company" or "Pinnacle Foods"), entered into an Agreement and Plan of Merger (the "Merger Agreement") with Conagra Brands, Inc., a Delaware corporation ("Conagra"), and Patriot Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Conagra ("Merger Sub"). The Merger Agreement provides for the merger of Merger Sub with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly-owned subsidiary of Conagra. Since the June 27, 2018 announcement of the Merger Agreement, three putative class action complaints have been filed in the United States District Court for the District of New Jersey against the Company and its directors. The three complaints are captioned as follows: Alexander Rasmussen v. Pinnacle Foods Inc. et al., Case No. 2:18-cv-12501 (filed August 7, 2018), Robert H. Paquette v. Pinnacle Foods Inc. et al., Case No. 2:18-cv-12578 (filed August 9, 2018), and Wesley Lindquist v. Pinnacle Foods Inc. et al., Case No. 2:18-cv-12610 (filed August 9, 2018) (collectively, the "Federal Merger Litigation"). The plaintiffs in the Federal Merger Litigation (the "Federal plaintiffs"), who purport to be stockholders of the Company, generally allege that the Company's preliminary proxy statement filed with the Securities and Exchange Commission ("SEC") on July 25, 2018 (the "Preliminary Proxy Statement") omitted certain material information in connection with the Merger. The Federal plaintiffs seek various remedies, including, among other things, injunctive relief to prevent the consummation of the Merger unless certain allegedly material information is disclosed, an award of damages and an award of attorneys' fees and expenses. Separately, one putative class action complaint has been filed in the Court of Chancery of the State of Delaware against the Company and its directors, Conagra and Merger Sub. The complaint is captioned Jordan Rosenblatt v. Pinnacle Foods Inc. et al., Case No. 2018-0605 (filed August 15, 2018) (the "Delaware Merger Litigation" and, together with the Federal Merger Litigation, the "Merger Litigation"). The plaintiff in the Delaware Merger Litigation (the "Delaware plaintiff"), who purports to be a stockholder of the Company, generally alleges that the directors of the Company breached their fiduciary duty of disclosure by filing the Preliminary Proxy Statement that contained materially incomplete and misleading information. The Delaware plaintiff further alleges that Pinnacle, Conagra and Merger Sub aided and abetted the directors' alleged breach of fiduciary duty. The Delaware plaintiff seeks various remedies, including, among other things, injunctive relief to prevent the consummation of the Merger, rescission of the Merger or an award of rescissory damages should the Merger be consummated, an award of damages and an award of attorneys' fees and expenses. The Company believes that the claims asserted in the Merger Litigation are without merit and no supplemental disclosure is required under applicable law. However, in order to avoid the risk of the Merger Litigation delaying or adversely affecting the Merger and to minimize the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, the Company has determined to voluntarily supplement the definitive proxy statement filed with the SEC on September 17, 2018 (the "Definitive Proxy Statement"). The Company specifically denies all allegations in the Merger Litigation that any additional disclosure was or is required. Pinnacle Foods Inc. manufactures, markets, and distributes branded convenience food products in North America. It operates through four segments: Frozen, Grocery, Boulder, and Specialty. Pinnacle Foods Inc. is headquartered in Parsippany, New Jersey. POST CONSUMER: Lima et al. Allege Cereal Products Mislabeled ------------------------------------------------------------ ANITA S. LIMA; and SUSAN WRUBLEWSKI, individually and on behalf of all others similarly situated, Plaintiff v. POST CONSUMER BRANDS, LLC, Defendant, Case No. 1:18-cv-12100 (D. Mass., Oct. 5, 2018) is an action against the Defendant for falsely and deceptively selling and marketing cereal products sweetened primarily by honey. The Plaintiffs allege in the complaint that the Defendant made a false, deceptive and misleading representations to their product known as "Honey Bunches of Oats." The Defendants branded and packaged the cereal conveying that honey is the primary sweetener, or at the very least the significant sweetener. However, the cereals are sweetened primarily with sugar, corn syrup, and other processed substances, and contain only a miniscule amounts of honey. Post Consumer Brands (previously Post Cereals and Postum Cereals) is an American consumer cereal brand that includes Honey Bunches of Oats, Pebbles, Great Grains, Post Shredded Wheat, Post Raisin Bran, Grape-Nuts, Honeycomb, Frosted Mini Spooners, Golden Puffs, Oh's, Cinnamon Toasters, Fruity Dyno-Bites, Cocoa Dyno-Bites, Berry Colossal Crunch and Malt-O-Meal hot wheat cereal. [BN] The Plaintiffs are represented by: Kenneth D. Quat, Esq. QUAT LAW OFFICES 929 Worcester Rd. Framingham, MA 01701 Telephone: (508) 872-1261 E-mail: ken@quatlaw.com - and – Michael R. Reese, Esq. Carlos F. Ramirez, Esq. REESE LLP 100 West 93rd St., 16th Floor New York, NY 10025 Telephone: (212) 643-0500 E-mail: mresses@ressellp.com cramirez@reesellp.com PRETIUM RESOURCES: Bronstein Gewirtz Files Class Action ------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notifies investors that a class action lawsuit has been filed against Pretium Resources Inc. ("Pretium" or the "Company) (NYSE: PVG) and certain of its officers, on behalf of shareholders who purchased or otherwise acquired Pretium securities between July 21, 2016 and September 6, 2018,both dates inclusive (the 'Class Period). Such investors are encouraged to join this case by visiting the firm's site:www.bgandg.com/pvg. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934. The Complaint alleges that Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) the Brucejack Project is not a high-grade, high-output mine; and (2) consequently, defendants' statements about Pretium's business, operations, and prospects were materially false and/or misleading and/or lacked a reasonable basis. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site:www.bgandg.com/pvgor you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Pretium you have until November 6, 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. [GN] PRINCE DELI: Ochoa Seeks Overtime Wages under FLSA -------------------------------------------------- LUIS ANTONIO ORTIZ OCHOA, individually and on behalf of others similarly situated, the Plaintiff, vs. PRINCE DELI GROCERY CORP. (D/B/A PRINCE DELI GROCERY) and ABDO S. ANAM (A.K.A. ABDO SALEH), the Defendants, Case 1:18-cv-09417-ER (S.D.N.Y., Oct. 15, 2018), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, Mr. Ortiz is a former employee of Prince Deli Grocery Corp. The Defendants own, operate, or control a deli, located at 1461 5th Ave, New York, NY 10035 under the name "Prince Deli Grocery". Plaintiff Ortiz worked for the Defendants in excess of 40 hours per week, without appropriate overtime and spread of hours compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate record-keeping of the hours worked, failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, the Defendants failed to pay Plaintiff Ortiz the required "spread of hours" pay for any day in which he had to work over 10 hours a day, the lawsuit says.[BN] Attorneys for Plaintiff: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 REA ENERGY: Dismissal of Suit Over Patronage Capital Affirmed ------------------------------------------------------------- The United States Court of Appeals, Third Circuit, issued an Opinion affirming the District Court's judgment granting Defendant's Motion to Dismiss the case captioned LEONARD CESSNA, on behalf of himself and all others similarly situated; GEORGE WORK, on behalf of himself and all others similarly situated, Appellants, v. REA ENERGY COOPERATIVE, INC. No. 18-1397. (3rd Cir.). They now appeal the Court's interpretation of the federal officer removal statute and its dismissal of their contract claims. Leonard Cessna and George Work brought a class action in Pennsylvania state court against their non-profit electrical utility, REA Energy Cooperative, Inc. They claim that, by retaining all the members' Patronage Capital for years at a time and failing to pay its members with any regularity, REA has violated its bylaws, which incorporate 15 Pa.C.S. Section 7330. The statute requires Pennsylvania electrical cooperatives to return, from time to time, to the members revenues not required for operating expenses, loan payments, new projects, or other contingencies. The District Court correctly granted REA's motion to dismiss for Cessna and Work's failure to state a claim for breach of contract. Such a claim requires a plaintiff to plead (1) the existence of a contract (including its essential terms (2) a breach of the contract, and (3) damages. Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. Ct. 2004). Both parties agree that the bylaws establish the existence of a contract and that Cessna and Work allege money damages. As for element two, we are not persuaded of any breach. They argue REA breached the contract by failing to distribute Patronage Capital. However, the bylaws read in pertinent part: If, at any time prior to dissolution or liquidation, the Board of Directors shall determine that the financial condition of the Cooperative shall not be impaired thereby, the capital then credited to members' accounts may be returned in full or in part. Because this provision is plainly permissive, there is no claim for breach of contract. Cessna and Work further argue that the District Court erred when it failed to read the covenants of good faith and fair dealing into REA's bylaws. Although good faith and fair dealing may be used as a tool to interpret a contract, it cannot be used to override an express contractual term. Here, the plain language of the bylaws addressed both Patronage Capital and the relief sought by Cessna and Work. Thus the District Court did not err in granting REA's motion to dismiss. A full-text copy of the Third Circuit's October 15, 2018 Opinion is available at https://tinyurl.com/y9fbj8dg from Leagle.com. RIPPLE LABS: Greenwald Securities Suit Remanded to Superior Court ----------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Plaintiffs' Motion to Remand the case captioned AVNER GREENWALD, Plaintiff, v. RIPPLE LABS, INC., et al., Defendants. Case No. 18-cv-04790-PJH. (N.D. Cal.). This is a putative securities class action brought by plaintiff Greenwald against defendants Ripple Labs, Inc. (Ripple), XRP II, LLC, a subsidiary of Ripple and various individual defendants. In summary, plaintiff alleges that Ripple created a digital currency called XRP and from 2013 to the present, defendants and their affiliates have been engaged in an ongoing scheme to sell XRP to the general public. Plaintiff Greenwald, a resident of Israel, alleges that he bought and sold XRP in both USD and Bitcoin and suffered losses on those investments as a result of the defendants' scheme Pursuant to CAFA, a defendant may remove an action under Section 1453 if the amount in controversy exceeds $5 million, the putative class has more than 100 members, and the parties are minimally diverse. First, defendants argue that Luther only addressed removal based on CAFA's minimal diversity jurisdiction, whereas the present action was removed based on CAFA's alienage jurisdiction because plaintiff Greenwald is a citizen of Israel. Neither Luther nor CAFA supports that distinction. Nothing in Luthersuggests that the decision hinged on removal being premised on minimal diversity jurisdiction, rather than alienage jurisdiction. Second, defendants' alienage jurisdiction-related policy arguments also do not move the needle. As an initial matter, those arguments do not override Luther. Moreover, Congress has already made clear that removal bars trump the policy considerations unique to alienage jurisdiction. Section 1332(a)(2) gives district courts original jurisdiction over actions between citizens of a State and citizens or subjects of a foreign state. Third, defendants reliance on this court's decision in Coffey is misplaced. In Coffey, plaintiff's state law claims satisfied the removal requirements of Section 1453. Coffey, 2018 WL 3812076, at *2. That allowed the entire action, including the Securities Act claims, to be removed. Fourth, defendants argue that CAFA's plain language allows removal despite Section 22(a), and that Luther was wrongly decided and should be limited or reconsidered. Regardless of what defendants think CAFA's plain language allows, Luther held that Section 22(a) bars removal of pure Securities Act claims. And while defendants are free to argue to the Ninth Circuit that Lutherwas wrongly decided, those arguments fail to persuade this court Accordingly, the court grants the plaintiff's motion and remands the action to San Mateo County Superior Court. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/ybb3h9pf from Leagle.com. Avner Greenwald, Plaintiff, represented by John T. Jasnoch -- jjasnoch@scott-scott.com -- Scott+Scott Attorneys at Law LLP & Thomas L. Laughlin, IV -- tlaughlin@scott-scott.com -- Scott+Scott, Attorneys at Law, LLP, pro hac vice. Ripple Labs, Inc., XRP II, LLC, Bradley Garlinghouse, Christian Larsen, Ron Will, Antoinette O'Gorman, Eric van Miltenburg, Susan Athey, Zoe Cruz, Ken Kurson, Ben Lawsky, Anja Manuel & Takashi Okita, Defendants, represented by John M. Neukom -- john.neukom@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP, Virginia Faye Milstead -- virginia.milstead@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Peter Bradley Morrison -- pmorriso@skadden.com -- Skadden Arps Slate Meagher and Flom LLP. ROYAL WINE: Faces Wu Suit in Eastern District of New York --------------------------------------------------------- A class action lawsuit has been filed against Royal Wine Corporation. The case is captioned as Kathy Wu, individually and on behalf of all other persons similarly situated, Plaintiff v. Royal Wine Corporation, Case No. 1:18-cv-05608-ERK-CLP (E.D.N.Y., Oct. 8, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Edward R. Korman and referred to Magistrate Judge Cheryl L. Pollak. Royal Wine Corp. produces, imports, and distributes kosher wines, liquors, spirits, and grape juices in the United States and internationally. The company was founded in 1848 and is based in Bayonne, New Jersey. [BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM, PC 175 Varick Street, 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: brad@markslawfirm.net SACRAMENTO COUNTY, CA: Court Dismisses Kononov Suit --------------------------------------------------- The United States District Court for the Eastern District of California issued an Order dismissing the case captioned VITALY V. KONONOV, et al., Plaintiffs, v. SACRAMENTO COUNTY SHERIFF'S DEPARTMENT, et al., Defendants. No. 2:18-cv-02171 AC. (E.D. Cal.). That case is a prisoner civil rights class action filed, inter alia, by the Prison Law Office and Disability Rights California. The duplicative nature of the present action requires its dismissal. If plaintiff seeks to be included as a member of the class in Armani Lee, he should contact counsel of record for that plaintiff class. The Plaintiff is further informed that, because he proceeds pro se, he may only represent himself. Although a non-attorney may appear in propria persona in his own behalf, that privilege is personal to him. He has no authority to appear as an attorney for others than himself. This action be dismissed because duplicative of Armani Lee et al. v. County of Sacramento, Case No. 2:18-cv-2081 TLN KJN P and the Plaintiff's motion to proceed in forma pauperis be denied as moot. A full-text copy of the District Court's October 15, 2018 Order and Findings is available at https://tinyurl.com/yc4aexlu from Leagle.com. Vitaly V. Kononov, Plaintiff, pro se. SANTANDER BANK: Court Dismisses Aversano TILA Suit --------------------------------------------------- The United States District Court for the District of New Jersey issued a Memorandum and Order denying Defendant Santander Bank, N.A.'s Motion to Dismiss Plaintiff's Amended Complaint in the case captioned PAUL AVERSANO, on behalf of himself and all others similarly situated, Plaintiff, v. SANTANDER BANK, N.A., Defendant. Civil Action No. 17-12694 (MAS) (TJB). (D.N.J.). The Plaintiff filed a purported class action Complaint, which he later amended. The Amended Complaint asserts: (1) violations of Truth-in-Lending Act (TILA) (2) breach of contract; (3) common law fraud; (4) fraudulent inducement; (5) violation of the New Jersey Consumer Fraud Act; and (6) unjust enrichment. Legal Standard The court must accept as true all of the plaintiff's well-pleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. In doing so, however, the court is free to ignore legal conclusions or factually unsupported accusations that merely state the-defendant-unlawfully-harmed-me. TILA The Defendant argues that the TILA claim fails both because it is time-barred and because the Complaint does not state a viable TILA claim. TILA requires lenders to make certain disclosures, such as the payment schedule, annual percentage rates, and charges imposed due to a late payment. A party has a private right of action if disclosures are inaccurate. A statute of limitations defense is permitted to be raised in a motion to dismiss if the time alleged in the statement of a claim shows that that cause of action has not been brought within the statute of limitations. A complaint may be dismissed for untimeliness under Rule 12(b)(6) when its untimeliness is apparent on its face. Here, the Plaintiff's Complaint explicitly recognizes that the TILA disclosures were provided in June of 2007. The Defendant, therefore, argues that the claim is clearly time-barred. The Plaintiff argues, however, that the claim should be equitably tolled. Equitable tolling is appropriate when: (1) the defendant actively misled the plaintiff regarding the plaintiff's cause of action (2) the plaintiff in some extraordinary way has been prevented from asserting his or her rights or (3) the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. The Plaintiff argues that the doctrine is appropriate because the Bank actively mislead the Plaintiff. The allegations in the Plaintiff's Amended Complaint do not support equitable tolling in these circumstances. The Plaintiff's Amended Complaint acknowledges that the Plaintiff was in possession of the loan documents explaining how the figure on the first page was calculated but did not read the document until after he noticed a discrepancy ten years later. The Plaintiff, therefore, cannot now claim that tolling should apply because of the Plaintiff's own failure to review the loan documents. The Plaintiff's claim that the documents he signed to skip payments were misleading is also insufficient. Notwithstanding the fact that the last representation occurred in 2012, the document merely stated interest will continue to accrue on the entire outstanding balance, including the month I skip my payment. This is not the type of active misleading that would necessitate the extraordinary remedy of equitable tolling. Here, therefore, taking all of the allegations in the Plaintiff's Amended Complaint as true, equitable tolling is inappropriate on the complaint currently before the Court. State Law Claims In addition to his TILA claim, the Plaintiff pled state law claims. As the Plaintiff's only federal claim is time-barred, however, and as the Plaintiff's only asserted basis for federal jurisdiction is 28 U.S.C. Section 1331, the Court declines to exercise jurisdiction over the state law claims. A full-text copy of the District Court's October 15, 2018 Memorandum and Opinion is available at https://tinyurl.com/yd82flez from Leagle.com. PAUL AVERSANO, on behalf of himself and all others similarly situated, Plaintiff, represented by SOFIA BALILE, LEMBERG LAW, LLC. SANTANDER BANK, N. A., Defendant, represented by DIANE A. BETTINO -- dbettino@reedsmith.com -- REED SMITH, LLP, HENRY F. REICHNER -- hreichner@reedsmith.com -- REED SMITH, LLP & SIOBHAN ANNE NOLAN -- snolan@reedsmith.com -- REED SMITH LLP. SELIP & STYLIANOU: Court Narrows Claims in FDCPA Suit ----------------------------------------------------- The United States District Court for the Western District of New York issued an Order granting in part and denying in part Defendants' Motion for Judgment in the Pleading in the captioned BETH BRADLEY, individually and on behalf of all others similarly situated, Plaintiff, v. SELIP & STYLIANOU, LLP, et al., Defendants. Case No. 17-CV-6224-FPG. (W.D.N.Y.). Midland and Encore have filed their answers to the amended complaint and now move for judgment on the pleadings, Plaintiff Beth Bradley, both individually and on behalf of a putative class action, brings this action against Defendants Selip & Stylianou, LLP (Selip), Midland Funding, LLC (Midland), and Encore Capital Group, Inc. (Encore), for alleged violations of the Fair Debt Collection Practices Act (FDCPA). LEGAL STANDARD A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is judged by the same standard applicable to a motion to dismiss under Rule 12(b)(6). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A complaint is plausible when a plaintiff pleads sufficient facts that allow the Court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Whether the March 2017 Letter Was Sent in Connection with the Collection of Any Debt The Defendants first argue that no FDCPA liability can attach based on Selip's March 2017 letter because Selip did not send the letter in connection with the collection of a debt. Under Section 1692e, a debt collector may be held liable for using any false, deceptive, or misleading representation or means in connection with the collection of any debt. As the March 2017 letter indicates, the Plaintiff's allegation of fraud far from being a unilateral inquiry was itself a response to Selip's ongoing collection efforts. Although the letter is primarily concerned with obtaining the documents necessary to review Plaintiff's fraud claim, the letter contains elements that could lead a reasonable consumer to believe that Selip is also acting in furtherance of its efforts to collect the debt. The letter states that it is from a debt collector who represents the creditor, and it discloses the allegedly misleading balance due. Most important is the manner in which the letter requests information regarding the fraud claim. The firm asks the Plaintiff to obtain several documents, including prior letters disputing the debt, a police report, and proof of residence from 2007, and return all of the requested documents within ten business days. Despite the possible difficulty of finding and submitting those documents in such a short time frame, the firm remarks that collection efforts may continue if Plaintiff fails to do so. A reasonable consumer could view the letter as a subtle form of pressure to forego the hassle and just settle the debt. Put differently, the Court cannot conclude that a reasonable consumer would be able to separate Selip's request for documents from its overall efforts to collect the debt, particularly given that Selip ties such request to its collection efforts. Therefore, the Plaintiff has plausibly alleged that a consumer receiving the March 2017 letter could reasonably interpret the misleading representation as being made in connection with the collection of any debt. The court will not dismiss Count I based on the Defendants' first argument. The Defendants contend that neither Midland nor Encore can be considered a debt collector under this definition. They allege that neither entity has any employees. They claim that Midland only invests in debts and does not engage in the act of collection while Encore is merely Midland's parent company. Defendants rely on the case of Gold v. Midland Credit Mgmt., Inc., 82 F.Supp.3d 1064 (N.D. Cal. 2015), for the proposition that a debt purchaser is not a debt collector under the FDCPA if it does not directly or indirectly engage in the collection of its purchased debts. In Gold, a court in the Northern District of California held that Midland was not a debt collector because it merely holds debts and engages a debt collector to collect on those debts. Regardless, even if the Court accepts Gold as an accurate summation of the law, Plaintiff has plausibly pleaded that Defendants do more than passively purchase and hold debt. Specifically, Plaintiff alleges that the principal business purpose of Midland and Encore is the collection of debts; that more than half of their respective revenues is derived from debt collection; that they oversee and control Selip's collection activities, including Selip's use of form collection letters; and that, in Plaintiff's case, Midland filed a lawsuit against Plaintiff to collect on the debt. These allegations suffice for purposes of the present procedural posture. Defendants' contrary factual claims and overall disagreement with Plaintiff's allegations do not alter this conclusion. The motion to dismiss will not be granted on this ground. Whether the Rooker-Feldman Doctrine Bars Count II The Defendants' final argument is that the Rooker-Feldman doctrine bars the Plaintiff's second claim. In Count II, the Plaintiff alleges that, by proceeding with wage garnishment and attempting to collect a debt that the Plaintiff does not owe, Selip thereby misrepresented the character and legal status of the debt, i.e., that the Plaintiff owed the debt. Under the Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction over suits that are, in substance, appeals from state-court judgments. A federal court should abstain from considering a claim when four requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district court review of that judgment, and (4) the state court judgment was entered before the plaintiff's federal suit commenced. The Court agrees with the Defendants. To be sure, an underlying state-court judgment can be perfectly valid, and the [defendant] can still have violated the FDCPA by making false, deceptive, or misleading communications or using unfair or unconscionable means in the course of attempting to collect on the judgment. That is not the sort of claim that Plaintiff is raising, however: she is contending that Defendants' attempts to collect on the judgment are unlawful solely because the debt on which that judgment is based is invalid and unenforceable against her. Her injuries arise from the default judgment, and her challenge to the validity of the debt would necessarily require the Court to review and reject that judgment. The Court may not do so. All four requirements are satisfied, and Count II will therefore be dismissed. Accordingly, Midland and Encore's Motion for Judgment on the Pleadings is granted in part and denied in part, in that the Court denies the motion with respect to Count I, and grants the motion with respect to Count II. A full-text copy of the District Court's October 15, 2018 Decision and Order is available at https://tinyurl.com/y8xnhccj from Leagle.com. Beth Bradley, individually and on behalf of all others similarly situated, Plaintiff, represented by Alexander Jerome Douglas, Douglas Firm, P.C. Selip & Stylianou, LLP, a New York LLP, Defendant, represented by Alicia S. Bursky-Stillman, Selip & Stylianou, LLP. Midland Funding, LLC, a Delaware LLC & Encore Capital Group, Inc., a Delaware corporation, Defendants, represented by Ellen Beth Silverman -- esilverman@hinshawlaw.com -- Hinshaw & Culbertson LLP & Han Sheng Beh -- hbeh@hinshawlaw.com -- Hinshaw & Culbertson LLP. Midland Funding, LLC, a Delaware LLC & Encore Capital Group, Inc., a Delaware corporation, ThirdParty Plaintiffs, represented by Han Sheng Beh, Hinshaw & Culbertson LLP. SHELBY COUNTY, TN: Court Narrows Claims in Unlawful Detention Suit ------------------------------------------------------------------ The United States District Court for the Western District of Tennessee, Western Division, issued an Order granting in part and denying Defendant Tyler Technologies, Inc.'s (Tyler) Motion to Dismiss the case captioned SCOTT TURNAGE, CORTEZ D. BROWN, DEONTAE TATE, JEREMY S. MELTON, ISSACCA POWELL, KEITH BURGESS, TRAVIS BOYD, TERRENCE DRAIN, and KIMBERLY ALLEN on behalf of themselves and all similarly situated persons, Plaintiffs, v. BILL OLDHAM, in his individual capacity and in his official capacity as Sheriff Of Shelby County, Tennessee, ROBERT MOORE, in his individual capacity and in his official capacity as Jail Director of Shelby County, Tennessee, CHARLENE MCGHEE, in her individual capacity and in her official capacity as Assistant Chief Jail Security of Shelby County, Tennessee, DEBRA HAMMONS, in her individual capacity and in her official capacity as Assistant Chief of Jail Programs in Shelby County, Tennessee, SHELBY COUNTY, TENNESSEE, and TYLER TECHNOLOGIES, INC., Defendants, No. 16-2907, Consolidate With Nos. 17-2015, 17-2795. (W.D. Tenn.). The Plaintiffs claim they were unlawfully detained at the Shelby County Jail following the County's installation of a new computer tracking system. That system included Defendant Tyler's Odyssey software. The Plaintiffs bring claims against Shelby County Defendants under 42 U.S.C. Section 1983 for violations of Plaintiffs' Fourth and Fourteenth Amendment rights. Plaintiffs bring negligence claims against Tyler. Standard of Review Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint that fails to state a claim upon which relief can be granted. When evaluating a motion to dismiss for failure to state a claim, the Court must determine whether the complaint alleges sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. The Plaintiffs bring two claims against Tyler: (1) negligence; and (2) negligent training and supervision. Negligence Claim To make a prima facie claim of negligence under Tennessee law, a plaintiff must establish five elements (1) the defendant owed a duty of care to the plaintiff (2) the defendant breached the applicable standard of care (3) the plaintiff suffered an injury (4) defendant's conduct was a cause in fact of the in-jury and (5) defendant's conduct was a proximate cause of the injury. Tyler makes three arguments about the sufficiency of the Plaintiffs' factual allegations. Tyler contends that (1) the allegations are untrue (2) the Plaintiffs do not plead sufficient facts to connect Tyler to the events at the Jail and (3) the Plaintiffs' allegations are contradicted by the Contract. Tyler argues that the Plaintiffs offer no plausible basis for relief because their factual allegations assert in an entirely conclusory manner that Tyler and its Odyssey software, which was installed at the Shelby County Criminal Courts, were responsible for problems at the Shelby County Jail. The Plaintiffs respond that the factual allegations in the Third Amended Complaint plausibly connect Tyler's software to the problems at the Jail. The Plaintiffs cite several allegations including their assertion that successful integration of Odyssey was essential for the full Computer Tracking System to be operational so that, among other things, inmates would not become lost in the Shelby County Jail and that their booking numbers, charges, bonds and other information would appear at all stages of their incarcerations in the Computer Tracking System. The Plaintiffs' allegations, taken together, are not mere conclusory statements. The Plaintiffs allege sufficient detail about the nature of Tyler's software, how it was intended to function, and how the software contributed to the problems at the Jail. Plaintiffs' allegations connecting Tyler to the events at the Jail are sufficient to satisfy the liberal pleading standard of Rule 8(a) of the Federal Rules of Civil Procedure. Tyler argues that, under the Contract, it had a limited role in the iCJIS. Tyler points to the section of the Statement of Work providing that all data translations that need to be done in order to map data from Odyssey to the Hub/ESB and other agencies integrated via the Hub/ESB will be performed by the County's System's Integrator, which at the time [the Contract] was written had yet to be awarded. Although this provision appears to contemplate that some other provider will integrate Odyssey's data exchange functions with the ESB, it does not establish that Tyler itself did not eventually perform that task. This provision also does not establish that there were no problems with Tyler's software arising from some feature other than its integration with other systems. At this stage of the litigation, the Court must view the facts in a light most favorable to Plaintiffs and resolve all factual questions in their favor. Because no provision of the Contract explicitly contradicts Plaintiffs' allegations that Tyler was involved with the events at the Jail, the Court must accept Plaintiffs' allegations as true. Causation and Proximate Causation Under Tennessee law, causation in fact and proximate causation are distinct elements of negligence. Causation in fact refers to the cause and effect relationship between the defendant's conduct and the plaintiff's injury. The defendant's conduct is a cause in fact if an injury would not have occurred but for that conduct. It is not necessary that the defendant's act be the sole cause of the plaintiff's injury, only that it be a cause. The Third Amended Complaint alleges that Tyler failed to tailor the Odyssey software adequately to the Shelby County government system and caused the massive and disturbing problems with the Shelby County and the Jail systems. The Third Amended Complaint also alleges that Tyler did not properly integrate Odyssey with the Computer Tracking System and failed to properly test Odyssey. Proximate cause encompasses the whole panoply of rules that may deny liability for otherwise actionable causes of harm. To establish proximate cause, Tennessee courts apply a three-prong test: (1) the defendant's conduct must have been a "substantial factor" in bringing about the plaintiff's harm; (2) there is no rule or policy that should relieve the defendant from liability because of the manner in which injury occurred; and (3) the harm that the plaintiff suffered must have been reasonably foreseeable by a person of ordinary intelligence and prudence. Tennessee has adopted the meaning of substantial factor given in the Restatement Second of Torts Section 413. A factor is substantial when it has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense rather than the so-called philosophic sense, which includes every one of the great number of events without which any happening would not have occurred. Assuming Plaintiffs' allegations to be true, Tyler's failure to integrate and design its software properly is more than a mere philosophical cause of Plaintiffs' over-detainments. The Third Amended Complaint adequately alleges hat Tyler's conduct was a substantial factor. Tyler cites no rule or policy that should relieve it from liability because of the manner in which the negligence has resulted in the over-detainments. The Court has found no such rule or policy. Economic Loss Doctrine Tyler argues that the economic loss doctrine bars Plaintiffs' negligence claim because Plaintiffs seek to recover purely economic damages. Tyler contends that, because Plaintiffs' negligence claim seems to relate to the ability of Tyler's Odyssey software to perform in the manner required by the Contract in that the Odyssey software was defectively developed and implemented, the economic loss doctrine precludes Plaintiffs' claim. Tyler also argues that the Contract was predominantly for goods and that Plaintiffs' damages are purely economic. Plaintiffs argue that Tyler provided services to which Tennessee's economic loss doctrine has no application. Plaintiffs also contend that the economic loss doctrine does not apply because Plaintiffs do not seek purely economic damages. Under Tennessee law, a plaintiff injured by another's negligence is entitled to compensatory damages. There are two kinds of compensatory damages: (1) economic damages and (2) noneconomic damages. Economic damages compensate the plaintiff for the actual pecuniary losses that naturally result from the defendant's wrongful conduct. Tennessee's economic loss doctrine prohibits the recovery of purely economic damages for negligence when the plaintiff lacks privity of contract with the defendant. The economic loss doctrine does not apply when the plaintiff seeks damages for nonpecuniary losses including personal injuries and mental anguish. Unlawful imprisonment is not a purely economic injury. Economic losses may accompany the loss of liberty, such as when an incarcerated individual cannot work and earn wages. Unlawful imprisonment also implicates mental, emotional, and dignitary injuries that are inherently nonpecuniary. Damages for unlawful imprisonment redress the denial of free movement and the violation done to an individual's dignity. Because the remedies Plaintiffs seek do not constitute purely economic damages, the economic loss doctrine does not apply. Plaintiffs have sufficiently pled factual matter to state a negligence claim against Tyler that is plausible on its face and that is not barred by the economic loss doctrine. Accordingly, Defendant Tyler's motion to dismiss Plaintiffs' negligence claim is denied. Negligent Training and Supervision Claim Tyler argues that the Plaintiffs fail to state a claim for negligent training and supervision because: "Plaintiffs have not plead a single fact regarding what training or supervisory role specifically Tyler had, how Tyler was negligent in its training or supervision, what errors are attributable to negligent training or supervision, how such negligent training or supervision is the proximate cause of any specific Plaintiffs' alleged injury, whether specific employees were unfit for the job, or whether Tyler had knowledge of the employees' alleged unfitness for the job." Under Tennessee law, a plaintiff may recover for negligent hiring, supervision, or retention of an employee if he establishes, in addition to the elements of a negligence claim, that the employer had knowledge of the employee's unfitness for the job. In their response to Tyler's Motion to Dismiss, the Plaintiffs represent that, had Tyler conducted the end-to-end testing set forth in their contract, they would have known that the County employees were improperly trained to operate the iCJIS system and Odyssey. The Plaintiffs represent that Tyler should have known the employees it trained and supervised were unfit, but Tyler willfully ignored the employees' lack of training by failing to test its system. The Plaintiffs do not allege in the Third Amended Complaint that Tyler willfully ignored Shelby County employees' unfitness to operate the new computer system. The Court may not consider new facts alleged in Plaintiffs' Response. Because the Plaintiffs have not pled sufficient facts to establish a plausible claim for negligent training and supervision, Defendant Tyler's Motion to Dismiss that claim is granted. A full-text copy of the District Court's October 15, 2018 Order is available at https://tinyurl.com/y9offgcx from Leagle.com. Issacca Powell, Plaintiff, represented by Brice Moffatt Timmons, BLACK MCLAREN JONES RYLAND & GRIFFEE, P.C., John C. Ryland, BLACK MCLAREN JONES & RYLAND, Michael G. McLaren, BLACK MCLAREN JONES & RYLAND, Warren Patrick Campbell, BLACK MCLAREN JONES RYLAND & GRIFFEE, William E. Cochran, Jr., BLACK MCLAREN JONES & RYLAND, Black McLaren Jones Ryland & Griffee, P.C., Claiborne Hambrick Ferguson, THE CLAIBORNE FERGUSON LAW FIRM, P.A. & Frank L. Watson, III, WATSON BURNS, LLC. Shelby County Sherif Bill Oldham, Sheriff of Shelby County, Individually and in his official capacity, Defendant, represented by Robert E. Craddock, Jr., WYATT TARRANT & COMBS P.O.,Amber D. Floyd, WYATT TARRANT & COMBS, LLP, Emmett Lee Whitwell, Shelby County Attorney's Office & Odell Horton, Jr., WYATT TARRANT & COMBS. Shelby County Sherif Bill Oldham, in his individual capacity and in his official capacity as Sheriff of Shelby County, TN, Robert Moore, in his individual capacity and in his official capacity as the Jail Director of Shelby County, TN, Charlene McGhee, in her individual capacity and in her official capacity as the Assistant Chief Jail Security of Shelby County, TN & Debra Hammons, in her individual capacity and in her official capacity as the Assistant Chief of Jail Programs of Shelby County, TN, Consol Defendants, represented by Robert E. Craddock, Jr., WYATT TARRANT & COMBS P.O., Amber D. Floyd, WYATT TARRANT & COMBS, LLP, Emmett Lee Whitwell, Shelby County Attorney's Office & Odell Horton, Jr., WYATT TARRANT & COMBS. Shelby County Tennessee, a Tennessee municipality, Consol Defendant, represented by Robert E. Craddock, Jr., WYATT TARRANT & COMBS P.O., Amber D. Floyd, WYATT TARRANT & COMBS, LLP & Odell Horton, Jr., WYATT TARRANT & COMBS. SINCLAIR BROADCAST: My Philly Lawyer Suit Moved to Illinois ----------------------------------------------------------- MY PHILLY LAWYER, 1500 John F. Kennedy Boulevard, Suite 1410 Philadelphia, PA 19102 Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. SINCLAIR BROADCAST GROUP, INC. 10706 Beaver Dam Road Hunt Valley, MD 21030 Baltimore County; TRIBUNE MEDIA COMPANY 515 North State Street Chicago, IL 60654; TRIBUNE BROADCASTING COMPANY, LLC 435 N. Michigan Avenue Chicago, IL 60611; and DOES 1-20, the Defendants, Case No. 1:18-cv-02713, was transferred from the U.S. District Court for the District of the Maryland, to the U.S. District Court for the Northern District of Illinois (Chicago) on Oct. 15, 2018. The Northern District of Illinois Court Clerk assigned Case No. 1:18-cv-06881 to the proceeding. The case is assigned to the Hon. Judge Virginia M. Kendall. According to the complaint, the lawsuit arose out of an alleged contract, combination and conspiracy among the Defendants and their co-conspirators to fix, raise, stabilize, and maintain prices for commercials to be aired on broadcast television stations throughout the United States in violation of Section 1 of the Sherman Act, by sharing competitively sensitive information through their advertising sales teams. The Defendants' and their co-conspirators' unlawful collusion led to supracompetitive prices in the market for the sale of television advertising. Defendants have significant market penetration for advertising in the United States, the lawsuit says.[BN] Attorneys for Plaintiff: Eugene A. Spector, Esq. William Caldes, Esq. SPECTOR ROSEMAN & KODROFF, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 Telephone: (215) 496 0300 E-mail: espector@srkattorneys.com bcaldes@srkattorneys.com - and - John Ritchie Solter, Jr., Esq. AZRAEL FRANZ SCHWAB AND LIPOWITZ LLC 101 E Chesapeake Ave Fifth Fl Baltimore, MD 21286 Telephone: (410) 821-6800 Facsimile: (410) 821-1265 E-mail: jsolter@azraelfranz.com Attorneys for Defendants: John Augustine Bourgeois, Esq. KRAMON AND GRAHAM PA One South St Ste 2600 Baltimore, MD 21202 Telephone: (410) 752-6030 E-mail: jbourgeois@kg-law.com - and - Daniel H. Levi, Esq. Jay Cohen, Esq. William B. Michael, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3497 E-mail: dlevi@paulweiss.com jaycohen@paulweiss.com wmichael@paulweiss.com SOUTH CAROLINA FARM: Underpays Agents, Laney and Steller Allege --------------------------------------------------------------- STEVEN LANEY; and ALEXANDROS STELLER, individually and on behalf of all others similarly situated, Plaintiffs v. SOUTH CAROLINA FARM BUREAU INSURANCE COMPANY; SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY; PALMETTO CASUALTY INSURANCE COMPANY; SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY; SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Defendants, Case No. 3:18-cv-02730-TLW (D.S.C., Oct. 8, 2018) seeks to recover from the Defendants unpaid overtime compensation, prejudgment interest, liquidated damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as agent. Mr. Laney was employed from July 1999 to December 31, 2016; Mr. Steller from February 2006 to February 2018. South Carolina Farm Bureau Mutual Insurance Company offers personal and commercial automobile, property, farm, home, business, life, and group and individual health services insurance in South Carolina. South Carolina Farm Bureau Mutual Insurance Company was founded in 1955 and is based in Cayce, South Carolina. South Carolina Farm Bureau Mutual Insurance Company operates as a subsidiary of South Carolina Farm Bureau Federation. [BN] The Plaintiffs are represented by: Amy L. Gaffney, Esq. Regina Hollins Lewis, Esq. Susan Rawls Strom, Esq. GAFFNEY LEWIS & EDWARDS, LLC 3700 Forest Drive, Suite 400 Columbia, SC 29204 Telephone: (803) 790-8838 Facsimile: (803) 790-8841 - and - David B. Yarborough, Jr., Esq. William E. Applegate, IV, Esq. Christopher J. Bryant, Esq. YARBOROUGH APPLEGATE LLC 291 East Bay Street Charleston, SC 29401 Telephone: (843) 972-0150 Facsimile: (843) 277-6691 E-mail: david@yarboroughapplegate.com william@yarboroughapplegate.com chris@yarboroughapplegate.com STATE FARM: 6th Cir. Affirms Denial of Bid to Dismiss Hicks Suit ---------------------------------------------------------------- The United States Court of Appeals, Sixth Circuit, issued an Opinion affirming the judgment of the District Court denying Defendant's Motion to Dismiss the case captioned SUSAN HICKS, et al., Plaintiffs-Appellees, v. STATE FARM FIRE & CASUALTY CO., Defendant-Appellant. No. 18-5104. (6th Cir.). Before is Defendant’s appeal on District Court’s judgment denying Defendant’s Motion to Dismiss. The Plaintiffs initially filed a complaint in state court, which State Farm removed. The Plaintiffs claimed that State Farm breached its contract with the insured when it estimated the full repair or replacement cost of the damaged property, including labor and materials, and then depreciated labor costs when calculating ACV payments. State Farm argued that the two-step loss settlement provision is permitted both under State Farm policies and Kentucky law. The district court (Judge Henry Wilhoit) denied State Farm's motion to dismiss, thereby allowing the case to proceed on the breach of contract claim. It held that the purpose of insurance is to indemnify the insured and under Kentucky law, an insured is entitled to receive the cash equivalent of the damaged property as it existed immediately prior to the loss. Although State Farm could depreciate the materials component of the replacement cost value when calculating ACV, the district court held that depreciation of labor in calculating ACV is improper and that depreciated labor costs would result in underindemnification. State Farm acknowledges that whether Kentucky permits labor depreciation in the calculation of insurance payments is a novel question of law. However, it argues that including full payment for labor would overstate the ACV and results in an improper windfall to the insured. The Plaintiffs respond that the district court did not err and that Kentucky law does not allow an insurer to depreciate labor costs. What is ACV? Homeowner's insurance policies typically offer two forms of coverage: ACV and replacement cost. Generally speaking, ACV is the dollar amount required to restore a policyholder to where he or she was before the loss. By contrast, the purpose of replacement cost coverage is to remedy the shortfall in coverage which results under a property insurance policy compensating the insured for actual cash value alone. State Farm's Policies Rely on an Ambiguous Regulation Here, the State Farm policies are ambiguous because they do not define ACV but simply incorporate Kentucky's ACV Regulation which does not define depreciation. Thus, there are two levels of ambiguity: the contract is ambiguous because it relies on a regulation that is subject to multiple reasonable interpretations. In the insurance context, Kentucky applies the reasonable expectations doctrine which interprets ambiguous terms in favor of the insured's reasonable expectations. The reasonable expectation doctrine is based on the premise that policy language will be construed as laymen would understand it' and applies only to policies with ambiguous terms, e.g., when a policy is susceptible to two (2) or more reasonable interpretations. Ambiguous Insurance Policies Construed In Favor of Insured In interpreting the actual insurance policy, Kentucky law is clear: A contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Since the policy is drafted in all details by the insurance company, it must be held strictly accountable for the language used. Effect of Section 9(2)(b) Finally, if the Court was to adopt State Farm's argument, Section 9(2)(b) of the ACV Regulation would be rendered meaningless. State Farm contends that as property ages, it will always be roughly proportionate to its market value. As Plaintiffs correctly note: "Subsection (b) of the ACV Regulation plainly recognizes that ACV valuation will sometimes produce disproportionate values and overvalue property that has nominal or no economic value. But in State Farm's view, that eventuality could never occur. ACV would always value valueless properties as valueless, and always value low-value properties in rough proportion to their market value. Were State Farm correct, subsection (b) would have no application and would never have needed to be written." The district court's holding that labor costs should not be depreciated is the most reasonable interpretation of Kentucky law. A full-text copy of the Sixth Circuit's October 15, 2018 Opinion is available at https://tinyurl.com/y8wvla3z from Leagle.com. STERLING BANCORP: Parties Agree to Drop O'Connell Merger Suit ------------------------------------------------------------- Sterling Bancorp reports in its Form 8-K filing with the U.S. Securities and Exchange Commission that parties in the single, consolidated action styled O'Connell v. Astoria Fin. Corp., et al., have agreed that the case should be voluntarily dismissed in light of the Court's August 21, 2018 rejection of a proposed settlement. On March 6, 2017, a press release announced that Astoria Financial Corporation ("Astoria") and Sterling Bancorp ("Sterling) had entered into a definitive merger agreement dated March 6, 2017 whereby Sterling would acquire each share of Astoria common stock in exchange for 0.875 shares of Sterling common stock (the "Transaction"), subject to, among other things, stockholder approval. In connection with the merger, on April 5, 2017, Sterling filed a Form S-4 Registration Statement (the "Registration Statement") with the United States Securities and Exchange Commission ("SEC") in connection with the Transaction that included a preliminary Proxy Statement/Prospectus for the stockholder vote on the Transaction. On May 1, 2017, Astoria filed a definitive proxy statement on Schedule 14A with the SEC (the "Proxy Statement") in connection with the Transaction, which, among other things, set June 13, 2017 as the date for the special meeting of Astoria common stockholders to cast their vote with respect to the Transaction. On June 6, 2017, Sterling and Astoria, respectively, entered into a Memorandum of Understanding containing the essential terms of an agreement-in-principle (the "MOU"), to settle claims brought by plaintiffs in certain putative class actions captioned as follows: * Jenkins v. Astoria Financial Corporation, et al (Case No. 1:17-cv-02608) brought in the United States District Court for the Eastern District of New York; * Minzer v. Astoria Financial Corporation, et al (Case No. 2017-0284) brought in the Court of Chancery of the State of Delaware; * MSS 1209 Trust v. Astoria Financial Corporation, et al (Index No. 602161/2017) brought in the Supreme Court of the State of New York in Nassau County; * O'Connell v. Astoria Financial Corporation, et al (Index No. 603703/2017) brought in the Supreme Court of the State of New York in Nassau County; and * Parshall v. Astoria Financial Corporation, et al (Case No. 2:17-cv-02165) brought in the United States District Court for the Eastern District of New York (collectively, the "Astoria Merger Class Actions"). Pursuant to the MOU, Sterling filed a Form 8-K with the SEC on June 8, 2017 containing certain additional disclosures (the "Supplemental Disclosures") not contained in the Registration Statement and Proxy Statement. The Supplemental Disclosures effectively mooted the Astoria Merger Class Actions, and on October 2, 2017, Sterling and Astoria completed the Transaction. In further accordance with the terms of the MOU, plaintiffs in the Jenkins Action, Minzer Action, and Parshall Action agreed to voluntarily dismiss their respective actions without prejudice, and on May 2, 2018, with the consent and agreement of the parties, the remaining Astoria Merger Class Actions proceeded as a single, consolidated action bearing the caption: O'Connell v. Astoria Fin. Corp., et al., Index No. 603703/17 (N.Y. Sup.) (the "Action"). On August 2, 2018, the parties submitted a proposed settlement agreement and requested that the Court grant the parties' request for preliminary approval of the settlement, conditional certification of an opt-out settlement class, and approval of the notice of settlement. On August 21, 2018, the Court rejected the parties' settlement request. In light of the Court's rejection of the settlement, the parties have agreed that the Action should be voluntarily dismissed. Sterling Bancorp operates as the bank holding company for Sterling National Bank that provides various banking services to commercial, consumer, and municipal clients in the United States. The Company accepts deposit products, including checking, money market, savings, time, and interest and non-interest bearing demand deposits, as well as certificates of deposit and mortgage escrow funds. It was founded in 1888 and is based in Montebello, New York. SUBARU: Faces Class Action Over Engine Tuning Problems ------------------------------------------------------ David A. Wood, writing for CarComplaints.com, reports that Subaru engine tuning problems are at the heart of a lawsuit that alleges 2014-2016 Subaru Forester XT, Subaru WRX and WRX STI cars and SUVs have engines too highly tuned, problems that cause the engines to stall or surge. The plaintiff claims a 2016 recall was ordered to fix problems with the ignition timing but the recall was allegedly just a cover to secretly update the operating systems of the Subaru vehicles. The lawsuit goes on to allege the repairs de-tuned the engines in an attempt to fix engine damage that had already been done. The plaintiff claims Subaru called it an "emissions recall" to force Forester and WRX customers to get their vehicles to dealers to have the secret operating system updates performed. In other words, by calling it an official emissions recall, an owner wouldn't be able to renew their vehicle registration until the recall work was complete. This ensured Subaru dealers would allegedly be able to perform the secret updates that affected the tuning of the engines. All the cars and SUVs are equipped with turbocharged engines, and although the class-action lawsuit names the Forester XT, WRX and WRX STI, the plaintiff says it's possible more models are affected. Plaintiff Cheryl Sauer says she leased a new 2014 Subaru Forester XT in April 2013 and brought her vehicle into the dealership for the mandatory emissions recall in 2016. Sauer claims Subaru re-tuned the engine in an effort to fix the engine being tuned too highly, but technicians didn't inform her the engine would be re-tuned. According to Sauer, the recall repairs caused her Subaru to suffer from engine problems such as surging and stalling, so she took the vehicle back to the dealership. The plaintiff says the automaker initially refused to correct the engine problems but finally offered to replace the engine after the plaintiff kept complaining. However, Sauer claims she was told the replacement engine wouldn't be available for months and that Subaru would not replace or buy back the Forester XT. Subaru should have told customers about the alleged engine tuning problems and further should have admitted the emissions recall was really an attempt to repair the engines. Additionally, the plaintiff claims the automaker should have warned Forester XT and WRX owners and lessees about the allegedly secret software patch that was installed when the vehicles were recalled. According to the lawsuit, drivers often complain about vehicles that suddenly accelerate or stall, then having to listen to Subaru dealer technicians who say they can't find anything wrong with the vehicles. The driver of a 2014 Subaru Forester XT complained about the vehicle having problems on cold starts and stalling while traveling uphill. The driver said the Subaru dealer blamed it on bad fuel used in the SUV, then later the vehicle started idling at 3500-4000 RPM and the check engine and emission lights came on. "I was in an underground garage and had no choice but to try to move the car to the outside for a tow, reverse gear worked and the car was still idling very high, put the it in drive and the car was not responding to accelerator and could barely make it up the ramp from the garage." The Subaru driver made his opinion clear about what others should do. "At this point I feel the car is unsafe and will not take it back until the dealer has either figured it out or replaces the car. DO NOT BUY THIS CAR IF YOU ARE CONSIDERING ONE. If anyone else is having this problem this is a potential hazard if the car malfunctions at high speed." Another 2014 Forester XT driver told of the frustrating wait of more than three months for a replacement engine. "It was supposed to take 2-3 weeks. Told them today I'm done. I don't trust this vehicle anymore. What are they finding that a simple engine swap (1-2 day job) has still not been completed after 9 days and after waiting 3 months - MONTHS - for the new motor??" According to the class-action lawsuit, the engine tuning problems cause drivers serious safety issues and also lead to decreased vehicle values, something Subaru should pay for. The Subaru engine tuning lawsuit was filed in the U.S. District Court for the District of New Jersey - Cheryl Sauer, et al., vs. Subaru of America, Inc. The plaintiff is represented by DeNittis Osefchen Prince, P.C., and the Law Offices of Todd M. Friedman. CarComplaints.com has complaints about the Subaru Forester, Subaru WRX and Subaru WRX STI. [GN] SYNTEL INC: Files Supplemental Disclosures to Appease Merger Suits ------------------------------------------------------------------ Syntel, Inc. has voluntarily filed supplemental disclosures with the U.S. Securities and Exchange Commission in order to avoid the expense and distraction of class action lawsuits related to its merger deal with Atos S.E. The Company said in its Form 8-K filing with the SEC dated September 21, 2018, "Nothing in the Supplemental Disclosures shall be deemed an admission of the legal necessity or materiality under applicable law of the Supplemental Disclosures. To the contrary, the Company specifically denies all allegations that any of the Supplemental Disclosures, or any other additional disclosures, were or are required." A full-text copy of the Form 8-K is available at https://is.gd/Nsr0zy On July 20, 2018, Syntel, Inc. entered into an Agreement and Plan of Merger by and among the Company, Atos S.E., a societe europeenne (European company) organized under the laws of France ("Parent" or "Atos"), and Green Merger Sub Inc., a Michigan corporation and a wholly-owned subsidiary of Parent ("Merger Sub"). Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company (the "Merger"), with the Company continuing as the surviving company in the Merger. On August 28, 2018, the Company filed with the Securities and Exchange Commission (the "SEC") a definitive proxy statement (the "Definitive Proxy Statement") with respect to the special meeting of the Company's stockholders scheduled to be held on October 1, 2018, in connection with the Merger (the "Special Meeting"). Three putative class action lawsuits have been filed in connection with the Merger. On August 16, 2018, a putative shareholder class action entitled Mahesh Veer Satya Tolapu v. Syntel, Inc., et al., No. 2:18-cv-12562-SJM-SDD, was filed in the United States District Court for the Eastern District of Michigan (the "Tolapu Action"). The Tolapu Action alleges claims for breach of fiduciary duty in connection with the Merger against the Company's co-founders and for aiding and abetting against the other members of the Company's board of directors, the Company and Merger Sub. The Tolapu Action also alleges that the Company's preliminary proxy statement concerning the Merger was materially incomplete and/or misleading in violation of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. The Tolapu Action seeks, among other things, to enjoin the stockholder vote concerning the Merger, money damages and an award of attorneys' fees. On August 17, 2018, a second putative shareholder class action entitled Richard Scarantino v. Syntel, Inc., et al., No. 2018-167788-CZ, was filed in the Michigan Circuit Court for Oakland County (the "Scarantino Action"). The Scarantino action alleges claims for breach of fiduciary duty in connection with the Merger against the members of the Company's board of directors and for aiding and abetting against the Company. The Scarantino Action seeks, among other things, to enjoin the stockholder vote concerning the Merger, money damages and an award of attorneys' fees. On August 23, 2018, the third putative shareholder class and derivative action entitled Shiva Stein v. Bharat Desai et al., No. 2018-167927-CB, was filed in the Michigan Circuit Court for Oakland County (the "Stein Action"). The Stein Action alleges class claims for breach of fiduciary duty in connection with the Merger against the members of the Company's board of directors and for aiding and abetting against Atos and Merger Sub. The Stein Action also alleges derivative claims on behalf of the Company for breach of fiduciary duty and unjust enrichment in connection with the Merger against the members of the Company's board of directors. The Stein Action seeks, among other things, to enjoin the stockholder vote concerning the Merger, money damages and an award of attorneys' fees. While the Company believes that the actions lack merit and that the disclosures in the Definitive Proxy Statement comply fully with applicable law, in order to avoid the expense and distraction of litigation and following discussions with counsel for plaintiffs in the Tolapu, Scarantino and Stein Actions, the Company has determined to voluntarily supplement the Definitive Proxy Statement with the supplemental disclosures set forth in its latest 8-K filing (the "Supplemental Disclosures"). Syntel, Inc. provides digital transformation, information technology (IT), and knowledge process outsourcing (KPO) services worldwide. The company operates through Banking and Financial Services; Healthcare and Life Sciences; Insurance; Manufacturing; and Retail, Logistics, and Telecom segments. Syntel, Inc. was founded in 1980 and is headquartered in Troy, Michigan. TIME INC: Court Awards $2.96MM Attorney's Fee in Perlin Suit ------------------------------------------------------------ The United States District Court for the Eastern District of Michigan granted final approval of the settlement agreement in the case captioned CAROLYN PERLIN, individually and on behalf of the settlement class, Plaintiff, v. TIME INC., a Delaware Corporation, Defendant. Case No. 16-cv-10635. (E.D. Mich.). The Court granted the Plaintiff's Motion for Preliminary Approval of Class Action Settlement, conditionally certifying a Class pursuant to Fed. R. Civ. P. 23(b)(3) of all persons with Michigan street addresses who purchased a subscription to a Time Publication directly from Time, but in a manner other than through a Time website. This Court now gives final approval to the Settlement Agreement, and finds that the Settlement Agreement is fair, reasonable, adequate, and in the best interests of the Settlement Class. The settlement consideration provided under the Settlement Agreement constitutes fair value given in exchange for the release of the Released Claims against the Released Parties. The Court finds that the consideration to be paid to the Settlement Class Members is reasonable, and in their best interests, considering the total value of their claims compared to (i) the disputed factual and legal circumstances of the Action, (ii) affirmative defenses asserted in the Action, and (iii) the potential risks and likelihood of success of pursuing litigation on the merits. The complex legal and factual posture of this case, the amount of discovery completed, and the fact that the Settlement is the result of arm's-length negotiations between the Parties support this finding. The Court finds that these facts, in addition to the Court's observations throughout the litigation, demonstrate that there was no collusion present in the reaching of the Settlement Agreement, implicit or otherwise. The Court has also considered Plaintiff's Motion and supporting declarations for attorneys' fees to Class Counsel and adjudges that the payment of $2,960,000 is reasonable in light of the multi-factor test used to evaluate fee awards in the Sixth Circuit. The Court has also considered Plaintiff's Motion and supporting declarations for an incentive award to the Class Representative, Carolyn Perlin. The Court adjudges that the payment of an incentive award in the amount of $5,000 to Ms. Perlin, to compensate her for her efforts and commitment on behalf of the Settlement Class, is fair, reasonable, and justified under the circumstances of this case. Such payment shall be made pursuant to and in the manner provided by the terms of the Settlement Agreement. A full-text copy of the District Court's October 15, 2018 Judgment and Order is available at https://tinyurl.com/y7czalda from Leagle.com. Carolyn Perlin, Plaintiff, represented by Benjamin Scott Thomassen -- bthomassen@edelson.com -- Edelson PC, Eve-Lynn Rapp -- erapp@edelson.com -- Edelson PC, Roger J. Perlstadt -- rperlstadt@edelson.com -- Edelson PC, Schuyler R. Ufkes -- sufkes@edelson.com -- Edelson PC & Ari J. Scharg -- ascharg@edelson.com -- Edelson P.C. Time Inc., Defendant, represented by Jacob A. Sommer -- jake@zwillgen.com -- Zwillgen, PLLC, Jeffrey G. Landis -- jeff@zwillgen.com -- ZWILLGEN PLLC, Lara F. Phillip -- lara.phillip@honigman.com -- Honigman, Miller, Marc J. Zwillinger -- marc@zwillgen.com -- Zwillgen, PLLC & Nury R. Siekkinen, ZwillGen PLLC. TRANS WORLD: Continues to Defend Store Manager Class Actions ------------------------------------------------------------ Trans World Entertainment Corporation is still facing class action claims filed on behalf of all Store Managers and Senior Assistant Managers, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended August 4, 2018. Two former Store Managers filed actions alleging claims of entitlement to unpaid compensation for overtime. In one action, the plaintiff seeks to represent a class of allegedly similarly situated employees who performed the same position (Store Manager and Senior Assistant Manager) while the other plaintiff seeks to represent a class of allegedly similarly situated employees who performed the same position (Store Manager). Specifically, Carol Spack filed a complaint against Trans World Entertainment Corporation (Trans World) in the United States District Court, District of New Jersey, on April 20, 2017 (Case No.: 3:17-cv-02687-BRM-LHG) alleging that she is entitled to unpaid compensation for overtime under the Federal Fair Labor Standards Act (FLSA). She brings a nationwide collective action under the FLSA on behalf of all Store Managers and Senior Assistant Managers. She also brings class action claims under New Jersey and Pennsylvania law on behalf of all persons who worked as Store Managers in New Jersey or Senior Assistant Managers in Pennsylvania. On May 19, 2017, Natasha Roper filed a complaint against Trans World in the U.S. District Court for the Northern District of New York (Case No.: 1:17-cv-0553-TJM-CFH) in which she also alleges that she is entitled to unpaid compensation for overtime under the FLSA. Ms. Roper brings a nationwide collective action under the FLSA on behalf of all similarly situated Store Managers. Trans World Entertainment Corporation, together with its subsidiaries, operates as a specialty retailer of entertainment products. The company operates in two segments, For Your Entertainment (fye) and etailz. The fye segment offers trend, video, music, electronics, and related products, as well as used compact discs, DVDs, Blu-Ray, and video games through its retail stores and e-commerce sites. Trans World Entertainment Corporation was founded in 1972 and is headquartered in Albany, New York. TRI-STATE CAREFLIGHT: Conditional Certification of Payne Denied --------------------------------------------------------------- In the case, WILLIAM D. PAYNE; NICOLE PAYNE; LESLIE B. BENSON; KEITH BASTIAN; JACQUELINE FERNANDEZ-QUEZADA; CASON N. HEARD; GREGORY OLDHAM AND SHERRY K. WELCH, on behalf of themselves and all others similarly situated, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants. KRISTY BELL; DEBORAH BEREST; DANIEL BERGMAN; WILLIAM DALLAS BUNDRANT, JR; ROCKY H. BURROWS, II; CHASE CARTER; BRENDA CASAREZ; KARA CERVANTES; THOMAS CISLO; DAVID DANIELS; ADAM DOYLE; DARREN EEN; TOBY EICHER; LON ENOS; WALTER FABIAN; HAROLD JOSEPH FISHER; CHRISTINA FLEEMAN; LUKE FORSLUND; SALUSTIANO FRAGOSO; REHANNON GONZALES; KRISTEN GRADO; COURTNEY GUERRA; DARRIN HAMILTON; ALEXANDER HOWELL; DANIELLE IRVIN; ALLEN JACOBS; ALEX JONES; DONALD LUKE KEENAN; DANIEL KUHLER; SIMON LUCERO; RAPHAEL MAHAIM; NATHAN MAPLESDEN; ORLANDO MARQUEZ; CINDY D. MAXWELL; JENNIFER MAZZANTI; BETHANY MCCANDLESS; WILLIAM J. MCCONNELL; DAN MEEHAN; KEVIN NAPP; JAMES O'CONNOR; KATHY ONSUREZ-WILSON; ERIC PARKER; JASON PERRY; AMANDA PETERSEN; BRENT PLACE; JIMMY RONALD PRIMM, JR; PHILIP QUBAIN; PAUL RATIGAN; JOSEPH ROOT; DARON RUCKMAN; FREDERIC RUEBUSH; JENNIFER SALAVERRY; LAUREN SALAZAR; PAUL SERINO; CHRISTIAN SPEAKMAN; DANIEL ST. PETERS; IAN STEPHENS; USVALDO R. TRUJILLO; PAUL VACULA; GRACIELA VILLALOBOS; ERIC VOGT; GREG WALSH; TYLER WILKINS; VIRGINIA WILLIAMS; SARA YURKOVICH; TERRY ZACHARIAS and MICHAEL ZULASKI, Plaintiffs, v. TRI-STATE CAREFLIGHT, LLC and BLAKE A. STAMPER, Defendants, Case No. Civ 14-1044 JB\KBM, Consolidated with No. Civ 17-0796 JB\CG (D. N.M.), Judge James O. Browning of the U.S. District Court for the District of New Mexico denied the Plaintiffs' Motion for Conditional Certification of Collective Action Pursuant to New Mexico Minimum Wage Act, filed Sept. 7, 2017. The Plaintiffs bring a representative action pursuant to N.M. Stat. Ann. Section 50-4-26(D), on behalf of themselves and all other similarly situated former Tri-State CareFlight employees. In the alternative, the Plaintiffs bring the matter as a class action pursuant to Fed. R. Civ. P. 23. The Amended Complaint contains two counts: (i) violation of N.M. Stat. Ann. Sections 50-4-19 et seq.; and (ii) unjust enrichment. The Plaintiffs filed their case in federal court on Aug. 3, 2017. They invoked diversity jurisdiction pursuant to the Class Action Fairness Act, asserting that the present action is a class action lawsuit, with a matter in controversy exceeding $5 million, and complete diversity of citizenship between the original Plaintiffs and the Defendants. Approximately three weeks later, Tri-State CareFlight and Stamper filed an Answer, asserting that a representative action may be pursued in federal court only under rule 23, and denying that the Plaintiffs can meet rule 23's requirements. The Plaintiffs filed the Amended Complaint. Tri-State CareFlight and Stamper filed an Answer. The matter comes before the Court on the Plaintiffs' Motion for Conditional Certification of Collective Action Pursuant to New Mexico Minimum Wage Act; and on the Plaintiffs' Request for Rule 16 Scheduling Conference. In the Hearing Motion, the Plaintiffs requested that the Court sets a Rule 16 Scheduling Conference to establish case management deadlines, and to consider the Motion. The Court granted the Hearing Motion, and the Rule 16 Scheduling Conference was reset for June 26, 2018, before the Hon. Carmen E. Garza, Chief United States Magistrate Judge for the District of New Mexico. The Court held a hearing on the Motion on June 21, 2018. The primary issues in the Motion are: (i) whether, under Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., the collective action standard in rule 23 of the Federal Rules of Civil Procedure or in the NMMWA should be applied to the Plaintiffs' conditional certification of their state law overtime claims as a collective action; and (ii) whether, applying the appropriate standard, the Plaintiffs have met the requirements for conditional certification of their overtime claims. Judge Browning concludes that, applying the test set forth in Justice Stevens' concurring and controlling opinion in Shady Grove, (i) the correct standard is rule 23, because N.M. Stat. Ann. Section 50-4-26(D)'s provision is a procedural rule. He further concludes finds that the Plaintiffs have not yet demonstrated their compliance with the requirements that rule 23 establishes for bringing a class action. At the hearing, the Court confirmed that they had not briefed that issue and would need to do so if the Court ruled that they needed to do so. For these reasons, the Judge denied the Plaintiffs' Motion for Conditional Certification of Collective Action Pursuant to New Mexico Minimum Wage Act; and granted the Plaintiffs' Request for Rule 16 Scheduling Conference, filed Dec. 21, 2017. A full-text copy of the Court's Sept. 25, 2018 Memorandum Opinion and Order is available at https://is.gd/GF20LR from Leagle.com. Usvaldo R. Trujillo, Daniel Bergman, Danielle Irvin, Michael Castro, Alex Jones, Jason Perry, William Dallas Bundrant, Jr., Alexander Howell, Shane Herron, Greg Walsh, Shailendra Basnet, Philip Qubain, Donald Luke Keenan, Courtney Guerra, Kevin Napp, Paul Ratigan, Kristy Bell, Kristen Grado, Erin Johnson, Ron McDearmid, Daron Ruckman, Eric Parker, Joseph Root, Ian Stephens, Paul Serino, Luke Forslund, David Daniels, Thomas Cislo, Cindy D. Maxwell, Kara Cervantes, Virginia Williams, Adam Doyle, Amanda Petersen, Tyler Wilkins, Christian Speakman, Chase Carter, Harold Joseph Fisher, Kathy Onsurez-Wilson, Darren Een, Daniel Kuhler, Daniel St. Peters, Darrin Hamilton, Bethany McCandless, Dan Meehan, Christina Fleeman, James O'Connor, Jennifer Mazzanti, Allen Jacobs, Jennifer Valdez, William J. McConnell, Graciela Villalobos, Brent Place, Paul Vacula, Walter Fabian, Nathan Maplesden, Salustiano Fragoso, Toby Eicher, Deborah Berest, Rocky H. Burrows, II, Terry Zacharias, Frederic Ruebush, Jennifer Salaverry, Jimmy Ronald Primm, Jr., Michael Zulaski, Brenda Casarez, Simon Lucero, Eric Vogt, Raphael Mahaim, Rehannon Fisher, Josh Martinez, Matthew Jansson, Benjamin Aguilar, Shane Engelauf, Sara Yurkovich, Gregory Steiner, Satoshi Mori, Ted McGill, Orlando Marquez, John Munn, Sherryn Terblanche, Alison Lopez, Diane Sarno, Anita Nelson, Annette Shivers, Lauren Salazar, Keegan Stokes, Laurie Pittman, Lon Enos, Jennifer Jones & William Mallonee, Intervenor Plaintiffs, represented by Christopher M. Moody, Moody & Stanford PC. Tri-State Careflight, LLC & Blake A. Stamper, Individually, Defendants, represented by Charles J. Vigil -- cvigil@rodey.com -- Rodey Dickson Sloan Akin & Robb, P.A., Melanie B. Stambaugh -- mstambaugh@rodey.com -- Rodey Dickason Sloan Akin & Robb PA & Jeffrey L. Lowry -- jlowry@rodey.com -- Rodey, Dickason, Sloan, Akin & Robb, P.A. UBER TECH: 9th Cir. Flips Denial of Arbitration Bid in O'Connor --------------------------------------------------------------- In the cases, DOUGLAS O'CONNOR; THOMAS COLOPY; DAVID KHAN; MATTHEW MANAHAN; WILSON ROLLE, JR.; WILLIAM ANDERSON, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC., Defendant-Appellant. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC., Defendant-Appellant. HAKAN YUCESOY, on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. UBER TECHNOLOGIES, INC., Defendant-Appellant. RICARDO DEL RIO; TONY MEHRDAD SAGHEBIAN, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC.; RASIER-CA, LLC, a Delaware Limited Liability Company, Defendants-Appellants. ABDUL KADIR MOHAMED, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. UBER TECHNOLOGIES, INC., Defendant-Appellant, and RASIER, LLC; HIREASE, LLC, Defendants. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. UBER TECHNOLOGIES, INC., Defendant-Appellee. HAKAN YUCESOY, on behalf of himself and others similarly situated, Plaintiff-Appellant, v. UBER TECHNOLOGIES, INC., Defendant-Appellee. ABDUL KADIR MOHAMED, individually and on behalf of all others similarly situated; RONALD GILLETTE; SHANNON WISE; BRANDON FARMER; MEGHAN CHRISTENSON, Plaintiffs-Appellants, v. UBER TECHNOLOGIES, INC., Defendant-Appellee. DOUGLAS O'CONNOR; THOMAS COLOPY; MATTHEW MANAHAN; ELIE GURFINKEL, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC., Defendant-Appellant, Case Nos. 14-16078, 15-17420, 15-17532, 15-17422, 15-17534, 15-17475, 15-17533, 16-15000, 16-15001, 16-15035, 16-15595 (9th Cir.), Judge Richard R. Clifton of the U.S. Court of Appeals for the Ninth Circuit reversed the district court's (i) denial of Uber's motions to compel arbitration in O'Connor, Yucesoy, and Del Rio; (ii) class certification orders in O'Connor; and (iii) orders entered under Rule 23(d). Current and former Uber drivers filed several putative class actions alleging on behalf of themselves and other drivers that Uber violated various federal and state statutes by, among other things, misclassifying drivers as independent contractors rather than employees. Multiple cases were consolidated for appeal to the Court. Uber appeals the district court's orders denying Uber's motions to compel arbitration, orders granting class certification in O'Connor, and orders controlling class communications pursuant to Federal Rule of Civil Procedure 23(d). Judge Clifton finds that the Court previously considered and reversed the district court's orders denying Uber's motions to compel arbitration in Mohamed v. Uber Technologies, Inc. The Plaintiffs offer additional arguments in the current appeal why the arbitration agreements are unenforceable, but those arguments are unpersuasive. As the class certification by the district court was premised on the district court's determination that the arbitration agreements were unenforceable, the class certification must also be reversed. Moreover, the Rule 23(d) orders were based on the district court's denial of the motions to compel arbitration and its granting of class certification. As both of those decisions must be reversed, there is no longer a basis for the district court's restrictions on Uber's communication with class and putative class members, so these orders are moot and must be reversed as well. For these reasons, Judge Clifton reversed the district court's denial of Uber's motions to compel arbitration in O'Connor, Yucesoy, and Del Rio, based on Mohamed. Because the arbitration agreements are enforceable, he also reversed the district court's class certification orders in O'Connor. The orders entered by the district court under Rule 23(d) orders are moot and are thus reversed as well. A full-text copy of the Court's Sept. 25, 2018 Opinion is available at https://is.gd/9yqyh4 from Leagle.com. Theodore J. Boutrous Jr. (argued) -- tboutrous@gibsondunn.com -- Theane D. Evangelis -- tevangelis@gibsondunn.com -- and Kevin J. Ring-Dowell -- kringdowell@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Los Angeles, California; Joshua S. Lipshutz -- jlipshutz@gibsondunn.com -- Gibson Dunn & Crutcher LLP, San Francisco, California; for Defendants-Appellants. Shannon Liss-Riordan (argued) -- sliss@llrlaw.com -- and Adelaide H. Pagano -- apagano@llrlaw.com -- Lichten & Liss-Riordan P.C., Boston, Massachusetts, for Plaintiffs-Appellees. Jeffery Burritt (argued), Attorney; Kira Dellinger Vol, Supervisory Attorney; Linda Dreeben, Deputy Associate General Counsel; John H. Ferguson, Associate General Counsel; Jennifer Abruzzo, Deputy General Counsel; Richard F. Griffin Jr., General Counsel; National Labor Relations Board, Washington, D.C.; for Amicus Curiae National Labor Relations Board. Andrew J. Pincus, Evan M. Tager, and Archis A. Parasharami, Mayer Brown LLP, Washington, D.C.; Jed Glickstein, Mayer Brown LLP, Chicago, Illinois; Kate Comerford Todd and Warren Postman, U.S. Chamber Litigation Center Inc., Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America. ULTA SALON: Fails to Pay Proper Wages, Tellez Suit Alleges ---------------------------------------------------------- RAYCHEAL TELLEZ, individually and on behalf of all others similarly situated, Plaintiff v. ULTA SALON, COSMETICS & FRAGRANCE, INC.; and DOES 1 through 100, inclusive, Defendants, Case No. 37-2018-00050739-CU-OE-CTL (Cal. Super., San Diego Cty., Oct. 5, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. The Plaintiff Tellez was employed by the Defendants as non-exempt, hourly-paid employee. Ulta Salon, Cosmetics & Fragrance, Inc. sells cosmetics, fragrances, skin and hair care products, appliances, and accessories. The Company also offers hair salon services, manicures, pedicures, massages, and other beauty and spa treatments. [BN] The Plaintiff is represented by: Matthew R. Bainer, Esq. THE BAINER LAW FIRM 1901 Harrison St., Suite 1100 Oakland, CA 94612 Telephone: (510) 922-1802 Facsimile: (510) 844-7701 E-mail: mbainer@bainerlawfirm.com UNITED STATES: ACLU Files Motion for Temporary Restraining Order ---------------------------------------------------------------- KTAR.COM reports that President Donald Trump is returning to the Valley, more than a year after police and protesters clashed following his last appearance in the Phoenix area. The president was set to hold a campaign rally on Oct. 12 at International Air Response at Phoenix-Mesa Gateway Airport in Mesa. The rally was set to start at 6:30 p.m., with doors opening at 3:30 p.m. Free tickets were available online on a first-come, first-served basis. It's part of three-day western swing during which Trump also will visit Missoula, Montana and Elko, Nevada. The president will campaign for U.S. Senate hopeful Martha McSally and other Republican candidates during the Arizona visit. Ms. McSally is in a contentious battle with fellow U.S. Rep. Kyrsten Sinema, a Democrat, to replace Republican Jeff Flake, who didn't seek re-election. The seat is a key to Democrats' efforts to take control of the Senate, which would be a major blow to the Trump administration. Trump previously has endorsed Ms. McSally as well as Republican Gov. Doug Ducey, who is facing Democrat David Garcia in the Nov. 6 midterm election. Trump last appeared in the Phoenix area on Aug. 22, 2017. After his rally at the Phoenix Convention Center that night, Phoenix Police used tear gas and pepper spray to disburse protesters. Police said they were responding to bottles and rocks being thrown at them. The American Civil Liberties Union of Arizona filed a class-action lawsuit last month against the city for the police department's actions that night. The lawsuit on behalf of four individuals and two community organizations alleged that protesters had their First Amendment rights violated by police. In August, Trump's camp reached out to the Arizona State Fairgrounds and Phoenix Convention Center about visiting in early September, but the venues couldn't accommodate him. He also reportedly was exploring a later September visit, but those plans never went through. Around the same time, he canceled two scheduled rallies because of Hurricane Florence's impending threat to the East Coast. As rumors of a potential Trump visit swirled, the ACLU filed a motion to get a temporary restraining order against Phoenix police. Attorneys for the city of Phoenix filed a notice in response to that motion and requested that the ACLU withdraw its request for a restraining order because no Trump visit had been scheduled at the time. [GN] UNITED STATES: Court Certifies Class in Smith-Williams FTCA Suit ---------------------------------------------------------------- Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin denied the Defendant's motion to dismiss the case, CONSUELA SMITH-WILLIAMS, FRED RIVERS, RICHARD MURPHY, ROBERT RISTOW, ROGER SUHR, and SALVADOR FUENTES, on behalf of themselves individual and others similarly situated, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, Case No. 17-cv-823-wmc (W.D. Wis.), pursuant to Fed. R. Civ. P. 12(b)(6). The proposed class action is brought against the United States under the Federal Tort Claims Act ("FTCA"). The named Plaintiffs seek to represent a class of individuals that was notified of lapses in infection control procedures after receiving dental treatment at the Tomah VA Medical Center. As veterans of the United States military, the Plaintiffs were all treated by Dr. Tomas Schiller at Tomah VA Medical Center's Dental Clinic between Oct. 5, 2015, and Oct. 21, 2016. Dr. Schiller allegedly: (1) used unsterile dental burs; (2) re-used single use dental burs on multiple patients; (3) sprayed an inappropriate disinfectant on unsterile dental burs between procedures; (4) did not follow basic infection control procedures such as hand washing; and (5) did not wear personal protective equipment. This conduct violated infection control and prevention standards established by the American Dental Association, Occupational Safety and Health Administration, Center for Disease Control and Prevention, and Department of Veterans Affairs As early as December 2015, a number of the employees at Tomah VA were allegedly aware of Dr. Schiller's conduct, but no action was taken until after Oct. 20, 2016, when managers confronted Schiller about his practices following a report by a substitute dental hygienist to the acting chief of dental services. At that time, Schiller admitted to re-using unsterile dental burs, but claimed that he believed it was a common practice. After completing a risk assessment, the Tomah VA sent a notification letter to the Plaintiffs. Nevertheless, the potential class members claimed to have suffered severe emotional distress between their receipt of the notification letter and their blood test results, as they were forced to consider that they may have been infected with deadly viruses, may die as a result of having been infected, and/or may have unknowingly infected their loved ones with deadly viruses. The Plaintiffs propose a class under Fed. R. Civ. P. 23 to encompass all Tomah VA Medical Center patients who received dental care between October 2015 and October 2016, received a letter from the Tomah VA Medical Center informing them of their potential exposure to Hepatitis B, Hepatitis C, and HIV and subsequently tested negative for newly acquired active viral infections. They Plaintiffs also propose a sub-class of patients who received dental care during the six-month period preceding the mailing of the notification letter, as they were made to wait an additional six months for conclusive test results: All Tomah VA Medical Center patients who received dental care between October 2015 and October 2016, received a letter from the Tomah VA Medical Center informing them of their potential exposure to Hepatitis B, Hepatitis C, and HIV, subsequently tested negative for newly acquired active viral infections, and were forced to wait an additional six months for further blood testing to confirm that they were not infected with Hepatitis B, Hepatitis C, and HIV. The Plaintiffs assert claims for (1) negligent infliction of emotional distress and (2) negligent training, supervision and retention. The Defendant argues the pleadings are insufficient to support a finding of proximate causation or severe emotional distress on either claim. Alternatively, it argues that all the unnamed Plaintiffs failed to exhaust their administrative remedies as required by the FTCA. Judge Conley finds that the Bowen v. Lumbermens Mutual Casualty Company public policy factors do not necessitate application of the contaminated source rule on the pleadings alone. While the Defendant argues that the Plaintiffs lacked reasonable grounds for emotional distress because the letter they received informed them that the risk of infection was low, there is no evidence that the letter was correct in this assertion, and it may be that exposure to a low risk of a deadly infection provides reasonable grounds for emotional distress, at least where the exposure is to a large enough population. At the same time, it may ask too much of a group of patients to expect them to set aside their fears based on the assurances of a medical facility that admittedly did not adhere to basic professional standards during their treatment. All of this will need to be sorted out on summary judgment or at trial. Moreover, while the Defendant argues its ability to settle was hindered because it was unaware if the named Plaintiffs possessed the authority to represent the unnamed Plaintiffs, the Judge holds that this would also be the case if a class action was brought after each potential member separately exhausted their administrative remedies. These proposed class members may ultimately opt-out to pursue different claims or no claim at all, which limits the authority of the named Plaintiffs to negotiate on their behalf. Such matters are, however, best addressed at the class certification phase. Accordingly, the unnamed class members will not be dismissed at this time. For these reasons, Judge Conley denied the Defendant's motion to dismiss. He also denied the Defendant's motion to stay class certification briefing as the motion to dismiss has now been resolved. Each of the three deadlines related to the Plaintiffs' class certification motion is extended one week, with the Plaintiffs' initial motion now due Oct. 26, 2018, the Defendant's response due Nov. 23, 2018, and the Plaintiffs' reply due Dec. 14, 2018. A full-text copy of the Court's Sept. 25, 2018 Opinion and Order is available at https://is.gd/Xnss26 from Leagle.com. Consuela Smith-Williams, Individually, and on behalf of all similarly situated, Fred Rivers, Individually, and on behalf of all similarly situated, Richard Murphy, Individually, and on behalf of all similarly situated, Robert Ristow, Individually, and on behalf of all similarly situated, Roger Suhr, Individually, and on behalf of all similarly situated & Salvador Fuentes, Individually, and on behalf of all similarly situated, Plaintiffs, represented by Christ Kishish, II -- Ckishish@kishishlaw.com -- Kishish Law Group,llc, Matthew A. Biegert -- mbiegert@doardrill.com -- Doar, Drill and Skow, S.C. & William Thomas Rieder, Jr. -- wrieder@downslawgroup.com -- Downs Law Group. The United States of America, Defendant, represented by David Daly Conway, United States Attorney's Office. UNITED STATES: Justice Association Mulls Class Action v. Brown -------------------------------------------------------------- Jim Letizia, writing for Associated Press, reports that a North Canton businessman with a questionable ethical background is suing Democratic U.S. Senator Sherrod Brown of Ohio, claiming a campaign ad calling him a "crooked businessman" with ties to Mr. Brown's Republican opponent has defamed him. Mr. Brown's campaign ad targets his Republican opponent, Republican Jim Renacci. It claims Mr. Renacci tried to intervene in a California consumer complaint filed against Ben Suarez in exchange for donations to Mr. Renacci's 2012 congressional campaign. Mr. Suarez's lawsuit says statements in the ad are false and defamatory. Mr. Suarez was acquitted in 2014 on federal charges of making illegal contributions to Mr. Renacci and then-U.S. Senate candidate and current state Treasurer Josh Mandel. Mr. Suarez was sentenced to 15 months for witness tampering. Mr. Brown's campaign has yet to comment. In June, the Associated Press reported Mr.Suarez' company organized employees and suppliers in a retaliatory effort to bring down two prominent Ohio Democrats. A memo obtained by the AP detailed The Justice Association LLC's plans for legal and political attacks against U.S. Senator Sherrod Brown and Attorney General nominee Steven Dettelbach. The association is offering "rewards" of up to 100 thousand dollar for evidence it could use to bring class-action racketeering claims against the Obama-era Justice Department. Suarez Corporation Industries is behind the effort. Ben Suarez went to prison for witness tampering following a 2014 investigation led by Mr. Dettelbach into contributions made to Mandel and Mr. Renacci. [GN] US BANK: Still Faces Various Lawsuits over RMBS Trusts ------------------------------------------------------ U.S. Bank National Association is currently a defendant in multiple actions alleging individual or class action claims with respect to multiple trusts, according SG Commercial Mortgage Securities Trust 2016-C5's Form 10-K/A filed on September 24, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. Since 2014 various plaintiffs or groups of plaintiffs, primarily investors, have filed claims against U.S. Bank National Association ("U.S. Bank"), in its capacity as trustee or successor trustee (as the case may be) under certain residential mortgage-backed securities ("RMBS") trusts. The plaintiffs or plaintiff groups have filed substantially similar complaints against other RMBS trustees, including Deutsche Bank, Citibank, HSBC, Bank of New York Mellon and Wells Fargo. The complaints against U.S. Bank allege the trustee caused losses to investors as a result of alleged failures by the sponsors, mortgage loan sellers and servicers for these RMBS trusts and assert causes of action based upon the trustee's purported failure to enforce repurchase obligations of mortgage loan sellers for alleged breaches of representations and warranties concerning loan quality. The complaints also assert that the trustee failed to notify securityholders of purported events of default allegedly caused by breaches of servicing standards by mortgage loan servicers and that the trustee purportedly failed to abide by a heightened standard of care following alleged events of default. Currently U.S. Bank is a defendant in multiple actions alleging individual or class action claims against the trustee with respect to multiple trusts as described above with the most substantial case being: BlackRock Balanced Capital Portfolio et al v. U.S. Bank National Association, No. 605204/2015 (N.Y. Sup. Ct.) (class action alleging claims with respect to approximately 770 trusts) and its companion case BlackRock Core Bond Portfolio et al v. U.S Bank National Association, No. 14-cv-9401 (S.D.N.Y.). Some of the trusts implicated in the aforementioned Blackrock cases, as well as other trusts, are involved in actions brought by separate groups of plaintiffs related to no more than 100 trusts per case. U.S. Bank cannot assure as to the outcome of any of the litigation, or the possible impact of these litigations on the trustee or the RMBS trusts. However, U.S. Bank denies liability and believes that it has performed its obligations under the RMBS trusts in good faith, that its actions were not the cause of losses to investors and that it has meritorious defenses, and it intends to contest the plaintiffs' claims vigorously. VAN RU CREDIT: Court Certifies Class in FDCPA Suit -------------------------------------------------- In the case, DEBORAH AL, Plaintiff, v. VAN RU CREDIT CORPORATION, Defendant, Case No. 17-CV-1738-JPS-JPS (E.D. Wis.), Judge J.P. Stadtmueller of the U.S. District Court for the Eastern District of Wisconsin granted the Plaintiff's third motion for class certification. The Plaintiff allegedly owed a debt to "Monroe & Main," through which she had earlier opened a store credit card. The Defendant sent her a letter attempting to collect that debt on March 10, 2017. The Plaintiff's overarching theory of liability is that failing to include a better description of the parameters of the settlement offer misleads the recipient into believing that the offer may shortly expire, when this is not true. She maintains that the Letter thereby violates the Fair Debt Collection Practices Act ("FDCPA") and the Wisconsin Consumer Act ("WCA"). The Plaintiff brought the lawsuit as a class action on the theory that the Defendant sent an identical letter to many other people. This belief was borne out in discovery; 180 people received similar correspondence. On July 5, 2018, the Plaintiff filed a motion for class certification. She proposes that the Court certifies the class of all natural persons in the State of Wisconsin (b) who were sent a collection letter, (c) seeking to collect a debt allegedly owed for personal, family or household purposes, (d) between Dec. 13, 2016 and Dec. 13, 2017, (e) that was not returned by the postal service. Judge Stadmueller finds that the Plaintiff has carried her burden with respect to each required element for class certification. The Judge will, therefore, grant her motion and certify her desired class. He will also appoint her as the class representative and her attorneys as the class counsel. Though class certification is appropriate, there are still a number of loose ends as to class treatment for the case. On Aug. 1, 2018, the Plaintiff filed an expedited motion requesting that the Court rule on her motion for class certification prior to issuing a decision on the pending motions for summary judgment filed by each party. She states that a ruling on summary judgment prior to deciding class certification may render the class "fail-safe," meaning that a potential class member would know which side has won on the merits of the case before deciding whether to join. It appears that the best practice is to decide class certification first, and if a class is certified, allow for the class members to opt in or out, and then address summary judgment. The Defendant did not oppose the motion, and so the Judge must assume it agrees with the Plaintiff. He will, therefore, issue the decision on class certification and stay the pending summary judgment motions until the class-related procedures are completed. In that vein, he notes that the Plaintiff has also not proposed any procedures for providing notice of the action to the class. The Jduge will direct the parties to confer on the procedures necessary for managing the class and present them to the Court in the form of a stipulation. Upon receipt of the stipulation, he will determine whether the trial schedule in the matter needs to be altered to accommodate a notice period. Accordingly, Judge Stadtmueller denied as moot the Plaintiff's first motion for class certification, to stay, and for relief from briefing requirements. He also denied as moot the Plaintiff's second motion for class certification. He granted the Plaintiff's third motion for class certification. The Judge certifies the 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 the action, (c) seeking to collect a debt allegedly owed for personal, family or household purposes, (d) between Dec. 13, 2016 and Dec. 13, 2017, (e) that was not returned by the postal service. He appointed the Plaintiff as the class representative; and her counsel as the class counsel. The Judge granted the Plaintiff's motions to seal related to the class certification briefing, and the Plaintiff's motion seeking the Court's ruling on class certification prior to a ruling on summary judgment. He stayed the parties' motions for summary judgment and related motions to seal pending further order of the Court. The parties confer and file a stipulation addressing the issues identified in the Order within 14 days. A full-text copy of the Court's Sept. 25, 2018 Order is available at https://is.gd/KhWCMQ from Leagle.com. Deborah Al, Plaintiff, represented by Ben J. Slatky -- bslatky@ademilaw.com -- Ademi & O'Reilly LLP, Jesse Fruchter -- jfruchter@ademilaw.com -- Ademi & O'Reilly LLP, John D. Blythin -- jblythin@ademilaw.com -- Ademi & O'Reilly LLP & Mark A. Eldridge -- meldridge@ademilaw.com -- Ademi & O'Reilly LLP. Van Ru Credit Corporation, Defendant, represented by Nicole M. Strickler -- nstrickler@messerstrickler.com -- Messer Strickler Ltd & Stephanie A. Strickler -- sstrickler@messerstrickler.com -- Messer Strickler Ltd. VISA INC: Amends Settlement for Damages Class in Interchange MDL ---------------------------------------------------------------- Visa Inc. disclosed in its Form 8-K filing with the U.S. Securities and Exchange Commission that on September 17, 2018, the Company; its wholly owned subsidiaries, Visa U.S.A. Inc. and Visa International Service Association; MasterCard Incorporated; MasterCard International Incorporated; various U.S. financial institution defendants; and plaintiffs purporting to act on behalf of the putative class primarily seeking damages (the "Damages Class") signed an amended settlement agreement (the "Amended Settlement Agreement") that supersedes the original settlement agreement entered into on October 19, 2012, to resolve the claims of the Damages Class in the matter styled In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, No. 05-MD-1720 (MKB) (JO) (the "Multi-District Litigation"). The claims were originally brought in 2005 by several plaintiffs purporting to represent a class of U.S. retailers. The Amended Settlement Agreement includes, among other terms: * A release from participating class members for liability arising out of conduct alleged by the Damages Class in the litigation, including claims that accrue no later than five years after the Amended Settlement Agreement becomes final. Participating class members will not release injunctive relief claims as a named representative or non-representative class member in the putative class action seeking injunctive relief in Barry's Cut Rate Stores, Inc., et al. v. Visa, Inc., et al., MDL No. 1720 Docket No. 05-md-01720 (MKB) (JO). * An additional settlement payment from all defendants of US$900 million, with the Company's share of the additional settlement payment being US$600 million. The Company's share will be paid from the previously funded litigation escrow account established pursuant to the Company's retrospective responsibility plan (the "Retrospective Responsibility Plan"). The additional settlement payment will be added to the approximately US$5.3 billion previously paid by the defendants pursuant to the original 2012 settlement agreement in the Multi-District Litigation. More information on the Retrospective Responsibility Plan and the original 2012 settlement agreement is described in the Company's Form 10-K filed with the Securities and Exchange Commission on November 17, 2017. * Up to US$700 million may be returned to defendants (with up to US$467 million to the Company) if more than 15% of class members (by payment volume) opt out of the class. The amount that may be returned to defendants is calculated using a formula based on the payment volume attributable to class members that opt out of the class. If more than 25% of class members (by payment volume) opt out of the class, defendants may terminate the Amended Settlement Agreement. The Company said, "The Amended Settlement Agreement is the result of extensive negotiations and mediation among the parties. It remains subject to court approval, which the Company cannot assure will be obtained." Visa Inc. operates as a payments technology company worldwide. The company facilitates commerce through the transfer of value and information among consumers, merchants, financial institutions, businesses, strategic partners, and government entities. Visa Inc. was incorporated in 2007 and is headquartered in San Francisco, California. WALMART: Settles Class Action Over Lack of Seating for Cashiers --------------------------------------------------------------- Emma Hinchliffe, writing for Fortune, reports that Walmart could soon pay $65 million in a 9-year-old class action lawsuit over its lack of seating for cashiers. Nisha Brown brought the suit in 2009, according to the Los Angeles Times, and 100,000 current and former California Walmart cashiers are eligible to receive part of the payout. The onetime Walmart employees said the retailer violated a 2001 California wage order that determined that employees must be given "suitable seats when the nature of the work reasonably permits." Walmart, however, has maintained that the nature of the work as a cashier does not permit cashiers to sit down. Among its reasons, per the LA Times: cashiers need to move around to greet customers and look inside carts; cashiers are less efficient when they sit down; customers prefer standing cashiers; and providing seating to cashiers would lead to a loss of revenue. The two sides in the case filed a proposed settlement, and a judge still has to approve the $65 million settlement amount. As part of the settlement, Walmart would begin a "pilot program" providing stools to cashiers who request them and would agree not to retaliate against workers who choose to sit down. "Both sides are pleased to have reached a proposed resolution and look forward to the court granting preliminary approval to the settlement," Walmart spokesman Randy Hargrove told the LA Times. The lawsuit is similar to one CVS lost over the same issue in 2016. [GN] WELLS FARGO: Still Faces RMBS Investors' New York Class Lawsuit --------------------------------------------------------------- Wells Fargo Bank, N.A. still defends itself in a class action complaint by a group of institutional investors, according to UBS Commercial Mortgage Trust 2017-C5's Form 10-K/A filed on September 19, 2018, with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2017. On June 18, 2014, a group of institutional investors filed a civil complaint in the Supreme Court of the State of New York, New York County, against Wells Fargo Bank, N.A. ("Wells Fargo Bank") in its capacity as trustee under 276 residential mortgage backed securities ("RMBS") trusts, which was later amended on July 18, 2014, to increase the number of trusts to 284 RMBS trusts. On November 24, 2014, the plaintiffs filed a motion to voluntarily dismiss the state court action without prejudice. That same day, a group of institutional investors filed a putative class action complaint in the United States District Court for the Southern District of New York (the "District Court") against Wells Fargo Bank, alleging claims against the bank in its capacity as trustee for 274 RMBS trusts (the "Federal Court Complaint"). In December 2014, the plaintiffs' motion to voluntarily dismiss their original state court action was granted. As with the prior state court action, the Federal Court Complaint is one of six similar complaints filed contemporaneously against RMBS trustees (Deutsche Bank, Citibank, HSBC, Bank of New York Mellon and US Bank) by a group of institutional investor plaintiffs. The Federal Court Complaint against Wells Fargo Bank alleges that the trustee caused losses to investors and asserts causes of action based upon, among other things, the trustee's alleged failure to: (i) notify and enforce repurchase obligations of mortgage loan sellers for purported breaches of representations and warranties, (ii) notify investors of alleged events of default, and (iii) abide by appropriate standards of care following alleged events of default. Relief sought includes money damages in an unspecified amount, reimbursement of expenses, and equitable relief. Other cases alleging similar causes of action have been filed against Wells Fargo Bank and other trustees in the District Court by RMBS investors in these and other transactions, and these cases against Wells Fargo Bank are proceeding before the same District Court judge. A similar complaint was also filed May 27, 2016 in New York state court by a different plaintiff investor. On January 19, 2016, an order was entered in connection with the Federal Court Complaint in which the District Court declined to exercise jurisdiction over 261 trusts at issue in the Federal Court Complaint; the District Court also allowed plaintiffs to file amended complaints as to the remaining, non-dismissed trusts, if they so chose, and three amended complaints have been filed. On December 17, 2016, the investor plaintiffs in the 261 trusts dismissed from the Federal Court Complaint filed a new complaint in New York state court (the "State Court Complaint"). In September 2017, Royal Park Investments SA/NV ("Royal Park"), one of the plaintiffs in the District Court cases against Wells Fargo Bank, filed a putative class action complaint relating to two trusts seeking declaratory and injunctive relief and money damages based on Wells Fargo Bank's indemnification from trust funds for legal fees and expenses Wells Fargo Bank incurs or has incurred in defending the District Court case filed by Royal Park. The Company said, "With respect to the foregoing litigations, Wells Fargo Bank believes plaintiffs' claims are without merit and intends to contest the claims vigorously, but there can be no assurances as to the outcome of the litigations or the possible impact of the litigations on Wells Fargo Bank or the RMBS trusts." Wells Fargo Bank, N.A. is the Certificate Administrator for UBS Commercial Mortgage Trust 2017-C5. WILLIAM PENN: Court Narrows Claims in 1st Amended Rich Suit ----------------------------------------------------------- In the case, LESLIE S. RICH, Plaintiff, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Defendant, Civil Action No. GLR-17-2026 (D. Md.), Judge George L. Russell, III of the U.S. District Court for the District of Maryland granted in part and denied in part William Penn's Partial Motion to Dismiss Plaintiff's First Amended Complaint. On July 20, 2017, Rich, the trustee for the Richard S. Wallberg Insurance Trust, brings the putative class action against William Penn for breach of contract and fraud in connection with certain universal life insurance policies that the Trust and putative class members purchased. William Penn issues certain universal class policies: (1) Longevity UL 100; (2) Penn UL; (3) Life Umbrella UL 120; and (4) Advantra. Regular policies expire or "lapse" if the cash value of the policy is insufficient to cover the policy's insurance charges and other expenses. One such expense is the cost of insurance ("COI") fee, which William Penn deducts monthly from the account value of each life insurance policy, including the Class Policies. Rich's specific policy featured a $500,000 death benefit with a 10-year no-lapse-guarantee, as long as Rich paid the minimum premium. On July 15, 2015, Rich and the putative class members received a letter from William Penn informing them that the monthly COI rate would increase in August 2015. The COI rate increased dramatically over the next year. In August 2015, Rich paid a COI rate of $317.88 per month, and the policy's account value was $34,798.22. In September 2015, Rich paid a COI rate of $342.31 per month. The COI rate continued to rise, increasing to $555.39 in February 2016 and to $620.72 in November 2016. With these increases, the COI fee began to exceed the minimum premium amount. Accordingly, the deduction of the COI fee will soon drain the cash value of the policy entirely so that there will be insufficient cash value to fund the policy beyond the guaranteed 10-year period. As of Nov. 2016, the policy value had dropped to $29,455.67. Rich alleges the reason provided by William Penn for the COI rate increase is specious. According to Rich, William Penn's financial instability was the real reason for the increase. Rich contends William Penn has been concealing its financial instability through a captive and affiliate reinsurance scheme. Rich maintains that William Penn impermissibly increased COI rates based on past experience to appear financially sound. Although William Penn appeared to be financially stable on paper because of these captive reinsurance transactions, it had been facing financial difficulties for some time. After the Great Recession, William Penn was suffering financially because of poor investment performance and low interest rates. Five years after the Great Recession, on July 15, 2015, it sent the COI Notification Letter to its policyholders. William Penn moved to dismiss on Sept. 29, 2017. In response, Rich filed an Amended Complaint, alleging two causes of action based on the COI rate increase: (1) breach of contract (Count I) and (2) fraud (Count II). Rich seeks compensatory and punitive damages, restitution, declaratory and injunctive relief, and attorney's fees and costs. On Nov. 13, 2017, William Penn filed a Partial Motion to Dismiss Plaintiff's First Amended Complaint. William Penn's Motion addresses Count II of Rich's Amended Complaint: fraud. William Penn raises five defenses: (1) Rich lacks standing; (2) the claim is barred by the statute of limitations; (3) the claim is barred by the source of duty rule; (4) the claim is barred by the economic loss rule; and (5) Rich fails to state a claim for fraud. Rich filed an Opposition on Nov. 22, 2017. On Dec. 20, 2017, William Penn filed a Reply. Judge Russell granted in part and denied in part William Penn's Partial Motion to Dismiss Plaintiff's First Amended Complaint. He granted the Motion as to the fraud claim regarding the COI Notification Letter, but denied as to the Policy Statements, Corporate Reports, and website. He denied as moot William Penn's Motion to Dismiss. A separate order follows. The Judge finds that Rich cites the COI Notification Letter as an example of a fraudulent statement, contending William Penn misstated the reason for the COI rate increase. The terms of the Class Policies governed William Penn's COI rate increases. The terms provide the only limitations on William Penn's ability to change the COI rate; William Penn has no duty under tort law to refrain from raising the COI rate for any particular reason. The Court reached the same conclusion in Dickman. In Dickman, the plaintiffs cited letters informing them of the increase as another example of a fraudulent statement on which they relied to their detriment. In explaining that the Dickman plaintiffs' claim for fraud would be limited in scope, the Court stated, whether the COI increase was improper is a matter of contract, not tort. Further, the damages sought in connection with the misrepresentations in the COI Notification Letter would be no different than the damages Rich seeks for the breach of contract claim. Thus, the claim of fraud for the COI Notification Letter is barred by both the source of duty and economic loss rules. A full-text copy of the Court's Sept. 25, 2018 Memorandum Opinion is available at https://is.gd/E0ws9b from Leagle.com. Lesley S Rich, trustee for Richard S. Wallberg Insurance Trust, Plaintiff, represented by Christopher T. Nace, Paulson and Nace PLLC, Andrew E. Brashier, Beasley Allen Crow Methvin Portis and Miles PC, pro hac vice, George Walton Walker, III -- gwwalker@thefinleyfirm.com -- The Finley Firm PC, pro hac vice, Marybeth V. Gibson -- MGibson@thefinleyfirm.com -- The Finley Firm PC, pro hac vice, Paul W. Evans, Beasley Allen Crow Methvin Portis and Miles PC, pro hac vice, Rachel Nichole Boyd, Beasley Allen Crow Methvin Portis and Miles PC, pro hac vice & W. Daniel Miles, III, Beasley Allen Crow Methvin Portis and Miles PC, pro hac vice. William Penn Life Insurance Company of New York, Defendant, represented by Brian Coleman -- brian.coleman@dbr.com -- Drinker Biddle & Reath LLP, Christopher F. Petillo -- christopher.petillo@dbr.com -- Drinker Biddle and Reath LLP, pro hac vice & Timothy J.O. Driscoll -- timothy.odriscoll@dbr.com -- Drinker Biddle and Reath LLP, pro hac vice. [] New York State Urged to Establish Water Contamination Standards ------------------------------------------------------------------ James Bilsborrow, writing for Times Union, reports that dangerous chemicals from local manufacturing plants have contaminated the water supply in communities across New York state for decades, but the Environmental Protection Agency has failed to take timely action to address this growing public health crisis. On October 17, New York state's Drinking Water Quality Council will meet to address the new federally recommended minimum risk levels for emerging contaminants. It is time for state lawmakers and regulators to take the lead in protecting New Yorkers from continued exposure to these harmful chemicals by establishing sensible and enforceable standards for New York state. From Long Island to upstate, communities across New York are confronting the consequences of contaminated drinking water resulting from the use and disposal of dangerous chemicals called PFAS (per- and polyfluoroalkyl substances) by industrial manufacturing plants and military bases. In particular, a chemical called perfluorooctanoic acid (PFOA) used to manufacture products ranging from non-stick pans to dental floss to stain-resistant fabrics has been found in drinking water in Petersburgh and Hoosick Falls in Rensselaer County. One groundwater sample revealed PFOA levels in Hoosick Falls at 130,000 parts per trillion (ppt), more than 18,000 times the EPA's acceptable level of 70 ppt. The contamination has left residents susceptible to a range of health issues, including low infant birth weights, immune system hazards, and increased cancer risks, as well as depressed property values after locations in both towns were declared Superfund sites. Petersburgh and Hoosick Falls residents have filed lawsuits against local manufacturers whose plants knowingly discharged the toxic chemicals, and a New York Supreme Court justice recently certified a class action of current and former community members in the Petersburgh case. This is the first time a class was certified for PFOA contamination in New York. Meanwhile, residents continue to advocate for government intervention, but the EPA has not taken tangible action to remedy the contamination. In fact, former EPA head Scott Pruitt actively sought to block the publication of a federal health study that found PFAS chemicals posed health risks at lower levels than the EPA initially determined were safe. At the state level, Gov. Andrew Cuomo signed the Clean Water Infrastructure Act in 2017 and recently announced an additional $200 million in grant funding to upgrade state drinking water and wastewater infrastructure, fund modern filtration systems, and regularly test for known contaminants. Despite these initiatives, New York state still lacks a safe standard for PFAS contamination. A recently released study by the Agency for Toxic Substances and Disease Registry finds acceptable health advisory levels should be around 7 to 11 ppt, far lower than EPA's current guidelines of 70 ppt. In light of the EPA's inaction, other states have taken steps to adequately protect the drinking water of their residents. Last November, New Jersey's Department of Environmental Protection imposed the strongest maximum contaminant levels (MCL) limit for PFAS in the country at 14 ppt for PFOA chemicals. If New York lawmakers truly wanted to be national leaders for water contamination protection, they could follow, or better yet, exceed the minimum risk levels outlined in August by the U.S. Agency for Toxic Substances and Disease Registry and set New York state's MCL range no greater than between 10 ppt and 20 ppt, the safest currently known level of PFOA and PFOS exposure. As communities across the country continue to face water contamination crises, state lawmakers must take action and regulate these dangerous chemicals by establishing a safe, sensible, enforceable maximum contaminant level to protect New York state residents from serious health risks. [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 ***