/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181123.mbx C L A S S A C T I O N R E P O R T E R Friday, November 23, 2018, Vol. 20, No. 235 Headlines 60-10 BAKERY INC: Capir's Labor Suit Seeks Unpaid Overtime Wages ACT INC: Court Denies Class Certification in TCPA Suit ADVANCED MICRO: Amended Complaint in Hauck Suit Due Nov. 28 AETNA INC: Plaintiffs to Drop UCR Litigation AIR BENGAL: Sacerdotal Seeks Overtime Wages under FLSA ALTICE USA: Shenwick Trust Files Suit in N.Y. Sup. Ct. AMERICAN HONDA: 1st Cir. Reverses Findings on Notice Compliance APOLLO GLOBAL: Agreement in Principle Reached in Arizona Suit APOLLO GLOBAL: Continues to Defend McEvoy Class Action APPLE BUS: Hibdon Sues Over Unpaid Regular, Overtime Wages ASCENT CAPITAL: Unit Continues to Seek Recovery From Insurers AVALONBAY COMMUNITIES: Class of Tenants/Occupants in Katz Certified BANNER BANK: Partly Compelled to Produce E-mail Accounts in Bolding BIZQUALIFY LLC: Hu et al. Seek to Certify Class & Collective Action BRISTOL MYERS: Klein Moynihan Discusses Jurisdiction Ruling CAESARS ENTERPRISE: Workers Seek OT Pay for Off-the-Clock Work CAPITALA FINANCE: Bid to Dismiss Amended Paskowitz Suit Underway CERTIFIED CREDIT: Golubchik Files FDCPA Suit in New Jersey CHARTER COMM: Jimenez Appeals C.D. Calif. Ruling to Ninth Circuit CHASER NEW YORK: Faces Garey ADA Suit in New York CHEF DRIVEN: Violates ADA, Garey Suit Asserts CHIPOTLE MEXICAN: Claims in Bellwether Data Breach Suit Narrowed CHONG QING: Basurto Suit Seeks Unpaid Overtime Premiums CINEMARK USA: Faces Silken Brown Class Action CIRCLE K: Court OKs Leave to File FAC in ADA Suit COAST PROFESSIONAL: Kaykov Files FDCPA Class Action COMPUTER CREDIT: Golubchik Sues Over Debt Collection Practices COVERALL NORTH: Third Circuit Appeal Filed in Richardson Suit CTAC HOLDINGS: Garey Suit Asserts ADA Violation CUMMINS PACIFIC: Court Denies Class Certification in Towle Suit DEFY MEDIA: Guinane Sues Over WARN Act Violation DOMINO'S PIZZA: Blanton Sues Over Employee No-poach Policy EMILIO PUCCI: Diaz Files ADA Suit in S.D. New York ENHANCED RECOVERY: Court Certifies Class in Volkman FDCPA Suit ETRADE FINANCIAL: 2d Cir. Affirms Schwab Securities Suit Dismissal EVA'S 8TH STREET: Delivery Staff Hit Tip Credit Deductions From Pay FIDELITY NATIONAL: Suit vs. Reliance Trust Company Still Ongoing FITBIT INC: Pursues Private Arbitration in PurePulse(R) Suit FITBIT INC: Securities Suits in California Concluded FLEX PHARMA: Amended Complaint in Rumaldo Suit Due Dec. 10 FRONTLINE ASSET: Dow Appeals E.D.N.Y. Decision to Second Circuit GDS HOLDINGS: Rosen Law Firm to Lead Securities Class Suit GOOGLE LLC: Supreme Court Hears Arguments in Cy Pres Dispute H&R BLOCK: Griffith Sues Over Sherman Act Violation HAECO AMERICAS: $150K Attorneys' Fees Awarded in Linnis Suit HCP INC: Bid to Dismiss Boynton Beach Pension Fund Suit Pending HEALTHPORT TECH: Dismissal of Ciox from Kuchenmeister Suit Affirmed HERBALIFE NUTRITION: Rodgers Suit Transferred to California HERTZ CORP: Court Grants Bid to Compel Arbitration in Kurth Suit IRSA INVESTMENTS: Plaintiffs Appeal Case Dismissal JONATHAN NEIL: Brown Class Settlement Has Preliminary Approval KEYVIEW LABS: Pannell Sues over Unwanted Telemarketing Calls KOHL'S DEPARTMENT: 9th Cir. Remands Proceedings on Attorney's Fees LEXINGTON INSURANCE: Ezell Appeals Order in RICO Suit to 1st Cir. LUMBER LIQUIDATORS: Deal in Formaldehyde & Abrasion Litig. Okayed LUMBER LIQUIDATORS: Steele Class Suit in Canada Ongoing MARATHON PETROLEUM: Andeavor Merger-Related Suits Dismissed MASTERCARD INC: Damage Class Seeks Settlement Approval MCDERMOTT INT'L: Chicago Bridge & Iron Securities Suit Ongoing MEDICAL SOLUTIONS: Court Certifies 2 Classes in Dittman FLSA Suit MESA LABORATORIES: Records $3,300 as Potential Loss in TCPA Suits MOTEL 6: Settles Hispanic Guests' Class Action for $7.6MM NATIONSTAR MORTGAGE: Garcia Settlement Has Final Court Approval NEIMAN MARCUS: Court Rules on Individual Claims Settlement Notice NEKTAR THERAPEUTICS: Mulquin Sues over Misleading Financial Report NEXTGEN HEALTHCARE: $19 Million Accord Wins Final Approval NOVAN INC: Bid to Dismiss SB204-Related Suit Still Pending ONEMAIN HOLDINGS: Galestan Class Suit in New York Still Ongoing OPUS BANK: Schwartz Class Settlement Has Final Court Approval PENTAGON FEDERAL: Court Throws Out Disabled Veteran's TILA Claim PERRY FUNERAL: Judge Allows Class Action to Proceed PRA GROUP: Placeholder Bid to Certify Class Sought in Woods Suit PROCTER & GAMBLE: Court Narrows Claims in Takano Suit PROGRESSIVE GARDEN: 3rd Cir. Vacates Dismissal of Class Action PROSPECT MEDICAL: Class in Gauzza Suit Conditionally Certified RICHMOND ORGANIZATION: Court Won't Review Award of $352 Attys' Fees RIOT GAMES: Employees File Gender Discrimination Class Action RISTORANTE LA BUCA: Court Conditionally Certifies Wright FLSA Class RYANAIR HOLDINGS: Robbins Geller Files Class Action in New York SCANA CORP: Bid to Dismiss Consolidated Securities Suit Pending SCANA CORP: Continues to Defend Glibowski Class Suit SCANA CORP: Corporation Securities Suit Underway SCANA CORP: Metzler Lawsuit Held in Abeyance SCANA CORP: Turner Class Action Settled for Under $100,000 SCANA CORP: West Palm Beach Firefighters' Suit Consolidated SEATTLE CITY: Law Firm Mulls Class Action Over Electric Bills SOUTHWEST AIRLINES: Passengers Set to Get Settlement Payout TBC CORPORATION: Hamilton Appeals C.D. Cal. Ruling to 9th Circuit TREVENA INC: Robbins Geller Files Class Action in Pennsylvania TWO OCEAN: Teachers File Class Action Over Compulsory Union Fees UNITED STATES: EFF Urges Court to Keep Spying Class Action Alive UNIVERSITY MEDICAL: Ct. Grants $570K Attorney's Fees in Wage Suit UPMC JAMESON: Faces Class Action Over Ultrasound Equipment USANA HEALTH: Rumbaugh Securities Suit Dismissed with Prejudice VERIZON COMMS: Getz's TCPA Suit Stayed Pending Arbitration VOLKSAGEN GROUP: CalSTRS Securities Fraud Class Action Pending WALGREENS BOOTS: Judgment on Pleadings Bid in Hering Suit Granted WILKES-BARRE, PA: Court Denies Bid to Dismiss Slavish Suit WILLIAMS-SONOMA INC: Summary Judgment Bid in Rushing Suit Denied XANITOS INC: Faces Class Action in Illinois Over BIPA Violation Asbestos Litigation ASBESTOS UPDATE: Amtico Loses Summary Judgment Bid ASBESTOS UPDATE: Asbestos Claims Tied to Laundered Clothes Beaten ASBESTOS UPDATE: Asbestos Found at Bathurst Tennis Clubhouse ASBESTOS UPDATE: Builder Dies From Asbestos Exposure ASBESTOS UPDATE: Conn. High Ct. to Tackle Asbestos Coverage Suit ASBESTOS UPDATE: Crane Co. Had 29,323 Pending Claims at Sept. 30 ASBESTOS UPDATE: DOJ Increases Scrutiny of Asbestos Trusts ASBESTOS UPDATE: Fla. Supreme Ct. Reinstates Ruling in DeLisle ASBESTOS UPDATE: Former Mechanic Sues Borg-Warner Over Lung Cancer ASBESTOS UPDATE: Honeywell Had $1.7BB Bendix Claims at Sept. 30 ASBESTOS UPDATE: Honeywell Had $2.6-Bil. Liabilities at Sept.30 ASBESTOS UPDATE: Honeywell Records $908MM NARCO Liabilities ASBESTOS UPDATE: Ingersoll-Rand Still Defends Claims at Sept. 30 ASBESTOS UPDATE: Inmate's Asbestos Suit Proceed vs NJ Officials ASBESTOS UPDATE: Kramer Levin Comments on WR Grace Plan Ruling ASBESTOS UPDATE: Ky. Teacher Wins Workers' Compensation Benefits ASBESTOS UPDATE: Lennox Int'l Paid $1.4MM for Lawsuits in 3Q 2018 ASBESTOS UPDATE: Maersk Line Bid for Summary Judgment Denied ASBESTOS UPDATE: Part-Time DJ Dies of Asbestos-related Disease ASBESTOS UPDATE: Pentair Plc Had 600 Pending Claims at Sept. 30 ASBESTOS UPDATE: Pfizer Faces Wrongful-Death Suit ASBESTOS UPDATE: PPG Industries Had 440 Open Claims at Sept. 30 ASBESTOS UPDATE: Retired Cumbria PC Diagnosed with Asbestos Cancer ASBESTOS UPDATE: Reynolds' Appeal in Steiner Suit Quashed ASBESTOS UPDATE: Scottish MoD Pressed Over Asbestos in Choppers ASBESTOS UPDATE: SCOTUS Hears Arguments in Bare-Metal Defense Suit ASBESTOS UPDATE: Travelers Had $1.3-Bil. Net Reserves at Sept. 30 ASBESTOS UPDATE: Victims Unable to Trace Employers Can Recover ASBESTOS UPDATE: Wash. Cos. Fined $140K for Asbestos Violations ********* 60-10 BAKERY INC: Capir's Labor Suit Seeks Unpaid Overtime Wages ---------------------------------------------------------------- Celso Tecon Capir, individually and on behalf of all others similarly situated, Plaintiff, v. 60-10 Bakery, Inc. and Sumnder Singh, Defendants, Case No. 18-cv-05746, (E.D. N.Y., October 15, 2018), seeks to recover damages for egregious violations of New York State labor laws and the Fair Labor Standards Act; compensatory and liquidated damages; interest; attorneys' fees, costs and all other legal and equitable remedies. Defendants operate as "Tost Cafe" where Plaintiffs worked as delivery person, cleaner and food preparer. Capir claims to have worked in excess of 60 hours per day without overtime premium. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@Gmail.com ACT INC: Court Denies Class Certification in TCPA Suit ------------------------------------------------------ In the case, BAIS YAAKOV OF SPRING VALLEY, Plaintiff, v. ACT, INC., Defendant, Civil Action No. 12-40088-TSH (D. Mass.), Judge Timothy S. Hillman of the U.S. District Court for the District of Massachusetts denied the Plaintiff's motion to certify two classes. The Plaintiff brought the putative class action against the Defendant alleging violation of the Telephone Consumer Protection Act ("TCPA") for faxing unsolicited advertisements without an opt-out provision. The Defendant is a company that provides student assessment services, including the ACT test, a college admissions exam. The Plaintiff received fax advertisements from the Defendant on March 5, 2012, April 22, 2012, and May 13, 2012. It contends that it never provided the Defendant express invitation or permission to send these fax advertisements and that none contained an opt-out provision. Further, the Defendant admits that it sent more than 10,000 faxes that are the same or substantially similar to the advertisements sent to the Plaintiff. The Defendant argues that it has active, ongoing relationships with high schools around the country. The Plaintiff alleges that the Defendant's conduct violated the TCPA. It argues that under the FCC's Solicited Fax Rule, both solicited and unsolicited faxes are subject to the "opt-out" notice requirement of 47 U.S.C. Section 227(b)(1)(C)(iii). Therefore, the Plaintiff argues that whether or not recipients gave consent is irrelevant to the Court's inquiry. It argues that all faxes sent by the Defendant without an opt-out notice violate the statute. The Plaintiff seeks to certify these two classes: i. Class A comprises all persons in the United States from July 30, 2008 through July 30, 2012 to whom the Defendant sent or caused to be sent an unsolicited facsimile advertisement, advertising the commercial availability or quality of any property, goods, or services, which contained no opt-out notice. ii. Class B includes all persons in the United States from July 30, 2008 through July 30, 2012 to whom the Defendant sent or caused to be sent a facsimile advertisement, advertising the commercial availability or quality of any property, goods, or services, which contained no opt-out notice. Judge Hillman finds that determining consent would not be as simple as looking for a checked box, it would be a highly individualized inquiry into the Defendant's relationship with each school. Therefore, he finds that the Defendant has proffered sufficient evidence to satisfy its burden of demonstrating the need for individual inquiries. This showing precludes a finding of predominance of common questions and bars class certification for Class B. The Judge also finds that Class A comprises those who received an unsolicited fax without an opt-out provision. Thus, the class fits squarely within the definition of a "fail-safe class" because class membership is defined by whether or not members have a valid claim. Further, while the Court must exercise caution when dismissing a "fail-safe" class, the problem in the case cannot be remedied by refining the class definition. If class membership were expanded to not only include those that received unsolicited facsimiles, the refined class would encounter the same predominance defeating individual inquiries of Class B. Thus, this class is a "fail-safe class" and is incapable of refinement such that it is appropriate for classwide adjudication. For these reasons, Judge Hillman denied the Plaintiff's motion to certify class. A full-text copy of the Court's Oct. 24, 2018 Order and Memorandum is available at https://is.gd/HOJVcp from Leagle.com. Bais Yaakov of Spring Valley, on behalf of itself and all others similarly situated, Plaintiff, represented by Aytan Y. Bellin, Esq. -- aytan.bellin@bellinlaw.com -- BELLIN & ASSOCIATES LLC -- Matthew P. McCue, Esq. -- mmccue@massattorneys.net -- LAW OFFICE OF MATTHEW P. MCCUE. ACT, Inc., Defendant, represented by Robert A. Burgoyne -- RBurgoyne@perkinscoie.com -- Perkins Coie LLP, pro hac vice & Robert L. Leonard -- Rleonard@dwpm.com -- Doherty, Wallace, Pillsbury & Murphy. ADVANCED MICRO: Amended Complaint in Hauck Suit Due Nov. 28 ----------------------------------------------------------- Advanced Micro Devices, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 31, 2018, for the quarterly period ended September 29, 2018, that the plaintiffs in Diana Hauck et al. v. AMD, Inc., have until November 28, 2018, to file another amended complaint. Since January 19, 2018, three putative class action complaints have been filed against the Company in the United States District Court for the Northern District of California: (1) Diana Hauck et al. v. AMD, Inc., Case No. 5:18-cv-0047, filed on January 19, 2018; (2) Brian Speck et al. v. AMD, Inc., Case No. 5:18-cv-0744, filed on February 4, 2018; and (3) Nathan Barnes and Jonathan Caskey-Medina, et al. v. AMD, Inc., Case No. 5:18-cv-00883, filed on February 9, 2018. On April 9, 2018, the court consolidated these cases and ordered that Diana Hauck et al. v. AMD, Inc. serve as the lead case. On June 13, 2018, six plaintiffs (from California, Louisiana, Florida, and Massachusetts) filed a consolidated amended complaint alleging that the Company failed to disclose its processors' alleged vulnerability to Spectre. Plaintiffs further allege that the Company's processors cannot perform at its advertised processing speeds without exposing consumers to Spectre, and that any "patches" to remedy this security vulnerability will result in degradation of processor performance. The plaintiffs seek damages under several causes of action on behalf of a nationwide class and four state subclasses (California, Florida, Massachusetts, Louisiana) of consumers who purchased AMD processors and/or devices containing AMD processors. The plaintiffs also seek attorneys' fees, equitable relief, and restitution. Pursuant to the court's order directing parties to litigate only eight of the causes of action in the consolidated amended complaint initially, the Company filed a motion to dismiss on July 13, 2018. On October 29, 2018, after the plaintiffs voluntarily dismissed one of their claims, the court granted the Company's motion and dismissed six causes of action with leave to amend. The plaintiffs have until November 28, 2018 to file another amended complaint. Advanced Micro Devices, Inc. operates as a semiconductor company worldwide. It operates in two segments, Computing and Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro Devices, Inc. was founded in 1969 and is headquartered in Santa Clara, California. AETNA INC: Plaintiffs to Drop UCR Litigation -------------------------------------------- Aetna Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the lead plaintiffs in the case entitled, In re: Aetna UCR Litigation, informed the New Jersey District Court that they would voluntarily dismiss their claims with prejudice. A class action case was commenced on July 30, 2007. The federal Judicial Panel on Multi-District Litigation (the "MDL Panel") has consolidated these class action cases in the U.S. District Court for the District of New Jersey (the "New Jersey District Court") under the caption In re: Aetna UCR Litigation, MDL No. 2020 ("MDL 2020"). In addition, the MDL Panel has transferred the individual lawsuits to MDL 2020. On May 9, 2011, the New Jersey District Court dismissed the physician plaintiffs from MDL 2020 without prejudice. The New Jersey District Court's action followed a ruling by the United States District Court for the Southern District of Florida (the "Florida District Court") that the physician plaintiffs were enjoined from participating in MDL 2020 due to a prior settlement and release. The United States Court of Appeals for the Eleventh Circuit has dismissed the physician plaintiffs’ appeal of the Florida District Court's ruling. On December 6, 2012, the company entered into an agreement to settle MDL 2020. Under the terms of the proposed nationwide settlement, the company would have been released from claims relating to its out-of-network reimbursement practices from the beginning of the applicable settlement class period through August 30, 2013. The settlement agreement did not contain an admission of wrongdoing. The medical associations were not parties to the settlement agreement. Under the settlement agreement, the company would have paid up to $120 million to fund claims submitted by health plan members and health care providers who were members of the settlement classes. These payments also would have funded the legal fees of plaintiffs' counsel and the costs of administering the settlement. In connection with the proposed settlement, the Company recorded an after-tax charge to net income attributable to Aetna of $78 million in the fourth quarter of 2012. The settlement agreement provided the company the right to terminate the agreement under certain conditions related to settlement class members who opted out of the settlement. Based on a report provided to the parties by the settlement administrator, the conditions permitting the company to terminate the settlement agreement were satisfied. On March 13, 2014, the company notified the New Jersey District Court and plaintiffs' counsel that the company was terminating the settlement agreement. Various legal and factual developments since the date of the settlement agreement led the company to believe terminating the settlement agreement was in its best interests. As a result of this termination, the company released the reserve established in connection with the settlement agreement, net of amounts due to the settlement administrator, which reduced first quarter 2014 other general and administrative expenses by $103 million pretax. On June 30, 2015, the New Jersey District Court granted in part the company motion to dismiss the proceeding. The New Jersey District Court dismissed with prejudice the plaintiffs' RICO and federal antitrust claims; their ERISA claims that are based on the company's disclosures and the company's purported breach of fiduciary duties; and certain of their state law claims. The New Jersey District Court also dismissed with prejudice all claims asserted by several medical association plaintiffs. The plaintiffs' remaining claims are for ERISA benefits and breach of contract. On June 30, 2018, the New Jersey District Court denied the plaintiffs' request for class certification of the plaintiffs' remaining claims. On October 4, 2018, the lead plaintiffs informed the New Jersey District Court that they would voluntarily dismiss their claims with prejudice. The New Jersey District Court and the parties will address any claims that remain after these dismissals. Aetna Inc. operates as a health care benefits company in the United States. It operates through three segments: Health Care, Group Insurance, and Large Case Pensions. Aetna Inc. was founded in 1853 and is based in Hartford, Connecticut. AIR BENGAL: Sacerdotal Seeks Overtime Wages under FLSA ------------------------------------------------------ YLDA SALCEDO and all others similarly situated under 29 U.S.C. 216(B), the Plaintiff, vs. AIR BENGAL CORP d/b/a SUNNY'S MART and JAHOR ROY, the Defendants, Case No. 3:18-cv-02890-N (N.D. Tex., Oct. 30, 2018) alleges violations against Defendants under the Fair Labor Standards Act. According to the complaint, from April 2015 to August 30, 2018, the Plaintiff worked often approximately 90 hours per week and was paid an average of regular wage of $8.75 to $9.50 per hour, but Plaintiff was never paid the extra halftime overtime premium rate for hours worked above 40 hours in a week as required by the FLSA by Defendants. The Defendants willfully and intentionally refused to pay Plaintiff's overtime wages as required by the FLSA as Defendants knew of the overtime requirements of the FLSA and recklessly failed to investigate whether Defendants' payroll practices were in accordance with the FLSA. Defendants knowing underreported hours worked by Plaintiff, the lawsuit says.[BN] Attorneys for Plaintiff: Thomas J. Urquidez, Esq. URQUIDEZ LAW FIRM, LLC 5440 Harvest Hill, Suite 145E Dallas, TX 75230 Telephone: 214 420-3366 Facsimile: 214-206-9802 E-mail: tom@tru-legal.com ALTICE USA: Shenwick Trust Files Suit in N.Y. Sup. Ct. ------------------------------------------------------ A class action lawsuit has been filed against Altice USA, Inc. The case is styled as Doris Shenwick Trust individually and on behalf of all others similarly situated, Plaintiff v. Altice USA, Inc., Altice Europe N.V., Patrick Drahi, Dexter Goei, Michel Combes, Dennis Okhuijsen, Jeremie Bonnin, Raymond Svider, Mark Mullen, Charles Stewart, Victoria Mink, Abdelhakim Boubazine, Lisa Rosenblum, David Connolly, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Merrill Lynch, Pierce Fenne, Defendants, Case No. 610261/2018 (N.Y. Sup. Ct., Nassau Cty., Nov. 13, 2018). The case type is stated as "Commercial Division". Altice USA, Inc., together with its subsidiaries, provides broadband communications and video services in the United States. The company operates in two segments, Cablevision and Cequel. It delivers broadband, pay television, telephony services, Wi-Fi hotspot access, proprietary content, and advertising services to approximately 4.9 million residential and business customers. Altice Europe N.V. operates as a telecom, content, media, entertainment, and advertising company in France and internationally. It delivers customer-centric products and solutions that connect and unlock of its approximately 30 million customers over fiber networks and mobile broadband. J.P. Morgan Securities LLC offers security brokerage services. The firm provides cash and wealth management; stock and options management; and education and retirement planning services. Morgan Stanley & Co. LLC is a boutique investment banking firm that offers financial advisory and security brokerage services. Citigroup Global Markets Inc. provides investment banking and financial advisory services. The firm offers equity and debt financing, asset transaction, private equity, underwriting, institutional sales and trading, and mergers and acquisitions advisory services. Goldman Sachs & Co. LLC focuses on the distribution of Goldman Sachs Funds. The company provides services that include securities brokerage, dealership, and underwriting; investment banking; commodity trading; and investment consulting.[BN] The Plaintiff is represented by: WESTERMAN BALL EDERER MILLER 1201 RXR Plaza Uniondale, NY 11556 Phone: (516) 622-9200 The Defendant is represented by: SHEARMAN & STERLING Phone: (212) 848-4000 - and - ABRAHAM FRUCHTER & TWERSKY 1 Penn Plazasuite, Suite 200 New York, NY 10049 Phone: (212) 379-5050 - and - PAUL,WEISS,RIFKIND,WHARTON 1285 Avenue of the Americas New York, NY 10029 Phone: (212) 373-3000 AMERICAN HONDA: 1st Cir. Reverses Findings on Notice Compliance --------------------------------------------------------------- In the case, RACHEL C. WILLIAMS, on behalf of herself and others similarly situated, Plaintiff, Appellant, v. AMERICAN HONDA FINANCE CORPORATION, Defendant, Appellee, Case No. 16-1275 (1st Cir.), Judge William Joseph Kayatta, Jr. of the U.S. Court of Appeals for the First Circuit reversed the district court's findings that Honda's notices were compliant with Massachusetts law, vacated its dismissal of Williams' claims under chapter 93A and Massachusetts' version of the Uniform Commercial Code ("UCC"), challenging the adequacy of Honda's notices, and otherwise affirmed its judgment. Williams brought the putative class action, alleging that Honda violated Massachusetts consumer protection laws by affording her inadequate loan-deficiency notifications after she fell behind on her automobile-loan payments. The appeal followed the district court's entry of summary judgment in favor of Honda. Williams purchased a Honda Accord in 2007, which she partly financed through a retail-installment-sale contract with Honda. After Williams failed to make her loan payments, Honda repossessed the automobile and sent her a post-repossession notice that advised her of Honda's intent to sell the car at auction. At auction, Honda fetched $8,900 for the automobile. Honda then sent Williams a second notice that apprised her of the sale and of her deficiency balance, calculated in accordance with the post-repossession notice by subtracting the price obtained at auction from her outstanding loan balance plus the additional costs associated with repossessing and selling the automobile. Williams claims that Honda's notices violate provisions of the Massachusetts version of the UCC, and the Massachusetts consumer protection statute, by telling Williams that her deficiency liability would be calculated using the automobile's sale price obtained at auction (rather than its fair market value). The district court rejected this challenge to Honda's notices for two reasons. First, it noted that Honda's pre-sale notice track[ed] the safe harbor language in section 9-614(3), which uses auction-sale proceeds as the measure of a debtor's deficiency. Further, the court concluded that Williams had presented no evidence that the auction proceeds were less than the automobile's fair market value. On appeal, Williams argues that summary judgment dismissing her challenges to Honda's notices was improper. She maintains that Massachusetts law requires a lender to give credit for the fair market value of the car -- determined using a car's estimated retail-market value -- when calculating deficiencies owed, and she therefore challenges the district court's conclusion that Honda's use of the auction-sale price in its deficiency notices was accurate and reasonable under the circumstances. Acknowledging that a resolution of Williams's claims would require this court to reconcile Massachusetts's Motor Vehicle Retail Installment Sales Act ("MVRISA"), with provisions of the Massachusetts UCC, the First Circuit certified the following three questions to the Massachusetts Supreme Judicial Court: 1. Whether the fair market value of collateral under Massachusetts General Laws chapter 255B, section 20B, is the fair market retail value of that collateral? 2. Whether, and in what circumstances, a pre-sale notice is sufficient under UCC section 9-614(4) and (5), and reasonable under UCC section 9-611(b), where the notice does not describe the consumer's deficiency liability as the difference between what the consumer owes and the fair market value of the collateral, and the transaction is governed by MVRISA? 3. Whether, and in what circumstances, a post-sale deficiency explanation is sufficient under UCC section 9-616 where the deficiency is not calculated based on the fair market value of the collateral, and the transaction is governed by MVRISA? In June, the Supreme Judicial Court issued an opinion that addressed the questions. In brief, it answered the first question in the negative, concluding that the Legislature did not dictate the creditor's market choice in the first instance. Nevertheless, the court opined that, in disputed cases, a rebuttable presumption exists that the estimated retail-market value of the repossessed collateral is its fair market value in MVRISA-governed transactions. As to the second and third questions, the Supreme Judicial Court concluded that notices provided under sections 9-614 and 9-616 must describe the debtor's deficiency as the difference between the fair market value of the collateral and the debtor's outstanding balance. After the Supreme Judicial Court issued an opinion responding to the questions, the parties filed supplemental briefs addressing the ramifications of those answers. Applying the answers, Judge Kayatta addresses the merits of Williams's appeal. He first addresses the district court's conclusion that Williams failed to offer any evidence to show that Honda sold her vehicle for less than fair market value in violation of MVRISA Section 20B. He sees no reason to upset the district court's conclusion concerning the adequacy of Williams's proof. On appeal, Williams offers no argument at all that the court abused its discretion in finding that Williams did not authenticate the sole exhibit -- a National Automobile Dealers Association values printout -- that she offered to support her claim that Honda sold her vehicle for less than fair market value. Her challenge to the court's ruling that Honda sold the car for fair market value is therefore waived. The Judge turns now to the main issue in the case: Williams's challenge to the district court's determination that the post-repossession and post-sale notices Honda sent to Williams complied with the requirements of Massachusetts law. He finds that the entry of summary judgment on Williams's UCC notice and chapter 93A claims was improper. Whether and to what extent Honda acted in good faith and whether and to what extent good faith provides any defense or mitigation in connection with any claims or remedies, he leaves to the district court to determine on remand. Costs are awarded to Williams. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/58gmZY from Leagle.com. John Roddy -- jroddy@baileyglasser.com -- with whom Elizabeth Ryan -- eryan@baileyglasser.com -- Bailey & Glasser LLP, Steven R. Striffler and Law Office of Steven R. Striffler were on brief, for appellant. Stuart T. Rossman, National Consumer Law Center and Jennifer P. Nelson on brief for National Consumer Law Center amicus curiae in support of appellant. Eric S. Mattson -- EMATTSON@SIDLEY.COM -- with whom Daniel R. Thies, Sidley Austin LLP, Tracy M. Waugh -- tracy.waugh@wilsonelser.com -- and Wilson Elser Moskowitz Edelman & Dicker, LLP were on brief, for appellee. Frederick S. Levin -- flevin@buckleysandler.com -- John C. Redding -- jredding@buckleysandler.com -- Ali M. Abugheida -- aabugheida@buckleysandler.com -- and Buckley Sandler LLP on brief for American Financial Services Association, amicus curiae in support of appellee. APOLLO GLOBAL: Agreement in Principle Reached in Arizona Suit ------------------------------------------------------------- Apollo Global Management, LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the parties in the case, Public Employees Retirement System of Mississippi v. Sprouts Farmers Market, Inc., have reached an agreement in principle to settle the matter. On March 4, 2016, the Public Employees Retirement System of Mississippi filed a putative securities class action against Sprouts Farmers Market, Inc. ("SFM"), several SFM directors (including Andrew Jhawar, an Apollo partner), AP Sprouts Holdings, LLC and AP Sprouts Holdings (Overseas), L.P. (the "AP Entities"), which are controlled by entities managed by Apollo affiliates, and two underwriters of a March 2015 secondary offering of SFM common stock. The AP Entities sold SFM common stock in the March 2015 secondary offering. The complaint, filed in Arizona Superior Court and captioned Public Employees Retirement System of Mississippi v. Sprouts Farmers Market, Inc. (CV2016-050480), alleges that SFM filed a materially misleading registration statement for the secondary offering that incorporated alleged misrepresentations in SFM’s 2014 annual report regarding SFM's business prospects, and failed to disclose alleged accelerating produce deflation. Plaintiffs alleged causes of action against the AP Entities for violations of Sections 11 and 15 of the Securities Act of 1933, seeking compensatory damages for alleged losses sustained from a decline in SFM's stock price. Defendants moved to dismiss the action, and the court dismissed the Section 11 claim against the AP Entities but not the Section 15 claim. On September 4, 2018, Sprouts filed (i) a notice that the parties have reached an agreement in principle to settle the matter; and (ii) a joint motion to stay the case deadlines. On September 13, 2018 the court stayed the case until November 6, 2018, pending the filing of plaintiff's motion to approve the settlement. Apollo Global Management, LLC is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client focused portfolios. The firm launches and manages hedge funds for its clients. Apollo Global Management, LLC was founded in 1990 and is headquartered in New York City, with additional offices in New York City; Bethesda, Maryland; Chicago, Illinois; Los Angeles, California; Purchase, New York; Houston, Texas; London, United Kingdom; Frankfurt, Germany; Central, Hong Kong; Singapore; and Luxembourg. APOLLO GLOBAL: Continues to Defend McEvoy Class Action ------------------------------------------------------ Apollo Global Management, LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself from a putative class action suit filed by Michael McEvoy. On August 3, 2017, a putative class action was commenced in the United States District Court for the Middle District of Florida against Apollo Global Management, LLC (AGM), Gareth Turner (an Apollo Partner) and Mark Beith (a former Apollo Principal) by Michael McEvoy on behalf of a class of current and former employees of subsidiaries of CEVA Group, LLC ("CEVA Group") who purchased restricted Class A shares in CEVA Investment Limited ("CIL"), the former parent company of CEVA Group. The complaint alleges that the defendants breached fiduciary duties to and defrauded the plaintiffs by inducing them to purchase shares in CIL and subsequently participating in a debt restructuring of CEVA Group in which shareholders of CIL did not receive a recovery. The complaint purports to seek damages in excess of €14 million. On October 18, 2017, the bankruptcy trustee for CIL filed a motion in the Bankruptcy Court for the Southern District of New York to prevent McEvoy and his counsel from continuing to prosecute the Florida action on the basis that the relevant claims belong to the CIL bankruptcy estate. On November 21, 2017, the Florida court granted the parties' joint motion to stay the case pending resolution of the CIL bankruptcy trustee's motion to enforce the automatic stay, staying the case until further Order. On February 9, 2018, the bankruptcy court granted the CIL trustee's motion to enforce the automatic stay and enjoined further prosecution of the McEvoy Action (the "February 9 Order"). On February 23, 2018, Mr. McEvoy filed a motion for leave to appeal the February 9 Order. On May 4, 2018, the District Court for the Southern District of New York denied McEvoy's appeal of the February 9 Order, but permitted McEvoy to file a motion in the bankruptcy court to clarify the scope of the injunction or to modify the order to permit him to amend the complaint. On May 24, 2018, McEvoy filed a motion with the bankruptcy court seeking clarification or modification of the February 9 Order, which the CIL Trustee and Mr. Turner opposed. On June 1, 2018, the Florida court entered an order continuing the stay in the case pending the bankruptcy court's ruling on McEvoy's motion for clarification. The bankruptcy court held a hearing on McEvoy's motion for clarification on June 28, 2018, at which it directed McEvoy to file a reply and proposed amended complaint. The reply and proposed amended complaint were filed on July 10, 2018. The proposed amended complaint no longer asserts claims against Messrs. Turner and Beith but adds Apollo Management VI, L.P. and CEVA Group as proposed defendants. The proposed amended complaint purports to seek damages of approximately €30 million and asserts, among other things, claims for violations of the Investment Advisors Act of 1940, breach of fiduciary duties, and breach of contract. On July 26, 2018, CEVA Group, AGM, and Apollo Management VI, L.P. filed a reservation of rights with respect to the proposed amended complaint. On October 16, 2018, the bankruptcy court granted McEvoy's motion for clarification, permitting him to file the proposed amended complaint in the Florida action, to the extent he asserts direct claims against the proposed defendants. To date, McEvoy has not filed the proposed amended complaint. The parties have until November 6, 2018 to file a joint status report with the Florida court. Apollo Global said, "Based on the allegations in the complaint, Apollo believes that there is no merit to the claims. Additionally, as the case is in its early stages, no reasonable estimate of possible loss, if any, can be made at this time." Apollo Global Management, LLC is a publicly owned investment manager. The firm primarily provides its services to endowment and sovereign wealth funds, as well as other institutional and individual investors. It manages client focused portfolios. The firm launches and manages hedge funds for its clients. Apollo Global Management, LLC was founded in 1990 and is headquartered in New York City, with additional offices in New York City; Bethesda, Maryland; Chicago, Illinois; Los Angeles, California; Purchase, New York; Houston, Texas; London, United Kingdom; Frankfurt, Germany; Central, Hong Kong; Singapore; and Luxembourg. APPLE BUS: Hibdon Sues Over Unpaid Regular, Overtime Wages ---------------------------------------------------------- Lora Hibdon and Cathy Cassidy on behalf of themselves and all others similarly situated, Plaintiffs, v. Apple Bus Company, Case No. 4:18-cv-00897-DGK (W.D. Mo., November 13, 2018) is an action for violations of the Fair Labor Standards Act and the Missouri Minimum Wage Law, and also assert common law claims for breach of contract, unjust enrichment and fraud. The Defendant willfully and flagrantly violated the FLSA and the MMWL by, among other things, manipulating payroll to conceal the true hours worked by its employees and forcing employees to perform work-related tasks without pay, says the complaint. Plaintiffs are seeking unpaid regular wages, overtime compensation, liquidated damages and attorney's fees and costs. Plaintiff Hibdon is a resident of Peculiar, Missouri and a former hourly non-exempt employee of Defendant Apple Bus within the meaning of FLSA. Plaintiff Cassidy is a resident of Harrisonville, Missouri and a former hourly non-exempt employee of Defendant Apple Bus within the meaning of FLSA. Apple Bus is a corporation duly organized and existing under the laws of the State of Missouri, with its principal place of business at 230 E. Main Street, Cleveland, MO 64734.[BN] The Plaintiff is represented by: Matthew V. Bartle, Esq. David L. Marcus, Esq. BARTLE & MARCUS LLC 116 W. 47th Street, Suite 200 Kansas City, MO 64112 Phone: 816.285.3888 Fax: 816.222.0534 Email: Mbartle@bmlawkc.com Dmarcus@bmlawkc.com - and - M. Blake Heath, Esq. M. BLAKE HEATH TRIAL ATTORNEY LLC 917 W. 43rd Street, Suite 100 Kansas City, MO 64111 Phone: (816) 931-0048 Fax: (816) 931-4803 Email: blake@heathinjurylaw.com ASCENT CAPITAL: Unit Continues to Seek Recovery From Insurers ------------------------------------------------------------- Ascent Capital Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that Brinks Home Security continues to seek to recover additional funds under its insurance policies from the remaining carriers in relation to the settled consolidated class action suit. Brinks Home Security was named as a defendant in multiple putative class actions consolidated in U.S. District Court (Northern District of West Virginia) on behalf of purported class(es) of persons who claim to have received telemarketing calls in violation of various state and federal laws. The actions were brought by plaintiffs seeking monetary damages on behalf of all plaintiffs who received telemarketing calls made by a Brinks Home Security Authorized Dealer, or any Authorized Dealer's lead generator or sub-dealer. In the second quarter of 2017, Brinks Home Security and the plaintiffs agreed to settle this litigation for $28,000,000 ("the Settlement Amount"). In the third quarter of 2017, Brinks Home Security paid $5,000,000 of the Settlement Amount pursuant to the settlement agreement with the plaintiffs. In the third quarter of 2018, Brinks Home Security paid the remaining $23,000,000 of the Settlement Amount. Brinks Home Security is actively seeking to recover the Settlement Amount under its insurance policies held with multiple carriers. On November 1, 2018, Brinks Home Security settled its claim against one such carrier in which the carrier agreed to pay Brinks Home Security $9,750,000 in the fourth quarter of 2018. Ascent Capital said, "This amount will be recognized in the consolidated statement of operations at such time. Brinks Home Security continues to seek to recover additional funds under its insurance policies from the remaining carriers." Ascent Capital Group, Inc., through its subsidiary, Monitronics International, Inc., provides security alarm monitoring services to residential and commercial customers in the United States, Canada, the District of Columbia, and Puerto Rico. The company provides monitoring services for alarm signals arising from burglaries, fires, medical alerts, and other events through security systems at customers' premises. Ascent Capital Group, Inc. was incorporated in 2008 and is based in Greenwood Village, Colorado. AVALONBAY COMMUNITIES: Class of Tenants/Occupants in Katz Certified ------------------------------------------------------------------- In the case, KATHERINE KATZ and YUDENIA MESA, on behalf of themselves and others similarly situated, Plaintiffs, v. AVALONBAY COMMUNITIES, INC., et al., Defendants, Civil Action No. 15-2740 (JLL) (D. N.J.), Judge Jose L. Linares of the U.S. District Court for the District of New Jersey granted the Plaintiffs' Motion for Class Certification. The purported class action arises out of a January 2015 building fire that occurred in a dual-building residential complex known as the Avalon in Edgewater, New Jersey, owned and operated by the Defendant, a real estate investment and development company. The Avalon was composed of two adjacent four-story luxury apartment buildings -- the Russell Building and the River Building (also referred to as the River Mews Building). On Jan. 21, 2015, a fire swept through the Russell Building, growing large enough to be seen across the Hudson River from Manhattan. According to a Cause and Origin Report by investigators at the Bergen County Prosecutor's Office, maintenance workers employed by the Defendant started the fire while soldering pipes with a blow torch inside a wall in a first-floor apartment bathroom in the Russell Building. In the hours that followed, the fire grew so large that approximately 500 firefighters and other emergency personnel from over thirty neighboring areas were needed to extinguish it. The fire destroyed the Russell Building, rendering it "uninhabitable" and permanently displacing all of its approximately 500 residents. There were no human fatalities, but two residents were treated for minor injuries, and many Russell Building residents lost pets in the fire. On Dec. 6, 2016, the Defendant settled with a class of residents and occupants of the Russell Building. That class was defined as all residents and occupants of the Russell Building at Avalon at Edgewater as identified on the operative lease agreements as of Jan. 21, 2015, whose property in a Russell Building apartment or storage unit was destroyed by The Fire. The Defendants did not oppose certification of the Russell Building class for purposes of the settlement. The Court granted final approval of the Russell Building class settlement on July 11, 2017. The AvalonBay fire is the subject of at least 22 additional individual lawsuits against the Defendant. The action, brought on behalf of tenants and occupants of the adjacent River Building, had been consolidated with the DeMarco action but was severed when that action settled. Now, Plaintiffs Katz and Mesa seek to proceed as a class against the Defendant on behalf of River Building occupants. Although the fire did not cause as much structural damage to surrounding buildings as it did to the Russell Building, tenants and occupants of the River Building were nevertheless affected by the fire. The Plaintiffs allege that they were displaced from their homes for four days following the fire, during which time they were forced to pay for lodging, food, clothing, and other basic necessities, as they had little or no time to collect any possessions before evacuating. The Plaintiffs further allege that a "pervasive odor," "water and smoke damage," as well as "an accumulation of soot," have rendered the River Mews Building uninhabitable. The Defendant claims that it took steps to clean River Building apartments, eliminate odors, and ensure that the premises were safe for its residents. The Defendant further claims that it offered tenants certain concessions and credits to cover losses related to the four-day displacement. The Plaintiffs raise additional allegations concerning the decreased rental value of their apartments. River Building residents lost the use of certain luxury amenities located in the Russell Building that were damaged or destroyed in the fire. The Plaintiffs allege that the Defendant consequently charges lower rent for new residents in the River Mews Building, but has not reduced the Plaintiffs' rent to reflect the same decrease in rental value. The Defendants have allegedly offered to allow the Plaintiffs to cancel their leases and move out, but the Defendant has not offered to compensate the Plaintiffs for any moving expenses or losses related to increased rent payments at more expensive alternative accommodations. The Plaintiffs are faced with the unenviable choice between: a) moving out of the area altogether, b) moving into a similarly priced, but smaller residence in the area, or c) moving into a similarly sized, but significantly more expensive residence in the area. The Plaintiffs therefore seek to recover for the the loss of use or deprivation of property; reimbursement of any rent payments made for the time in which the Avalon was uninhabitable; reimbursement of any excess rent payments incurred by former River Mews tenants as a result of their displacement; recovery for any improvements made by any River Mews tenants; and other expenses incurred as a direct result of the fire, including for food, clothing, housing, relocation, transportation, medicine, medical treatment, and such other items as are necessary to continue one's activities of daily living. The Plaintiffs seek to certify claims for common law negligence, private nuisance, and breach of contract. They allege that the Defendant is liable for the losses caused by the fire because, inter alia, the Defendant used a lightweight wood known to be flammable in the construction of the Avalon buildings, the Defendant failed to install adequate sprinklers in certain areas of the buildings, the Russell Building lacked adequate fire walls, fire dampers, and fire doors, and the maintenance workers who started the fire did not promptly call 9-1-1, nor did any other employee of the Defendant. The Plaintiffs now seek to certify a class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(3) of tenants and occupants of the River Building, or, alternatively, one subclass of tenants and one subclass of occupants. The Plaintiffs' Brief in Support of their Motion for Class Certification defines the proposed unified class as all persons who were, as of Jan. 21, 2015, tenants of any apartment in the River Building in the complex known as Avalon at Edgewater or were occupying any apartment in the River Building. Alternatively, they propose two subclasses, defined as follows: a) All persons who were, as of Jan. 21, 2015, tenants of any apartment in the River Building in the complex known as Avalon at Edgewater; and b) All persons, who were as of Jan. 21, 2015, occupying any apartment in the River Building under the rights of any tenant. The Defendant opposes certification, arguing that the Plaintiffs fail to meet the requirements of Rule 23 under any proposed class definition. Judge Linares finds that the Plaintiffs have established both the requirements of Rule 23(a) and Rule 23(b)(3). He also determines that the two tenants can fairly and adequately represent the interests of a class of tenants and occupants, and finds no other reason to conclude that Plaintiffs Katz and Mesa do not have the ability and the incentive to represent the claims of the class vigorously. The proposed class representatives are therefore adequate for purposes of Rule 23(a)(4). The Judge finds that the Class Counsel -- Ralph P. Ferrara, Aaron L. Peskin, and Joshua H. Beisler of Ferrara Law Group PC -- are adequate. The counsel have decades of experience practicing complex litigation and has already invested considerable time and resources litigating the claims. The Judge is confident in the counsel's capacity and willingness to continue doing so. For the foregoing reasons, Judge Linares granted the Plaintiffs' motion to certify a class pursuant to Rule 23(b)(3). He certified the class of all persons who were, as of Jan. 21, 2015, tenants or occupants of any apartment in the River Building in the complex known as Avalon at Edgewater as identified on the operative lease agreements. A full-text copy of the Court's Oct. 24, 2018 Opinion is available at https://is.gd/ZK7PbZ from Leagle.com. JACQUELINE VORONOV, KATHERINE KATZ, on their behalf and on behalf of others similarly situated & YUDENIA MESA, Plaintiffs, represented by AARON LOUIS PESKIN -- info@ferraralawgp.com -- Ferrara Law Group, P.C. & RALPH P. FERRARA, Ferrara Law Group, P.C. AVALONBAY COMMUNITIES, INC., Defendant, represented by RONALD A. GILLER -- rgiller@grsm.com -- GORDON & REES LLP, DANIEL JASON DIMURO -- ddimuro@grsm.com -- Gordon & Rees LLP & YAO XIAO, GORDON & REES LLP. AVALONBAY COMMUNITIES, INC., Counter Claimant, represented by RONALD A. GILLER, GORDON & REES LLP, DANIEL JASON DIMURO, Gordon & Rees LLP & YAO XIAO, GORDON & REES LLP. KATHERINE KATZ, on their behalf and on behalf of others similarly situated & JACQUELINE VORONOV, Counter Defendants, represented by AARON LOUIS PESKIN, Ferrara Law Group, P.C. & RALPH P. FERRARA, Ferrara Law Group, P.C.. BANNER BANK: Partly Compelled to Produce E-mail Accounts in Bolding ------------------------------------------------------------------- In the case, KELLY BOLDING, et al., Plaintiff, v. BANNER BANK, Defendants, Case No. C17-0601RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, (i) granted in part the Plaintiffs' Motion to Compel Discovery Responses; and (ii) denied without prejudice the Plaintiffs' request for an evidentiary hearing. The Plaintiffs served interrogatories and requests for production on the Defendant in October 2017 seeking, in part, copies of mortgage or residential loan officers' work-related calendars and schedules ("Outlook calendars") and any training materials related to the recording and payment of overtime. In June 2018, the Plaintiffs requested production of email accounts of the named and the opt-in Plaintiffs. After two meet and confers and numerous promises that production would be made, the Plaintiffs requested that the Defendant prioritize the production of Outlook calendars and email accounts related to four individuals who were to be deposed in the near future. On July 6, 2018, the Defendant notified the Plaintiffs that they had not retained calendars or email accounts of mortgage or residential loan officers ("MLOs") who had left their employ before joining the litigation with the exception of Kelly Bolding. Her email account had been saved as part of a 2015 employment discrimination lawsuit filed by another employee. The Outlook calendars and email accounts of Rick Clark, who was employed by the Defendant when he opted into the lawsuit, have been produced. Judge Lasnik finds that there is no serious dispute regarding the relevance of the MLO's work-related calendars and email accounts. The calendars and email accounts would help establish the hours kept by MLOs and, when compared with the employee timesheets and pay records, help ascertain whether all hours were reported and/or paid. The Defendant shall, therefore, produce any and all work-related calendars, schedules, and email accounts for all class members and any Idaho MLOs who join the action. If it has not already done so, the Defendant will immediately take whatever steps are necessary to preserve the records of Idaho MLOs who may yet join the litigation. The Judge is concerned regarding the Defendant's document preservation activities and its seeming inability to explain or describe its efforts to search for and produce the requested information. Most troubling, it appears that the Defendant continued deleting the putative class members' calendars and accounts not only after it was put on notice of potential wage and hour claims in July 20162 and after the class action was filed in April 2017, but even after the Plaintiffs served their initial discovery requests. The Judge deems an evidentiary hearing premature at this juncture, but will require more specific information and supplemental discovery responses so that the record is clear. The Defendant asserts that it has produced all of its written training materials related to the recording and payment of overtime and has checked with MLO managers to determine whether they have produced or disseminated such materials. The Judge will direct the Defendant to amend its discovery responses to affirmatively state whether all responsive documents have been produced. For all of the foregoing reasons, Judge Lasnik granted in part the Plaintiffs' motion to compel. The Defendant shall, within 21 days of the date of the Order: (i) produce all responsive work-related calendars and schedules (generally referred to as Outlook calendars) for all class members; (ii) produce all responsive email accounts for all class members; (iii) search current employees' email accounts and produce all emails or Outlook invitations written to or from class members from April 17, 2014, forward; (iv) describe in detail the efforts that resulted in the production; (v) state whether any other types of documents or electronic files exist that could substitute for missing Outlook calendars and email accounts as the Plaintiffs attempt to determine when each MLO was actually working; (vi) state when each class members' Outlook calendars and email accounts were destroyed or otherwise rendered inaccessible; (vii) preserve the Outlook calendars and email accounts of any Idaho MLOs who have not yet joined this litigation; and (viii) amend its discovery responses to affirmatively state that all Outlook calendars, email accounts, and training materials in its possession have been produced (any caveats to that statement must be set forth in great detail). The Judge denied the Plaintiffs' request for an evidentiary hearing without prejudice. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/cqYGIt from Leagle.com. Kelly Bolding, individually and on behalf of a class of all others similarly situated & Michael Manfredi, individually and on behalf of a class of all others similarly situated, Plaintiffs, represented by Charlotte Sanders -- blf@blankenshiplawfirm.com -- BLANKENSHIP LAW FIRM PS, Richard E. Goldsworthy, THE BLANKENSHIP LAW FIRM & Scott Crispin Greco Blankenship -- sblankenship@blankenshiplawfirm.com -- THE BLANKENSHIP LAW FIRM. Sarah Ward, individually and on behalf of a class of all others similarly situated, Plaintiff, represented by Scott Crispin Greco Blankenship, THE BLANKENSHIP LAW FIRM. Banner Bank, a Washington Corporation, Defendant, represented by Kenneth E. Payson -- kenpayson@dwt.com -- DAVIS WRIGHT TREMAINE, Laura-Lee S. Williams -- lauraleewilliams@dwt.com -- DAVIS WRIGHT TREMAINE, Ryan Coby Hess -- ryanhess@dwt.com -- DAVIS WRIGHT TREMAINE & Sheehan H. Sullivan Weiss -- sulls@dwt.com -- DAVIS WRIGHT TREMAINE. BIZQUALIFY LLC: Hu et al. Seek to Certify Class & Collective Action ------------------------------------------------------------------- QIUZI HU, an individual, EDWIN RAMIREZ, an individual, IVAN RONCERIA, an individual, WENZHI FEI, an individual, on behalf of themselves and all others similarly situated, the Plaintiffs, vs. JOSE M. PLEHN-DUJOWICH, a.k.a. JOSE M. PLEHN, an individual; BIZQUALIFY LLC, a California limited liability company; and POWERLYTICS, INC., a Delaware corporation, the Defendants, Case No. 3:18-cv-01791-EDL (N.D. Cal.), the Plaintiffs will move the Court on December 18, 2018, for an order: 1. conditionally certifying the case as a collective action under 29 U.S.C. section 216(b); "all persons who enrolled in the Global Financial Data Project while residing in, or who performed work for the project in, the United States or any territory or possession of the United States (Fair Labor Standards Act Collective); 2. certifying the case as a class action, pursuant to Rules 23(a) and 23(b)(3); Class: "all persons who enrolled in the Global Financial Data Project. Excluded from the Class are Defendants Jose M. Plehn- Dujowich, BizQualify LLC, and Powerlytics, Inc.'s ("Defendants") officers and directors and the immediate families of the Defendants’ officers and directors. Also excluded from the Class are the Defendants" legal representatives, heirs, successors or assigns, and any entity in which Defendants have or have had a controlling interest (the "Class'); and California Subclass: "all members of the Class who resided in California during any portion of their participation in the Global Financial Data Project, and/or who performed work in California for the Global Financial Data Project, at any point (the "California Subclass"). 3. certify Plaintiffs as representatives of the Class and FLSA Collective; 4. certify Plaintiffs Hu, Ramirez, and Fei as representatives of the California Subclass; 5. appointing Plaintiffs' counsel of record, Dhillon Law Group Inc., to serve as counsel to the FLSA Collective, Class, and California Subclass, pursuant to 29 U.S.C. Rule 23(g); 6. authorizing notice to be provided by email, and by hyperlink sent by WeChat, a Chinese social media and messaging platform, where counsel receives notification that an email failed to deliver to any particular email address, to the FLSA Collective of their right to opt in under 29 U.S.C. section 216(b); and 7. authorizing notice to be provided by email, and by hyperlink sent by WeChat where counsel receives notification that an email failed.[CC] Attorneys for Qiuzi Hu, Edwin Ramirez, Ivan Ronceria, Wenzhi Fei, Proposed Class and Subclass, and Collective Action: Harmeet K. Dhillon, esq. Krista L. Baughman, Esq. Gregory R. Michael, esq. DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 E-mail: harmeet@dhillonlaw.com kbaughman@dhillonlaw.com gmichael@dhillonlaw.com BRISTOL MYERS: Klein Moynihan Discusses Jurisdiction Ruling ----------------------------------------------------------- David O. Klein, Esq. -- dklein@kleinmoynihan.com -- of Klein Moynihan Turco LLP, in an article for Lexology, reports that a judge in the United States District Court for the Northern District of Illinois recently issued a Telephone Consumer Protection Act ("TCPA") ruling that will make it harder for fax TCPA class actions to succeed. How has the court made fax TCPA class actions more problematic for plaintiffs? In an all too familiar tale for those operating in the telemarketing space, this case involved a plaintiff whose alleged receipt of two unsolicited facsimile advertisements was used as the basis for bringing a nationwide class action lawsuit against the business whose services were advertised in the subject faxes. The defendant was not a resident of Illinois. The defendant argued that there was a jurisdictional defect with respect to any putative class member asserting a TCPA claim for receipt of a fax outside of Illinois. For this reason, the defendant moved to strike the class definition to dismiss those claims. The Court ultimately agreed with defendant and granted the request. Relying on the recent United States Supreme Court case of Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco City, the Court struck the class definition to the extent that the plaintiff sought to assert claims on behalf of non-residents that did not receive faxes in Illinois. As a matter of constitutional due process, the Court concluded, it would be improper for a court to assert personal jurisdiction over an out-of-state defendant in connection with the claims of non-resident class members when the subject claim has no connection with the state in which the lawsuit is pending. Klein Moynihan Turco previously blogged about TCPA-related liability resulting from non-compliant fax marketing practices. The TCPA regulatory mandates applicable to fax marketing are both nuanced and technical. While this case represents a positive, perhaps even momentous, development in the law insofar as limiting the potential financial exposure of fax-related TCPA violations, those operating in the marketing industry have learned that the cost of non-compliance with these mandates can be devastating. As such, it is imperative for businesses operating in this space to work closely with knowledgeable counsel prior to engaging in any fax marketing campaign. [GN] CAESARS ENTERPRISE: Workers Seek OT Pay for Off-the-Clock Work -------------------------------------------------------------- Michael D'Amore, Adam Bycina and Richard D'Hondt, on behalf of themselves, and all others similarly situated, Plaintiffs, v. Caesars Enterprise Services, LLC, Caesars Entertainment Corporation, and Does 1 through 50, inclusive, Defendant, Case No. 18-cv-01990, (D. Nev., October 15, 2018) seeks to recover unpaid overtime, interest, attorneys' fees, costs and expenses for breach of employment contract and for violation of the Fair Labor Standards Act and Nevada Revised Statutes 608.040. Defendants operate a hotel and casino where Plaintiffs worked as table games service personnel. They claim to have rendered off-shift work without being compensated. [BN] The Plaintiff is represented by: David R. Markham, Esq. Michael J. Morphew, Esq. Maggie K. Realin, Esq. THE MARKHAM LAW FIRM 750 B Street, Suite 1950 San Diego, CA 92101 Tel: (619) 399-3995 Fax: (619) 615-2067 Email: dmarkham@markham-law.com mrealin@markham-law.com mmorphew@markham-law.com - and - Leon M. Greenberg, Esq. Dana Sniegocki, Esq. LEON GREENBERG, P.C. 2965 South Jones Boulevard, Suite E–3 Las Vegas, NV 89146 Tel: (702) 383-6085 Fax: (702) 385-1827 Email: leongreenberg@overtimelaw.com dana@overtimelaw.com CAPITALA FINANCE: Bid to Dismiss Amended Paskowitz Suit Underway ---------------------------------------------------------------- Capitala Finance Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the defendants in Paskowitz v. Capitala Finance Corp., et al., have moved to dismiss the amended complaint. On December 28, 2017, an alleged stockholder filed a putative class action lawsuit complaint, Paskowitz v. Capitala Finance Corp., et al., in the United States District Court for the Central District of California (case number 2:17-cv-09251-MWF-AS) (the "Paskowitz Action"), against the Company and certain of its current officers on behalf of all persons who purchased or otherwise acquired the Company's common stock between January 4, 2016 and August 7, 2017. On January 3, 2018, another alleged stockholder filed a putative class action complaint, Sandifer v. Capitala Finance Corp., et al., in the United States District Court for the Central District of California (case number 2:18-cv-00052-MWF-AS) (the "Sandifer Action"), asserting substantially similar claims on behalf of the same putative class and against the same defendants. On February 2, 2018, the Sandifer Action was transferred, on stipulation of the parties, to the United States District Court for the Western District of North Carolina. The Sandifer Action was voluntarily dismissed on February 28, 2018. On March 1, 2018, the Paskowitz Action was transferred, on stipulation of the parties, to the United States District Court for the Western District of North Carolina (case number 3:18-cv-00096-RJC-DSC). On June 19, 2018, the plaintiffs in the Paskowitz Action filed their amended complaint. The complaint, as currently amended, alleges certain violations of the securities laws, including, inter alia, that the defendants made certain materially false and misleading statements and omissions regarding the Company's business, operations, and prospects between January 4, 2016 and August 7, 2017. The plaintiffs in the Paskowitz Action seek compensatory damages and attorneys' fees and costs, among other relief, but did not specify the amount of damages being sought. Defendants have moved to dismiss the amended complaint. Capitala Finance said, "While the Company intends to vigorously defend itself in this litigation, the outcome of these legal proceedings cannot be predicted with certainty." Capitala Finance Corp. is a Business Development Company specializing in traditional mezzanine, senior subordinated and unitranche debt, first-lien and second-lien loans, equity investments in sponsored and non-sponsored lower and traditional middle market companies. The company is base in Charlotte, North Carolina. CERTIFIED CREDIT: Golubchik Files FDCPA Suit in New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against Certified Credit & Collection Bureau, et al. The case is styled as Yosef Golubchik, individually and on behalf of all others similarly situated, Plaintiff v. Certified Credit & Collection Bureau, John Does 1-25, Defendants, Case No. 3:18-cv-16114 (D. N.J., Nov. 13, 2018). The Plaintiff filed the case under Fair Debt Collection Practices Act. Certified Credit & Collection Bureau, Inc. is a legitimate collection agency founded and incorporated in 1971. CCCB specializes in collecting medical debt and has over 40 years of experience in medical collections and accounts receivable management.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com CHARTER COMM: Jimenez Appeals C.D. Calif. Ruling to Ninth Circuit ----------------------------------------------------------------- Plaintiff Carla Jimenez filed an appeal from a court ruling in her lawsuit entitled Carla Jimenez v. Charter Communications, Inc., et al., Case No. 2:18-cv-06480-DOC-RAO, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the case (assigned Case No. BC709676) was removed from the Superior Court of the State of California to the District Court. Ms. Jimenez alleges that the broadband company promises residential internet service at speeds it cannot reliably deliver. She paid for the company's internet package for her and her family on the premise that the "blazing fast" Internet speeds were just the thing needed for work and play. However, she contends, Charter fails to say that only customers plugging their devices directly into the modem can expect to get that service. The appellate case is captioned as Carla Jimenez v. Charter Communications, Inc., et al., Case No. 18-80152, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiff-Petitioner CARLA JIMENEZ, individually and on behalf of all others similarly situated, is represented by: Doug Mahaffey, Esq. MAHAFFEY LAW GROUP 20162 SW Birch Street, Suite 300 Newport Beach, CA 92660 Telephone: (949) 833-1400 E-mail: Dougm@mahaffeylaw.com - and - Jamin S. Soderstrom, Esq. SODERSTROM LAW PC 3 Park Plaza, Suite 100 Irvine, CA 92614 Telephone: (949) 667-4700 E-mail: jamin@soderstromlawfirm.com Defendants-Respondents CHARTER COMMUNICATIONS, INC., and SPECTRUM MANAGEMENT HOLDING COMPANY, LLC, are represented by: Matthew Brill, Esq. Andrew Prins, Esq. Daniel Scott Schecter, Esq. Nicholas L. Schlossman, Esq. LATHAM & WATKINS LLP 555 Eleventh Street, NW, Suite 1000 Washington, DC 20004-1304 Telephone: (202) 637-2200 E-mail: matthew.brill@lw.com andrew.prins@lw.com daniel.schecter@lw.com nicholas.schlossman@lw.com CHASER NEW YORK: Faces Garey ADA Suit in New York ------------------------------------------------- A class action lawsuit has been filed against Chaser New York, Inc. The case is styled as Kevin Garey on behalf of himself and all others similarly situated, Plaintiff v. Chaser New York, Inc., Defendant, Case No. 1:18-cv-10561 (S.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Chaser is a contemporary clothing line dedicated to the evolution of style.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. The Law Offices of Jonathan Shalom 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CHEF DRIVEN: Violates ADA, Garey Suit Asserts --------------------------------------------- A class action lawsuit has been filed against Chef Driven, LLC. The case is styled as Kevin Garey on behalf of himself and all others similarly situated, Plaintiff v. Chef Driven, LLC, Defendant, Case No. 1:18-cv-10516 (S.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Chef Driven, LLC is a privately held company in Minnetonka, MN and is a Single Location business, categorized under Caterers.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. The Law Offices of Jonathan Shalom 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CHIPOTLE MEXICAN: Claims in Bellwether Data Breach Suit Narrowed ---------------------------------------------------------------- In the case, BELLWETHER COMMUNITY CREDIT UNION, on behalf of itself and all others similarly situated, Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., Defendant, Civil Action No. 17-cv-1102-WJM-STV (D. Colo.), Judge William J. Martinez of the U.S. District Court for the District of Colorado (i) granted in part and denied in part the Defendant's Motion to Dismiss all of the Plaintiffs' claims; and (ii) denied the Plaintiffs' Motion to Strike Exhibits A-C Attached to Defendant's Motion to Dismiss. The case arises out of a 2017 data breach of Chipotle computer system and point of service terminals which resulted in the theft of customers' credit card and debit card data. Plaintiffs Bellwether and Alcoa Community Federal Credit Union are financial institutions whose members patronized Chipotle during that period and whose data were compromised, forcing the Plaintiffs to cancel and replace members' credit and debit cards and refund any fraudulent payment resulting from the data breach. The Plaintiffs bring the lawsuit against Chipotle on behalf of themselves and those similarly situated alleging 11 causes of action: negligence, negligence per se, misappropriation of trade secrets, a claim for declaratory judgment, and violation of the unfair competition laws of Arkansas, California, Florida, Maine, Massachusetts, New Hampshire, and Vermont. Bellwether filed a complaint on May 4, 2017 in the District. On Sept. 1, 2017, Judge Martinez granted Bellwether and Chipotle's motion to consolidate the action with Alcoa Community Federal Credit Union v. Chipotle Mexican Grill, Inc., Case No. 17-cv-1283-RM-STV (D. Colo. filed May 26, 2017). Thereafter, the Plaintiffs filed a consolidated amended complaint. Bellwether and Alcoa both allege claims of negligence, negligence per se, misappropriation of trade secrets, and a claim under the Declaratory Judgment Act. The Plaintiffs jointly assert their misappropriation and Declaratory Judgment Act claims on behalf of a putative nationwide class of financial institutions, and their negligence claims on behalf of a putative statewide class in each of Arkansas, California, Florida, Maine, Massachusetts, New Hampshire, and Vermont. Bellwether asserts violations of state unfair competition laws on behalf of itself and putative state-wide classes in California, Florida, Maine, Massachusetts, New Hampshire, and Vermont. Alcoa asserts a similar putative class claim under Arkansas's unfair competition law. Each proposed statewide class is defined as all Financial Institutions—including, but not limited to, banks and credit unions -- that either (a) are located in Arkansas, California, Florida, Maine, Massachusetts, New Hampshire, and Vermont that issue payment cards, including credit and debit cards, or perform, facilitate, or support card-issuing services, whose customers made purchases from Chipotle stores from March 1, 2017 to the present; or (b) have customers located in Arkansas, California, Florida, Main, Massachusetts, New Hampshire, and Vermont that were issued payment cards used at Chipotle stores from March 1, 2017 to the present. Chipotle moves to dismiss all claims in the amended complaint, attaching excerpts of Visa and MasterCard's rules for issuing banks. The Plaintiffs filed a separate Motion to Strike. Chipotle filed two notices of supplemental authority in support of its Motion. Judge Martinez denied the Plaintiffs' Motion to Strike. He finds that the Plaintiffs' challenge to the authenticity of the documents does not impact the Court's decision to consider the contracts. Chipotle explains the genesis of the documents. One of the attachments was produced by MasterCard in responses to the Plaintiffs' subpoenas. The other documents are or were publicly available. Moreover, the Plaintiffs, as signatories to the agreements, should be able to determine whether the documents are accurate or whether they are inauthentic, and have asserted nothing that would make the Court doubt the authenticity of the agreements. The Judge will consider the documents as evidence of the existence of a network of contracts that govern the payment card system, and thus denied Plaintiffs' Motion to Strike. The Judge granted in part and denied in part the Defendant's Motion. He dismissed with prejudice Claim 1 (Negligence), Claim 3 (Misappropriation of Trade Secrets), Claim 6 (Florida Deceptive and Unfair Trade Practices Act), Claim 7 (Maine Unfair Trade Practices Act), Claim 8 (Massachusetts Consumer Protection Act), and Claim 10 (Vermont Consumer Fraud Act). He dismissed without prejudice Claim 2 (Negligence per se) and Claim 4 (Arkansas Deceptive Trade Practices). The Judge denied the remainder of the Defendant's Motion to Dismiss. In the instant proceeding, Bellwether contends that it continues to suffer injury as additional fraudulent charges are being made on payment cards issued to Chipotle customers. The Judge finds that Bellwether plausibly claims that it could be injured in the future as a result of the breach. Thus, Bellwether has stated a claim for relief under the UCL. He thus denied Chipotle's Motion with respect to Claim 5. As to Claim 9, the Judge finds that Bellwether has sufficiently alleged that Chipotle, at a minimum, recklessly disregarded risks to its data security systems when it decided not to upgrade its POS systems. Such a failure could "raise an eyebrow," as required by New Hampshire's rascality test. Thus, he finds that Bellwether has stated a claim under NHCPA. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/nhAVxD from Leagle.com. Bellwether Community Credit Union, on behalf of itself and all others similarly situated, Plaintiff, represented by Bryan L. Bleichner -- #bbleichner@chestnutcambronne.com -- Chestnut & Cambronne, P.A., Arthur Mahony Murray -- amurray@murray-lawfirm.com -- Murray Law Firm, Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- Zimmerman Reed, P.L.L.P., Carey Alexander -- CALEXANDER@SCOTT-SCOTT.COM -- Scott & Scott, Attorneys at Law, LLP, Caroline Thomas White -- CThomas@murray-lawfirm.com -- Murray Law Firm, Erin Green Comite -- ecomite@scott-scott.com -- ScottScott, Attorneys at Law, LLP, Gary F. Lynch -- glynch@carlsonlynch.com -- Carlson Lynch Sweet Kilpela & Carpenter LLP, Karen Hanson Riebel -- khriebel@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., Kate M. Baxter-Kauf -- kmbaxter-kauf@locklaw.com -- Lockridge Grindal Nauen P.L.L.P., Kenneth Joseph Wink -- kwink@murray-lawfirm.com -- Murray Law Firm, Rachel M. Bohman, Lockridge Grindal Nauen P.L.L.P., Stephen John Teti, Scott & Scott, LLP & Joseph Peter Guglielmo -- jguglielmo@scott-scott.com -- ScottScott, Attorneys at Law, LLP. Alcoa Community Federal Credit Union, Consol Plaintiff, represented by Karen Sharp Halbert, Roberts Law Firm, P.A., Erin Green Comite , ScottScott, Attorneys at Law, LLP & Joseph Peter Guglielmo, ScottScott, Attorneys at Law, LLP. Chipotle Mexican Grill, Inc., Defendant, represented by Paul Gregory Karlsgodt -- pkarlsgodt@bakerlaw.com -- Baker & Hostetler, LLP & Sam Anthony Camardo -- scamardo@bakerlaw.com -- Baker & Hostetler, LLP. CHONG QING: Basurto Suit Seeks Unpaid Overtime Premiums ------------------------------------------------------- Francisco Basurto, on behalf of himself and others similarly situated, Plaintiff, v. Chong Qing Xiao Mian Inc., Chong Qing Xiao Mian I, Inc., Chong Qing Noodle House, Lina Wang and Xiu Lan Huang, Defendants, Case No. 18-cv-09393 (S.D. N.Y., October 15, 2018), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest and attorneys' fees and costs pursuant to the Fair Labor Standards Act and unpaid "spread of hours" premium pursuant to New York Labor Law and the New York State Wage Theft Prevention Act. Defendants own and operate a Chinese restaurant known as "Chong Qing Noodle House" located at 796 Ninth Avenue, New York NY where Basurto worked as a food preparer/kitchen worker, dishwasher and food delivery worker. He did not receive written wage notices identifying his regular hourly rate of pay and corresponding overtime rate of pay. He claims to have worked over forty hours per week without a designated break and was not paid proper overtime compensation. [BN] Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue, 6th Floor New York, NY 10017 Tel. (212) 209-3933 Fax. (212) 209-7102 Email: info@jcpclaw.com CINEMARK USA: Faces Silken Brown Class Action --------------------------------------------- Cinemark USA, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the company is defending a putative class action suit entitled, Silken Brown v. Cinemark USA, Inc., Case No. 3:13cv05669, in the United States District Court for the Northern District of California, San Francisco Division. The case presents putative class action claims for penalties and attorney's fees arising from alleged violations of the California wage statement law. The claim is also asserted as a representative action under the California Private Attorney General Act (PAGA) for penalties. The Court granted class certification. The company denies the claims, denies that class certification is appropriate, denies that the plaintiff has standing to assert the claims alleged and is vigorously defending against the claims. The company denies any violation of law and plans to vigorously defend against all claims. Cinemark USA said, "The Company is unable to predict the outcome of this litigation or the range of potential loss." Cinemark USA, Inc., together with its subsidiaries, operates in the motion picture exhibition industry. The company operates in two segments, U.S. Markets and International Markets. The company was founded in 1984 and is headquartered in Plano, Texas. Cinemark USA, Inc. is a subsidiary of Cinemark Holdings, Inc. CIRCLE K: Court OKs Leave to File FAC in ADA Suit ------------------------------------------------- The United States District Court for the Northern District of Alabama, Southern Division, issued a Memorandum Opinion granting Plaintiff's Motion for Leave to File His First Amended Class Action Complaint in the case captioned WILLIE MOODY, JR., Plaintiff, v. CIRCLE K STORES, INC., Defendant. Case No. 2:18-cv-00435-RDP. (N.D. Ala.). Plaintiff Willie Moody, Jr. commenced this action against Circle K Stores, Inc. (Circle K), asserting a single claim under Title III of the Americans with Disabilities Act (ADA). Circle K claims the Plaintiff's proposed Amended Complaint is futile because it is moot and thus urges the court to deny the Plaintiff leave to amend. In particular, Circle K contends that the Plaintiff's Amended Complaint is rendered moot by the settlement of a previous ADA lawsuit against Circle K: Badger v. Circle K Stores, Inc., No. 2:16-cv-01185-DSC-RCM (W.D. Pa. filed Aug. 8, 2016). The Badger Agreement required Circle K to spend up to $500,000 per year to maintain or achieve substantial compliance with the ADA related to accessibility of common areas, parking lots, and access routes, as well as, interior accessibility features, of its Retail Stores in the United States. This case is controlled by Haynes v. Hooters of Am., LLC, 893 F.3d 781 (11th Cir. 2018). There, a visually impaired plaintiff who used software to read and navigate internet websites sued Hooters restaurants under the ADA because its website was not compatible with the plaintiff's software. The plaintiff sought an injunction requiring Hooters to (1) alter its website to make it accessible to, and usable by, individuals with disabilities to the full extent required by the ADA and (2) continually update and maintain its website to ensure that it remains fully accessible to, and useable by, visually impaired individuals. Hooters argued the plaintiff's case was moot because of a prior settlement agreement that resolved an earlier lawsuit against Hooters. The settlement agreement required Hooters to place an accessibility notice on its website within six months and to improve access on its website within twelve months to conform to the recognized industry standard for website accessibility. Based on the prior settlement agreement, the district court dismissed the plaintiff's complaint as moot. The Eleventh Circuit reversed, holding that the case was not moot for three separate reasons. First, though Hooters may well have been in the process of updating its website to comply with the ADA, there was nothing in the record demonstrating that Hooters [had] successfully done so. The court thus concluded that it cannot be said that the issues are no longer live or that the parties lack a legally cognizable interest in the outcome. Second, some of the relief the plaintiff sought in the instant lawsuit was different from the relief afforded by the prior settlement. Nothing in the prior settlement required Hooters to continually update and maintain its website to ensure that it remains fully accessible, as the injunction the plaintiff sought would have. Thus, even if the prior settlement supplied the plaintiff with much of the relief he sought, there was still a live controversy about whether the plaintiff could receive an injunction to force Hooters to make its website ADA compliant or to maintain it as such. Third and finally, the plaintiff was not a party to the prior settlement agreement and thus could not enforce the agreement if Hooters chose not to remediate its website in accordance with the agreement. A full-text copy of the District Court's November 5, 2018 Memorandum Opinion is available at https://tinyurl.com/y79nyxjx from Leagle.com. Willie Moody, Jr, Plaintiff, represented by John Allen Fulmer, II, FULMER LAW FIRM, Andrew C. Allen -- aallen@burkeharvey.com -- Burke Harvey, LLC & Peter H. Burke -- pburke@burkeharvey.com -- BURKE HARVEY LLC. Circle K Stores Inc, Defendant, represented by Christopher W. Deering -- christopher.deering@ogletree.com -- OGLETREE DEAKINS NASH SMOAK & STEWART PC & Mary O'Keefe O'Neill -- mary.oneill@ogletreedeakins.com -- OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC. COAST PROFESSIONAL: Kaykov Files FDCPA Class Action --------------------------------------------------- A class action lawsuit has been filed against Coast Professional, Inc. The case is styled as David Kaykov, individually and on behalf of all others similarly situated, Plaintiff v. Coast Professional, Inc., Defendant, Case No. 1:18-cv-06442 (E.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under Fair Debt Collection Practices Act. Coast Professional, Inc. offers educational receivable collection services. The company provides loan consolidation, default account rehabilitation, contingency collection, borrower tracing, password assistance, and online account management services.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. Marcus Zelman LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Phone: (732) 695-3282 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com COMPUTER CREDIT: Golubchik Sues Over Debt Collection Practices -------------------------------------------------------------- A class action lawsuit has been filed against Computer Credit Inc., et al. The case is styled as Yosef Golubchik, individually and on behalf of all others similarly situated, Plaintiff v. Computer Credit Inc., John Does 1-25, Defendants, Case No. 2:18-cv-16116 (D. N.J., Nov. 13, 2018). The Plaintiff filed the case under Fair Debt Collection Practices Act. Computer Credit Inc. integrates with most patient accounting systems and leverages the power inside for a comprehensive solution for self-pay revenue cycle management.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. Stein Saks, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 ext 101 Fax: (201) 282-6501 Email: ysaks@steinsakslegal.com COVERALL NORTH: Third Circuit Appeal Filed in Richardson Suit ------------------------------------------------------------- Defendant Sujol LLC filed an appeal from a court ruling in the lawsuit styled Ericka Richardson, et al. v. Coverall North America Inc., et al., Case No. 3-18-cv-00532, in the U.S. District Court for the District of New Jersey. The nature of suit is stated as contract action. The appellate case is captioned as Ericka Richardson, et al. v. Coverall North America Inc., et al., Case No. 18-3393, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellees ERICKA RICHARDSON and LUIS A. SILVA, On behalf of themselves and all other similarly situated persons, are represented by: Anthony S. Almeida, Esq. Ravi Sattiraju, Esq. THE SATTIRAJU LAW FIRM 116 Village Boulevard Princeton, NJ 08540 Telephone: (609) 365-9335 E-mail: rsattiraju@sattirajulawfirm.com Defendant-Appellee COVERALL NORTH AMERICA INC. is represented by: David S. Sager, Esq. SEDGWICK 101 Eisenhower Parkway, Suite 300 Roseland, NJ 07068 Telephone: (973) 597-2500 Defendant-Appellant SUJOL LLC, DBA Coverall of Southern NJ, is represented by: R. Scott Fahrney, Jr., Esq. Jaime R. Placek, Esq. Mark J. Semeraro, Esq. KAUFMAN SEMERARO & LEIBMAN LLP Two Executive Drive, Suite 530 Fort Lee, NJ 07024 Telephone: (201) 947-8855 E-mail: sfahrney@northjerseyattorneys.com jplacek@northjerseyattorneys.com msemeraro@northjerseyattorneys.com CTAC HOLDINGS: Garey Suit Asserts ADA Violation ----------------------------------------------- A class action lawsuit has been filed against CTAC Holdings LLC. The case is styled as Kevin Garey on behalf of himself and all others similarly situated, Plaintiff v. CTAC Holdings LLC, Defendant, Case No. 1:18-cv-10568-VSB (S.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Ctac Holdings LLC is a privately held company in Brooklyn, NY and is a Single Location business, categorized under Chocolate.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. The Law Offices of Jonathan Shalom 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CUMMINS PACIFIC: Court Denies Class Certification in Towle Suit --------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order denying Plaintiffs' Motion for Class Certification in the case captioned JUAN TOWLE, on behalf of himself and all other aggrieved non-exempt employees, Plaintiff, v. CUMMINS PACIFIC, LLC, et al., Defendants. Case No. 18cv83-LAB (JLB). (S.D. Cal.). Plaintiff Juan Towle sued Defendant Cummins Pacific, LLC (CP) on behalf of himself and a class of similarly situated employees, alleging that it maintained a meal and rest break policy that was facially unlawful under California law. Towle seeks to certify the following class and subclasses, defined as: Unlawful Meal Period Policy Subclass: All of Defendant's non-exempt California employees who were subject to Defendant's Meal and Rest Breaks policy and who were not relieved of all duties for a first meal period by the end of the fifth hour of work and/or a second meal period by the end of the tenth hour of work between December 4, 2013 and May 31, 2016. Unlawful Meal Period Premium Pay Practice Subclass: All of Defendant's non-exempt California employees who were not relieved of all duties for a first meal period by the end of the fifth hour of work and/or a second meal period by the end of the tenth hour of work, and who were not compensated with one hour of pay for all such instances between December 4, 2013 and the date of judgment. Unlawful Rest Period Policy Subclass: All of Defendant's non-exempt California employees who were subject to Defendant's Meal and Rest Breaks policy and who did not receive a first, paid 10-minute rest period during work shifts of 3.5 but less than 4 hours, a second rest period during shifts greater than 6 hours but less than 8 hours, or a third rest period during shifts greater than 10 hours but less than 12 hours, any time between December 4, 2013 and May 31, 2016. Unlawful Rest Period Premium Pay Practice Subclass: All of Defendant's non-exempt California employees who were not compensated with one hour of pay for all instances where they did not receive a first, paid 10 minute rest period during work shifts of 3.5 but less than 4 hours, a second rest period during shifts greater than 6 hours but less than 8 hours, or a third rest period during shifts greater than 10 hours but less than 12 hours, any time between December 4, 2013 and the date of judgment. Unlawful Derivative Waiting Time Penalty Subclass: All of Defendant's former non-exempt California employees who were not provided timely payments of all final wages as required by the California Labor Code upon separation of employment during any time between December 4, 2013 and the date of judgment. CP's opposition focuses primarily on what it sees as Towle's inability to prove commonality and the related requirement of predominance. However, CP also argues that even if commonality were satisfied, Towle is a uniquely ill-suited class representative and that typicality is therefore also lacking. Numerosity, Adequacy, Superiority The parties agree that there are approximately 600 putative class members, and Towle argues that this meets the requirements of numerosity. CP does not contest this point. The Court finds that the putative class meets the numerosity requirement. Adequacy is similarly met here. Here, the Plaintiff's counsel represent that they have significant expertise and experience in the area of wage-and-hour class actions. CP does not dispute this, and the Court finds that adequacy is satisfied. Likewise with superiority. CP does not contest superiority, and the Court is not aware of any other pending litigation that would render a class action an inferior method for adjudicating Plaintiffs' claims. The Court finds superiority is met. Commonality and Predominance Commonality is the heart of this motion for class certification. Boiled down, Towle argues that CP for years maintained a meal and rest break policy that was facially unlawful under California law. In Towle's view, the facially unlawful policy standing alone is sufficient to satisfy the requirements of commonality because it applied to all CP employees. CP counters that the policy at issue was contained in a handbook intended only to highlight the company's various policies, and that the break policies of CP's twelve California offices varied significantly. Towle views CP's written break policy as unlawful because California law requires that employee meal breaks be taken prior to the fifth hour of work not the sixth hour of work, as provided in CP's policy, and rest breaks be taken every four hours or major fraction thereof not simply every four hours. Towle submits expert testimony to try to support an argument that CP violated California law in practice as well as on paper. His expert, Dr. Fountain, purported to analyze time cards from a sample of 55 class members and, in doing so, found a variety of meal and rest break violations. For example, Dr. Fountain found that a Meal Period Event, i.e., a violation occurred on over one-half of all Relevant Shifts. And, 100% of the Sample Class Members incurred one or more Meal Period Events. But even in this, CP points out significant methodological flaws. Fountain's analysis counts only the number of shifts in which no rest break was taken. It does not account for the differences between offices and positions that might explain why a rest break was not taken on a given day. CP's expert, by contrast, found that meal periods were recorded in 94.2% of shifts and that the variety of positions helps explain why breaks were not recorded in the remaining 5.8% of shifts. The Court cannot conclude from this evidence that there was a common pattern of violations in practice. The Court, of course, does not dispute that CP may (or may not) have violated California's rest break requirements. That's not the question before the Court. The question before the Court is whether it did so in a way that is common to the class and would permit litigation on a class-wide basis. The Court cannot conclude that it did. Finally, permitting certification in a situation like this would run afoul of the policy rationales underlying class certification. Not only do the twelve offices each have differing break policies, many of the offices have both union and non-union employees, each of which are governed by other distinct rules. As the Supreme Court has noted, dissimilarities within the proposed class are what have the potential to impede the generation of common answers. In this case, the dissimilarities make it unlikely that there will be common answers. For example, affirmative defenses applicable to employees in one office are likely to be entirely distinct from those applicable to employees in another office or even from those applicable to other employees in the same office. These types of differences are likely to impede the resolution of otherwise-common issues. Even if the Court could find commonality, it could not find predominance. It is not enough simply that common questions of law or fact exist; predominance is a comparative concept that calls for measuring the relative balance of common issues to individual ones. Here issues specific to each office would predominate over the class-wide and company-wide questions. Predominance is therefore not satisfied. Typicality CP contends that even if commonality were satisfied, Towle is uniquely ill-suited to be the class representative. The Court agrees. The purpose of the typicality requirement is to assure that the interest of the named representative aligns with the interests of the class. Where a Plaintiff's unique background and factual situation require him to prepare to meet defenses that are not typical of the defenses which may be raised against other members of the proposed class, certification should be denied. Towle worked for CP as a field technician. In this capacity, he functioned mostly autonomously and outside the office, taking breaks when appropriate. Towle's claims would bear little resemblance to, for example, the claims of an administrative assistant in the Sacramento office, whose work schedule and breaks might be more regimented and dictated by her office's management. The Court therefore finds Towle's claims atypical of the class. A full-text copy of the District Court's November 5, 2018 Order is available at https://tinyurl.com/y7ot9a39 from Leagle.com. Juan Towle, on behalf of himself and all other aggrieved non-exempt employees, Plaintiff, represented by Erik Dos Santos -- edossantos@hoguebelonglaw.com -- Hogue & Belong, Jeffrey L. Hogue -- jhogue@hoguebelonglaw.com -- Hogue & Belong & Tyler Jay Belong -- tbelong@hoguebelonglaw.com -- Hogue & Belong APC. Cummins Pacific, LLC, a Delaware Limited Liability Company, Defendant, represented by Damien Delaney, Akin Gump Strauss Hauer and Feld, John Paul Nordlund -- john.nordlund@jacksonlewis.com -- Jackson Lewis P.C. & Mia Farber -- Mia.Farber@jacksonlewis.com -- Jackson Lewis LLP. DEFY MEDIA: Guinane Sues Over WARN Act Violation ------------------------------------------------ The Plaintiff in the lawsuit captioned Georgina Guinane, on behalf ofherself and all others similarly situated, Plaintiff, v. Defy Media, LLC, Defendant, Case No. 2:18-cv-09584 (C.D. Cal., November 13, 2018) brings this action on behalf of herself and the other similarly situated former employees who worked for Defendant and who were terminated without cause, as part of, or as the result of, the mass layoffs or plant closings ordered by Defendant on or about November 6, 2018, and within 30 days of that date and who were not provided 60 days advance written notice of their terminations by Defendant, as required by the Worker Adjustment and Retraining Notification Act. The Defendant unlawfully terminated the employment of the members of the Class without cause on their part and without giving them 60 days advance written notice in violation of the WARN Act, the complaint asserts. Defendant is liable for Plaintiff and all similarly situated employees to recover 60 days wages benefits, says the complaint. Plaintiff was employed by Defendant and worked at the Defendant's facility located at 8750 Wilshire Blvd, Suite 200, Beverly Hills, California until her termination on or about November 6, 2018. Defy Media, Inc. operates a media company that creates and distributes digital content, including gaming and other entertainment. It is a New York corporation with its headquarters located at 1001 Avenue of the Stars, Suite 701, New York, New York 10001.[BN] The Plaintiff is represented by: Gail Lin, Esq. OUTTEN & GOLDEN LLP 601 S. Figueroa St, Ste 4050 Los Angeles, CA 90017 Phone: (323) 673-9900 Fax: (646) 509-2073 Email: gl@outtengolden.com - and - Jack A. Raisner, Esq. Rene S. Roupinian, Esq. Robert N. Fisher, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Phone: (212) 245-1000 Email: rsr@outtengolden.com jar@outtengolden.com rfisher@outtengolden.com DOMINO'S PIZZA: Blanton Sues Over Employee No-poach Policy ---------------------------------------------------------- Harley Blanton, on behalf of himself and all others similarly situated, Plaintiff, v. Domino's Pizza Franchising LLC, Domino's Pizza Master Issuer LLC, Domino's Pizza LLC and Domino's Pizza, Inc., Defendants, Case No. 18-cv-13207, (E.D. Mich., October 15, 2018) seeks to recover damages and obtain injunctive relief for injuries caused under Section 1 of the Sherman Act. Domino's is a pizza company with stores in all 50 U.S. states and in multiple international markets with approximately 93% of its 5,646 U.S. stores as franchise restaurants. Blanton was employed by a Domino's franchisee-owned restaurant in Port Orange, Florida, beginning in January 2017 as a delivery driver and an in-store employee, and was trained and acted as a store morning manager. Domino's franchisees have agreed not to compete with each other with respect to manager hiring in explicit contractual terms contained in franchisees' contracts. Because Blanton was unable to transfer to a competing Domino's franchise restaurant, his only options were to stay at the Dunlawton Avenue store, or quit and start over at an entry job and wage in another setting. The no-poach and no-hire agreement among Domino's franchisees suppressed Plaintiff's wages, inhibited his employment mobility and lessened his professional work opportunities, contends the complaint. [BN] The Plaintiff is represented by: E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. THE MILLER LAW FIRM, PC 950 W. University Dr., Suite 300 Rochester, MI 48307 Tel: (248) 841-2200 Fax: (248) 652-2852 Email: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com - and - Derek Y. Brandt, Esq. MCCUNE WRIGHT AREVALO, LLP P.O. Box 487 Edwardsville, IL 62025 Tel: (618) 307-6116 Fax: (618) 307-6161 Email: dyb@mccunewright.com - and - Richard D. McCune, Esq. MCCUNE WRIGHT AREVALO, LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Tel: (909) 557-1250 Fax: (909) 557-1275 Email: rdm@mccunewright.com dcw@mccunewright.com - and - Walter W. Noss, Esq. Stephanie A. Hackett, Esq. Sean C. Russell, Esq. SCOTT + SCOTT ATTORNEYS AT LAW LLP 600 West Broadway, Suite 3300 San Diego, CA 92101 Tel: (619) 233-4565 Email: wnoss@scott-scott.com shackett@scott-scott.com sean.russell@scott-scott.com - and - Michelle E. Conston, Esq. SCOTT+SCOTT ATTORNEYS AT LAW LLP The Helmsley Building, Esq. 230 Park Avenue, 17th Floor New York, NY 10169 Tel: (212) 223-6444 Email: mconston@scott-scott.com EMILIO PUCCI: Diaz Files ADA Suit in S.D. New York -------------------------------------------------- A class action lawsuit has been filed against Emilio Pucci, LTD. The case is styled as Edwin Diaz on behalf of himself and all others similarly situated, Plaintiff v. Emilio Pucci, LTD., Defendant, Case No. 1:18-cv-10507 (S.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Emilio Pucci S.r.l. designs and markets ready-to-wear, handbags, shoes, and eyewear. The company's products include skirts, hats, gowns, dresses, trousers, sportswear, and hand-painted or embroidered folkloric motifs. It sells its products through its store network and an online store. Emilio Pucci, Ltd operates as a subsidiary of LVMH Moet Hennessy Louis Vuitton S.E.[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 ENHANCED RECOVERY: Court Certifies Class in Volkman FDCPA Suit -------------------------------------------------------------- In the case, DERICK VOLKMAN, on behalf of himself and all others similarly situated, Plaintiffs, v. ENHANCED RECOVERY COMPANY, LLC, d/b/a ERC, Defendant, Case No. 18-C-91 (E.D. Wis.), Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin (i) granted Volkman's motion for class certification, and denied Volkman's Civil L.R. motion to seal an exhibit attached to the Declaration of Philip D. Stern. Volkman alleges that the Defendant violated the Fair Debt Collection Practices Act ("FDCPA") by mailing initial template collection letters to Wisconsin residents that fail to unambiguously identify the creditor. His allegations arise from a letter he received from ERC dated Jan. 17, 2017. Volkman alleges that the letter is a computer generated template form letter used by ERC to collect debts from Wisconsin residents. The letter states, "Your recently disconnected Time Warner Cable Account has been forwarded to us to assist you in the resolution of your balance due." Volkman asserts that ERC violated the FDCPA by mailing letters that fail to identify a creditor, the name of the entity to whom the debt is owed, or the name of the entity who placed the accounts for collection. He seeks statutory damages on behalf of himself and the proposed class for the purported violation. Volkman filed a motion for class certification on May 30, 2018, seeking to represent the class of all persons with addresses in the State of Wisconsin to whom Enhanced Recovery Company, LLC mailed an initial written communication to collect a debt between Jan. 17, 2017 and Feb. 7, 2018, which was not returned as undeliverable, and which stated your recently disconnected Time Warner Cable account has been forwarded to us to assist you in the resolution of your balance due. Volkman also filed a Civil L.R. motion to seal an exhibit attached to the Declaration of Philip D. Stern. Judge Griesbach holds that Volkman has fulfilled the requirements of Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure. He also finds that Volkman's motion to seal does not analyze the applicable legal criteria or contend that any document contains a protectable trade secret or otherwise legitimately may be kept from public inspection despite its importance to the resolution of the litigation. For these reasons, the Judge granted Volkman's motion for class certification, and denied Volkman's motion to seal. He certified the class of all persons with addresses in the State of Wisconsin to whom Enhanced Recovery Company, LLC mailed an initial written communication to collect a debt between Jan. 17, 2017 and Feb. 7, 2018, which was not returned as undeliverable, and which stated your recently disconnected Time Warner Cable account has been forwarded to us to assist you in the resolution of your balance due. The Judge appointed the counsel of record for Volkman as the class counsel. Within 30 days of the date of the Order, the class counsel will provide the Court with a proposed notice to be provided to the potential class members consistent with Federal Rule of Civil Procedure 23(c)(2)(B). The class counsel will consult with ERC before submitting the proposed notice. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/qcHWz4 from Leagle.com. Derick Volkman, Plaintiff, represented by Francis R. Greene, Stern Thomasson LLP, Philip D. Stern -- philip@sternthomasson.com -- Stern Thomasson LLP & Andrew T. Thomasson -- andrew@sternthomasson.com -- Stern Thomasson LLP. Enhanced Recovery Company LLC, doing business as ERC, Defendant, represented by Daniel L. Polsby -- dpolsby@clausen.com -- Clausen Miller PC, Paige M. Neel -- pneel@clausen.com -- Clausen Miller PC, Patrick L. Breen -- pbreen@clausen.com -- Clausen Miller PC & Scott S. Gallagher -- ssgallagher@sgrlaw.com -- Smith Gambrell & Russell LLP. ETRADE FINANCIAL: 2d Cir. Affirms Schwab Securities Suit Dismissal ------------------------------------------------------------------ In the case, CRAIG L. SCHWAB, Individually and on Behalf of All others Similarly Situated, Plaintiff-Appellant, v. E*TRADE FINANCIAL CORPORATION, E*TRADE SECURITIES LLC, PAUL T. IDZIK, DAVID HERBERT, ROGER A. LAWSON, and KARL A. ROESSNER, Defendants-Appellees, Case No. 18-461 (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's Jan. 22, 2018 opinion and order granting the Defendants-Appellees' motion to dismiss Schwab's Third Amended Complaint ("TAC") for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The TAC was brought under Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. Sections 78j(b) and 78t, and Exchange Act Rule 10b-5, 17 C.F.R. Section 240.10b-5. The Defendants-Appellees are: (1) E*TRADE Financial, a Delaware corporation with executive offices in New York City; (2) E*TRADE Securities LLC ("E*TRADE"), a wholly-owned subsidiary of E*TRADE Financial; (3) Paul T. Idzik, who was CEO and a director at E*TRADE Financial from 2013 to 2016; and (4) Karl A. Roessner, who was the Executive VP and General Counsel at E*TRADE from 2009 up until 2016, at which point he became CEO. E*TRADE Financial is a financial services company that provides brokerage and related products and services to retail investors. Its subsidiary, E*TRADE, is a registered broker-dealer and the primary provider of brokerage products and services to E*TRADE Financial's customers. These customers submit orders for the purchase or sale of securities which are then routed for execution to various "venues," such as stock exchanges, market makers, and other alternative trading systems. Schwab was a customer of E*TRADE. He alleges that between July 12, 2011 and July 22, 2016, E*TRADE violated the duty of best execution, which requires broker-dealers to use reasonable diligence to ascertain the best market for the subject security and buy or sell in such market so that the resultant price to the customer is as favorable as possible under prevailing market conditions. Schwab's allegations of misconduct center on two main points: (1) that E*TRADE entered into agreements with third parties that resulted in E*TRADE's failing to deliver best execution; and (2) that E*TRADE focused on the maximization of revenues rather than on delivering best execution to its clients. The district court dismissed Schwab's Section 10(b) claim because it determined that Schwab had failed adequately to plead reliance. Schwab relies exclusively on Affiliated Ute to argue that the TAC adequately pleads reliance. The Appellate Court is not persuaded. The Affiliated Ute presumption of reliance under the Court's precedent is appropriate in cases involving primarily a failure to disclose, where a defendant both (1) had a duty to disclose and (2) omitted a material fact. It agrees with the district court that Schwab has failed to allege such circumstances. Both in the TAC and in his briefing before the Court, Schwab acknowledges that E*TRADE made many statements during the Class Period affirming its commitment to executing orders in compliance with the duty of best execution. Schwab argues that the case nevertheless involves primarily E*TRADE's alleged omission of information about its abusive order routing practices. But such an argument is contrary to the Court's decision in Waggoner v. Barclays PLC. The Waggoner Court concluded that the purported "omissions" were simply the inverse of the plaintiffs' misrepresentation allegations, because the only thing they omitted was the truth that the statement misrepresents. Thus, the plaintiffs' case was one primarily about misrepresentations, not omissions, and the Affiliated Ute presumption did not apply. Just as the Waggoner defendant stated that its alternative trading system was protected from abusive trading practices, E*TRADE repeatedly and specifically affirmed that it complied with the duty of best execution. Moreover, Waggoner determined that Affiliated Ute applies only when the original rationale for Affiliated Ute is present: when there are "no positive statements," and "reliance as a practical matter is impossible to prove. Schwab therefore failed adequately to plead reliance and his Section 10(b) claim was properly dismissed. Because Schwab's Section 10(b) claim was properly dismissed, moreover, Schwab's Section 20(a) claim also necessarily fails and was properly dismissed. The Court has considered Schwab's remaining arguments and finds them to be without merit. Accordingly, it affirmed the judgment of the district court. A full-text copy of the Court's Oct. 26, 2018, 2018 Summary Order is available at https://is.gd/9FSqz8 from Leagle.com. NICHOLAS I. PORRITT -- nporritt@zlk.com -- CHRISTOPHER J. KUPKA -- ckupka@zlk.com -- Levi & Korsinsky, LLP, New York, NY., For Plaintiff-Appellant. MARC L. GREENWALD -- marcgreenwald@quinnemanuel.com -- COREY WORCESTER -- coreyworcester@quinnemanuel.com -- JULIA M. BESKIN -- juliabeskin@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY; FAITH GAY -- fgay@selendygay.com -- Selendy & Gay PLLC, New York, NY., For Defendants-Appellees. EVA'S 8TH STREET: Delivery Staff Hit Tip Credit Deductions From Pay ------------------------------------------------------------------- Armando Calderon Caralampio, Byron Alirio Ramos Baten and Martin Mejia Canan, individually and on behalf of all others similarly situated, Plaintiff, v. Eva's 8th Street Food, LLC, Steve Ayala, George Ayala, Jack E. Jacobs, Nicholas Doe, Lisardo Doe and Jose Doe, Defendants, Case No. 18-cv-09385 (S.D. N.Y., October 15, 2018), seeks to recover unpaid minimum, overtime and spread-of-hours wages pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law, including applicable liquidated damages, interest, attorneys' fees and costs. Defendants own, operate, or control a healthy foods restaurant, located at 11 W 8th Street, New York, NY 10011 under the name "Eva's Kitchen" where Plaintiffs were employed as delivery workers. However, they were required to spend a considerable part of their work day performing non-tipped duties, thus Defendants were not entitled to take a tip credit because their non-tipped duties exceeded 20% of each workday. They worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that they worked. Defendants also failed to maintain accurate record-keeping of the hours worked, says the complaint. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com FIDELITY NATIONAL: Suit vs. Reliance Trust Company Still Ongoing ---------------------------------------------------------------- Fidelity National Information Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the class action lawsuit against Reliance Trust Company, is still ongoing. Reliance Trust Company ("Reliance"), the Company's subsidiary, is named as a defendant in a class action arising out of its provision of services as the discretionary trustee for a 401(k) Plan (the "Plan") for one of its customers. Plaintiffs in the action seek damages and attorneys' fees, as well as equitable relief, on behalf of Plan participants for alleged breaches of fiduciary duty and prohibited transactions under the Employee Retirement Income Security Act of 1974. The action also makes claims against the Plan's sponsor and record-keeper. Reliance is vigorously defending the action and believes that it has meritorious defenses. Pre-trial discovery has now been completed. Reliance contends that no breaches of fiduciary duty or prohibited transactions occurred and that the Plan suffered no damages. Plaintiffs allege damages of approximately $125 million. Fidelity National said, "While we are unable at this time to estimate more precisely the potential loss or range of loss because of unresolved questions of fact and law, we believe that the ultimate resolution of the matter will not have a material impact on our financial condition. We do not believe a liability for this action is probable and, therefore, have not recorded a liability for this action." Fidelity National Information Services, Inc. operates as a financial services technology company in the United States and internationally. It operates through Integrated Financial Solutions and Global Financial Solutions segments. The company was founded in 1968 and is headquartered in Jacksonville, Florida. FITBIT INC: Pursues Private Arbitration in PurePulse(R) Suit ------------------------------------------------------------ Fitbit, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 29, 2018, that parties in PurePulse(R) heart rate tracking device related suit are moving forward in private arbitration with Kate McLellan. On January 6, 2016 and February 16, 2016, two purported class action lawsuits were filed against the Company in the U.S. District Court for the Northern District of California, alleging that the PurePulse(R) heart rate tracking technology does not consistently and accurately record users' heart rates. Plaintiffs allege common law claims, as well as violations of various states' false advertising, unfair competition, and consumer protection statutes, and seek class certification, injunctive and declaratory relief, restitution, an award of unspecified compensatory damages, exemplary damages, punitive damages, and statutory penalties and damages, an award of reasonable costs and expenses, including attorneys' fees, and other further relief as the Court may deem just and proper. On April 15, 2016, the plaintiffs filed a Consolidated Master Class Action Complaint and, on May 19, 2016, filed an Amended Consolidated Master Class Action Complaint. On January 9, 2017, the Company filed a motion to compel arbitration. On October 11, 2017, the Court granted the motion to compel arbitration. Plaintiffs filed a motion for reconsideration, and that motion was denied on January 24, 2018. On February 20, 2018, plaintiffs filed a Second Amended Consolidated Master Class Action Complaint ("SAC") on behalf of plaintiff Rob Dunn, the only plaintiff not ordered to arbitration, as a purported class action. The SAC alleges the same common law claims, as well as violations of false advertising, unfair competition, and consumer protection statutes of California and Arizona, and also seeks class certification, injunctive and declaratory relief, restitution, an award of unspecified compensatory damages, exemplary damages, punitive damages, and statutory penalties and damages, an award of reasonable costs and expenses, including attorneys' fees, and other further relief as the Court may deem just and proper. On March 13, 2018, the Company filed a motion to dismiss for failure to state a claim and separately moved to strike the class allegations. The Court dismissed the claims for revocation of acceptance, violation of California's Song-Beverly Consumer Warranty Act, and unjust enrichment, and allowed the remaining claims pending amendment to the complaint with further details. Plaintiff filed a Third Amended Complaint on June 19, 2018. The Court granted the motion to strike and ordered the plaintiff to amend to make clear that he is seeking to represent a class of opt-outs only, but that plaintiff would be free to amend in the event Fitbit's arbitration agreement was found to be unenforceable. In response to an April 3, 2018 arbitration demand from Kate McLellan, one of the original plaintiffs who was compelled to arbitration, the Company attempted to resolve the individual claim with Ms. McLellan. At the May 31, 2018 hearing, the Court expressed concern that the Company was "picking off" McLellan and thereby undermining the arbitration option and the Court's prior order on arbitration, and ordered additional briefing. On July 24, 2018, the Court awarded the plaintiffs their attorneys' fees on the motion practice, but denied plaintiffs' request that the arbitration right should be waived as a sanction. The parties are moving forward in private arbitration with Ms. McLellan. The Company believes that the plaintiffs' allegations are without merit, and intends to vigorously defend against the claims. Because the Company is in the early stages of this litigation matter, the Company is unable to estimate a reasonably possible loss or range of loss, if any, that may result from this matter. Fitbit, Inc., a technology company, provides health solutions in the United States and internationally. The company offers a line of devices, including Fitbit Surge, Fitbit Blaze, Fitbit Charge 2, Alta HR, Alta, Fitbit Flex 2, Fitbit One, and Fitbit Zip activity trackers; Fitbit Ionic smartwatches; Fitbit Aria 2 Wi-Fi smart scales; and a range of accessories, such as bands and frames for its devices, as well as Fitbit Flyer, a wireless headphone designed for fitness. Fitbit, Inc. was founded in 2007 and is headquartered in San Francisco, California. FITBIT INC: Securities Suits in California Concluded ---------------------------------------------------- Fitbit, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 29, 2018, that the federal and class action cases have been dismissed with prejudice. On January 11, 2016, a putative securities class action was filed in the U.S. District Court for the Northern District of California naming as defendants the Company, certain of its officers and directors, and the underwriters of the Company's initial public offering (the "IPO"). On May 10, 2016, the Court appointed the Fitbit Investor Group (consisting of five individual investors) as lead plaintiff, and an Amended Complaint was filed on July 1, 2016. Plaintiffs allege violations of the Securities Act of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of 1934, as amended, based on alleged materially false and misleading statements about the Company's products between October 27, 2014 and November 23, 2015. Plaintiffs seek to represent a class of persons who purchased or otherwise acquired the Company's securities (i) on the open market between June 18, 2015 and May 19, 2016; and/or (ii) pursuant to or traceable to the IPO. Plaintiffs seek class certification, an award of unspecified compensatory damages, an award of reasonable costs and expenses, including attorneys' fees, and other further relief as the Court may deem just and proper. On July 29, 2016, the Company filed a motion to dismiss. The court denied the motion on October 26, 2016. On April 26, 2017, the Company filed a motion for summary judgment, which is still pending. On April 28, 2016, a putative class action lawsuit alleging violations of the Securities Act was filed in the Superior Court of California, County of San Mateo, naming as defendants the Company, certain of its officers and directors, the underwriters of the IPO, and a number of its investors. Plaintiffs allege that the IPO registration statement contained material misstatements about the Company's products. Plaintiffs seek to represent a class of persons who purchased the Company's common stock in and/or traceable to the IPO and/or the November 2015 follow-on public offering (the "Secondary Offering"). Plaintiffs seek class certification, an award of unspecified compensatory damages, an award of reasonable costs and expenses, including attorneys' fees, and other further relief as the Court may deem just and proper. On May 17, 2016, a similar class action lawsuit was filed in the Superior Court of California, County of San Francisco. The cases have now been consolidated in the County of San Francisco. On April 7, 2017, the Court granted a motion to dismiss the Section 11 claim based on the Secondary Offering and stayed the cases. On January 8, 2018, the plaintiffs in the federal and class action cases filed their motion for preliminary approval of settlement of the putative federal and state class actions for $33.3 million, which the Company accrued for as of December 31, 2017. On January 19, 2018, the court entered an order preliminarily approving the proposed settlement, and on April 20, 2018, the court approved the final settlement. The federal and class action cases have been dismissed with prejudice. Fitbit, Inc., a technology company, provides health solutions in the United States and internationally. The company offers a line of devices, including Fitbit Surge, Fitbit Blaze, Fitbit Charge 2, Alta HR, Alta, Fitbit Flex 2, Fitbit One, and Fitbit Zip activity trackers; Fitbit Ionic smartwatches; Fitbit Aria 2 Wi-Fi smart scales; and a range of accessories, such as bands and frames for its devices, as well as Fitbit Flyer, a wireless headphone designed for fitness. Fitbit, Inc. was founded in 2007 and is headquartered in San Francisco, California. FLEX PHARMA: Amended Complaint in Rumaldo Suit Due Dec. 10 ---------------------------------------------------------- Flex Pharma, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the court-appointed lead plaintiff in Teofilina Rumaldo v. Flex Pharma, Inc., et al., has until December 10, 2018, to file an amended complaint. On June 19, 2018, a putative class action lawsuit was filed against the company and certain of its current executive officers in the United States District Court for the Southern District of New York, captioned Teofilina Rumaldo v. Flex Pharma, Inc., et al., Case No. 1:18-cv-05493. The complaint purports to be brought on behalf of stockholders who purchased the company's common stock between November 6, 2017 and June 12, 2018. The complaint generally alleges that the company and certain of its current officers violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder by making allegedly false and misleading statements or omissions regarding the company's business, operational and compliance policies. Specifically, the complaint alleges that the company overstated the viability and approval prospects for its product candidate FLX-787 for the treatment of MND and CMT and, as a result, the company's public statements were materially false and misleading at all relevant times. The complaint seeks unspecified damages, attorneys' fees, and other costs. The court-appointed lead plaintiff has until December 10, 2018 to file an amended complaint. Flex Pharma said, "We deny any allegations of wrongdoing and intend to vigorously defend against this lawsuit. We are unable, however, to predict the outcome of this matter at this time. Moreover, any conclusion of this matter in a manner adverse to us and for which we incur substantial costs or damages not covered by our directors' and officers' liability insurance would have a material adverse effect on our financial condition and business. In addition, the litigation could adversely impact our reputation and divert management's attention and resources from other priorities, including the execution of business plans and strategies that are important to our business, any of which could have a material adverse effect on our business." Flex Pharma, Inc., a biotechnology company, develops and commercializes products for the treatment of muscle cramps, spasms, and spasticity associated with neurological conditions and exercise in the United States. It operates in two segments, Consumer Operations and Drug Development. Flex Pharma, Inc. was founded in 2014 and is headquartered in Boston, Massachusetts. FRONTLINE ASSET: Dow Appeals E.D.N.Y. Decision to Second Circuit ---------------------------------------------------------------- Plaintiff Marlyn Dow filed an appeal from the District Court's order dated September 24, 2018, and judgment dated September 26, 2018, issued in the lawsuit styled Dow v. Frontline Asset Strategies, LLC, et al., Case No. 17-cv-6888, in the U.S. District Court for the Eastern District of New York (Central Islip). The nature of suit is stated as consumer credit. The appellate case is captioned as Dow v. Frontline Asset Strategies, LLC, et al., Case No. 18-3107, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiff-Appellant Marlyn Dow, on behalf of herself and all others similarly situated, is represented by: Benjamin Wolf, Esq. JONES, WOLF & KAPASI, LLC 1 Grand Central Place 60 East 42nd Street New York, NY 10165 Telephone: (646) 459-7971 E-mail: bwolf@legaljones.com Defendant-Appellee Frontline Asset Strategies, LLC, is represented by: Peter George Siachos, Esq. GORDON & REES, LLP 18 Columbia Turnpike Florham Park, NJ 07932 Telephone: (973) 549-2500 E-mail: psiachos@gordonrees.com GDS HOLDINGS: Rosen Law Firm to Lead Securities Class Suit ---------------------------------------------------------- In the case, HAMZA RAMZAN, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. GDS HOLDINGS LIMITED, WILLIAM WEI, HUANG, and DANIEL NEWMAN, Defendants, Civil Action No. 4:18CV539-ALM-KPJ (E.D. Tex.), Magistrate Judge Kimberly C. Priest Johnson of the U.S. District Court for the Eastern District of Texas, Sherman Division, (i) granted Yuanli He's unopposed Motion for Appointment as Lead Plaintiff and Approval of Lead Plaintiff's Selection The Rosen Law Firm, P.A., as the Lead Counsel, and Steckler Gresham Cochran PLLC, as the Liaison Counsel; (ii) denied Maria M. Queri's Motion for Appointment as Lead Plaintiff and Approval of Counsel; and (iii) granted parties' Joint Unopposed Motion to Set a Deadline for Lead Plaintiff to Identify and Serve the Operative Complaint and for An Extension of Time to Respond to Operative Complaint. On Aug. 2, 2018, the Plaintiff filed the present complaint ("Complaint") against the Defendants as a putative class action arising under the Securities Exchange Act of 1934, including the Private Securities Litigation Reform Act of 1995. The Complaint alleges that between March 29, 2018, and July 31, 2018, the Defendants made false and/or misleading statements and/or failed to disclose that: (1) GDS overstated the value of certain data centers it had acquired; (2) GDS failed to maintain adequate internal controls; and (3) as a result, the Defendants' statements about its business, operations and prospects were materially false and/or misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuits claim that investors suffered damages. On July 31, 2018, Blue Orca Capital published a report stating, among other things, that GDS was inflating the purchase price of undisclosed related party transactions of various data centers. On this news, shares of GDS fell $12.92 per share, or over 37%, to close at $21.83 per share on July 31, 2018. On Oct. 5, 2018, the Plaintiff served Defendant GDS with the Complaint. Absent an extension of time, Defendant GDS's response to the Complaint is due on Oct. 26, 2018. Defendants William Wei Huang and Daniel Newman have not yet been served with the Complaint, but their counsel, who also represent GDS, agreed to accept service of the Complaint. On Aug. 2, 2018, the Plaintiff caused a public notice to be filed pursuant to Section 21D(a)(3)(A)(i) of the Reform Act, publicizing the existence of the lawsuit and the putative class, and notifying putative class members of their right to move for the Lead Plaintiff status by Oct. 1, 2018. Two lead plaintiff motions, Yuanli He's Motion and Queri's Motion are currently pending before the Court. Yuanli He is represented by the same counsel representing the Plaintiffs in the action. Pursuant to 15 U.S.C. Section 78u-4(a)(3)(B)(i), the Court must appoint a Lead Plaintiff no later than Nov. 1, 2018. Once selected, the Lead Plaintiff will appoint the Lead Counsel, subject to the Court's approval, and identify an operative complaint or file an amended complaint. The Joint Scheduling Motion represents that the parties have agreed, subject to the Court's approval, that in the interests of judicial economy, conservation of time and resources, and orderly management of the action: (1) the Defendants should not be required to respond to the current Complaint; (2) the Lead Plaintiff should have 60 days upon its appointment as the Lead Plaintiff to file and serve an amended complaint (or to designate the current complaint as the operative complaint); (3) the Defendants should have 60 days thereafter to respond to the operative complaint; and (4) if the Defendants move to dismiss the operative complaint, the Lead Plaintiff should have 60 days to file its opposition, the Defendants should have 30 days to file their reply, and that no further briefing will be permitted absent agreement by the parties or approval of the Court upon good cause shown. Magistrate Judge Johnson finds that Yuanli He's claims will fairly and adequately protect the interests of the class. Yuanli He has selected The Rosen Law Firm, P.A., as the Lead Counsel, and Steckler Gresham Cochran PLLC, as the Liaison Counsel. Both firms are experienced in the area of securities litigation and class actions, and have successfully prosecuted securities litigations and securities fraud class actions on behalf of investors. The Judge is satisfied that the selected counsel possess the skill and knowledge to prosecute the action effectively and expeditiously and to ensure that the members of the class will receive the best legal representation available. Furthermore, Yuanli He's significant loss provides a sufficient interest in the outcome of the case to ensure vigorous advocacy, which squarely aligns with the interests of the class. Based on the foregoing, the Judge finds Yuanli He has satisfied the requirements of Rule 23 at this stage of litigation. With respect to the deadline for responsive pleadings, the Magistrate Judge finds there is good cause to enlarge the period of time within which a defendant must serve its responsive pleading. The competing lead plaintiff motions are pending before the Court until entry of the Order. Now that the Magistrate has appointed Yuanli He as the Lead Plaintiff, Yuanli He may either designate the operative pleading or file and serve an amended complaint. For the foregoing reasons, Magistrate Judge Johnson (i) granted Yuanli He's Motion, (ii) denied Queri's Motion, and (iii) granted the Joint Scheduling Motion. Yuanli He is designated as the Lead Plaintiff, and the Magistrate Judge approved Yuanli He's selection of the Lead Counsel. No Defendant is required to respond to the Complaint already filed in the action. Within 60 days of the Order, the Lead Plaintiff will identify an operative complaint or file an amended complaint that becomes the operative complaint. The time for all the Defendants to answer, move, or otherwise plead in response to any complaint filed in the matter is extended to 60 days following service of the operative complaint by the Lead Plaintiff. Should any Defendant move to dismiss the operative complaint, the Lead Plaintiff will have 60 days to file its opposition to any motion to dismiss, and the Defendants will have 30 days to file any reply. No additional submission is permitted absent agreement by the parties or approval by the Court upon good cause shown. Nothing in the Order will be deemed to constitute a waiver of any rights, defenses, objections or any other application to any court that any party may have with respect to the claims set forth in the Complaint already filed in the action. A full-text copy of the Court's Oct. 26, 2018, 2018 Order and Opinion is available at https://is.gd/bYFsuq from Leagle.com. Hamza Ramzan, Plaintiff, represented by R. Dean Gresham -- dean@stecklerlaw.com -- Steckler Gresham Cochran LLP, Yu Shi -- yshi@rosenlegal.com -- The Rosen Law Firm, PA & Laura Kirstine Rogers -- krogers@stecklerlaw.com -- Steckler Gresham Cochran LLP. GDS Holdings Limited, William Wei Huang & Daniel Newman, Defendants, represented by James G. Kreissman -- jkreissman@stblaw.com -- Simpson Thacher & Bartlett, Alan C. Turner -- aturner@stblaw.com -- Simpson Thacher & Bartlett & Clyde Moody Siebman -- clydesiebman@siebman.com -- Siebman Forrest Burg & Smith LLP. Yuanli He, Movant, represented by Laura Kirstine Rogers, Steckler Gresham Cochran LLP, Phillip Kim -- pkim@rosenlegal.com -- The Rosen Law Firm, PA & Yu Shi, The Rosen Law Firm, PA. Maria M. Queri, Movant, represented by Willie Charles Briscoe -- wbriscoe@thebriscoelawfirm.com -- The Briscoe Law Firm. GOOGLE LLC: Supreme Court Hears Arguments in Cy Pres Dispute ------------------------------------------------------------ Jeff Cox, Esq. -- jcox@ficlaw.com -- of Faruki Ireland Cox Rhinehart & Dusing PLL, in an article for Lexology, reports that all Hallow's Eve proved a fitting date for oral argument in the Supreme Court of the United States in Frank v. Gaos, (S. Ct. No. 17-961), a case exploring the often-mysterious component to class action settlements known as "cy pres." The specific question before the Court asked: "Whether, or in what circumstances, a cy pres award of class action proceeds that provide no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.'" While the Court certainly examined this question, it became evident early on that the Justices sought a broader discourse on Rule 23 practice; whether class action settlements were adequately addressing class members' grievances; and whether it was a legislative or judicial responsibility to attempt to clarify the acceptable bounds of class action cy pres awards. The case, on appeal from the 9th Circuit (869 F.3d (2017)), arose from a 2010 class action filed by Paloma Gaos and a few other class representatives against Google, Inc. alleging multiple counts, including fraud and invasion of privacy related to Google's sharing of plaintiffs' search terms with websites that the named plaintiffs had visited. That class action (on behalf of the then-129 million Google search users) was contested by Google as meritless, but in order to resolve the lawsuit, Google agreed to an $8.5 million settlement. $5.3 million would be allocated to six cy pres recipients, with the remaining $3.2 million dedicated to plaintiffs' attorneys' fees, class administration costs and incentive payments to the named plaintiffs. Individual class members, meanwhile, would receive no direct payment or benefits. The six cy pres beneficiaries, it was agreed, would each "receive anywhere from 15 to 21% of the money, provided that they agreed ‘to devote the funds to promote public awareness and education, and/or to support research, development, and initiatives, related to protecting privacy on the Internet.'" The cy pres recipients were chosen after submitting proposals, but as objectors were quick to point out, several of the cy pres beneficiaries had ties to class counsel or to the Defendant, Google. Class Objectors Ted Frank and Melissa Holyoak of the Competitive Enterprise Institute challenged whether the settlement (which besides awarding $5.3 million to several third-parties, would pay plaintiffs' counsel $2.125 million, while affording class members no recovery) was consistent with the mandates of Federal Rule of Civil Procedure 23 -- that a class action settlement be "fair, reasonable, and adequate." While in similar circumstances at least three other federal appellate courts previously held otherwise, the 9th Circuit affirmed the trial court's approval of the settlement. The 9th Circuit acknowledged that "cy pres-only settlements are considered the exception, not the rule"[4] but affirmed the district court's ruling that the cost of verifying and ‘sending out very small payments to millions of class members would exceed the total monetary benefit obtained by the class,'" and also agreed with the lower court that the class action was "the superior means of adjudicating this controversy" contrary to Objectors' argument that the case was inconsistent with Federal Rule of Civil Procedure 23(b)(3). The 9th Circuit wrote extensively on the adequacy of the cy pres recipients and the process of their selection, and affirmed the district court's finding that class counsel sufficiently supported their loadstar rationale for the award of over $2.125 million in attorneys' fees. The Objectors then sought review from the Supreme Court ("SCOTUS"). The extensive briefing of the parties earlier this year, not to mention the appearance of over 30 amici curiae proved a harbinger of the interest in SCOTUS' review of the class action issues. The October 31, 2018 argument featured lengthy questioning from every member of the bench besides Justice Thomas. Argument was heard from Petitioner Frank; Respondents Google, Inc., and the class representatives; and from amicus curiae United States. What proved most striking was the scope of the Justices' inquiries ranging from constitutional standing (the jurisdictional inquiry seemed to trouble many of the Justices); to Rule 23 class action practice generally (not just the superiority requirements of Rule 23(b)(3)) such as class notice, administration and claims processing; the nature of cy pres settlements, and how that aspect of class settlements varies between cases (a) with payouts to class members with residual to cy pres recipients, and (b) settlements resolved exclusively via cy pres payments to third-parties but with no relief to class members. The Court also pondered its role in sorting out these various questions, as opposed to leaving the legislating of clarifications to Rule 23 practice to Congress. On this question, interestingly, several Justices openly pondered the Court's role vis-a-vis Congress ranging from Justices Ginsburg and Sotomayor to Justices Gorsuch and Kavanaugh, representing ideological opposites. The Supreme Court's treatment of cy pres class settlement inquiries are of great consequence, with the potential to significantly re-frame class action litigation. Writing in a blog posted on the ABA Journal's website a day prior to the oral argument, constitutional law scholar Erwin Chemerinsky raised several "what ifs": "An underlying question is what will be done with the funds if the Supreme Court were to disapprove such settlements? Would they go back to the defendants? That would be a windfall for defendants and undermine the function of class actions in enforcing the law and deterring wrongdoing. Would the money go to the government? But if so, on what basis and for what purposes? Or might the [C]ourt go even further and accept the petitioner's argument that cy pres-only class actions cannot be certified at all, providing a great benefit to defendants and making it much harder to enforce the law where the class members will not directly benefit from the settlement."[7] Class actions have long been an area of contentiousness in legal and corporate circles. An important device for protecting consumer and civil rights or a grossly-abused tool of the plaintiff's bar to line attorneys' pockets resulting in expensive defense costs but little behavioral change by class defendants? As with most things, the answer lies not in the polar extremes, but rather in the confounding middle ground. The Halloween hearing on Frank v. Gaos served to highlight and frame many of these difficult issues the nine Justices must consider, but afforded little preview of how the Court may resolve or guide lower courts as to the "fair, reasonable and adequate" means of resolving large multi-party class litigation. The Court's opinion will be anxiously awaited by the class action plaintiff and defense bars, as well as the many institutions and not-for-profits which have been beneficiaries of cy pres awards. Justices Call for Additional Briefs Ronald Mann, writing for SCOTUS Blog, reports that the justices called for additional briefing in Frank v. Gaos. Discussion on the merits was in large part superseded by the justices' concern that the plaintiffs in this case may not have "standing" to bring the class action under the Supreme Court's 2016 decision in Spokeo v. Robins. The Spokeo court held that a plaintiff in federal court cannot establish standing by alleging a violation of a federal statute; the plaintiff must identify some cognizable real-world harm. The district court's order approving the settlement in this case was issued before the decision in Spokeo; the court found that the plaintiffs had standing solely because of the allegation that the defendants had violated a federal statute. Thus, the district court did not identify any cognizable harm that would make the case justiciable in a post-Spokeo regime. Although the parties did not raise the problem, the solicitor general's amicus brief emphasized it and suggested that the justices might wish to send the case back to the court of appeals for consideration of the issue. At the argument, all seemed to agree that the district court's reasoning could not withstand scrutiny under Spokeo. The point of disagreement seemed to be whether there was any prospect that the plaintiffs could identify some new argument that would satisfy Spokeo at this late date. Some of the justices (including Justice Samuel Alito, the author of the court's opinion in Spokeo) seemed to think the allegations could not possibly satisfy Spokeo, and that the Supreme Court might dismiss the case on that basis. Others (including Justice Ruth Bader Ginsburg) suggested that the lack of briefing made the question sufficiently doubtful to warrant sending the case back to the lower courts for further consideration. The Nov.5 brief order (issued without dissent) suggests that the justices compromised: They will neither dismiss the case out of hand nor send it back to the lower courts for further deliberation. Rather, they decided to call for additional briefs on the question of justiciability, which would help to ensure that they are fully informed before addressing the question in the first instance. They did not call for reargument, though, as they did in Knick v Township of Scott. That means that the case will be ripe for decision as soon as the new briefs arrive. Because the new round of briefing will be complete before Christmas, the justices should have plenty of time to come to a decision before the end of the term next June. [GN] H&R BLOCK: Griffith Sues Over Sherman Act Violation --------------------------------------------------- The Plaintiff in the case captioned Colleen Griffith, individually and on behalf of all others similarly situated, Plaintiff, v. H&R Block, Inc., H&R Block Tax Services LLC, Defendants, Case No. 1:18-cv-07520 (N.D. Ill., November 13, 2018) brought this class action on behalf of herself and the proposed class of all other similarly-situated current and former H&R Block employees against Defendants for H&R Block's anticompetitive policy enforced on both its franchised and company-owned tax offices that prevented any H&R Block franchise from hiring or soliciting current employees of any other H&R Block franchise or company-owned tax office, and prevented H&R Block company-owned tax offices from hiring or soliciting current employees of H&R Block franchises. Plaintiff alleges that this no-hiring and no-solicitation agreement was an illegal conspiracy between H&R Block and its franchises in violation of Section 1 of the Sherman Act and seeks treble damages and injunctive relief, demanding a trial of jury of all issues so triable, says the complaint. Plaintiff Colleen Griffith is a resident of Media, Pennsylvania. Ms. Griffith was employed at an H&R Block location during the Class Period. H&R Block, Inc. (HRB) is a Missouri corporation that provides consumer tax services in the United States and certain other countries, including 10,000 retail offices in the United States that offer professional tax preparers that assist consumers in preparing tax returns. Its headquarters are at One H&R BlockWay in Kansas City, Missouri. HRB has several wholly-owned subsidiaries in the United States. H&R Block Tax Services LLC is a Missouri limited liability company. It is a wholly-owned subsidiary of Defendant HRB. Its headquarters are also at One H&R Block Way in Kansas City, Missouri.[BN] The Plaintiff is represented by: Kenneth A. Wexler, Esq. Mark R. Miller, Esq. WEXLER WALLACE LLP 55 West Monroe St., Suite 3300 Chicago, IL 60603 Phone: (312) 346-2222 Email: kaw@wexlerwallace.com mrm@wexlerwallace.com - and - John Radice, Esq. Daniel Rubenstein, Esq. April Lambert, Esq. Natasha Fernandez-Silber, Esq. Rishi Raithatha, Esq. RADICE LAW FIRM, P.C. 34 Sunset Blvd. Long Beach, NJ 08008 Phone: (646) 245-8502 Fax: (609) 385-0745 Email: jradice@radicelawfirm.com drubenstein@radicelawfirm.com alambert@radicelawfirm.com nsilber@radicelawfirm.com rraithatha@radicelawfirm.com - and - Eric L. Young, Esq. Paul V. Shehadi, Esq. McELDREW YOUNG, Attorneys-at-Law 123 S. Broad Street, Suite 2250 Philadelphia, PA 19109 Phone: (215) 367-5151 Fax: (215) 367-5143 Email: eyoung@mceldrewyoung.com paul@mceldrewyoung.com HAECO AMERICAS: $150K Attorneys' Fees Awarded in Linnis Suit ------------------------------------------------------------ In the case, DAVID LINNINS, KIM WOLFINGTON, and CAROL BLACKSTOCK, on behalf of themselves and all others similarly situated, Plaintiffs, v. HAECO AMERICAS, INC. (f/k/a TIMCO AVIATION SERVICES, INC., Defendant, Case No. 1:16CV486 (M.D. N.C.), Judge N. Carlton Tilley, Jr. of the U.S. District Court for the Middle District of North Carolina (i) granted the Plaintiffs' Motion for Approval of Attorneys' Fees, Costs, and Expenses; and (ii) granted the Consent Motion to Substitute Renamed Corporate Defendant. The case involves the alleged 2016 disclosure of the personal identifying information of employees of HAECO and copies of their W-2 statements in response to an email phishing scheme. The Plaintiffs asserted claims for negligence, invasion of privacy, and violation of the North Carolina Unfair and Deceptive Trade Practices Act which included an alleged violation of the North Carolina Identity Theft Protection Act. On May 31, 2018, a hearing was held on the Plaintiff's Motion for Final Approval of Class Action Settlement, which was granted, and the instant motion for attorneys' fees and costs, the ruling on which was reserved until the Class Counsel filed their supplement in further support of the Plaintiffs' motion. Pursuant to the terms of the Settlement Agreement, the members of the class who had not previously registered for two years of Experian ProtectMyID Elite were given another opportunity to enroll. The members of the class who purchased identify theft protection at their own expense were able to seek reimbursement up to $350. A Claim Fund was established in the amount of $312,500 to compensate the class members for damages, expenses, and inconveniences they incurred. Finally, HAECO agreed to take data and cyber security steps, including mandatory cyber security training for all employees, for at least three years. For their work to achieve these results and as part of the Settlement Agreement, the Class Counsel seek $150,000 inclusive of attorneys' fees, costs, and expenses, to be paid separate and apart from any payments made to the class members. No putative class member filed objections to the Settlement Agreement when afforded the opportunity to do so. Judge Tilley holds that the Plaintiffs' request for $150,000 in attorneys' fees and expenses is reasonable. First, there were no objections to the Class Counsel's proposed request for attorneys' fees and expenses. In addition, not only are the Class Counsel experienced in complex consumer protection class actions, but their experience in W-2 data disclosure class actions is unique. They took the case on a contingent basis at a time when the law applying to such cases was unsettled and developing. Even today, results in W-2 data disclosure class actions are mixed. Yet, in the case, the Class Counsel succeeded in obtaining a positive result for their clients despite the Defendant's pending motion to dismiss. The total of $150,000 for attorneys' fees and expenses represents a lodestar multiplier of 1.16 not out of the norm. All of these factors support granting the Plaintiffs' motion. For the reasons stated above, the Judge granted (i) the Plaintiffs' Motion for Approval of Attorneys' Fees, Costs, and Expenses, and (ii) the Consent Motion to Substitute Renamed Corporate Defendant. HAECO is substituted for TIMCO Aviation Services, Inc. The case caption will be amended to reflect that HAECO Americas, Inc. (f/k/a TIMCO Aviation Services, Inc.) is the Defendant, and all current filings be deemed amended to reflect the substitution. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Order is available at https://is.gd/4GtXpV from Leagle.com. DAVID LINNINS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, KIM WOLFINGTON, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED & CAROL BLACKSTOCK, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by JOHN A. YANCHUNIS, MORGAN & MORGAN COMPLEX LITIGATION GROUP & JEAN SUTTON MARTIN -- jean@jsmlawoffice.com -- Law Office of Jean Sutton Martin PLLC. HAECO AMERICAS, INC., formerly known as TIMCO AVIATION SERVICES, INC., Defendant, represented by JASON M. BEACH -- jbeach@HuntonAK.com -- HUNTON ANDREWS KURTH LLP, NEIL K. GILMAN -- ngilman@HuntonAK.com -- HUNTON ANDREWS KURTH LLP & RACHEL SCOTT DECKER -- rsd@crlaw.com -- CARRUTHERS & ROTH, PA. HCP INC: Bid to Dismiss Boynton Beach Pension Fund Suit Pending --------------------------------------------------------------- HCP, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 31, 2018, for the quarterly period ended September 30, 2018, that the parties in the case, Boynton Beach Firefighters' Pension Fund v. HCP, Inc., et al., are still awaiting court's decision on the motion to dismiss the complaint. On May 9, 2016, a purported stockholder of the Company filed a putative class action complaint, Boynton Beach Firefighters' Pension Fund v. HCP, Inc., et al., Case No. 3:16-cv-01106-JJH, in the U.S. District Court for the Northern District of Ohio against the Company, certain of its officers, HCR ManorCare, Inc. ("HCRMC"), and certain of its officers, asserting violations of the federal securities laws. The suit asserts claims under sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and alleges that the Company made certain false or misleading statements relating to the value of and risks concerning its investment in HCRMC by allegedly failing to disclose that HCRMC had engaged in billing fraud, as alleged by the U.S. Department of Justice ("DoJ") in a suit against HCRMC arising from the False Claims Act that the DoJ voluntarily dismissed with prejudice. The plaintiff in the class action suit demands compensatory damages (in an unspecified amount), costs and expenses (including attorneys' fees and expert fees), and equitable, injunctive, or other relief as the Court deems just and proper. On November 28, 2017, the Court appointed Societe Generale Securities GmbH (SGSS Germany) and the City of Birmingham Retirement and Relief Systems (Birmingham) as Co-Lead Plaintiffs in the class action. The motion to dismiss was fully briefed on May 21, 2018 and oral arguments were held on October 23, 2018. The Company believes the suit to be without merit and intends to vigorously defend against it. HCP, Inc. is a fully integrated real estate investment trust (REIT) that invests in real estate serving the healthcare industry in the United States. The company is based in Irvine, California. HEALTHPORT TECH: Dismissal of Ciox from Kuchenmeister Suit Affirmed ------------------------------------------------------------------- In the case, LEON KUCHENMEISTER, CINDY A. HUGGER-GRAVITT, BETH A. BRETOI, individually and on behalf of all those similarly situated, Plaintiffs-Appellants, v. HEALTHPORT TECHNOLOGIES, LLC, d.b.a. IOD Incorporated, d.b.a. Healthport Technologies, LLC, IOD INCORPORATED, CIOX HEALTH, LLC, Defendants-Appellees, Case No. 18-10468 (11th Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirmed the district court's dismissal of the Plaintiffs' complaint against Ciox. The Defendant, a health information management services provider, contracts with healthcare providers to process patient requests for medical records. Aspects of its business are governed by the Health Insurance Portability and Accountability Act ("HIPAA"), and by implementing regulations promulgated by the Department of Health and Human Services ("DHHS"). Each named Plaintiff requested copies of his or her medical records from a healthcare provider that had a contract ("Business Associate Agreement") with the Defendant. Pursuant to the terms of those Business Associate Agreements, Defendant processed and fulfilled Plaintiffs' medical records requests. After providing each Plaintiff with the requested medical records, the Defendant sent each Plaintiff an invoice for the amount owed to the Defendant for having processed the request. Briefly stated, the Plaintiffs contend that the Defendant charged them more for processing their medical record requests than the amount permitted under HIPAA and under DHHS regulations. The Plaintiffs filed the putative class action against the Defendant, alleging state law claims for breach of contract, unjust enrichment, and for money had and received. The district court dismissed for lack of standing the Plaintiffs' claim for breach of contract, pursuant to Fed. R. Civ. P. 12(b)(1). The district court also dismissed for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), the Plaintiffs' claims for unjust enrichment and for money had and received. The Plaintiffs contend that the Defendant breached the Business Associate Agreements between the Defendant and their healthcare providers by overcharging them for copies of their medical records, in violation of HIPAA and DHHS regulations. The district court concluded that, because Plaintiffs were no third-party beneficiaries to the Business Associate Agreements, they lacked standing to sue for breach of contract. The Appellate Court finds that the Business Associate Agreements involved in the case each contain a contract provision establishing unambiguously that the contracting parties intended no third party to have a legally enforceable right under the contract. Given the clear and unambiguous contract language, the district court concluded properly that the Plaintiffs had no legally protected rights under the pertinent Business Associate Agreements. The Plaintiffs, thus, lacked standing to pursue a claim based on an alleged breach of those contracts. The Appellate Court holds that the district court committed no error in dismissing the Plaintiffs' breach of contract claim pursuant to Rule 12(b)(1). The Plaintiffs next challenge the district court's dismissal of their claims for unjust enrichment and for money had and received. The district court concluded that the Plaintiffs' claims were barred by the voluntary payment doctrine. The Appellate Court agrees. It finds that the Plaintiffs made their payments "under protest" is insufficient to avoid application of the voluntary payments doctrine. It also rejects the Plaintiffs' contention that the voluntary payments doctrine is inapplicable based on equitable concerns: the Defendant's alleged bad faith and as a matter of public policy. It folds that the Plaintiffs have failed to show that the voluntary payments doctrine is inapplicable to the case. The thus district court committed no error in concluding that the Plaintiffs were barred from seeking recovery of payments made voluntarily to the Defendant. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/OHixWG from Leagle.com. Jennifer B. Dempsey -- jennifer.dempsey@bryancave.com -- for Defendant-Appellee. Jay P. Lefkowitz -- lefkowitz@kirkland.com -- for Defendant-Appellee. James Marvin Feagle -- jfeagle@skaarandfeagle.com -- for Plaintiff-Appellant. Kris Skaar -- krisskaar@aol.com -- for Plaintiff-Appellant. William V. Custer, IV -- bill.custer@bryancave.com -- for Defendant-Appellee. Nathaniel J. Kritzer -- nathaniel.kritzer@kirkland.com -- for Defendant-Appellee. Justin Tharpe Holcombe -- jholcombe@skaarandfeagle.com -- for Plaintiff-Appellant. Clifton Dorsen -- cdorsen@skaarandfeagle.com -- for Plaintiff-Appellant. Donald Sawyer -- dsawyer@keoghlaw.com -- for Plaintiff-Appellant. Keith J. Keogh -- Keith@Keoghlaw.com -- for Plaintiff-Appellant. Amy L. Wells -- AWells@KeoghLaw.com -- for Plaintiff-Appellant. Christopher Adam Johnston -- cjohnston@jm-legal.com -- for Plaintiff-Appellant. Christopher Peter Martineau -- cmartineau@jm-legal.com -- for Plaintiff-Appellant. Alexandra Strang -- allie.strang@kirkland.com -- for Defendant-Appellee. Marquel P. Reddish -- marquel.reddish@kirkland.com -- for Defendant-Appellee. Thomas Artaki -- thomas.artaki@kirkland.com -- for Defendant-Appellee. HERBALIFE NUTRITION: Rodgers Suit Transferred to California ----------------------------------------------------------- Herbalife Nutrition Ltd. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the Court in Rodgers, et al. v Herbalife Ltd., et al., issued an order transferring the action to the U.S. District Court for the Central District of California as to four of the putative class plaintiffs and ordering the remaining four plaintiffs to arbitration, thereby terminating the Company defendants from the Florida action. On September 18, 2017, the Company and certain of its subsidiaries and Members were named as defendants in a purported class action lawsuit, titled Rodgers, et al. v Herbalife Ltd., et al. and filed in the U.S. District Court for the Southern District of Florida, which alleges violations of Florida's Deceptive and Unfair Trade Practices statute and federal Racketeer Influenced and Corrupt Organizations statutes, unjust enrichment, and negligent misrepresentation. On August 23, 2018, the Court issued an order transferring the action to the U.S. District Court for the Central District of California as to four of the putative class plaintiffs and ordering the remaining four plaintiffs to arbitration, thereby terminating the Company defendants from the Florida action. The plaintiffs seek damages in an unspecified amount. The Company believes the lawsuit is without merit and will vigorously defend itself against the claims in the lawsuit. Herbalife Nutrition Ltd. develops and sells nutrition solutions in North America, Mexico, South and Central America, Europe, the Middle East, Africa, and the Asia Pacific. It provides science-based products in the areas of weight management; targeted nutrition; energy, sports, and fitness; and outer nutrition. The company was formerly known as Herbalife Ltd. and changed its name to Herbalife Nutrition Ltd. in April 2018. Herbalife Nutrition Ltd. was founded in 1980 and is headquartered in Los Angeles, California. HERTZ CORP: Court Grants Bid to Compel Arbitration in Kurth Suit ---------------------------------------------------------------- In the case, KATHRYNE ANNE KURTH, on behalf of herself and others similarly situated, Plaintiff, v. THE HERTZ CORPORATION, Defendant, Case No. 18 C 2785 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, (i) granted Hertz's motion to compel arbitration with regard to the first four transactions, and (ii) granted Hertz's partial motion to dismiss with prejudice regarding claims stemming from Kurth's fifth transaction with Hertz. After Kurth discovered that Hertz allegedly charged her a "concession fee recovery" at a location where it incurred no concession fee on five separate occasions when she rented a car from Hertz, she filed the putative class action against Hertz for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), and other state consumer fraud statutes. She also brings an unjust enrichment claim. In response, Hertz now brings a motion to compel arbitration and a partial motion to dismiss. Between December 2017 and March 2018, Kurth rented cars on five separate occasions from Hertz at its location at 401 North State Street in Chicago, Illinois. Each time, Hertz charged her a "concession fee recovery." Hertz defines "concession fee recovery" as a fee to reimburse Hertz for concession/commission fees paid to the airport (hotel, train station, base, or agent) for each rental. However, the State Street Location is not located at a facility where Hertz would incur a concession fee. Hertz operates a loyalty program called the Hertz Gold Plus Rewards Program. Kurth enrolled in this program and signed an agreement regarding the Gold Program that provides that the agreement may be revised or supplemented from time to time by Hertz sending Kurth notice of such changes, and that making a Program rental after the effective date of such changes will constitute Kurth's acceptance of such changes. Hertz updated the Gold Agreement in 2016, including an arbitration provision that provides that the parties agree to arbitrate any disputes between the parties, other than claims for property damage, personal injury or death. Hertz provided Kurth with notice of this change. Although it allows customers to opt out of the provision, Kurth did not choose to do so for the first four transactions at issue in the case. She did, however, opt out of the arbitration provision with regard to the fifth transaction, which occurred on March 15, 2018. Judge Ellis finds that Kurth did not submit any response to Hertz's motion to compel, effectively waiving any argument in opposition to its motion. However, even had Kurth challenged the delegation provision, she would not have prevailed. The delegation provision in the Gold Agreement clearly demonstrates the parties' agreement to send the threshold matter of arbitrability to the arbitrator. Another court within the circuit, when presented with the exact delegation provision present in the instant case decided that the delegation provision was clear and it must send the matter to an arbitrator. In light of the valid delegation clause, Judge Ellis granted Hertz's motion to compel arbitration with regard to the first four transactions at issue. As to its motion to partially dismiss Kurth's amended complaint, Hertz argues that the Court should dismiss Kurth's claims regarding the fifth transaction because Kurth was aware of the deception when she entered the fifth transaction. The Judge finds that Kurth fails to state a claim for violation of ICFA or unjust enrichment regarding the fifth transaction because she was aware of the alleged deception when she entered into the fifth transaction. Judge Ellis theregore partially granted Hertz's motion to dismiss. Because Kurth cannot amend her claim to fix this deficiency, the Judge dismissed her ICFA claims based on the fifth transaction with prejudice. The case is stayed pending arbitration. A full-text copy of the Court's Oct. 24, 2018 Opinion and Order is available at https://is.gd/AQ0del from Leagle.com. Kathryne Anne Kurth, on behalf of herself and others similarly situated,, Plaintiff, represented by Christopher M. Hack -- chris@krislovlaw.com -- Krislov & Associates, Ltd., Clinton A. Krislov -- clint@krislovlaw.com -- Krislov & Associates, Ltd. & Kenneth Todd Goldstein -- ken@krislovlaw.com -- Krislov & Associates, Ltd. The Hertz Corporation, Defendant, represented by John Fee Ward -- jward@jenner.com -- Jenner & Block LLP, Lauren J. Hartz -- lhartz@jenner.com -- Jenner & Block LLP, pro hac vice & Michelle R. Singer -- msinger@jenner.com -- Jenner & Block Llp, pro hac vice. IRSA INVESTMENTS: Plaintiffs Appeal Case Dismissal -------------------------------------------------- IRSA Investments and Representations Inc. said in its Form 20-F report filed with the U.S. Securities and Exchange Commission on October 31, 2018, for the fiscal year ended June 30, 2018, that plaintiffs have taken an appeal from the court's order granting IRSA and Cresud's motion to dismiss a class action lawsuit. On February 23, 2016, a class action was filed against IRSA, Cresud Sociedad Anonima Comercial, Inmobiliaria, Financiera y Agropecuaria and some first-line managers and directors at the District Court of the USA for the Central District of California. The complaint was amended on February 13, 2017. As amended, the complaint, on behalf of people who purchased or otherwise acquired American Global Depositary Receipts of IRSA between November 3, 2014 February 11, 2015 and December 30, 2015, claims presumed violations to the US federal securities laws. In addition, it argues that defendants have made material misrepresentations and made some omissions related to the Company's investment in IDBD. Such complaint was voluntarily waived on May 4, 2016 by the plaintiff and filed again on May 9, 2016 with the US District Court for the Eastern District of Pennsylvania. Furthermore, the Companies and some of its first-line managers and directors are defendants in a class action filed on April 29, 2016 with the US District Court for the Eastern District of Pennsylvania. The complaint was amended on February 13, 2017. As amended, the complaint, on behalf of people holding who purchased or otherwise acquired American Global Depositary Receipts of Cresud between May 13, 2015 February 11, 2015 and December 30, 2015, presumes violations to the US federal securities laws. In addition, it argues that defendants have made material misrepresentations and made some omissions related to the investment of the Company's subsidiary, IRSA, in IDBD. Subsequently, the Companies requested the transfer of the claim to the district of New York, which was accepted. On December 8, 2016, the Court appointed the representatives of each presumed class as primary plaintiffs and the lead legal advisor for each of the classes. On February 13, 2017, the plaintiffs of both classes filed a document containing certain amendments. The companies filed a petition requesting that the class action brought by shareholders should be dismissed. On April 12, 2017, the Court suspended the class action filed by Cresud shareholders until the Court decides on the petition of dismissal of such the IRSA shareholder class action. Filing information on the motion to dismiss the collective remedy filed by shareholders of IRSA was completed on July 7, 2017. On September 10, 2018, the Court issued an order granting IRSA and Cresud's motion to dismiss in its entirety. Plaintiffs have appealed such order. The companies hold that such allegations are meritless and will continue making a strong defense in both actions. IRSA Investments and Representations Inc. or IRSA Inversiones y Representaciones Sociedad Anonima engages in the diversified real estate activities in Argentina. The company was founded in 1943 and is headquartered in Buenos Aires, Argentina. IRSA Inversiones y Representaciones Sociedad Anónima is a subsidiary of Cresud Sociedad Anonima Comercial, Inmobiliaria, Financiera y Agropecuaria. JONATHAN NEIL: Brown Class Settlement Has Preliminary Approval -------------------------------------------------------------- The United States District Court for Eastern District of California issued an Order granting Parties' Joint Motion for Preliminary Approval of the Class Action Settlement in the case captioned TERI BROWN, Plaintiff, v. JONATHAN NEIL AND ASSOCIATES, INC., Defendant. Case No. 1:17-cv-00675-SAB. (E.D. Cal.). Plaintiff Teri Brown filed this action on behalf of herself and others similarly situated against Defendant Jonathan Neil and Associates, Inc., alleging violations of the Fair Debt Collections Practices Act (FDCPA). Reasonableness, Adequacy, and Fairness of Settlement to Class Members The parties have been conducting arm's length settlement negotiations while adjudicating the class certification of this action. The parties have exchanged discovery which has identified approximately 281 class members and two depositions of the defendant have been taken. Discovery has been conducted and two motions for class certification have been filed, as well as a previous motion for preliminary approval of a class action settlement. Counsel for the parties have analyzed the legal and factual issues that are presented in this action, the likelihood of recovering damages in excess of those obtained by this settlement, the protracted nature of the litigation and the potential costs and outcome of further litigation and have determined that settlement of this action is appropriate. The FDCPA caps a class recovery at the lesser of one percent of the debt collector's net worth or $500,000.00. Therefore, financial statements provided during discovery have led counsel for Plaintiff to conclude that the settlement amount is the maximum that the class can receive under the statute. Based on the number of class members, each class member who does not opt out of the class is expected to receive approximately $35.50 and courts have found lesser amounts reasonable in similar FDCPA class action cases. Further, attorney fees and the class representative payments will not be deducted from the settlement fund. The benefit that the class members will receive is not insubstantial. The Court finds that the settlement falls within the reasonable range. Notice The notice must also clearly and concisely state in plain, easily understood language: (i) the nature of the action (ii) the definition of the class certified (iii) the class claims, issues, or defences (iv) that a class member may enter an appearance through an attorney if the member so desires (v) that the court will exclude from the class any member who requests exclusion (vi) the time and manner for requesting exclusion and(vii) the binding effect of a class judgment on members under Rule 23(c)(3). Here, the Court previously expressed concern because the plaintiff is receiving her full statutory damage award of $1,000.00 as well as an enhancement award of $1,500.00 while the class members are receiving only a fraction of the statutory damage amount they could receive. As the Plaintiff is receiving a benefit beyond that of the other class members by receiving her full statutory benefit award, this factor will weigh heavily against granting an incentive award in this matter. Further, in Staton, the Ninth Circuit found it was an abuse of discretion to approve a settlement where the class representatives received an incentive award that was, on average sixteen times greater than the award that the unnamed class members would receive. The district court must evaluate the fairness of the incentive award by considering relevant factors including the actions the plaintiff has taken to protect the interests of the class, the degree to which the class has benefitted from those actions the amount of time and effort the plaintiff expended in pursuing the litigation and reasonable fears of workplace retaliation. Should Plaintiff seek an enhancement payment she will be expected to address the factors that the court considers in issuing such an award. At the final approval hearing, the Court will employ the lodestar method to the request for attorney fees as a cross check on the percentage method to ensure a failure and reasonable result. Therefore, counsel is advised that in submitting the final approval of class action settlement they will be required to provide a thorough fee award petition that details the hours reasonably spent representing the class in this action. A full-text copy of the District Court's November 5, 2018 Order is available at https://tinyurl.com/y8b2qfdg from Leagle.com. Teri Brown, Plaintiff, represented by Ari Marcus -- Ari@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice, Yitzchak Zelman -- Yzelman@MarcusZelman.com -- Marcus & Zelman, LLC, pro hac vice & Tammy L. Hussin -- Tammy@HussinLaw.com -- Hussin Law. Jonathan Neil and Associates, Inc., Defendant, represented by Christopher Michael Egan -- cegan@porterscott.com -- Porter Scott, APC, Derek Joseph Haynes -- dhaynes@porterscott.com -- Porter Scott, PC & Lynette Mary Komar -- lynette.komar@cdpr.ca.gov -- Porter Scott. KEYVIEW LABS: Pannell Sues over Unwanted Telemarketing Calls ------------------------------------------------------------ EVELYN PANNELL, individually and on behalf of all others similarly situated, the Plaintiff, vs KEYVIEW LABS, INC. and DOES 1-10, the Defendants, Case No. 5:18-cv-02508 (N.D. Ohio, Oct. 30, 2018), seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, for violations of the Telephone Consumer Protection Act, resulting from the illegal actions of Defendants, in negligently, knowingly and/or willfully placing through their agent(s), automated, sales, solicitation, and/or other telemarketing calls to Plaintiff's cellular telephone, in violation of the TCPA and related regulations, specifically the National Do-Not-Call and internal do-no-call provisions of 47 C.F.R. 64.1200(c) and (d), thereby invading Plaintiff's privacy. According to the complaint, on or about February 6, 2010, Plaintiff successfully registered her residential telephone number ending in -2602 with the National Do-Not-Call Registry. During or about March, 2018, Defendants began placing unsolicited automated telemarketing telephone calls to Plaintiff. When Plaintiff would answer Defendants' telephone calls, she experienced a long pause before a live representative would begin speaking, which is indicative of an automatic telephone dialing system. Plaintiff has not previously sought out Keyview's services nor has Plaintiff attempted to retrieve information from Keyview about its services. Despite Plaintiff's unequivocal request that Defendants cease placing telephone calls to her telephone number ending in -2602, Defendants continued to place unsolicited, automated telemarketing telephone calls to the telephone number. As a result of Defendants' acts and omissions outlined above, Plaintiff has suffered concrete and particularized injuries and harm, the lawsuit says. KeyView Labs, Inc. researches, develops, and tests brain health and fitness supplements.[BN] Attorney for Plaintiff: David B. Levin, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 333 Skokie Blvd., Suite 103 Northbrook, IL 60062 Telephone: (224) 218-0882 Facsimile: (866) 633-0228 E-mail: dlevin@toddflaw.com KOHL'S DEPARTMENT: 9th Cir. Remands Proceedings on Attorney's Fees ------------------------------------------------------------------ The United States Court of Appeals, Ninth Circuit, issued a Memorandum reversing in part and affirming in part District Court's judgment granting Plaintiffs' Motion for Approval of Class Action Settlement Agreement in appeals cases captioned STEVEN RUSSELL, individually and on behalf of all others similarly situated and DONNA CAFFEY, Plaintiffs-Appellees, ANNE CARD, Objector-Appellant, v. KOHL'S DEPARTMENT STORES, INC., a Delaware Corporation and DOES, 1 through 100, inclusive, Defendants-Appellees. SARAH MCDONALD, Objector-Appellant, BARBARA COCHRAN; et al., Objectors, v. STEVEN RUSSELL, an individual; DONNA CAFFEY, Plaintiffs-Appellees, and KOHL'S DEPARTMENT STORES, INC., a Delaware Corporation, Defendant-Appellee, and DOES, 1-100, inclusive, Defendant. STEVEN RUSSELL, individually and on behalf of all others similarly situated and DONNA CAFFEY, Plaintiffs-Appellees, BOBBI CECIO, Objector-Appellant, v. KOHL'S DEPARTMENT STORES, INC., a Delaware Corporation and DOES, 1 through 100, inclusive, Defendants-Appellees. STEVEN RUSSELL, individually and on behalf of all others similarly situated and DONNA CAFFEY, Plaintiffs-Appellees, BARBARA S. COCHRAN, Objector-Appellant, v. KOHL'S DEPARTMENT STORES, INC., a Delaware Corporation and DOES, 1 through 100, inclusive, Defendants-Appellees. Nos. 16-56493, 16-56650, 16-56696, 16-56764. (9th Cir.). When the parties settled this class action regarding alleged false advertising by Kohl's Department Stores, several objectors raised concerns about the settlement challenging Plaintiffs' Article III standing, the notice to class members, the overall fairness of the settlement, and the award of attorney's fees to class counsel. The district court overruled the objections and approved the settlement and attorney's fees, and four objectors appealed. The Court concludes that Plaintiffs had Article III standing and that the district court properly approved the class notice and settlement. But we vacate the award of attorney's fees and remand for the district court to consider objections to the fee award and provide a renewed opportunity for Objector Cecio to raise such objections. The district court did not abuse its discretion in concluding that Plaintiffs were typical members of the settlement class they sought to certify under Federal Rule of Civil Procedure 23(b)(3). Only one named plaintiff must be a typical class member to satisfy the requirements for class certification. In moving for class certification for the purposes of settlement, Plaintiffs submitted evidence that Russell was a typical member of the class that would receive gift cards because he had made several purchases at Kohl's that would place him in the class. And it appears that Caffey was probably a member of the class as well, even though she may have received refunds for some of her purchases. The district court did not err in holding that this was not a coupon settlement. Several Objectors asserted that the district court should have treated the settlement in this case as a coupon settlement under the Class Action Fairness Act (CAFA). And the district court did not abuse its discretion in deciding that the overall settlement was fair, reasonable, and adequate. The Court have explained that district courts deciding whether a settlement submitted for approval is fair, reasonable, and adequate should discuss their application of several factors: The strength of the plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Under the circumstances of this case, however, and particularly given the comprehensive objections that Cecio filed in the briefing on appeal, the In re Mercury error is harmless so long as Cecio's objections are addressed on remand. Cecio identified new, substantial objections to the fees request on appeal, several of which raise serious concerns about the fee awarded here. Plaintiffs did not respond to many of Cecio's objections on appeal, and because McDonald's objections in the district court did not encompass all of Cecio's objections, the district court did not address them either. The district court's approval of the settlement can otherwise stand, however, because vacating the award of attorney's fees will not render the overall settlement unfair, unreasonable, or inadequate. The settlement agreement in this case specifically separated the approval of fees from the rest of the settlement. And the district court originally awarded the maximum available fees under the settlement agreement. Any fees not awarded to counsel on remand will go to the class, so the remand in this case can only benefit the class. The Court therefore affirms the district court's approval of the settlement while remanding for further proceedings on attorney's fees. A full-text copy of the Ninth Circuit's November 5, 2018 Memorandum is available at https://tinyurl.com/ydc5od8g from Leagle.com. LEXINGTON INSURANCE: Ezell Appeals Order in RICO Suit to 1st Cir. ----------------------------------------------------------------- Plaintiffs Erica Biddings, Norma Ezell and Leonard Whitley filed an appeal from a court ruling in their lawsuit titled Ezell, et al. v. Lexington Insurance Company, et al., Case No. 1:17-cv-10007-NMG, in the U.S. District Court for the District of Massachusetts, Boston. As reported in the Class Action Reporter on Oct. 16, 2018, the District Court granted the Defendants' Motion to Dismiss the amended complaint in the case. The Plaintiffs bring this putative class action under the Racketeer Influenced and Corrupt Organizations Act against 10 insurance companies and subsidiaries alleging that certain commissions charged in connection with annuity payments are unlawful. The appellate case is captioned as Ezell, et al. v. Lexington Insurance Company, et al., Case No. 18-2064, in the United States Court of Appeals for the First Circuit.[BN] Plaintiffs-Appellants NORMA EZELL, on behalf of herself and all others similarly situated; LEONARD WHITLEY, on behalf of himself and all others similarly situated; and ERICA BIDDINGS, on behalf of herself and all others similarly situated, are represented by: Steve W. Berman, Esq. Craig R. Spiegel, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 2nd Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 E-mail: steve@hbsslaw.com craig@hbsslaw.com - and - Kristen A. Johnson, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Pkwy., Suite 301 Cambridge, MA 02142-0000 Telephone: (617) 482-3700 E-mail: kristenj@hbsslaw.com - and - Richard B. Risk, Jr., Esq. RISK LAW FIRM PA 6964 S Shore Dr. S South Pasadena, FL 33707 Telephone: (918) 494-8025 E-mail: dick@risklawfirm.com Defendants-Appellees LEXINGTON INSURANCE COMPANY, AMERICAN INTERNATIONAL GROUP, INC., AIG ASSURANCE COMPANY, AIG PROPERTY CASUALTY COMPANY, AIG SPECIALTY INSURANCE COMPANY, AMERICAN GENERAL LIFE INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, AGC LIFE INSURANCE COMPANY, AMERICAN GENERAL ANNUITY SERVICE CORPORATION and AIG CLAIMS, INC., f/k/a AIG Domestic Claims, Inc., are represented by: James L. Hallowell, Esq. Nancy E. Hart, Esq. Adam H. Offenhartz, Esq. Peter M. Wade, Esq. GIBSON DUNN & CRUTCHER LLP 200 Park Avenue, 47th Floor New York, NY 10166-0193 Telephone: (212) 351-3804 E-mail: jhallowell@gibsondunn.com nhart@gibsondunn.com aoffenhartz@gibsondunn.com pwade@gibsondunn.com Defendants-Appellees LEXINGTON INSURANCE COMPANY, AMERICAN INTERNATIONAL GROUP, INC., AIG ASSURANCE COMPANY, AIG PROPERTY CASUALTY COMPANY, AIG SPECIALTY INSURANCE COMPANY, AMERICAN GENERAL LIFE INSURANCE COMPANY, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, AGC LIFE INSURANCE COMPANY, AMERICAN GENERAL ANNUITY SERVICE CORPORATION, AIG CLAIMS, INC., f/k/a AIG Domestic Claims, Inc., and AIG INSURANCE COMPANY are represented by: William T. Hogan, III, Esq. Patrick Thomas Uiterwyk, Esq. NELSON MULLINS RILEY & SCARBOROUGH LLP 1 Post Office Sq., 30th Floor Boston, MA 02109 Telephone: (617) 217-4701 E-mail: bill.hogan@nelsonmullins.com patrick.uiterwyk@nelsonmullins.com LUMBER LIQUIDATORS: Deal in Formaldehyde & Abrasion Litig. Okayed ----------------------------------------------------------------- Lumber Liquidators Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the Court has granted final approval on the settlement entered by the company in the Formaldehyde and the Abrasion multi-district litigation. Beginning on or about March 3, 2015, numerous purported class action cases were filed in various U.S. federal district courts and state courts involving claims of excessive formaldehyde emissions from the Company's Chinese-manufactured laminate flooring products. The purported classes consisted of all U.S. consumers that purchased the relevant products during certain time periods. Plaintiffs in these cases challenged the Company's labeling of its products as compliant with the California Air Resources Board Regulation and alleged claims for fraudulent concealment, breach of warranty, negligent misrepresentation and violation of various state consumer protection statutes. The plaintiffs sought various forms of declaratory and injunctive relief and unquantified damages, including restitution, actual, compensatory, consequential and, in certain cases, punitive damages, as well as interest, costs and attorneys' fees incurred by the plaintiffs and other purported class members in connection with the alleged claims. In a series of orders, the United States Judicial Panel on Multidistrict Litigation (the "MDL Panel") transferred and consolidated the federal cases to the United States District Court for the Eastern District of Virginia (the "Virginia Court"). The consolidated case in the Virginia Court is captioned In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales, Practices and Products Liability Litigation (the "Formaldehyde MDL"). Beginning on or about May 20, 2015, multiple class actions were filed in the United States District Court for the Central District of California and other district courts located in the place of residence of each non-California plaintiffs consisting of U.S. consumers who purchased the Company's Chinese-manufactured laminate flooring products challenging certain representations about the durability and abrasion class ratings of such products. These plaintiffs asserted claims for fraudulent concealment, breach of warranty and violation for various state consumer protection statutes. The plaintiffs did not quantify any alleged damages in these cases; however, in addition to attorneys' fees and costs, they did seek an order (i) certifying the action as a class action, (ii) adopting the plaintiffs' class definitions and finding that the plaintiffs are their proper representatives, (iii) appointing their counsel as class counsel, (iv) granting injunctive relief to prohibit the Company from continuing to advertise and/or sell laminate flooring products with false abrasion class ratings, (v) providing restitution of all monies the Company received from the plaintiffs and class members and (vi) providing damages (actual, compensatory and consequential), as well as punitive damages. On October 3, 2016, the MDL Panel issued an order transferring and consolidating the abrasion class actions to the Virginia Court. The consolidated case is captioned In re: Lumber Liquidators Chinese-Manufactured Laminate Flooring Durability Marketing and Sales Practices Litigation (the "Abrasion MDL"). On March 15, 2018, the Company entered into a settlement agreement to jointly settle the Formaldehyde MDL and the Abrasion MDL. Under the terms of the settlement agreement, the Company has agreed to fund $22 million (the "Cash Payment") and provide $14 million in store-credit vouchers for an aggregate settlement amount of $36 million to settle claims brought on behalf of purchasers of Chinese-made laminate flooring sold by the Company between January 1, 2009 and May 31, 2015. The Company may fund the $22 million through a combination of cash and/or common stock. On June 16, 2018, the Virginia Court issued an order that, among other things, granted preliminary approval of the settlement agreement. Following the preliminary approval and pursuant to the terms of the settlement agreement, the Company, in June, paid $0.5 million for settlement administration costs, which is part of the Cash Payment, to the settlement escrow account. On October 3, 2018, at the Final Approval and Fairness Hearing the Court approved the settlement. Lumber Liquidators said, "To date, insurers have denied coverage with respect to the Formaldehyde MDL and Abrasion MDL. The $36 million aggregate settlement amount was accrued in 2017." Lumber Liquidators Holdings, Inc., together with its subsidiaries, operates as a multi-channel specialty retailer of hardwood flooring, and hardwood flooring enhancements and accessories. Lumber Liquidators Holdings, Inc. was founded in 1994 and is headquartered in Toano, Virginia. LUMBER LIQUIDATORS: Steele Class Suit in Canada Ongoing ------------------------------------------------------- A class action lawsuit in Canada by Sarah Steele against Lumber Liquidators Holdings, Inc. remains pending, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018. On or about April 1, 2015, Sarah Steele ("Steele") filed a purported class action lawsuit in the Ontario, Canada Superior Court of Justice against the Company. In the complaint, Steele's allegations include strict liability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, fraud by concealment, civil negligence, negligent misrepresentation and breach of implied covenant of good faith and fair dealing. Steele did not quantify any alleged damages in her complaint, but seeks compensatory damages, punitive, exemplary and aggravated damages, statutory remedies, attorneys' fees and costs. Lumber Liquidators said, "While the Company believes that a further loss associated with the Steele litigation is possible, the Company is unable to reasonably estimate the amount or range of possible loss." No further updates were provided in the Company's SEC report. Lumber Liquidators Holdings, Inc., together with its subsidiaries, operates as a multi-channel specialty retailer of hardwood flooring, and hardwood flooring enhancements and accessories. Lumber Liquidators Holdings, Inc. was founded in 1994 and is headquartered in Toano, Virginia. MARATHON PETROLEUM: Andeavor Merger-Related Suits Dismissed ----------------------------------------------------------- Marathon Petroleum Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that all the actions related to the merger of the company with Andeavor have been dismissed as moot, and the parties reserved their rights in the event of any dispute over attorneys' fees and expenses. On April 29, 2018, the Company ("MPC") and Andeavor ("ANDV") entered into a definitive merger agreement under which MPC has agreed to acquire all of ANDV's outstanding shares. Between June 20 and July 11, 2018, six putative class actions (the "Actions") were filed against some or all of Andeavor, the directors of Andeavor, and MPC, Mahi Inc. ("Merger Sub 1") and Mahi LLC (n/k/a Andeavor LLC) ("Merger Sub 2" and, together with MPC and Merger Sub 1, the "MPC Defendants"), relating to the Andeavor merger. Two complaints, Malka Raul v. Andeavor, et al., and Stephen Bushansky v. Andeavor, et al., were filed in the U.S. District Court for the Western District of Texas. Four complaints, captioned The Vladimir Gusinsky Rev. Trust v. Andeavor, et al., Lawrence Zucker v. Andeavor, et al., Mel Gross v. Andeavor, et al., and Hudson v. Andeavor, et al. were filed in the U.S. District Court for the District of Delaware. The Actions generally alleged that Andeavor, the directors of Andeavor and the MPC Defendants disseminated a false or misleading registration statement regarding the merger in violation of Section 14(a) of the Securities Exchange Act of 1934 ("the “Exchange Act") and Rule 14a-9 promulgated thereunder. Specifically, the Actions alleged that the registration statement filed by MPC misstated or omitted material information regarding the parties' financial projections and the analyses performed by Andeavor's and MPC's respective financial advisors, and that disclosure of material information was necessary in light of preclusive deal protection provisions in the merger agreement, the financial interests of Andeavor's officers and directors in completing the deal, and the financial interests of Andeavor's and MPC's respective financial advisors. The Actions further alleged that the directors of Andeavor and/or the MPC Defendants were liable for these violations as "controlling persons" of Andeavor under Section 20(a) of the Exchange Act. The Actions sought injunctive relief, including to enjoin and/or rescind the merger, damages in the event the merger is consummated, and an award of attorneys' fees, in addition to other relief. On July 5 and July 20, 2018, MPC filed amendments to its Registration Statement on Form S-4, which included certain supplemental disclosures responding to allegations made by the plaintiffs. On August 3, 2018, Andeavor filed its proxy statement, and after that date, the parties had numerous discussions regarding the adequacy of disclosures. The parties ultimately reached an agreement in principle to resolve the Actions in exchange for the supplemental disclosures. Consistent with that agreement, Andeavor and MPC each filed a Current Report on Form 8-K on September 14, 2018 that included certain additional disclosures in response to plaintiffs' allegations. Between September 21 and September 28, 2018, all the Actions were dismissed as moot, and the parties reserved their rights in the event of any dispute over attorneys' fees and expenses. The Company does not believe the ultimate resolution of these fee issues will be material. Marathon Petroleum Corporation, together with its subsidiaries, engages in refining, marketing, retailing, and transporting petroleum products primarily in the United States. It operates through three segments: Refining & Marketing, Speedway, and Midstream. The company was incorporated in 2009 and is headquartered in Findlay, Ohio. MASTERCARD INC: Damage Class Seeks Settlement Approval ------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018, that the Damages Class plaintiffs in the Interchange Fees-related suit have filed a motion with the court seeking preliminary approval of the settlement agreement. In June 2005, the first of a series of complaints were filed on behalf of merchants (the majority of the complaints were styled as class actions, although a few complaints were filed on behalf of individual merchant plaintiffs) against Mastercard International, Visa U.S.A., Inc., Visa International Service Association and a number of financial institutions. Taken together, the claims in the complaints were generally brought under both Sections 1 and 2 of the Sherman Act, which prohibit monopolization and attempts or conspiracies to monopolize a particular industry, and some of these complaints contain unfair competition law claims under state law. The complaints allege, among other things, that Mastercard, Visa, and certain financial institutions conspired to set the price of interchange fees, enacted point of sale acceptance rules (including the no surcharge rule) in violation of antitrust laws and engaged in unlawful tying and bundling of certain products and services. The cases were consolidated for pre-trial proceedings in the U.S. District Court for the Eastern District of New York in MDL No. 1720. The plaintiffs filed a consolidated class action complaint that seeks treble damages. In July 2006, the group of purported merchant class plaintiffs filed a supplemental complaint alleging that Mastercard's initial public offering of its Class A Common Stock in May 2006 (the "IPO") and certain purported agreements entered into between Mastercard and financial institutions in connection with the IPO: (1) violate U.S. antitrust laws and (2) constituted a fraudulent conveyance because the financial institutions allegedly attempted to release, without adequate consideration, Mastercard’s right to assess them for Mastercard's litigation liabilities. The class plaintiffs sought treble damages and injunctive relief including, but not limited to, an order reversing and unwinding the IPO. In February 2011, Mastercard and Mastercard International entered into each of: (1) an omnibus judgment sharing and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa International Service Association and a number of financial institutions; and (2) a Mastercard settlement and judgment sharing agreement with a number of financial institutions. The agreements provide for the apportionment of certain costs and liabilities which Mastercard, the Visa parties and the financial institutions may incur, jointly and/or severally, in the event of an adverse judgment or settlement of one or all of the cases in the merchant litigations. Among a number of scenarios addressed by the agreements, in the event of a global settlement involving the Visa parties, the financial institutions and Mastercard, Mastercard would pay 12% of the monetary portion of the settlement. In the event of a settlement involving only Mastercard and the financial institutions with respect to their issuance of Mastercard cards, Mastercard would pay 36% of the monetary portion of such settlement. In October 2012, the parties entered into a definitive settlement agreement with respect to the merchant class litigation (including with respect to the claims related to the IPO) and the defendants separately entered into a settlement agreement with the individual merchant plaintiffs. The settlements included cash payments that were apportioned among the defendants pursuant to the omnibus judgment sharing and settlement sharing agreement described above. Mastercard also agreed to provide class members with a short-term reduction in default credit interchange rates and to modify certain of its business practices, including its "no surcharge" rule. The court granted final approval of the settlement in December 2013, and objectors to the settlement appealed that decision to the U.S. Court of Appeals for the Second Circuit. In June 2016, the court of appeals vacated the class action certification, reversed the settlement approval and sent the case back to the district court for further proceedings. The court of appeals' ruling was based primarily on whether the merchants were adequately represented by counsel in the settlement. As a result of the appellate court ruling, the district court divided the merchants' claims into two separate classes - monetary damages claims (the "Damages Class") and claims seeking changes to business practices (the "Rules Relief Class"). The court appointed separate counsel for each class. Prior to the reversal of the settlement approval, merchants representing slightly more than 25% of the Mastercard and Visa purchase volume over the relevant period chose to opt out of the class settlement. Mastercard had anticipated that most of the larger merchants who opted out of the settlement would initiate separate actions seeking to recover damages, and over 30 opt-out complaints have been filed on behalf of numerous merchants in various jurisdictions. Mastercard has executed settlement agreements with a number of opt-out merchants. Mastercard believes these settlement agreements are not impacted by the ruling of the court of appeals. The defendants have consolidated all of these matters in front of the same federal district court that approved the merchant class settlement. In July 2014, the district court denied the defendants' motion to dismiss the opt-out merchant complaints for failure to state a claim. In September 2018, the parties to the Damages Class litigation entered into a class settlement agreement to resolve the Damages Class claims. The Damages Class plaintiffs have filed a motion with the court seeking preliminary approval of the settlement agreement. Mastercard previously increased its reserve during the second quarter of 2018 by $210 million to reflect both its expected financial obligation under the Damages Class settlement agreement and the filed and anticipated opt-out merchant cases. The settlement agreement does not relate to the Rules Relief Class claims. Separate settlement negotiations with the Rules Relief Class are ongoing. As of September 30, 2018, Mastercard had accrued a liability of $912 million as a reserve for both the merchant class litigation and the filed and anticipated opt-out merchant cases. As of September 30, 2018 and December 31, 2017, Mastercard had $550 million and $546 million, respectively, in a qualified cash settlement fund related to the merchant class litigation and classified as restricted cash on its consolidated balance sheet. Mastercard believes the reserve for both the merchant class litigation and the filed and anticipated opt-out merchants represents its best estimate of its probable liabilities in these matters at September 30, 2018. The portion of the accrued liability relating to both the opt-out merchants and the merchant class litigation settlement does not represent an estimate of a loss, if any, if the matters were litigated to a final outcome. Mastercard cannot estimate the potential liability if that were to occur. Mastercard Incorporated, a technology company, provides transaction processing and other payment-related products and services in the United States and internationally. It facilitates the processing of payment transactions, including authorization, clearing, and settlement, as well as delivers related products and services. The company was founded in 1966 and is headquartered in Purchase, New York. MCDERMOTT INT'L: Chicago Bridge & Iron Securities Suit Ongoing -------------------------------------------------------------- The parties in the case captioned: In re Chicago Bridge & Iron Company N.V. Securities Litigation, No. 1:17-cv-01580-LGS, are engaged in the discovery process, McDermott International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 30, 2018, for the quarterly period ended September 30, 2018. On March 2, 2017, a complaint was filed in the United States District Court for the Southern District of New York seeking class action status on behalf of purchasers of CB&I common stock and alleging damages on their behalf arising from alleged false and misleading statements made during the class period from October 30, 2013 to June 23, 2015. The case is captioned: In re Chicago Bridge & Iron Company N.V. Securities Litigation, No. 1:17-cv-01580-LGS (the "Securities Litigation"). The defendants in the case are: CB&I; Philip K. Asherman, CB&I's former chief executive officer; Westley S. Stockton, CB&I's former controller and chief accounting officer; and Ronald Ballschmiede, CB&I's former chief financial officer. On June 14, 2017, the court named ALSAR Partnership Ltd. as lead plaintiff. On August 14, 2017, a consolidated amended complaint was filed alleging violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 thereunder, arising out of alleged misrepresentations about CB&I's accounting for the acquisition of The Shaw Group, CB&I's accounting with respect to the two nuclear projects being constructed by The Shaw Group, and CB&I's financial reporting and public statements with respect to those two projects. On May 24, 2018, the court denied defendants' motion to dismiss and the parties are currently engaged in the discovery process. McDermott International said, :We are not able at this time to determine the likelihood of loss, if any, arising from this matter and, accordingly, no amounts have been accrued at September 30, 2018. We believe the claims are without merit and intend to defend against them vigorously." McDermott International, Inc. provides engineering, procurement, construction and installation, front-end engineering and design, and module fabrication services for upstream field developments. It operates through three segments: the Americas, Europe and Africa; the Middle East; and Asia. McDermott International, Inc. was founded in 1923 and is headquartered in Houston, Texas. MEDICAL SOLUTIONS: Court Certifies 2 Classes in Dittman FLSA Suit ----------------------------------------------------------------- In the case, BRYON DITTMAN, an individual on behalf of himself and others similarly situated, Plaintiffs, v. MEDICAL SOLUTIONS, L.L.C.; and DOES 1 to 10 inclusive, Defendants, Case No. 2:17-cv-01851-MCE-CKD (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted Dittman's motion to (1) certify a California-wide class pursuant to Rule 23 of the Federal Rules of Civil Procedure and (2) conditionally certifying a nationwide Fair Labor Standards Act ("FLSA") collective action pursuant to 29 U.S.C. Section 216(b). The Judge granted the Plaintiff's motion to certify a California-wide class pursuant to Rule 23. With respect to the state Labor Code claim for unpaid overtime, as well as the derivative state law claims for unlawful business practices, and waiting time penalties, he certified the class consisting of all non-exempt hourly healthcare professionals employed by Medical Solutions who, at any time from Sept. 7, 2013 through the date of certification, worked in California pursuant to a Travel Assignment Agreement during which they received housing and/or meal and incidental benefits, received overtime pay, and had the value of their housing and/or meals and incidental benefits excluded from their regular rate for purposes of calculating overtime pay. He appointed the Plaintiff as the representative of the certified class; and Hayes Pawlenko LLP, Matthew B. Hayes, and Kye D. Pawlenko as the class counsel for the certified class. The Judge granted the Plaintiff's motion for conditional certification of a FLSA collective action. He conditionally certified, for purposes of disseminating notice and setting an opt-in deadline, the collective action of all non-exempt hourly healthcare professionals employed by Medical Solutions in the United States who, at any time within the three years preceding certification, worked pursuant to a Travel Assignment Agreement during which they received housing and/or meal and incidental benefits, worked in excess of 40 hours in one or more workweeks, and had the value of their housing and/or meals and incidental benefits excluded from their regular rate for purposes of calculating overtime pay. However, the Notices provided as Exhibits A and B to the Plaintiff's Motion are not yet approved, and the Judge ordered that they be modified to include the following section: Will I owe taxes if Plaintiff prevails? Possibly. You may wish to consult a tax professional about any potential tax implications raised by this lawsuit. A tax professional can also assess your potential economic benefit or loss that might result if you choose to participate in this lawsuit. If there is a decision that the per diem allowances in question are wages instead of reimbursements, as Plaintiff asserts in this Lawsuit, there is a possibility that the Internal Revenue Service (IRS) will no longer permit Medical Solutions to treat the per diems as a tax-free benefit. This is because the per diem allowances will no longer meet accountable plan rules under the Internal Revenue Code (See 26 C.F.R. Section 1.362-2, 26 U.S.C. Section 162). In this situation, all future per diem allowances provided by Medical Solutions will become taxable wages, subject to withholding and employment taxes. Under these circumstances, the IRS might also take the position that all class members are personally liable for all federal and income taxes that were not withheld on any past per diem amounts received. As a result, you may owe the IRS retroactive taxes on any per diem amounts you have previously received from Medical Solutions if you choose to participate in the Lawsuit. Not later than 10 days following the date the Order is electronically filed, the parties will file Final Proposed Notices and a proposed order for the Court's signature approving those notices and setting forth the relevant deadlines. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/vhzre8 from Leagle.com. Bryon Dittman, Plaintiff, represented by Kye Douglas Pawlenko -- kpawlenko@helpcounsel.com -- Hayes, Pawlenko, LLP & Matthew Bryan Hayes -- mhayes@helpcounsel.com -- Hayes Pawlenko LLP. Medical Solution, L.L.C., Defendant, represented by David A. Yudelson -- david.yudelson@koleyjessen.com -- Koley Jessen PC, L.L.O., pro hac vice, Margaret C. Hershiser -- margaret.hershiser@koleyjessen.com -- Koley Jessen PC, L.L.O., pro hac vice, Sarah Kroll- Rosenbaum -- skrollrosenbaum@constangy.com -- Constangy Brooks Smith & Prophete & Kenneth Dawson Sulzer -- ksulzer@constangy.com -- Constangy Brooks Smith & Prophete LLP. MESA LABORATORIES: Records $3,300 as Potential Loss in TCPA Suits ----------------------------------------------------------------- Mesa Laboratories, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 31, 2018, for the quarterly period ended September 30, 2018, that the company recorded an expense of $3,300 as an estimate of its potential loss associated with the class actions suits initiated by Dr. James L. Orrington II and Rowan Family Dentistry, Inc. In February 2018, Dr. James L. Orrington II filed a purported civil class action in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the company sent unsolicited advertisements to telephone facsimile machines. The complaint includes counts alleging violations of the Telephone Consumer Protection Act ("TCPA"), the Illinois Consumer Fraud Act, Conversion, Nuisance, and Trespass to Chattels. The plaintiff seeks monetary damages, injunctive relief, and attorneys' fees. Additionally, in June 2018, Rowan Family Dentistry, Inc. filed a purported class action complaint in the United States District Court for the District of Colorado making substantially the same claims as Dr. James L. Orrington II and seeking substantially the same relief. During the three months ended September 30, 2018, the company recorded an expense of $3,300 as an estimate of its potential loss associated with the matter. The expense is recorded in estimated legal settlement on the company's condensed consolidated statements of income and a corresponding liability is included in estimated legal liability on the company's condensed consolidated balance sheets. Mesa Laboratories said, "We intend to vigorously defend the aforementioned cases; however, we may ultimately be subject to liabilities greater or less than the amount accrued." Mesa Laboratories, Inc. designs, manufactures, and markets quality control instruments and disposable products. Mesa Laboratories, Inc. was founded in 1982 and is headquartered in Lakewood, Colorado. MOTEL 6: Settles Hispanic Guests' Class Action for $7.6MM --------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that Motel 6 will pay up to $7.6 million to Hispanic guests to settle a proposed class-action lawsuit claiming that it violated their privacy by regularly providing guest lists to U.S. Immigration and Customs Enforcement (ICE) agents. Terms of the preliminary settlement with eight Hispanic plaintiffs -- seven from Arizona and one from Washington state -- were disclosed in a Nov. 2 filing with the federal court in Phoenix. Motel 6 also agreed to a two-year consent decree barring it from sharing guest data with immigration authorities absent warrants, subpoenas, or threats of serious crime or harm. Court approval is required. Motel 6 did not admit liability, and denied engaging in unlawful conduct. The Mexican American Legal Defense and Educational Fund (MALDEF) filed the lawsuit after the Phoenix New Times said ICE agents had arrested 20 people over six months at Motel 6s in Arizona, using guest lists to target people by national origin. Motel 6 had no immediate comment. MALDEF did not immediately respond to requests for comment. A settlement had been reached in July but no terms were disclosed. The terms were announced shortly before the U.S. midterm elections, in which President Donald Trump has made immigration a central issue. Up to $5.6 million will go to Motel 6 guests who faced immigration removal proceedings after their personal information was shared. They are eligible to receive at least $7,500 each. Another $1 million was set aside for guests who were questioned or interrogated by immigration authorities, with each guest receiving $1,000. The remaining $1 million will go to guests whose information was turned over to immigration authorities from Feb. 1, 2017 to Nov. 2, 2018. They will receive $50 each. Motel 6 will also pay up to $1.3 million for the plaintiffs' legal fees and administrative costs. The chain is controlled by the private equity firm Blackstone Group LP, which bought the brand in 2012. Motel 6's management company, G6 Hospitality, has said it ordered its more than 1,400 U.S. and Canadian locations in September to stop voluntarily giving guest lists to ICE agents. The case is Jane V. et al v Motel 6 Operating LP et al, U.S. District Court, District of Arizona, No. 18-00242. [GN] NATIONSTAR MORTGAGE: Garcia Settlement Has Final Court Approval --------------------------------------------------------------- In the case, JUANITA GARCIA, individually and on behalf of all others similar situated, Plaintiff, v. NATIONSTAR MORTGAGE LLC, a Delaware limited liability company, Defendant, Case No. C15-1808 TSZ (W.D. Wash.), Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiff's Motion for Final Approval to Class Action Settlement. On May 25, 2018, the Court granted the Plaintiff's motion for preliminary approval of a class action settlement in the case, appointed Plaintiff Garcia as the Class Representative, and appointed Rafey S. Balabanian of Edelson PC and D. Frank Davis of Davis & Norris, LLP as the Class Counsel. The Court also approved the Class Notice, including Direct Notice and the creation of the Settlement Website, and appointed Heffler Claims Group as the Settlement Administrator. As of Oct. 24, 2018, Heffler has received 6,596 timely Claim Forms submitted via postcard, email, or fax and 8,443 timely Claim Forms submitted via the claims website. As of the same date, Heffler has received 40 Exclusion Requests and no notice of objection by any Class Member. As of the date, class member Sherlie Charlot has indicated she has no objection as to the scope of the proposed settlement release. Pursuant to 28 U.S.C. Section 1715(b), the counsel for the Defendant sent notices of the Settlement to the United States Attorney General and the Attorneys General of all the states in which Class Members reside on July 27, 2018. The Court is satisfied that the notice requirements of 28 U.S.C. Section 1715(b) were substantially met, and that the 90-day period described in 28 U.S.C. Section 1715(d), between service of the notice and the date of issuance of the Order, has elapsed. Forty-one individuals have requested exclusion from the class and the settlement of this matter: Priscilla R. Hunsaker, Darren Ellerbee, Doris Turner, Jose Acevedo, Tonietta Coit, James R. Mock, Jimmie White, Beryl Thomas, Joe Cabrera, David Hose, Sherry Brooks, James Kennedy, Maria Vide, Starline Dixon, Mary McCammon, Daniel Brooks, Chester Lempitsky, Jacqueline White, Charles Engle, Dale Smith, Alfredo Caracena, Michelle Jackson, Robert Ridgeway, Tamara Slutskaya, Timothy Tuck, Carols Capo, Herbert Lubitz, Richard Rutkowski, Jr., Hazel Henry, Dennis Butz, James Davis, Robin Johnson, Stacie Hedley, Marilyn Sangmeister, Brian O'Neill, Veva Johnson, Floy Johnson, Sherly Cisrow, Garland Groom, Devin Dilay, and Sherlie Charlot. Only 34 of the exclusion requests match names on the class list. The matter came before the Court for hearing on Oct. 17, 2018. Judge Zilly has considered the Plaintiff's Motion for Final Approval to Class Action Settlement. He finally approved the Settlement in all respects, and directed the Parties to implement and consummate the Settlement Agreement according to its terms and provisions. The Judge has also considered the Plaintiff's Motion for attorneys' fees of $968,750 and expenses of $16,383.53 to the Class Counsel and adjudged that these payments are fair and reasonable. He has also considered the Plaintiff's Motion and supporting declarations for a Case Contribution Award to the Named Plaintiff. He adjudged that the payment of a service award in the amount of $5,000 to the Plaintiff, to compensate her for her efforts and commitment on behalf of the Settlement Class, is fair, reasonable, and justified under the circumstances of the case. The Judge entered judgment for purposes of Federal Rules of Civil Procedure 58 and 79, and the time period for filing any notice of appeal will commence on the date of entry of the Final Order and Judgment. He directed the Clerk to send a copy of the Final Order and Judgment to all the counsel of record and to close the case. A full-text copy of the Court's Oct. 26, 2018, 2018 Final Order and Judgment is available at https://is.gd/dhnw5u from Leagle.com. Juanita Garcia, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin H. Richman -- brichman@edelson.com -- EDELSON PC, pro hac vice, D. Frank Davis -- fdavis@davisnorris.com -- DAVIS & NORRIS LLP, pro hac vice, Rafey S. Balabanian -- rbalabanian@edelson.com -- EDELSON PC, pro hac vice, Wesley W. Barnett -- wbarnett@davisnorris.com -- DAVIS & NORRIS LLP, pro hac vice & Clifford A. Cantor. Nationstar Mortgage LLC, a Delaware limited liability company, Defendant, represented by Erik Kemp -- ek@severson.com -- SEVERSON & WERSON, pro hac vice, Kalama M. Lui-Kwan -- kml@severson.com -- SEVERSON & WERSON, pro hac vice, Mary Kate Kamka -- kk@severson.com -- SEVERSON & WERSON, pro hac vice & John Alan Knox -- jknox@williamskastner.com -- WILLIAMS KASTNER & GIBBS. Sherlie Charlot, Interested Party, represented by Dean N. Kawamoto -- dkawamoto@KellerRohrback.com -- KELLER ROHRBACK LLP, Derek W. Loeser -- dloeser@KellerRohrback.com -- KELLER ROHRBACK LLP, Gretchen S. Obrist -- gobrist@kellerrohrback.com -- KELLER ROHRBACK LLP & Ian J. Mensher -- imensher@KellerRohrback.com -- KELLER ROHRBACK LLP. NEIMAN MARCUS: Court Rules on Individual Claims Settlement Notice ----------------------------------------------------------------- In the case, F.A., by and through his parents and guardians on behalf of similarly situated individuals and on behalf of THE NEIMAN MARCUS GROUP LLC HEALTH AND WELFARE BENEFIT PLAN, Plaintiff, v. THE NEIMAN MARCUS GROUP LLC HEALTH AND WELFARE BENEFIT PLAN and THE NEIMAN MARCUS GROUP LLC, Defendants, Case No. C17-1571RSL (W.D. Wash.), Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington, Seattle, held that notice of F.A.'s individual claims settlement need not be sent to the putative class members. The parties seek to resolve F.A.'s individual claims through settlement without prejudice to the claims of putative class members. No notices have been sent to putative class members, nor has a class been certified. The parties maintain that notice of the settlement need not be sent to putative class members in these circumstances, either by force of the 2003 amendments to Fed. R. Civ. P. 23(e) or under the analysis set forth in Diaz v. Trust Territory of Pacific Islands, 876 F.2d 1401, 1408 (9th Cir.1989). Judge Lasnik explains that prior to 2003, Fed. R. Civ. P. 23(e) required approval of the court, after notice, for the dismissal or compromise of any class action. The rules were amended, however, to require court approval of any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class. Thus, resolution of only F.A.'s individual claims does not require Court review and approval. Because there are no class members who would be bound by the settlement proposal, the procedures for class notice are not triggered. The same result is reached if one were to apply the pre-2003 Diaz analysis. Based on the Court's review of the unopposed motion and the remainder of the record, the Judge finds that the Diaz factors pose no hurdle to dismissal of the action without notice. There is no indication that Plaintiffs improperly utilized the class action mechanism, and dismissal of F.A.'s individual claims is without prejudice to the putative class members' ability to seek any and all available relief. With regards to the prejudice factor, there is little reason to believe that the putative class members are aware of this nascent litigation or, if they were, that dismissal would preclude them from pursuing their claims. For all of the foregoing reasons, Judge Lasnik finds that notice of the proposed settlement need not be given to putative class members. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/vtZ9mE from Leagle.com. F. A., by and through his parents and guardians, P.A. and F.A., individually, on behalf of similarly situated individuals, and on behalf of The Neiman Marcus Group LLC Health and Welfare Benefit Plan, Plaintiff, represented by Richard E. Spoonemore -- info@sylaw.com -- SIRIANNI YOUTZ SPOONEMORE HAMBURGER & Eleanor Hamburger, SIRIANNI YOUTZ SPOONEMORE HAMBURGER. The Neiman Marcus Group LLC Health and Welfare Benefit Plan & The Neiman Marcus Group LLC, Defendants, represented by Gwendolyn C. Payton -- gpayton@kilpatricktownsend.com -- KILPATRICK TOWNSEND & STOCKTON LLP & John R. Neeleman -- jneeleman@kilpatricktownsend.com -- KILPATRICK TOWNSEND & STOCKTON LLP. NEKTAR THERAPEUTICS: Mulquin Sues over Misleading Financial Report ------------------------------------------------------------------ JOHN MULQUIN, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. NEKTAR THERAPEUTICS, HOWARD W. ROBIN, and GIL M. LABRUCHERIE, the Defendants, Case 4:18-cv-06607-HSG (N.D. Cal., Oct. 30, 2018), seeks to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. According to the complaint, the case is a federal securities class action on behalf of a class consisting of all persons other than Defendants who purchased or otherwise acquired Nektar securities between November 11, 2017 5 through October 2, 2018, both dates inclusive. Nektar purports to leverage its proprietary and proven chemistry platform to discover and design new drug candidates. These drug candidates utilize the Company's advanced polymer conjugate technology platforms, which are designed to enable the development of new molecular entities that target known mechanisms of action. NKTR-214, is the Company’s lead immune-oncology ("I-O") candidate, is a biologic with biased signaling through one of the IL-2 receptor subunits (CD 122) that can stimulate proliferation 21 and growth of tumor-killing immune cells in the tumor micro-environment and increase expression of 22 PD-1 on these immune cells. The Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) prior studies which attempted to pegylate IL-2 failed; (ii) NKTR-214’s extended half-life was unlikely to result in efficacy and created additional high-dosing safety concerns; (iii) NKTR-2 214 was less effective than IL-2 alone; (iv) the combination of NKTR-214 with nivolumab has not yet demonstrated significant positive results; and (v) as a result, Nektar's public statements were materially false and misleading at all relevant times. On October 1, 2018, Plainview LLC published a report entitled "NKTR-214: Pegging the Value at Zero". The report addressed the efficacy of Nektar’s lead clinical-stage drug NKTR-214, which the Company has touted as "a promising treatment for cancer, particularly in combination with checkpoint inhibitors."The Plainview report stated that "Nektar hypothesized that IL-2 [a naturally occurring cytokine] could be improved by adding polyethylene glycol molecules to it (pegylating it) to extend the half-life and block interaction with” a specific receptor, but that "unfortunately, the anticipated benefits did not materialize and pegylation has proved to be a drag on efficacy." The Plainview report asserted that the core concept of Nektar's plan to develop NKTR-214 15 into "a new universal cancer treatment" "has never worked in practice", and further asserted that Nektar's decision to only disclose certain trial results represented “an unprecedented level of data opacity." Following publication of the Plainview report, Nektar's stock price fell $5.63 per share, or 9.24%, over the following two trading sessions, closing at $55.33 per share on October 2, 2018. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says. Nektar is a research-based biopharmaceutical company that discovers and develops innovative medicines in areas of high unmet medical need. Nektar’s research and development pipeline of new investigational drugs includes treatments for cancer, autoimmune disease and chronic pain.[BN] Attorneys for Plaintiff: Jennifer Pafiti, Esq. Jeremy A. Lieberman, Esq. J. Alexander Hood, II, Esq. Jonathan Lindenfeld, Esq. Patrick V. Dahlstrom, Esq. POMERANTZ LLP 468 North Camden Drive Beverly Hills, CA 90210 Telephone: (818) 532-6499 E-mail: jpafiti@pomlaw.com jalieberman@pomlaw.com ahood@pomlaw.com jlindenfeld@pomlaw.com pdahlstrom@pomlaw.com - and - Corey D. Holzer, Esq. Marshall P. Dees, Esq. HOLZER & HOLZER, LLC 1200 Ashwood Parkway, Suite 410 Atlanta, GA 30338 Telephone: (770) 392-0090 Facsimile: (770) 392-0029 E-mail: cholzer@holzerlaw.com mdees@holzerlaw.com NEXTGEN HEALTHCARE: $19 Million Accord Wins Final Approval ---------------------------------------------------------- In the case, In re Quality Systems, Inc. Securities Litigation, the U.S. District Court for the Central District of California entered a final order on November 20, 2018, granting final approval to the $19 million cash settlement of the case. NextGen Healthcare, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 31, 2018, for the quarterly period ended September 30, 2018, that on November 19, 2013, a putative class action complaint was filed on behalf of the shareholders of the Company other than the defendants against the company and certain of its officers and directors in the United States District Court for the Central District of California by one of the company's shareholders. After the Court appointed lead plaintiffs and lead counsel for this action, and recaptioned the action In re Quality Systems, Inc. Securities Litigation, No. 8:13-cv-01818-CJC-JPR, lead plaintiffs filed an amended complaint on April 7, 2014. The amended complaint, which is substantially similar to the "Hussein Litigation," generally alleges that statements made to the company's shareholders regarding the company's financial condition and projected future performance were false and misleading in violation of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and that the individual defendants are liable for such statements because they are controlling persons under Section 20(a) of the Exchange Act. The complaint seeks compensatory damages, court costs and attorneys' fees. The company filed a motion to dismiss the amended complaint on June 20, 2014, which the Court granted on October 20, 2014, dismissing the complaint with prejudice. Plaintiffs filed a motion for reconsideration of the Court's order, which the Court denied on January 5, 2015. On January 30, 2015, Plaintiffs filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit, captioned In re Quality Systems, Inc. Securities Litigation, No. 15-55173. On July 28, 2017, the Ninth Circuit issued a decision reversing and remanding the District Court's order on the company's motion to dismiss. On September 5, 2017, the company filed a petition for rehearing en banc, which was denied on September 29, 2017. On January 26, 2018, the company filed a petition for a writ of certiorari with the Supreme Court of the United States. The Supreme Court ordered the plaintiffs to file a response to the petition, which they filed on March 22, 2018. On May 10, 2018, the parties reached an agreement-in-principle to resolve the action for $19 million, and on May 11, 2018, the parties requested that the Supreme Court stay any decision regarding whether to hear the Company's petition for a writ of certiorari, pending the parties' ongoing settlement negotiations. On July 16, 2018, the parties signed a definitive settlement agreement resolving the matter and submitted it to the Court for approval. On July 30, 2018, the Court granted preliminary approval of the settlement and scheduled a final approval hearing for November 19, 2018. Under the terms of this agreement, the settlement will be partially funded by certain of the Company's insurance carriers, and defendants will continue to deny any liability or wrongdoing. The settlement does not resolve the Hussein Litigation or the Shareholder Derivative Litigation. The $19 million settlement of the Federal Securities Class Action complaint, which was partially funded by certain of our insurance carriers, was tendered to a court-supervised settlement account during the three months ended September 30, 2018. Additional information on the settlement is available at: http://www.qsisecuritiessettlement.com/ NextGen Healthcare, Inc. provides a range of software, services, and analytics solutions to medical and dental group practices. The company's portfolio delivers foundational capabilities to empower physician success, enrich the patient care experience, and enable the transition to value-based healthcare. The company is based in Irvine, California. NOVAN INC: Bid to Dismiss SB204-Related Suit Still Pending ---------------------------------------------------------- Novan, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the motion to dismiss the consolidated SB204-related suit in the United States District Court for the Middle District of North Carolina, is still pending. The Company is subject to putative stockholder class action lawsuits that were filed in November 2017 in the United States District Court for the Middle District of North Carolina against the Company and certain of its current and former directors and officers, which have been consolidated under the case name In re Novan, Inc. Securities Litigation. A lead plaintiff has been designated, and on April 30, 2018, the lead plaintiff filed a consolidated amended complaint. The consolidated amended complaint asserts claims for violation of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Exchange Act and SEC Rule 10b-5 promulgated thereunder, in connection with statements related to the Company's Phase 3 clinical trials of SB204. The consolidated amended complaint seeks, among other things, an unspecified amount of compensatory damages and attorneys' fees and costs on behalf of the putative class. On June 14, 2018, the Company filed a motion to dismiss the consolidated amended complaint. The Company believes that the claims lack merit and intends to defend the lawsuits vigorously. Novan said, "However, there can be no assurance that a favorable resolution will be obtained in such lawsuits, and the actual costs may be significant. The Company is unable to estimate the amount of a potential loss or range of potential loss, if any." No further updates were provided in the Company's SEC report. Novan, Inc., a clinical-stage biotechnology company, focuses on the development and commercialization of nitric oxide-based therapies to treat dermatological and oncovirus-mediated diseases. Novan, Inc. was founded in 2006 and is headquartered in Morrisville, North Carolina. ONEMAIN HOLDINGS: Galestan Class Suit in New York Still Ongoing --------------------------------------------------------------- OneMain Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend a putative class action suit entitled, Galestan v. OneMain Holdings, Inc., et al. On February 10, 2017, a putative class action lawsuit, Galestan v. OneMain Holdings, Inc., et al., was filed in the U.S. District Court for the Southern District of New York, naming as defendants the Company and two of its officers. The lawsuit alleges violations of the Exchange Act for allegedly making materially misleading statements and/or omitting material information concerning alleged integration issues after the OneMain Acquisition in November 2015, and was filed on behalf of a putative class of persons who purchased or otherwise acquired the Company’' common stock between February 25, 2016 and November 7, 2016. The complaint seeks an award of unspecified compensatory damages, an award of interest, reasonable attorney's fees, expert fees and other costs, and equitable relief as the court may deem just and proper. On March 23, 2017, the court appointed a lead plaintiff for the putative class and approved the lead plaintiff's selection of counsel. The plaintiff filed an amended complaint on June 13, 2017 challenging statements regarding the Company's projections of future financial performance and certain statements regarding integration after the OneMain Acquisition. On September 29, 2017, pursuant to the Court's Individual Rules and Practices, the company sought permission to file a motion to dismiss the amended complaint. The Company believes that the allegations specified in the amended complaint are without merit, and intends to vigorously defend against the claims. OneMain Holdings said, "As the lawsuit is in the preliminary stages, the Company is unable to estimate a reasonably possible range of loss, if any, that may result from the lawsuit." No further updates were provided in the Company's SEC report. OneMain Holdings, Inc., through its subsidiaries, provides consumer finance and insurance products and services. The company operates in two segments, Consumer and Insurance, and Acquisitions and Servicing. OneMain Holdings, Inc. was founded in 1920 and is based in Evansville, Indiana. OPUS BANK: Schwartz Class Settlement Has Final Court Approval ------------------------------------------------------------- The United States District Court for Central District of California issued an Order and Final Judgment in the case captioned NANCY SCHWARTZ, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. OPUS BANK, STEPHEN H. GORDON, and MICHAEL L. ALLISON, Defendants. Civil No. 2:16-cv-07991-AB-JPR. (C.D. Cal.). This matter came before the Court for hearing to determine (i) whether the terms and conditions of the Stipulation and Agreement of Settlement and the proposed settlement embodied therein are fair, reasonable, and adequate and should be approved by the Court; and (ii) whether a Judgment providing, among other things, for the dismissal with prejudice of this Action against Defendants as provided for in the Settlement. Pursuant to Rule 23 of the Federal Rules of Civil Procedure and for purposes of settlement only, this Court finally certifies this Action as a class action with the Class defined as: all persons or entities who purchased shares of Opus common stock between January 26, 2015 and January 30, 2017, inclusive. Excluded from the Class are: (1) Defendants and members of the immediate family of any Defendant (2) any entity in which any Defendant has, or had during the Class Period, a controlling interest (3) the officers and directors of Opus during the Class Period and (4) the legal representatives, agents, executors, heirs, successors, or assigns of any of the foregoing excluded persons or entities who assert an interest in Opus common stock through or on behalf of any such excluded persons or entities. Also excluded from the Class are any putative Class Members who exclude themselves by filing a request for exclusion in accordance with the requirements set forth in the Notice. The Court finds and concludes, for purposes of settlement only, that the prerequisites for a class action under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure are satisfied in that: (1) the number of Class Members is so numerous that joinder of all Class Members is impracticable (2) there are questions of law and fact common to Class Members (3) Lead Plaintiff's claims are typical of the Class's claims (4) Lead Plaintiff and Lead Counsel have and will fairly and adequately represent and protect the interests of the Class (5) the questions of law and fact common to Class Members predominate over any individual questions; and (6) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for purposes of settlement only, the Court affirms its determinations in the Preliminary Approval Order and finally appoints Lead Plaintiff as class representative for the Class, and finally appoints Cohen Milstein Sellers & Toll PLLC, previously appointed as Lead Counsel, as counsel for the Class. A full-text copy of the District Court's November 5, 2018 Order is available at https://tinyurl.com/yc86pqwe from Leagle.com. Nancy Schwartz, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Charles Henry Linehan , Glancy Prongay and Murray LLP, Lesley F. Portnoy , Glancy Prongay and Murray LLP, Lionel Zevi Glancy , Glancy Prongay and Murray LLP & Robert Vincent Prongay , Glancy Prongay and Murray LLP. Arkansas Public Employees Retirement System, Lead Plaintiff, Plaintiff, represented by Lesley F. Portnoy , Glancy Prongay and Murray LLP, Lionel Zevi Glancy , Glancy Prongay and Murray LLP,Robert Vincent Prongay , Glancy Prongay and Murray LLP, Daniel S. Sommers , Cohen Milstein Hausfeld and Toll PLLC, pro hac vice, Stephen Douglas Bunch , Cohen Milstein Sellers and Toll PLLC, pro hac vice & Steven J. Toll , Cohen Milstein Sellers and Toll PLLC, pro hac vice. Opus Bank, Stephen H. Gordon & Michael L. Allison, Defendants, represented by Alexandra Rex Mayhugh , Cooley LLP, Caitlin B. Munley , Katten Muchin Rosenman LLP, pro hac vice, Eric A. Kuwana , Cooley LLP, pro hac vice & Samantha A. Strauss , Cooley LLP. PENTAGON FEDERAL: Court Throws Out Disabled Veteran's TILA Claim ---------------------------------------------------------------- The United States District Court for the District of Maryland issued a Memorandum Opinion granting in part and denying in part Defendant's Motion to Dismiss the Amended Complaint in case captioned TIFFANY NEAL Plaintiff, v. PENTAGON FEDERAL CREDIT UNION, Defendant. Civil Action No. ELH-18-451. (D. Md.). Plaintiff Tiffany Neal, a disabled veteran, filed a class action suit against Pentagon Federal Credit Union (PenFed), defendant. In a First Amended Class Action Complaint, she alleges that PenFed unlawfully withdrew disability benefits from her PenFed deposit account to cover overdue loan payments. Neal asserts the proverbial kitchen sink of claims. She contends that PenFed's seizure of her benefits violated her federal rights under 38 U.S.C. Section 5301, which statutorily protects disability benefits owed to veterans; the Truth in Lending Act (TILA); and the Electronic Fund Transfer Act (EFTA). In addition, she asserts State claims for breach of contract, negligence, negligent misrepresentation, constructive trust, accounting, unjust enrichment, conversion, as well as a violation of the Maryland Consumer Protection Act (MCPA). The Amended Complaint contains eleven causes of action: Violation of 38 U.S.C. Section 5301 (Count I); Breach of Contract (Count II); Negligence (Count III); Negligent Misrepresentation (Count IV); Constructive Trust (Count V); Accounting (Count VI); Unjust Enrichment (Count VII); Conversion" (Count VIII); Violation of the EFTA, (Count IX); Violation of the TILA (Count X); and Violation of the MCPA (renumbered as Count XI). The Court grants the Motion with respect to Count I, for violations of Section 5301; Count V, for constructive trust; Count VI, for an accounting; Count VII, for unjust enrichment; Count VIII, for conversion; Count X, for violations of the TILA; Count XI, for violations of the MCPA. Otherwise, the Motion is denied. Count II: Breach of Contract In Count II, Neal contends that PenFed wrongfully withdrew funds from Neal's deposit accounts, and that there was [no] disclosure by PenFed that plaintiff's future disability benefits would be taken from her deposit account to pay any delinquencies. Further, she asserts: At the time of signing the loan agreement, plaintiff knew and believed that the agreement would not affect any veterans disability benefits she would receive in the future. Conversely, PenFed maintains that Neal's subjective beliefs about the terms of her agreements with PenFed are irrelevant. In addition, PenFed argues that the contracts at issue the Promissory Note, the Membership Agreement, and the Cardholder Agreement expressly authorize it to take statutorily protected funds without notice. And, according to the contracts' express terms, PenFed asserts that it could not have breached the contracts by taking statutorily protected benefits. Indeed, Neal's subjective beliefs about the terms of the agreements do not inform the Court’s analysis here. In construing an unambiguous contract, the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract. At this juncture I cannot consider the terms of the contracts at issue. Indeed, the Court must accept, as true, Neal's factual allegations as to the terms of the contracts. Therefore, the Court will deny PenFed's Motion with respect to Count II. Count III: Negligence Neal asserts a negligence claim against PenFed. She contends that her loan agreement with PenFed created a duty to treat plaintiff fairly and in good faith. Specifically, she claims that PenFed owed a duty to Plaintiff to inform her that in the event of default her veterans disability benefits would be taken from her deposit accounts. In its Motion, PenFed argues, inter alia, that this claim must fail because it did not owe a tort duty to Neal, which is an essential element of a negligence claim under Maryland law. In Maryland, to assert a claim in negligence, the plaintiff must prove: (1) that the defendant was under a duty to protect the plaintiff from injury (2) that the defendant breached that duty (3) that the plaintiff suffered actual injury or loss and (4) that the loss or injury proximately resulted from the defendant's breach of the duty. Notably, when the dispute is over the existence of any valid contractual obligation covering a particular matter, or where the defendant has failed to recognize or undertake any contractual obligation whatsoever, the plaintiff is ordinarily limited to a breach of contract remedy. In contrast, when the defendant has proceeded on the basis that a contractual obligation exists, has undertaken that obligation, and has undertaken it in violation of the appropriate standard of care, the plaintiff may, in some circumstances, maintain a tort action. The Court agree with PenFed. As defendant points out, the only extra services Neal identifies are savings accounts, mortgages, auto-loans, and deposit accounts. Accordingly, no special circumstances existed to impose a duty of care on PenFed. Count IV: Negligent Misrepresentation Neal alleges a claim of negligent misrepresentation against PenFed. Plaintiff maintains that when she signed the loan agreement, she was misled as a result of PenFed's vague statements in the loan agreements. She claims that she was not aware that her veterans disability benefits would be deducted were a default to happen in the future. Again, PenFed contends, inter alia, that this claim is subject to dismissal, because no special circumstances give rise to an independent tort duty, an essential element of negligent misrepresentation under Maryland law. The the Maryland Court of Appeals set forth the elements of a claim for negligent misrepresentation under Maryland law: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage proximately caused by the defendant's negligence. Even assuming PenFed owed such a duty, PenFed contends that it could not have known that Neal would probably rely on the alleged omission, PenFed's alleged failure to disclose that it would withdraw veterans' benefits from Neal's deposit account in the event of a default. And, at the time of signing the loan agreements, Neal admits that she was not receiving any veterans disability benefits. As a result, PenFed maintains, it could not possibly have guessed that Neal would receive such benefits in the future. Accordingly, PenFed lacked knowledge that plaintiff would rely on the alleged omission. This argument is persuasive. Plaintiff's Amended Complaint fails to allege facts to support the elements of a negligent misrepresentation claim. As such, the Court shall grant PenFed's Motion as to Count IV. Count IX: EFTA In 1978, Congress enacted the EFTA as part of the comprehensive Consumer Credit Protection Act (CCPA). The EFTA was enacted to provide a basic framework establishing the rights, liabilities, and responsibilities of participants in electronic fund and remittance transfer systems. In her Amended Complaint, Neal insists that PenFed violated Section 1693e(a) because Neal was never provided a copy of any authorization that stated PenFed would take her veterans disability benefits incase [sic] of a default in loan repayment. PenFed argues that the transactions at issue fall within the exception laid out in 12 C.F.R. Section 1005.3(c)(5)(iii), involving automatic transfers between a consumer's account and an account of the financial institution. According to PenFed, Neal was provided a copy of, and in fact signed, the Promissory Note, which preauthorized the transactions. And, even assuming the transactions are covered under the EFTA, PenFed contends that the Promissory Note provided adequate notice of the transactions. PenFed's contentions hinge on whether the Promissory Note preauthorized the transfers between Neal's deposit account and an account of PenFed. And, as indicated, the Court may not consider the Promissory Note as evidence at this stage. Therefore, the Court must deny PenFed's Motion as to Neal's EFTA claim. A full-text copy of the District Court's November 5, 2018 Memorandum and Opinion is available at https://tinyurl.com/ybsjvfzy from Leagle.com. Tiffany Neal, Plaintiff, represented by Andrew Nyombi, KNA PEARL. Pentagon Federal Credit Union, Defendant, represented by Michael A. Graziano -- mgraziano@eckertseamans.com -- Eckert Seamans Cherin and Mellott LLC. PERRY FUNERAL: Judge Allows Class Action to Proceed --------------------------------------------------- George Hunter, writing for The Detroit News, reports that a Wayne County judge granted class-action status on Nov. 5 to a lawsuit filed by a woman who alleges Perry Funeral Home, Harper-Hutzel Hospital and others mishandled her daughter's remains, with her attorneys claiming the bodies of "well over 200" fetuses and babies could have met similar fates. Attorneys for Rachel Brown in July sued the funeral home, the hospital, Wayne State University and Knollwood Park Cemetery in Canton Township, alleging the remains of her daughter, Alayah Davis, were not handled properly after Ms. Brown requested the baby's body be donated to the Wayne State medical school for research. The allegations made in Ms. Brown's lawsuit prompted Detroit police last month to launch a criminal investigation into the matter. Detroit police had already initiated an investigation into Cantrell Funeral Home after 10 fetuses and one infant's remains were found hidden in a ceiling compartment during an Oct. 12 raid. A joint task force involving Detroit police, Michigan State Police, the FBI and the Michigan Department of Licensing and Regulatory Affairs was formed to investigate the case. Gov. Rick Snyder also assembled a multi-disciplinary team to investigate funeral homes statewide. Ms. Brown's attorneys Peter Parks and Daniel Cieslak on Nov. 5 told Judge Sheila Ann Gibson of Wayne County Circuit Court that more than 200 remains of infants and fetuses may have been mishandled by the defendants, based on entries in the Wayne State Mortuary Science log book. The attorneys also alleged during the Nov. 5's hour-long hearing that Perry employees filed false death certificates indicating they'd buried Alayah and other infants and fetuses in Knollwood Park Cemetery. At least two sets of remains that Perry claimed to have buried turned up in a box on Oct. 19, when Detroit police and state officials raided Perry's facility on Trumbull Avenue, Parks told the judge. A source familiar with the investigation told The Detroit News the remains of Alayah Davis and Rasheed Noble, whose parents are also represented by Parks and Cieslak -- and who also had a death certificate filed by Perry indicating she'd been buried in Knollwood Park -- were among the 63 fetuses found in an unrefrigerated box during the raid. "People handle graham crackers with more dignity than that," Parks said during the Nov. 5 hearing. Mr. Parks said that on Dec. 19, 2016, Perry employees filed at least seven delayed death certificates with the state, indicating they'd buried infant and fetal remains at Knollwood Park. After the Nov. 5 hearing, Brown said: "Justice will prevail. And I'm glad that not only can I represent other women ... (hopefully) everybody else's child will get the same justice as mine." Attorneys for Wayne State and Knollwood Park were not present during the Nov. 5 hearing. Wayne State spokesman Matt Lockwood said the school's part of the lawsuit was transferred to the Michigan Court of Claims, "so we're not part of the class-action lawsuit," he said. Knollwood Park General Manager Dennis Herman said on Nov. 5, "we don't file death certificates, and we never charged anyone for burials we didn't perform." Attorneys for Perry and the Detroit Medical Center/Harper-Hutzel Hospital insisted there are too many variables with the different sets of remains involved in the case to justify a class action, and that not all of the parents involved likely suffered emotional distress. DMC attorney Carlos Escora argued on Nov. 5: "They've not provided the evidence that anyone suffered actual injury. The plaintiff is asking the court to assume the 200 (remains) in the Wayne State mortuary (morgue), and the 63 fetuses (removed from Perry by police during the Oct. 19 raid) all suffered actual injury. "There are 263 individuals who have 263 different circumstances," Mr. Escora said. "Not all of them are likely to have suffered the same injury." The judge said she would deal with that issue when it comes up. Parks said HIPAA laws prevent him and Mr. Cieslak from obtaining records without parental permission that could show there are "well over 200 babies and fetuses similarly situated," which is why he said he wanted the court to name Brown as a representative in the class-action suit. "Appointment of Rachel Brown as a class representative will allow us access to crucial information that will allow these families to find out what happened to their babies," Mr. Parks said. "One subclass will complain how the hospital handled the remains. A second subclass could be babies who had false death certificates filed. What's unique about Rachel Brown is, she fits all categories." On April 30, 2015, Harper-Hutzel's Chief Medical Officer Patricia Wilkerson-Uddyback sent a letter to Perry saying the parents of 37 fetuses and dead infants had abandoned them at the hospital. "We have called and left messages, as well as sending Certified Letters in an attempt to have the Parents come in and sign off on the Final Dispositions," the letter said. "Unfortunately, no responses were received." Mr. Parks said during the Nov. 5 hearing that Ms. Wilkerson-Uddyback was unable to provide proof during an April 18 deposition that the hospital had sent out the certified letters or made phone calls to the parents. DMC attorney Josh Arnkoff told the judge Brown's lawsuit shouldn't be given class-action status because "none of the elements for a class action are met." "The plaintiffs all came from the April 30, 2015, letter to Perry," Mr. Arnkoff said. "There are already differences among those 37 remains; there are live births and stillbirth; and even within those there are differences." Mr. Arnkoff said some of the parents of those 37 infants and fetuses didn't ask for the remains to be returned to them, which he said means "their rights (to proper disposition) were waived. And of the 63 (fetuses and babies police removed from Perry), we don't know how many were abandoned." The judge said: "It's a known fact that 63 remains were found improperly kept at Perry," to which Mr. Arnkoff replied, "no, it's an allegation that they were improperly stored." Ms. Brown, along with other clients of Messrs. Parks and Cieslak, insist they thought their children's remains were going to the Wayne State medical school for research. "It's just hurtful to say that we . . . just tossed our babies away," Ms. Brown said. "That was never the case. It was to help other women not experience the pain . . . to find out what's wrong with these children and . . . prevent it from happening again." Messrs. Parks and Cieslak said they deduced at least 200 infant and fetal remains are involved because of entries in the logbook at the Wayne State mortuary science school morgue, which had an agreement with Perry going back more than 50 years allowing the funeral home to store remains there. The agreement was terminated last year. "There were a number of entries that said 'fetuses,' and that's all it said," Mr. Parks said. "Several others listed '48 fetuses,' '37 fetuses' and 'eight fetuses.' But when it just said 'fetuses,' it didn't say how many." Some of the log book entries contained names of the fetuses and their death dates, while others were marked simply "fetus" or "fetuses" with no number or any other information provided. Parks said if the plural entries of 'fetuses' contained only two sets of remains, the number of infants and fetuses involved is more than 200. "It's troubling when they say 'fetuses,' but they don't say how many," Parks said. Mark Evely, director of Wayne State's Mortuary Science program, said there's no law requiring the university to keep a log book of remains brought into the school morgue. "We were able to identify all those remains while they were in our facility," he said. "I don't know why (entries weren't made in the log book), but we could have identified any one of those individual remains while they were in our facility," Mr. Evely said. "A log book is not required by law. The funeral home fills out the log when they bring in remains and when they take them out." [GN] PRA GROUP: Placeholder Bid to Certify Class Sought in Woods Suit ---------------------------------------------------------------- Leticia Woods, et al., move the Court to certify the class described in the complaint of the lawsuit titled LETICIA WOODS, ELAINE BONIN, MANDY CERVENY, JEFFREY MERKOVICH, WENDY UNTERSHINE, Individually and on Behalf of All Others Similarly Situated v. PRA GROUP INC. and PORTFOLIO RECOVERY ASSOCIATES, LLC, Case No. 2:18-cv-01724 (E.D. Wisc.), and further ask that the Court both stay the motion for class certification and to grant them (and the Defendants) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiffs assert, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiffs tell the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiffs assert that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiffs are obligated to move for class certification to protect the interests of the putative class, according to the Motion. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiffs argue. The Plaintiffs also ask the Court to appoint them as class representatives, and to appoint Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiffs are represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com PROCTER & GAMBLE: Court Narrows Claims in Takano Suit ----------------------------------------------------- In the case, TOM TAKANO and TRACY MCCARTHY, individuals and on behalf of all others similarly situated, Plaintiff, v. THE PROCTER & GAMBLE COMPANY, Defendant, Case No. 2:17-cv-00385-TLN-AC (E.D. Cal.), Judge Troy L. Nunley of the U.S. District Court for the Eastern District of California granted in part and denied in part the Defendant's Motion to Dismiss Plaintiffs' Complaint. The Plaintiffs are named representatives of a proposed nationwide class of individuals and entities who have purchased products within the Herbal Essences Wild Naturals line by the Defendant within the past four years. The Plaintiffs contend at least nine different Herbal Essences Products labeled "Wild Naturals" contain synthetic, unnatural, and dangerous ingredients, which in their view renders the "Wild Naturals" label false, misleading, and designed to deceive consumers into paying a price premium, since the products are not entirely natural. They contend the labels on the Defendant's Products contain a host of misrepresentations including the "Wild Naturals" statement on both the front and back of the Products, the assertion that the Products allow consumers to "strengthen your hair naturally with the nurturing properties of Cassia," and at least one additional use of the word "naturally" on each of the labels. The Plaintiffs assert these alleged misrepresentations creates the impression amongst reasonable consumers that the Products are natural without adequately informing consumers that the Products contain numerous synthetic, unnatural, and dangerous ingredients. They maintain that the Defendant's ingredient list is insufficient in part because it is on the back of the Product packaging in small, hard-to-read print and, even then, fails to inform consumers that many of the ingredients listed are synthetic and unnatural. The Plaintiffs allege that due to Defendant's allegedly false and misleading "natural" claims, they purchased the Products at a price premium over other similar products. Absent these deceptive marketing practices, the Plaintiffs allege that they would not have purchased Wild Naturals Products nor paid a price premium over and above other products had they known the Products contain synthetic ingredients. The Plaintiffs bring 10 causes of action alleging violations of California's Consumer Legal Remedies Act ("CLRA"), False Advertising Law ("FAL"), multiple sections of California's Unfair Competition Law ("UCL"), New York Gen. Bus. Law. ("NY GBL") Section 349, and NY GBL Section 350, as well as claims for negligent misrepresentation, fraud, and breach of express warranty. Defendant filed the instant Motion to Dismiss before filing an answer. It moves to dismiss all counts arguing (1) the Plaintiffs lack standing to sue for several claims, (2) the Plaintiffs failed to state a claim under 12(b)(6), and (3) the Court must strike their request for punitive damages. Judge Nunley granted in part and denied in part the Defendant's Motion to Dismiss. He (i) granted the Defendant's Motion to Dismiss Plaintiffs' claims based on the Defendant's website with leave to amend; (ii) denied the Defendant's Motion to Dismiss Plaintiffs' claims to Products they have not purchased; (iii) denied the Defendant's Motion to Dismiss Counts I, II, III, IV, V, VI, VII, IX, and X; (iv) granted the Defendant's Motion to Dismiss Count VIII with prejudice as to the Plaintiffs' New York Negligent Misrepresentation Claim, but denied as to the Plaintiffs' California Negligent Misrepresentation Claim; and (v) denied the Defendant's Motion to Dismiss Plaintiffs' punitive damages claims. Among other things, the Judge finds that the Plaintiffs could not have actually relied on any website statements and lack standing under the UCL, FAL, and CLRA to challenge the statements on herbalessences.com. He finds that any claims under the UCL, FAL, and CRLA regarding representations on the Defendant's website are dismissed for lack of standing. The Plaintiffs concede that their New York negligent misrepresentation claim fails for lack of privity. Thus, Judge Nunley did not discuss this claim and granted the Defendant's motion to dismiss Plaintiffs' New York negligent misrepresentation claim. Should the Plaintiffs elect to do so, the Plaintiffs are granted 30 days from the date of the Order to file a first amended complaint. The Defendant is afforded 21 days from the date the Plaintiffs file an amended complaint to answer the complaint. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/Goln2C from Leagle.com. Tom Takano & Tracy McCarthy, Plaintiffs, represented by Yeremey Olegovich Krivoshey -- ykrivoshey@bursor.com -- Bursor & Fisher, P.A. Procter & Gamble Company, Defendant, represented by Raymond A. Cardozo -- rcardozo@reedsmith.com -- Reed Smith LLP. PROGRESSIVE GARDEN: 3rd Cir. Vacates Dismissal of Class Action -------------------------------------------------------------- In a victory for personal injury victims and insureds, the Third Circuit Court of Appeals vacated the dismissal of a consumer fraud class action brought against Progressive Garden State Insurance Company, alleging that the insurer engaged in a scheme to defraud policyholders after they were injured in motor vehicle accidents. In Alpizar-Fallas v. Progressive Garden Insurance Company, et al., the complaint alleges that Plaintiff, Ana Lidia Alpizar-Fallas, a Progressive insured, suffered a motor vehicle accident with another Progressive insured, Frank E. Favero, on December 14, 2014. The next morning, Progressive claim adjuster Brian Barbosa contacted Ms. Alpizar-Fallas, told her he was a Progressive agent, and asked if he could come to her home so that he could inspect her car and have her sign some "paperwork" that would expedite the processing of her property damage claim. Unbeknownst to Ms. Alpizar-Falls, the "paperwork" that Barbosa had her sign did not merely involve her property damage claim; it included a broadly-worded, comprehensive general release of all claims against Favero and Progressive, including any and all personal injuries resulting from the accident. Of course, Barbosa did not alert her to the release, did not explain its legal significance, did not tell her to seek legal counsel and did not communicate to her in Spanish, her native language. On behalf of all similar situated policyholders, the complaint alleges that this incident is part of wide-ranging scheme by Progressive to defraud its policyholders of insurance benefits in violation of the New Jersey Consumer Fraud Act. In the United States District Court for the District of New Jersey, Progressive filed a motion to dismiss, arguing, among other things, that the New Jersey Consumer Fraud Act did not apply to claims involving the denial of insurance benefits. In a three-page letter opinion, the District Court accepted Progressive’s argument and dismissed the complaint with prejudice, relying upon a recent New Jersey state appellate court decision while refusing to follow settled Third Circuit precedent. On appeal, the Third Circuit reversed. After discussing the history of the Consumer Fraud Act and its broad application to combat fraud, the Third Circuit reaffirmed its decision in Weiss v. First Unum Life Insurance Co., 482 F.3d 254 (3d Cir. 2007), which held that the Consumer Fraud Act applies not only to the initial sale of an insurance policy, but also to the insurer’s subsequent performance of that policy. The Third Circuit concluded that the facts alleged in the complaint, when taken together, "amount to an allegation of fraud in connection with the subsequent performance of a consumer contract, a situation explicitly covered by the language of the CFA, sanctioned by this Court in Weiss, and supported by the New Jersey Supreme Court’s broad statements regarding the application of the CFA." This decision is a triumph for personal injury victims and insureds, as it reaffirms that an insurance carrier will be subject to CFA liability if it fraudulently performs its obligations under an insurance policy, or employs deceptive practices aimed at defrauding insureds of their benefits. Insurance carriers have long used deceptive practices such as those alleged in Alpizar-Fallas to limit their liability both in New Jersey and nationwide. Now, they will face the CFA’s extensive remedies -- including treble damages and counsel fees -- if they persist. Charles X. Gormally, Esq., Thomas Kamvosoulis, Esq. and Kent D. Anderson, Esq. from Brach Eichler, LLC, handled the appeal on behalf of the Plaintiff. PROSPECT MEDICAL: Class in Gauzza Suit Conditionally Certified -------------------------------------------------------------- In the case, NANCY GAUZZA, MELISSA McCLOSKEY, Plaintiffs, v. PROSPECT MEDICAL HOLDINGS, INC., DELAWARE COUNTY MEMORIAL HOSPITAL, Defendants, Civil Action No. 17-3599 (E.D. Pa.), Judge Wendy Beetlestone of the U.S. District Court for the Eastern District of Pennsylvania granted in part and denied in part the Plaintiffs' motion to conditionally certify the case as a collective action under 29 U.S.C. Section 216(b) and to authorize the dissemination of a Notice to the members of the putative collective. In this putative collective and class action, Gauzza and McCloskey contend that Defendants Prospect Medical Holdings and Delaware County Memorial Hospital ("DCMH") violated the Fair Labor Standards Act, and the Pennsylvania Minimum Wage Act by failing to adequately pay certain employees for interrupted meal breaks. Defendant Prospect operates 20 hospitals in several states, one of which is Defendant DCMH. Plaintiff Gauzza has worked as a Registered Nurse at DCMH for 34 years. Plaintiff McCloskey has worked as a CAT Scan Technician at DCMH for 16 years. They claim that the Defendants did not compensate them and other similarly-situated caregivers for interrupted meal breaks, thereby depriving them of overtime premiums. More specifically, they allege that putative members of the collective action were promised one unpaid 30-minute break per shift, that the Defendants automatically deducted pay for that 30-minute break (known as an "auto-deduct" policy), and that the Defendants did not maintain policies for employees to prevent or reverse that automatic pay deduction when breaks were interrupted by work duties. Pending now is the Plaintiffs' motion to conditionally certify the case as a collective action under 29 U.S.C. Section 216(b) and to authorize the dissemination of a Notice to the members of the putative collective consisting of all persons who worked as a full-time hourly employee with hands-on patient care responsibilities at a Prospect hospital in Connecticut, New Jersey, Pennsylvania, or Texas in any workweek during the past three years. The Defendants contend that the collective action should not be conditionally certified, and that if it is, the Notice is deficient. They argue that that conditional certification should be denied because the Plaintiffs have not yet secured any additional members of the collective action. They also argue that because some employees who fall within the described collective group may have signed arbitration agreements as a condition of their employment and others may not have, it would be inefficient for the case to proceed as a collective action given the need to determine which agreements are enforceable and which are not. Judge Beetlestone opines that requiring the Plaintiffs to secure those opt-in Plaintiffs' participation before notice is issued would entirely defeat the purpose of the conditional certification process by requiring putative members to opt in without having received notice. And whether an employee has signed anarbitration agreement does not speak to the dispositive legal question at the conditional certification stage: whether the putative members have claims with a factual nexus to the Plaintiffs' claims. Accordingly, the Plaintiffs' motion to conditionally certify the class is granted. The Plaintiffs submit for approval a proposed notice to be mailed to all the potential members of the collective action. With one minor tweak, the Judge finds that the proposed notice is accurate and informative. Specifically, the notice suggests that putative collective members can only pursue their claims through the collective action and through the Plaintiffs' counsel. The putative members of the collective are not so restricted. Thus, he holds that the Plaintiffs must amend the notice to state that potential opt-ins have the right to retain their own counsel. Following the line on the second page that reads "However, if this lawsuit recovers money for the Class, you will not receive a payment," the Plaintiffs will add an additional sentence that states: "Regardless of the outcome of this lawsuit, if you do not join, you are free to seek an attorney to represent you on any claims that may or may not be related to those resolved in this lawsuit." In conclusion, Judge Beetlestone granted in part and denied in part the Plaintiffs' motion. She conditionally certified the collective action, and the proposed Notice is approved subject to the single modification noted. An appropriate order follows. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion is available at https://is.gd/bOFyEq from Leagle.com. NANCY GAUZZA & MELISSA MCCLOSKEY, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by ANDREW C. FICZKO -- aficzko@stephanzouras.com -- STEPHAN ZOURAS LLP, DAVID J. COHEN -- dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, JAMES B. ZOURAS -- jzouras@stephanzouras.com -- STEPHAN ZOURAS LLP & RYAN F. STEPHAN -- rstephan@stephanzouras.com -- STEPHAN ZOURAS LLP. PROSPECT MEDICAL HOLDINGS, INC. & DELAWARE COUNTY MEMORIAL HOSPITAL, Defendants, represented by SYLVIA JEANINE CONLEY -- jconley@littler.com -- LITTLER MENDELSON, DENISE M. MAHER -- dmaher@littler.com -- LITTLER MENDELSON, MATTHEW J. HANK -- mhank@littler.com -- LITTLER MENDELSON, P.C. & WENDY SUE BUCKINGHAM -- wbuckingham@littler.com -- LITTLER MENDELSON PC. RICHMOND ORGANIZATION: Court Won't Review Award of $352 Attys' Fees ------------------------------------------------------------------- In the case, WE will OVERCOME FOUNDATION and BUTLER FILMS, LLC, Plaintiffs, v. THE RICHMOND ORGANIZATION, INC. (TRO INC.) and LUDLOW MUSIC, INC., Defendants, Case No. 16cv2725 (DLC) (S.D. N.Y.), Judge Denise Cote of the U.S. District Court for the Southern District of New York denied the Plaintiffs' motion for reconsideration of Court' $352,000 award in attorneys' fees plus certain expenses and costs to the Plaintiffs pursuant to 17 U.S.C. Section 505. The case centers on the validity of two copyrights in the musical composition "We will Overcome." The Plaintiffs, We will Overcome Foundation and Butler Films, LLC, brought the action on April 14, 2016, challenging through a putative class action the validity of the Defendants' copyrights in the Song. The Song is a well known anthem of the American civil rights movement, although its precise origin is unknown. The Defendants obtained copyrights for the Song in 1960 and 1963 and have described their motive for doing so as to prevent the Song from being commercially abused. On Nov. 21, 2016, the Court granted the Defendants' motion to dismiss the Plaintiffs' state law claims but denied their motion to dismiss the copyright claims. On Sept. 8, 2017, the Court issued a Summary Judgment Opinion holding that the Plaintiffs had carried their burden of showing that verses one and five of the Song lacked the originality required for protection as a derivative work, and that the defendants had not offered evidence of originality sufficient to raise a material question of fact requiring a trial. The Summary Judgment Opinion denied the Plaintiffs' remaining claims on the issues of authorship, divestment, and fraud. Following a series of other motions, trial was set for Feb. 5, 2018, but the parties entered into a settlement, which was filed on Jan. 26, 2018, and so ordered by the Court. Following settlement, the Plaintiffs moved for an award of attorneys' fees, in the amount of over $1 million, under Section 505 of the Copyright Act. On July 31, 2018, the Court issued an opinion awarding fees in the amount of $352,000. On Aug. 8, 2018, the Plaintiffs filed the motion for reconsideration or reargument of the Attorneys' Fee Opinion. Their motion boils down to their contention that the Court erred in finding that a reasonable, hourly-fee paying client would have paid significantly less than the fee now sought by the Plaintiffs' counsel because it did not consider the Plaintiffs' actual difficulties finding counsel to represent them in the case. Judge Cote concludes that the Plaintiffs' motion for reconsideration is without merit. They have not presented new evidence that merits adjustment to the attorneys' fee calculation and do not argue that a change in law has occurred or that a clear error in the Opinion must be corrected. Finally, no manifest injustice requires reconsideration. The fees awarded further the aims of copyright law and no further award against the Defendants is merited. Therefore, she denied the Aug. 8, 2018 motion for reconsideration of the July 31, 2018 attorneys' fee award. A full-text copy of the Court's Oct. 26, 2018, 2018 Opinion and Order is available at https://is.gd/cuHonZ from Leagle.com. We will Overcome Foundation, On behalf of itself and all others similarly situated, Plaintiff, represented by Mark C. Rifkin -- rifkin@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP, Gloria Kui Melwani -- melwani@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP & Randall Scott Newman -- Newman@whafh.com -- Wolf Haldenstein Adler Freeman & Herz. Butler Films, LLC, Plaintiff, represented by Mark C. Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP & Randall Scott Newman, Wolf Haldenstein Adler Freeman & Herz. The Richmond Organization, Inc. & Ludlow Music, Inc., Defendants, represented by Paul V. LiCalsi -- PLiCalsi@RobinsKaplan.com -- Robins Kaplan, LLP & Ofer Reger -- OReger@RobinsKaplan.com -- Robins Kaplan LLP. RIOT GAMES: Employees File Gender Discrimination Class Action ------------------------------------------------------------- Cecilia D'Anastasio, writing for Kotaku reports that on Nov. 5, one current and one former employee of Riot Games filed a class action lawsuit against the League of Legends publisher, accusing it of endemic gender-based discrimination and fostering a "men-first" environment. The lawsuit comes three months after a Kotaku investigation into the sexist culture at Riot Games. The lawsuit alleges that, "like many of Riot Games' female employees, Plaintiffs have been denied equal pay and found their careers stifled because they are women. Moreover, Plaintiffs have also seen their working conditions negatively impacted because of the ongoing sexual harassment, misconduct, and bias which predominate the sexually-hostile working environment of Riot Games." Riot violated California's Equal Pay Act and law against gender-based discrimination at the workplace, the complaint argues. The plaintiffs are asking for compensation on unpaid wages, damages, and other penalties, with an exact amount to be determined at trial. They also ask the court to certify the suit as class action. In August, Kotaku detailed Riot Games' culture of sexism in an investigative report that cited experiences from 28 current and former employees, most of whom described Riot's working environment as sexist. One of those sources, Jessica Negron, is one of the two plaintiffs in this lawsuit. Kotaku's report revealed that Riot's so-called "bro culture" inspires and, in some instances, rewards behavior that disadvantages women. The 2,500-employee games company, which is 80% male, regularly turned down female applicants for not fitting the company's image of "core gamers," sources said. Women interviewed also said that Riot's obsession with "culture fits" reinforced a culture that hired and promoted aggressive male personalities and disadvantaged and harmed female recruits and employees. When sources called out their colleagues' sexist behavior, many said, their complaints were brushed aside or used to thwart their careers. After Kotaku's report, Riot posted a blog post apologizing to current and former employees and promising sweeping changes to the company culture. One month later, in September, Riot still employed several of the key alleged perpetrators of abusive behavior, including COO Scott Gelb, who was said to have grabbed colleagues' genitals, another man who allegedly stifled several women's careers and verbally harassed them, and one other who was said to have had a history of making sexually charged comments or advances toward unwilling female employees. (Mr. Gelb did not respond to a request for comment last month.) Riot also brought on Seyfarth Shaw, a law firm that, in the past, was known for its history busting unions. Riot has, however, purged many of the people who were accused of facilitating a toxic culture, several current and former employees have told Kotaku. The plaintiffs bringing the complaint against Riot say they want to stop Riot's alleged practice of paying men more than women who are fulfilling the same job role, promoting men into more superior roles more frequently than women, and demoting women who had similar qualifications as well-compensated men. The lawsuit complaint also says it wants to prevent Riot from "creating, encouraging, and maintaining a work environment that exposes its female employees to discrimination, harassment, and retaliation on the basis of their gender or sex." Riot did not immediately respond to Kotaku's request for comment about the lawsuit. [Update—7:20 pm ET]: Riot sent the following statement to Kotaku: "While we do not discuss the details of ongoing litigation, we can say that we take every allegation of this nature seriously and investigate them thoroughly. We remain committed to a deep and comprehensive evolution of our culture to ensure Riot is a place where all Rioters thrive." Ms. Negron says in the lawsuit (and has told Kotaku) that soon after she was hired, her manager quit and she took on her job duties without adequate compensation or a change in job title. Although she asked her superiors about making her title official, she was never interviewed for the position and, instead, three men were hired into the role one after another. Later, after her third supervisor left, the lawsuit says Negron was offered to perform the role again, still without proper compensation or a job title change. The lawsuit includes details previously unknown to Kotaku as well, like Ms. Negron's claim that in just one month, she counted that her male colleagues at Riot used the word "dick" over 500 times. The lawsuit also says Negron's third supervisor had told her that "diversity should not be a focal point of the design of Riot Games' products because gaming culture is the last remaining safe haven for white teen boys." Current Riot employee Melanie McCracken, who is the second plaintiff in the lawsuit, says she has been working at Riot since 2013 and observed "discrimination based on her sex/gender." She believes she was denied promotions, punished by male leadership and refused proper compensation as part of a trend in discrimination against women. Her initial supervisor, the lawsuit says, "did not hire females to fill vacancies in senior employment positions." The complaint says he told Ms. McCracken that he would "feel weird having a male" as an assistant. She told her supervisor she wanted a more senior role, which he apparently responded to negatively. When Ms. McCracken complained to HR about his response and gender-based discrimination at Riot, the complaint says that HR failed to keep the meeting confidential and leaked the information to her supervisor. Ms. McCracken took a new position in 2015 as an office manager in the North America region. Her former supervisor, the complaint said, was promoted in a senior position there in 2016. Then, the complaint says, she was apparently "given a five-month countdown to find a new position or 'be fired.'" In 2017, Ms. McCracken took on yet another position that had her working with Riot Games' top three employees, COO Scott Gelb, CEO Nicolo Laurent and president Dylan Jadeja. One year later, Ms. McCracken says she received a video of two of her colleagues, including Gelb, "at a dance club with scantily-clad women in Shanghai." Later, after making a veiled joke about it to colleagues, the complaint says McCracken was pulled into a one-on-one with Gelb in which Ms. McCracken was asked to "clean up" rumors spread about him in his absence (in part because Kotaku's report was close to publication). McCracken implies she was partially blamed for the Shanghai story leaking out into the workplace at some point later. Afterward, Ms. McCracken, whom the complaint says was close to getting promoted, was reportedly prevented from attending meetings with senior leadership and that some of her current projects were cut off at the knees. When SeyFarth Shaw investigated, the complaint says, Ms. McCracken was simply moved to another building and away from her team. [GN] RISTORANTE LA BUCA: Court Conditionally Certifies Wright FLSA Class ------------------------------------------------------------------- In the case, NICHOLAS J. WRIGHT, v. RISTORANTE LA BUCA INC., et al, Civil Action No. 18-2207 (E.D. Pa.), Judge Mark E. Kearney of the U.S. District Court for the Eastern District of Pennsylvania (i) granted the Plaintiffs' motion to conditionally certify a Fair Labor Standards Act collective action, but denied Plaintiffs' motion to certify a Rule 23(b)(3) class action under Pennsylvania Law. The Judge conditionally certified the action to proceed as a collective action under the Fair Labor Standards Act on behalf of all tipped employees who worked for Defendants during the last three years. He finds that the Plaintiff makes a modest factual showing Ristorante La Buca's tipped employees are "similarly situated." The Plaintiff adduced evidence Ristorante La Buca failed to provide him sufficient notice of its utilization of the tip credit. He ordered the Defendants to produce, no later than Nov. 2, 2018, a list of all persons they employed at Ristorante La Buca utilizing a tip credit during the last three years, including their name, job title, address, email address, telephone number, dates of employment, date of birth, and last four digits of their Social Security number. The Plaintiff will provide the Defendants' counsel with a draft court-facilitated notice and protocol no later than Nov. 2, 2018. The Defendants will offer comments upon the draft and protocol to the Plaintiffs counsel by Nov. 6, 2018, and the Plaintiff will move for approval of his proposed Court-facilitated notice with a memorandum not exceeding 10 pages identifying all areas of disagreement on the notice in an attached black-lined version of the proposed Notice on Nov. 9, 2018. The Defendants may file memoranda not exceeding 10 pages explaining their dispute with the proposed protocol or proposed black-lined notice on Nov. 13, 2018. Jude Kearney denied the Plaintiff's motion to certify a Rule 23(b)(3) class action under Pennsylvania Law. He finds that the Plaintiff has not, by a preponderance of the evidence, shown joinder of 20 or 22 employees known to him and who already enjoy the right to opt into the Federal Law claims and be represented by the same counsel cannot practically join into his Pennsylvania state law claims. The Plaintiff may move for class certification with additional evidence meeting his burden under Rule 23(b)(3) consistent with the Court's Policies and July 6, 2018 Order no later than Nov. 30, 2018 with a response, if warranted by the Law, no later than Dec. 10, 2018. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/IJr53V from Leagle.com. NICHOLAS J. WRIGHT, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by ARKADY ERIC RAYZ -- erayz@kalraylaw.com -- KALIKHMAN & RAYZ LLC, GERALD D. WELLS, III -- gwells@cwglaw.com -- CONNOLLY WELLS & GRAY, LLP & STEPHEN EDWARD CONNOLLY -- sconnolly@cwglaw.com -- CONNOLLY WELLS & GRAY LLP. RISTORANTE LA BUCA INC., doing business as RISTORANTE LA BUCA, JEANIE GIULIANI, DOE DEFENDANTS 1-10 & ANTHONY GIULIANI, Defendants, represented by RICHARD J. GIULIANI, THE BELL ATLANTIC TOWER. RYANAIR HOLDINGS: Robbins Geller Files Class Action in New York --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Nov. 6 disclosed that a class action has been commenced by an institutional investor on behalf of purchasers of Ryanair Holdings plc (NASDAQ: RYAAY) American Depositary Shares ("ADSs") during the period between May 30, 2017 and September 28, 2018 (the "Class Period"). This action was filed in the Southern District of New York and is captioned City of Birmingham Firemen's and Policemen's Supplemental Pension System v. Ryanair Holdings plc., et al., No. 18-cv-10330. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Ryanair ADSs during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 6, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or Brian E. Cochran of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/ryanair/. The complaint charges Ryanair and its Chief Executive Officer, Michael O'Leary, with violations of the Securities Exchange Act of 1934. Ryanair is a Dublin-based airline operator. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding Ryanair's business and operations as a result of its aggressive anti-employee practices and opposition to employee collectivization efforts. Specifically, the complaint alleges that defendants misrepresented and/or failed to disclose, among other things, that Ryanair's labor relations had deteriorated in 2017 and 2018. As a result, the Company was experiencing increased employee turnover and was threatened with massive strikes and other disruptions across its operations, and its historical operating model and profit growth were not sustainable. On September 14, 2017, it was reported that Ryanair had lost a key ruling in the European Court of Justice that cast doubt on the legality of the Company's use of Irish employment contracts to evade local labor laws throughout Europe. The next day, Ryanair announced that it would need to cancel up to 50 flights a day for the next six weeks due to pilot "schedul[ing]" issues. Reports began to circulate that the disruption was not due to scheduling issues, as the Company had claimed, but rather to widespread defections by disgruntled employees. Then, according to the complaint, in December 2017, Ryanair reversed its earlier position and conceded its need to recognize unions, but continued to downplay the extent of the labor unrest and conceal the expected impact to the Company's operations and financial results. However, in the summer of 2018, discontent among Ryanair's workers continued to spill out into the open, belying defendants' public claims regarding improved labor relations and forcing workers into threatening collective action. The resulting flight cancellations damaged the Company's brand and forced it to pay millions in compensation costs or to re-route fliers. On July 23, 2018, Ryanair disclosed a 20% decrease in quarterly profits, due in part to a 34% increase in staff costs. Then, on October 1, 2018, the Company revealed that it could not meet its annual profit guidance due to the lost fares and ballooning costs related to the strikes and flight cancellations. By market close on October 1, 2018, the price of Ryanair ADSs had fallen to $80.93 per ADS, 36% below the Class Period high of more than $126 per ADS. Plaintiff seeks to recover damages on behalf of all purchasers of Ryanair ADSs during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a law firms representing investors in securities litigation. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For five consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. [GN] SCANA CORP: Bid to Dismiss Consolidated Securities Suit Pending --------------------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the defendants' motions to dismiss the consolidated class action lawsuit entitled, In re SCANA Corporation Securities Litigation, is pending. On September 27, 2017, a purported class action was filed against SCANA, Kevin B. Marsh, Jimmy E. Addison, and Stephen A. Byrne by plaintiff Robert L. Norman, on behalf of himself and all others similarly situated, in the District Court (the "Norman Lawsuit"). The plaintiff alleges, among other things, that the defendants violated §10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, and that the individual named defendants are liable under Section 20(a) of the Exchange Act. The plaintiff seeks compensatory and consequential damages, attorneys' fees, and any other relief the court deems proper. On January 23, 2018, the District Court granted consolidation of the Norman Lawsuit, the Evans Lawsuit, the Fox Lawsuit, and the West Palm Beach Lawsuit, (as such terms are hereinafter defined), and granted plaintiffs' requests for appointment of lead counsel. The consolidated case is captioned In re SCANA Corporation Securities Litigation. The plaintiffs filed a consolidated amended complaint on March 30, 2018. At September 30, 2018, the defendants' motions to dismiss were pending. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Continues to Defend Glibowski Class Suit ---------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself from a purported class action suit initiated by Timothy Glibowski. On January 31, 2018, a purported class action was filed by Timothy Glibowski, on behalf of himself and all others similarly situated, in the District Court (the "Glibowski Lawsuit"). The action, as subsequently amended on April 23, 2018, is against SCANA, SCE&G, Kevin Marsh, Jimmy Addison, Stephen Byrne, Martin Phalen, Mark Cannon, Russell Harris, Ronald T. Lindsay, James Micali, and Lonnie Carter. The plaintiff alleges, among other things, that the Company, SCE&G and the individual defendants participated in an unlawful racketeering enterprise in violation of RICO 18 U.S.C. Section 1961 et seq., and conspired to violate RICO 18 U.S.C. Section 1962(c) by fraudulently inflating utility bills to generate unlawful proceeds. Plaintiff seeks treble damages, attorneys' fees, and any other relief the court deems proper. No further updates were provided in the Company's SEC report. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Corporation Securities Suit Underway ------------------------------------------------ SCANA Corporation continues to defend against the case captioned as, In re SCANA Corporation Securities Litigation, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018. On October 5, 2017, a purported class action was filed against SCANA, Kevin B. Marsh, and Jimmy E. Addison by plaintiff Kenneth Evans on behalf of himself and all others similarly situated in the District Court (the "Evans Lawsuit"). The plaintiff makes substantially similar allegations as those alleged in the Norman Lawsuit, and seeks substantially similar relief. As noted, on January 23, 2018, this case was consolidated and is captioned In re SCANA Corporation Securities Litigation. No further updates were provided in the Company's SEC report. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Metzler Lawsuit Held in Abeyance -------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that motions to stay and to consolidate the Metzler Lawsuit with the City of Warren Lawsuit have been held in abeyance. On February 8, 2018, a purported class action was filed against Gregory Aliff, James Bennett, John Cecil, Sharon Decker, Maybank Hagood, Lynne Miller, James Roquemore, Maceo Sloan, Alfredo Trujillo, Dominion Energy, and Sedona by plaintiffs Metzler Asset Management GmbH and Joseph Heinz in the Richland County Court (the "Metzler Lawsuit"). The plaintiffs allege, among other things, that defendants violated their fiduciary duties to shareholders by executing a merger agreement that would unfairly deprive plaintiffs of the true value of their SCANA stock, and that Dominion Energy and Sedona aided and abetted these actions. Among other remedies, the plaintiffs seek to enjoin and/or rescind the proposed merger, as well as unspecified monetary damages, attorneys' fees, and any other relief the court deems proper. On February 21, 2018, Dominion Energy removed the case to the District Court, and filed its Motion to Dismiss on March 9, 2018. On August 1, 2018, the case was remanded back to the Richland County Court. Dominion Energy and Sedona appealed the decision to remand to the Court of Appeals, where the appeal has been consolidated with a appeal from the City of Warren Lawsuit and remains pending at September 30, 2018. Motions to stay and to consolidate this case with the City of Warren Lawsuit were being held in abeyance at September 30, 2018. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: Turner Class Action Settled for Under $100,000 ---------------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the purported class action suit initiated by Mary Turner has been settled in September 2018 for an amount that was less than $100,000 On March 15, 2018, a purported class action was filed against SCANA, Dominion Energy, Sedona, Jimmy E. Addison, Gregory E. Aliff, James A. Bennett, John F.A.V. Cecil, Sharon A. Decker, D. Maybank Hagood, Lynne M. Miller, James W. Roquemore, Maceo K. Sloan, and Alfredo Trujillo by plaintiff Mary Turner, on behalf of herself and all others similarly situated in the District Court. The plaintiff alleged, among other things, that the defendants violated provisions of Section 14(a) of the Exchange Act and SEC Rule 14a-9 by allowing or causing misleading proxy statements to be issued. The plaintiffs alternatively sought to enjoin the merger, monetary damages, attorneys' fees, and any other relief the court deemed proper. This lawsuit was settled in September 2018 for an amount that was less than $100,000, and the plaintiff released all of her claims with respect to material facts and omissions that were brought or could have been brought in the lawsuit. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SCANA CORP: West Palm Beach Firefighters' Suit Consolidated ----------------------------------------------------------- SCANA Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 5, 2018, for the quarterly period ended September 30, 2018, that the class action suit initiated by West Palm Beach Firefighters' Pension Fund has been consolidated and is now captioned as In re SCANA Corporation Securities Litigation. On November 17, 2017, a purported class action was filed against SCANA, Kevin B. Marsh, Jimmy E. Addison, and Steve B. Byrne by plaintiff West Palm Beach Firefighters' Pension Fund on behalf of itself and all others similarly situated in the District Court (the "West Palm Beach Lawsuit"). The plaintiff makes substantially similar allegations as those alleged in the Norman Lawsuit, and seeks substantially similar relief. As noted, on January 23, 2018, this case was consolidated and is captioned In re SCANA Corporation Securities Litigation. No further updates were provided in the Company's SEC report. SCANA Corporation, through its subsidiaries, engages in the generation, transmission, distribution, and sale of electricity to retail and wholesale customers in the United States. The company owns nuclear, coal, hydro, natural gas, oil, biomass, and solar generating facilities. The company was founded in 1924 and is based in Cayce, South Carolina. SEATTLE CITY: Law Firm Mulls Class Action Over Electric Bills ------------------------------------------------------------- Deedee Sun, writing for KIRO7, reports that another batch of Seattle City Light customers are seeing sticker shock from their latest electric bills. They say their bills have doubled -- even tripled. This comes as a Seattle law firm McNaul Ebel gathers customer complaints to potentially file a class-action suit against the city for overcharging customers. Most of the customers in the latest round of bill spikes say they saw a spike in their bills after transitioning "advanced metering" or getting smart meters. Now many of those customers say they believe they're being overcharged, and some are considering signing up to participate in the potential class-action lawsuit. "Very shocked, sticker shock you would say. So we contacted Seattle City Light and basically we got no response," said Rick Rowell, who lives in Magnolia. His most recent electric bill shows a usage chart that says his September usage this year has tripled compared to last year. "See, consistent usage, then boom. The anomaly is just crazy," Mr. Rowell said. [GN] SOUTHWEST AIRLINES: Passengers Set to Get Settlement Payout ----------------------------------------------------------- Svilen Petrov, writing for Wings Journal, reports that if you have flown on an airplane within the past 7 years, then you may be entitled to compensation. A class action lawsuit has been filed against Southwest Airlines, Delta Airlines, United Airlines and American Airlines. These airlines have been accused of limiting the number of available seats on the flights so that they could raise the ticket prices. Sally Anderson is a resident of Blaine, Minnesotta. She flew out of Minneapolis-St. Paul International Airport. She stated that she is not surprised that the airline decided to hike up the prices. She said that airlines do not do things to make things convenient and comfortable for customers. They are just doing it for the money. Passengers are being notified about the class action lawsuit via email. Information about the class action lawsuit is also being spread on social media. There are millions of people being contacted. That is why if a person does get a payout, then it will likely be very small. Charles Moore is an attorney who works in Minneapolis. He stated that it is important to remember that millions of people have flown with these airlines. American Airlines and Southwest have agreed to a settlement of $60 million. However, they have denied any wrongdoing. United Airlines and Delta have not agreed to a settlement yet. If you purchased a ticket anytime between July 1, 2007 and December 31, 2017, then you qualify for compensation. Mr. Moore confirmed that any amount that you get will be small. He also stated there is a possibility that you will not get any money from the lawsuit. People will get a portion of the settlement after all of the fees for settlement administration, attorneys, government entities and charities are deducted. You will have to file a claim in order to get compensated. [GN] TBC CORPORATION: Hamilton Appeals C.D. Cal. Ruling to 9th Circuit ----------------------------------------------------------------- Plaintiffs Julie Hamilton, Lyle Mclean, Sam Flowers and Nestor Diaz filed an appeal from a court ruling in their lawsuit entitled Julie Hamilton, et al. v. TBC Corporation, et al., Case No. 2:17-cv-01060-DMG-JEM, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the Hon. Judge Dolly M. Gee certified: 1. the Colorado Class with respect to Plaintiffs' claims under Colorado law: "all persons who reside in Colorado who purchased or acquired a Power King Towmax STR trailer tire, from February 9, 2014 to the present." 2. the Florida Class with respect to the Florida Deceptive and Unfair Trade Practices Act claim: "all persons who reside in Florida who purchased or acquired a Power King Towmax STR trailer tire, from February 9, 2013 to the present." The appellate case is captioned as Julie Hamilton, et al. v. TBC Corporation, et al., Case No. 18-80151, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Petitioners JULIE HAMILTON, individually and behalf of all others similarly situated, LYLE MCLEAN, SAM FLOWERS and NESTOR DIAZ are represented by: Stephen M. Fishback, Esq. Daniel L. Keller, Esq. KELLER, FISHBACK & JACKSON, LLP 28720 Canwood Street, Suite 200 Agoura Hills, CA 91301 Telephone: (818) 342-7442 Facsimile: (818) 342-7616 E-mail: sfishback@kfjlegal.com dkeller@kfjlegal.com Defendants-Respondents TBC CORPORATION and DYNAMIC TIRE CORPORATION are represented by: Kent R. Christensen, Esq. Delavan Dickson, Esq. John Thomas Egley, Esq. CALL & JENSEN, APC 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Telephone: (949) 717-3000 E-mail: kchristensen@calljensen.com ddickson@calljensen.com jegley@calljensen.com TREVENA INC: Robbins Geller Files Class Action in Pennsylvania -------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Nov. 6 disclosed that a class action has been commenced on behalf of purchasers of Trevena, Inc. (NASDAQ:TRVN) common stock during the period between May 2, 2016 and October 9, 2018 (the "Class Period"). This action was filed in the Eastern District of Pennsylvania and is captioned Louis v. Trevena, Inc., et al., No. 18-cv- 4779. The Private Securities Litigation Reform Act of 1995 permits any investor who purchased Trevena common stock during the Class Period to seek appointment as lead plaintiff. A lead plaintiff acts on behalf of all other class members in directing the litigation. The lead plaintiff can select a law firm of its choice. An investor's ability to share in any potential future recovery is not dependent upon serving as lead plaintiff. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 11, 2018. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. You can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/trevena-inc/. The complaint charges Trevena and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Trevena is a clinical stage biopharmaceutical company. The Company's most advanced drug under development during the Class Period was Olinvo, an intravenous pain reliever that was undergoing a Phase III clinical trial for the treatment of moderate-to-severe postoperative-pain after surgery. According to Trevena, its Phase II clinical trial for Olinvo had demonstrated that the drug was superior to the standard of care for post-surgery pain reduction, morphine. The complaint alleges that during the Class Period, defendants made false and misleading statements and/or failed to disclose adverse information regarding the prospects for Olinvo. Specifically, defendants failed to disclose that the U.S. Food and Drug Administration ("FDA") had expressly warned Trevena, prior to the start of the Class Period, that there were many defects in the design of its Phase III clinical trial – design defects Trevena refused to remedy – that threatened to render the data derived in the Phase III clinical trial worthless. As a result, the Company's prospects for obtaining FDA approval for commercial distribution of Olinvo, and its eventual commercial success, were much lower than defendants had led the market to believe throughout the Class Period. Based on defendants' material misleading statements and omissions concerning the strength of its clinical development program, the design of its Phase III Olinvo clinical trial and its prospects for obtaining FDA approval to commercially distribute Olinvo, the price of Trevena common stock was artificially inflated during the Class Period to more than $8 per share. On February 21, 2017, when the Company disclosed the results of the Phase III clinical trial of Olinvo, the data failed to show that Olinvo caused any meaningfully less adverse effects than morphine. On this news, the price of Trevena common stock declined 40%, or $3 per share. On October 9, 2018, the FDA made public its prior criticisms of the design of the Phase III clinical trial and disclosed that its Advisory Committee was recommending that the FDA reject the Company's New Drug Application for Olinvo. On this news, the price of Trevena common stock fell another 64%, or almost $2 per share, on October 9, 2018. Then on October 11, 2018, trading in Trevena common stock was halted on pending news. Later that day, the Company disclosed that the FDA Advisory Committee had voted against approving Olinvo. While Trevena contended that "[t]he FDA [was] not bound by the Advisory Committee's recommendations" that day, it also acknowledged that the FDA "takes its advice into consideration when making its decision." When trading recommenced on October 12, 2018, the stock price dropped another 7%, closing below $1 per share. Plaintiff seeks to recover damages on behalf of all purchasers of Trevena common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a law firm representing investors in securities litigation. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. For five consecutive years, ISS Securities Class Action Services has ranked the Firm in its annual SCAS Top 50 Report as one of the top law firms in both amount recovered for shareholders and total number of class action settlements. Robbins Geller attorneys have helped shape the securities laws and recovered tens of billions of dollars on behalf of aggrieved victims. Beyond securing financial recoveries for defrauded investors, Robbins Geller also specializes in implementing corporate governance reforms, helping to improve the financial markets for investors worldwide. [GN] TWO OCEAN: Teachers File Class Action Over Compulsory Union Fees ---------------------------------------------------------------- Amanda Oglesby, writing for Asbury Park Press, reports that two New Jersey teachers, backed by a national group, are suing their local and state unions to stop the labor groups from collecting fees without teachers' consent. Susan G. Fischer, a Italian teacher in the Township of Ocean Intermediate School, and Jeanette Speck, a seventh-grade social studies teacher in the same school, claim in a class action lawsuit that New Jersey is violating a U.S. Supreme Court ruling from June that allows them to stop paying dues. They argue that New Jersey law is defying a recent U.S. Supreme Court's ruling that says states and unions cannot compel public employees to pay union dues. New Jersey gives teachers only 10 days following the anniversary of their employment each year to withdraw from paying union dues, according to the lawsuit filed on Nov. 2. "Contrary to the wishes of New Jersey union bosses and their allies in the state legislature, First Amendment rights cannot be limited to just 10 days out of the year," Mark Mix, president of the National Right to Work Legal Defense Foundation, said in a news release. The lawsuit also seeks to recoup fees paid by the teachers. The National Right to Work Legal Defense Foundation, a group that has fought compulsory union membership across the nation, is assisting Ms. Fischer and Ms. Speck with the lawsuit. The New Jersey Education Association (NJEA) charges annual membership dues for the 2018-19 school year of $928 for full-time teachers, administrators, counselors, nurses and contracted substitutes. School secretaries, clerks, custodians, bus drivers and cafeteria staff dues are $451 annually, according to the association's website. The state union has more than 203,000 members. The association's website said the union gives its members legal services, discounts on products, access to special events, and special offers that save teachers thousands of dollars each year. "This is another attack funded by wealthy anti-union groups seeking to undermine the rights of working people to form strong, effective unions," Steven Baker, a spokesman for the NJEA, said in an email to the Press. Prior to the Supreme Court ruling, New Jersey was one of 22 states that required public employees to pay union dues, according to the New Jersey School Boards Association. Even if an employee decided not to join the union, state statue still compelled them to pay 85 percent of the union's fee, called a "representation fee." Ms. Speck and Ms. Fischer, in their lawsuit, argued that compulsory union dues violated their First Amendment rights, and given the choice, they would not have subsidized the union. On June 27, the Supreme Court ruled against unions in Janus vs. AFSCME and found fee requirements unconstitutional under the First Amendment. In July, Ms. Speck and Ms. Fisher notified the NJEA and their local teaches' union that they were resigning from their union membership and each revoked their dues authorizations, according to the lawsuit. Yet, the unions failed to stop collecting the dues, and referenced New Jersey's law that their notice was not filed within the 10-day window following the anniversary of their employment, the lawsuit alleges. An attorney for Ms. Speck and Ms. Fischer did not immediately return a call for comment on Nov. 5. Ms. Fischer and Ms. Speck are seeking to have New Jersey's law overturned, be reimbursed for the union dues taken from their wages, and block the NJEA and local teachers' unions from collecting dues from employees without consent. In June, a Gloucester County teacher filed a similar lawsuit against the New Jersey Education Association over "representation fees" charged to non-union members. The case was voluntarily dismissed in October, according to court records. [GN] UNITED STATES: EFF Urges Court to Keep Spying Class Action Alive ---------------------------------------------------------------- Sophia Morris, writing for Law360, reports that the Electronic Frontier Foundation continues to urge a California federal court to keep alive its long-running class action against the National Security Agency over its alleged unlawful mass surveillance of Americans. [GN] UNIVERSITY MEDICAL: Ct. Grants $570K Attorney's Fees in Wage Suit ----------------------------------------------------------------- The United States District Court for the District of Nevada issued an Order granting Plaintiffs' Motion for Costs and Attorney's Fees in the case captioned DANIEL SMALL, et al., Plaintiffs, v. UNIVERSITY MEDICAL CENTER, et al., Defendants. Case No. 2:13-cv-0298-APG-PAL. (D. Nev.). The court awards total attorneys' fees in the amount $570,885.00 and costs of $248,830.00 for a total monetary sanction against UMC in the amount of $819,715.00. This case involves a dispute over unpaid wages and overtime compensation. Three named plaintiffs filed the case, individually and on behalf of all other similarly situated employees of defendant University Medical Center (UMC). The case was filed as a collective action pursuant to the Fair Labor Standards (FLSA), and initially as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Defendants argue that Mr. O'Mara's declaration is the only evidence in the record the court should rely upon in determining a reasonable hourly rate in this case. The Defendants agree that his rate of $350/hr. is reasonable in Nevada for a lawyer of his experience and expertise. The Defendants also cite Judge Pro's award of attorneys' fees and costs in the Tallman case as evidence of reasonable hourly rates approved in this district for partners, senior associates and paralegals. The Plaintiffs argue the rates sought in this case are reasonable market rates for employment lawyers in the District of Nevada, citing Lucas v. Bell Trans, where Judge Dorsey approved an hourly rate of $795/hr. for partners and $525/hr. for senior associates. The declarations of Messrs. Godino, Tostrud, and O'Mara do not address reasonable market rates in this district. Rather, they state what their respective usual and customary rates are. Rate determinations in other cases in the District of Nevada around the time fees were incurred at issue in this application have found hourly rates as much as $450 for a partner and $250 for an experienced associate to be the prevailing market rate in this forum. Four partners from three law firms seek reimbursement for attorneys' fees expended in connection with the sanctions order. The only information plaintiffs' counsel provided concerning the experience, background and expertise of partners, associates and staff members are attached firm bios and resumes. Plaintiffs do not claim that local counsel were unavailable because they lacked the degree of experience, expertise or specialization required to properly handle a case of this nature. To the contrary, both sides cite FLSA and wage and hour cases prosecuted and defended by Nevada counsel to support their respective positions. In the court's experience, there are many Nevada lawyers and firms who can, and do, practice competently in this field. The court has had ample opportunity to observe the experience, expertise and professionalism of Mssrs. Godino and Tostrud. The court finds that Messrs. Godino and Tostrud should be compensated at the rate of $450/hr., which judges in this district have found is reasonable for experienced lawyers practicing in this district during the time frame for which fees are sought. The court finds a reasonable hourly rate for partners Wolke and O'Mara is $350.00/hr. The Defendants argue that plaintiffs' fee application should not be approved because the case was overstaffed and because four partners performed most of the work in this case rather than delegating 70-75% of the work to associates and paralegals at lower rates. The affidavits of Messrs. Godino, Tostrud, and O'Mara do not explain the staffing decisions made which resulted in the application for attorneys' fees for 4 partners, 4 associates, and 7 paralegals and miscellaneous staff from the initial motion to compel through the conclusion of Special Master proceedings and hearings before the court. The application states that staffing decisions were made based on when people were available to do the work in a timely and professional manner over a 20-month period which included 20 weeks of nearly continuous hearings and work throughout Special Master proceedings. The court rejects defendants' arguments that the court should correct a perceived imbalance based on the asserted expectations of defense counsels' clients. The declarations of Messrs. Godino, Tostrud and O'Mara do not attest that the complexity of this case or other factors required staffing by 15 timekeepers which include 4 partners, 4 associates, a research analyst, 4 paralegals, and 2 staff members whose positions are not disclosed. However, plaintiffs' initial and revised application and reply advance arguments why this case, especially during Special Master proceedings, required a team effort, a team of lawyers, and a team approach to participation. The court understands and agrees that a team structure and collaborative efforts by multiple attorneys and supporting staff often accomplish efficiencies in complex cases. The court does not doubt that all of the attorneys and staff members for whom attorneys' fees are sought actually performed work on this case. However, the court is assessing reasonable costs and attorneys' fees in the context of a sanction for discovery violations. The court is not assessing reasonable attorney's fees and costs arising out of a fee-shifting statute at the end of the case to a prevailing party. The court reviewed and approved the Special Master's fees and costs during Special Master proceedings. The parties agreed Special Master Garrie had the expertise as a litigator with special expertise in ESI technology. He agreed to accept an appointment at the rate of $385/hr which the parties agreed was reasonable. The Order appointing the Special Master set his hourly rate at $385/hr. The order also authorized reimbursement for reasonable expenses including amounts incurred in employing other persons to provide clerical, secretarial, and stenographic assistance. The Special Master submitted invoices on April 14, 2014, June 13, 2014, July 16, 2014, and August 18, 2014, in the total amount of $481,212.32. The parties filed Joint Statements accepting the Special Master's invoices as reasonable. Defendants response to the application for sanctions urges the court to award a maximum of $461, 906.13, or more than $20,000 less than they agreed was reasonable for special master service at a lower rate over a much shorter time-period. Plaintiffs ask for monetary sanctions of more than four times the amount they agreed was reasonable to pay to the special master. Of course the plaintiffs incurred substantial unnecessary costs and fees prior to the appointment of the special master, and also incurred fees after his report and recommendation was filed litigating his findings and recommendations and appropriate sanctions. A full-text copy of the District Court's November 5, 2018 Order is available at https://tinyurl.com/y9zatgoh from Leagle.com. Daniel Small, Plaintiff, represented by Anthony M. Carter -- acarter@tostrudlaw.com -- Tostrud Law Group, P.C., pro hac vice, Joseph Nathan Mott -- Joey@SJPlawyer.com -- Law Offices of Steven J. Parsons, Lionel Z. Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Raymond B. Walton, pro hac vice, Andrew L. Rempfer -- Andrew@SJPlawyer.com -- Law Offices of Steven J. Parsons, Jon A. Tostrud -- jtostrud@tostrudlaw.com -- Tostrud Law Group, P.C., pro hac vice, Kara M. Wolke -- kwolke@glancylaw.com -- Glancy Prongay & Murray LLP, Kevin F. Ruf -- kevinruf@yahoo.com -- Glancy Binkow & Goldberg LLP, Marc L. Godino -- mgodino@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, William M. O'Mara, The O'Mara Law Firm, PC & David C. OMara, The OMara Law Firm, P.C. University Medical Center of Southern Nevada, Defendant, represented by Cayla Witty, Nevada Court of Appeals, Danielle Miller -- Danielle.Miller@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP, Robert W. Freeman, Jr. -- Robert.Freeman@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP & Joseph M. Ortuno, Edward M. Bernstein & Associates. Clark County, Defendant, represented by Cayla Witty, Nevada Court of Appeals. John Espinoza, Defendant, represented by Cayla Witty, Nevada Court of Appeals, Danielle Miller, Lewis Brisbois Bisgaard & Smith LLP & Robert W. Freeman, Jr., Lewis Brisbois Bisgaard & Smith LLP. UPMC JAMESON: Faces Class Action Over Ultrasound Equipment ---------------------------------------------------------- Brent Addleman, writing for New Castle News, reports that a class-action lawsuit claims a medical facility put patients at risk of sexually-transmitted diseases after hospital staff failed to sterilize equipment used in ultrasounds. UPMC Jameson is the defendant named in the suit filed on Nov. 2 in Lawrence County by attorney Dallas Hartman Jr. The suit alleges the hospital put more than 200 patients at risk of being infected with HIV, Hepatitis A, B, and C, gonorrhea and chlamydia as proper disinfection and sterilization techniques for ultrasound probes were not followed from October 2017 to October 2018. "On Nov. 1, we decided to file a class-action lawsuit," Mr. Hartman said on Nov. 5. "We got a good amount of calls in the office and we were able to get a better picture of what happened. "We felt this was the best way to proceed. We did an interview with one of our proposed lead plaintiffs, and we decided to file on Nov. 2." Contacted by email, Lisa Lombardo, senior public relations manager, said the hospital had no comment beyond the statement it released. That statement noted that an internal review had found that "the proper cleaning process was not followed for some ultrasound probes used in internal prostate, obstetrical and gynecological exams. Any related health risks are extremely low." It added that "corrective measures were immediately implemented." The statement want on to say that UPMC had reported the situation to both the Department of Health and The Joint Commission, and that "appropriate education and disciplinary measures were taken to ensure the highest level of quality and patient safety." UPMC Jameson also contacted all potentially affected patients with additional information, offering free precautionary blood and urine testing to ensure patient safety. The plaintiff in the suit alleges that in "June/July 2018" an ultrasound procedure was performed while the plaintiff was two months pregnant. In the court filing, the plaintiff claims, "on our about Oct. 30" the plaintiff "received a phone call from a representative of UPMC Jameson, warning for the need to obtain testing to determine if the patient contracted an infectious disease from exposure during the ultrasound." Patients were tested using a blood draw or urine sample. The suit alleges that ultrasound probes used in internal prostate, obstetrical, and gynecological exams must undergo high-level disinfection between usage, and UPMC Jameson was not following the procedures. The filing reads, "It is believed that in or around the summer/fall of 2018 an internal quality assurance review at UPMC Jameson found that the proper cleaning process was not documented or followed for some ultrasound probes used in internal prostate, obstetrical and gynecological exams." The suit claims the plaintiff "as a result of UPMC Jameson's negligence, carelessness, and/or recklessness will continue to endure emotional distress, suffering, inconvenience, humiliation, embarrassment, and loss of life's pleasures." Mr. Hartman is seeking a jury trial and is requesting monetary damages outside of current arbitration limits. [GN] USANA HEALTH: Rumbaugh Securities Suit Dismissed with Prejudice --------------------------------------------------------------- In the case, APRIL RUMBAUGH, Individually and On Behalf of Others Similarly Situated, Plaintiffs, v. USANA HEALTH SCIENCES, INC., DAVID A. WENTZ and PAUL A. JONES, et al., Defendants, Case No. 2:17-CV-106 (D. Utah), Judge Dee Benson of the U.S. District Court for the District of Utah, Central Division, dismissed with prejudice the Plaintiff's Consolidated Amended Action Complaint. The case is a federal securities class action lawsuit filed on behalf of all persons, other than the Defendants, who purchased or acquired USANA securities between March 14, 2014 and Feb. 7, 2017, seeking damages for the alleged violation of federal securities laws. USANA is a publicly traded Utah company that develops, manufactures and sells nutritional and personal care products worldwide. To distribute and sell its products, USANA has traditionally employed a multi-level marketing business model, relying on its existing distributors to recruit new distributors by paying the existing distributors a percentage of their recruits' sales. The recruits are known as a distributor's "downline" while the distributor is known as the recruits "upline." The Distributors also make money through direct sales of products to customers. China has an absolute prohibition on multi-level marketing (i.e., payment to promoters based on the recruitment of other promoters rather than based on sales to customers). Accordingly, companies such as USANA who do business in China are required to modify their business models to focus on direct sales to consumers rather than distributor recruitment. The Plaintiff alleges that during the years leading up to the class period in the case, the Defendants created a "scheme" of illicit sales in China. According to the Plaintiff, part of that scheme involved circumventing Chinese laws banning multi-level marketing by recruiting Chinese nationals and having them register using a fictitious address in Hong Kong. According to the Plaintiff, this resulted in an "explosion" of Hong-Kong based revenue between 2009 and 2012. In the midst of those years, in 2010, USANA acquired Baby Care, a People's Republic of China-based manufacturing company that develops and sells nutritional products primarily for infants. The Plaintiff asserts that BabyCare's direct selling license provided a means for USANA to establish a "behind-the-scenes" presence in China. As a result of acquiring BabyCare, over the next several years, USANA was able to obtain Chinese government approval for "hard to obtain" direct selling licenses in multiple Chinese provinces. The Plaintiff alleges that Hong Kong sales began to decline in direct proportion to the rise in mainland China sales, as sales once attributed to USANA's Hong Kong market appeared to be reported in BabyCare in violation of the Foreign Corrupt Practices Act. She also claims that even though USANA had acquired multiple direct selling licenses, USANA nonetheless continued to engage in banned multi-level marketing practices. After setting forth these historical underpinnings, the Plaintiff alleges that during the relevant class period -- March 14, 2014 through Feb. 7, 2017 -- USANA made numerous false statements and misleading omissions when speaking about its business in China. Specifically, she alleges that USANA misled investors by purporting to be in compliance with Chinese regulations prohibiting multi-level marketing, when in actuality USANA was continuing to knowingly engage in the prohibited practice, and that USANA's China sales "exploded" as a result of improperly "redirected Hong Kong sales." She further alleges that in September 2016, during the class period, local police opened an investigation into illegal multi-level marketing by BabyCare/USANA. The Plaintiff claims that the local investigation turned into a full-blown national investigation, and that in November 2016, USANA received a warning from authorities concerning its compliance with Chinese law. She complains that neither the investigation nor the warning were communicated to USANA investors. Finally, the Amended Complaint alleges that on Feb. 7, 2017, the Class Period ended with USANA's disclosure that the company is voluntarily conducting an internal investigation of its China operations, BabyCare Ltd focusing on the compliance with the Foreign Corrupt Practices Act and certain conduct and policies at BabyCare, including BabyCare's expense reimbursement policies. USANA advised investors that the company had retained outside counsel to conduct the investigation and had notified both the SEC and the U.S. Department of Justice of the investigation. On this news, USANA's share price fell 11.57% to close at $55.40 on Feb. 8, 2017. Based on these allegations, on Aug. 4, 2017, the Plaintiff filed the Amended Consolidated Class Action Complaint asserting claims for (1) securities fraud under Section 10(b) of the Exchange Act; and (2) control person liability against the individual Defendants pursuant to Section 20(a) of the Exchange Act. The Defendants have moved to dismiss, contending that the Plaintiff's complaint fails to meet the pleading requirements of Rules 8, 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act, and otherwise fails to state a claim for which relief can be granted. Judge Benson granted the Defendants' motion to dismiss, and dismissed with prejudice the Plaintiff's Consolidated Amended Action Complaint. The Judge finds that the Amended Complaint violates the pleading standards in several respects. As a general matter, the complaint is voluminous, containing 98 substantive pages and 298 paragraphs of allegations, significant portions of which are dedicated to unnecessary summaries, history and boilerplate. Additionally, the complaint's falsity allegations consist largely of lengthy, single-spaced block quotations from a variety of USANA's public statements. It is not until paragraph 144 that the Plaintiff sets forth the first paragraph attempting to explain how any statement by USANA was materially false and misleading. Given the foregoing, the Judge is inclined to dismiss the action in its entirety on that basis alone. However, given the preference for deciding cases on the merits, he has done its best to sort through the Amended Complaint to determine whether it states a viable claim for relief. He finds that it does not. With regard to the Foreign Corrupt Practices Act, the Plaintiff never alleges any charge or even a warning by United States authorities, and she has failed to state any disclosure obligation. The Plaintiff also fails to adequately allege any misstatement with regard to the Company's growth or financials. Viewing all of the allegations in the Amended Complaint collectively, the Judge is simply not persuaded that the allegations give rise to a "cogent and compelling" inference of scienter. Finally, because the Amended Complaint fails to state a claim under Section 10(b) of the Exchange Act for securities fraud against the defendants, the Plaintiff's control person liability claim also fails. A full-text copy of the Court's Oct. 17, 2018 Memorandum Decision and Order is available at https://is.gd/nev9Wz from Leagle.com. April Rumbaugh, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Louis C. Ludwig --lcludwig@pomlaw.com -- POMERANTZ LLP, Patrick V. Dahlstrom -- pdahlstrom@pomlaw.com -- POMERANTZ LLP, pro hac vice, Zane L. Christensen -- zane@christensenyounglaw.com -- CHRISTENSEN YOUNG & ASSOCIATES & Steven A. Christensen -- steven@christensenyounglaw.com -- CHRISTENSEN YOUNG & ASSOCIATES PLLC. Chi Wah On, Lead Plaintiff, Plaintiff, represented by Louis C. Ludwig, POMERANTZ LLP. USANA Health Sciences, David A. Wentz & Paul A. Jones, Defendants, represented by Catherine E. Moreno -- cmoreno@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice, Erik A. Christiansen -- echristiansen@parsonsbehle.com -- PARSONS BEHLE & LATIMER, Gideon A. Schor -- gschor@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI & Steven M. Schatz -- SSchatz@wsgr.com -- WILSON SONSINI GOODRICH & ROSATI, pro hac vice. Kevin G. Guest & G. Douglas Hekking, Defendants, represented by Catherine E. Moreno, WILSON SONSINI GOODRICH & ROSATI, Erik A. Christiansen, PARSONS BEHLE & LATIMER & Steven M. Schatz, WILSON SONSINI GOODRICH & ROSATI, pro hac vice. VERIZON COMMS: Getz's TCPA Suit Stayed Pending Arbitration ---------------------------------------------------------- Judge Denise Cote of the U.S. District Court for the SOuthern District of New York stayed the case, DANIEL GETZ, individually and on behalf of all others similarly situated, Plaintiff, v. VERIZON COMMUNICATIONS, INC., a Delaware corporation, Defendant, Case No. 18cv4652 (DLC) (S.D. N.Y.), pending the outcome of arbitration proceedings. The case is a putative class action brought by Getz, individually and on behalf of all others similarly situated, against Verizon, alleging violations of the Telephone Consumer Protection Act ("TCPA"). On Oct. 19, 2016, Getz visited a Verizon Wireless retail store in Coral Gables, Florida, where he purchased a new Apple iPhone SE and subscribed to a Verizon plan for data, talk, and text services for that iPhone. Getz signed a receipt which confirmed that he consented to the Verizon Customer Agreement, including the settlement of disputes by arbitration instead of jury trial. On Oct. 27, 2017, Getz received two text messages from Verizon on his Verizon cell phone, advertising a promotion for the new iPhone X. Getz alleges that Verizon used an automatic telephone dialing system to send the unsolicited text messages to large numbers of consumers. On May 25, 2018, Getz commenced thes putative class action asserting that Verizon's actions violated the TCPA. Specifically, he alleges that Verizon sent text messages to his cell phone and those of other class members using automated telephone equipment without the recipients' consent, in violation of 47 U.S.C. Section 227(b)(1)(A)(iii). On July 23, 2018, Verizon moved to compel arbitration and stay the action pursuant to the Arbitration Clause and the Federal Arbitration Act. The motion became fully submitted on Aug. 31, 2018. Getz concedes that he consented to arbitration when he signed the Customer Agreement. The only disputed issue is the scope of the Arbitration Clause. Judge Cote finds that the language of the Arbitration Clause is sufficiently broad to create a strong presumption of arbitrability. Getz contends that the phrase "advertising for any such products or services" refers to products or services that the customer has already received. Because he did not purchase the iPhone X that was advertised to him, he contends that the advertising was not for a product he has received, and therefore it is outside the scope of the Arbitration Clause. The Judge holds that this construction is insufficient to escape the broad reach of the Arbitration Clause. This dispute relates to or arises from the services Getz received. The text messages in question were received on a Verizon phone and sent using Verizon's wireless service. Moreover, the purpose of the advertising was to make Getz aware of an available upgrade to his existing Verizon phone, to be used with his existing Verizon wireless service. Because the parties have consented to a broad agreement to arbitrate and Getz has failed to overcome the strong presumption of arbitrability that attaches to such agreements, Judge Cote granted Verizon's motion to compel arbitration. The action is stayed pending the outcome of arbitration proceedings. A full-text copy of the Court's Oct. 24, 2018 Opinion and Order is available at https://is.gd/grobra from Leagle.com. Daniel Getz, individually and on behalf of all others similarly situated, Plaintiff, represented by Avi Kaufman -- kaufman@kaufmanpa.com -- Kaufman P.A. & Ross Howard Schmierer -- rscmierer@dentittislaw.com -- Denittis Osefchen Prince PC. Verizon Communications, Inc., a Delaware Corporation, Defendant, represented by Gavin J. Rooney -- grooney@lowenstein.com -- Lowenstein Sandler LLP. VOLKSAGEN GROUP: CalSTRS Securities Fraud Class Action Pending -------------------------------------------------------------- Julie Segal, writing for Institutional Investor, reports that that soon after news that Volkswagen had cheated on emissions tests became public in September 2015, cutting the German carmaker's stock almost in half, Brian Bartow, the general counsel for the California State Teachers' Retirement System, called Irwin Schwartz, a litigation lawyer. "How badly did we get hurt?" asked Mr. Bartow from his Sacramento office. He wasn't concerned only about the losses from the 330,000 Volkswagen shares the plan owned. Bartow wanted to understand CalSTRS' options for getting involved in a legal action against VW to hold the carmaker accountable for the scheme that had allowed diesel cars to fraudulently pass strict emissions tests. The general counsel was asking because CalSTRS believes it's one challenge to buy stocks according to environmental standards, and another to do the dirty work of holding a company responsible for violating the pension plan's investment principles. Pensions and other institutions have a hard time overseeing their exposure to securities fraud cases domestically. But VW common shares were traded outside the U.S., making it even more complicated for investors to figure out cost-effective options for recovering losses stemming from the scandal. A few years before, CalSTRS had started using a Schwartz-founded company called Dividex to identify and evaluate potential fraud claims from stocks purchased outside the U.S., as well as to collect more from settlements in domestic class action cases. VW was one of the company's first big tests. After Mr. Bartow's call on the scandal, Dividex handled everything from identifying multiple options for CalSTRS to sue VW in Germany to negotiating fee agreements for lawyers outside the United States. CalSTRS ultimately became a proposed lead plaintiff against VW and chair of the steering committee for its group suing the automaker. Now CalSTRS' chief lawyer wants other public pension plans to stop relying on outdated and conflicted practices to monitor and recover losses from securities fraud -- when a company falsifies information to persuade investors to buy its stock. Bartow, with a full-on white beard and bachelor's and law degrees from the University of California, says public plans have a fiduciary duty to better manage securities litigation. A critical mass of investors will ultimately encourage more competition among lawyers and drive down legal costs for beneficiaries. Crucially, Mr. Bartow believes, pensions need to start treating securities litigation claims as an asset of their plans, just like any other portfolio holding. Pension funds, endowments, asset managers, and other investors have generally relied on class action plaintiffs' lawyers to monitor their portfolios and alert them if any of the U.S. securities they hold are involved in fraud. Plaintiffs' lawyers are happy to provide the work for free, hoping to be hired if an investor chooses to be the lead plaintiff in a class action lawsuit. Mr. Bartow says the practice is riddled with conflicts of interest -- conflicts that, historically, have maintained a dangerous status quo. "The plaintiffs' securities class action bar has an obvious economic incentive to bring cases to us. It's a Darwinian principle," notes Mr. Bartow. "I appreciate that, but there's always an underlying question of bias," he explains. "This is even more pronounced because we are a large institutional investor, and merely adding our name and losses increases the potential value of a case to the plaintiffs' lawyers. As the portfolio manager, if you will, of litigation recoveries as an asset, I can't rely on that profit motive, Darwinian or not, to make me aware of and evaluate what's out there." It gets even trickier when foreign companies like Volkswagen deceive investors. In 2010 the Supreme Court ruled in Morrison v. National Australia Bank that securities traded outside the U.S. are no longer under U.S. jurisdiction. Pensions interested in recovering any of their plans' international losses need to find, evaluate, and join cases filed in foreign jurisdictions. Investors face a long list of very different legal practices and potential risks as a result. For one thing, lawyers outside the U.S. can't work on a contingency basis. That means litigation funders will pay legal costs, but in exchange for that service they take exhorbitant chunks of any settlement. (Litigation funder Bentham IMF is owned by Paul Singer's Elliott Management, a clear signal that the business is extremely profitable.) Not long after Bartow became CalSTRS' general counsel in 2010, he learned of a major new case and wanted to determine whether the California pension would want to seek lead plaintiff status, as the named party in a class action suit. Only one of the law firms that CalSTRS dealt with on securities litigation at the time would evaluate the merits of the case. The rest refused because they wanted a chance to represent CalSTRS if it decided to go ahead with the case. This was because CalSTRS -- the second-largest U.S. pension fund -- prevents law firms from doing both because of the inherent conflicts. In addition, law firms were interested only if the plan wanted to be the lead plaintiff. There's little profit in going after settlements from class action suits that take years to work their way through courts. "That experience made me realize that this model is not working," Bartow says. He believes that the majority of institutional investors still use a free monitoring service and wait for so-called portfolio loss recovery opportunities to be brought to them by the plaintiffs' counsel. For cases overseas, plaintiffs' lawyers that are also litigation funders are the ones that bring cases to the attention of many pension plans. Institutional investors have a lot at stake. In 2017 a record 432 cases were filed in federal courts, many of them driven by objections to mergers, according to Securities Class Action Services. So far, 350 cases have been filed in the U.S. in 2018, on pace to be another record year. In 2016 and 2017, SCAS, which is part of Institutional Shareholder Services, filed 2.4 million claims for clients. In 2018 the top 15 settlements totaled $10 billion in shareholder recoveries. Once Mr. Bartow decided to upend CalSTRS' model, he looked for an independent service that could identify and evaluate potential cases and help the pension recover more losses. But there wasn't one. Custodian banks and a number of vendors, including Financial Recovery Technologies and ISS, only track litigation and provide claims-filing services. Securities lawsuits involving foreign companies plagued Bartow. Unlike in the U.S., in foreign cases investors can't be passive and still recover a share of a class action settlement. They need to opt into a case. "What drove me early on to get involved in these foreign cases was the simple fact that if CalSTRS didn't participate, we would get nothing," Mr. Bartow says. Litigation outside the U.S. is on the rise. Eleven non-U.S. cases have been settled this year through August, including Petrobras, the fifth-largest securities class action settlement to date, and Fortis, the biggest settlement ever in Europe, according to ISS. Foreign cases also bring new risks. In the U.S. institutional investors can hire lawyers on contingency, meaning they don't pay legal fees unless they win. Many foreign jurisdictions don't allow contingency fee agreements, and some require losers to pay legal fees. "For CalSTRS to get involved, it was important to find a risk-free model analogous to the U.S. class action system," explains Mr. Bartow. As he looked for solutions to manage litigation as an asset of the plan, Mr. Bartow met Mr. Schwartz. Mr. Schwartz had seen the problems firsthand at Massachusetts Pension Reserve Investment Management. He had been hired after the Boston-based investment fund stopped solely using plaintiffs' lawyers to monitor its portfolios. To be an independent adviser to PRIM, Schwartz needed to establish processes from scratch, developing a system with Bloomberg Analytics, for example, to detect large losses in the portfolio that could signal a coming lawsuit. But not everybody cared about fixing the problem. Mr. Schwartz says settlements of securities litigation are similar to dividends. Investors may get two cents a share, which sounds measly but can add up to significant amounts of money. "When on Earth would you sue somebody if you thought you would get back two cents on a dollar? That's the mind-set of many investors on this asset class, if you call it that," Mr. Schwartz says Mr. Bartow drafted a wish list of capabilities to help Schwartz build a system that could help the pension plan manage its securities litigation claims. In 2013, Schwartz created Dividex to meet CalSTRS' needs and later registered it as an investment adviser. Now an increasing number of investors want independent advice on securities litigation. Last year the Teacher Retirement System of Texas started a search for what it calls investment-related litigation claims services, according to a public filing. Dividex helps institutional investors identify and manage potential fraud claims for securities purchased outside the U.S., and it helps them do a better job of collecting on class action settlements in the U.S. Schwartz went a step further and formed a risk insurance company to provide what's called before-the-event adverse party cost insurance to protect clients that wanted to join cases in jurisdictions that required losers to pay all legal fees. Dividex provides evaluations of potential securities fraud cases. But to avoid conflicts it does not provide legal services and won't represent a plan if it chooses to become the lead plaintiff in a class action lawsuit. Bartow is pushing big investors to become more active now, because without them, lawyers and litigation funders -- which are needed to fund legal costs for plaintiffs outside the U.S. -- have too much pricing power. (The minimum price for litigation funders in London is return of capital plus 300 percent.) The general counsel for one of the ten largest asset managers agrees that there's a lot of room for improvement. "There are real opportunities for the institutional investor community to pursue progress in how these cases are pursued. Because institutional investors have been somewhat passive, I think an unreasonable percentage of the recoveries [has] flowed to litigation funders and law firms. There's an opportunity to put more money into individual investors' pockets," he says. "After the Morrison case was decided, there were very few litigation funders that I was aware of -- and their take-it-or-leave-it approach just got under my skin," Mr. Bartow says. "Since our first experience we have successfully negotiated with funders in this space, but I would like to see more competition." [GN] WALGREENS BOOTS: Judgment on Pleadings Bid in Hering Suit Granted ----------------------------------------------------------------- In the case, JERRY HERING, Plaintiff, v. WALGREENS BOOTS ALLIANCE, INC., STEFANO PESSINA, and GEORGE R. FAIRWEATHER, Defendants, Case No. 1:15-cv-2440 (M.D. Pa.), Judge John E. Jones, III of the U.S. District Court for the Middle District of Pennsylvania (i) granted the Defendants' Motion for Judgment on the Pleadings, and (ii) denied Hering's Joint Motion to Intervene by Lead Plaintiff and Putative Class Members Douglas S. Chabot, Corey M. Dayton, and Joel M. Kling. The case arises from the failed merger of Rite Aid and Walgreens. Hering filed an Amended Complaint on Dec. 11, 2017, alleging fraudulent misrepresentations made by Rite Aid and Walgreens related to the merger from Oct. 27, 2015, to June 28, 2017. These statements, Hering alleged, violated Sections 10(b) and 20(a) of the 1934 Securities Exchange Act, as well as Rule 10b-5 promulgated by the United States Securities and Exchange Commission. Rite Aid and Walgreens separately filed motions to dismiss for failure to state a claim on Feb. 14, 2018. After providing the parties additional time for briefing, the Court granted Rite Aid's motion and denied Walgreens' motion. With respect to statements made by Walgreens, however, it noted that only the statements made on and after Oct. 20, 2016, were actionable. On Aug. 24, 2018, Walgreens filed the instant Motion for Judgment on the Pleadings, arguing that the Court's limitation on which statements were actionable removed Hering's standing, as his last alleged purchase of Rite Aid stock occurred prior to the first actionable statement of Walgreens. In response, Hering, while not denying his sudden lack of standing, argues that the preferred remedy is to proceed to the class certification and the identification of a proper class representative. Nevertheless, Herring filed the Joint Motion to Intervene on Sept. 6, 2018, as a protective measure. Judge Jones finds that Hering's Amended Complaint plainly sets forth class action allegations, and it does appear that his claims were mooted before he could reasonably seek certification of a class. However, the mooting of his claims resulted from the Court's dismissal of the non-actionable statements, not through any conduct of Walgreens, such as "picking off" named Plaintiffs. The Judge finds that Hering's claims are not "inherently transitory," "capable of repetition, yet evading review," or "acutely susceptible to mootness." In short, none of the special class action mootness exceptions applies, and the "general rule" controls the case: the mooting of named a plaintiff's claims prior to class certification moots the entire case." Therefore, the Judge finds that Hering has lost standing not only with respect to the merits of his individual claim, but also with respect to seeking class certification. Walgreens does not challenge any particular element under either mechanism. Rather, it contends that Hering's lack of standing, and the Court's consequent lack of jurisdiction, results in the intervenors not having any Plaintiff with which to intervene. The Judge agrees. First, he finds that the intervenors have failed to establish all the required elements of intervention as of right. Furthermore, and more generally, a motion for intervention is not appropriate to cure a lack of standing. After dismissal, there is now no entity remaining with which to intervene. The Judge finds this rationale counsels against granting permissive intervention. Therefore, he will deny the Joint Motion to Intervene, but notes that the intervenors are free to bring their allegations in a new action. Consistent with the foregoing analysis, Judge Jones granted Walgreens' Motion for Judgment on the Pleadings, and denied Hering's Joint Motion to Intervene. The Judge will issue a separate order in accordance with his Memorandum. A full-text copy of the Court's Oct. 24, 2018 Memorandum and Order is available at https://is.gd/w9Z1O1 from Leagle.com. Jerry Hering, Plaintiff, represented by Benjamin M. Mather -- bmather@kcr-law.com -- Kaufman, Coren & Ress, P.C., Christopher Chagas Gold -- cgold@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, David T. Wissbroecker -- DWissbroecker@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Mark J. Dearman -- mdearman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Randall J. Baron -- randyb@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Stuart A. Davidson -- SDavidson@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, David A. Knotts -- dknotts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Deborah R. Gross -- dgross@kcr-law.com -- Kaufman Coren & Ress PC & Howard J. Kaufman -- hkaufman@kcr-law.com -- Kaufman, Coren & Ress, PC. Don Michael Hussey & Joanna Pauli Hussey, Movants, represented by Deborah R. Gross, Kaufman Coren & Ress PC. Douglas Chabot, Corey Dayton & Joel Kling, Intervenor Plaintiffs, represented by Deborah R. Gross, Kaufman Coren & Ress PC. Walgreens Boots Alliance, Inc., Stefano Pessina & George R Fairweather, Defendants, represented by Caroline H. Zalka -- caroline.zalka@weil.com -- Weil, Gotshal & Manges LLP, Jonathan D. Polkes -- jonathan.polkes@weil.com -- Weil, Gotshal & Manges LLP, Robert S. Ruff -- robert.ruff@weil.com -- Weil, Gotshal & Manges LLP & Thomas G. Collins -- thomas.collins@bipc.com -- Buchanan Ingersoll & Rooney PC. WILKES-BARRE, PA: Court Denies Bid to Dismiss Slavish Suit ---------------------------------------------------------- Judge Robert D. Mariani of the U.S. District Court for the Middle District of Pennsylvania denied the Defendants' motions to dismiss the case, CATHERINE SLAVISH, et al., Plaintiffs, v. CITY OF WILKES-BARRE, PENNSYLVANIA HOUSING AUTHORITY and DONNA KOZAK, Defendants, Case No. 3:17-CV-1468 (M.D. Pa.). On Aug. 17, 2017, the Plaintiffs filed a class action Complaint setting forth five counts: violations of the Plaintiffs' rights to procedural due process under the Fifth and Fourteenth Amendments against Defendant Kozak (Count I); negligence against Defendant Housing Authority (Count II); breach of express warranty of habitability against Defendant Housing Authority (Count III); breach of implied warranty of habitability against Defendant Housing Authority (Count IV); and unjust enrichment against Defendant Housing Authority (Count V). After Defendants filed their motions to dismiss, the Court subsequently referred the motions to Magistrate Judge Carlson for the preparation of a Report and Recommendation ("R&R"). On June 14, 2018, the Magistrate Judge issued his R&R in which he recommends that the motions to dismiss by the Defendants be denied. The Defendants filed Objections to the Magistrate Judge's R&R and briefs in support of the Objections, to which the Plaintiffs filed responses. Defendant Kozak argues that tge Plaintiffs failed to plead a Fourteenth Amendment procedural due process claim because there is no recognized liberty or property interest in decent, safe, and sanitary housing or access to statutory grievance procedures, and thus Plaintiffs' due process claim should be dismissed. Kozak also cites to a number of cases involving civil litigation brought by inmates to support her claim that the Plaintiffs, like prisoners, do not have access to a grievance procedure. Judge Mariani finds that the Plainitffs' procedural due process claim is premised on an assertion that they were denied access to a grievance procedure. The Plaintiffs assert that Kozak denied them access to the Housing Authority's grievance procedure under Section 1437d (k) by instructing residents not to discuss the bed-bug infestation, and threatening to evict and/or retaliate against residents who voiced concerns about the infestation. The Judge also finds that contrary to Kozak's contention, the Plaintiffs are entitled to a statutory grievance procedure under the Housing Act. Kozak rendered the grievance process meaningless by refusing to attempt to informally or formally address the Plaintiffs' complaints, something she is required to do under the law. For the aforementioned reasons, as well as those set forth in the R&R, Judge Mariani rejects Kozak's Objection and adopts the thorough analysis undertaken by the Magistrate Judge. Thus, the Plaintiffs' allegations with regard to Kozak are sufficient to state a cause of action under the Fourteenth Amendment. Defendant Kozak's second Objection is that the Plaintiffs' due process claim against her is barred by qualified immunity as such liability has not been clearly established. The Judge finds that the Plaintiffs have sufficiently alleged that Kozak's actions are violative of Section 1437 and the Fourteenth Amendment. Whether the constitutional rights invoked by the Plaintiffs are clearly established as well as whether those rights have been violated present questions which must be decided upon a fully developed record and on a dispositive motion at the conclusion of discovery. Finally, Defendant Housing Authority asserts in its Objection that the Plaintiffs' pleaded and admitted in their Complaint that the Housing Authority is a Commonwealth agency, and, as such, it is entitled to Eleventh Amendment immunity. With respect to this argument, the Judge adopts the Magistrate Judge's analysis that, under the factors set forth in Fitchik v. New Jersey Transit Rail Operations, Inc., the limited record before the Court does not allow for a determination of whether the Housing Authority is in fact a Commonwealth agency. For the reasons set forth, Judge Mariani, upon de novo review of the R&R, adopted the R&R in its entirety. A separate Order follows. A full-text copy of the Court's Oct. 24, 2018 Memorandum Opinion is available at https://is.gd/gajgpX from Leagle.com. Catherine Slavish, Karima Ahmad, Kenneath Barnes, Ethel Carter Farmer, Martha Corbett, Michele Hallock, Mary Kowalczyk, Donna Linderman, Bettie Mangum, Victor Mariano, Gary Matthews, Charles Maury, Alan Newton, David Smith, Debbra Smith, Lisa Stokes & Emily Webster, Individually and on behalf of all similarly situated persons, Plaintiffs, represented by Peter C. Wood, Jr. -- peter@pcwlawoffice.com -- Law Office of Peter C. Wood, Jr., PC, Jeffrey M. Lipman -- info@lipmanlawfirm.com -- Lipman Law Firm, PC & Matthew Mobilio, McCormick Law Firm. The City of Wilkes-Barre, Pennsylvania Housing Authority, (an agency of the Commonwealth of Pennsylvania), Defendant, represented by James A. Doherty, Jr. -- Jdoherty@shdlawfirm.com -- Scanlon, Howley & Doherty, P.C. & James Andrew Doherty, III -- jadoherty@shdlawfirm.com -- Doherty Law, LLC. Donna Kozak, Property Manager, Defendant, represented by Jennifer Menichini, Joyce, Carmody & Moran, P.C., Joseph J. Joyce, III -- jjj@joycecarmody.com -- Joyce, Carmody & Moran, P.C. & Matthew John Carmody -- mjc@joycecarmody.com -- Joyce, Carmody & Moran, P.C.. WILLIAMS-SONOMA INC: Summary Judgment Bid in Rushing Suit Denied ---------------------------------------------------------------- In the case, WILLIAM RUSHING, Plaintiff, v. WILLIAMS-SONOMA, INC., et al., Defendants, Case No. 16-cv-01421-WHO (N.D. Cal.), Judge William H. Orrick of the U.S. District Court for the Northern District of California (i) denied WSI's motion for summary judgment, except that Kentucky law applies to Rushing's claims; and (ii) granted the Plaintiff's request for pre-certification discovery, although that request is limited to California purchasers. In this putative class action case, Rushing, a resident and citizen of Kentucky, seeks to represent a nationwide class of purchasers of bed linens sold by Defendants Williams-Sonoma, Inc., Williams-Sonoma DTC, Inc., and Williams-Sonoma Advertising, Inc. ("WSI"), who allegedly advertised misleading and false thread counts. The operative Seventh Amended Complaint asserts the following causes of action on behalf of Rushing and a putative nationwide class: (1) Consumer Legal Remedies Act; (2) Misleading and Deceptive Advertising; (3) Untrue Advertising; (4) Unlawful Business Practices; (5) Unfair Business Practices; (6) Fraudulent Business Practices; and (7) Unjust Enrichment. WSI moves for summary judgment, arguing that Rushing's California claims fail because his business purchased the sheets and, therefore, he does not have standing to bring his consumer protection claims. It argues in the alternative that even if Rushing has standing under California law, summary judgment is nonetheless proper because Kentucky law applies to his claims. In response, Rushing asks for relief under Rule 56(d), contending that the Court should defer ruling on the defense motion because he has not had the opportunity to take discovery that could weigh on resolution of the motion. He also opposes the motion for summary judgment on its merits, arguing that he has standing under California law and that the choice of law analysis is premature, but if reached, mandates application of California law. The Defendants sought leave to file to file a sur-reply, arguing that Rushing's opposition to discovery subpoenas served by WSI show that Rushing agrees that Kentucky law applies to his claims and shows that his Rule 56(d) motion should be denied because of his inequitable conduct that stalled WSI's discovery. An oral argument was held on June 20, 2018. As instructed, shortly following the hearing the parties submitted a joint letter joining the issue of whether the Plaintiff is entitled to discovery as to the identity of absent class members. During this same timeframe, three discovery disputes arose in other districts as a result of subpoenas issued by WSI seeking discovery related to Rushing's purchase of the bed linens. Those three matters were transferred to the District and related to the underlying case. Judge Orrick agrees that Kentucky law applies to Rushing's claims. But WSI did not argue how Rushing's individual or class claims should be resolved on their merits under Kentucky law, so its motion for summary judgment cannot be granted. As Rushing filed the case with standing under California law and a good faith belief that California law applied, the Judge concludes that he is entitled to pre-certification discovery to attempt to locate a California resident willing to join the case as a named Plaintiff if he wants to pursue the claims under California law. For the foregoing reasons, Judge Orrick denied WSI's motion for summary judgment, except that Kentucky law applies to Rushing's claims. He granted the Plaintiff's request for pre-certification discovery, although that request is limited to California purchasers. Any dispute over the content of a Pioneer notice (if required) and any remaining motions to quash will be resolved by Judge Kim. The previously scheduled Case Management Conference set for Dec. 4, 2018 remains on calendar. Given the various elections required above, the parties will be prepared to propose a new case schedule setting deadlines for Rushing to amend (to substitute in a new named Plaintiff to pursue claims under California law if he so desires), for limited discovery to be taken as to any new named Plaintiff, for the Plaintiff's amended motion for class certification, and for trial. A full-text copy of the Court's Oct. 24, 2018 Order is available at https://is.gd/BsLM8C from Leagle.com. William Rushing, Individually and on Behalf of all Others Similarly Situated, Plaintiff, represented by George Richard Baker, Baker Law PC, Amber Eck -- ambere@haelaw.com -- Zeldes Haeggquist & Eck, Audra Petrolle -- apetrolle@roselawgroup.com -- Rose Law Group, PC, George Richard Baker -- richard@bakerlawpc.com -- Baker Law PC & Kathryn Honecker -- khonecker@roselawgroup.com -- Rose Law Group, pc. Williams-Sonoma, Inc., a Delaware corporation, Williams-Sonoma Advertising, Inc., a California corporation & Williams-Sonoma DTC, Inc., a California corporation, Defendants, represented by Benjamin O. Aigboboh -- baigboboh@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton, LLP, Eric J. DiIulio -- ediiulio@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, P. Craig Cardon -- ccardon@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP, Robert A. Guite -- rguite@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, pro hac vice & Tanya Yarbrough Bowman -- tbowman@fbtlaw.com -- Frost Brown Todd LLC. XANITOS INC: Faces Class Action in Illinois Over BIPA Violation --------------------------------------------------------------- Julie Crawford, Esq., of King & Spalding, in an article for JDSupra, reports that a proposed class action lawsuit filed in Illinois against Xanitos Inc., a Pennsylvania-based hospital housekeeping company, alleges that its employee timekeeping system violates the Biometric Information Privacy Act ("BIPA"), an Illinois state law. Passed in 2008, BIPA defines biometric information as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry" and sets standards for private entities that possess or store such information. Companies must (i) obtain consent from the individual if biometric information will be collected; (ii) securely store biometric information; and (iii) destroy the information in a timely manner. BIPA allows individuals to file a lawsuit for violations with damages allowed at $1,000 per violation or $5,000 for each reckless or intentional violation. The Illinois lawsuit claims that Xanitos requires employees to utilize fingerprint scanning for timekeeping at the beginning and end of each shift. The case filings further allege that Xanitos did not provide employees with notice or obtain written consent authorizing the collection of biometric information, nor was a retention schedule disclosed. In addition to attorneys' fees and costs, the plaintiff is seeking $1,000 per violation for each proposed class member, which includes any Illinois resident who had biometric information obtained by Xanitos. A bill to amend BIPA, SB 3053, is pending before the Illinois General Assembly and proposes to offer exemptions for private entities if: "(i) the biometric information is used exclusively for employment, human resources, fraud prevention, or security purposes; (ii) the private entity does not sell, lease, trade, or similarly profit from the biometric identifier or biometric information collected; or (iii) the private entity stores, transmits, and protects the biometric identifiers and biometric information in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information." Since BIPA's passage a decade ago, only Washington and Texas have passed similar laws. [GN] Asbestos Litigation ASBESTOS UPDATE: Amtico Loses Summary Judgment Bid -------------------------------------------------- Mesothelioma.net reported that the Supreme Court of New York County recently decided in favor of the family of a mesothelioma victim and against the asbestos tile company that the family blames for the death of their loved one. The decision means that the man's survivors will be able to proceed with their mesothelioma lawsuit seeking justice for the loss that they suffered. The mesothelioma victim in the recently-hear case was Steven Hall, who died in April of 2017 after having been diagnosed with the rare and fatal form of cancer just 6 moths earlier. Mr. Hall had spent more than a dozen years renovating homes, and during that time he had multiple exposures to asbestos, the mineral that causes the disease. One of those sources was Amtico floor tiles, which he described using for ten years. He remembered the asbestos dust residue that would lie on top of the tiles in the boxes that he opened, as well as the dust raised by cutting, scoring, breaking and sanding tiles so that they would fit in the rooms where he was installing them. Despite the apparent connection between Mr. Hall's exposure to their products and his illness, the company moved for summary judgment, arguing that Mr. Hall's family members had not provided evidence that established causation of his illness. Legal News Line reported that Amtico said all exposures to the deadly substance are not equal, using a 2015 state court decision that favored companies sued in the long-running mass tort. Amtico was one of the six primary makers of flooring that contained asbestos. But the company argues the specific type of asbestos used in its products would not have been much of a factor in the development of Mantovi's mesothelioma. "Despite decades' worth of research into asbestos and asbestos-related diseases, Plaintiffs' experts have failed to offer ANY evidence in a methodology generally accepted in the scientific community which demonstrates bystander work around floor tile, containing encapsulated chrysotile asbestos as a component, can be sufficient to cause pleural mesothelioma in the general population; because NO such association exists," the company's motion says, according to Legal News Line. Legal News Line related that Mantovi's deposition took place over four days in April 2017, and the parts relevant to American Biltrite stated he inspected buildings for State Farm from 1967-72, during which time he was exposed to Amtico floor tiles. But he also alleged exposure during various other jobs. He was a printing assistant who worked with asbestos printing material from 1963-64 and then moved on to a service station where he worked near brakes, mufflers and clutches. He worked at an oil refinery as a clerk around insulated pumps. He enlisted in the U.S. Navy in 1965 and worked around insulated piping, valves, boilers and other equipment. American Biltrite says that when he worked for State Farm, Mantovi did not actually work with the floor tile. In Mantovi's case, plaintiffs attorneys at Weitz & Luxenberg have not established the requisite causation standard required to continue their case against American Biltrite, the company says. "Faced with the lack of scientifically supported data showing exposure to low dose encapsulated chrysotile products can cause disease, plaintiffs rely on the 'single exposure,' 'any exposure' or 'cumulative exposure' theories," the company wrote. "Those theories are all manifestations of the same faulty premise: that there is 'no safe dose' for a carcinogen. Those theories do not attempt, and even disdain the need, to quantify or qualify dose or exposure levels relating to individual types of products and ignore the requirement that the product at issue, not asbestos generally, be a substantial factor in bringing about the injury or that exposure cannot be slight or trivial." In handing down its decision denying Amtico's motion for summary judgment, the court points out that the law requires the plaintiff to establish exposure to a toxin, that the toxin is capable of causing the harm suffered, and that the victim was exposed to enough of the toxin to cause the harm suffered. The court reviews the evidence that Amtico submitted in its own defense and point out that even the company’s expert witness does not contest the causal relationship between the asbestos in their product and mesothelioma. They also ruled that the issues of fact that Amtico raised needed to be decided at trial, as Mr. Hall's family had shown "facts and conditions from which Amtico's liability may be reasonably inferred." ASBESTOS UPDATE: Asbestos Claims Tied to Laundered Clothes Beaten ----------------------------------------------------------------- Bloomberg Law reported that John Crane Inc. isn't liable in Maryland for asbestos claims brought by the estate of a woman who allegedly developed mesothelioma and died from exposure to her husband's work clothes, a state appeals court said. The issue of "take home" asbestos exposure is much litigated these days and several state top courts, including in California, New Jersey and Virginia, have held recently that household members and others may be pursue claims in some circumstances. ASBESTOS UPDATE: Asbestos Found at Bathurst Tennis Clubhouse ------------------------------------------------------------ Murray Nicholls of Western Advocate reported that work on Bathurst Tennis Centre's new $800,000 clubhouse has come to a halt after workers uncovered asbestos at the site. Preparatory groundwork has been continuing at the site on Durham Street since the start of September but was suspended when the suspect material was found. Bathurst Regional Council engineering services director Darren Sturgiss said samples were sent for tests which confirmed the material contained asbestos. "Following advice of the discovery of suspected asbestos containing material on site, the responsible council officer ordered that works cease until testing was complete to confirm presence of asbestos," Mr Sturgiss said. "Testing has now confirmed that small fragments of non-friable asbestos is present on-site. "This was not expected at the time of commencement of this project, however, all necessary precautions, in accordance with WHS requirements, have been undertaken at each stage of the project to date." Mr Sturgiss said it was not yet known when would resume at the site, nor what the asbestos removal might cost council. "Council is currently seeking prices from qualified removal contractors to clear the site," Mr Sturgiss said. "Until this is finalised, definite time frames and costs for these works cannot be determined." The new two-storey clubhouse will feature amenities areas on the lower ground floor and a clubroom, committee room and commercial kitchen on the ground floor. The project has been funded by council ($500,000), the state government ($200,000) and the Carillon City Tennis Club ($100,000). ASBESTOS UPDATE: Builder Dies From Asbestos Exposure ---------------------------------------------------- Stroud News and Journal reported that David Cox of Cotswold Terrace worked at Elliots in Uley for a number of years from 1967 and was exposed to asbestos on a regular basis as her ripped down garages, the Gloucester inquest was told. In 2017 Mr Cox was diagnosed with Mesothelioma, a lung cancer for which the only known cause is asbestos exposure. In January this year he was suffering increased shortness of breath and his condition deteriorated. He was placed on palliative care, passing away on September 7 this year. Senior Gloucestershire Coroner Katie Skerrett recorded a conclusion of industrial disease. "His HMRC work history backs up that he was working as a builder, the only time he believes he was exposed," she said. ASBESTOS UPDATE: Conn. High Ct. to Tackle Asbestos Coverage Suit ---------------------------------------------------------------- Jeff Sistrunk of Law360 reported that Connecticut's high court is poised to tackle multiple issues of first impression in Vanderbilt Minerals LLC's asbestos injury coverage battle with its insurers. ASBESTOS UPDATE: Crane Co. Had 29,323 Pending Claims at Sept. 30 ---------------------------------------------------------------- Crane Co. has 29,323 pending asbestos-related claims as of September 30, 2018, according to the Company's Form 8-K filing with the U.S. Securities and Exchange Commission dated October 22, 2018. The Company states, "Of the 29,323 pending claims as of September 30, 2018, approximately 18,000 claims were pending in New York, approximately 100 claims were pending in Texas, approximately 400 claims were pending in Mississippi, and approximately 200 claims were pending in Ohio, all jurisdictions in which legislation or judicial orders restrict the types of claims that can proceed to trial on the merits. "The Company has tried several cases resulting in defense verdicts by the jury or directed verdicts for the defense by the court. The Company further has pursued appeals of certain adverse jury verdicts that have resulted in reversals in favor of the defense." A full-text copy of the Form 8-K is available at https://is.gd/joxGHc ASBESTOS UPDATE: DOJ Increases Scrutiny of Asbestos Trusts ---------------------------------------------------------- Debra Cassens Weiss of the ABA Journal reported that the Department of Justice has been increasing its scrutiny of trusts that are set up to compensate victims of asbestos. According to Asbestos.com, currently there are more than 60 trust funds with an estimated $30 billion combined, stemming from companies seeking bankruptcy protection and avoiding future liabilities related to asbestos exposure. Companies in bankruptcy court create the trusts to protect themselves from lawsuits while creating a pot of money for victims. The DOJ has expressed concern about fraudulent claims and a lack of oversight, the Associated Press reports. The DOJ asserts it wants to protect victims as well as federal coffers, which could be paying Medicare claims even though trust funds have paid for medical costs. Critics, on the other hand, say there is little proof of widespread fraud, and increased oversight could divert money from the victims. The DOJ got involved in September when it filed a statement of interest in a bankruptcy case in the Western District of North Carolina, according to Bloomberg Big Law Business and a press release. The filing said the reorganization plans don't have adequate safeguards. Principal Deputy Associate Attorney General Jesse Panuccio explained why the DOJ got involved in the press release. "In recent years, alarming evidence has emerged of fraud and mismanagement inside asbestos trusts," he said. The case is In re Kaiser Gypsum Co. Later that same month, the DOJ challenged the appointment of a lawyer who would act as claims representative in a different case involving the Duro Dyne Corp. The department claimed the lawyer's independence could be compromised because of close connections to lawyers representing plaintiffs, according to a press release. A judge rejected the request, according to AP. Another trust, DII Industries, disclosed that it received an administrative subpoena for records as part of a probe into Medicare reimbursement. "There is incredible irony in the fact that an industry that covered up the dangers of a known carcinogen for decades, leading to ongoing deaths of 15,000 Americans a year, is now claiming that its victims are committing systemic fraud against the trusts -- even though no court has ever found evidence of such fraud," Peter Knudsen, spokesman for American Association for Justice, a leading plaintiff's lawyers group, said in a statement. ASBESTOS UPDATE: Fla. Supreme Ct. Reinstates Ruling in DeLisle -------------------------------------------------------------- In Richard DeLisle's asbestos case, the Supreme Court of Florida has remanded with instructions to reinstate the trial court's judgment, according to Crane Co.'s Form 8-K filing with the U.S. Securities and Exchange Commission dated October 22, 2018. The Company states, "On September 17, 2013, a Fort Lauderdale, Florida state court jury in the Richard DeLisle claim found the Company responsible for 16% of an US$8 million verdict. The trial court denied all parties' post-trial motions, and entered judgment against the Company in the amount of US$1.3 million. "The Company appealed and oral argument on the appeal took place on February 16, 2016. On September 14, 2016 a panel of the Florida Court of Appeals reversed and entered judgment in favor of the Company. "Plaintiff filed with the Court of Appeals a motion for rehearing and/or certification of an appeal to the Florida Supreme Court, which the Court denied on November 9, 2016. Plaintiffs subsequently requested review by the Supreme Court of Florida. Plaintiffs' motion was granted on July 11, 2017. Oral argument took place on March 6, 2018. "On October 15, 2018, the Supreme Court of Florida reversed and remanded with instructions to reinstate the trial court's judgment. The Company is considering its further appellate options." A full-text copy of the Form 8-K is available at https://is.gd/joxGHc ASBESTOS UPDATE: Former Mechanic Sues Borg-Warner Over Lung Cancer ------------------------------------------------------------------ St. Louis Record reported that a former mechanic and sawmill laborer alleges exposure to asbestos during his career caused him to develop lung cancer. Billy Coons filed a complaint on Oct. 29 in the St. Louis 22nd Judicial Circuit Court against Borg-Warner Corp., Gardner Denver Inc., Union Carbide Corp., et al. alleging strict liability, negligence and other counts. According to the complaint, the plaintiff alleges that at various times during his career beginning in 1960, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about Aug. 26, 2015, he first became aware that he developed lung cancer, an asbestos-induced disease. The plaintiff holds Borg-Warner Corp., Gardner Denver Inc., Union Carbide Corp., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff seeks actual and compensatory damages of more than $50,000, costs, interest and all further relief as the court deems just and equitable. He is represented by Benjamin R. Schmickle and Matthew C. Morris of SWMW Law LLC in St. Louis. St. Louis 22nd Judicial Circuit Court case number 1822-CC11519 ASBESTOS UPDATE: Honeywell Had $1.7BB Bendix Claims at Sept. 30 --------------------------------------------------------------- Honeywell International Inc. recorded US$1,693 million at September 30, 2018 in asbestos-related liabilities involving predecessor company Bendix Friction Materials (Bendix) business, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company also disclosed that it had 6,087 unresolved Bendix-related claims at September 30. The Company states, "Bendix manufactured automotive brake linings that contained chrysotile asbestos in an encapsulated form. Claimants consist largely of individuals who allege exposure to asbestos from brakes from either performing or being in the vicinity of individuals who performed brake replacements. "It is not possible to predict whether resolution values for Bendix-related asbestos claims will increase, decrease or stabilize in the future. "Our consolidated financial statements reflect an estimated liability for resolution of asserted (claims filed as of the financial statement date) and unasserted Bendix-related asbestos claims and excludes the Company's legal fees to defend such asbestos claims which will continue to be expensed by the Company as they are incurred. We have valued Bendix asserted and unasserted claims using average resolution values for the previous five years. We update the resolution values used to estimate the cost of Bendix asserted and unasserted claims during the fourth quarter each year. "Honeywell now reflects the inclusion of all years through 2059 rather than a subset of future years when estimating the liability for unasserted Bendix-related asbestos claims. Such liability for unasserted Bendix-related asbestos claims is based on historic claims filing experience and dismissal rates, disease classifications, and resolution values in the tort system for the previous five years. "Our insurance receivable corresponding to the liability for settlement of asserted and unasserted Bendix asbestos claims reflects coverage which is provided by a large number of insurance policies written by dozens of insurance companies in both the domestic insurance market and the London excess market. Based on our ongoing analysis of the probable insurance recovery, insurance receivables are recorded in the financial statements simultaneous with the recording of the estimated liability for the underlying asbestos claims. This determination is based on our analysis of the underlying insurance policies, our historical experience with our insurers, our ongoing review of the solvency of our insurers, judicial determinations relevant to our insurance programs, and our consideration of the impacts of any settlements reached with our insurers." A full-text copy of the Form 10-Q is available at https://is.gd/qF4vyy ASBESTOS UPDATE: Honeywell Had $2.6-Bil. Liabilities at Sept.30 --------------------------------------------------------------- Honeywell International Inc. recorded total liabilities of US$2,601 million related to asbestos matters at September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "Honeywell is a defendant in asbestos related personal injury actions related to North American Refractories Company ("NARCO"), which was sold in 1986, and Bendix Friction Materials ("Bendix") business, which was sold in 2014. A full-text copy of the Form 10-Q is available at https://is.gd/qF4vyy ASBESTOS UPDATE: Honeywell Records $908MM NARCO Liabilities ----------------------------------------------------------- Honeywell International Inc. recorded US$908 million at September 30, 2018, in asbestos-related liabilities involving predecessor company North American Refractories Company (NARCO), according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "Honeywell's predecessor, Allied Corporation owned NARCO from 1979 to 1986. When the NARCO business was sold, Honeywell's predecessor entered into a cross-indemnity agreement with NARCO which included an obligation to indemnify the purchaser for asbestos claims. Such claims arise primarily from alleged occupational exposure to asbestos-containing refractory brick and mortar for high-temperature applications. NARCO ceased manufacturing these products in 1980, and the first asbestos claims were filed in the tort system against NARCO in 1983. Claims filings and related costs increased dramatically in the late 1990s through 2001, which led to NARCO filing for bankruptcy in January 2002. Once NARCO filed for bankruptcy, all then current and future NARCO asbestos claims were stayed against both NARCO and Honeywell pending the reorganization of NARCO. "Following the bankruptcy filing, in December 2002 Honeywell recorded a total NARCO asbestos liability of US$3.2 billion, which was comprised of three components: (i) the estimated liability to settle pre-bankruptcy petition NARCO claims and certain post-petition settlements (US$2.2 billion, referred to as "Pre-bankruptcy NARCO Liability"), (ii) the estimated liability related to then unasserted NARCO claims for the period 2004 through 2018 (US$950 million, referred to as "NARCO Trust Liability"), and (iii) other NARCO bankruptcy-related obligations totaling US$73 million. As of September 30, 2018, our total NARCO asbestos liability of US$908 million reflects Pre-bankruptcy NARCO liability of US$165 million and NARCO Trust Liability of US$743 million. Through September 30, 2018, Pre-bankruptcy NARCO Liability has been reduced by approximately US$2 billion since first established in 2002, largely related to settlement payments. The remaining Pre-bankruptcy NARCO liability principally represents estimated amounts owed pursuant to settlement agreements reached during the pendency of the NARCO bankruptcy proceedings that provide for the right to submit claims to the NARCO Trust subject to qualification under the terms of the settlement agreements and Trust Distribution Procedures. The other NARCO bankruptcy obligations were paid in 2013 and no further liability is recorded. "As of September 30, 2018, Honeywell has not made any payments to the NARCO Trust for Annual Contribution Claims as any Annual Contribution Claims which have been paid since the Trust became operational have been funded by cash dividends from HWI. "Honeywell continues to evaluate the appropriateness of the US$743 million NARCO Trust Liability. Despite becoming effective in 2013, the NARCO Trust has experienced delays in becoming fully operational. Violations of the Trust Distribution Procedures and the resulting disputes and challenges, a standstill pending dispute resolution, and limited claims payments, have all contributed to the lack of sufficient normalized data based on actual claims processing experience in the Trust since it began operational. As a result, we have not been able to further update the NARCO Trust Liability. The US$743 million NARCO Trust Liability continues to be appropriate because of the unresolved pending claims in the Trust, some portion of which will result in payouts in the future, and because new claims continue to be filed with the NARCO Trust. When sufficiently reliable claims data exists, we will update our estimate of the NARCO Trust Liability and it is possible that a material change may need to be recognized. "Our insurance receivable of US$311 million as of September 30, 2018, corresponding to the estimated liability for asserted and unasserted NARCO asbestos claims reflects coverage which reimburses Honeywell for portions of NARCO-related indemnity and defense costs and is provided by a large number of insurance policies written by dozens of insurance companies in both the domestic insurance market and the London excess market. We conduct analyses to estimate the probable amount of insurance that is recoverable for asbestos claims. While the substantial majority of our insurance carriers are solvent, some of our individual carriers are insolvent, which has been considered in our analysis of probable recoveries. We made judgments concerning insurance coverage that we believe are reasonable and consistent with our historical dealings and our knowledge of any pertinent solvency issues surrounding insurers." A full-text copy of the Form 10-Q is available at https://is.gd/qF4vyy ASBESTOS UPDATE: Ingersoll-Rand Still Defends Claims at Sept. 30 ---------------------------------------------------------------- Ingersoll-Rand Public Limited Company said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018, that over 80 percent of the open asbestos-related claims against the Company are non-malignancy or unspecified disease claims. The Company states, "Certain wholly-owned subsidiaries and former companies of ours are named as defendants in asbestos-related lawsuits in state and federal courts. In virtually all of the suits, a large number of other companies have also been named as defendants. The vast majority of those claims have been filed against either Ingersoll-Rand Company or Trane U.S. Inc. (Trane) and generally allege injury caused by exposure to asbestos contained in certain historical products sold by Ingersoll-Rand Company or Trane, primarily pumps, boilers and railroad brake shoes. None of our existing or previously-owned businesses were a producer or manufacturer of asbestos. "The Company engages an outside expert to assist in calculating an estimate of the Company's total liability for pending and unasserted future asbestos-related claims and annually performs a detailed analysis with the assistance of an outside expert to update its estimated asbestos-related liability. The methodology used to project the Company's total liability for pending and unasserted potential future asbestos-related claims relied upon and included the following factors, among others: * the outside expert's interpretation of a widely accepted forecast of the population likely to have been occupationally exposed to asbestos; * epidemiological studies estimating the number of people likely to develop asbestos-related diseases such as mesothelioma and lung cancer; * the Company's historical experience with the filing of non-malignancy claims and claims alleging other types of malignant diseases filed against the Company relative to the number of lung cancer claims filed against the Company; * the outside expert's analysis of the number of people likely to file an asbestos-related personal injury claim against the Company based on such epidemiological and historical data and the Company's most recent three-year claims history; * an analysis of the Company's pending cases, by type of disease claimed and by year filed; * an analysis of the Company's most recent three-year history to determine the average settlement and resolution value of claims, by type of disease claimed; * an adjustment for inflation in the future average settlement value of claims, at a 2.5% annual inflation rate, adjusted downward to 1.5% to take account of the declining value of claims resulting from the aging of the claimant population; and * an analysis of the period over which the Company has and is likely to resolve asbestos-related claims against it in the future. "At September 30, 2018 and December 31, 2017, over 80 percent of the open claims against the Company are non-malignancy or unspecified disease claims, many of which have been placed on inactive or deferral dockets and the vast majority of which have little or no settlement value against the Company, particularly in light of recent changes in the legal and judicial treatment of such claims." A full-text copy of the Form 10-Q is available at https://is.gd/s55JoI ASBESTOS UPDATE: Inmate's Asbestos Suit Proceed vs NJ Officials --------------------------------------------------------------- Bloomberg Law reported that a New Jersey state prisoner may proceed with asbestos exposure claims against his local warden and the state's top prison official. David Wilson sufficiently alleged civil rights claims against Warden John Powell of the Bayside State Prison in Leesburg, N.J., and Commissioner Gary Lanigan of the New Jersey Department of Corrections, the U.S. District Court for the District of New Jersey said Oct. 31. But the state Department of Corrections itself is immune from suit. ASBESTOS UPDATE: Kramer Levin Comments on WR Grace Plan Ruling -------------------------------------------------------------- Andrew Pollack, Esq., -- apollack@kramerlevin.com -- at Kramer Levin Naftalis & Frankel LLP, in an article for JD Supra, wrote that in the wake of asbestos bankruptcies brought on by mass tort liabilities, reorganization plan structures, like that in Johns-Mansville, often funneled asbestos-related claims into a settlement trust, while a "channeling injunction" largely barred claims against the debtor and, in some cases, against certain third parties that had contributed funds to the trust. Congress enacted Section 524(g) of the Bankruptcy Code in order to provide additional clarity regarding the propriety of these channeling injunctions, codifying the required elements for a valid channeling injunction. In a recent Third Circuit decision arising out of the W.R. Grace bankruptcy proceedings, In re W.R. Grace & Co. (Continental Casualty Co. v. Carr), 900 F.3d 126 (3d Cir. 2018), the Third Circuit has provided additional guidance regarding statutory requirements that must be met in order to properly direct claims pursuant to a channeling injunction in accordance with Section 524(g), specifically with respect to insurance companies that have provided insurance to a debtor. The Court, in vacating the Bankruptcy Court’s decision that certain asbestos claims brought against W.R. Grace’s insurers may be enjoined, held that the Bankruptcy Court must consider applicable state law principles in connection with a determination as to whether claims fall within the permissible scope of an injunction under Section 524(g)(4). What Happened? Following the bankruptcy filing of W.R. Grace, a settlement trust (the "Asbestos PI Trust") was established to compensate asbestos claimants, and a related injunction (the "Injunction") was approved by the Bankruptcy Court that effectively funneled asbestos claims to the trust and barred claimants from seeking compensation directly from the debtor and certain other identified parties. In connection with the W.R. Grace plan of reorganization, two of W.R. Grace's insurance providers, Continental Casualty Company and Transportation Insurance Company (referred to collectively as "CNA") and W.R. Grace entered into a settlement agreement that called for CNA to contribute $84 million over six years to the Asbestos PI Trust, a portion of which could be reimbursed to CNA for expenditures CNA makes on account of personal injury asbestos claims that are not channeled to the Asbestos PI Trust. By way of background, Section 524(g)(4) provides, among other things, that in connection with a plan of reorganization, claims against certain third parties, like insurers, may be enjoined if certain specified conditions are met. Specifically, Section 524(g)(4)(A)(ii) provides, in relevant part: [A third-party-claims channeling] injunction may bar any action directed against a third party who is identifiable from the terms of such injunction . . . and is alleged to be directly or indirectly liable for the conduct of, claims against, or demands on the debtor to the extent such alleged liability of such third party arises by reason of [ ] the third party’s provision of insurance to the debtor or a related party. In the instant case, the Injunction, which applied "only to the extent[] provided by [S]ection 524(g)," stated in relevant part: [T]he sole recourse of the Holder of an Asbestos [Personal Injury] Claim . . . shall be to the Asbestos PI Trust . . .[,] and such Holder shall have no right whatsoever at any time to assert its Asbestos PI Claim . . . against . . . any other Asbestos Protected Party . . . . [A]ll such Holders permanently and forever shall be stayed, restrained, and enjoined from taking any and all legal or other actions or making any Demand against any Asbestos Protected Party . . . for the purpose of, directly or indirectly, claiming, collecting, recovering, or receiving any payment, recovery, satisfaction, or any other relief whatsoever on, of, or with respect to any Asbestos PI Claims . . . other than from the Asbestos PI Trust . . . . A group of plaintiffs suffering from asbestos exposure (the "Plaintiffs") sought to hold CNA liable under various Montana state law negligence theories. Under the governing insurance documents, CNA was granted the right to inspect certain of W.R. Grace's facilities and the equipment and machinery housed in the facilities. The Plaintiffs argued, among other things, that CNA thereby undertook a duty of care, which it allegedly breached by negligently failing to properly inspect Grace's Libby operations and otherwise to provide proper warnings and other industrial hygiene services to the Plaintiffs. CNA, in response, sought to bar the Plaintiffs' claims through the enforcement of the channeling injunction contained in the W.R. Grace plan of reorganization, as CNA was effectively defined as an "Asbestos Protected Party" under the Injunction. Faced with the Plaintiffs' negligence claims, CNA filed a complaint in the Bankruptcy Court seeking a declaration that the negligence claims must be channeled to the Asbestos PI Trust on account of the Injunction. The Bankruptcy Court ultimately ruled in favor of CNA, denying the Plaintiffs’ motion to dismiss CNA’s complaint and granting summary judgment in favor of CNA. The Third Circuit, in analyzing the issues presented, focused its attention on two primary questions: Whether the Injunction applied to the Plaintiffs' negligence claims against CNA, and whether under Section 524(g)(4), the negligence claims were barred by the Injunction. With respect to the issue whether the Injunction, by its terms, applied to claims brought against CNA, the Plaintiffs argued that the Injunction did not bar the negligence claims against CNA because the CNA workers' compensation and employer's liability policies were not expressly included among the policies identified by the Injunction. The Court, however, looked to the applicable catch-all provision providing that the Injunction covered all "known and unknown policies" provided by CNA to W.R. Grace, and determined that the Injunction did indeed apply to the negligence claims. Turning next to the issue whether under Section 524(g)(4) the negligence claims were properly barred by the Injunction, the Court looked to the three-pronged test set forth in its decision in Combustion Engineering. In Combustion Engineering, the Court determined that under Section 524(g), three prongs must be satisfied in order to permit a channeling injunction to bar actions against third parties. The three-prong test looks to (i) whether the third party is identified as protected in the injunction, (ii) whether the claims brought against the third party seek to hold that third party "directly or indirectly liable for the conduct of, claims against, or demands on" the debtor, and (iii) whether the third party's alleged liability "arises by reason of" one of four identified relationships in Section 524, including the provision of insurance to a debtor. The first prong (identification) was not contested by the parties, as CNA was expressly identified in the Injunction as a covered party. On the issue whether the negligence claims brought by the plaintiffs seek to hold CNA "directly or indirectly liable" for W.R. Grace's conduct, the Court looked to whether the insurer's liability was "wholly separate" from W.R. Grace's liability or instead "depends on it." This question, according to the Third Circuit, requires a court to analyze the relevant claims and defenses under applicable state law. Noting that the parties had not submitted any briefing (either in the lower court or before the Third Circuit) regarding which state’s law applied or what the relevant examination should be under the applicable state law, the Third Circuit remanded this issue back to the Bankruptcy Court for further briefing and determinations regarding the applicable state law principles on the direct-indirect liability of CNA. The Third Circuit, however, expressly recognized the underlying policy embedded in Bankruptcy Code Section 524 of incentivizing insurers to contribute to personal injury trusts in order to reduce uncertainty about continuing liability and obligations regarding future personal injury claimants. With respect to the final prong, whether the insurer's alleged liability "arises by reason of" its provision of insurance to W.R. Grace, CNA argued that the Plaintiffs' must establish a "but-for" causational relationship between the provision of insurance and the Plaintiffs claims, whereas the Plaintiffs argued that they need only establish that the liability arose from the "legal consequence" of the insurers relationship with W.R. Grace (in other words, that "the relationship, in light of the debtor's conduct or the claims asserted against it, [is] a legal cause of or a legally relevant factor to the third party's alleged liability"). Again, the Third Circuit concluded that the Bankruptcy Court is required to look to applicable state law "to determine the relationship's legal relevance to the third-party's alleged liability." Accordingly, the Third Circuit remanded this issue as well so that the Bankruptcy Court may analyze, with the benefit of briefing, the elements of the Plaintiffs' negligence claims, and determine whether CNA's relationship with W.R. Grace, grounded in the provision of insurance, is sufficient to meet the elements required under state law. Why This Case Is Interesting The Third Circuit's decision addresses a relatively unusual situation: a suit against a debtor's insurer not to recover from its insurance policies for the debtor's liability, but instead to hold the insurer independently liable for its own misconduct. Claims of this sort, the court of appeals ruled, require careful consideration of the law (usually state law) governing Plaintiffs' claims against the insurer. Only by determining whether the insurer's alleged liability is "wholly separate" from the debtor's liability or instead at least partly "depends on it" can the court determine whether the claims sought to be enjoined meet the requirements of Section 524(g) -- in particular, the requirements that these claims (i) seek to hold the insurer "directly or indirectly liable" for the debtor's conduct and (ii) "arise[] by reason of" the provision of insurance to the debtor. ASBESTOS UPDATE: Ky. Teacher Wins Workers' Compensation Benefits ----------------------------------------------------------------- Mesothelioma.net reported that when Roger Hall was diagnosed with malignant mesothelioma in 2015, he knew exactly how he got the deadly asbestos-related disease. Hall had been a teacher at the Letcher County High School from 1976 through his retirement in 2003. He remembered when the old high school building was replaced with a newly constructed one in 1992, and that even after the new building was completed the teachers used the boiler room in the old building as their break and lunch room. That boiler had tested positive for asbestos in the late 1980s, and though the asbestos containing materials were removed from the boiler in 1990, the asbestos tiles on the floor were not removed until each one broke down and needed to be repaired individually. Many of them were still in place at the time of his retirement. As a result, he filed a workers' compensation claim against the school board, which denied his claim as time barred based on the boiler's removal in 1990. The Workers' Compensation Board in Kentucky reversed the board's decision and the Board of Education appealed. Now the Court of Appeals of Kentucky has upheld the decision of the Workers' Compensation Board and said that Mr. Hall deserves his workers' compensation benefits. The issue of workers' compensation can be particularly trick for people diagnosed with malignant mesothelioma because of the condition's long latency period. In many parts of the country, workers' compensation claims have shorter time limitations than personal injury claims do, and that means that workers diagnosed with diseases like mesothelioma have to prove that their last exposure to the carcinogenic material was as close to their retirement date as possible, even if their initial exposure was decades before they left their company. In Mr. Hall's case, the issue was whether or not his exposure to asbestos ended in 1990 or whether it continued until the time of his retirement. The Court of Appeals agreed with the Workers' Compensation Board and Mr. Hall that the presence of the asbestos tiles on the floor at the time of his retirement meant that his exposure continued until his retirement, and that the evidence supporting it was overwhelming. Though it would seem that people and organizations should try to accommodate the needs of people diagnosed with mesothelioma, that is unfortunately not the case. If you are encountering roadblocks in your mesothelioma journey, the Patient Advocates at Mesothelioma.net can help. Contact us today at 1-800-692-8608 to learn more. ASBESTOS UPDATE: Lennox Int'l Paid $1.4MM for Lawsuits in 3Q 2018 ----------------------------------------------------------------- Lennox International Inc. recorded US$1.4 million expense for asbestos-related litigation for the three months ended September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "We are involved in a number of claims and lawsuits incident to the operation of our businesses. Insurance coverages are maintained and estimated costs are recorded for such claims and lawsuits, including costs to settle claims and lawsuits, based on experience involving similar matters and specific facts known. "Some of these claims and lawsuits allege personal injury or health problems resulting from exposure to asbestos that was integrated into certain of our products. We have never manufactured asbestos and have not incorporated asbestos-containing components into our products for several decades. A substantial majority of these asbestos-related claims have been covered by insurance or other forms of indemnity or have been dismissed without payment. The remainder of our closed cases have been resolved for amounts that are not material, individually or in the aggregate. Our defense costs for asbestos-related claims are generally covered by insurance; however, our insurance coverage for settlements and judgments for asbestos-related claims varies depending on several factors and are subject to policy limits, so we may have greater financial exposure for future settlements and judgments. For the nine months ended September 30, 2018 and 2017, expense for asbestos-related litigation was US$3.3 million and US$3.9 million, respectively, net of probable insurance recoveries, for known and future asbestos-related litigation and is recorded in Losses and other expenses, net in the Consolidated Statements of Operations. "For the three months ended September 30, 2018 and 2017, expense for asbestos-related litigation was US$1.4 million and US$1.5 million, respectively, net of probable insurance recoveries." A full-text copy of the Form 10-Q is available at https://is.gd/c8ebTL ASBESTOS UPDATE: Maersk Line Bid for Summary Judgment Denied ------------------------------------------------------------ The Hon. Robert J. Bryan of the United States District Court for the Western District of Washington has entered an order denying without prejudice the Motion for Summary Judgment filed by Defendant Maersk Line, Limited, the alleged successor-in-interest to Decedent's employer and owner of Royal Rotterdam Lloyd ("RRL") vessels. Plaintiff filed the case in Superior Court for Thurston County on October 27, 2017 which arises from the allegation that Rudy Klopman-Baerselman, Decedent, was exposed to asbestos during two timeframes: from 1955 through 1959, while working as a merchant mariner assigned to several vessels, and from 1966 through 1967, while performing vehicle maintenance. One month after the case was filed, counsel to Defendant by letter informed Plaintiff of two defects: (a) Plaintiff had named the wrong company, because "Defendant Maersk Line has no connection, whatsoever to either Royal Dutch Lloyd or [RRL]," has no knowledge of an entity by the name Royal Dutch Lloyd, and is aware that RRL "ceased operations in 1970, and retained its own liabilities under a different name until liquidated in 2000;" and (b) Defendant warned, even if Decedent worked on a vessel of either entity from 1955 through 1959, "it is our understanding such service was as a foreign seaman aboard foreign vessels, and certainly not in Washington State." In the Superior Court, Defendant filed a Motion for Summary Judgment. The motion was re-noted after Plaintiff filed served written discovery requests and scheduled the deposition of Defendant's corporate designee, Mr. Steven Hadder. Prior to reaching the merits of Defendant's motion, another defendant removed the case to the United States District Court for the Western District of Washington. Defendant filed the instant Motion for Summary Judgment in on July 10, 2018. Again, the Court re-noted Defendant's motion and invited Plaintiff to file a Supplemental Response to address several arguments raised by Defendant. Said Order identified three primary arguments and noted that only the first argument was directly addressed in Plaintiff's Response: (1) Defendant should be dismissed as an improper party, because Defendant is not a successor-in-interest to RRL; (2) the Amended Complaint does not state a claim, because RRL never manufactured, sold or distributed asbestos-containing products; and (3) the Court lacks jurisdiction, because Decedent was a foreign seaman aboard foreign vessels in foreign waters. However, Plaintiff did not file a Supplemental Response. Instead Plaintiff elected to address the first two arguments identified in the August 15, 2018 Order by filing the Second Motion for Leave to Amend Complaint. The Proposed Second Amended Complaint names Defendant as successor-in-interest to "Royal Rotterdam Lloyd (Employer Defendant)." The proposed pleading adds a new claim for employer negligence, alleged against Defendant only, that Defendant caused Decedent's asbestos harm by, inter alia, failing to provide a reasonably safe work place with adequate training equipment, and warnings. While the Proposed Second Amended Complaint may resolve one or both of Defendant's first two arguments, the Court does not reach their merits. Thus, the Court considers that Defendant's motion should be denied without prejudice because Defendant may raise them again after the motion for leave to amend is resolved. The Court finds that Plaintiff opted to ignore the third argument -- that the Court lacks jurisdiction, because Decedent was a foreign seaman aboard foreign vessels in foreign waters. The Court comments that Plaintiff's failure to respond could be an admission by Plaintiff that the argument has merit but Defendant's argument was raised in a motion for summary judgment. However, under W.D.Wash. LCR 7(b)(2), the failure to respond should not be deemed an admission by Plaintiff. The Court notes that Defendant has not brought a forum non conviens motion to dismiss, but rather raises dismissal as a "jurisdiction" issue. Defendant appears to challenge subject matter jurisdiction, not personal jurisdiction, because the motion references the Jones Act and federal maritime jurisdiction. However, the Court finds this case differs from the line of cases discussing a lack of subject matter jurisdiction under the Jones Act or federal maritime law, because this case was removed on diversity grounds. Assuming that the Court has subject matter jurisdiction based on diversity, the prima facie showing of which Defendant has not challenged, it may be unnecessary to also make findings regarding other grounds for subject matter jurisdiction. Accordingly, the Court denied Defendant's motion without prejudice as to Defendant's third argument. The case is Eric Klopman-Baerselman, as Personal Representative for the Estate of Rudie Klopman-Baerselman, Deceased, Plaintiff, v. Air & Liquid Systems Corporation, et al., Defendants, Case No. 3:18-cv-05536-RJB, (W.D. Wash.) Rudie Klopman-Baerselman, deceased & Muriel Klopman-Baerselman, husband and wife, Plaintiffs, represented by Alexandra B. Caggiano , Weinstein Couture PLLC, Benjamin Robert Couture , Weinstein Couture PLLC & Brian Weinstein , Weinstein Couture PLLC. Eric Klopman-Baerselman, as Personal Representative for the estate of Rudie Klopman-Baerselman, Plaintiff, represented by Alexandra B. Caggiano , Weinstein Couture PLLC, Benjamin Robert Couture , Weinstein Couture PLLC, Brian Weinstein , Weinstein Couture PLLC & Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP, pro hac vice. Air & Liquid Systems Corporation, a Pennsylvania corporation, individually & Ingersoll-Rand Company, a New Jersey corporation, Defendants, represented by Kevin J. Craig -- kcraig@grsm.com -- Gordon Rees Scully Mansukhani LLP, Mark B. Tuvim -- mtuvim@grsm.com -- Gordon Rees Scully Mansukhani LLP & Trevor J. Mohr -- tmohr@grsm.com -- Gordon Rees Scully Mansukhani LLP. Borg Warner Morse Tec, LLC, a Delaware corporation, Defendant, represented by Richard D. Ross , Bennett Bigelow & Leedom. CBS Corporation, a Delaware Corporation, Defendant, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP & Malika Johnson -- mjohnson@tktrial.com -- Tanenbaum Keale LLP. Cost Less Auto Parts, Inc., a Washington corporation, Defendant, represented byHoward Terry I. Hall -- thall@foleymansfield.com -- Foley & Mansfield & Diane Catherine Babbitt -- dbabbitt@foleymansfield.com -- Foley & Mansfield. Crane Co., a Delaware corporation, Defendant, represented by G. William Shaw -- bill.shaw@klgates.com -- K&L Gates LLP. Crosby Valve, Inc., a Massachusetts corporation & Viad Corporation, a Delaware corporation, Defendants, represented by Ronald C. Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc. PLLC. DAP Products, Inc., a Maryland corporation, Defendant, represented by Diane Catherine Babbitt -- dbabbitt@foleymansfield.com -- Foley & Mansfield & J. Scott Wood -- swood@foleymansfield.com -- Foley & Mansfield. Federal-Mogul Asbestos Personal Injury Trust, sued as successor in interest Felt-Products Manufacturing Co., Defendant, represented by Christine E. Dinsdale -- dinsdale@sohalang.com -- Soha & Lang PS, Frances Lopez -- flopez@hptylaw.com -- Hawkins Parnell Thackston & Young LLP, pro hac vice & Rachel A. Rubin -- rubin@sohalang.com -- Soha & Lang PS. Flowserve US Inc., a Delaware corporation, Defendant, represented by Marc Marshall Carlton -- Marc.Carlton@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP & Randy J. Aliment -- Randy.Aliment@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler Energy Corporation, a Delaware corporation & General Electric Company, a New York corporation, Defendants, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP. Genuine Parts Company, a Georgia corporation, Defendant, represented by Jeanne F. Loftis -- jeanne.loftis@bullivant.com -- Bullivant Houser Bailey PC. Henry Company LLC, a California corporation, Defendant, represented by Daira S. Waldenberg -- dwaldenberg@selmanlaw.com -- Selman Brietman LLP. Honeywell International, Inc., a Delaware corporation, Defendant, represented by Kristine E. Kruger -- KKruger@perkinscoie.com -- Perkins Coie & Mary P. Gaston -- MGaston@perkinscoie.com -- Perkins Coie. Maersk Line, Ltd., a Delaware corporation, Defendant, represented by Carey M.E. Gephart -- cgephart@legros.com -- LeGros Buchanan & Paul, Daniel J. Park -- dpark@legros.com -- LeGros Buchanan & Paul & Markus B.G. Oberg -- moberg@legros.com -- LeGros Buchanan & Paul. Metropolitan Life Insurance Company, a New York corporation, a wholly-owned subsidiary of other MetLife Inc., Defendant, represented by Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran & Dickerson. National Automotive Parts Association, a Georgia corporation, Defendant, represented by Megan Uhle -- megan.uhle@bullivant.com -- Bullivant Houser Bailey PC. O'Reilly Automotive Stores, Inc, an Ohio corporation, Defendant, represented byStephen Garrett Leatham , Heurlin Potter Jahn, Leatham, Holtman & Stoker PS. Parker-Hannifin Corporation, an Ohio corporation & Standard Motor Products, Inc., a New York corporation, Defendants, represented by Nicole R. MacKenzie -- nmackenzie@williamskastner.com -- Williams Kastner & Gibbs, Ryan W. Vollans -- rvollans@williamskastner.com -- Williams Kastner & Gibbs & Edward M. Silverman -- esilverman@williamskastner.com -- Williams Kastner & Gibbs. Pneumo Abex, LLC, a Delaware corporation, Defendant, represented by Diane J. Kero -- dkero@gth-law.com -- Gordon Thomas Honeywell. Saberhagen Holdings, Inc., a Washington corporation, Defendant, represented by Timothy Kost Thorson -- thorson@carneylaw.com -- Carney Badley Spellman PS. Saint-Gobain Abrasives, Inc., a Massachusetts corporation, Defendant, represented byJohn Michael Mattingly -- mmattingly@rizzopc.com -- Rizzo Mattingly Bosworth PC & Kevin Clonts -- kclonts@rizzopc.com -- Rizzo Mattingly Bosworth PC. Toyota Motor Sales USA Inc, a California corporation, Defendant, represented by Jose Edward Gaitan , The Gaitan Group & Virginia Leeper , The Gaitan Group. Viking Pump, Inc., a Delaware corporation, Defendant, represented by Todd M. Thacker -- tthacker@wfbm.com -- WFBM LLP. Weir Valves & Controls USA, Inc., a Massachusetts corporation, individually, Defendant, represented by Dana C. Kopij -- dkopij@williamskastner.com -- Williams Kastner & Gibbs. William Powell Company, an Ohio corporation, Defendant, represented by Brian Bernard Smith -- bsmith@foleymansfield.com -- Foley & Mansfield & James D. Hicks -- jhicks@foleymansfield.com -- Foley & Mansfield. ASBESTOS UPDATE: Part-Time DJ Dies of Asbestos-related Disease -------------------------------------------------------------- Lynn Hughes of Biggleswade Today reported that the family of a much-loved Sandy man who died of asbestos-related disease have teamed up with lawyers to call on his local community to come forward and help them gain justice. Richard Smith, who was a well-known figure in the town due to his part-time DJ-ing at events ranging from school discos to birthday parties, died aged 64 in January 2016, just three months after he was first diagnosed with mesothelioma -- a cancer of the lining of the lung associated with asbestos exposure. Following his death, his family instructed specialist asbestos-related disease lawyers at Irwin Mitchell to investigate how he came into contact with the material and help them gain answers regarding his illness. The legal experts are keen to gain more information regarding whether Richard may have come into contact with asbestos during his time working at Potton Timber and Engineering in the 1960s and 1970s. Alexia Kapranos, at Irwin Mitchell's London office, said: "Richard was a huge personality who had a great impact on his local community and two years on from his death his family remain devastated by their loss. "They are desperate for answers as to how he came into contact with asbestos and we would be hugely grateful to anyone who may have information regarding the material in relation to Potton Timber and Engineering. Any detail no matter how small could make a major difference to this case." As well as being a father-of-four, Richard was a grandfather to 14 and a great grandfather of one. Around 300 people attended his funeral. His daughter Paula, said: "The whole family miss Dad so much every day and the lack of answers regarding how he developed mesothelioma has made our efforts to come to terms with the loss much harder. "Mum always referred to him as the life and soul of the party and he truly was, with so many people across Sandy and beyond enjoying his DJ-ing and general work within the community. "We would be incredibly grateful to anyone in the local area or further afield who may have information regarding the working conditions at Potton Timber and Engineering and could help us in our search for answers. "We are determined to get justice in Dad's memory." Anyone with information is asked to contact Alexia Kapranos at Irwin Mitchell's London office on 0207 421 3903 or email alexia.kapranos@irwin mitchell.com ASBESTOS UPDATE: Pentair Plc Had 600 Pending Claims at Sept. 30 --------------------------------------------------------------- Pentair plc's subsidiaries continue to face approximately 600 claims related to asbestos matters as of September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. The Company states, "Our subsidiaries and numerous other companies are named as defendants in personal injury lawsuits based on alleged exposure to asbestos-containing materials. These cases typically involve product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were attached to or used with asbestos-containing components manufactured by third-parties. Each case typically names between dozens to hundreds of corporate defendants. While we have observed an increase in the number of these lawsuits over the past several years, including lawsuits by plaintiffs with mesothelioma-related claims, a large percentage of these suits have not presented viable legal claims and, as a result, have been dismissed by the courts. Our historical strategy has been to mount a vigorous defense aimed at having unsubstantiated suits dismissed, and, where appropriate, settling suits before trial. Although a large percentage of litigated suits have been dismissed, we cannot predict the extent to which we will be successful in resolving lawsuits in the future. "As of September 30, 2018, there were approximately 600 claims outstanding against our subsidiaries. This amount is not adjusted for claims that are not actively being prosecuted, identified incorrect defendants, or duplicated other actions, which would ultimately reflect our current estimate of the number of viable claims made against us, our affiliates, or entities for which we assumed responsibility in connection with acquisitions or divestitures. In addition, the amount does not include certain claims pending against third parties for which we have been provided an indemnification." A full-text copy of the Form 10-Q is available at https://is.gd/Ej1md2 ASBESTOS UPDATE: Pfizer Faces Wrongful-Death Suit ------------------------------------------------- Bloomberg Law reported that Pfizer Inc. will face asbestos wrongful-death claims based on a subsidiary's cement product bearing Pfizer's name. The Washington Supreme Court adopted the "apparent manufacturer" doctrine for product liability claims based on subsidiary activities, like asbestos exposure, that occurred before 1981. The doctrine allows claims against a company when a reasonable consumer would believe it made the product because of such marketing-related actions as putting its logo on the product's label. ASBESTOS UPDATE: PPG Industries Had 440 Open Claims at Sept. 30 --------------------------------------------------------------- PPG Industries, Inc. said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 30, 2018, that it is aware of approximately 440 open and active asbestos-related claims pending against the Company and certain of its subsidiaries as of September 30, 2018. The Company states, "These claims consist primarily of non-PC Relationship Claims and claims against a subsidiary of PPG. The Company is defending the remaining open and active claims vigorously. "Since April 1, 2013, a subsidiary of PPG has been implicated in claims alleging death or injury caused by asbestos-containing products manufactured, distributed or sold by a North American architectural coatings business or its predecessors which was acquired by PPG. All such claims have been either served upon or tendered to the seller for defense and indemnity pursuant to obligations undertaken by the seller in connection with the Company's purchase of the North American architectural coatings business. The seller has accepted the defense of these claims subject to the terms of various agreements between the Company and the seller. The seller's defense and indemnity obligations in connection with newly filed claims ceased with respect to claims filed after April 1, 2018. "PPG has established reserves totaling approximately US$180 million for asbestos-related claims that would not be channeled to the Trust which, based on presently available information, we believe will be sufficient to encompass all of PPG's current and potential future asbestos liabilities. These reserves include a US$162 million reserve established in 2009 in connection with an amendment to the PC plan of reorganization. These reserves, which are included within "Other liabilities" on the accompanying condensed consolidated balance sheets, represent PPG's best estimate of its liability for these claims. PPG does not have sufficient current claim information or settlement history on which to base a better estimate of this liability in light of the fact that the Bankruptcy Court's injunction staying most asbestos claims against the Company was in effect from April 2000 through May 2016. PPG will monitor the activity associated with its remaining asbestos claims and evaluate, on a periodic basis, its estimated liability for such claims, its insurance assets then available, and all underlying assumptions to determine whether any adjustment to the reserves for these claims is required. "The amount reserved for asbestos-related claims by its nature is subject to many uncertainties that may change over time, including (i) the ultimate number of claims filed; (ii) the amounts required to resolve both currently known and future unknown claims; (iii) the amount of insurance, if any, available to cover such claims; (iv) the unpredictable aspects of the litigation process, including a changing trial docket and the jurisdictions in which trials are scheduled; (v) the outcome of any trials, including potential judgments or jury verdicts; (vi) the lack of specific information in many cases concerning exposure for which PPG is allegedly responsible, and the claimants' alleged diseases resulting from such exposure; and (vii) potential changes in applicable federal and/or state tort liability law. All of these factors may have a material effect upon future asbestos-related liability estimates. As a potential offset to any future asbestos financial exposure, under the PC plan of reorganization PPG retained, for its own account, the right to pursue insurance coverage from certain of its historical insurers that did not participate in the PC plan of reorganization. While the ultimate outcome of PPG's asbestos litigation cannot be predicted with certainty, PPG believes that any financial exposure resulting from its asbestos-related claims will not have a material adverse effect on PPG's consolidated financial position, liquidity or results of operations." A full-text copy of the Form 10-Q is available at https://is.gd/vC2w1X ASBESTOS UPDATE: Retired Cumbria PC Diagnosed with Asbestos Cancer ------------------------------------------------------------------- Cumbria Crack reported that a retired police constable from Cumbria who was diagnosed with asbestos-related cancer has joined forces with legal experts to call on his former colleagues to come forward and help him gain answers regarding how the illness emerged. Douglas Darby, 69, from Millom, first developed symptoms including shortness of breath and fatigue in September 2016 and following a range of tests it was confirmed in late 2016 that he had developed mesothelioma -- a cancer of the lining of the lung linked to asbestos exposure. After receiving the news, he instructed asbestos-related disease lawyers at Irwin Mitchell to investigate how he developed the illness and help him secure justice regarding the problems. Now, as part of their ongoing work, the legal experts are appealing for information about the working conditions Douglas would have faced when he was a postal worker at the General Post Office in Millom between 1965 and 1979, as well as during his time as a police constable at Sellafield Power Station from 1979 up until his retirement in 2009. Kirstie Devine, the legal expert and asbestos-related disease specialist at Irwin Mitchell's Newcastle office who represents Douglas, said: "Our client is understandably devastated by his diagnosis but remains determined to do everything he can to learn more regarding how he came to develop the illness. "We would be hugely grateful to anyone who may be able to provide information regarding the presence of asbestos at these two sites, as any such detail could be vital as we aim to secure funds which will support him in the coming months. "Asbestos has had a terrible impact on so many lives and it is only right those affected by the material through no fault of their own are able to gain justice." Douglas's role at the General Post Office involved a host of tasks including going to the boiler house at the rear of the building to rake the boiler and stock it up with coke. He recalled: "I remember that it was a tight squeeze to get into the room and that the boiler and pipework was all lagged with asbestos. The lagging was always in poor condition and I would have disturbed asbestos fibres while going about my jobs in the room." After leaving the General Post Office, Douglas then went on to work as a police officer for the UK Atomic Energy Authority at Sellafield Power Station. During his time there the organisation's name changed to Civil Nuclear Constabulary and then the Civil Nuclear Police Authority. He added: "My role at Sellafield involved undertaking various shifts in different parts of the power station and there was asbestos present both across the site and also within the Police Control Centre where we worked out of. "Having to battle this illness has been incredibly difficult and it is hard to take that it may have been caused by my work. I would be grateful to anyone who may be able to provide information which will help me gain justice regarding what I am going through." ASBESTOS UPDATE: Reynolds' Appeal in Steiner Suit Quashed --------------------------------------------------------- The Superior Court of Pennsylvania has quashed the appealed case Bernice M. Steiner, Individually and as Personal Representative of the Estate of Samuel E. Steiner, v. Hollingsworth & Vose Company, Lorillard Tobacco Company, Individually and as Successor in the Interest to P. Lorillard Co. Appeal of: R.J. Reynolds Tobacco Company, as Successor-By-Merger to Lorillard Tobacco Company, No. 563 EDA 2018, (Pa. Super. Ct.). Plaintiff filed suit against Hollingsworth & Vose Company, a manufacturer of asbestos-containing bulk filter media. Hollingsworth sold that product to Reynolds, which used it to make "micronite filters," which were used in Kent cigarettes from 1952 to 1956. Plaintiff claims neither Hollingsworth nor Reynolds provided warnings of the health hazards associated with asbestos exposure and that Samuel Steiner ("Decedent") was a consumer of Kent cigarettes. On January 8, 2018, the court of common pleas entered an order granting Plaintiff's motion to compel discovery, ordering Reynolds to produce two lists: Kent Mesothelioma Actions (like the instant consumer/smoker claim); and Kent Worker Mesothelioma Actions (workers who allege making the filters and cigarettes caused asbestos-related disease). The lists were created in 2011 by counsel for Lorillard Tobacco Company, Reynolds' predecessor, by order of court in another lawsuit brought by an individual who worked at a Lorillard facility, which action was pending in Kentucky state court. Reynolds contends those lists were subject to a protective order. Reynolds filed a motion for reconsideration on January 24, 2018. In that motion Reynolds sought, in the alternative, that the court amend the order and certify it for immediate appeal. On February 6, 2018, the court denied the motion for reconsideration and it also denied certification of the order for immediate appeal. In the appeal, Reynolds claims that the documents are privileged and producing them would violate "privacy and confidentiality rights of former Lorillard employees" as well as the protective order of the Kentucky court. Reynolds further claims that the Court can decide whether the documents are sufficiently sensitive/personal so as to preclude production, separate and apart from the issue of liability for Plaintiff's injuries. Reynolds also claims the documents contain medical information and implicate certain constitutional concerns, including the right to privacy. The Court is not convinced that Reynolds' claim of privilege outweighs the need to consider the judicial inefficiency and waste of resources in piecemeal litigation. The Court finds Reynolds' mere assertion that the documents are privileged because they implicate medical issues does not, without more, render those documents privileged. Although at first glance the reference to "confidential medical information" and "privacy rights" is appealing, the Court finds that Reynolds failed to support these bare assertions. The Court finds Reynolds' claim that the litigation lists rise to the level of constitutional or statutory privilege is unsupported. Plaintiff is not seeking sensitive medical health records or histories, nor is Plaintiff seeking settlement information subject to confidentiality agreements. Plaintiff seeks only claimants' names, attorneys' names and disposition of those claims, all of which could "lead to the discovery of admissible evidence." The Court concludes that the documents sought are litigation documents. Additionally, the Court concludes that Reynolds has failed to establish that they are in fact subject to a protective order. In the transcript of the May 2, 2011 discovery hearing in the Kentucky case, which Reynolds has included as part of the certified record, the Court finds no indication that the lists are subject to a protective order. Furthermore, even if they were, the Court sustains Plaintiff's argument that the Kentucky state court cannot determine the discoverability or admissibility of evidence in an unrelated action in Pennsylvania. Howard Michael Klein -- hklein@conradobrien.com -- Aya Salem -- asalem@conradobrien.com -- Conrad O'Brien P.C., Brendan Fanzoni , James Berger -- james.berger@hugheshubbard.com -- Hughes, Hubbard & Reed, for Appellant, R.J. Reynolds Tobacco Co., as successor-by-Merger to Lorillard Tobacco Co. Howard Michael Klein -- hklein@conradobrien.com -- Conrad O'Brien P.C., Sarah P. Kelly -- skelly@nutter.com -- Nutter, McClnnen & FIsh, LLP, for Appellee, Hollingsworth & Vose. Jonathan Daniel Rubinstein -- jrubinstein@cprlaw.com -- Jacqueline Patricia Gruhler , Cohen, Placitella & Roth, P.C., for Appellee, Bernice M. Steiner, Ind. and as Personal Rep. of the Estate of Samuel E. Steiner. ASBESTOS UPDATE: Scottish MoD Pressed Over Asbestos in Choppers --------------------------------------------------------------- Clydebank Post reported that Martin Docherty-Hughes has tabled a series of questions in the House of Commons on the presence of the minerals in the choppers. The MoD has recently announced it is investigating concerns that staff working on Sea King helicopters between 1969 and 2016 could be at risk from asbestos related illnesses due to exposure to the deadly fibres from component parts. It's unclear how many former and current MoD workers are affected, but it is likely to be thousands as it covers a period of almost 50 years from when the aircraft first came into service. Mr Docherty-Hughes, who sits on the Commons Defence Select Committee, raised concerns about the investigation with defence minister Stuart Andrew during defence questions in parliament last week. He said: "Asbestos kills, and it is a silent killer. As an MP representing a constituency with the highest rates of asbestos related disease in Europe, I know all too well the devastating and deadly impact it can have. "The MoD has a duty of care to its current and former employees and must ensure that a thorough investigation is completed as quickly as possible. "Important questions remain over the number of military and civilian personnel put at risk over the past 50 years, and why it is has taken so long for the MoD to take action." ASBESTOS UPDATE: SCOTUS Hears Arguments in Bare-Metal Defense Suit ------------------------------------------------------------------ Law.com reported that the Supreme Court is considering a consolidated action presenting questions of liability for asbestos injuries caused by bare-metal products. "Bare-metal" in the products liability context describes products sold without asbestos-containing materials, such as insulation, but which depend upon those materials for safe and proper operation. The court may avoid making waves in the realm of products liability, however, as it is dealing with claims arising under maritime law. The court will determine whether, under maritime law, manufacturers can be held liable for injuries caused by asbestos-containing products that they did not make, sell or distribute but that were necessary additions to their products. Manufacturers often rely on the "bare-metal" defense. They assert that manufacturers who produced "bare-metal" products that relied on later-added materials for proper operation are not liable for injuries caused by those secondary products. The court will decide if the defense should be applied as a bright-line rule or through a fact-specific analysis. These actions began in state court in Philadelphia, but they were removed to federal court. The claims were brought by the widows of former sailors who suffered asbestos-related injuries due to exposure to insulation on naval ships in the 1950s and 1960s. The problematic insulation was added onto the Navy's ships in places like the engines, pumps, boilers, blowers and switchboards. The families of the late sailors, respondents before the Supreme Court, brought actions against dozens of manufacturers alleging, among other claims, negligence. The manufacturer-petitioners produced, distributed and sold bare-metal products which required the addition of insulation in order for their products to work properly. They did not produce any asbestos-containing products. They designed products in such a way, however, that their functioning was dependent on the addition of the insulation. When the bare-metal products were in use and heated to extreme degrees, the insulation material released asbestos. The federal courts in Philadelphia disagreed on the proper test to apply. Judge Eduardo Robreno of the U.S. District Court for the Eastern District of Pennsylvania applied the bare-metal defense as bright-line rule and granted summary judgment in the manufacturers' favor. The u.S. Court of Appeals for the Third Circuit, however, remanded. That court held that manufacturers would have had a duty to warn about the dangers of later-added materials if their use was "reasonably foreseeable." The manufacturers sought a ruling from the Supreme Court that the defense should be applied as a bright-line rule. Maritime law is a unique body of judge-made federal law that applies when injuries occur at sea and not within the bounds of any state or territory. The Supreme Court is the ultimate authority of maritime law and, thus, it is guided by its prior maritime decisions. Prior Supreme Court decisions addressing negligence under maritime law have focused on the foreseeability of harm. The sailors argued that the manufacturers had a duty to warn because it was expected that the intended use of their products would present hazards. The manufacturers knew that their products would be used, and indeed must be used, with insulation containing asbestos; therefore, the sailors' injuries were reasonably foreseeable. The manufacturers argued that a foreseeability test would be impracticable because ships' settings vary greatly. On a ship, all products are essentially connected because all are attached to the vessel. If manufacturers were responsible for providing warnings for other products, an excess of warnings would result (with diminished effect). Also, if a manufacturer of a product on a ship could be liable for injuries caused by other products, there would be a tremendous increase in prices to compensate for the risk of "open-ended liability." Both the manufacturers and sailors relied on the distinct nature of maritime law to support their arguments. The sailors asserted that the body of law favors sailors' safety and protection —and thus a standard that would afford deserving servicemen the ability to recover for their damages should be adopted. The manufacturers focused on the connectedness of maritime products and the potential for diluting the effect of warnings for truly dangerous products. The Supreme Court heard oral argument in early October. For the manufacturers, the justices' questioning focused on the nature of their product and its reliance on the later-added materials. Justice Ruth Bader Ginsburg acknowledged that, without the insulation, the bare-metal products would be useless. Likewise, Justice John Roberts added that it was only when the bare-metal products were in use and heated that the asbestos dangers presented themselves. Justice Sonia Sotomayor drew an analogy to a more relatable situation: when a spark in a gas tank causes an explosion, the injured party would bring an action against the car manufacturer, not the gasoline company. Given the uniqueness of maritime law, the court could issue a narrow opinion. Nonetheless, it is likely that an analysis of the bare-metal defense by the Supreme Court could influence the treatment of asbestos cases outside of the maritime setting. ASBESTOS UPDATE: Travelers Had $1.3-Bil. Net Reserves at Sept. 30 ----------------------------------------------------------------- The Travelers Companies, Inc. , had net asbestos reserves of US$1,345 million at September 30, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended September 30, 2018. Travelers Companies states, "The Company believes that the property and casualty insurance industry has suffered from court decisions and other trends that have expanded insurance coverage for asbestos claims far beyond the original intent of insurers and policyholders. The Company has received and continues to receive a significant number of asbestos claims from the Company's policyholders (which includes others seeking coverage under a policy). Factors underlying these claim filings include continued intensive advertising by lawyers seeking asbestos claimants and the continued focus by plaintiffs on defendants who were not traditionally primary targets of asbestos litigation. The focus on these defendants is primarily the result of the number of traditional asbestos defendants who have sought bankruptcy protection in previous years. In addition to contributing to the overall number of claims, bankruptcy proceedings may increase the volatility of asbestos-related losses by initially delaying the reporting of claims and later by significantly accelerating and increasing loss payments by insurers, including the Company. The bankruptcy of many traditional defendants has also caused increased settlement demands against those policyholders who are not in bankruptcy but remain in the tort system. Currently, in many jurisdictions, those who allege very serious injury and who can present credible medical evidence of their injuries are receiving priority trial settings in the courts, while those who have not shown any credible disease manifestation are having their hearing dates delayed or placed on an inactive docket. Prioritizing claims involving credible evidence of injuries, along with the focus on defendants who were not traditionally primary targets of asbestos litigation, contributes to the claims and claim adjustment expense payment patterns experienced by the Company. The Company's asbestos-related claims and claim adjustment expense experience also has been impacted by the unavailability of other insurance sources potentially available to policyholders, whether through exhaustion of policy limits or through the insolvency of other participating insurers. "The Company continues to be involved in coverage litigation concerning a number of policyholders, some of whom have filed for bankruptcy, who in some instances have asserted that all or a portion of their asbestos-related claims are not subject to aggregate limits on coverage. In these instances, policyholders also may assert that each individual bodily injury claim should be treated as a separate occurrence under the policy. It is difficult to predict whether these policyholders will be successful on both issues. To the extent both issues are resolved in a policyholder's favor and other Company defenses are not successful, the Company's coverage obligations under the policies at issue would be materially increased and bounded only by the applicable per-occurrence limits and the number of asbestos bodily injury claims against the policyholders. Although the Company has seen a reduction in the overall risk associated with these lawsuits, it remains difficult to predict the ultimate cost of these claims. "Many coverage disputes with policyholders are only resolved through settlement agreements. Because many policyholders make exaggerated demands, it is difficult to predict the outcome of settlement negotiations. Settlements involving bankrupt policyholders may include extensive releases which are favorable to the Company but which could result in settlements for larger amounts than originally anticipated. There also may be instances where a court may not approve a proposed settlement, which may result in additional litigation and potentially less beneficial outcomes for the Company. As in the past, the Company will continue to pursue settlement opportunities. "In addition to claims against policyholders, proceedings have been launched directly against insurers, including the Company, by individuals challenging insurers' conduct with respect to the handling of past asbestos claims and by individuals seeking damages arising from alleged asbestos-related bodily injuries. It is possible that the filing of other direct actions against insurers, including the Company, could be made in the future. It is difficult to predict the outcome of these proceedings, including whether the plaintiffs would be able to sustain these actions against insurers based on novel legal theories of liability. The Company believes it has meritorious defenses to any such claims and has received favorable rulings in certain jurisdictions. "The Company's quarterly asbestos reserve reviews include an analysis of exposure and claim payment patterns by policyholder category, as well as recent settlements, policyholder bankruptcies, judicial rulings and legislative actions. The Company also analyzes developing payment patterns among policyholders in the Home Office and Field Office, and Assumed Reinsurance and Other categories as well as projected reinsurance billings and recoveries. In addition, the Company reviews its historical gross and net loss and expense paid experience, year-by-year, to assess any emerging trends, fluctuations, or characteristics suggested by the aggregate paid activity. Conventional actuarial methods are not utilized to establish asbestos reserves and the Company's evaluations have not resulted in a reliable method to determine a meaningful average asbestos defense or indemnity payment. "The completion of these reviews and analyses in the third quarters of 2018 and 2017 resulted in a US$225 million increase in the Company's net asbestos reserves in each period. In both 2018 and 2017, the reserve increases were primarily driven by increases in the Company's estimate of projected settlement and defense costs related to a broad number of policyholders in the Home Office and Field Office category. The increase in the estimate of projected settlement and defense costs resulted from payment trends that continue to be higher than previously anticipated due to the impact of the current litigation environment surrounding mesothelioma claims. Over the past decade, the property and casualty insurance industry, including the Company, has experienced net unfavorable prior year reserve development with regard to asbestos reserves, but the Company believes that over that period there has been a reduction in the volatility associated with the Company's overall asbestos exposure as the overall asbestos environment has evolved from one dominated by exposure to significant litigation risks, particularly coverage disputes relating to policyholders in bankruptcy who were asserting that their claims were not subject to the aggregate limits contained in their policies, to an environment primarily driven by a frequency of litigation related to individuals with mesothelioma. The Company's overall view of the current underlying asbestos environment is essentially unchanged from recent periods and there remains a high degree of uncertainty with respect to future exposure to asbestos claims. "Net asbestos paid loss and loss expenses in the first nine months of 2018 and 2017 were US$161 million and US$193 million, respectively. Net asbestos reserves were US$1.35 billion at September 30, 2018, compared with US$1.36 billion at September 30, 2017." A full-text copy of the Form 10-Q is available at https://is.gd/BmXD61 ASBESTOS UPDATE: Victims Unable to Trace Employers Can Recover -------------------------------------------------------------- Hartlepool Mail reported that there were 2,595 mesothelioma deaths in 2016. Besides this, a similar number of deaths were also estimated as a result of asbestos-related lung cancer. Asbestos victims can still recover damages where insurers cannot be traced, however, as Tilly Bailey & Irvine's specialist solicitors can vouch for. Victims of the fatal asbestos-induced cancer, mesothelioma, who are unable to trace their employers or an employer's liability insurer, are now able to apply for compensation packages worth on average GBP123,000 under the government legislation known as the "Diffuse Mesothelioma Payments Scheme." This means that thousands of victims can now apply for compensation when previously, if an employer or liability insurer could not be traced, they would not have been able to recover any compensation for their injuries. Symptoms of mesothelioma can take anything up to 40-50 years to present following exposure to asbestos, and as a result hundreds of people every year struggle to locate a relevant party to sue for damages because their former employers have become insolvent and/or insurance records have gone missing. This has created years of injustice for mesothelioma victims and their families who have had to endure this terrible disease with little hope of recovering any compensation from the insurance industry. The new scheme allows victims to recover damages when they would not have previously been able to do so if information was not traceable, or no assets were available to settle any damages. The scheme also makes provision for payment of legal costs which means that, in most cases, recovery of damages and costs will result in families receiving all the compensation they deserve. I have successfully made applications for individuals who suffer from mesothelioma and where the employers that caused their injury either no longer exist, have no assets or the insurers cannot be traced. This has resulted in clients receiving payments in excess of GBP100,000. This has meant those suffering from mesothelioma and their families have compensation which can assist in the most difficult of times. I myself have had more than 30+ years experience dealing with Industrial Disease claims, including mesothelioma, asbestosis and pleural thickening cases. If you or a loved one has recently been diagnosed with an asbestos-related illness, it may be possible to pursue a compensation claim. If you have any queries regarding mesothelioma and/or claiming damages for any asbestos related injury, please don't hesitate to contact us or visit us via York Road, Hartlepool. ASBESTOS UPDATE: Wash. Cos. Fined $140K for Asbestos Violations --------------------------------------------------------------- The Spokesman-Review reported that three companies renovating the Otis Hotel in downtown Spokane have been cited for violating state health and safety rules, receiving fines totaling nearly $140,000, the first round of financial penalties stemming from the companies' mishandling of cancer-causing asbestos material in the historic hotel. One of the companies cited by the Washington state Department of Labor and Industries is owned by Curtis Rystadt, a former mortgage broker who purchased the building for $1.4 million in June 2017. Rystadt's company, Portland-based Hos and Boz LLC, was fined $24,500 for eight "serious" and three "general" violations of worker safety rules. The company also was fined $45,000 for 16 "serious" violations of state rules regulating hazardous materials. Santiago's Handyman Services, also of Oregon, received the same fines as Rystadt's company, totaling $69,500. A third company, 4 Aces Restoration, based in Kent, Washington, received a $200 fine for not informing the state of when it would be handling asbestos. Rystadt and Abundio Santiago have appealed the fines, beginning a potentially lengthy process that could lead to the state's Board of Industrial Insurance Appeals and Spokane County Superior Court. The Spokane Regional Clean Air Agency is preparing its own notice of violations, which also will come with monetary fines. The agency would not discuss the violations since they have not yet been issued. The citations and fines follow inspections in March, when air quality inspectors found signs of improper handling and disposal of asbestos-laden material from the 107-year-old downtown building. The state labor agency issued an "order of immediate restraint" on March 9, and construction was delayed for three months while local and state inspectors investigated the handling and removal not just of asbestos, but also lead, which is in the aged building's paint. Rystadt denies any wrongdoing and says he has documentation to prove his innocence. Instead, he blames "incompetency" and "bureaucracy" for failing to recognize he's done nothing wrong. "First of all, I'm not an employer. I don't employ anybody," Rystadt said, pointing to two specific violations that use the word "employee." "They were not my employees," he said. "Even though I'm not the employer and I'm not responsible for that stuff, I do not want people working in unsafe conditions." Beyond that, Rytstadt said he hired 4 Aces Restoration to properly dispose of the asbestos material and left it to them to follow the rules. The company, which received a substantially smaller fine than Rystadt, did not return calls seeking comment. Rystadt said he spent more than $50,000 disposing of the asbestos and had 4 Aces Restoration in the building "three or four times" to dispose of floor tiles, popcorn ceiling and insulated pipes embedded in the walls. Each time, he said, workers wore masks and used a negative-pressure enclosure. Rystadt also denied that the workers did not properly handle lead-based paint in the building. The real issue, Rystadt said, was "incompetent" inspectors. He called one inspector with the state Department of Ecology a "bonehead." "It's incompetency," he said. "It is a bureaucracy that's sad to deal with. I can see why people get frustrated with government." Lisa Woodard, spokeswoman with the local air agency, said 105 dumpsters were removed from the Otis by the time inspectors came to the site. At that point, debris in the building tested positive for asbestos. Similar debris was in two dumpsters outside the building. Asked if people who live or work near the Otis should be concerned about exposure, Woodard said exposure is "predominantly" dangerous "if somebody is digging through and working in the piles" and suggested the "ambient" exposure did not jeopardize the health of people passing by. "There have been a lot of problems with this project from the get-go," Woodard said. "There's going to be a lot involved in this entire project when we get to assessing the violations." Lori Rodriguez, compliance section manager with the clean air agency, said "many corrective actions have been issued" for Rystadt and the other companies, but the agency is preparing a list of violations, which will be issued by the end of November. "Our violations usually carry monetary fines," Rodriguez said, but she said it's too early to say how much they may be. "Until we put all the information together … we really don't know." Brook Beeler, spokeswoman with the Department of Ecology, said her agency was asked to look into the Otis project after inspectors with the Spokane Regional Clean Air Agency found lead paint. "In Washington, it's our responsibility to make sure dangerous waste is handled properly," Beeler said. "We did some spot sampling. Those samples contained two times the allowable limit of lead." Following the discovery, the Department of Ecology and Rystadt formulated a sample plan, which has since shown safe limits of lead, and the state agency is no longer involved. Whether his appeal is successful or not, Rystadt said he would finish his project to transform the Otis into Hotel Indigo Spokane, part of the global hospitality chain InterContinental Hotels Group. The hotel will have 112 rooms, a restaurant and a bar. It will open in spring 2019, according to a statement from the hotel group. He likened his determination to "the spirit of Spokane" after the Great Fire of 1889. "We'll get the job done. We're going to have a fantastic hotel," he said. ********* 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 ***