/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181106.mbx C L A S S A C T I O N R E P O R T E R Tuesday, November 6, 2018, Vol. 20, No. 222 Headlines 10TH AVENUE: Pazaran Seeks to Recover Unpaid Overtime Under FLSA 7-ELEVEN INC: Class Certified in Munoz Suit over Background Checks ADIENT PLC: Barreto Hits Share Price Drop ALEXION PHARMA: Bid to Dismiss Solaris-Related Suit Still Pending ALL HEART HOMECARE: Khakimova Seeks Unpaid Wages ANTHEM INC: Motion to Quash Filed in Savett Suit ANTHEM: Faces Shareholder Derivative Lawsuit APPLE & EVE: Reaves Seeks to Stop False Marketing of Switch Drink AT&S AMERICAS: Piper Alleges Gender Bias on Employee Pay AVIVA LONDON: Settlement of Griffiths Suit Wins Court Approval BAYCARE HEALTH: Final Approval of $85,000 Settlement Sought BIRD RIDES: Faces Class Action in California Over Scooters BOSE CORP: Wireless Headphone Ads Misleading, Calloway et al. Say CALISTA TOOLS: Slade Suit Asserts ADA Violation CAPITAL EXPRESS: Gassy Seeks Unpaid Wages under Labor Code CHEF BLYTHE'S: Morgan Seeks Unpaid Wages under FLSA CHINELUS CORP: Accused by Pacheco of Not Paying Minimum, OT Wages COLUMBIA GAS: Faces Class Action Over Merrimack Valley Explosion COMPLYRIGHT INC: Christiansen Suit Removed to C.D. Calif. CONN APPLIANCES: Certification of Nationwide Classes Sought DAKOTA OF ROCKY: Initial Certification of Collective Action Sought DEBT RECOVERY: Joyce Disputes Debt Collection Practices DGD TRANSPORT: Vilches Seeks Overtime Wages under FLSA DOLLAR TREE: Approval of Revised Class Settlement Sought DUNHILL 100 LLC: Medina Sues Over Unsolicited Text Messages ELNIK SYSTEMS: Perez et al. Seek Unpaid Overtime Wages under FLSA ESSENDANT INC: Pietras Balks at Merger Deal with Staples, Inc. F & M CAFETERIA: Refused to Pay Overtime Under FLSA, Lopez Claims FACEBOOK INC: Faces Class Action Over Location Tracking FALLS MUSIC: November Trial Scheduled for Stamped Class Action FEDERATED LAW: James Sues Over Debt Collection Practices FIFTH THIRD: Magee Sues Over Hidden Fees on ATM Withdrawals GRAIN PROCESSING: Settlement Claims Process Set to Start GRAY TELEVISION: Mowrer Sues Over for Inflated Prices for TV Ads GUIDANCE CORP: SOGB Sues over Refusal to Pay Rent HAIN CELESTIAL: Manley Calls Alba Botanica Sunscreen Ad Deceptive HERSHEY CO: Clark Sues Over Product Mislabeling HUFF DISTRIBUTING: Vincent Seeks Unpaid Overtime for Route Drivers INFINITY ASSURANCE: Plantation Suit Moved to S.D. Florida J.F. MEAT: Conretras Files Labor Suit in New York JOHN C. HEATH: Pena Sues over Unauthorized Text Messages JORDAN SCHOOL: Class Certified in Girls' High School Football Case JPAY INC: Does Not Deliver 30-Min. Video Service, Salim Says K12 INC: Souders Sues over Unsolicited Telephone Calls KB HOME: Bayberry Lakes et al. Seek to Certify Homeowners Class KERYX BIOPHARMA: Rosenblatt Balks at Merger Deal with Akebia KRAFT HEINZ: Tarzian Files Suit Over Fraud LA GRINGA FOOD: Fails to Pay Minimum & Overtime Wages, Perez Says LAS VEGAS HOTEL: Faces Class Action Over TCPA Violations LINCOLN AUTO: Mintz Attorney Discusses TCPA Class Action Ruling LIVE NATION: Gaetano Files Suit Over Overpriced Tickets MATIZ LATIN CUISINE: Cardoso Labor Suit Seeks Overtime Pay MAYFIELD CARE: Hughes Sues over Use of Biometric Identifiers MAZUMA FEDERAL: Settlement of Bowens Class Suit Wins Court Okay MICROSOFT CORP: Antitrust Suits Ongoing in Canada MICROSOFT CORP: Canadian Cell Phone Class Suit Remains Dormant MICROSOFT CORP: Interlocutory Appeal Okayed in Moussouris Case MID-AMERICA: Vega Sues over Use of Biometric identifiers MONSANTO COMPANY: Finneman Sues over Sale of Herbicide Roundup MONSANTO: Must Face Class Actions Over Herbicide MOVEMENT MORTGAGE: Fails to Pay Compensation, Morua Says NEW 32ND: Does Not Pay Proper Wages, Montero Suit Says NICHICON: Plaintiffs Seek Approval of $21.5MM Settlement NIKODEMO OPERATING: Eduoard Sues Over Lost, Unpaid Wages NORFOLK SOUTHERN: Continues to Defend Fuel Surcharges-Related Suit NY SWEET SPOT: Fails to Pay Minimum and OT Wages, Huziankou Says PARKLAND HEALTH: Baldridge Sues Over Unpaid Hospital Bills PEKIN INSURANCE: Sued over Unsolicited Faxed Advertisements PGNV LLC: Ramos Seeks Minimum Wage and Overtime under FLSA PHILIP MORRIS: Gilchrist Files Securities Class Action PNC FINANCIAL: Rossini FCRA Suit Removed to W.D. Pennsylvania POLARIS INDUSTRIES: Continues to Class Suits in Minnesota PRIVATUS CARE: Markova Seeks Unpaid Wages under Labor Law RAD MEDICAL: Accused by Mendez of Not Paying Minimum and OT Wages RAWLINGS SPORTING: Sotelo Files Fraud Class Action RED ROBIN: Court Certifies Class & Subclasses in Vigueras Suit RENTGROW INC: Faces McIntyre Suit Alleging FCRA Violations RICHLINE GROUP: Faces Kiler ADA Class Action RITZ CARLTON: Baltodano Suit Moved to Southern District of Florida ROGERS PAVEMENT: Accused by Pittman Suit of Not Paying Overtime RON DESANTIS: Stephenson Sues over Political Campaign Text Ads SCHWAB INVESTMENTS: Vedder Price Discusses Class Action Ruling SCOTTS MIRACLE-GRO: Kasich Sues Over Defective EZ Seeds SILVERWARE POS: Clark Sues over Use of Biometric identifiers SIRIUS XM: Bid For Class Certification in Buchanan Suit Underway SIX FLAGS: Continues to Defend Biometric Information-Related Suit SIX FLAGS: Continues to Defend Suits Over Credit Card Info SOLUDOS LLC: Violates Disabilities Act, Figueroa Suit Says STARKIST: 9th Cir. Affirms Tuna Under-filling Settlement Approval STUBBS & WOOTTON: Figueroa Suit Asserts ADA Breach SUBARU OF AMERICA: Sauer Sues Over Flaw in Turbo Charged Engines SUNDANCE INC: Jackson Sues over Use of Biometric Identifiers TAPESTRY INC: Ornelas Suit Moved to Northern Dist. of California TD AMERITRADE: Kim Seeks Overtime Compensation under FLSA TECHNOLOGY INSTALL: O'Brien Seeks Unpaid Wages under FLSA TOO FACED: Underpays Makeup Artists, Provencio Claims TRI STATE ADJUSTMENTS: Court Shelves Loveland Case TRl CITY FOODS: Young Sues over Use of Biometric Information UBER TECHNOLOGIES: Carlton Fields Discusses 9th Cir. Rulings ULTIMATE FITNESS: Huff Sues Over Unsolicited Marketing Texts UNIVERSITY OF SOUTHERN: Tyndall Suits Pile Up Despite Settlement US STEEL: Faces Class Action Over Carnegie Way Campaign USA MANAGEMENT: Fails to Pay Overtime Wages, Araujo Says VAN TASSEL-PROCTOR: Jones Labor Suit to Recover Unpaid Overtime VENTURE 475 LLC: Dillon Seeks to Stop Illegal Telemarketing Calls VICTIM SERVICES: Must Face Claims Over Use of Gov't Letterheads WALKER CONSTRUCTION: Sullivan Suit Asserts ADA Violation YOUR BEAUTIFUL: Lucero Suit Asserts FLSA & NYLL Violation YUMMY HOUSE: Lopez Seeks Overtime Pay for Hours Worked Over 40 [*] Torkin Manes Attorney Discusses Historical Sexual Abuses Cases ********* 10TH AVENUE: Pazaran Seeks to Recover Unpaid Overtime Under FLSA ---------------------------------------------------------------- FELIX PAZARAN, on behalf of himself and others similarly situated v. 10TH AVENUE GROUP, INC. d/b/a 44 & X - HELLS KITCHEN RESTAURANT, SCOTT HART, and BRUCE HOROWYTZ, Case No. 1:18-cv-09335 (S.D.N.Y., October 12, 2018), alleges that, pursuant to the Fair Labor Standards Act, the Plaintiff is entitled to recover from the Defendants: (a) unpaid overtime compensation, (b) liquidated damages, (c) prejudgment and post-judgment interest, and (d) attorneys' fees and costs. 44 & X is a domestic business corporation organized under the laws of the state of New York with a principal place of business located in New York City. The Individual Defendants are joint owners, officers, members, directors, managing agents, and proprietors of 44 & X. The Defendants' primary business was and is the sale of food and drinks for consumption. 44 & X constitutes a "restaurant" within the meaning of the New York Labor Law.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue - 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com pcooper@jcpclaw.com 7-ELEVEN INC: Class Certified in Munoz Suit over Background Checks ------------------------------------------------------------------ In the class action lawsuit captioned Edward Munoz, the Plaintiff, vs. 7-ELEVEN, INC., the Defendants, Case 2:18-cv-03893-RGK-AGR (C.D. Cal.), the Hon. Judge Gary Klausner entered an order on Oct. 18, 2018, granting Plaintiff's motion to certify class and subclass: Disclosure Class: "all persons in the United States who (1) from a date prior to the filling of the initial complaint in this action to the date notice is sent to the Disclosure Class; (2) applied for employment with Defendant; (3) about whom Defendant procured a consumer report; and (4) who were provided the same form Fair Credit Reporting Act disclosure and authorization as the disclosure and and authorization form from that Defendant provided to Plaintiff"; and California Subclass: "all members of the Disclosure Class who reside in California."[CC] ADIENT PLC: Barreto Hits Share Price Drop ------------------------------------------ Julio Barreto, individually and on behalf of all others similarly situated, Plaintiff, v. Adient PLC, R. Bruce McDonald, Jeffrey M. Stafeil, Defendants, Case No. 18-cv-09116 (S.D. N.Y., October 4, 2018), alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Adient is an Irish corporation that designs, engineers and manufactures automotive seating. Nearly half of its annual revenues derive from the sale of metal components used in seat frames produced by its seat structures and mechanisms. On May 3, 2018, Defendants announced they recorded a $299 million impairment charge related to its seat structures and mechanisms business and admitted that it was facing significant operational and financial headwinds and a planned margin expansion was no longer achievable. This news drove the price of Adient shares down $6.14 per share, or about 10%, to close at $55.84 that day. On June 11, 2018, Adient announced the sudden and immediate resignation of CEO McDonald and slashed its earnings guidance. This news drove the price of Adient shares down $8.88 per share, or about 15.6%, to close at $48.10 that day. Barreto purchased Adient common stock and suffered damages thereby. [BN] Plaintiff is represented by: Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Fax: (631) 367-1173 Email: SRudman@rgrdlaw.com DRosenfeld@rgrdlaw.com - and - Michael W. Stocker, Esq. Reed R. Kathrein, Esq. Danielle Smith, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 Email: mikes@hbsslaw.com reed@hbsslaw.com danielles@hbsslaw.com ALEXION PHARMA: Bid to Dismiss Solaris-Related Suit Still Pending ----------------------------------------------------------------- Alexion Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the defendants' motion to dismiss the solaris-related class action complaint remains pending. On December 29, 2016, a shareholder filed a putative class action against the Company and certain former employees in the U.S. District Court for the District of Connecticut, alleging that defendants made misrepresentations and omissions about Soliris. On April 12, 2017, the court appointed a lead plaintiff. On July 14, 2017, the lead plaintiff filed an amended putative class action complaint against the Company and seven current or former employees. The complaint alleges that defendants made misrepresentations and omissions about Soliris, including alleged misrepresentations regarding sales practices, management changes, and related investigations, between January 30, 2014 and May 26, 2017, and that the Company's stock price dropped upon the purported disclosure of the misrepresentations. Defendants moved to dismiss the amended complaint on September 12, 2017. Plaintiffs filed an opposition to defendants' motion to dismiss on November 13, 2017, and defendants' filed a reply brief in further support of their motion on December 28, 2017. Defendants' motion to dismiss is now fully briefed and pending before the court. Alexion Pharmaceuticals said, "Given the early stages of this litigation, an estimate of the possible loss or range of loss cannot be made at this time." Alexion Pharmaceuticals, Inc., a biopharmaceutical company, develops and commercializes various therapeutic products. The company was founded in 1992 and is headquartered in Boston, Massachusetts. ALL HEART HOMECARE: Khakimova Seeks Unpaid Wages ------------------------------------------------ FERUZA KHAKIMOVA, individually and on behalf of all other persons similarly situated who were employed by ALL HEART HOMECARE AGENCY, INC., along with other entities affiliated or controlled by ALL HEART COMPLAINT HOMECARE AGENCY, INC., the Plaintiffs, vs. ALL HEART HOMECARE AGENCY, INC., and/or any other related entities, the Defendants, Case No. 159788/2018 (N.Y. Sup. Ct., Oct. 23, 2018), seek to recover wages and benefits which Plaintiffs were statutorily and contractually entitled to receive pursuant to New York Labor Law. According to the complaint, beginning in October 2012 and, on information and belief, continuing through the present, the Defendants have maintained a policy and practice of requiring Plaintiffs to regularly work in excess of ten hours per day, without providing the proper hourly compensation for all hours worked, including, overtime compensation for all hours worked in excess of 40 hours in any given week, "spread of hours" compensation. While employed by the Defendants, the Plaintiff provided services to homebound, disabled and/or ailing clients, including but not limited to personal care services, such as assistance with dressing, bathing and personal grooming, cooking, serving food, toileting, lifting and moving immobile clients, cleaning, such as mopping, vacuuming, cleaning bathrooms, doing laundry, taking out garbage, making transportation arrangements, and escorting clients to appointments. The Defendants failed to pay Plaintiffs their applicable overtime rate for all the time spent in mandatory training sessions when Plaintiffs worked more than 40 hours that week, the lawsuit says. Defendant is a home health agency.[BN] Attorneys for Plaintiff and the Putative Class: LaDonna M. Lusher, Esq. Joel L. Goldenberg, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, Seventh Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: llusher@vandallp.com ANTHEM INC: Motion to Quash Filed in Savett Suit ------------------------------------------------ The Plaintiff in the case of ADAM SAVETT, individually and on behalf of all others similarly situated, Plaintiff, v. ANTHEM, INC., Defendant, Case No. 3:18-cv-02317-MMA-KSC (S.D. Cal., Oct. 5, 2018) has filed a notice of motion for an order quashing or limiting a subpoena that was issued to non-party AT&T on August 3, 2018, by Defendant Anthem, Inc. in the out-of-district matter captioned Savett v. Anthem, Inc., 1:18-cv-0274 (N.D. Ohio). The case is assigned to Judge Michael M. Anello and referred to Magistrate Judge Karen S. Crawford. Anthem, Inc., through its subsidiaries, operates as a health benefits company in the United States. The company was formerly known as WellPoint, Inc. and changed its name to Anthem, Inc. in December 2014. Anthem, Inc. was founded in 1944 and is headquartered in Indianapolis, Indiana. [BN] The Plaintiff is represented by: Todd Logan, Esq. EDELSON PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: (415) 212-9300 Facsimile: (415) 373-9435 E-mail: tlogan@edelson.com ANTHEM: Faces Shareholder Derivative Lawsuit -------------------------------------------- Courthouse News Service reported that an Anthem shareholder claims in Indiana court that the company concealed the risks of its failed merger with Cigna, causing Anthem to lose millions of dollars in deal-related and litigation costs after the acquisition was blocked by regulators and courts. A copy of the Complaint is available at https://is.gd/4b8uQ2 APPLE & EVE: Reaves Seeks to Stop False Marketing of Switch Drink ----------------------------------------------------------------- DERRICK REAVES, on behalf of himself and others similarly situated v. APPLE & EVE, LLC, Case No. 1:18-cv-05728 (E.D.N.Y., October 12, 2018), is a consumer protection action seeking redress for, and a stop to, the Defendant's alleged unfair and deceptive practice of advertising and marketing its Switch Sparkling beverages as healthy, low-calorie drinks having "No Preservatives" and "No Sugar Added." The Defendant's "No Preservatives" representations are deceptive because the beverages contain the preservatives citric acid and/or ascorbic acid, Mr. Reaves argues. He asserts that the "No Preservatives" labeling deceives consumers into believing that they are receiving healthier preservative-free beverages even though these products cannot live up to these claims. He adds that the beverages' "No Sugar Added" representations are misleading because they lead consumers to believe that they are receiving a low-calorie product when they are not. Apple & Eve is organized under the laws of Delaware with its principal place of business located in Port Washington, New York. The Company develops, markets Products throughout the United States. The Products are available at numerous retail and online outlets, as well as in schools.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com anne@leelitigation.com AT&S AMERICAS: Piper Alleges Gender Bias on Employee Pay -------------------------------------------------------- CATHERINE PIPER, individually and on behalf of all similarly situated individuals, the Plaintiffs, v. AT&S AMERICAS, LLC, the Defendant, Case No. 2018CH12799 (Ill. Cir. Ct., Cook Cty., Oct., 12, 2018), alleges employment discrimination. According to the complaint, Piper was employed by Defendant AT&S at all relevant times until the Defendant terminated her employment in April 2017. Paying similarly situated younger employees or male employees more than employees aged 40 years or older is discriminatory as unequal pay under the Illinois Human Rights Act. Piper at all relevant times was over the age of 40 years old. During Piper's tenure with AT&S she was paid substantially less than her similarly situated younger peers and male peers. AT&S paid Piper less than at least her male peers on the basis of her gender and age in violation of the Illinois Human Rights Act, the lawsuit says. AT&S Americas LLC distributes and markets printed circuit boards.[BN] Attorneys for Plaintiff: John M. Liston, Esq. HR LAW COUNSEL 50 South Main Street, Suite 200 Naperville, IL 60540 Telephone: (847) 528-5024 E-mail: john@hrlawcounsel.com AVIVA LONDON: Settlement of Griffiths Suit Wins Court Approval -------------------------------------------------------------- In the class action lawsuit captioned JOHN W. GRIFFITHS, the Plaintiff, vs. AVIVA LONDON ASSIGNMENT CORPORATION, et al., the Defendants, Case 1:15-cv-13022-NMG (D. Mass., Oct., 23, 2018), the Court entered an order on Oct. 23, 2018, granting: 1. final approval to its appointment of Marcus & Auerbach LLC and Krasnoo, Klehm & Falkner LLP as Class Counsel and its designation and appointment of Jerome M. Marcus and Jonathan Auerbach (Marcus & Auerbach LLC) as lead counsel for the Settlement Class, and its appointment of John W. Griffiths as Settlement Class Representative; and 2. certification of Settlement Class: "all beneficiaries of structured settlement annuities assigned to Athene London Assignment Corporation (formerly known as Aviva London Assignment Corporation and as CGNU London Annuity Service Corp.), which includes all annuities covered by the Capital Maintenance Agreement between CGU International Insurance plc and CGNU London Annuity Service Corp., dated February 1, 2002, where such annuities remained in force as of October 2, 2013". Excluded from the proposed class are the officers and directors of any defendant and members of their immediate families and any entity in which any defendant has a controlling interest, the legal representatives, heirs, successors or assigns of any such excluded party, the judicial officer(s) to whom this action is assigned, and the members of their immediate families. Also excluded from the Settlement Class are those persons identified, who submitted timely and valid requests for exclusion from the Settlement Class. Such persons shall not receive any monetary benefits of the Settlement Agreements and shall not be bound by this Final Judgment. The Settlement Administrator shall make a distribution to each Class Member who has not served an Exclusion Request in the amount of that Class Member's Individual Recovery. Distribution of Funds: (a) Any money remaining from the Settlement Amount and any Contingent Settlement Payment, including any accrued interest thereon, after the payments for administration costs, taxes, service award, attorney's fees and expenses are made, shall be distributed as follows to Class Members who have not excluded themselves from the Settlement Class, provided that the payment to each such class member shall be equal to or greater than $10.00. -- The "Annuity Proportion" shall be calculated for each annuity by dividing the premium paid for each annuity by the total premium paid for all annuities assigned to Athene London Assignment Corporation where such annuities remained in force as of October 2, 2013. -- The "Annuity Recovery" shall be calculated for each annuity by multiplying the Annuity Proportion by the Settlement Amount and any Contingent Settlement Payment. -- The "Individual Recovery" shall be calculated for each beneficiary of each annuity by dividing the Annuity Recovery by the number of beneficiaries of that annuity remaining in the Settlement Class.[CC] BAYCARE HEALTH: Final Approval of $85,000 Settlement Sought ----------------------------------------------------------- ELAYNE FIGUEROA, on behalf of herself and on behalf of all others similarly situated, the Plaintiff, vs. BAYCARE HEALTH SYSTEM, INC., the Defendant, Case 8:17-cv-01780-JSM-AEP (M.D. Fla., Oct. 18, 2018), the Plaintiff asks the Court for an order: 1. granting final approval of parties' Settlement; 2. dismissing Plaintiff's and the Settlement Classes' claims against Defendants with prejudice; and 3. granting Plaintiff's unopposed Motion for attorneys' fees and costs. According to the complaint, the settlement provides for payments to be made to the approximately 2,009 class members. Defendant will create a non-reversionary common fund for Class Members consisting of $85,000. The Class Members will not be required to take any action to receive a portion of the funds, making it a "claims paid" settlement. Members of the class will receive a pro rata gross amount of the settlement fund totaling approximately $42.30. This gross amount is consistent with FCRA class action settlements that have been approved by other federal courts. If the requested amounts are granted for attorneys' fees, administrative expenses, and a Class Representative Service award, the parties anticipate that each class member will receive a net payment of approximately $20.41. If any money remains in the fund after these distributions and after Class Members have had 60 days to cash their settlement checks, left over funds shall be paid as a cy pres donation to BayCare Emergency Assistance Program, Inc., a non-profit charity. The proposed settlement is fair and reasonable, and should be granted final approval by the Court, the lawsuit says.[CC] Attorneys for Plaintiff: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, P.A. 1110 N. Florida Avenue, Suite 300 Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: lcabassa@wfclaw.com twells@wfclaw.com Attorneys for Defendant: Thomas M. Gonzalez, Esq. Nathan J. Paulich, Esq. THOMPSON, SIZEMORE, GONZALEZ & HEARING, P.A. 201 North Franklin Street, Suite 1600 Tampa, FL 33602 Telephone: (813) 273-0050 Facsimile: (813) 273-0072 E-mail: tgonzalez@tsghlaw.com BIRD RIDES: Faces Class Action in California Over Scooters ---------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that people with visual or mobility impairment brought a federal class action accusing Bird Rides, Neutron Holdings, Los Angeles, Santa Monica and Beverly Hills of public nuisance, unjust enrichment and ADA violations by allowing motorized scooters on sidewalks and crosswalks. A copy of the Complaint is available at https://is.gd/w1wE5U BOSE CORP: Wireless Headphone Ads Misleading, Calloway et al. Say ----------------------------------------------------------------- LINDA CALLOWAY, DALE DEAN, ROSE FARELLA, JAYME HESTER, ANGELITA PIERRE-NOEL, and DWAYNE STOWE, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. BOSE CORPORATION, the Defendant, Case 1:18-cv-12207 (D. Mass., Oct. 23, 2018), challenges the actions of Bose Corporation in the marketing and sale of Bose SoundSport, SoundSport Free, and SoundSport Pulse wireless headphones. According to the complaint, Bose markets the Headphones as "sports headphones," and represents on its website, marketing materials, and product packaging that the Headphones are sweat-, weather-, and water-resistant. Bose uses images of sweat-drenched athletes wearing the Headphones while exercising in its promotional materials. Indeed, Bose's website features the following tagline: "Sweating it out in the gym or running through the rain, these are sport earphones built to keep you going every step of the way." Bose further represents on its website, marketing materials, and product packaging that the Headphones are rechargeable and offer five or six hours of wireless listening on a single charge. In reality, the Headphones are not sweat-, weather-, or water-resistant and do not function as advertised when exposed to sweat, moisture, or water. And the Headphones' batteries do not last five or six hours on a single charge. This is because the Headphones contain one or more defects that cause the battery life to degrade and diminish and eventually stop retaining a charge after normal usage, a process that accelerates when the Headphones are exposed to sweat or moisture. As a result of the defect(s), the Headphones regularly fail to hold a reasonable charge. The Plaintiffs are among the tens of thousands of consumers nationwide whose expensive Headphones (generally sold for $150 to $250) experience rapidly diminishing battery life and eventual failure to retain a charge after using the Headphones. The Plaintiffs further allege that the Headphones fail to retain an adequate charge in part due to the Headphones’ failure to resist sweat, weather, and water. Despite receiving countless complaints from consumers, Defendant refuses to acknowledge or attempt to fix the defects. Instead, when consumers return the defective Headphones under Bose's warranty, Bose sends replacement Headphones that contain the exact same defects, leaving consumers caught in a cycle of use, malfunction, and replacement. Once the standard one-year warranty period expires, consumers are often left with only a broken pair of Headphones. Reasonable consumers like Plaintiffs expect that high-end rechargeable Bluetooth headphones that cost between $150 and $250 will continue to function after minimal use, and they would not have purchased the Headphones or would have paid less had they known that Defendant's battery life, rechargeability, and sweat-, weather-, and water-resistant representations were false, and that the Headphones contain one or more defects that cause their batteries to rapidly fail. As a result of Bose's actions and omissions, Plaintiffs and the proposed class have suffered damages. Wireless rechargeable headphones that are unable to retain a charge for a reasonable amount of time are essentially worthless. Had Plaintiffs and the members of the class known that Defendant’s representations were false and that the Headphones contained the defect(s), they would not have bought them or would otherwise have paid less for them. At a minimum, the defective Headphones certainly are worth substantially less than what Plaintiffs and members of the class paid to purchase them, the lawsuit says.[BN] Attorneys for Plaintiffs: Sean K. Collins, Esq. LAW OFFICES OF SEAN K. COLLINS 184 High Street, Suite 503 Boston, MA 02110 Telephone: (617) 320-8485 Facsimile: (617) 227-2843 E-mail: Sean@Neinsurancelaw.com - and - Jeffrey S. Goldenberg, Esq. Todd Naylor, Esq. GOLDENBERG SCHNEIDER, L.P.A. One West 4th Street, 18th Floor Cincinnati, OH 45249 Telephone: (513) 345-8291 Facsimile: (513) 345-8294 E-mail: tnaylor@gs-legal.com jgoldenberg@gs-legal.com - and - Justin C. Walker, Esq. FINNEY LAW FIRM, LLC 4270 Ivy Pointe Boulevard, Suite 225 Cincinnati, OH 45245 Telephone: (513) 943-6660 Facsimile: (513) 943-6669 E-mail: justin@finneylawfirm.com - and - W.B. Markovits, Esq. Paul M. DeMarco, Esq. Terence R. Coates, Esq. MARKOVITS, STOCK & DEMARCO LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Telephone: (513) 665-0200 Facsimile: (513) 665-0219 E-mail: bmarkovits@msdlegal.com pdemarco@msdlegal.com tcoates@msdlegal.com CALISTA TOOLS: Slade Suit Asserts ADA Violation ----------------------------------------------- Calista Tools, LLC is facing a class action lawsuit under the Americans with Disabilities Act. The case is styled as Linda Slade individually and as the representative of a class of similarly situated persons, Plaintiff v. Calista Tools, LLC, Defendant, Case No. 1:18-cv- 1:18-cv-09855 (S.D. N.Y., Oct. 25, 2018). Calista's extensive line consists of professional hair products - shampoos, conditioners, styling products, finishing sprays, and hot tools.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11201 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com CAPITAL EXPRESS: Gassy Seeks Unpaid Wages under Labor Code ---------------------------------------------------------- JAMES GASSY, individually, and on behalf of all other similarly situated, the Plaintiff, vs. CAPITAL EXPRESS LINES, a California Corporation; SAMRA GURDIP, a natural person, and DOES 1-20, the Defendants, Case No. RG18922919 (Cal. Super. Ct., Oct. 1, 2018), seeks to recover unpaid wages under the California Labor Code. According to the complaint, the Plaintiff is a former driver at Defendants' trucking facility, and provided services as employees and/or agents of Defendant at said facilities. The Plaintiff was employed by the Defendant from April 2015 to March 2018. Additionally, the Plaintiff, while still under the control of the employer, would not be driving when loading/unloading of the truck, when the truck is being worked on for either repairs or maintenance, inspections of the truck, refueling of the truck, and if there are any truck malfunctions. The Plaintiff would not be compensated for the previously mentioned activities, the lawsuit says. Attorneys for Plaintiff: Mark E. Burton Jr., Esq. Elvin Minh Huy Vu, Esq. AUDET & PARTNERS, LLP Van Ness Avenue, Suite 500 San Francisco, CA Telephone: (415) 568 2555 Facsimile: (415) 568 2556 E-mail: mburton@audctlaw.com evu@audetlaw.com CHEF BLYTHE'S: Morgan Seeks Unpaid Wages under FLSA --------------------------------------------------- Lori Morgan, Individually, and on behalf of all others similarly situated under 29 U.S.C. section 216(b), the Plaintiffs, vs. Chef Blythe's Southern Bistro, Inc. and Willard Bridges, the Defendants, Case No. 3:18-cv-02818-M (N.D. Tex., Oct. 23, 2018), seeks to recover unpaid wages, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. According to the complaint, the Defendants are engaged in operating a operate a restaurant. As part of the payment scheme that Defendants used to pay Plaintiff and Class Members, Defendants paid Plaintiff and Class Members a subminimum wage and purported to utilize the tip credit against the payment of the full minimum wage. The use of the tip credit results in huge savings to Defendants because Defendants pay Plaintiff and Class Members less than minimum wage in direct wages per hour -- prior to accounting for the receipt of tips that Plaintiff and Class Members were paid by customers, the lawsuit says.[BN] Attorneys for Plaintiffs: Drew N. Herrmann, Esq. Pamela G. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, Texas 76102 Telephone: 817 479-9229 Facsimile: 817 887-1878 E-mail: drew@herrmannlaw.com pamela@herrmannlaw.com CHINELUS CORP: Accused by Pacheco of Not Paying Minimum, OT Wages ----------------------------------------------------------------- RAMIRO PACHECO and KENYA B. CASTILLO ALVARENGA, individually and on behalf of others similarly situated v. CHINELUS CORP. (D/B/A CHINELOS MEXICAN DELI GROCERY), CHINELOS II CORP. (D/B/A CHINELOS II), LUCERO RODRIGUEZ, GRACIELA VELEZ, and ALMA FELICES, Case No. 1:18-cv-09372 (S.D.N.Y., October 12, 2018), alleges that the Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. Chinelus Corp., doing business as Chinelos Mexican Deli Grocery, is a domestic corporation organized and existing under the laws of the state of New York and maintains its principal place of business in Bronx, New York. Chinelos II Corp., doing business as Chinelos II, is a domestic corporation organized and existing under the laws of the state of New York and maintains its principal place of business in New York City. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporations. The Defendants own, operate, or control Mexican restaurants/delis, located at 695 East 187th Street, in Bronx, New York, under the name "Chinelos Mexican Deli Grocery" and at 530 West 136th St., in New York City under the name "Chinelos II."[BN] The Plaintiffs are represented by: 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 E-mail: Michael@Faillacelaw.com COLUMBIA GAS: Faces Class Action Over Merrimack Valley Explosion ---------------------------------------------------------------- Michelle Williams, writing for MASSLIVE, reports that another lawsuit has been filed against Columbia Gas of Massachusetts on behalf of the victims of the Merrimack Valley explosions. Attorney Michael Burg of the Denver-based law firm Burg, Simpson, Eldredge, Hersh & Jardine, filed a complaint in Suffolk Superior Court on Oct. 22 on behalf of residents of Andover and Lawrence whom were directly impacted by the explosions. In the suit, Burg accuses Columbia of operating with a "comprised" distribution method, relying on cast iron piping installed as far back as the mid-1800s which is "highly susceptible to cracking and joint separation. "The Columbia Gas distribution system is comprised, to a large degree, of antiquated materials highly susceptible to corrosion and leaking, such as cast iron, wrought iron, and non-cathodically protected steel," the lawsuit states. "Despite the known risks associated with cast and wrought iron piping, these materials continue to comprise a large portion of the Columbia Gas distribution system." Cast iron and wrought iron mains are employed in just over 471 miles of Columbia Gas' distribution system, as of the end of 2017. Crews were working to replace a cast iron main with a new plastic distribution main line on the day of the explosions. Explosions in Lawrence, Andover and North Andover caused upwards of 70 fires, injured more than two dozen people and resulted in the death of an 18-year-old from Lawrence, who died after a chimney fell on his vehicle. Preliminary investigative reports show over-pressurized gas lines as the believed cause of the disaster, that the work crews "did not account for the location of the sensing lines or require their relocation to ensure the regulators were sensing actual system pressure," according to the National Transportation Safety Board. Valves controlling the flow of gas were not shut off for more than three hours after issues were detected at a monitoring center in Ohio. The company did not have a way to remotely modify the flow of gas, NTSB said. Homes in Andover, Lawrence and North Andover were evacuated in September. Thousands of residences were left with damaged gas lines. Columbia says its has repaired just over half of the damaged lines and expects to have all 6,1000 lines back to "gas ready" by its deadline in mid-November. Temperatures have already dropped into the 30s with the weather getting colder by the day. As of Oct. 19 there were still 1,881 families, 6,646 individual people, in alternative housing like trailers and hotel rooms. The company says it has received more than 21,000 claims and has paid $23 million. This lawsuit is one of several filed against the gas company. [GN] COMPLYRIGHT INC: Christiansen Suit Removed to C.D. Calif. --------------------------------------------------------- A class action styled as Paul Christiansen individually and on behalf of all others similarly situated, Plaintiff v. ComplyRight, Inc. a Minnesota corporation, Defendant, Case No. 30-2018 01010711-CU-BT-CXC, was removed from the State of California, Orange County Superior Court, to the U.S. District Court for the Central District of California on October 25, 2018, and assigned Case No. 8:18-cv-01920. The nature of suit is stated as Torts - Personal Property - Other Personal Property Damage. ComplyRight, Inc. provides human resource products and services for businesses in the United States. It specializes in business-to-business direct marketing, sales, service, and fulfillment.[BN] The Plaintiff appears pro se. CONN APPLIANCES: Certification of Nationwide Classes Sought ----------------------------------------------------------- STEPHANIE DURAN and ROSA RESENDEZ, On Behalf of Themselves and all Others Similarly Situated, the Plaintiffs, vs. CONN APPLIANCES, INC. (d/b/a Conn’s), the Defendant, Case 1:18-cv-00761-RP (W.D. Tex. Oct. 19, 2018), the Plaintiffs ask the Court to certify nationwide classes of: "sales associates paid hourly and/or commission for Fair Labor Standards Act violations and sales associates paid commission only for FLSA violations". The Plaintiffs further ask the Court that notice be issued to the putative collective action members.[CC] Attorneys for Plaintiffs: Shreedhar R. Patel, Esq. Allen R. Vaught, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: avaught@baronbudd.com spatel@baronbudd.com Attorneys for Defendant: Michael A. Harvey, Esq. Christopher M. Jordan, Esq. Tracy McCreight, Esq. MUNSCH HART KOPF & HARR, PC 303 Colorado Street, Suite 2600 Austin, TX 78701 Telephone: (512) 391-6145 Facsimile: (713) 222-5886 E-mail: tmccreight@munsch.com mharvey@munsch.com cjordan@munsch.com DAKOTA OF ROCKY: Initial Certification of Collective Action Sought ------------------------------------------------------------------ THOMAS T. McDOUGLE, and ROSEMARIE TAYLOR, for themselves and other similarly situated employees, the Plaintiffs, vs DAKOTA OF ROCKY HILL, LLC, the Defendant, Case 3:17-cv-00245-SRU (D. Conn., Oct. 19, 2018), the Plaintiff asks the Court for an order: 1. preliminarily certifying a collective action and granting permission to issue notice to all servers who have worked for Dakota Steakhouse from February 15, 2014 until the date of final judgment in this case; 2. permitting them to send notice to potential opt-in Plaintiffs; 3. authorizing them to send summary notice and proposed notice to potential Opt-In Plaintiffs; and 4. directing Defendant to produce a list of potential opt-in Plaintiffs' names, last-known mailing addresses, last-known telephone numbers, email addresses, and dates of employment and Social Security numbers if Plaintiffs' mailings are returned to sender as undeliverable.[CC] Attorney for Plaintiff: Thomas J. Durkin, Esq. HAYBER LAW FIRM, LLC 221 Main St., Suite 502 Hartford, CT 06106 Telephone: (860) 522 8888 Facsimile: (860) 218 9555 E-mail: tdurkin@hayberlawfirm.com DEBT RECOVERY: Joyce Disputes Debt Collection Practices ------------------------------------------------------- James Joyce and Susan Joyce, on behalf of themselves and others similarly situated, Plaintiff, v. Debt Recovery Solutions of Ohio, Inc., Murphy Law Office, LLC, Murphy Petty Ltd. and Christopher Murphy,, Defendant, Case No. 18-cv-02317, (N.D. Ohio, October 4, 2018), seeks statutory damages, interest, attorneys' fees and costs for violation of the Fair Debt Collection Practices Act. Murphy Law Office is a law firm engaged in the business of collecting consumer debts originally owed to others, especially on behalf of Debt Recovery Solutions. Defendants sought payment of an alleged debt of $1,028.92, consisting of allegedly unpaid medical bills and prejudgment interest, via a collection letter. The letter provides that the recipient must serve an answer within twenty-eight days, rather than the thirty days specified by law, thus creating a misleading impression, notes the complaint. [BN] Plaintiff is represented by: Geoffrey C. Parker, Esq. Jonathan L. Hilton, Esq. HILTON PARKER LLC 10400 Blacklick-Eastern Rd. NW Suite 110 Pickerington, OH 43147 Tel: (614) 992-2277 Fax: (614) 427-5557 Email: gparker@hiltonparker.com jhilton@hiltonparker.com DGD TRANSPORT: Vilches Seeks Overtime Wages under FLSA ------------------------------------------------------ RENE VILCHES, on behalf of himself and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, vs. DGD TRANSPORT L.L.C., and LUIS LOPEZ, the Defendants,Case 1:18-cv-24410-CMA (S.D. Fla., Oct. 23, 2018), seeks double damages and reasonable attorney fees from the Defendants, jointly and severally, pursuant to the Fair Labor Standards Act, for all overtime wages still owing from the Plaintiff's entire employment period with the Defendants. According to the complaint, between the period of on or about June 23, 2017 through on or about February 12, 2018, except for one week of work, the Plaintiff worked an average of 60 hours a week for the Defendants and was paid an average of $11.00 per hour but was not paid the extra half time rate for any hours worked over 40 hours in a week as required by the FLSA. The Plaintiff claims the half time overtime rate for each hour worked above 40 in a week using the applicable wage as the basis to calculate the overtime due and owing to the Plaintiff. The Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the FLSA as the Defendants knew of the overtime requirements of the FLSA and recklessly failed to investigate whether the Defendants' payroll practices were in accordance with the FLSA. The Defendants remain owing the Plaintiff these wages since the commencement of the Plaintiff's employment with the Defendants, the lawsuit says. DGD Transport, offers on-demand tech for transportation, warehousing and asset-based services.[BN] Attorneys for Plaintiff: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71 st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: ZABOGADO@AOL.COM DOLLAR TREE: Approval of Revised Class Settlement Sought -------------------------------------------------------- In the case, LOVELY NAKOOKA and ELVA REYES, individually and on behalf of all others similarly situated, the Plaintiffs, vs. DOLLAR TREE STORES, INC., and DOES 1-10, inclusive, the Defendants, Case 3:17-cv-03955-JD (N.D. Cal., Oct. 23, 2018), the parties will move the Court on December 13, 2018, for: 1. preliminary approval of their revised proposed class settlement; 2. conditional certification of the settlement class: "all non-exempt hourly store employees who worked for Dollar Tree in the State of California at any time from July 13, 2013, through the date [of preliminary approval]," excluding "any individuals who already have resolved the claims asserted in the Action, whether by settlement or adjudication." A total of approximately 64,151 current and former employees encompass the Class. 3. approval of the class notice; 4. appointment of plaintiffs as the class representatives, Randall B. Aiman Smith, Reed W.L. Marcy, Hallie Von Rock, Carey A. James, and Brent A. Robinson of Aiman-Smith and Marcy as the class counsel, and Rust Consulting, Inc., as the settlement administrator; and 5. setting of the final approval hearing. Specifically, the revised settlement: -- increases the Maximum Settlement Amount by 50%, from $900,000 to $1,350,000; -- decreases the proposed Class Representative Service Payments from $1,000 to $750 each; -- decreases the proposed Class Counsel Attorneys' Fees and Expenses Payment from $240,000 to $215,000, with Fees now representing less than 16% of the Maximum Settlement Amount; -- decreases the anticipated Settlement Administrator Fees Payment from $111,635 to $99,962, which is the lowest among seven bids the parties received; and -- makes other changes to the notice and approval process to meet the Court's concerns. These changes will produce settlement shares for Class Members of $15.81, about 80% more than before, and enough to cover the cost of two or three shirts which, for the average Class Member, would have been enough for his or her tenure at Dollar Tree, the lawsuit says. Attorneys for Plaintiffs: Randall B. Aiman-Smith, Esq. Reed W.L. Marcy, Esq. Hallie Von Rock, Esq. Carey A. James, Esq. Brent A. Robinson, Esq. AIMAN-SMITH & MARCY 7677 Oakport Street, Suite 1150 Oakland, CA 94621 Telephone: (510) 817-2711 Facsimile: (510) 562-6830 E-mail: ras@asmlawyers.com rwlm@asmlawyers.com hvr@asmlawyers.com caj@asmlawyers.com bar@asmlawyers.com Attorneys for Defendant: Jeffrey D. Wohl, Esq. Ryan D. Derry, Esq. Paul A. Holton, Esq. PAUL HASTINGS LLP 101 California Street, 48th Floor San Francisco, CA 94111 Telephone: (415) 856-7000 Facsimile: (415) 856-7100 E-mail: jeffwohl@paulhastings.com ryanderry@paulhastings.com paulholton@paulhastings.com DUNHILL 100 LLC: Medina Sues Over Unsolicited Text Messages ----------------------------------------------------------- ALBERT MEDINA, individually and on behalf of all others similarly situated v. Dunhill 100 LLC, a Florida Limited Liability Company, Case No. 9:18-cv-81374-DMM (S.D. Fla., October 12, 2018), alleges violations of the Telephone Consumer Protection Act. Dunhill 100 LLC is a Florida Limited Liability Company whose principal office is located in Palm Beach Gardens, Florida. The Defendant is a real estate company. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process, the Plaintiff asserts. He argues that the Defendant's unsolicited text messages caused him actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com ELNIK SYSTEMS: Perez et al. Seek Unpaid Overtime Wages under FLSA ----------------------------------------------------------------- EDWIN PEREZ and LEONARD SPINAZZOLA, individually and on behalf of all others similarly situated, the Plaintiffs, vs ELNIK SYSTEMS LLC, CLAUS JOENS, and STEFAN JOENS, the Defendants, Case No. 2:18-cv-15230 (D.N.J., Oct. 23, 2018), seeks equitable and legal relief for the Defendants' violations of the Fair Labor Standards Act of 1938, the New Jersey Wage and Hour Law, the New Jersey Wage Payment Act, and the Michigan Workforce Opportunity Wage Act. According to the complaint, Mr. Perez routinely worked between 40-45 hours per week for Defendants as a field service manager, and occasionally worked more than 45 hours per week. Perez was paid at a rate of $41.00 per hour for all hours worked, and did not receive overtime premiums for the hours he worked in excess of 40 hours per workweek. During weeks in which Mr. Spinazzola was required to travel for work, the number of hours he worked varied depending on the client, location, and the job, but he typically worked between 40 and 70 hours per week during such weeks. Spinazzola was paid at a rate of $45.48 per hour for all hours worked, including travel time when he traveled to clients, but he did not receive overtime premiums for any hours worked in excess of 40 per workweek. The Plaintiffs and the FLSA Collective Plaintiffs regularly worked in excess of 40 hours per week during their employment with Defendants, yet Defendants failed to compensate them their full overtime premiums for the hours they worked in excess of 40 per workweek, the lawsuit says. Elnik Systems is a United States-based manufacturing company which produces processing equipment for the metal injection molding industry.[BN] Attorneys for Plaintiffs: Adam Sackowitz, Esq. KATZ MELINGER PLLC 280 Madison Avenue, Suite 600 New York, NY 10016 Telephone: (212) 460-0047 E-mail: ajsackowitz@katzmelinger.com ESSENDANT INC: Pietras Balks at Merger Deal with Staples, Inc. -------------------------------------------------------------- JOSEPH PIETRAS, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. 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, the Defendants, Case No. 1:18-cv-01506-UNA (D. Del., Sept. 27 2018), seeks to enjoin the Defendants from closing a tender offer by Staples, Inc., via its affiliate Egg Merger Sub Inc. or taking any steps to consummate a proposed merger transaction, unless and until the material information is disclosed to Essendant shareholders or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Securities Exchange Act. The case is a class action brought by Plaintiff on behalf of himself and all other similarly situated public shareholders of Essendant Inc. against Essendant and the members of the Essendant's board of directors for their violations of the Securities Exchange Act of 1934. On September 14, 2018, Essendant entered into an Agreement and Plan of Merger, whereby each shareholder of Essendant common stock will receive $12.80 per share in cash. According to the complaint, on September 24, to convince Essendant shareholders to tender their shares, the Board authorized the filing of a materially incomplete and misleading Schedule 14D-9 Solicitation/Recommendation Statement with the SEC. In particular, the Recommendation Statement contains materially incomplete and misleading information concerning: the background to the Proposed Transaction; the valuation analyses performed by the Company's financial advisor, Citigroup Global Markets Inc., in support of its fairness opinion; and the conflicts of interest Citigroup faced as a result of its ongoing dealings with Essendant, Staples and certain affiliates. The Tender Offer is scheduled to expire at one minute after 11:59 p.m., New York City time, on October 22, 2018. It is imperative that the material information that has been omitted from the Recommendation Statement is disclosed to the Company's shareholders prior to the Expiration Time so they can properly determine whether to tender their shares.[BN] Attorneys for Plaintiff: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Telephone: (212) 971 1341 Facsimile: (212) 202 7880 E-mail: jmonteverde@monteverdelaw.com - and - Blake A. Bennett, Esq. COOCH AND TAYLOR, P.A. The Brandywine Building 1000 West Street, 10th Floor Wilmington, DE 19801 Telephone: (302) 984 3800 F & M CAFETERIA: Refused to Pay Overtime Under FLSA, Lopez Claims ----------------------------------------------------------------- CARMEN LOPEZ and all others similarly situated under 29 U.S.C. 216(b) v. F. & M. CAFETERIA, INC., MARIA M FABRE, Case No. 1:18-cv-24214-KMW (S.D. Fla., October 12, 2018), alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. F. & M. Cafeteria, Inc., is a company that regularly transacts business within Miami-Dade County. The Individual Defendant is a corporate officer, owner or manager of the Defendant Corporation.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com FACEBOOK INC: Faces Class Action Over Location Tracking ------------------------------------------------------- Ian Lopez, writing for Law.com, reports that Facebook was tagged with a class action lawsuit Oct. 19 alleging the social media giant tracks locations despite users changing their privacy settings to prevent it. Brought before the U.S. District Court for the Northern District of California, the lawsuit alleges that Facebook tracked plaintiff Brett Heeger's whereabouts despite his having "expressly attempted to limit" such "by turning the location history tracking and storage option to off" in his user account. "Plaintiff relied on Facebook's promise that, if he turned location history 'off,' Facebook would no longer build a location history logging his private location information," the complaint said. "Nevertheless, Facebook continued to track and store his private location information without his knowledge or consent even when plaintiff did not use the Facebook app or tag his location in posts." The suit, filed by attorneys from Tycko & Zavareei and Stueve Siegel Hanson, largely mirrors a class action against Google over similar data practices, with both companies accused of violating California privacy laws. The allegations against Google spawned from an Associated Press investigation that revealed some of the company's apps and services were tracking users' physical whereabouts after users set their device's settings to prevent such recording. Facebook is charged with violating California's Invasion of Privacy Act, which prohibits using "an electronic tracking device to determine the location or movement of a person." The lawsuit claims Facebook's "applications, software, device components, and other technology on plaintiff's and each class members' mobile phone" constitute as tracking devices under the law. Also among charges brought against Facebook under California law is an alleged violation of the state's Constitutional Right of Privacy, with the company accused of having "intentionally intruded on plaintiff's and class members' solitude, seclusion, right of privacy, and private affairs by continuing to track, build and store detailed location histories without their knowledge or consent." These actions are "particularly egregious," it notes, because the company "surreptitiously, and in an unfair and deceptive manner, continued and continues to track plaintiff and class members after they affirmatively disabled location history on their mobile phones." Plaintiffs attorneys are also alleging that location information transmitted by Facebook between user devices and Facebook's servers unbeknownst to users is a violation of the Stored Communications Act. The company's actions, plaintiffs claim, also violate a 2011 consent decree with the Federal Trade Commission to not share information like physical location when a user asks them not to. "This behavior by Facebook was malicious, oppressive, and willful, and calculated to injure plaintiff and class members in conscious disregard of their rights," the complaint adds. A Facebook spokesperson told The Recorder in an email that "Facebook's data policy and related disclosures explain our practices relating to location data and provide information about the privacy settings we make available." "This lawsuit is without merit and we will defend ourselves vigorously," they added. But plaintiffs attorney Sabita Soneji, an Oakland partner at Tycko & Zavareei, noted that "Facebook's disclosures about location tracking are both misleading and omit crucial information." The suit isn't the first brought against Facebook by Tycko & Zavareei. The firm filed a complaint against the company in August alleging it shared user data with mobile device makers like Apple and Samsung without user consent. Ms. Soneji is also the plaintiffs attorney in that lawsuit. That investigation led the firm to "find out about this separate but equally egregious privacy violation," Soneji said. "A reasonable consumer thinks that turning off 'location history' means that Facebook will no longer track or store his location information," Ms. Soneji added. "Indeed, reasonable consumers only turn off that feature because they want to protect their private location data. In reality, Facebook continues to track and store users' location information without users' consent—and regardless of their privacy settings." [GN] FALLS MUSIC: November Trial Scheduled for Stamped Class Action -------------------------------------------------------------- cim reports that a class action involving up to nearly 80 revellers injured in stampede at the Falls Music and Arts Festival will go to trial this month. The multimillion-dollar class action involves festivalgoers injured during a stampede at the music festival in 2016. The festivalgoers were leaving Aussie band DMAs' performance to see London Grammar on another stage when the overcrowded exit became congested, causing a panic which saw many people being injured and trampled on. The stampede resulted in 19 revellers being hospitalised and 76 people needing first aid treatment. The case will now go to trial in the Melbourne Supreme Court on November 19 after the parties failed to reach a court settlement in a second attempt. Damages are likely to be in excess of $4 million, according to lawyers leading the case. The festival started in 1993, with a small one-day concert, held in Lorne named Rock Above The Falls. Its initial success saw it expand, becoming a multi-day music festival held annually in Lorne, Marion Bay, Yelgun and Fremantle, Australia over the New Year's Eve and January period. The festival has a strong focus on sustainability, winning multiple awards over the years including being named the winner of the Major Festival category of the Australian Event Awards in 2014. [GN] FEDERATED LAW: James Sues Over Debt Collection Practices -------------------------------------------------------- Tonya James, individually and on behalf of all others similarly situated, Plaintiff, v. Federated Law Group, PLLC, Absolute Resolutions Investments, LLC and John Does 1-25, Defendants, Case No. 1:18-cv-24436-DPG (S.D. Fla. October 25, 2018) seeks damages and declaratory relief for violation of the Fair Debt Collections Practices Act ("FDCPA"). The complaint says that Defendants Federated and Absolute collect and attempt to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet. The Plaintiff received a collection letter via email from Defendant Federated as an attempt to collect an alleged debt, on behalf of Defendant Absolute, with an alleged balance owed of $18,809.51. However, the Letter fails to identify information necessary for Plaintiff to identify the account, namely the original account number with which the debt is associated, says the complaint. Plaintiff is a resident of the State of Florida, County of Miami-Dade, residing at 700 214th NW Street, Apt. 104, Miami, FL 33169. Federated Law Group, PLLC is a "debt collector" as the phrase is defined and used in the FDCPA with an address at 887 Donald Ross Rd., Juno, FL 33408. Absolute is a company that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another.[BN] The Plaintiff is represented by: Justin Zeig, Esq. ZEIG LAW FIRM, LLC 3475 Sheridan St. Ste 310 Hollywood, FL 33021 Phone: (754) 217-3084 Fax: (954) 272-7807 Email: justin@zeiglawfirm.com FIFTH THIRD: Magee Sues Over Hidden Fees on ATM Withdrawals ----------------------------------------------------------- LENOX MAGEE, On behalf of himself and all others similarly situated v. FIFTH THIRD BANK, Case No. 1:18-cv-00722-SJD (S.D. Ohio, October 15, 2018), alleges that Fifth Third regularly charges fees, including fees on accountholders, who withdraw funds from out-of-network ATMs, on consumer account holders without prior notice, and without consumers' consent. This practice breaches the contract governing the relationship between Fifth Third and its customers, Mr. Magee contends. He adds that the assessment of these fees without disclosing that they would be charged to Fifth Third's customers is also an unfair and deceptive practice. Fifth Third Bank is a national bank with its headquarters and principal place of business located in Cincinnati, Ohio. Among other things, Fifth Third Bank is engaged in the business of providing retail banking services to consumers, including Plaintiff and the putative classes, which includes the issuance of debit cards for use by consumers in conjunction with their checking accounts. Fifth Third operates banking centers and conducts business throughout the United States.[BN] The Plaintiff is represented by: Stuart E. Scott, Esq. SPANGENBERG SHIBLEY & LIBER 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 Telephone: (216) 696-3232 Facsimile: (216) 696-3924 E-mail: sscott@spanglaw.com - and - Hassan A. Zavareei, Esq. Andrea R. Gold, Esq. Katherine M. Aizpuru, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 973-0900 E-mail: hzavareei@tzlegal.com agold@tzlegal.com kaizpuru@tzlegal.com - and - Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 West Las Olas Blvd., Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 525-4100 Facsimile: (954) 525-4300 E-mail: ostrow@kolawyers.com streisfeld@kolawyers.com GRAIN PROCESSING: Settlement Claims Process Set to Start -------------------------------------------------------- Meredith Ecklund, writing for Muscatine Journal, reports that members of the class action lawsuit involving Grain Processing Corp will soon be able to start the claims process. Court documents filed on Oct. 22 show Judge John Telleen granted preliminary approval of the class action settlement, notification of the class and setting a fairness hearing. The long-form notice that includes specific details on how members may file claims will be mailed by Nov. 19 to "all Class Members who can be identified by reasonable means . . . " To claim funds from the settlement, members must file forms by March 19. Those who signed a settlement agreement last winter opted out of the class action and are not eligible to file a claim. A notification to the public will go out no later than Nov. 26 in the Muscatine Journal and broadcast on local television and radio. Earlier in October, a settlement of more than $50 million in benefits to the class was reached between the class action and GPC after more than six years of litigation. The judge will determine whether the settlement is "fair, adequate and reasonable" to class members at the hearing. If class members want to object to the settlement, written objections must be filed by Jan. 3 with the court. The fairness hearing is set for 10 a.m. the week of Feb. 4 at Muscatine County Courthouse or a location to be determined, according to the documents. Final approval will be considered at that time. The lawsuit claimed the corporation that currently employs more than 1,000 Muscatine residents was negligent and a nuisance with plant emissions. Residents within 1.5 miles of the plant located on Oregon Street in the Southend from April 24, 2007, and Sept. 1, 2017, have been included in the class which totals more than 10,000 people. "Clean air is a right, not a privilege," attorney for the class Sarah Siskind said in a news release. "We're eager to close this chapter on the litigation so that Muscatine citizens, and GPC, can move on." [GN] GRAY TELEVISION: Mowrer Sues Over for Inflated Prices for TV Ads ---------------------------------------------------------------- MOWRER FOR IOWA, on behalf of itself and all other similarly situated v. GRAY TELEVISION, INC.; HEARST TELEVISION INC.; NEXSTAR MEDIA GROUP, INC.; SINCLAIR BROADCAST GROUP, INC.; TEGNA INC.; TRIBUNE MEDIA COMPANY, Case No. 1:18-cv-06892 (N.D. Ill., October 12, 2018), alleges that the Defendants engaged in unlawful collusion and conspired to artificially inflate the price of purchasing local television advertisements, in violation of the Sherman Act. Gray Television, Inc., is a television broadcast company headquartered in Atlanta, Georgia. Gray owns and operates television stations and digital assets in the United States. Hearst Television Inc., headquartered in New York City, is a diversified media and information Company. Hearst operates television stations and cable networks throughout the United States. Nexstar Media Group, headquartered in Irving, Texas, operates as a television broadcasting and digital media company in the United States. Sinclair Broadcast Group., Inc., headquartered in Hunt Valley, Maryland, operates as a television broadcast company in the United States. Tegna, Inc., is a broadcasting, digital media, and marketing services company headquartered in McLean, Virginia. Tegna owns and operates 47 television stations in 39 markets across the United States. Tribune Media Company, headquartered in Chicago, Illinois, operates through its subsidiaries as a media and entertainment company in the United States. Tribune offers news, entertainment, and sports programming through Tribune Broadcasting local television stations.[BN] The Plaintiff is represented by: Leonard A. Gail, Esq. Hillary Coustan, Esq. MASSEY & GAIL LLP 50 East Washington Street, Suite 400 Chicago, IL 60602 Telephone: (312) 283-1590 Facsimile: (312) 379-0467 E-mail: lgail@masseygail.com hcoustan@masseygail.com - and - Kalpana Srinivasan, Esq. Steven Sklaver, Esq. Bryan Caforio, Esq. Oleg Elkhunovich, Esq. SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 E-mail: ksrinvasan@susmangodfrey.com ssklaver@susmangodfrey.com bcaforio@susmangodfrey.com oelkhunovich@susmangodfrey.com GUIDANCE CORP: SOGB Sues over Refusal to Pay Rent ------------------------------------------------- SOGB Inc., the Plaintiff, v. ROBERT GUIDA, GUIDANCE CORPORATION, GUIDANCE MEDICAL PERSONNEL, Inc., GUIDANCE STAFFING, GUIDANCE INTERNATIONAL, and GUIDANCE Rx, the Defendants, Case No. 655077/2018 (N.Y. Sup. Ct., Oct. 12, 2018), alleges that Plaintiff has been damaged in the total sum of at least $56,000, plus pre- and post- judgment interest, attorney's fees, court costs, court reporter fees, and all other additional costs incurred as a result of the instant litigation, resulting from the Defendants' failure to pay debt owed to the Plaintiff. The Plaintiff asks that this Court enter judgment in its favor and in favor of all others similarly situated. According to the complaint, on or about August 17, 2009, the Plaintiff and Guidance Corp. entered into a commercial sublease agreement with respect to commercial office space premises located at 29 Broadway, Suite 1300, New York, NY 10006. Separately, Defendant Guida, as an individual, personally and unconditionally guaranteed the performance of the Commercial Sublease Agreement in a Guaranty of Payment, and waived his right to a jury trial. He guarantees the full performance of the Commercial Sublease Agreement. Guidance Corporation failed to make the rent payments for the months of September and October 2016 at $7,000 per month. On Oct. 2016, Guidance was notified that the rent was late and due. On October 31, 2016, Defendant Guida was observed surreptitiously moving personal property out of the rented premises, without notice to the over-tenant (SOGB), the landlord, or building security, in violation of building policies, in an attempt to vacate the premises and skip out on the owed rent. Rent is due and owing from the Defendant in the amount of $7,000/ month times 8 months or $56,000.[BN] Attorneys for the Plaintiff: Erik Dykema, Esq. ZELLER IP GROUP PLLC 155 Water Street, Suite 6/6 Brooklyn, NY 11201 Telephone: (972) 920-8002 E-mail: erik@zellerip.com HAIN CELESTIAL: Manley Calls Alba Botanica Sunscreen Ad Deceptive ----------------------------------------------------------------- KATY MANLEY, individually and on behalf of all others similarly situated, Plaintiff, vs. THE HAIN CELESTIAL GROUP, INC., the Defendant, Case: 1:18-cv-07101 (N.D. Ill., Oct. 23, 2018), alleges that the Defendant manufactures, sells, and distributes certain of its Alba Botanica brand sunscreen using deceptive and misleading labeling, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. The action seeks to remedy the unfair and deceptive business practices arising from the marketing and sale of the Defendant's "Alba Botanica Very Emollient Mineral Spray Sunscreen". The Defendant misrepresents that its Product provides adequate sun protection. The Product contains significantly less protection than advertised, by design and corporate practice and procedure. But for the Defendant's misrepresentations, Plaintiff and similarly situated purchasers of the Product would not have purchased or paid the price they did for the Product, the lawsuit says.[BN] Attorneys for Plaintiff and the Class: William M. Sweetnam, Esq. Natasha Singh, Esq. SWEETNAM LLC 100 North La Salle Street, Suite 2200 Chicago, IL 60602 Telephone: (312) 757-1888 E-mail: wms@sweetnamllc.com ns@sweetnamllc.com HERSHEY CO: Clark Sues Over Product Mislabeling ----------------------------------------------- Howard Clark, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. The Hershey Company, Defendant, Case No. 18-cv-06113, (N.D. Cal., October 4, 2018, seeks redress for violations of warranty, negligent and intentional misrepresentations/omissions and California consumer protection laws. Defendant manufactures, packages, distributes, advertises, markets, and sells a house-brand product identified as "Brookside Dark Chocolate" products. Its packaging, labeling, and advertising scheme is intended to give consumers the impression that they are buying a premium, "all natural" product with natural flavoring ingredients despite containing artificial flavoring, says the complaint. [BN] The Plaintiff is represented by: Ronald A. Marron, Esq. Michael T. Houchin, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Fax: (619) 564-6665 Email: ron@consumersadvocates.com mike@consumersadvocates.com HUFF DISTRIBUTING: Vincent Seeks Unpaid Overtime for Route Drivers ------------------------------------------------------------------ LORI VINCENT, the PLAINTIFF, vs. HUFF DISTRIBUTING, LLC., the DEFENDANT, Case 3:18-cv-02186 (N.D. Fla., Oct. 23, 2018), seeks to recover unpaid overtime pursuant to the Fair Labor Standards Act for any hours worked over 40 per week. According to the complaint, the Defendant is in the business of producing and distributing various snack foods. The Defendant employed Route Drivers, who delivered Defendant's products and other snack products to Defendant's customers including chain retail grocery stores. The Plaintiff was a Route Driver employed by Defendant, between March 26, 2018 and July 22, 2018. Defendant monitored Plaintiff's performance levels and standards of conduct to ensure compliance with its mandatory standardized training and minimum requirements for vehicles. Plaintiff any lacked control over assignments and did not exercise discretion or make management decisions, instead Plaintiff followed strict dispatch assignments provided, controlled and monitored by Defendant. Defendant's actions were deceptive, willful and intentionally calculated to misclassify Plaintiff as an independent contractor in violation of the FLSA. As a result of Defendant's intentional misclassification, the Plaintiff was not paid time and one-half for all hours worked in excess of 40 hours per work week during one or more work weeks, the lawsuit says. Attorney for Plaintiff: Clayton M. Connors, Esq. R. John Westberry, Esq. WESTBERRY & C ONNORS , LLC. 4400 Bayou Blvd., Suite 32A Pensacola, FL 32503 Telephone: (850) 473-0401 Facsimile: (850) 473-1388 E-mail: cmc@westconlaw.com rjw@westconlaw.com INFINITY ASSURANCE: Plantation Suit Moved to S.D. Florida --------------------------------------------------------- Plantation Open MRI, LLC on behalf of itself and all others similarly situated agent of Gloria Diaz, the Plaintiff, vs. Infinity Assurance Insurance Company, the Defendant, Case No.: CACE-18-024614, was removed from the 17th Judicial Circuit Court, to U.S. District Court for the Southern District of Florida (Ft Lauderdale) on Oct. 22, 2018. The Southern District of Florida Court Clerk assigned Case No. 0:18-cv-62532-DPG to the proceeding. The suit alleges insurance-related claims. The case is assigned to the Hon. Judge Darrin P. Gayles.[BN] Attorneys for Plaintiff: Jaime Eileen Martin, Esq. VERNIS, BOWLING OF BROWARD Fort Lauderdale, FL 33304 713 NE 17th Terrace Telephone: (860) 670-6897 - and - Jose Pete Font, Esq. FONT & NELSON, LLC 200 S. Andrews Ave.,Suite 501 Fort Lauderdale, FL 33301 Telephone: (954) 248-2920 Facsimile: (954) 248-2134 E-mail: jfont@fontnelson.com Attorneys for Defendant: Rachel Marie La Montagne, Esq. SHUTTS & BOWEN LLP 200 South Biscayne Blvd., Suite 4100 Miami, FL 33131 Telephone: (305) 358-6300 Facsimile: (305) 381-9982 E-mail: rlamontagne@shutts.com - and - Victoria San Pedro Madani, Esq. Suzanne Youmans Labrit, Esq. SHUTTS & BOWEN 200 S. Biscayne Blvd., Suite 4100 Miami, FL 33131 Telephone: (305) 379-9154 Facsimile: (305) 415-9872 E-mail: vmadani@shutts.com slabrit@shutts.com J.F. MEAT: Conretras Files Labor Suit in New York ------------------------------------------------- A class action lawsuit has been filed against J.F. Meat & Grocery Corp. The case is styled as Adelyn Paniagua Conretras, Sadiel Castillo, idividually and on behalf of all other similarly situated persons, Plaintiffs v. J.F. Meat & Grocery Corp d/b/a C-Town Supermarket, Luis Ferreira, individually, Defendants, Case No. 1:18-cv-09851 (S.D. N.Y., Oct. 25, 2018). The Plaintiff filed the case under the Fair Labor Standards Act. C-Town Supermarkets is a chain of independently owned and operated supermarkets operating in the northeastern United States.[BN] The Plaintiffs appear pro se. JOHN C. HEATH: Pena Sues over Unauthorized Text Messages -------------------------------------------------------- MARCELO PENA, individually and on behalf of all others similarly situated, the Plaintiff, vs. JOHN C. HEATH, ATTORNEY AT LAW, PLLC d/b/a LEXINGTON LAW FIRM, a Utah professional Limited Liability Company, the Defendant, Case No. 1:18-cv-24407-UU (S.D. Fla., Oct. 23, 2018), alleges that the Defendant sells credit repair and monitoring services to consumers. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process. This case arises from Defendant's unauthorized text messages to cellular subscribers who never provided the Defendant with prior express consent, as well as cellular subscribers who expressly requested not to receive the text messages. The lawsuit notes that the Defendant has been sued before for violating the TCPA and was aware of the restrictions imposed upon it by the TCPA. Through this action, the Plaintiff seeks injunctive relief to halt the Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals, the lawsuit says.[BN] Counsel for Plaintiff and the Class: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1 st Avenue, Suite 1205 Miami, FL 33132 Telephone: 305 479-2299 E-mail: ashamis@shamisgentile.com JORDAN SCHOOL: Class Certified in Girls' High School Football Case ------------------------------------------------------------------ S.G., by and through her general guardian, BRENT GORDON, et al., the Plaintiffs, v. JORDAN SCHOOL DISTRICT, et al., the Defendants, Case 2:17-cv-00677-RJS-DBP (D. Utah), the Hon. Judge Robert J. Shelby entered an order on Oct. 9, 2018, granting in part and denying in part, the Plaintiffs' motion to certify class. The Court certified a class under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure: "all present and future Jordan, Canyon, and Granite school district female high school students who seek to participate and/or are or were deterred from participating on girls high school football teams". This class is certified with respect to all factual and legal issues relating to the Plaintiffs' Equal Protection Claim against Defendants. The court denied certification of a class of: "female students seeking more athletic opportunities". Because Plaintiffs failed to provide the court an evidentiary basis from which to infer that Rule 23(a)'s numerosity requirement was satisfied with respect to the female athletes class. The Court said, "Although mindful of the arguments made by the Defendants in their motion to file a joint supplemental memorandum in opposition to the Plaintiffs' Motion to Certify Class, those arguments would not change the court's analysis concerning adequacy or numerosity. Accordingly, the Defendants' Motion is denied. After the benefit of the parties' briefing and careful consideration of the Rule 23(g) factors, the court designates the following as class counsel: D. Loren Washburn, Mark Smith, and Jacob Fonnesbeck. The court declines to appoint Brent Gordon as counsel because he is likely to be a necessary witness. The class representatives shall be the named student plaintiffs: S.G., L.D., B.S., M.C., D.R., I.N., and I.C."[CC] JPAY INC: Does Not Deliver 30-Min. Video Service, Salim Says ------------------------------------------------------------ OUMER SALIM, on behalf of himself and others similarly situated v. JPAY, INC., Case No. 4:18-cv-00730-ALM-KPJ (E.D. Tex., October 12, 2018), is brought on behalf of persons who, after December 1, 2009, paid a fee to JPay for a 30-minute Video Visitation session and received less than a 30-minute session. The lawsuit seeks to recover for JPay's failure to deliver the service as promised and paid for. JPay, Inc., is a provider of corrections-related services in more than 30 states across the country, as well as a provider of Video Visits for individuals in community corrections. JPay provides video conferencing services to prisons throughout the country. Family and friends, who would otherwise be unable to visit an incarcerated person can use the service offered through JPay to have a "Video Visitation." JPay charges for these Video Visitation sessions in 30-minute increments. Complaints from around the country indicate families and friends of inmates consistently complain that video sessions do not last the entire 30 minutes session, according to the complaint.[BN] The Plaintiff is represented by: Bruce W. Steckler, Esq. Dean Gresham, Esq. STECKLER GRESHAM COCHRAN PLLC 12720 Hillcrest Road - Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: bruce@stecklerlaw.com dean@stecklerlaw.com K12 INC: Souders Sues over Unsolicited Telephone Calls ------------------------------------------------------ KRISTYNA SOUDERS, individually and on behalf of all others similarly situated, the Plaintiff, vs. K12 INC.; and DOES 1 through 10, inclusive, the Defendant, Case No. 2:18-cv-09106 (C.D. Cal., Oct. 23, 2018), seeks to recover damages and any other available legal or equitable remedies resulting from the illegal actions of Defendant, in negligently contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act, thereby causing Plaintiff to incur unwanted and unnecessary charges and invading Plaintiff's privacy. According to the complaint, beginning in or around February of 2018, Defendant contacted Plaintiff on Plaintiff's cellular telephone numbers ending in -4086 in an attempt to solicit Plaintiff to purchase Defendants' services. Defendants used an "automatic telephone dialing system" to place its calls to Plaintiff. Furthermore, at one or more instance during these calls, Defendant utilized an "artificial or prerecorded voice" as prohibited by 47 U.S.C. section 24 227(b)(1)(A). Defendant's calls constituted calls that were not for emergency purposes as defined by 47 U.S.C. section 227(b)(1)(A). Defendant did not possess Plaintiff's prior express consent to receive calls using an automatic telephone dialing system or artificial or prerecorded voice on its cellular telephones pursuant to 47 U.S.C. section 8 227(b)(1)(A). Defendant placed multiple calls soliciting its business to Plaintiff on its cellular telephones beginning in or around February of 2018. Defendant failed to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under 47 U.S.C. section 19 227(c)(5), the lawsuit says. K12 Inc. is a for-profit education company that sells online schooling and curricula. K12 is an education management organization that provides online education designed as alternatives alternative to traditional "bricks and mortar" education for public school students from kindergarten to 12th grade.[BN] Attorneys for Plaintiff: 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: 323 306-4234 Facsimile: 866 633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com twheeler@toddflaw.com KB HOME: Bayberry Lakes et al. Seek to Certify Homeowners Class --------------------------------------------------------------- The Plaintiffs in a class action lawsuit against KB Home et al., ask the Court to certify a class of: "all current owners of the homes in the Bayberry Lakes subdivision in Daytona Beach, Florida, (a) which Defendants designed, developed, constructed, built, and/or sold; (b) with claims that are not otherwise barred; and (c) which allegedly have the Stucco Deficiencies." The Plaintiffs' proposed class consists of all of the owners of the 275 homes in the Bayberry Lakes subdivision, which were all built by Defendants. The case is captioned as "BAYBERRY LAKES HOMEOWNERS ASSOCIATION, INC., a Florida corporation; DAWN ADAMS; LUIS and ADALINA ALBELO; JASON BELL and KIMBERLY DANIELS; JOHN and MICHELLE BETROS; CRAIG and CASEY BROWN; MICHAEL BROWN; NATHAN and MICHELLE BURHANS; PAUL CAIRNS; JENNIFER CARON; PAMELA COTE and TODD KOEHLER; SANDRA CONGER; KENNY and LISA CORBIN; MATTHEW and GLENAE COVINGTON; JOSEPH DUNN; JOHN and OLADUNNI DURO-EMANUEL; AMAL FANOUS; THOMAS and AMANDA FOGLIO; RANDALL FRANK; IRINA GEIDEL; LOUIS GILL; ERWIN GREENE and LATESHA HUNTLEY; RICHARD and TERESA GREGO; RODNEY HAIGLER; PETER HELLINGER; VIRGINIA HEWETT; JEFFREY and TINA JACOBSON; SHARON JAMES; MAREK and CAROLINA JURACEK; WILLIAM KAMER; ERNEST OMAR-KASHIF; PAMELA LIPPELT; LOLITA LIPPELT and RICHARD GREGO; ANTHONY and DONNA MADDOX; STEPHANIE MILLER; ANGELA MOBLEY; MIKE and CELAYNE MOORE; FREDERIC NDIAYE; JONATHAN and SAMANTHA NEMERGUT; THO NGUYEN; THUAN NGUYEN; JOAN ORTAGUS; DHAVAL and DHANIAXMI PATEL; GARY and ANNETTE PELHAM; MICHAEL and KATHLEEN RIDALL; MATTHEW SPROUSE; NORMAN and GWEN STUART; EDWARD THOMAS; ROBERT TROWBRIDGE; KEVIN and HELEN TUCKER; HARRISON and HELEN WAITHAKA; RYAN WILL; KEVIN ZAHNEN and SABRINA FALLETTA; THOMAS ZAHNEN; ED and JANICE ZAPKA, as individuals, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. GERALD BOENEMAN, an individual; GEORGE GLANCE, III, an individual; MICHAEL HOLDER, an individual; KB HOME GOLD COAST, LLC, a foreign limited liability company; KB HOME JACKSONVILLE, LLC, a foreign limited liability company; KB HOME ORLANDO, LLC, a foreign limited liability company; and JOSHUA SPALTEN, an individual, the Defendants"; - and - "KB HOME ORLANDO, LLC, a foreign limited liability company, KB HOME JACKSONVILLE, LLC, a foreign limited liability company; KB HOME GOLD COAST, LLC, a foreign limited liability company, Third-Party Plaintiffs, v. BRANCO PREMIER STUCCO, LLC, a Florida corporation, BRANCO LATH & STUCCO, INC., a Florida corporation, MCNEAL & WHITE CONTRACTORS, INC., a Florida corporation, R&R STUCCO, INC., a Florida corporation, ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation, FRITZ BOGAUSCH CONCRETE SPECIALISTS, INC., a Florida corporation, LEOR CONSTRUCTION LLC, a Florida corporation, DAVE’S PAINTING OF CENTRAL FLORIDA, INC., a Florida corporation, M&D PROFESSIONAL PAINTING, BUILDERS FIRSTSOURCE, INC., a Delaware corporation, and 84 LUMBER COMPANY, a Pennsylvania limited partnership, the Third-Party Defendants", Case No. 6:18-cv-00072-CEM-GJK (M.D. Fla., Oct. 1, 2018).[CC] Attorneys for Plaintiffs: Phillip E. Joseph, Esq. James C. Prichard, Esq. Evan J. Smallc Kelly M. Corcoran BALL JANIK LLP 201 E Pine Street, Suite 600 Orlando, FL 32801 Telephone: (407) 455 5664 Facsimile: (407) 902 2105 Email: pjoseph@balljanik.com jprichard@balljanik.com esmall@balljanik.com kcorcoran@balljanik.com KERYX BIOPHARMA: Rosenblatt Balks at Merger Deal with Akebia ------------------------------------------------------------ JORDAN ROSENBLATT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. KERYX BIOPHARMACEUTICALS, INC., KEVIN J. CAMERON, MARK J. ENYEDY, STEVEN C. GILMAN, MICHAEL T. HEFFERNAN, JODIE MORRISON, DANIEL P. REGAN, MICHAEL ROGERS, AKEBIA THERAPEUTICS, INC., and ALPHA THERAPEUTICS MERGER SUB INC., the Defendants, Case No. 1:18-cv-12205 (D. Mass., Oct. 23, 2018), seeks preliminary and permanent injunction against the Defendants and all persons acting in concert with them from proceeding with, consummating, or closing a proposed transaction ,and in the event defendants consummate the proposed transaction, rescinding it and setting it aside or awarding rescissory damages. According to the complaint, this action stems from a proposed transaction announced on June 28, 2018 pursuant to which Keryx Biopharmaceuticals, Inc. will be acquired by Akebia Therapeutics, Inc. On June 28, 2018, Keryx's Board of Directors caused the Company to enter into an agreement and plan of merger with Akebia. Pursuant to the terms of the Merger Agreement, Keryx's stockholders will receive 0.37433 shares of Parent common stock for each share of Keryx they own. On October 1, 2018, the Defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Registration Statement, the lawsuit says. Keryx, a commercial stage biopharmaceutical company, focuses on providing medicines for patients with kidney disease in the United States.[BN] Attorneys for Plaintiff RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 - and - RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 - and - Glen DeValerio, Esq. Daryl Andrews, Esq. ANDREWS DEVALERIO LLP 265 Franklin Street, Suite 1702 Boston, MA 02100 Telephone: (617) 936-2796 E-mail: glen@andrewsdevalerio.com daryl@andrewsdevalerio.com KRAFT HEINZ: Tarzian Files Suit Over Fraud ------------------------------------------ A class action lawsuit asserting fraud has been filed against Kraft Heinz Food Company. The case is styled as Katrina Tarzian, Senia Hardwick on behalf of themselves and others similarly situated, Plaintiff v. Kraft Heinz Food Company, Defendant, Case No. 1:18-cv-07148 (N.D. Ill., Oct. 25, 2018). The Kraft Heinz Foods Company produces and markets food and beverage products worldwide. The company offers condiments and sauces, cheese and dairy, meals, meats, refreshment beverages, and coffee and other grocery products primarily under the Heinz, Kraft, ABC, Capri Sun, Classico, Jell-O, Kool-Aid, Lunchables, Maxwell House, Ore-Ida, Oscar Mayer, Philadelphia, Planters, Plasmon, Quero, Smart Ones, and Velveeta brands.[BN] The Plaintiffs appear pro se. LA GRINGA FOOD: Fails to Pay Minimum & Overtime Wages, Perez Says ----------------------------------------------------------------- DANIEL MORALES PEREZ, ELDER ESTUARDO PEREZ RAMOS, FRANCISCO ALVAREZ RIVERA, and JUANA SANTOS, individually and on behalf of others similarly situated v. LA GRINGA FOOD CORP. (D/B/A LA GRINGA), DOS LOCOS ON COOPER AVE LLC (D/B/A DOS LOCOS), JOHN PAUL CAMPBELL, ADALIS VALDEZ, and HENRY DOE, Case No. 1:18-cv-05726 (E.D.N.Y., October 12, 2018), alleges that the Plaintiffs worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that they worked. La Gringa Food Corp. (d/b/a La Gringa) is a domestic corporation organized and existing under the laws of the state of New York and maintains its principal place of business in Queens. Dos Locos on Cooper Ave LLC (d/b/a Dos Locos) is a domestic corporation organized and existing under the laws of the state of New York and maintains its principal place of business in Flushing. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporations. The Defendants own, operate, or control two Mexican restaurants, located at 63-34 Woodhaven Blvd., in Queens, New York, under the name "La Gringa," and at 79-11 Cooper Avenue, in Flushing, New York, under the name "Dos Locos."[BN] The Plaintiffs are represented by: 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 E-mail: Michael@Faillacelaw.com LAS VEGAS HOTEL: Faces Class Action Over TCPA Violations -------------------------------------------------------- David O. Klein, Esq., of Klein Moynihan Turco LLP, in an article for Mondaq, reports that a nationwide class action lawsuit was filed against Las Vegas Hotel involving the receipt of SMS text messages that were allegedly sent in violation of the Telephone Consumer Protection Act. [GN] LINCOLN AUTO: Mintz Attorney Discusses TCPA Class Action Ruling --------------------------------------------------------------- Esteban Morales, Esq. -- Emorales@mintz.com -- of Mintz, in an article for Lexology, reports that in mid-2017, the Second Circuit concluded consent to receive calls is unilaterally irrevocable so long as it is a contract term. Whereas prior decisions considered "a narrow question: whether the [Telephone Consumer Protection Act] allows a consumer who has freely and unilaterally given his or her informed consent [to] later revoke that consent," in Reyes v. Lincoln Auto. Fin. Servs. the Second Circuit addressed "a different question[:] whether the TCPA also permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract." Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017) (emphasis added). No, answered the Second Circuit. Relying on common law, "consent to another's actions can 'become irrevocable' when it is provided in a legally binding agreement" and on that basis, it affirmed the trial court's judgment. Id. at 57. Since then, a number of courts across the country (and notably in the Eleventh Circuit) have sided with Reyes in several defendant-friendly summary judgment rulings. The trend began picking up earlier this year when the Northern District of Ohio, relying on Reyes, rejected the plaintiff's oral revocation theory and granted summary judgment for the defendant in Barton v. Credit One Fin., No. 16-cv-2652, 2018 U.S. Dist. LEXIS 72245 (N.D. Ohio, Apr. 27, 2018). Though the plaintiff may have orally asked the defendant to stop calling, his cardholder agreement provided for specific revocation procedures, which the plaintiff could not unilaterally alter, and with which the plaintiff did not comply. Id. at *8-*9. In line with Reyes, the District of Connecticut also granted summary judgment for the defendant in Harris v. Navient Sols. The plaintiff, who defaulted on student loans, signed promissory notes in which she provided her telephone number and which contained language confirming the notes could only be modified in writing and with the assent of both parties. Harris v. Navient Sols., LLC, No. 3:15-cv-564, 2018 U.S. Dist. LEXIS 140317, *1-*2 (D. Conn. Aug. 7, 2018). The notes also provided for calls using an automatic telephone dialing system. Id. at *2. Notably, the court pointed to recent FCC statements in ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), in which the FCC conceded that a 2015 ruling touching on revocation of consent "did not address whether contracting parties can select a particular revocation procedure by mutual agreement" and "[h]ere, the promissory notes provide a revocation procedure: modification of the contract in writing," which did not happen. Id. at n.5 (internal quotations omitted). While Harris was somewhat expected given that the district court was situated in the Second Circuit, the issue heated up as courts in the Eleventh Circuit issued rulings in Few v. Receivables Performance Mgmt., No. 1:17-CV-2038, 2018 U.S. Dist. LEXIS 134324 (D. Ala. Aug. 9, 2018) and Medley v. Dish Network, LLC, No. 8:16-cv-2534, 2018 U.S. Dist. LEXIS 144895 (M.D. Fla. Aug. 27, 2018). As in Harris, the plaintiff in Few consented to receipt of calls through automated systems and argued that she continued to receive calls despite revoking consent. Few, 2018 U.S. Dist. LEXIS 134324 at *3-*4. Relying on Eleventh Circuit precedent, the court noted that "common law concepts allow the unilateral revocation of consent, but only in the absence of any contractual restriction to the contrary." Id. at *5 (internal quotations omitted; emphasis added). Because the plaintiff consented "as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent." Id. at *6. Later that same month, the Middle District of Florida sided with Reyes in Medley, where the plaintiff sued after signing an agreement authorizing Dish "to contact [her] through an automated or predictive dialing system or prerecorded messaging . . . ." Medley, 2018 U.S. Dist. LEXIS 144895 at *3. The Middle District of Florida pointed out that the Eleventh Circuit has yet to rule on "whether consent may be unilaterally revoked when it is given as part of a bargained-for contract" before concluding that under "black-letter contract law [] one party to an agreement cannot, without the other party's consent, unilaterally modify the agreement once it has been executed." Id. at *28-*31 (internal quotations omitted). Notably, Medley also distinguished other recent decisions (including one from the Middle District of Florida) that have found the contrary; the plaintiff in Patterson v. Ally Financial, Inc., No. 3:16-cv-1592, 2018 U.S. Dist. LEXIS 15203 (M.D. Fla. Jan. 31, 2018) did not provide his telephone number "as part of the ultimate contract," while Ammons v. Ally Financial, Inc., No. 3:17-cv-00505, 2018 U.S. Dist. LEXIS 108588 (M.D. Tenn. June 27, 2018) relied on an overbroad reading of Osorio, concluded Medley. Id. at *33-*36. The trend is clear -- regardless of the jurisdiction, post Reyes an increasing number of courts are willing to hold plaintiffs to their word. Given the expense of defending a TCPA class action and its potential exposure, the safest course for creditors and other businesses receiving a do-not-call request is to halt communication. Enterprising professional plaintiffs, however, may find creative ways to "revoke" consent (such as with a fax in Medley) that may go unnoticed. The trend in decisions like Reyes, Barton, Harris, Few, and Medley, however, provides peace of mind allowing businesses to rely on prior agreements memorializing consent. [GN] LIVE NATION: Gaetano Files Suit Over Overpriced Tickets ------------------------------------------------------- Todd Gaetano individually and on behalf of all others similarly situated, Plaintiff, v. Live Nation Entertainment, Inc. and Ticketmaster, LLC, Defendant, Case No. 18-cv-01195 (N.D. N.Y., October 4, 2018), seeks to recover obtained benefits and monies from artificially inflated ticket prices and restitution and disgorgement of such inequitably obtained profits; preliminary and permanent injunctive relief; monetary and punitive damages and interest; costs and expenses, including reasonable fees for attorneys and experts; and such other and further relief resulting from unjust enrichment. Live Nation Entertainment, Inc. controls approximately 80% of event tickets sold in the US, working with third-parties who buy tickets from Ticketmaster using its proprietary and exclusive ticket reselling platform to offer the tickets for sale in the secondary market. Eventgoers, including the Plaintiff, are forced to pay an artificially elevated price beyond the original face value of the ticket, restraining price competition, says the complaint. The Defendants increased prices to artificially inflated levels, depriving purchasers of free and open competition, adds the complaint. [BN] Plaintiff is represented by: Joshua Levin-Epstein, Esq. LEVIN-EPSTEIN & ASSOCIATES, P.C. 1 Penn Plaza, Suite 2527 New York, NY 10119 Tel: (212) 792-0046 Email: joshua@levinepstein.com - and - Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 891 Northern Blvd., Suite 201 Great Neck, NY 11021 Tel: (516) 303-0552 Email: spencer@spencersheehan.com - and - Laurence D. Paskowitz, Esq. PASKOWITZ LAW FIRM, P.C. 208 East 51st Street, Suite 380 New York, NY 10022 Tel: (212) 685-0969 MATIZ LATIN CUISINE: Cardoso Labor Suit Seeks Overtime Pay ---------------------------------------------------------- Jorge Cardoso, individually and on behalf of others similarly situated, Plaintiffs, v. Oscar Cano and Alfredo Quesada (a/k/a Sigifredo Quesada), individually and Matiz Latin Cuisine Corp., Defendants, Case No. 17-cv-05487, (E.D. N.Y., October 1, 2018), seeks unpaid overtime wages, liquidated damages, compensatory damages, punitive damages, costs and attorneys' fees and prejudgment and post-judgment interest associated with the bringing of this action, plus any additional relief pursuant to the Fair Labor Standards Act and New York Labor Laws. Defendants operate a restaurant located at 110-72 Queens Blvd., Forest Hill NY where Cardoso worked as a cook. He claims to have regularly worked in excess of forty hours per week without overtime pay. [BN] Plaintiff is represented by: Darren P. B. Rumack, Esq. THE KLEIN LAW GROUP 39 Broadway Suite 1530 New York, NY 10004 Tel: (212) 344-9022 Fax: (212) 344-0301 MAYFIELD CARE: Hughes Sues over Use of Biometric Identifiers ------------------------------------------------------------ CASSANDRA E. HUGHES, individually and on behalf of all others similarly situated, the Plaintiff, vs. MAYFIELD CARE CENTER, LLC, the Defendant, Case No. 2018CH13122 (Ill. Cir. Ct., Cook Cty., Oct. 22, 2018), seeks damages and injunctive relief for the Defendant's violation Biometric Information Privacy Act. According to the complaint, since approximately April 1, 2017, the Defendant has owned and operated a nursing home located at 5905 West Washington in Chicago, Illinois. The Defendant requires its employees in Illinois to clock "in" and "out" of their work shifts by scanning their fingerprints, and its biometric computer systems then verify the employee and clock the employee "in" or "out." Unlike traditional time clock punch cards that can be changed, replaced if lost or compromised, fingerprints are unique, permanent biometric identifiers associated with each employee. This exposes the Defendant's workforce to serious and irreversible privacy risks. For example, if a fingerprint database is hacked, breached, or otherwise exposed, employees have no means by which to prevent identity theft and unauthorized tracking. BIPA expressly obligates the Defendant to obtain an executed, written release from an individual, as a condition of employment, in order to capture, collect and store an individual's biometric identifiers, especially a fingerprint, and biometric information derived from it. Despite the requirements under BIPA, the Defendant's practice of collecting, storing and using its employees' biometric information without informed written consent violates its employees' statutorily protected privacy rights under the BIPA. Furthermore, the Defendant's failure to provide a written policy regarding its schedule and guidelines for the retention and permanent destruction of its workforces' biometric information violates section 15(a) of the BIPA, the lawsuit says.[BN] Attorneys for Plaintiff: Frank Castiglione, Esq. Kasif Khowaja, Esq. THE KHOWAJA LAW FIRM, LLC 70 East Lake Street, Suite 1220 Chicago, IL 60601 Telephone: (312) 356-3200 Facsimile: (312) 386-5800 E-mail: fcastiglione@khowajala.com - and - James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan A venue, Suite 2600 Chicago, IL 60603 Telephone: (312) 201-0575 Facsimile: (312) 332-0600 E-mail: jxbormes@bormeslaw.com cpsons@bormeslaw.com MAZUMA FEDERAL: Settlement of Bowens Class Suit Wins Court Okay --------------------------------------------------------------- In the class action lawsuit captioned as JOY L. BOWENS, individually and on behalf of all others similarly situated, the Plaintiff, vs. MAZUMA FEDERAL CREDIT UNION, the Defendant, Case No. No. 15-00758-CV-W-BP (W.D. Mo.), the Hon. Judge Beth Phillips entered an order on October 23, 2018: 1. certifying a class for settlement purposes: "any member of Defendant who, between the implementation of Defendant's automated overdraft program in April 1, 2011 and September 30, 2015, was assessed an overdraft fee when the member had sufficient money in his or her "current balance," but insufficient money in his or her available balance to complete the transaction that caused the fee." 2. appointing Joy L. Bowens as the Class Representative; 3. approving Kick Law Firm, APC and McCune Wright Arevalo LLP as Class Counsel; and 4. appointing Garden City Group, LLC as the Claims Administrator. 5. approving Public Citizen as cy pres recipient of any residue in the Settlement Fund, receiving 100% of the residue; and 6. approving payment of the Claims Administrator's fees and costs of up to $34,375 to be paid to the Claims Administrator from the Settlement Fund by the deadline specified in the Settlement Agreement. The Court finds the requested attorneys' fees of $453,333.33 to be reasonable as a percentage of the value of the Settlement and under the lodestar method, and therefore awards fees amount to be paid to Class Counsel from the Settlement Fund by the deadline specified in the Settlement. The amount is in line with market rates for contingency fees in a case such as this. Therefore, the requested fee is reasonable and approved under the percentage-of-the-benefit methodology. Further, the hourly rates of the attorneys are reasonable and in line with prevailing market rates, and the hours worked are also reasonable. Therefore, the requested fees amount is also separately and independently approved under a lodestar analysis. The Court further finds that the fee-sharing arrangement among class Counsel was disclosed to and approved by the Named Plaintiff. The Court further finds that the request for reimbursement of litigation costs in the amount of $34,591.84 is reasonable based on the work necessary to achieve this favorable class settlement, and is to be paid to Class Counsel from the Settlement Fund by the deadline specified in the Settlement Agreement. The Court finds that Joy L. Bowens assisted with the prosecution and litigation of the case, including producing documents, responding to written discovery, attending mediation, and having been willing to testify at trial. The Court therefore awards a service award in the amount of $12,000.00 to be paid to Plaintiff Joy L. Bowens from the Settlement Fund by the deadline specified in the Settlement Agreement. Within 10 days of the date of this order, Defendant Mazuma Credit Union, shall distribute the Settlement Fund to the Claims Administrator, less amounts that will be credited to Class Members by Defendant.[CC] MICROSOFT CORP: Antitrust Suits Ongoing in Canada ------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that a hearing has been held in the antitrust and unfair competition class suits in British Columbia, Ontario and Quebec. Antitrust and unfair competition class action lawsuits were filed against the company in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010. The trial of the British Columbia action commenced in May 2016. Following a mediation, the parties agreed to a global settlement of all three Canadian actions, and have submitted the proposed settlement agreement to the courts in all three jurisdictions for approval. A hearing to approve the settlement in British Columbia occurred on September 21, 2018, and in Ontario on October 18, 2018. A hearing in Quebec is scheduled for October 25, 2018. Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MICROSOFT CORP: Canadian Cell Phone Class Suit Remains Dormant -------------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the purported class action suit filed in the Supreme Court of British Columbia, remains dormant. Microsoft Mobile Oy, along with other handset manufacturers and network operators, is a defendant in a 2013 class action lawsuit filed in the Supreme Court of British Columbia by a purported class of Canadians who have used cellular phones for at least 1,600 hours, including a subclass of users with brain tumors, alleging adverse health effects from cellular phone use. Microsoft was served with the complaint in June 2014 and has been substituted for the Nokia defendants. The litigation has been dormant for more than three years. No further updates were provided in the Company's SEC report. Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MICROSOFT CORP: Interlocutory Appeal Okayed in Moussouris Case -------------------------------------------------------------- Microsoft Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the U.S. Court of Appeals for the Ninth Circuit granted plaintiffs' interlocutory appeal in Moussouris v. Microsoft case. Current and former female Microsoft employees in certain engineering and information technology roles brought this class action in federal court in Seattle in 2015, alleging systemic gender discrimination in pay and promotions. The plaintiffs moved to certify the class in October 2017. Microsoft filed an opposition in January 2018, attaching an expert report showing no statistically significant disparity in pay and promotions between similarly situated men and women. In June 2018, the court denied the plaintiffs' motion for class certification. Plaintiffs sought an interlocutory appeal to the U.S. Court of Appeals for the Ninth Circuit, which was granted in September 2018. Microsoft Corporation develops, licenses, and supports software, services, devices, and solutions worldwide. The company was founded in 1975 and is headquartered in Redmond, Washington. MID-AMERICA: Vega Sues over Use of Biometric identifiers -------------------------------------------------------- Javier Vega, individually, and on behalf of all others similarly situated, the Plaintiff, vs. MID-AMERICA TAPING & REELING INC., the Defendant, Case No.: 2018CH13186 (Ill. Cir. Ct., Cook County, Oct. 23, 2018), seeks to stop Defendant's capture, collection, use and storage of individuals' biometric identifiers and/or biometric information in violation of the Illinois Biometric Information Privacy Act, and to obtain redress for all persons injured by Defendant's conduct. This case concerns Defendant's conduct of capturing, collecting, storing, and using Plaintiffs and other workers' biometric identifiers and/or biometric information without regard to BIPA and the concrete privacy rights and pecuniary interests Illinois' BIPA protects. Defendant does this in the form of finger scans, which capture a person's fingerprint, and then Defendant uses that fingerprint to identify that same person in the future. Choosing to shun more traditional timekeeping methods, Defendant has instead implemented an invasive program that relies on the capture, collection, storage and use of its workers' fingerprints, while disregarding the applicable Illinois statute and the privacy interests it protects. BIPA expressly obligates Defendant to obtain an executed, written release from an individual, as a condition of employment, in order to capture, collect and store an individual's biometric identifiers, especially a fingerprint, and biometric information derived from it. BIPA further obligates Defendant to inform its employees in writing that a biometric identifier or biometric information is being collected or stored; to tell its employees in writing for how long it will store their biometric information and any purposes for which biometric information is being captured, collected, and used; and to make available a written policy disclosing when it will permanently destroy such information. Despite the requirements under BIPA, Defendant's practice of capturing, collecting, storing and using its employees' biometric information without informed written consent violates its employees' statutorily protected privacy rights under BIPA. Furthermore, Defendant's failure to provide a written policy regarding its schedule and guidelines for the retention and permanent destruction of its workforces' biometric information violates section 15(a) of BIPA, the lawsuit says.[BN] Attorneys for Plaintiff: Frank Castiglione, Esq. KasifKhowaja, Esq. THE KHOWAJA LAW FIRM, LLC 70 East Lake Street, Suite 1220 Chicago, IL 60601 Telephone: (312) 356-3200 Facsimile: (312) 386-5800 E-mail: fcastiglione@khowajalaw.com kasif@khowajalaw.com - and - James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan A venue, Suite 2600 Chicago, IL 60603 Telephone: (312) 201-0575 Facsimile: (312) 332-0600 E-mail: jxbormes@bormeslaw.com cpsons@bormeslaw.com MONSANTO COMPANY: Finneman Sues over Sale of Herbicide Roundup -------------------------------------------------------------- The case, Connie Finneman, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01792 (E.D. Mo., Oct. 22, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC. 9500 Nall Ave., Suite 400 Overland Park, KS 66207-2950 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MONSANTO: Must Face Class Actions Over Herbicide ------------------------------------------------ Christopher Cole, writing for Law360, reports that Monsanto must face several proposed class actions by farmers who accuse the agriculture giant of producing an herbicide that drifted across farmlands, damaging crops and ultimately forcing growers to buy seeds. [GN] MOVEMENT MORTGAGE: Fails to Pay Compensation, Morua Says -------------------------------------------------------- SYDNEY MORUA, an individual, on behalf of herself, and on behalf of all persons similarly situated, the Plaintiff, vs. MOVEMENT MORTGAGE, LLC, a Limited Liability Company; and Does 1 through 50, Inclusive, the Defendants, Case No. RG 18924431 (Cal. Super. Ct., Oct. 12, 2018) alleges that the Defendant failed to compensate the Plaintiff and California Class for all their missed meal breaks and unpaid rest periods. According to the complaint, the Defendant's uniform policy and practice is unlawful, unfair and deceptive business practice whereby Defendant retained and continues to retain wages due Plaintiff and the other members of the California Class. The Defendant originates home loans. It offers renovation loans for minor or major upgrades on a home, fixed rate conventional mortgages, home affordable refinance programs, and federal housing administration loans to assist borrowers who may need a low down payment.[BN] Attorneys for Plaintiff: Norman B. Blumenthal, Esq. Kyle R. Nordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Website: www.bamlawca.com 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 NEW 32ND: Does Not Pay Proper Wages, Montero Suit Says ------------------------------------------------------ Zoila M. Guaman Montero and Deisy Sailema, on behalf of themselves and all others similarly situated, Plaintiffs, v. New 32nd St Inc. d/b/a Enail, "Shawn" Doe and "Nicole" Doe Defendants, Case No. 1:18-cv-09859 (S.D. N.Y. October 25, 2018) is an action brought by Plaintiffs on their own behalf and on behalf of similarly situated employees, alleging violations of the Fair Labor Standards Act and the New York Labor Law, arising from Defendants' various willful and unlawful employment policies, patterns and/or practices. The Defendants knowingly and willfully failed to pay Plaintiffs their lawfully earned minimum wages, overtime compensation, failed to provide them with a wage notice at the time of hiring as well as proper wage statements for each pay period in violation of the NYLL. Montero is a resident of Queens County and was employed as a Nail 32nd Technician from on or about September 2016 to October 12, 2018. Sailema is a resident of Queens County and was employed as a Nail 32nd Technician from on or about May 2017 to May 25, 2018. New 32nd St Inc. d/b/a Enail is a domestic business corporation organized under the laws of the State of New York 32nd with a principal place of business located at 35 East Street, New York, NY 10016.[BN] The Plaintiffs are represented by: Lorena P. Duarte, Esq. HANG & ASSOCIATES, PLLC 136-20 38th Ave., Suite 10G Flushing, NY 11354 Phone: 718.353.8588 Dir: 718.353.8522 Email: lduarte@hanglaw.com NICHICON: Plaintiffs Seek Approval of $21.5MM Settlement -------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a class of indirect purchasers asked a judge on Oct. 29 to sign off on a $21.5 million settlement with Nichicon for fixing the price of capacitors. A copy of the INDIRECT PURCHASER PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENTS WITH NICHICON AND FOR APPROVAL OF THE PLAN OF ALLOCATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF is available at: https://is.gd/KR2KmU NIKODEMO OPERATING: Eduoard Sues Over Lost, Unpaid Wages -------------------------------------------------------- Saint Surin Eduoard, on behalf of himself and others similarly situated, Plaintiff, v. Nikodemo Operating Corp., Dimitrios Kaloidis, Ioanis Paraponiaris and Steve Zaharakis, Defendants, Case No. 18-cv-05554, (E.D. N.Y., October 4, 2018), seeks to recover unpaid wages, unpaid overtime wages and unpaid spread of hours premiums pursuant to the Fair Labor Standards Act and New York Labor laws including lost wages caused by retaliatory termination of his employment. Nikodemo Operating Corp. operates a diner "Floridian Diner" located at 2301 Flatbush Avenue, Brooklyn, NY 11234 where Eduoard worked as a kitchen worker. Defendants automatically deducted one hour as a lunch break each day that Plaintiff worked, notwithstanding the fact that he never took a lunch break of any length and failed to pay him for that one hour. Nikodemo is accused of rounding down employees' hours worked to the nearest hour, substantially reducing the amount of time worked. [BN] The Plaintiff is represented by: Neil M. Frank, Esq. Joseph A. Myers, Esq. FRANK AND BOLAND PC 500 Bi-County Boulevard, Suite 465 Farmingdale, NY 11735 Tel: (631) 756-0400 Fax: (631) 756-0547 Email: nfrank@laborlaws.com jmyers@laborlaws.com NORFOLK SOUTHERN: Continues to Defend Fuel Surcharges-Related Suit ------------------------------------------------------------------ Norfolk Southern Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself against a consolidated fuel surcharges related suit In 2007, various antitrust class actions filed against the company and other Class I railroads in various Federal district courts regarding fuel surcharges were consolidated in the District of Columbia by the Judicial Panel on Multidistrict Litigation. In 2012, the court certified the case as a class action. The defendant railroads appealed this certification, and the Court of Appeals for the District of Columbia vacated the District Court's decision and remanded the case for further consideration. On October 10, 2017, the District Court denied class certification; the findings are subject to appeal. Norfolk Southern said "We believe the allegations in the complaints are without merit and intend to vigorously defend the cases. We do not believe the outcome of these proceedings will have a material effect on our financial position, results of operations, or liquidity." No further updates were provided in the Company's SEC report. Norfolk Southern Corporation, together with its subsidiaries, engages in the rail transportation of raw materials, intermediate products, and finished goods. Norfolk Southern Corporation was founded in 1883 and is based in Norfolk, Virginia. NY SWEET SPOT: Fails to Pay Minimum and OT Wages, Huziankou Says ---------------------------------------------------------------- DZIANIS HUZIANKOU, TIMUR KIM, AND AYATOLLA KUANYSH, individually and on behalf of all other persons similarly situated v. NY SWEET SPOT CAFE INC. d/b/a "Sweetspot Cafe," OLGA PERRY and IGOR SONIN, jointly and severally, Case No. 1:18-cv-05715 (E.D.N.Y., October 12, 2018), alleges that the Defendants violated the Fair Labor Standards Act by (i) failing to pay the minimum wage, (ii) failing to pay overtime premium pay, (iii) failing to pay for all hours worked, and (iv) making unlawful deductions. NY Sweet Spot Cafe Inc., doing business as Sweetspot Cafe, is a domestic business corporation, organized and existing under the laws of the state of New York with its principal place of business located in Brooklyn, New York. The Individual Defendants own, operate and control Sweetspot Cafe's day-to-day operations and management and jointly employed the Plaintiffs and other similarly situated employees. Sweetspot Cafe is a restaurant located at 2376 Coney Island Avenue, in Brooklyn, New York. Sweetspot Cafe serves Russian food and seats approximately 75 customers.[BN] The Plaintiffs are represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. Milana Dostanitch, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com chris@lipskylowe.com milana@lipskylowe.com PARKLAND HEALTH: Baldridge Sues Over Unpaid Hospital Bills ---------------------------------------------------------- Marianna Baldridge, on behalf of herself and all others similarly situated, Plaintiff, v. Dallas County Hospital District (d/b/a Parkland Health and Hospital System), Defendant, Case No. DC-18-15079 filed in the M-298th Judicial District, Dallas County TX, on October 4, 2018, seeks full refund of all unfair amounts charged and collected, compensatory and punitive damages, attorneys' fees and costs and other relief for violation of the Illinois Consumer Fraud Act. Parkland Hospital is a governmental entity organized and existing under the laws of the State of Texas, which is duly licensed to provide medical care in the State of Texas, and whose principal place of business is in Dallas County, Texas. Baldridge is a patient who availed emergency care at Parkland Hospital whose bills were not paid in whole or part by commercial insurance or a governmental healthcare program and who did not have their bills waived or written off in full. According to the complaint, the Defendant charges their patients using their own internally developed rate schedule which consists of artificial, grossly inflated and unreasonable rates; and bills their self-pay emergency care patients at rates which average several times what is collected from all other categories of emergency care patients covered by commercial insurers. [BN] Plaintiff is represented by: John W. Pate, Esq. Michael Heygood, Esq. HEYGOOD, ORR & PEARSON 6363 N. State Highway 161, Suite 450 Irving, TX 75038 Tel: (214) 237-9001 Fax: (214) 237-9002 Email: michael@hop-law.com john@hop-law.com PEKIN INSURANCE: Sued over Unsolicited Faxed Advertisements ----------------------------------------------------------- QUALITY MANAGEMENT AND CONSULTING SERVICES, INC., the Plaintiff, vs. PEKIN INSURANCE COMPANY, the Defendant, Case No.: 2018CH13211 (Ill. Cir. Ct., Cook Cty., Oct. 23, 2018), seeks injunction prohibiting Defendant from sending unsolicited faxed advertisements to Illinois consumers. According to the complaint, Pekin is an insurance company with its principal place of business in Illinois. On October 15, 2008, Plaintiff instituted a civil class action captioned "Quality Management and Consulting, Inc. v. Commercial Asphalt Maintenance, LLC, et al," Case No. 08CH38641, in this Court (the "Underlying Action"). In the Underlying Action, the Plaintiff sought relief on behalf of itself and a class of similarly situated plaintiffs who also received unsolicited faxes from Commercial Asphalt. The Underlying Complaint alleged that Commercial Asphalt violated the Telephone Consumer Protection Act and the Illinois Consumer Fraud Act, and committed common law conversion by sending unsolicited faxes to Quality and hundreds of others. The Underlying Complaint further alleged that Commercial Asphalt knew or should have known that Plaintiff and the other class members had not given express invitation or permission for Defendant or anybody else to fax advertisements about Defendant's goods or services. The Underlying Complaint further alleged that its misappropriation of paper, toner, and employee time was wrongful and without authorization. Commercial Asphalt tendered the defense of the Underlying Action to Pekin, and Pekin disclaimed its duty to defend and refused the tender. On May 16, 2013, the Court in the Underlying Action granted Quality's motion for class certification and certified the following class: "All persons who (1) were successfully sent one or more facsimiles between October 8, 2007 and November 28, 2008, advertising the services of "Commercial Asphalt Maintenance" located at 1748 N. Aurora Road, Naperville, IL, and (2) with respect to whom Defendant cannot provide evidence of prior express permission or invitation for sending of such faxes." On August 19, 2014, the Court in the Underlying Action granted Quality's motion for summary judgment and entered final judgment in favor of the class and against Commercial Asphalt. The Judgment was entered against Commercial Asphalt in the total amount of $1,120,500. Defendant's actions caused damages to Plaintiff and the other class members because their receipt of Defendant's unsolicited fax advertisements caused them to lose paper and toner consumed as a result. Defendant's actions prevented Plaintiff's fax machine from being used for Plaintiff's business purposes during the time Defendant was using Plaintiff's fax machine for Defendant's illegal purpose. Defendant's actions also cost Plaintiff employee time, as Plaintiff's employees used their time receiving, routing, and reviewing Defendant's illegal faxes and that time otherwise would have been spent on Plaintiff's business activities, the lawsuit says.[BN] Attorneys for Plaintiff: Brian J. Wanca, Esq. ANDERSON+ WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: 847 368-1500 - and - Phillip A. Bockm Esq. BOCK& HATCH, LLC 134 N. LaSalle Street, Suite 1000 Chicago, IL 60602 Telephone: 312 658-5500 PGNV LLC: Ramos Seeks Minimum Wage and Overtime under FLSA ---------------------------------------------------------- FREDY HUMBERTO RAMOS PELICO, individually and on behalf of others similarly situated, the Plaintiff, vs. PGNV LLC (D/B/A EMPANADA MAMA), HERMES B NY LLC (D/B/A EMPANADA MAMA EXPRESS), COVADONGA INC. (D/B/A EMPANADA MAMA), SOCRATES NANAS, and GIOVANI MORALES, the Defendants, Case No. 1:18-cv-09761 (S.D.N.Y., Oct. 23, 2018), seeks to recover minimum wage and overtime compensation under the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants own, operate, or control two restaurants and catering services companies, located at 95 Allen St., New York, New York. The Plaintiff is a former delivery worker of PGNV LLC. However, he was required to spend a considerable part of his work day performing non-tipped duties, including but not limited to mopping and cleaning the floor of the businesses , making the bags where the empanadas would go, carrying down and stocking deliveries when the van would arrive, cleaning the bathroom and the carpets, organizing and packing food, making coffee and milk shakes, taking out the garbage, refilling the sauce containers and sweeping and washing the sidewalk in front of the business (non-tipped duties). The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that he worked. Rather, Defendants failed to pay Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium, 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 E-mail: Faillacc@employnientcompliance.com PHILIP MORRIS: Gilchrist Files Securities Class Action ------------------------------------------------------ Wayne Gilchrist, individually and on behalf of all others similarly situated, Plaintiff, v. Philip Morris International Inc., Andre Calantzopoulos, Martin G. King, and Jacek Olczak, Defendants, Case No. 1:18-cv-09856 (S.D. N.Y. October 25, 2018) is a federal securities class action on behalf of all persons and entities who purchased or otherwise acquired Philip Morris common stock between February 8, 2018 and April 18, 2018, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934 against Philip Morris and certain of its officers and/or directors. Over the last several years, says the complaint, Philip Morris has been facing stagnant or negative sales trends due to a decrease in smoking percentages worldwide. Throughout the Class Period, the Company reassured investors that its sales initiatives were combatting this decline and that favorable sales trends at the end of 2017 were continuing through the first quarter of 2018. However, these statements were materially false and misleading because Defendants knew, or recklessly disregarded, that: (i) Philip Morris was experiencing a faster decline in cigarette and heated tobacco sales volumes during the first quarter of 2018 than investors had been led to believe, (ii) the Company's highly-touted heated tobacco sales initiatives had faltered, and (iii) the Company was experiencing adverse sales headwinds in key markets, says the complaint. As a result of these misrepresentations, Philip Morris stock traded at artificially inflated price levels throughout the Class Period, it adds. After the above revelations entered the market, the price of Philp Morris stock dropped by nearly 22% from its Class Period high, causing Plaintiff and other Class members to suffer significant losses and damages. Wayne Gilchrist purchased Philip Morris common stock at artificially inflated prices during the Class Period and has been damaged thereby. Philip Morris is one of the world's largest tobacco companies, producing several top selling cigarette brands. Through its subsidiaries and affiliates, Philip Morris is engaged in the manufacture and sale of cigarettes, tobacco products, and other nicotine-containing products, including heated tobacco units, outside the United States. The Company is well-known worldwide for its best-selling product, Marlboro cigarettes. Andre Calantzopoulos is and, throughout the Class Period, was the Chief Executive Officer & Director of Philip Morris beginning in May 8, 2013 and through the Class Period. Martin G. King is and, throughout the Class Period, was the Chief Financial Officer of Philip Morris beginning in January 2018 and through the Class Period. Jacek Olczak is and, throughout the Class Period, was the Chief Operating Officer of Philip Morris beginning in January 2018 and through the Class Period.[BN] The Plaintiff is represented by: Naumon A. Amjed, Esq. Ryan T. Degnan, Esq. Melissa L. Troutner, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Phone: (610) 667-7706 Fax: (610) 667-7056 Email: namjed@ktmc.com rdegnan@ktmc.com mtroutner@ktmc.com PNC FINANCIAL: Rossini FCRA Suit Removed to W.D. Pennsylvania ------------------------------------------------------------- The lawsuit styled STEPHEN ROSSINI and MATTHEW KANE, on behalf of themselves and all similar situated individuals v. PNC FINANCIAL SERVICES GROUP, INC. and PNC BANK, N.A., Case No. GD-18-011610, was removed on October 12, 2018, from the Court of Common Pleas of Allegheny County, Pennsylvania, to the U.S. District Court for the Western District of Pennsylvania. The District Court Clerk assigned Case No. 2:18-cv-01370-MRH to the proceeding. By their Class Action Complaint, the Plaintiffs assert four individual and putative class claims against the Defendants under the federal Fair Credit Reporting Act.[BN] The Plaintiffs are represented by: James M. Pietz, Esq. Ruairi McDonnell, Esq. FEINSTEIN DOYLE PAYNE & KRAVEC, LLC Law & Finance Building, Suite 1300 429 Fourth Avenue Pittsburgh, PA 15219 Telephone: (412) 288-4333 E-mail: jpietz@fdpklaw.com rmcdonnell@fdpklaw.com - and - Martell Harris, Esq. THE TRIAL LAW FIRM, LLC BNY Mellon Center 500 Grant Street, Suite 2900 Pittsburgh, PA 15219 Telephone: (412) 588-0030 E-mail: Contact@TLawF.com The Defendants are represented by: Catherine S. Ryan, Esq. REED SMITH LLP 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 288-3131 E-mail: cryan@reedsmith.com - and - Michael O'Neil, Esq. Bruce R. Van Baren, Esq. REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606 Telephone: (312) 207-1000 E-mail: michael.oneil@reedsmith.com bvanbaren@reedsmith.com POLARIS INDUSTRIES: Continues to Class Suits in Minnesota --------------------------------------------------------- Polaris Industries Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself against two class action lawsuits in Minnesota. The company is a party to two putative class actions pending against it in the U.S., both of which were previously reported in the company's quarterly report filed on July 25, 2018. One putative class action is pending in the United States District Court for the District of Minnesota and arises out of allegations that certain Polaris products suffer from unresolved fire hazards allegedly resulting in economic loss, and is the result of the consolidation of the three putative class actions the company reported in its April 26, 2018 quarterly report and that were filed between April 5-10, 2018: James Bruner, Jose Luna, Clint Halvorsrod, Robert Lenz, Michael Zeeck, Chad Rogers, Richard Berens, Steve Bailey, Michael Jacks, Bryan Forrest and Ed Beattie, individually and on behalf of all others similarly situated v. Polaris Industries/Sales Inc. (D. Minn.), June 15, 2018. The second putative class action also is pending in the United States District Court for the District of Minnesota and alleges excessive heat hazards on certain other Polaris products and seeks damages for alleged personal injury and economic loss: Riley Johannesshon, Daniel Badilla, James Kelley, Kevin Wonders, William Bates and James Pinion, individually and on behalf of all others similarly situated v. Polaris Industries (D. Minn.), October 4, 2016. Polaris Industries said. "As these proceedings are still in the early stages, we are unable to provide an evaluation of the likelihood that a loss will be incurred or an estimate of the range of possible loss." Polaris Industries Inc. designs, engineers, manufactures, and markets power sports vehicles worldwide. The company operates through four segments: Off-Road Vehicles (ORVs)/Snowmobiles, Motorcycles, Global Adjacent Markets, and Aftermarket. Polaris Industries Inc. was founded in 1954 and is headquartered in Medina, Minnesota. PRIVATUS CARE: Markova Seeks Unpaid Wages under Labor Law --------------------------------------------------------- MARYNA MARKOVA, individually and on behalf of all other persons similarly situated who were employed by PRIVATUS CARE SOLUTIONS, INC., along with other entities affiliated or controlled by, PRIVATUS CARE SOLUTIONS, INC., the Plaintiffs, vs. PRIVATUS CARE SOLUTIONS, INC., and/or any other related entities, theDefendants, Case No.: 159787/2018 (N.Y. Sup. Ct., Oct. 23, 2018), seeks to recover wages and benefits which Plaintiffs were statutorily and contractually entitled to receive pursuant to New York Labor Law According to the complaint, the Defendant has maintained a policy and practice of requiring Plaintiffs to regularly work in excess of ten hours per day, without providing the proper hourly compensation for all hours worked, and overtime compensation for all hours worked in excess of 40 hours in any given week, and "spread of hours" compensation. While employed by Defendant, the Plaintiff provided services to homebound and/or ailing elderly clients, including but not limited to, personal care services, such as assistance with dressing, bathing and personal grooming, cooking, serving food, changing diapers and toileting, cleaning, such as mopping, vacuuming, cleaning bathrooms, taking out garbage, and escorting clients to the doctors. During her employment, the Plaintiff was paid an hourly rate of approximately $11.30 to approximately $14.57 per hour. The Plaintiff worked 24-hour shifts, she was only paid for approximately 16 hours of her 24-hour shift, and she was not paid for every hour that she worked. The Plaintiff was not paid any hourly rate for the other 8 hours worked. When Plaintiff worked 24-hour shifts for Defendant, she was generally not permitted to leave the client's residence during her shift, the lawsuit says. Privatus Care is a home care services agency.[BN] Attorneys for the Plaintiff and the Putative Class: LaDonna M. Lusher, Esq. Joel Goldenberg, Esq. VIRGINIA & AMBINDER, LLP 40 Broad Street, Seventh Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: llusher@vandallp.com - and - Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW FIRM LLC 281 Summerhill Road, Suite 210 East Brunswick, NJ 08816 Telephone: (212) 808-2224 E-mail: naydenskiyl aw@gmail.com RAD MEDICAL: Accused by Mendez of Not Paying Minimum and OT Wages ----------------------------------------------------------------- ELVIS RAFAEL MENDEZ and all others similarly situated under 29 U.S.C. 216(b) v. RAD MEDICAL TRANSPORTATION, INC., DAVID DIAZ, Case No. 1:18-cv-24211-UU (S.D. Fla., October 12, 2018), is brought as a collective action under the Fair Labor Standards Act arising from the Defendants' alleged failure to pay overtime and/or minimum wages for work performed in excess of 40 hours weekly. Rad Medical Transportation, Inc., is a corporation that regularly transacts business within Dade County, Florida. The Individual Defendant is a corporate officer, owner or manager of the Defendant Corporation. Rad Medical is a healthcare provider in Florida. The provider is a land vehicle with a capacity to meet special height, clearance, access, and seating, for the conveyance of persons in non-emergency situations.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com RAWLINGS SPORTING: Sotelo Files Fraud Class Action -------------------------------------------------- A fraud class action has been filed against Rawlings Sporting Goods Company Inc. The case is styled as Richard Sotelo on behalf of himself and all others similarly situated, Plaintiff v. Rawlings Sporting Goods Company Inc., Defendant, Case No. 2:18-cv-09166 (C.D. Cal., Oct. 25, 2018). Rawlings Sporting Goods Company, Inc. manufactures and markets sporting goods for professional athletes, national governing bodies, and sports leagues worldwide. It offers baseball, basketball, football, and softball game-related product lines, including gloves, wood and alloy bats, helmets, protective products, baseballs, bags, and batting gloves.[BN] The Plaintiff is represented by: Thomas S. Alch, Esq. Shoop APLC 350 South Beverly Drive Suite 330 Beverly Hills, CA 90212 Phone: (310) 277-1700 Fax: (310) 277-8500 Email: thomas.alch@shooplaw.com RED ROBIN: Court Certifies Class & Subclasses in Vigueras Suit -------------------------------------------------------------- In the class action lawsuit captioned as Manuel Vigueras, the Plaintiff, v. Red Robin International, Inc., et al., the Defendants, Case 8:17-cv-01422-JVS-DFM (C.D. Cal., Oct. 23, 2018), the Hon. Judge James V. Selna entered an order on Oct. 23, 2018, granting certification to Vigueras' proposed class and subclasses of: Class: "all persons who are employed or have been employed by Defendant as non-exempt, hourly employees, however titled, in Defendant's restaurants in the state of California from July 14, 2013 to the present"; First Meal Period Subclass: "all Class Members who worked more than 5 hours in a workday, and were not provided with a lawful, timely uninterrupted 30-minute meal period or compensation in lieu thereof"; Second Meal Period Subclass: "all Class Members who worked more than 10 hours in a workday, and were not provided with a lawful, timely uninterrupted 30-minute meal period or compensation in lieu thereof." Rest Period Subclass: "all Class Members who worked more than 3-1/2 hours in a workday and were not authorized or permitted to take one net 10 minute rest period for every four hours worked or major fraction thereof, or compensation in lieu thereof"; Indemnification Subclass: "all Class Members who were not reimbursed for necessary expenditures incurred to perform their job duties"; and Unfair Business Practices Subclass: "all Class Members who (1) were subject to unlawful, illegal, unfair or deceptive business acts or practices by Defendant and, (2) are entitled to restitution for unpaid wages, unpaid meal or rest premiums or unreimbursed expenses from Defendant based on conduct occurring at any time from July 14, 2013 to the present".[CC] RENTGROW INC: Faces McIntyre Suit Alleging FCRA Violations ----------------------------------------------------------- PATRICIA MCINTYRE, on behalf of herself and others similarly situated v. RENTGROW, INC., d/b/a Yardi Resident Screening, Case No. 1:18-cv-12141 (D. Mass., October 12, 2018), seeks damages for alleged violations of the Fair Credit Reporting Act. RentGrow, Inc., provides online resident screening solutions for property management companies and the multifamily housing industry in the United States. The Company's products include TotalScreen, an online resident screening tool/system, which offers a range of components, such as credit, criminal, and eviction/landlord and tenant records screenings, as well as rental payment history records, address searches, executive management reports, and verifications; and ScreeningWorks, an online resident screening for independent rental owners with various units.[BN] The Plaintiff is represented by: Claude F. Lefebvre, Esq. THE CONSUMER & FAMILY LAW CENTER OF CLAUDE F. LEFEBVRE PO Box 479 Pawtucket, RI 02862 Telephone: (401) 728-6060 RICHLINE GROUP: Faces Kiler ADA Class Action -------------------------------------------- A class action lawsuit has been filed against Richline Group, Inc. under the Americans with Disabilities Act. The case is styled as Marion Kiler individually and as the representative of a class of similarly situated persons, Plaintiff v. Richline Group, Inc. doing business as: Gemvara.com, Defendant, Case No. 1:18-cv-05980 (E.D. N.Y., Oct. 25, 2018). Richline Group, Inc. manufactures and distributes jewelry. It offers precious metals, pearls, findings, gemstones, raw materials, hand tools, equipment, displays, packaging products, beads, fashion earrings, and chains. The company provides an ear piercing system for use in jewelry and department stores, pharmacies, medical clinics, salons, and beauty supply stores.[BN] The Plaintiff appears pro se. RITZ CARLTON: Baltodano Suit Moved to Southern District of Florida ------------------------------------------------------------------ Marcia Baltodano and other similarly situated individuals, the Plaintiff, vs. The Ritz Carlton Hotel Company, LLC, the Defendant, Case No. 18-029405-CA-01, was removed from the 11th Judicial Circuit Court, to the U.S. District Court for the Southern District of Florida (Miami) on Oct. 23, 2018. The Southern District of Florida Court Clerk assigned Case No. 1:18-cv-24393-KMW to the proceeding. The case is assigned to the Hon. Judge Kathleen M. Williams. The suit alleges Civil Rights Act violation.[BN] Attorneys for Plantiff: Nathaly Lewis, Esq. Peter Michael Hoogerwoerd, Esq. REMER & GEORGES-PIERRE PLLC 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: nl@rgpattorneys.com pmh@rgpattorneys.com Attorneys for Defendant: Elizabeth Mercedes Rodriguez, Esq. Viktoryia Johnson, Esq. FORD & HARRISON LLP 1 S.E. 3rd Avenue, Suite 2130 Miami, FL 33131 Telephone: (305) 808-2100 Facsimile: (305) 808-2101 E-mail: erodriguez@fordharrison.com vjohnson@fordharrison.com ROGERS PAVEMENT: Accused by Pittman Suit of Not Paying Overtime --------------------------------------------------------------- BRIAN PITTMAN, Individually and on behalf of all those similarly situated v. ROGERS PAVEMENT MAINTENANCE, INC., DOUG ROGERS and RICHARD ROGERS, Case No. 1:18-cv-00717-MRB (S.D. Ohio, October 11, 2018), accuses the Defendants of unlawfully denying overtime compensation to the Plaintiff for hours worked in their paving business, in violation of the Fair Labor Standards Act. Rogers Pavement is a for-profit Ohio Corporation first registered with the Ohio Secretary of State in 1996. The Individual Defendants are owners, officers or employees of Rogers Pavement. The Defendants are in the paving business.[BN] The Plaintiff is represented by: Christian A. Jenkins, Esq. Robb S. Stokar, Esq. MINNILLO & JENKINS Co., LPA 2712 Observatory Avenue Cincinnati, OH 45208 Telephone: (513) 723-1600 Facsimile: (513) 723-1620 E-mail: cjenkins@minnillojenkins.com rstokar@minnillojenkins.com RON DESANTIS: Stephenson Sues over Political Campaign Text Ads -------------------------------------------------------------- JOSEPH STEPHENSON, on behalf of himself and all others similarly situated, the Plaintiff, vs. RON DESANTIS, the Defendant, Case No. 8:18-cv-02606 (M.D. Fla. Oct. 23, 2018), alleges that Defendant violated the Telephone Consumer Protection Act of 1991, through his political campaign, or its agents, sending text messages to Plaintiff and other individuals without their consent through automatic telephone dialing system. According to the complaint, at 2:14 p.m. on October 18, 2018, the Plaintiff received the following text message from telephone number (855) 206-9488 on his personal cellular phone: "Vote DeSantis today to protect our Constitution. www.rondesantis.com Gillum & his radical friends will be a disaster for the FL Supreme Court. DeSantis will appoint justices who will uphold our Constitution." In response, Plaintiff sent the following text: "Don't text me and don’t call me. "I’m voting for Gillum!!!" He did not receive a response. A 3:18 p.m. on October 21, 2018, Plaintiff received the following text message from telephone number (321) 204-7412 on his personal cellular phone: "Florida Gubernatorial Debate Tonight on CNN at 8pm ET Ron DeSantis vs Andrew Gillum Pres. Trump needs every Republican in Florida to step up and help stop the radical left-wing by voting for Ron DeSantis. Andrew Gillum is a radical far-left democrat. His campaign is powered by Socialist Bernie Sanders & Alexandria Ocasio-Cortez. Gillum wants to abolish ICE, allow sanctuary cities, add Billions in new FL taxes, and defund the police. He wants to impeach Pres. Trump. WE MUST STOP GILLUM! VOTE EARLY, starting tomorrow in many counties. Learn More at RonDeSantis.com/EarlyVoting Paid by Ron DeSantis, Republican, for governor." Defendant's political campaign, or its agents, sent the text messages identified. The Plaintiff has had his cellular phone number since approximately 2004. He has never provided his cellular phone number to any political campaigns. Plaintiff called the phone numbers from which the text messages were sent. The Plaintiff never gave his permission for Defendant or Defendant’s political campaign to send text messages to Plaintiff's cellular phone or to contact him in any other way. The Plaintiff is outraged that Defendant's campaign, or its agents, would send text messages to his personal cellular phone and he hopes this lawsuit will hold Defendant and his campaign accountable for violating the law, the lawsuit says. Attorneys for Plaintiff and the Class: Gregg I. Shavitz, Esq. SHAVITZ LAW GROUP, P.A. 951 Yamato Rd., Suite 285 Boca Raton, FL 33431 Telephone: 561-447-8888 Facsimile: 561-447-8831 E-mail: gshavitz@shavitzlaw.com - and - Douglas M. Werman, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com zflowerree@flsalaw.com SCHWAB INVESTMENTS: Vedder Price Discusses Class Action Ruling -------------------------------------------------------------- Vedder Price, in an article for The National Law Review, reports that in February 2016, the U.S. District Court for the Northern District of California granted a motion dismissing with prejudice the claims brought by Northstar Financial Advisors, Inc., on behalf of its clients who invested in the Schwab Total Bond Market Fund, against Schwab Investments, Charles Schwab Investment Management, Inc. and the trustees of the Schwab Trust. Northstar alleged that, between August 2007 and February 2009, Schwab had managed the Fund's investments in a manner that deviated from the Fund's stated investment objectives and policies, resulting in investor losses. Northstar claimed under Massachusetts law that the Fund's trustees breached a purported fiduciary duty owed directly to the Fund's shareholders, that the Fund breached a purported contract with its shareholders embodied in the Fund's proxy statement and prospectus and that the Fund's shareholders had claims against Schwab as third-party beneficiaries under the Fund's investment advisory agreement. Although the U.S. Court of Appeals for the Ninth Circuit had previously decided that these were legitimate claims under state law, the District Court, on remand from the Ninth Circuit, dismissed Northstar's claims with prejudice, determining that they were essentially claims of misrepresentation in the sale of securities and were therefore precluded from being brought as a class action by the federal Securities Litigation Uniform Standard Act (SLUSA). Following this decision, Northstar appealed the decision of the District Court to the Ninth Circuit. On September 14, 2018, the Ninth Circuit issued an opinion affirming the District Court's dismissal of Northstar's class claims, agreeing that the claims were precluded by SLUSA. However, the Ninth Circuit concluded that the District Court had erred in dismissing the claims with prejudice and remanded the case to the District Court to give Northstar an opportunity to amend its complaint. The Ninth Circuit's opinion was issued under the caption Northstar Financial Advisors, Inc. v. Schwab Investments, et. al., Case No. 16-15303. [GN] SCOTTS MIRACLE-GRO: Kasich Sues Over Defective EZ Seeds ------------------------------------------------------- PETE KASICH, and all others similarly situated v. THE SCOTTS MIRACLE-GRO COMPANY, INC., and THE SCOTTS COMPANY LLC, Case No. 2:18-cv-01373-JFC (W.D. Pa., October 12, 2018), seeks to recover damages on behalf of the Plaintiff and all other similarly situated purchasers of Scotts Turf Builder EZ Seed in Pennsylvania. Mr. Kasich accuses the Defendants of misrepresenting and selling a defective combination mulch-grass seed product, Scotts Turf Builder EZ Seed ("EZ Seed" or the "Product"). He asserts that according to the Product's labeling and advertising, the Product was uniformly represented as causing grass to grow "50% THICKER WITH HALF THE WATER" compared to "ordinary seed" and that the Product "Grows Anywhere! Guaranteed!" (the "Representations"). He contends that the Representations are materially false and misleading because the Product does not in fact make grass grow "50% THICKER WITH HALF THE WATER" compared to "ordinary seed." The Scotts Miracle-Gro Company, Inc., is a Delaware corporation with a principal place of business in Marysville, Ohio. Scotts is the world's largest marketer of branded consumer lawn and garden products, including a variety of grass seed products. The Scotts Company LLC is an Ohio Limited Liability Company with a principal place of business located in Marysville. The Scotts Company LLC is a wholly-owned subsidiary of Scotts Miracle-Gro Company, Inc.[BN] The Plaintiff is represented by: Benjamin J. Sweet, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bsweet@carlsonlynch.com - and - Scott A. Kamber, Esq. KAMBERLAW, LLC 201 Milwaukee Street, Suite 200 Denver, CO 80206 Telephone: (303) 222-9008 Facsimile: (212) 202-6364 E-mail: skamber@kamberlaw.com SILVERWARE POS: Clark Sues over Use of Biometric identifiers ------------------------------------------------------------ LAVELL CLARK, individually and on behalf of all others similarly situated, the Plaintiff, vs. SILVERWARE POS, INC., an Illinois Corporation, the Defendant, Case No.: 2018CH13115 (Ill. Cir. Ct., Cook Cty., Oct. 22, 2018), seeks injunctive and other equitable relief as is necessary to protect the interests of Class, including an order requiring the Defendant to collect, store, and use biometric identifiers or biometric information in compliance with the Biometric Information Privacy Act. According to the complaint, SilverWare is a developer of point of sale ("POS") systems for the hospitality industry. It offers a range of POS systems that enable businesses-primarily restaurants-to track their employees' time by using a biometric finger scanner. When employees first begin their jobs at a restaurant that uses Silverware's POS system, they are required to scan their fingerprint in its biometric time tracking system as a means of authentication, instead of using key fobs or other identification cards. While there are tremendous benefits to using biometric time clocks in the workplace, there are also serious risks. Unlike key fobs or identification cards-which can be changed or replaced if stolen or compromised-fingerprints are unique, permanent biometric identifiers associated with the employee. This exposes employees to serious and irreversible privacy risks. For example, if a fingerprint database is hacked, breached, or otherwise exposed, employees have no means by which to prevent identity theft and unauthorized tracking. Recognizing the need to protect its citizens from situations like these, Illinois enacted the BIPA, specifically to regulate companies that collect and store Illinois citizens' biometrics, such as fingerprints. Despite this law, Silverware disregards restaurant employees' statutorily protected privacy rights and unlawfully collects, stores, and uses their biometric data in violation of the BIPA.[BN] Attorneys for Plaintiff: Benjamin H. Richman, Esq. J. Eli Wade-Scott, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: 312 589 6370 Facsimile: 312 589 6378 E-mail: brichman@edelson.com ewadescott@edelson.com - and - David Fish, Esq. John Kunze, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 Telephone: (630) 355 7590 Facsimile: (630) 778 0400 E-mail: dfish@fishlawfirm.com jkunze@fishlawfirm.com SIRIUS XM: Bid For Class Certification in Buchanan Suit Underway ---------------------------------------------------------------- Sirius XM Holdings Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the motion for class certification in the lawsuit filed by Thomas Buchanan is pending. On March 13, 2017, Thomas Buchanan, individually and on behalf of all others similarly situated, filed a class action complaint against the company in the United States District Court for the Northern District of Texas, Dallas Division. The plaintiff in this action alleges that the company violated the Telephone Consumer Protection Act of 1991 (the "TCPA") by, among other things, making telephone solicitations to persons on the National Do-Not-Call registry, a database established to allow consumers to exclude themselves from telemarketing calls unless they consent to receive the calls in a signed, written agreement, and making calls to consumers in violation of our internal Do-Not-Call registry. The plaintiff is seeking various forms of relief, including statutory damages of five hundred dollars for each violation of the TCPA or, in the alternative, treble damages of up to fifteen hundred dollars for each knowing and willful violation of the TCPA and a permanent injunction prohibiting the company from making, or having made, any calls to land lines that are listed on the National Do-Not-Call registry or the company's internal Do-Not-Call registry. The plaintiff has filed a motion seeking class certification, and that motion is pending. Sirius XM said, "We believe we have substantial defenses to the claims asserted in this action, and we intend to defend this action vigorously." Sirius XM Holdings Inc. provides satellite radio services in the United States. The company broadcasts music plus sports, entertainment, comedy, talk, news, traffic, and weather programs, including various music genres ranging from rock, pop and hip-hop to country, dance, jazz, Latin, and classical; live play-by-play sports from principal leagues and colleges; multitude of talk and entertainment channels for various audiences; national, international, and financial news; and limited run channels. Sirius XM Holdings Inc. is a subsidiary of Liberty Media Corporation. SIX FLAGS: Continues to Defend Biometric Information-Related Suit ----------------------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself against a potential class action complaint alleging Illinois Biometric Information Privacy Act ("BIPA") violations. On January 7, 2016, a potential class action complaint was filed against Six Flags Entertainment Corporation in the Circuit Court of Lake County, Illinois. On April 22, 2016, Great America, LLC was added as a defendant. The complaint asserts that the company violated the Illinois Biometric Information Privacy Act ("BIPA") in connection with the admission of season pass holders and members through the finger scan program that commenced in the 2014 operating season at Six Flags Great America in Gurnee, Illinois, and seeks statutory damages, attorneys' fees and an injunction. An aggrieved party under BIPA may recover (i) $1,000 if a company is found to have negligently violated BIPA or (ii) $5,000 if found to have intentionally or recklessly violated BIPA, plus reasonable attorneys' fees in each case. The complaint does not allege that any information was misused or disseminated. On April 7, 2017, the court certified two questions for consideration by the Illinois Appellate Court of the Second District. On June 7, 2017, the Illinois Appellate Court granted the company's motion to appeal. Accordingly, two questions regarding the interpretation of BIPA were certified for consideration by the Illinois Appellate Court. On December 21, 2017, the Illinois Appellate Court found in company's favor, holding that the plaintiff had to allege more than a technical violation of BIPA and had to be injured in some way. On March 1, 2018, the plaintiff filed a petition for leave to appeal to the Illinois Supreme Court. On May 30, 2018, the Illinois Supreme Court granted the plaintiff's leave to appeal. Six Flags said, "We intend to continue to vigorously defend ourselves against this litigation. Since this litigation is still in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss in excess of the immaterial amount that we have recorded for this litigation cannot be made." Six Flags Entertainment Corporation owns and operates regional theme and water parks under the Six Flags brand name. The company's parks offer various thrill rides, water attractions, themed areas, concerts and shows, restaurants, game venues, and retail outlets. Six Flags Entertainment Corporation was founded in 1961 and is based in Grand Prairie, Texas. SIX FLAGS: Continues to Defend Suits Over Credit Card Info ---------------------------------------------------------- Six Flags Entertainment Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 24, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself from four potential class action complaint. During 2017, four potential class action complaints were filed against Six Flags Entertainment Corporation or one of its subsidiaries. Complaints were filed on August 11, 2017 in the Circuit Court of Lake County, Illinois, on September 1, 2017 in the United States District Court for the Northern District of Georgia, on September 11, 2017 in the Superior Court of Los Angeles County, California, and on November 30, 2017 in the Superior Court of Ocean County, New Jersey. The complaints allege that the company, in violation of federal law, printed more than the last five digits of a credit or debit card number on customers' receipts, and/or the expiration dates of those cards. A willful violation may subject a company to liability for actual damages or statutory damages between $100 and $1,000 per person, punitive damages in an amount determined by a court, and reasonable attorneys' fees, all of which are sought by the plaintiffs. The complaints do not allege that any information was misused. Six Flags SAID, "We intend to vigorously defend ourselves against this litigation. Since this litigation is in an early stage, the outcome is currently not determinable and a reasonable estimate of loss or range of loss cannot be made." No further updates were provided in the Company's SEC report. Six Flags Entertainment Corporation owns and operates regional theme and water parks under the Six Flags brand name. The company's parks offer various thrill rides, water attractions, themed areas, concerts and shows, restaurants, game venues, and retail outlets. Six Flags Entertainment Corporation was founded in 1961 and is based in Grand Prairie, Texas. SOLUDOS LLC: Violates Disabilities Act, Figueroa Suit Says ---------------------------------------------------------- Jose Figueroa has brought a class action lawsuit against Soludos LLC. The case is captioned Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. Soludos LLC, Defendant, Case No. 1:18-cv-09891 (S.D. N.Y., Oct. 25, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Soludos LLC designs, manufactures, and sells shoes for women, men, and kids. It offers espadrilles, sandshoes, lace-ups, low cuts, sandals, canvas shoes, and summer and beach shoes. The company sells its products through retail stores.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal STARKIST: 9th Cir. Affirms Tuna Under-filling Settlement Approval ----------------------------------------------------------------- Metropolitan News-Enterprise reports that the Ninth U.S. Circuit Court of Appeals has affirmed the District Court's approval of a class-action settlement in a case where consumers sued over the under-filling by StarKist of its cans of tuna, with two of the three judges on the panel declaring that a pay-off to class members in the form of vouchers was not akin to a "coupon settlement" which requires heightened scrutiny under the Class Action Fairness Act of 2005. Circuit Judge Michelle Friedland agreed with her colleagues -- Senior Circuit Judge N. Randy Smith and District Court Chief Judge Barbara M. G. Lynn of the Northern District of Texas, sitting by designation -- that the settlement notice satisfied due process and that the class counsel did not engage in misconduct. However, she insisted that "the vouchers to purchase StarKist canned tuna must be considered coupons" under the act. Her concurring and dissenting opinion responds to the Oct. 19 memorandum opinion which affirms the Sept. 29, 2016 decision by District Court Judge Haywood S. Gilliam Jr. of the Northern District of California giving final approval to a $12 million settlement of the action. That action was brought by one Patrick Hendricks in February 2013. Citing federal law requiring that five-ounce cans contain an average of 2.84 to 3.23 ounces of tuna, he alleged that StarKist's cans actually held an average of 2.81 to 3.11 ounces of tuna. Hendricks averred that he would not have purchased the StarKist product if he had known that the cans contained .08 to 1 percent less tuna than federally mandated. Under the settlement, consumers -- who stated under penalty of perjury that they bought 5-ounce cans of StarKist tuna between Feb. 19, 2009 and Oct. 31, 2014 -- could receive $25 or $50 in vouchers redeemable for cans of the StarKist product. A group of objectors appealed. [GN] STUBBS & WOOTTON: Figueroa Suit Asserts ADA Breach -------------------------------------------------- Jose Figueroa has filed a class action lawsuit against Stubbs & Wootton Corp. under the Americans with Disabilities Act. The case is styled as Jose Figueroa on behalf of himself and all others similarly situated, Plaintiff v. Stubbs & Wootton Corp., Defendant, Case No. 1:18-cv-09886 (S.D. N.Y., Oct. 25, 2018). Stubbs & Wootton produces bespoke and ready-to-wear luxury slippers. It is located at 340 Worth Avenue, Palm, Beach, Florida.[BN] The Plaintiff is represented by: Joseph H. Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Phone: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal SUBARU OF AMERICA: Sauer Sues Over Flaw in Turbo Charged Engines ---------------------------------------------------------------- CHERYL SAUER, individually and on behalf of all others similarly situated v. SUBARU OF AMERICA, INC., Case No. 1:18-cv-14933 (D.N.J., October 12, 2018), is brought on behalf of all persons, who purchased or leased certain vehicles equipped with uniform and uniformly defective engines designed, manufactured, distributed, warranted, marketed, and sold or leased by the Defendant. The vehicles at issue all contain turbo charged engines, including but not limited to the 2014 Subaru Forester XT, 2015 Subaru Forester XT, 2016 Subaru Forester XT, 2014 Subaru WRX, 2015 Subaru WRX, 2016 Subaru WRX, 2014 Subaru WRX STi, 2015 Subaru WRX Sti, and 2016 Subaru WRX STi (the "Class Vehicles"). The Plaintiff alleges that the Class Vehicles' engines have a serious design defect that causes the engines to suffer damage due to the engines being tuned too highly. Additionally, the Defendant applied an undisclosed fix ("the Fix") during a "claimed" mandatory emissions recall to the Engines in an attempt to fix the design defect in the Engines that rendered the Class Vehicles unusable due to intermittent stalling and sudden accelerating following the application of the Fix. Subaru of America, Inc., is a domestic corporation duly organized under the laws of the state of New Jersey, and engaged in the manufacture, sale, and distribution of motor vehicles and related equipment and services. The Defendant is also in the business of marketing, supplying and selling written warranties to the public at large through a system of authorized dealerships.[BN] The Plaintiff is represented by: Stephen P. DeNittis, Esq. Ross H. Schmierer, Esq. DeNITTIS OSEFCHEN PRINCE, P.C. 525 Route 73 North, Suite 410 Marlton, NJ 08053 Telephone: (856) 797-9951 E-mail: sdenittis@denittislaw.com rschmierer@denittislaw.com - and - Todd M. Friedman, Esq. Tom Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, PC 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (424) 278-9125 E-mail: tfriedman@toddflaw.com twheeler@toddflaw.com SUNDANCE INC: Jackson Sues over Use of Biometric Identifiers ------------------------------------------------------------ DWAYNE JACKSON, individually and on behalf of all others similarly situated, the Plaintiff, vs. SUNDANCE, INC., a Michigan corporation, the Defendant, Case No. 2018CH13118 (Ill. Cir. Ct., Cook Cty., Oct. 22, 2018), seeks to stop the Defendant's capture, collection, use and storage of individuals' biometric identifiers and/or biometric information in violation of the Illinois Biometric Information Privacy Act. The lawsuit seeks to obtain redress for all persons injured by the Defendant's conduct. According to the complaint, the Defendant has implemented an invasive program that relies on the capture, collection, storage and use of its workers' fingerprints, while disregarding the applicable Illinois statute and the privacy interests it protects. The Defendant's employees in Illinois have been required to clock "in" and "out" of their work shifts by scanning their fingerprints, or by entering a code at a cash register. When clocking in and out using the fingerprint scans, the Defendant's biometric computer systems then verify the employee and clock the employee "in" or "out." Unlike traditional time clock punch cards that can be changed or replaced if lost or compromised, fingerprints are unique, permanent biometric identifiers associated with each BIPA defines a "biometric identifier" as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry." BIPA defines "biometric information" as "any information", regardless of how it is captured, converted, stored, or shared, based on an individual's employee. This exposes the Defendant's workforce to serious and irreversible privacy risks. For example, if a fingerprint database is hacked, breached, or otherwise exposed, employees have no means by which to prevent identity theft and unauthorized tracking, the lawsuit says.[BN] Attorneys for Plaintiff: Frank Castiglione, Esq. KasifKhowaja, Esq. THE KHOWAJA LAW FIRM, LLC 70 East Lake Street, Suite 1220 Chicago, IL 60601 Telephone: (312) 356-3200 Facsimile: (312) 386-5800 E-mail: fcastiglione@khowajalaw.com kasif@khowajalaw.com - and - James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan A venue, Suite 2600 Chicago, IL 60603 Telephone: (312) 201-0575 Facsimile: (312) 332-0600 E-mail: jxbormes@bormeslaw.com cpsons@bormeslaw.com TAPESTRY INC: Ornelas Suit Moved to Northern Dist. of California ---------------------------------------------------------------- John Ornelas, individually and on behalf of all others similarly situated, the Plaintiff, vs. Tapestry, Inc., a Maryland Corporation, the Defendant, Case No.: RG18920047, was removed from the Alameda County Superior Court, to the U.S. District Court for Northern District of California (Oakland). The Northern District of California Court Clerk assigned Case No. 4:18-cv-06453-DMR to the proceeding on Oct. 22, 2018. The suit alleges labor-related violation. The case is assigned to the Hon. Judge Donna M. Ryu.[BN] The Plaintiff appears pro se. Attorneys for Defendant: Gregory William Knopp, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067 Telephone: (310) 229-1000 Facsimile: (310) 229-1001 E-mail: gknopp@akingump.com TD AMERITRADE: Kim Seeks Overtime Compensation under FLSA --------------------------------------------------------- WON KIM, on behalf of himself and all others similarly situated, the Plaintiff, vs TD AMERITRADE, INC., the Defendant, Case No. 519332/2018 (N.Y. Sup. Ct., Sept. 26, 2018), seeks to recover overtime compensation and other damages for Plaintiff and their similarly situated co-workers, salaried Investment Consultants, Fixed Income Specialists, and/or Senior Fixed Income Specialists who are or were employed by Defendants from August 1, 2011 through December 15, 2017 in New York, from August 1, 2013 through December 15, 2017 in California, and from August 1, 2014 through December 15, 2017 in states other than New York and California under the New York Labor Law and the Fair Labor Standards Act. According to the complaint, the Defendant applied the same employment policies, practices, and procedures to all Plaintiffs, including policies, practices, and procedures with respect to payment of overtime pay and other wages. TD Ameritrade is a brokerage firm that provides online investment services for individuals and institutions.[BN] Attorneys for Plaintiff: Brian S. Schaffer, Esq. Frank J. Mazzaferro, Esq. FITAPELLI & SCHAFFER, LLP 28 Liberty Street, 30th Floor New York, NY 10005 Telephone: (212) 300 0375 Attorneys for Defendant: Melanie L. Ronen, Esq. Keesal Young & Logan, Esq. 400 Oceangate Long Beach, CA 90802 Telephone: (562) 436 2000 TECHNOLOGY INSTALL: O'Brien Seeks Unpaid Wages under FLSA --------------------------------------------------------- JEFFREY O'BRIEN, 7821 Chase Lake Road Fowlerville, MI 48836, the Plaintiff, vs. TECHNOLOGY INSTALL PARTNERS, LLC c/o Kathleen C Hopkins 3681 S. Green Road, Suite 402 Beachwood, OH 44122, and RYAN TEMPLE 13701 Enterprise Avenue Cleveland, Ohio 44135, the Defendants, Case No. 1:18-cv-02448 (N.D. Ohio, Oct. 23, 2018), seeks to recover unpaid wages, including overtime wages under the Fair Labor Standards Act. According to the complaint, the Plaintiff on behalf of himself and all others similarly situated, by and through counsel, files this collective action complaint against Defendants, to challenge policies and practices of the Defendants that violate the FLSA. The Plaintiff and the FLSA Collective were classified by the Defendants as non-exempt employees and paid on an hourly basis. They regularly worked in excess of 40 hours per week as security system installers, repairers, and maintenance service providers and/or other similar job titles/functions. The Defendants' policy and practice is to deny earned wages, including overtime wages, to its non-exempt hourly employees. The Defendants require their employees to be present and perform work in excess of 40 hours per work week, fail to properly and accurately report wages earned and hours worked, and fail to properly and accurately calculate overtime compensation, the lawsuit says. Technology Install Partners provides security solutions for commercial and residential customers, including access control technology to fire alarm systems.[BN] Counsel for Plaintiff: Kevin M. McDermott II, Esq. Joseph F. Scott, Esq. SCOTT & WINTERS LAW FIRM , LLC The Caxton Building 812 Huron Rd. E., Suite 490 Cleveland, OH 44115 Telephone: (216) 912-2221 Facsimile: (216) 350-6313 E-mail: jscott@ohiowagelawyers.com kmcdermott@ohiowagelawyers.com TOO FACED: Underpays Makeup Artists, Provencio Claims ----------------------------------------------------- ROSE PROVENCIO, on behalf of herself and all others similarly situated, the Plaintiff, vs. TOO FACED COSMETICS, LLC, a Delaware Limited Liability Company, and DOES 1 through 50, inclusive, the Defendants, Case No.: 18CV336593 (Cal. Super. Ct., Oct. 23, 2018),seeks to enjoin Defendant's unlawful conduct, to obtain restitution of unpaid wages and unlawful deductions made from Makeup Artist's pay, and to prosecute a private enforcement action to collect civil penalties under the abor Code Private Attorney General Act. The case involves Defendant-employer's deliberate scheme to misclassify its Makeup Artists as independent contractors, thereby denying them the fundamental protections due o employees under California law. This combined class and PAGA enforcement action is brought against Defendants – who require Makeup Artists to work sales promotion events at retailers like Sephora USA, Inc., Macy's, Inc., and Ulta Beauty, Inc. – for engaging in a pattern and practice of willfully misclassifying its Makeup Artists, including plaintiff Rose Provencio, as independent contractors, instead of affording them their true status as employees, thus denying these works the basic wage-and-hour rights and protections guaranteed to employees by the California Labor Code and the IWC's applicable Wage Order. The result of Defendants' misclassification scheme is that Plaintiffs and other similarly situated Makeup Artists were, and are, routinely denied payment of all earned wages, including: (i) the compensation earned but left unpaid, pursuant to California law's requirement that employees be paid at least the minimum wage for each hour worked; (ii) the premium wages earned for each day an employee is deprived an uninterrupted, duty-free meal period mandated by California law; (iii) the premium wages earned for each day an employee is deprived an uninterrupted, duty-free rest period mandated by California law; and (iv) failure to reimburse Makeup Artist for all job related business expenses, the lawsuit says. Attorneys for Plaintiff and Class: Kevin R. Allen, Esq. Daniel Velton, Esq. VELTON ZEGELMAN P.C. 1261 Lincoln Ave., Suite 208 San Jose, CA 95125 Telephone: (408) 505-7892 Facsimile: (408) 228-1930 E-mail: kallen@vzfirm.com dvelton@vzfirm.com TRI STATE ADJUSTMENTS: Court Shelves Loveland Case -------------------------------------------------- In the class action lawsuit captioned PETER LOVELAND, the Plaintiff, v. TRI STATE ADJUSTMENTS INC., the Defendant, Case 2:18-cv-01662-WED (E.D. Wisc.), the Hon. Judge William E. Duffin entered an order on Oct. 19, 2018, granting Plaintiff's motion to stay further proceedings. The Court said, "The parties are relieved from the automatic briefing schedule set forth in Civil Local Rule 7(b) and (c). Moreover, for administrative purposes, it is necessary that the Clerk terminate the plaintiff's motion for class certification. However, this motion will be regarded as pending to serve its protective purpose under Damasco. October 18, 2018, the Plaintiff filed a class action complaint. At the same time, the plaintiff filed what the court commonly refers to as a "protective" motion for class certification. In this motion the plaintiff moved to certify the class described in the complaint but also moved the court to stay further proceedings on that motion. In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), the court suggested that class action plaintiffs "move to certify the class at the same time that they file their complaint." "The pendency of that motion protects a putative class from attempts to buy off the named plaintiffs." However, because parties are generally unprepared to proceed with a motion for class certification at the beginning of a case, the Damasco court suggested that the parties "ask the district court to delay its ruling to provide time for additional discovery or investigation"."[CC] TRl CITY FOODS: Young Sues over Use of Biometric Information ------------------------------------------------------------ JOE YOUNG, individually and on behalf of all others similarly situated, the Plaintiff, vs. TRl CITY FOODS, INC., a Delaware corporation, the Defendant, and NCR CORPORATION, a Maryland Corporation, the Respondent in Discovery, Case No. 2018CH13114 (Ill. Cir Ct., Cook Cty, Oct. 22, 2018), seeks liquidated damages under the Biometric Information Privacy Act, as compensation for the injuries Tri City has caused to its employees. According to the complaint, Tri City is a franchisee of the Burger King restaurant chain. When employees first begin their jobs at one of Tri City's restaurants, they are required to scan their fingerprints in its time clocks. That's because Tri City uses a biometric time tracking system that requires employees to use their fingerprints as a means of authentication, instead of key fobs or identification cards. While there are tremendous benefits to using biometric time clocks in the workplace, there are also serious risks. Unlike key fobs or identification cards -- which can be changed or replaced if stolen or compromised -- fingerprints are unique, permanent biometric identifiers associated with the employee. This exposes employees to serious and irreversible privacy risks. For example, if a fingerprint database is hacked, breached, or otherwise exposed, employees have no means by which to prevent identity theft and unauthorized tracking. Recognizing the need to protect its citizens from situations like these, Illinois enacted the Biometric Information Privacy Act, specifically to regulate companies that collect and store Illinois citizens' biometrics, such as fingerprints. Despite this law, Tri City disregards its employees' statutorily protected privacy rights and unlawfully collects, stores, and uses their biometric data in violation of the BIPA, the lawsuit says.[BN] Attorneys for Plaintiff: Benjamin H. Richman, Esq. J. Eli Wade-Scott, Esq. EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: 312 589 6370 Facsimile: 312 589 6378 E-mail: brichman@edelson.com ewadescott@edelson.com - and - David Fish, Esq. John Kunze, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 Telephone: (630) 355 7590 Facsimile: (630) 778 0400 E-mail: dfish@fishlawfirm.com jkunze@fishlawfirm.com UBER TECHNOLOGIES: Carlton Fields Discusses 9th Cir. Rulings ------------------------------------------------------------ Carlton Fields, in an article for JDSupra, reports that a putative class action against Uber filed by some of the company's California-based drivers has crashed. The Ninth Circuit reversed rulings denying Uber's motion to compel arbitration, certifying the class of drivers, and enjoining Uber from distributing and enforcing a new arbitration agreement. Relying on its decision in a previous class action against Uber (Mohamed v. Uber Technologies, Inc., 848 F.3d 1201 (9th Cir. 2016), the Ninth Circuit held that the arbitration agreements delegated the threshold question of arbitrability to the arbitrator. Thus, the determination of arbitrability was not within the district court's province. The plaintiffs argued the district court's determination that the arbitration agreements were unenforceable should be upheld because the named class representatives had "constructively opted out of arbitration on behalf of the entire class." The Ninth Circuit held the plaintiffs had no authority to take that action on behalf of and binding the other drivers. Although the plaintiffs found a Georgia Supreme Court case (Bickerstaff v. Suntrust Bank, 788 S.E. 787 (Ga. 2016)) supporting their position, they were unable to point to any federal case doing so. Bickerstaff relied exclusively on state law grounds and did not discuss the Federal Arbitration Act. The plaintiffs' second argument, that the arbitration agreements were unenforceable because they contain class action waivers that violate the National Labor Relations Act, was extinguished by the United States Supreme Court in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018). Because the arbitration agreements were enforceable, Uber's motion to compel arbitration should have been granted, and because the plaintiff's claims would be arbitrated, the district court's order certifying the class and restricting Uber's communications with the class were also reversed. O'Connor v. Uber Technologies, Inc., Case No. 14-16078 (9th Cir. Sept. 25, 2018). [GN] ULTIMATE FITNESS: Huff Sues Over Unsolicited Marketing Texts ------------------------------------------------------------ LEAH HUFF, individually and on behalf of all others similarly situated v. ULTIMATE FITNESS GROUP, LLC D/B/A ORANGETHEORY FITNESS, a Florida Limited Liability Company, Case No. 9:18-cv-81369-DMM (S.D. Fla., October 11, 2018), accuses the Defendant of violating the Telephone Consumer Protection Act by allegedly sending unsolicited marketing text messages. Ultimate Fitness, doing business as Orangetheory Fitness, is a Florida limited liability company whose principal office is located in Boca Raton, Florida. The Defendant is a fitness franchise that offers group personal training workouts. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process, says the complaint.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd #607 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com UNIVERSITY OF SOUTHERN: Tyndall Suits Pile Up Despite Settlement ---------------------------------------------------------------- Steve Gorman, writing for Reuters, reports that fourteen more women accusing a former University of Southern California gynecologist of sexual misconduct sued the physician and the university on Oct. 23, as their lawyer decried a proposed class-action settlement with the school as "grossly inadequate." Women's rights attorney Gloria Allred said the tentative $215 million deal reached to settle claims brought in federal court against Dr. George Tyndall and USC by his former patients would let the university off too easy, without the school fully accounting for its role in the scandal. Hundreds of women have accused Tyndall of subjecting them to molestation, lewd comments and other sexually inappropriate behavior during medical exams while they were his patients at the university's student health clinic. Some of the allegations date back nearly 30 years. The university has acknowledged failing to properly act on at least eight complaints that were made against Tyndall between 2000 and 2014 but were never brought to light until uncovered during an inquiry that the university opened in 2016. An attorney for Tyndall, whose medical license was suspended in August, has said that her client denies all the allegations but agreed to the settlement to avoid the expense of continued litigation. Many accusers have recounted sensing something unprofessional or "creepy" about Tyndall but trusting him nevertheless, only to fully comprehend the sexual abuse retrospectively. Tyndall resigned from the university last year after an internal investigation found that his pelvic examination practices were beyond accepted medical standards and that he had harassed patients. Widespread faculty and student outrage over the university's handling of the matter led to then-USC President C.L. Max Nikias to resign. The Los Angeles Police Department has opened a criminal investigation. In suing the university, Tyndall's former patients had accused USC of complicity and negligence in its duty to protect students. Allred said her latest filing brings to 50 the number of clients she is representing in three lawsuits against Tyndall and USC. She vowed to press ahead in state court with those cases to "determine what USC knew and when they knew it." She called the tentative settlement of a class-action federal case on behalf of hundreds of Tyndall's patients -- making each eligible for $2,500 to $250,000 -- "grossly inadequate compensation." "USC, not just their insurance carriers, should bear the financial consequences for their alleged failure to act to properly remove or discipline Dr. Tyndall when complaints were initially made," Allred said. USC issued a statement defending the settlement as a deal reached "collaboratively with lawyers representing the interests of the entire proposed class," which the university said is expected to include 14,000 to 17,000 women. It said the deal would "help heal the university community." Allred was flanked by two of her latest clients in the case, along with the first named plaintiff in the lawsuits, Daniella Mohazab, who called the proposed settlement "a mockery." On Oct. 18, 93 lawsuits were filed on behalf of current and former USC students against Tyndall and the university. [GN] US STEEL: Faces Class Action Over Carnegie Way Campaign ------------------------------------------------------- Joseph S. Pete, writing for nwi.com, reports that investors claim in a class action lawsuit that U.S. Steel's Carnegie Way efficiency campaign was "a sham" that "fabricated cost savings" partly by putting off maintenance that eventually needed to happen anyway. The lawsuit was filed last fall in U.S. District Court in the Western District of Pennsylvania in response to a 27 percent plunge in stock prices after the steelmaker's unexpected loss of $180 million in the first quarter of 2017. The suit filed by Christakis Vrakas and other shareholders named the steelmaker, executives like former CEO Mario Longhi and U.S. Steel's underwriters as defendants, alleging they violated federal securities law. The class action suit further alleges U.S. Steel made false and misleading claims in investor conference calls, presentations, prospectuses and press releases in 2016 and 2017. Judge Cathy Bissoon has been weighing U.S. Steel's motion to dismiss the case, giving the plaintiffs until Oct. 30 the opportunity to address deficiencies she found in their claim. Attorney Vincent Coppola argued in the lawsuit that U.S. Steel's cost-cutting initiative wasn't actually what was presented to shareholders, citing 11 confidential company insiders and the steelmaker's former chief operating officer. "Although the Carnegie Way purportedly consisted of three elements, it was widely known throughout the company that the only element actually implemented was Operational Excellence which, according to plaintiffs' confidential sources, was 'all about cost-cutting at the expense of operations,'" Coppola argued in the lawsuit. "Indeed, the U.S. Steel defendants severely curtailed the maintenance initiative because that would cost money." U.S. Steel's deferred maintenance and layoffs during the downturn in 2016 led to "thousands of tons of missed steel production" when the market turned around, depriving investors of profits they would have otherwise pocketed, the suit alleges. U.S. Steel is asking the judge to dismiss the case, saying there's no evidence of fraud or misrepresentation, just a difference of philosophy. "Despite complaining that U.S. Steel made inadequate capital investments and obscured that fact, the complaint makes no challenge to any of U.S. Steel's regularly disclosed financial figures, including capital expenditures," U.S. Steel attorney Geoffrey Ritts argued in a motion to dismiss. "The complaint ultimately is little more than a lengthy disagreement with managerial decisions and business strategies, and it is well established that such disagreements do not a disclosure claim make." [GN] USA MANAGEMENT: Fails to Pay Overtime Wages, Araujo Says -------------------------------------------------------- LUCAS ARAUJO, on behalf of himself, all others similarly situated, and on behalf of the general public, the Plaintiff, v. USA MANAGEMENT, LLC; and DOES 1-100, the Defendants, Case No. RG18925458 (Cal. Super. Ct., Oct. 22, 2018), alleges that the Defendants failed to pay all straight time wages and overtime wages under the California Labor Code. According to the complaint, for at least four years prior to the filing of this action and through to the present, the Defendants have had a continuous widespread policy of not paying Plaintiff and those similarly situated for all hours worked, including before clocking in for their work shift, after clocking out for their work shift, and during unpaid meal periods. Further, the Defendants have had a continuous and widespread policy to shave the time Plaintiff and those similarly situated worked.[BN] Attorneys for Lucas Araujo, on behalf of himself, all others similarly situated, and on behalf of the general public: William Turley, Esq. David Mara, Esq. Jill Vecchi, Esq. Matthew Crawford, Esq. THE TURLEY & MARA LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Telephone: (619) 234 2833 Facsimile: (619) 234 4048 VAN TASSEL-PROCTOR: Jones Labor Suit to Recover Unpaid Overtime --------------------------------------------------------------- Ralph Jones, individually and on behalf of all others similarly situated, v. Van Tassel-Proctor Inc. and Ted Van Tassel, Defendant, Case No. 18-cv-00741, (W.D. Ark., October 4, 2018) seeks monetary damages, liquidated damages, prejudgment interest, costs, including reasonable attorneys' fees as a result of failure to pay lawful overtime compensation for hours worked in excess of forty hours per week under the Fair Labor Standards Act and the Arkansas Minimum Wage Act. Van Tassel-Proctor is a commercial building construction company where Jones worked as construction worker. He claims to have regularly worked in excess of forty hours per week without overtime pay. [BN] Plaintiff is represented by: Josh Sanford, Esq. Chris Burks, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com chris@sanfordlawfirm.com VENTURE 475 LLC: Dillon Seeks to Stop Illegal Telemarketing Calls ----------------------------------------------------------------- TODD DILLON, individually, and KAREN LONG, individually and on behalf of all others similarly situated v. VENTURE 475, LLC, a New York limited liability company D/B/A SYNERGY CAPITAL, Case No. 1:18-cv-09304 (S.D.N.Y., October 11, 2018), seeks to stop the Defendant from violating the Telephone Consumer Protection Act by making unsolicited, prerecorded and autodialed telemarketing calls to consumers without their consent, including to consumers registered on the National Do Not Call registry. Venture 475, LLC, doing business as Synergy Capital, is a New York limited liability company headquartered in New York City. Synergy Capital was formed in 2011 as a capital loan provider focused on providing capital to businesses.[BN] The Plaintiffs are represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 5 Penn Plaza, 23rd Floor New York, NY 10001 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com VICTIM SERVICES: Must Face Claims Over Use of Gov't Letterheads --------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that a prior settlement and $50,000 fine do not absolve debt collectors from claims that they used government seals and letterheads to trick consumers into paying illegal fees, a federal judge said on Nov. 1. Four California residents sued Victim Services Inc. and its affiliated companies in 2014 for allegedly using false threats of criminal prosecution to obtain fees of about $200 each as part of a state-sanctioned bad check diversion program. On Nov. 1, a defense attorney urged U.S. District Judge Vince Chhabria to dismiss the case, or at least deny the plaintiffs' motion for class certification. He said the plaintiffs lack standing to sue because their claims were already resolved in a 2015 settlement with the Consumer Financial Protection Bureau (CFPB). "The relief the plaintiffs seek in this action has already been achieved by this settlement," defense attorney Sean Hardy said. Under the terms of a 2015 consent decree, the debt collectors pledged to stop using prosecutors' seals and letterheads, to clearly disclose their identities, and to stop threatening criminal prosecution in collection letters. They also paid a $50,000 fine. Judge Chhabria said the prior settlement and fine do not address allegedly illegal fees that plaintiffs say they were pressured to pay under false pretenses. "Their theory is that you wrongfully took money from the class members," Judge Chhabria said. "You're saying ‘We should be able to keep that money because we already paid a fine to the CFPB.'" The judge said potential class members should be allowed to seek restitution for those fees, but he suggested a state court judge might be better suited to resolve the dispute, given that the fees were part of a state program. "Let the state court decide whether the state's own program is being violated or not," Judge Chhabria said. The plaintiffs say the program requires that county district attorneys individually determine whether each check writer can be prosecuted or referred to the program. To avoid prosecution, the person must pay their debt and attend an intervention program at their own expense. According to the lawsuit, the debt collectors get automatic referrals from county prosecutors and then demand fees for "financial accountability" classes, which no one is actually required to attend. "They were worried if they didn't sign up for the program and pay fees, they would go to jail," said plaintiffs' attorney Beth Terrell in an interview after the court hearing. Judge Chhabria said on Nov. 1 he will deny the debt collectors' motions to dismiss and that he will likely certify a class of California consumers who received debt collection letters prior to March 30, 2015, when the CFPB settlement was reached. The judge rejected the plaintiffs' argument that debt collection practices were not "materially different" after the collectors agreed to stop using DA letterheads and seals, among other reforms. "Those are significant changes," Judge Chhabria said. "It's not on DA letterhead, and it's not the same letter." Because all three named plaintiffs received letters before 2015, Judge Chhabria said they lack standing to seek an injunction. "It seems to me there needs to be a plaintiff who was subject to the defendants' conduct based on the way they're doing it now," Judge Chhabria said. The plaintiffs asked for permission to add a new named plaintiff who received a debt collection letter after March 30, 2015. The judge said he would consider that request, but a new lawsuit might need to be filed to pursue those claims. The judge scheduled a case management conference for Nov. 15 and asked the defense attorneys to figure out whether they intend to oppose the request to add a new named plaintiff. The defendants include Victim Services Inc., National Corrective Group Inc., American Justice Solutions Inc. and Birch Grove Holdings Inc., collectively doing business as CorrectiveServices. Matt Jonsson, CEO of National Corrective Group, and Karl Thomas Jonsson, principal shareholder and officer of Victim Services, are also named as defendants. WALKER CONSTRUCTION: Sullivan Suit Asserts ADA Violation -------------------------------------------------------- A class action lawsuit has been filed against Walker Construction, Inc. The case is styled as Phillip Sullivan, Jr. on behalf of himself and all others similarly situated, Plaintiff v. Walker Construction, Inc., Defendant, Case No. 1:18-cv-09870 (S.D. N.Y., Oct. 25, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Walker Construction is a Vermont based excavation and concrete company specializing in all aspects of residential and commercial excavation.[BN] The Plaintiff appears pro se. YOUR BEAUTIFUL: Lucero Suit Asserts FLSA & NYLL Violation --------------------------------------------------------- MARIA DE LOURDES PEREA LUCERO, individually and on behalf of others similarly situated v. YOUR BEAUTIFUL THREADING SALON, INC. (D/B/A BEAUTIFUL BROWS THREADING & NAILS), 1003 SWEET GIRL INC. (D/B/A BEAUTIFUL NAIL AND SPA), BEAUTIFUL BROWS, INC. (D/B/A BEAUTIFUL BROWS), ROXANNE DOE, SULEMA DOE, and RYMA DOE, Case No. 1:18-cv-09323 (S.D.N.Y., October 11, 2018), alleges violations of the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Plaintiff has worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that she has worked. Beautiful Brows Threading & Nails, 1003 Sweet Girl Inc. and Beautiful Brows, Inc., are domestic corporations organized and existing under the laws of the state of New York and maintains their principal place of business in Bronx, New York. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporations. The Defendants own, operate, or control three beauty salons, located at 1526 Westchester Ave., in Bronx, New York, under the name "Beautiful Brows Threading & Nails", at 1003 Southern Blvd., in Bronx under the name "Beautiful Nail and Spa", and at 815 E Tremont Ave., in Bronx under the name "Beautiful Brows."[BN] The Plaintiff is represented by: 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 E-mail: Michael@Faillacelaw.com YUMMY HOUSE: Lopez Seeks Overtime Pay for Hours Worked Over 40 -------------------------------------------------------------- Henry Lopez, and all others similarly situated, Plaintiff, v. Yummy House Chinese Cuisine, Inc. and Zhao Junwu, Defendants, Case No. 18-cv-02460, (M.D. Fla., October 4, 2018) seeks to recover unpaid overtime and minimum wage compensation, as well as an additional amount as liquidated damages, costs and reasonable attorney's fees pursuant to the Fair Labor Standards Act. Yummy House is a Chinese Restaurant in Hillsborough County where Lopez Gonzalez worked as a Hibachi Chef. He claims to have routinely worked for Yummy House in excess of 40 hours per week, without being paid overtime. [BN] The Plaintiff is represented by: Monica Espino, Esq. ESPINO LAW 2655 S. LeJeune Road, Suite 802 Coral Gables, FL 33134 Tel: (305) 704-3172 Fax: (305) 722-7378 Email: me@espino-law.com [*] Torkin Manes Attorney Discusses Historical Sexual Abuses Cases ------------------------------------------------------------------ Loretta Merritt, Esq. -- lmerritt@torkinmanes.com -- of Torkin Manes LLP, in an article for Mondaq, reports that in Ontario, class actions are governed by the Class Proceedings Act[1], (the "CPA"). Class actions allow an individual to advance a legal claim on behalf of two or more persons where common issues exist. The goals of class actions are judicial efficiency, improved access to justice for those whose claims might not otherwise be pursued, and behaviour modification (of those whose actions affect large numbers of people). The CPA came into force in Ontario on January 1, 1993. The CPA outlines the legal requirement for a claim to be certified by the court as a class action: 1) a valid cause of action, 2) an identifiable class of two or more people, 3) common issues, 4) a representative plaintiff and 5) the Court must be satisfied that a class proceeding is a preferable procedure for resolving the common issues. The CPA also provides the procedural framework for the prosecution of these claims including rules regarding notice, settlement, lawyers' fees, etc. Class action legislation developed as a result of product liability cases. The CPA provides an effective procedure to obtain a remedy for product liability claims that affect many people, particularly where the individual claims are small as compared to the significant cost of legal fees in a lawsuit. For example, if there is a defect in a small car part, a class action may be appropriate and preferable to individual lawsuits. Recently, there have been several cases in which class actions have been certified for claims arising out of historical sexual abuse in institutions and, in particular, claims against private schools, religious organizations, and government run facilities. While there may be some advantages to pursuing historical sexual abuse claims by way of a class action, there are also distinct disadvantages. Class Proceedings in Historical Sexual Assault In a class action, the class members (i.e., the people who have a claim to damages) have a very minor role to play, are not involved in instructing the lawyers or making decisions about how the case proceeds and have no input into settlements. Class members are usually not involved until the last stage of the case where their individual damages are determined. Conversely, if those persons hired a lawyer and brought their own lawsuit the client is the one making decisions and instructing the lawyer. For sexual abuse survivors, legal cases are usually about more than just money. They are about coming forward, being heard and acknowledged and holding people to account, as well as gaining a sense of justice and closure. In a class action these goals can get lost. Also, in sexual abuse class actions the quantum of damages is usually much lower than the recovery in an individual action. So, to the extent that a sexual abuse survivor wants to maximize their financial recovery, an individual action is usually a better option. The certification of historical institutional abuse cases as class actions began with the Rumley[2] case in British Columbia. There, the court certified a class action for abuse survivors from the Jericho Hill School for the Deaf. The government ran the school and had already set up a compensation scheme for those abused at the school. The government's compensation scheme had a maximum payment of $60,000 for each abuse victim. In considering whether or not to certify the case as a class action, the court specifically said that $60,000.00 was too low a cap on damages in 2001. The case was ultimately settled for compensation of up to a maximum of $125,000.00 per class member. Unfortunately, class members in institutional abuse cases in Ontario have not fared nearly as well. For example, in 2010 the Johnston[3] case settlement caped the abuse victims' compensation up to a maximum of $50,000.00 per class member. However, the lawyers were awarded legal fees in the amount of $1,118,499.64. In the Huronia[4] and related cases[5], the maximum compensation to the abuse victims was even lower. In the Huronia cases, the settlement agreement arranged by the class's lawyers provided for maximum compensation of up to $35,000.00 per class member. However, the average actual payment to survivors was only $3,711.22. The lawyers got legal fees of over $16 million dollars. In the Seed[6] case which involved abuse at the Ross MacDonald School for the Blind (Ontario School for the Blind), the settlement package provided for compensation up to $37,500.00 per class member. However, only 181 class members actually received compensation for an average payment of $16,285.00. The lawyers got legal fees of $2,520,000.00 plus disbursements and HST. One interesting thing about these institutional abuse cases in Ontario is that aggregate damages have never been awarded or paid as part of a settlement package in these cases. Aggregate damages are damages paid to class members for having been at the school or institution but who were not specifically abused. Although aggregate damages are identified as a common issue to justify certification of the case as a class action, in the Ontario class action settlements, the settlements have provided for damages only for those who were actually physically or sexually assaulted, no aggregate damages. Therefore, one of the principal justifications for certifying the dispute as a class action is undermined in those settlements. In one recent class action for institutional abuse, the judge has expressed his concern about the settlement and legal fees. In the Welsh[7] case, Justice Perell expressed great disappointment and disapproval of proposed settlement which provided that ninety percent (90%) of the class members would get no compensation, no apology, or anything at all (even indirectly). The lawyers basically admitted that aggregate damages were not available in law and only those who were actually physically or sexually assaulted could receive compensation. Perell. J approved the settlement reluctantly because he felt the alternative of forcing the case to trial would be even worse for the survivors. He also disapproved of the legal fees. In fact, he ordered that lawyers donate $1.5 million dollars of their $3.75 million legal fee to a charity or charities for the deaf. The case is under appeal including the court's order that the lawyers contribute to a charity. Individual Actions for Sexual Assault On the other hand, if survivors of historical institutional abuse sue in individual actions with their own lawyer, the damages are much greater and can be in the six figure range. In several cases compensation of between $100,000.00 and $200,000.00 or more was awarded at trial[8]. In individual cases, personal injury lawyers often work on a contingency basis taking a percentage of the damages recovered. This means abuse survivors do not have to pay legal fees up front or as they go along. There are other even bigger problems with class action for abuse institutional cases; namely notice and opting out. Class actions are commenced by a representative plaintiff bringing a motion to the court to have the class action certified. Once this is done, the court sets a procedure to ensure that all people who are members of the class and who are entitled to compensation get notice and are given the right to "opt out" in order to maintain the right to pursue an individual lawsuit at some future time. Class members "opt out" by coming forward and saying they do not want to be part of the class action. A time limit is set and if class members do not opt out by the specified date, they are deemed to be included in the class. Next, there is a trial of the common issues (often "liability" or legal responsibility is a common issue) and after the trial of the common issues, there are individual damages trials. It is at this point class members need to come forward and pursue their individual claims for damages. If they fail to come forward, they are forever prohibited from pursuing compensation. The only way they can pursue an individual lawsuit is if they come forward before the "opt-out" deadline and follow the procedures set out by the Court for opting out within the opt-out deadline at the beginning of the class action. If they do neither, they get nothing. Sexual abuse survivors usually suffer serious psychological problems as a result of their abuse in childhood. There are also well established links between childhood sexual abuse and substance abuse problems, problems with education and employment and criminal activity in later life. Many abuse survivors become homeless, move around the country or are "off the grid". In addition to the long passage of time in historical abuse cases, these other problems can make it difficult, if not impossible, to reach significant numbers of victims when the judicial notice of the class action is given. If a class member does not receive notice he or she has no opportunity to "opt-out" and his/her right to seek compensation, or to be heard and acknowledged will be forever lost. Even if class members do get notice of the class proceeding, the "opt out" procedure in class actions is especially troublesome in historical sexual assault cases. It often takes abuse survivors 20, 30, or 40 years or even longer to come forward. There are many reasons why sexual abuse survivors do not come forward including misplaced shame, guilt and fear of coming forward, or simply a desire to avoid thinking about and confronting the horrendous pain they suffered. The importance of allowing abuse survivors to come forward in their own time was recently acknowledged by the Ontario government when it enacted Bill 132 amending the Limitations Act, 2002 to eliminate limitation periods for cases based on sexual assault. This amendment is a clear message to abuse survivors that their claims are important and that justice should not be rendered unavailable to them simply because it has taken them time to be ready to address the issue legally. The elimination of limitation periods provides more access to justice for abuse survivors. Conversely, class actions for historical sexual abuse claims require survivors to come forward and opt out or risk forever having their claims extinguished. In my view, any law or rule that requires an abuse survivor to come forward at a specific time is potentially harmful and contrary to the public interest expressed by the Ontario government in amending the Limitations Act. In order to exercise the right to opt-out and preserve their right to bring an individual claim for damages, the abuse survivor must do all the following: -- They must receive the notice; -- They must understand the notice; -- They must be ready to admit to themselves that they have been abused and be willing to admit to strangers that they have been abused; -- They should get legal advice on whether an individual action or a class action settlement is a better option for them; -- They must make that decision about which is a better option before they know what the settlement will actually be; and -- They must send a letter or complete a form to be sent to the class action lawyer to exercise their right to opt-out. For the average person, being told they are part of a lawsuit they knew nothing about and having to follow this process is bewildering. Imagine the distress for an abuse survivor who is not ready to admit to themselves that they are a survivor of childhood sexual abuse, yet alone tell anyone else about it. One of the goals of class actions is judicial economy. Now that the law of vicarious liability is clear, we know institutions are liable for assaults committed by employees in residential care facilities. This is not a significant common issue. Where there are significant common issues such as whether the Government or the school is the proper defendant, a class action may be appropriate to determine that discrete issue. However, where it is clear who ran the institution, then really the issue comes down to whether a particular individual was abused, the amount of their losses and damages. In such cases, there is no significant judicial economy achieved by certifying the case as a class action. It is usually in an institutional defendant's interest to have a class action. In Ontario, if a historical institutional abuse class action is certified, the defendant will enjoy the opportunity to pay pennies on the dollar for those who come forward and collect damages under the class proceeding. To extent that the money they have put up as settlement fund is not actually paid out, it is usually returned back to the defendant. As well, for all the other abuse survivors who have not come forward to collect their money under the class action and have not already opted-out, the defendant enjoys the benefit of having all those claims extinguished and minimizes their liability to pay what would otherwise be valid claims. One way to reconcile the difficulty presented by the "opt out" provision with the benefit of a class proceedings would be to have an "opt-in" provision for historical institutional abuse cases. In this way, potential class members who are notified of the class proceeding would have the choice of either coming forward, opting in and becoming part of the class action or staying silent and not having their claims extinguished. If the abuse survivor was not ready to come forward, he or she could stay silent and still preserve their right to pursue an individual action at a future time should they become ready to do so. Arguably, a legislative amendment is necessary to provide for an "opt-in" provision. In the interim, at a minimum class counsel should be required to advise potential class members to get independent legal advice (ILA) before making a decision whether or not to "opt-out". The notice should contain a statement that most personal injury lawyers work on contingency and give free consultations. Adding such a provision to the notice will not help abuse survivors who do not receive the notice or those who get the notice but are still as yet unable to speak about the abuse, but it may help people who are ready to come forward to better understand the advantages and disadvantages of class actions vs. individual lawsuits. The notice should also provide information about the new program whereby sexual abuse survivors who are 16 years of age, were assaulted in Ontario and live in Toronto, Ottawa or Thunder Bay are eligible for a certificate for 4 hours of free legal advice. [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 ***