/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/181126.mbx C L A S S A C T I O N R E P O R T E R Monday, November 26, 2018, Vol. 20, No. 236 Headlines ACCEL DIRECTIONAL: Waldrop Seeks Overtime Wages for Oilfield Staff AIRBNB INC: Court Denies Bid to Dismiss 1st Amended Harrington Suit ALAMEDA COUNTY, CA: Court Narrows Claims in Turano Suit ALL SEASON RESTORATION: Wilson et al. Seek Minimum Wage & OT ALTRIA GROUP: Faces 7 Class Suits in Canada AMERICAN AUTO: Sued over Alleged Unauthorized Text Messages AMERICAN FINANCE: Hibbard Balks at Merger Deal with RCA APPFOLIO INC: Settlement Reached in Leo Class Suit ARAMARK UNIFORM: Bruccheri Suit Remanded to Cal. State Court ATLANTIC & PACIFIC: Taveras Seeks Overtime Pay under FLSA ATLANTIC CREDIT: Arbitration Denial in Stacy Suit Reversed BARRY KORNFELD: Certification of Ponzi Scheme Victims Class Sought BELLA VINEYARD: Faces Cruz Suit in Kern, California BLACK DIAMOND: Perez Seeks Unpaid OT for Construction Workers BOSTON SCIENTIFIC: Resolved 49,500 Mesh Cases as of Oct. 23 BRIXMOR PROPERTY: $19.5MM Settlement Balance Remains in Escrow BRIXMOR PROPERTY: Cohen & Steers Global Suit Settled for $8MM BROADSPECTRUM DOWNSTREAM: Villafan Seeks Unpaid Wages under FLSA CAPITOL WHOLESALE: African-American Workers Sue over Bias CELGENE CORP: Amended Securities Complaint Due Dec. 10 CELGENE CORP: Expert Discovery in Antitrust Suit Ends Nov. 30 CEMPRA INC: Court Dismisses Amended Hirtenstein Securities Suit CHAMPION PETFOODS: Rydman Sues over Contaminated Pet Food CHEGG INC: Continues to Defend Shah Class Suit CHG HEALTHCARE: Leiber et al. Seek to Certify Collective Action CITIGROUP INC: Accord in Benchmark Rates Suit Wins Final Approval CLAYTON MYRICK: $23K Attys' Fees Awarded in Piccinetti FDCPA Suit CLECO CORPORATE: Discovery Ongoing in Merger-Related Class Suit CMS WESTROCK: Fails to Pay Proper Wages, Rosa et al. Suit Says COGNIZANT TECHNOLOGY: Still Defends Consolidated Class Suit in NJ COMMERCE ENERGY: Seeks 6th Cir. Review of Order in Hurt FLSA Suit COMMUNITY HEALTH: Appeal in Gibson Class Suit Still Pending COMMUNITY HEALTH: Class Cert. Bid in Tennessee Suit Still Pending COMMUNITY HEALTH: Settlement Reached in Cyber Attack Related Suits CONTINENTAL LABORATORIES: Tompkins Seeks OT Wages for Engineers CONTINENTAL RESOURCES: Pays $45.8MM for Strack Settlement COOK COUNTY, IL: McFields et al. Seek to Certify Class CORECIVIC INC: Court Resolves Discovery Dispute No. 1 in Owino Suit CRESCENT CONSULTING: Carrillo Seeks to Certify Class CVS HEALTH: ERISA Sec. 406 Claims in EpiPen Suit Thrown Out DTE ENERGY: Misrepresented Retirement Pension Plan, Nolan Claims EARTHSTONE ENERGY: Dismissal of Olenik Suit under Appeal EMILIO PUCCI: Olsen Files ADA Suit in S.D.N.Y. ENGILITY HOLDINGS: Wolf Balks at Merger Deal with SAIC FIDELITY NATIONAL: Garey Files ADA Suit in New York FIRST ALARM: Faces Nessim Suit in Sacramento, Califorina FIRST CITIZENS: Virzi et al. Suit Moved to D. South Carolina FORD MOTOR: Court Narrows Claims in Baranco Suit FOREVER 21: Court Dismisses Patterson TCCWNA Suit Without Prejudice FRESH DEL MONTE: Continues to Defend DBCP-Related Suits FUTURE TECH: Dominguez FLSA Suit Settlement Has Prelim Approval GENERAL ELECTRIC: Bid to Dismiss Hachem Class Suit Underway GENERAL ELECTRIC: Seeks to Dismiss Bezio Suit HARRAH'S NC: Clark Appeals W.D.N.C. Decision to Fourth Circuit HEALTH CARE: E. Craft Settlement Distribution Deadline Extended HEALTH INSURANCE: Awaits Court OK on Bid to Dismiss Florida Suit HMSHOST CORP: Fails to Pay Proper OT, Storch et al. Say HUMANE SOCIETY: Righetti Sues over Unsolicited Text Messages IHI E&C: Walthall Seeks Overtime Pay under FLSA IMPINJ INC: Bid to Join Montemarano & Baton Rouge Suit Pending IMPINJ INC: Schultz Class Action Voluntarily Dismissed INDIANA UNIVERSITY: Removes Thomas et al. Suit to S.D. Indiana IQVIA INC: Wins Bid to Strike Mussat's Class Definition JB HUNT: California Drivers to Settle Class Suit for $15MM JCT LOGISTICS: Moreno Seeks to Certify Class & Subclass JENSEN-LEWIS CO: Court Denies Bid to Dismiss ADA Suit KERBEROS INTERNATIONAL: Faces Ralston Suit in Sacramento KROGER CO: Perez Appeals C.D. California Ruling to Ninth Circuit LADENBURG THALMANN: Bid for Class Cert. in Tennessee Suit Pending LPL FINANCIAL: Continues to Defend Class Action Suit LUMBER LIQUIDATORS: Continues to Defend Mason Class Suit LUMBER LIQUIDATORS: Kramer Class Suit Ongoing in California MASTERCARD INC: Class Cert. Bid Filed Anew in Liability Shift Suit MASTERCARD INC: Continues to Defend ATM Surcharge-Related Suits MASTERCARD INC: Still Awaits Court OK on Canadian POS Case Accord MAWKS EDELWEISS: Fails to Pay OT Waitstaff, Aniszewski Claims MDL 2804: Pioneer Tel vs. Purdue Pharma over Opiates Consolidated MONDELEZ INT'L: Antitrust Suit over Wheat Prices Underway MONSANTO COMPANY: Bindon Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Singletary Sues over Use of Herbicide Roundup MONSANTO COMPANY: Sinka Suit Moved to N.D. California MONSANTO COMPANY: Sixbury Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Strong Sues over Sale of Herbicide Roundup NATIONAL GUNITE: Kamm et al. Seek to Certify FLSA Class NEW YORK, NY: Elsayed Files Civil Rights Class Suit OCEAN SPRAY: Court Denies Summary Judgment Bid in Hilsley Suit OLD COUNTRY ROAD: Zisholtz Sues over Security Deposits OM PURSHANTAM: Smith Seeks Unpaid Overtime Pay under FLSA P.A.M. TRANSPORT: Browne Seeks to Certify Class & Subclass PARAMOUNT BEAUTY: Unlawfully Terminates Pregnant Women, Diaz Says PATIENT INNOVATION: Fails to Pay Minimum & OT Wages, Tomala Says PAYLESS SHOESOURCE: Tucker Files ADA Suit in New York PEOPLE'S UNITED: Walker Seeks to Certify 2 Classes PEPPERIDGE FARM: Underpays Distributors, Phelps et al. Allege PGA INC: Court Decertifies Sinclair FLSA Class PRINSTON PHARMA: Court Dismisses Molinaro Suit Without Prejudice QUAKER OATS: Steckler Sues over Glyphosate Content in Products RANBAXY INC: Sued over Supracompetitive Prices for Diovan & Nexium RIVERS BILLING: Krane Files Placeholder Class Certification Bid SABER HEALTHCARE: J. Bartels' Suit Remanded to N.C. State Court SABRE CORP: Bid for Class Cert. in Air Fare Prices Suit Denied SACRAMENTO COUNTY, CA: Court Narrows Claims in Welchen Suit SAINT-GOBAIN PERFORMANCE: $19K Attys' Fees Awarded in Dowling Suit SAN FRANCISCO, CA: Litivinova Seeks to Certify FLSA Collective SANFORD LP: Ninth Circuit Appeal Filed in Spacone Class Suit SCELZI ENTERPRISES: Fails to Pay Proper Wages, Murray Alleges SCELZI ENTERPRISES: Violates Wage & Hour Laws, Murray Says SEVEN STAR: Michelle Wells Seeks OT Pay for Fence Installers SOLANO COUNTY, CA: Warfield May Proceed in Forma Pauperis SOUTHWESTERN ENERGY: Snow Case Settlement Receives Final Approval SP PLUS: Ignored Credit Card Truncation Duties, Orsi Says SPRINGER NATURE: Website not Accessible to Blind, Sullivan Says STATE COLLECTION: Judgment on Pleadings on Bahr's TCPA Claim Denied STORM TIGHT: Spinelli Sues over Unsolicited Text Messages SUSHI MARU: Court Refuses to Consolidate 2 FLSA Suits TATA CONSULTANCY: Ct. Grants Bids in Limine Nos. 7 & 8 in Buchanan TRI-STATE ADJUSTMENTS: Wright Sues over Debt Collection Practices TRINET GROUP: Awaits Hearing Date on Welgus Appeal TRINITY INDUSTRIES: Isolde Consolidated Suit Still Stayed TWITTER INC: Continues to Defend Consolidated Class Suit in Calif. ULTA SALON: Tellez Suit Moved to Southern District of California UNITED PARCEL: Morgate Class Action Concluded UNITED PARCEL: Wright and Zislin Suit in Canada Concluded UNITIL CORP: Continues to Defend Bellermann Class Action US AIRWAYS: Hickcox-Huffman TCPA Suit Deal Has Prelim Approval USG CORP: Still Defends Wallboard Price Fixing Related Suits UZBEK LOGISTICS: Kopaleishvili Seeks to Certify Class VENATOR MATERIALS: Final Judgment Signed in TiO2-Related Suit W.W. GRAINGER: Rangel Suit Moved to Eastern Dist. of California WATERSTONE FINANCIAL: 7th Cir. Vacates District Court Order WEBLOYALTY.COM INC: Remaining Claims in Wiretapping Suit Dismissed YWL USA: Wan Seek Minimum & OT Wages under FLSA ZACKY & SONS: Vance Files Suit in C.D. California ZACKY FARMS: Vance Seeks Wages & Benefits for Terminated Workers ZOE'S KITCHEN: Faces Calgano and Connole Merger-Related Suits ********* ACCEL DIRECTIONAL: Waldrop Seeks Overtime Wages for Oilfield Staff ------------------------------------------------------------------ MATTHEW WALDROP, individually and on behalf of all others similarly situated, the Plaintiff, vs. ACCEL DIRECTIONAL DRILLING, Case No. 4:18-cv-04082 (S.D. Tex., Oct. 26, 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act and the New Mexico Minimum Wage Act. According to the complaint, Accel employs oilfield personnel, like Plaintiff, to carry out its work. The Plaintiff, and the other workers like them, were typically scheduled for 12 hour shifts, 7 days a week, for weeks at a time. But Accel does not pay all of these workers overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA, Accel pays these workers a day-rate and improperly classifies them as independent contractors, the lawsuit says.[BN] Attorneys for Plaintiff: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON D UNLAP 11 Greenway Plaza, Suite 3050 Houston, Texas 77046 Telephone: 713 352-1100 Facsimile: 713 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com AIRBNB INC: Court Denies Bid to Dismiss 1st Amended Harrington Suit ------------------------------------------------------------------- In the case, PATRICIA HARRINGTON, EBONY PRICE, and CARLOTTA FRANKLIN, individually and on behalf of all others similarly situated, Plaintiffs, v. AIRBNB, INC., Defendant, Case No. 3:17-cv-558-YY (D. Or.), Judge Michael H. Simon of the U.S. District Court for the District of Oregon (i) adopted in part and rejected in part Magistrate Judge Youlee You's Findings and Recommendation ("F&R") recommending that the Defendant's motion to dismiss the first amended complaint with prejudice be granted without leave to file a second amended complaint. Airbnb is a Delaware corporation, headquartered in California. Charging various fees for its services, Airbnb operates an online platform that connects people looking to rent out their homes (or rooms in their homes) with people looking for accommodations for either lodging or tourism experiences. Airbnb does not own any of the properties that it lists for rent. Instead, it charges fees for processing each transaction (often to both sides of a rental relationship), as well as for providing advertising. In 2016, Airbnb's online platform (consisting of websites and mobile apps) served more than 300,000 renters in Portland. A person offering to rent out a room in his or her home (or offering to rent his or her home) through Airbnb is referred to as a "host." A host must be registered with Airbnb as a "member." Travelers who rent rooms or homes from a host using the Airbnb online platform are referred to as "guests." Although anyone can search the Airbnb database of more than two million properties worldwide, to contact a host online and request a reservation and make a booking, a prospective guest also must be a member of Airbnb, which requires the prospective guest to have an account and profile with Airbnb. Because Airbnb allows hosts to view the photograph and name of a prospective guest before deciding whether to accept or deny a booking request from that prospective guest, a host can deny a booking request for any reason, including the race or color of a prospective guest. Because some hosts refuse to rent accommodations to African-Americans, some accommodations listed on Airbnb's online platform are unavailable to African-American travelers. African-Americans, thus, do not have full and equal access to the accommodations and services offered on Airbnb's online platform. Airbnb does not dispute that some Airbnb hosts engage in racially discriminatory conduct. It asserts that it takes seriously the problem of racial discrimination on its online platform. Nonetheless, Airbnb has continued to maintain its policy of allowing hosts to wait to make a booking decision until after the host has seen the prospective guest's photograph, which discloses the race or color of the prospective guest. The Plaintiffs in the putative class action are African-American women who reside in Oregon and wish to become members of Airbnb and use the services of Airbnb's online platform without being subject to racial discrimination. The Plaintiffs, however, are only willing to join Airbnb if they will be able to take full advantage of the accommodations offered on the Airbnb online platform without the risk of racial discrimination based on the inclusion of a guest's photograph. Before filing the lawsuit, Ms. Harrington wrote a letter to Airbnb requesting that it change its policies so that all accommodations on its online platform may be available to all prospective guests regardless of race or color. Ms. Harrington specifically asked Airbnb to change its policy that allows a host to wait to confirm a booking until after the host has seen the full name and photograph of a prospective guest. She expressly asked Airbnb not to provide information to hosts before accepting a reservation or confirming a booking from a prospective guest that would reveal statutorily-protected immutable characteristics, like race. Airbnb denied the request to change its policy, but offered to assist Ms. Harrington in securing alternative accommodations if she ever were discriminated against by an Airbnb host. Airbnb also promised to investigate any reported claims of racial discrimination and take appropriate action. After hearing from the parties on the Defendant's motion to dismiss the Plaintiffs' putative class action complaint, Magistrate Judge You issued her F&R. Judge You recommended that the Court dismiss the original complaint with leave to file an amended pleading. The Court adopted in part Judge You's F&R, and the Plaintiffs filed their FAC. The Defendant then moved to dismiss the FAC with prejudice, and Judge You issued an F&R recommending that the motion be granted without leave to file a second amended complaint. Judge You concluded that the FAC did not allege facts sufficient to show that the Defendant acted with discriminatory intent, which is required to state a claim under the Oregon Public Accommodations Act ("OPAA"). Because Judge You concluded that Plaintiffs did not adequately allege discriminatory intent, she did not reach the question of whether the Defendant's business is a place of public accommodation, which is also required to state a claim under the OPAA. The Plaintiffs timely objected to the entirety of the F&R concerning the FAC. After de novo review, Judge Simon adopted in part and rejected in part the F&R at issue, and denied the Defendant's motion to dismiss the Plaintiffs' FAC. He finds that that the Plaintiffs have alleged that Airbnb's proffered reason for its pre-booking mandatory photograph policy is "unworthy of credence" and have sufficiently alleged the requisite discriminatory intent to state a claim. He also finds that it is irrelevant that Airbnb does not itself directly rent or own the accommodations being rented out because what Airbnb provides to the public is the service of using its online platform to browse, locate, book, and pay for accommodations in private homes. The Plaintiffs, therefore, have sufficiently alleged that Airbnb is a place of public accommodation under the OPAA. A full-text copy of the Court's Oct. 30, 2018 Opinion and Order is available at https://is.gd/5a8ZhQ from Leagle.com. Patricia Harrington, individually and on behalf of all others similarly situated, Plaintiff, represented by Joshua L. Ross -- jross@stollberne.com -- Stoll Stoll Berne Lokting & Shlachter, PC, Nicholas A. Kahl -- nick@nickkahl.com -- Nick Kahl, LLC & Yoona Park -- ypark@stollberne.com -- Stoll Stoll Berne Lokting & Shlacchter PC. Ebony Price, individually and on behalf of all others similarly situated & Carlotta Franklin, individually and on behalf of all others similarly situated, Plaintiffs, represented by Nicholas A. Kahl, Nick Kahl, LLC & Joshua L. Ross, Stoll Stoll Berne Lokting & Shlachter, PC. Airbnb, Inc., Defendant, represented by Jeremy D. Sacks -- jeremy.sacks@stoel.com -- Stoel Rives LLP, Kennon H. Scott -- kennon.scott@stoel.com -- Stoel Rives LLP, Taryn K. Williams -- taryn.williams@stoel.com -- Stoel Rives LLP & Reilley D. Keating -- reilley.keating@stoel.com -- Stoel Rives LLP. ALAMEDA COUNTY, CA: Court Narrows Claims in Turano Suit ------------------------------------------------------- In the case, CYNTHIA N. TURANO, Plaintiff, v. COUNTY OF ALAMEDA, et al., Defendants, Case No. 17-cv-06953-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California (i) granted in part and denied in part the Defendants' motion to dismiss the complaint; and (ii) denied the Defendants' motion to strike portions of the complaint concerning a prior case filed by the Plaintiff's counsel. Turano filed the instant class action, bringing constitutional and state claims related to her experience while in the custody of Defendant Alameda County Sheriff's Office. On Dec. 25, 2016, the Plaintiff's husband called the Oakland Police Department ("OPD"), claiming that the Plaintiff had violated a temporary restraining order. On Dec. 26, 2016, at around 1:00 a.m., OPD officers responded to the call. The OPD officers arrested the Plaintiff for violating the restraining order and took her to Santa Rita Jail, where she was transferred into the custody of the County. The Plaintiff was placed in a cell that had fecal matter spread over the walls and benches. She was taken out of the cell and searched in the hallway without any privacy screening. She was then placed in another cell and told she would be interviewed by a nurse. The Plaintiff was eventually interviewed by a male deputy. The Plaintiff was then moved to a third holding cell. After hours of banging on the window and door, a female deputy arrived, bringing in another woman. Around 9:30 a.m., Plaintiff was discharged and given a bus ticket and BART ticket. Prior to her discharge, the Plaintiff never saw the cells cleaned. The Plaintiff took public transportation back in her wet, visibly blood-stained clothing. On Dec. 5, 2017, the Plaintiff filed the instant suit. On Jan. 21, 2018, she filed a first amended complaint. The Defendants then filed a motion to dismiss, which the Court granted on June 20, 2018. The Court found that Plaintiff had pled a cruel and unusual punishment claim under the Fourteenth Amendment, but that the Plaintiff had failed to sufficiently allege supervisory liability as to the individual Defendants and Monell liability as to Defendant County of Alameda. The Court also found that the Plaintiff failed to adequately plead her equal protection and negligence claims. On July 20, 2018, the Plaintiff filed her second amended complaint, bringing claims for: (1) Fourteenth Amendment due process claim based on conditions of confinement; (2) Fourteenth Amendment equal protection claim; and (3) negligence. On Aug. 10, 2018, the Defendants filed the instant motion to dismiss and motion to strike. Judge Westmore granted in part and denied in part the Defendants' motion to dismiss. She finds that while the Plaintiff has pled sufficient facts for Fourteenth Amendment conditions of confinement and equal protection claims against the County, these claims must be dismissed with prejudice as to the individual Defendants based on qualified immunity. He also also dismissed the negligence claim without prejudice. The Judge also finds that although the Defendants argue that the settlement cannot be used to establish liability under Federal Rule of Evidence 408, as an initial matter, Rule 408 applies to settlement negotiations. Rule 408 would also not apply to the publicly available policies adopted by the Defendants, including its policies regarding provision of menstrual products. And, given the disfavored status of motions to strike, and the absence of any allegations by the Defendants that they are prejudiced by the presence of these statements in the complaint, the Judge denied the Defendants' motion to strike. The Defendants may move to exclude evidence of the settlement agreement at a later time if appropriate; again, however, Rule 408 would appear to be limited to the settlement negotiations and agreement, not the existence of the Weills v. Alameda County Sheriff's Office lawsuit or the publicly available policies that resulted from the negotiations. The Plaintiff may file an amended complaint within 30 days of the date of the Order, consistent with the order. The Judge continued the case management conference set for Nov. 13, 2018 to Feb. 19, 2019 at 1:30 p.m. A full-text copy of the Court's Oct. 30, 2018 Order is available at https://is.gd/sNjgYi from Leagle.com. ynthia N Turano, Plaintiff, represented by Yolanda Huang -- yhuang.law@gmail.com -- Law Offices of Yolanda Huang. County of Alameda, Alameda County Sheriff's Office, Gregory J. Ahern, Brett Keteles, Tom Madigan, D Skoldqvist & Tara Russell, Defendants, represented by Gregory B. Thomas -- gthomas@bjg.com -- Boornazian, Jensen Garthe ALL SEASON RESTORATION: Wilson et al. Seek Minimum Wage & OT ------------------------------------------------------------ MICHALINA WILSON, WILLIAM WILSON, JR., ARIEL PERRY, and all others similarly situated under 29 U.S.C. section 216(b), the Plaintiffs, v. ALL SEASON RESTORATION INC. d/b/a SERVEPRO OF MIDTOWN MANHATTAN, and ROBERT CITRANGOLA, individually, the Defendants, Case No. 1:18-cv-00225-MW-GRJ (N.D. Fla., Nov. 6, 2018), alleges that Defendants have unlawfully deprived Plaintiff, and all other employees similarly situated, of federal minimum wage and overtime compensation during the course of their employment, pursuant to the Fair Labor Standards Act. According to the complaint, beginning September 19, 2018, the Plaintiffs began performing 12 hours of work per day every day of the week for Defendants. The Defendants, however, required Plaintiffs to underreport the hours they were actually working. This work, and these unlawful pay practices, continued until on or about October 10, 2018. The Defendants were expressly aware of the work performed by each Plaintiff, but nevertheless required Plaintiffs to underreport their hours, and Defendants have refused to pay any of these Plaintiffs any compensation for any hours of work at all, let alone overtime compensation at the federally mandated rate of time and one half for work exceeding 40 hours per week. The Plaintiffs' unpaid work for Defendants equates to substantial unpaid overtime at the federal statutorily required rate of time-and-one-half for all hours worked over 40 in any given workweek. During all times pertinent hereto, Defendants failed to keep accurate time records of the hours actually worked by Plaintiffs, the lawsuit says.[BN] Counsel for Plaintiff: Jordan Richards, Esq. USA EMPLOYMENT LAWYERS JORDAN RICHARDS, PLLC 805 East Broward Blvd. Suite 301 Fort Lauderdale, FL 33301 Telephone: (954) 871-0050 E-mail: jordan@jordanrichardspllc.com melissa@jordanrichadrspllc.com livia@jordanrichardspllc.com jake@jordanrichardspllc.com ALTRIA GROUP: Faces 7 Class Suits in Canada ------------------------------------------- Altria Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that the company continues to face seven class action suit in Canada. Since the dismissal in May 1996 of a purported nationwide class action brought on behalf of allegedly addicted smokers, plaintiffs have filed numerous putative smoking and health class action suits in various state and federal courts. In general, these cases purport to be brought on behalf of residents of a particular state or states (although a few cases purport to be nationwide in scope) and raise addiction claims and, in many cases, claims of physical injury as well. Class certification has been denied or reversed by courts in 61 smoking and health class actions involving PM USA in Arkansas (1), California (1), Delaware (1), the District of Columbia (2), Florida (2), Illinois (3), Iowa (1), Kansas (1), Louisiana (1), Maryland (1), Michigan (1), Minnesota (1), Nevada (29), New Jersey (6), New York (2), Ohio (1), Oklahoma (1), Oregon (1), Pennsylvania (1), Puerto Rico (1), South Carolina (1), Texas (1) and Wisconsin (1). As of October 22, 2018, PM USA and Altria are named as defendants, along with other cigarette manufacturers, in seven class actions filed in the Canadian provinces of Alberta, Manitoba, Nova Scotia, Saskatchewan, British Columbia and Ontario. In Saskatchewan, British Columbia (two separate cases) and Ontario, plaintiffs seek class certification on behalf of individuals who suffer or have suffered from various diseases, including chronic obstructive pulmonary disease, emphysema, heart disease or cancer, after smoking defendants' cigarettes. In the actions filed in Alberta, Manitoba and Nova Scotia, plaintiffs seek certification of classes of all individuals who smoked defendants’ cigarettes. See Guarantees and Other Similar Matters below for a discussion of the Distribution Agreement between Altria and PMI that provides for indemnities for certain liabilities concerning tobacco products. Altria Group, Inc., through its subsidiaries, manufactures and sells cigarettes, smokeless products, and wine in the United States. It offers cigarettes primarily under the Marlboro brand; cigars principally under the Black & Mild brand; and moist smokeless tobacco products under the Copenhagen, Skoal, Red Seal, and Husky brands. ltria Group, Inc. was founded in 1919 and is headquartered in Richmond, Virginia. AMERICAN AUTO: Sued over Alleged Unauthorized Text Messages ----------------------------------------------------------- VINCENT PAPA, individually and on behalf of all others similarly situated, the Plaintiff, vs. AMERICAN AUTO TRANSPORT, LLC, a Florida Limited Liability Company, the Defendant, Case No. 9:18-cv-81458-RLR (S.D. Fla., Oct. 26, 2018), contends that the Defendant offers both open and enclosed transport carriers for cars, trucks, buses, vans and more. To promote its services, the Defendant engages in unsolicited marketing through unauthorized text messages to cellular subscribers who never provided the Defendant with prior express consent, as well as cellular subscribers who expressly requested not to receive the Defendant's text messages, harming thousands of consumers in the process in violation of the Telephone Consumer Protection Act. As a result, the Defendant caused thousands of text messages to be sent to the cellular telephones of Plaintiff and Class Members who either never provided the Defendant with consent to contact them or who had revoked any prior express consent. The Defendant caused Plaintiff and Class Members injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion, the lawsuit says.[BN] Counsel for Plaintiff and the Class: Andrew J. Shamis, Esq. SHAMIS & GENTILE, P.A. 14 NE 1 st Avenue, Suite 1205 Miami, FL 33132 Telephone: 305 479-2299 E-mail: ashamis@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd No. 607 Aventura, FL 33180 Telephone: 305 975-3320 E-mail: scott@edelsberglaw.com AMERICAN FINANCE: Hibbard Balks at Merger Deal with RCA ------------------------------------------------------- TERRY HIBBARD, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. AMERICAN FINANCE TRUST, INC., AMERICAN FINANCE ADVISORS, LLC, AR GLOBAL INVESTMENTS, LLC, NICHOLAS S. SCHORSCH, WILLIAM M. KAHANE, EDWARD M. WEIL, JR., NICHOLAS RADESCU, DAVID GONG, STANLEY R. PERLA, and LISA D. KUBNICK, the Defendants, Case No. 655339/2018 (N.Y. Sup. Ct., Oct. 26, 2018), seeks to recover damages as a result of Defendants violation of Section 15 of Securities Act and direct and proximate result of issuing defective Registration Statement. The Plaintiff has suffered damages in connection with the offering. According to the complaint, This is a securities class action arising from the issuance of shares of American Finance Trust, Inc. to Plaintiff and members of the class in exchange for their shares of American Realty Capital - Retail Centers of America, Inc. in connection with the merger in which AFIN acquired RCA. The AFIN shares that Plaintiff and the other RCA shareholders received in the Merger were registered with the SEC pursuant to a defective registration statement and joint proxy statement-prospectus. The Registration Statement contained materially incomplete and misleading information concerning: (a) the financial impact to the merged companies and shareholders of the changes to the Advisory Agreements between AFIN and Defendant American Finance Advisors, Inc. and the Advisory Agreement between RCA and RCA advisers, which were conditioned upon approval of the Merger; and (b) the material negative impact of the 3rd Advisory Agreement upon post-Merger AFIN and its shareholders for a public listing liquidity event. For instance, Defendants failed to disclose in the Registration Statement that public markets discount the value of externally managed REITs like AFIN. When AFIN, then known as American Realty Capital Trust V, Inc., went public in 2013, it filed a Form S-l 1 registration statement/prospectus on March 6, 20132 that disclosed the higher advisory fees and market discounts for externally managed REITs. Those facts remained true at the time of the Merger. Yet when AFIN filed the Registration Statement on October 21, 2016 in connection with the Merger, Defendants omitted those disclosures, which were even more important to RCA shareholders where the 3rd Advisory Agreement was extended for 40 years and was made non-cancellable, the lawsuit says.[BN] Attorneys for Plaintiffs: Lee Squitieri, Esq. SQUITIERI, & FEARON, LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 421-6492 Facsimile: (212) 421-6553 APPFOLIO INC: Settlement Reached in Leo Class Suit -------------------------------------------------- AppFolio, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that a settlement has been reached in the class action suit entitled, Leo v. AppFolio, Inc. On September 28, 2017, a putative federal class action styled Leo v. AppFolio, Inc. (Civ. No. 3:17-cv-05771; W.D. Wash.) was filed naming the company as a defendant and alleging certain violations of the Fair Credit Reporting Act in connection with our tenant screening Value+ service (the "Leo Litigation"). The parties recently agreed to settle the Leo Litigation and filed a notice of settlement with the court. Key to the settlement is an agreement that the company do not admit any liability whatsoever in connection with the claims and allegations in the Leo Litigation. The final settlement agreement will be subject to court approval. AppFolio said, "As a result of the foregoing developments, we have determined that a loss is probable and therefore recorded an expense, net of expected insurance proceeds, of $1.1 million during the nine months September 30, 2018, within cost of revenue. We expect that our insurer will pay its portion of the settlement proceeds directly to the settlement fund following final court approval." AppFolio, Inc. provides industry-specific cloud-based software solutions for small and medium-sized businesses in the property management and legal industries. AppFolio, Inc. was founded in 2006 and is headquartered in Santa Barbara, California. ARAMARK UNIFORM: Bruccheri Suit Remanded to Cal. State Court ------------------------------------------------------------ Judge Kimberly K. Mueller of the U.S. District Court for the Eastern District of California granted the Plaintiffs' motion to remand the case, VINCENT BRUCCHERI, MARIO CONTRERAS, and JERRY MCNEELY, individually and on behalf of all others similarly situated, Plaintiffs, v. ARAMARK UNIFORM SERVICES, LLC; and Does 1-100 inclusive. Defendants, Case No. 2:18-cv-00119-KJM-KJN (E.D. Cal.), to Sacramento County Superior Court. The Plaintiffs filed the putative class action in Sacramento County Superior Court on Dec. 27, 2017, making the following claims under California Labor Code Section 2698: (1) failure to pay straight, regular rate wages for all work performed; (2) failure to pay all overtime wages; (3) failure to keep time records; (4) failure to provide meal periods; (5) failure to provide rest periods; (6) failure to provide recovery periods; (7) failure to timely pay wages upon termination; (8) knowing and intentional failure to comply with itemized employee wage statements; and (9) failure to reimburse expenses in discharging duties. The Defendant removed the case to federal court, asserting federal question jurisdiction, and supplemental jurisdiction. Specifically, as the basis for federal jurisdiction, the Defendant argues that the Plaintiffs' state law claims are completely preempted by Section 301 of the Labor Management Relations Act ("LMRA"). The Plaintiffs' motion to remand argues that because their claims arise from state law and do not require interpretation of any collective bargaining agreement ("CBA") terms, Section 301 preemption does not apply. The Plaintiff request that the Court take judicials notice of a remand order issued in the Northern District of California. Judge Mueller granted this unopposed request. As in the case covered by the Plaintiffs' request for judicial notice, the Judge finds that the Defendant's argument conflates the need to analyze the agreements' provisions with the need to simply apply those provisions. The need to consult the CBAs to determine the wage rate to be used in calculating liability cannot, alone, trigger section 301 preemption, and the Defendant has not shown more than consultation is required. To the contrary, the Plaintiffs do not dispute the hourly rate they are entitled to or how it is calculated, permitting the Court simply to apply the compensation formulas contained in the CBAs to determine the liability amount. Accordingly, the Judge holds that the Plaintiffs' claim for failure to pay for all time worked is not preempted by Section 301. Because the Defendant has not identified any disputed or complex CBA overtime provisions that will require the Court's interpretation, the Judge holds that the Plaintiffs' Section 510 overtime claim is not preempted by LMRA Section 301. She finds that when no dispute or complexity exists with respect to the terms of the CBA, a majority of courts find interpretation of the CBA is unnecessary to address the Section 514 exemption and, accordingly, Section 301 preemption does not apply. Moreover, because resolving the Plaintiffs' meal, rest and recovery period claims under Sections 226.7 and 512 requires at most consulting, rather than interpreting, the relevant CBAs, these claims are not substantially dependent upon analysis of the CBAs and Section 301 preemption does not apply. Although the Defendant claims the CBAs contain differing language regarding the length and timing of rest periods, the Defendant has not identified any dispute as to the meaning of these provisions as applied to the Plaintiffs or otherwise shown they require interpretation by the Court. Finally, the Defendant argues that the Plaintiffs' remaining claims are derivative of the claims subsequently analyzed, and thus, the Court may exercise supplemental jurisdiction over the remaining claims. Because the LMRA does not preempt any of the Plaintiffs' claims, however, the Judge holds that the Court also lacks subject matter jurisdiction over the claims and cannot exercise supplemental jurisdiction. For the foregoing reasons, Jugde Mueller granted the Plaintiffs' motion to remand the case to Sacramento County Superior Court. The case is closed. A full-text copy of the Court's Oct. 30, 2018 Order is available at https://is.gd/XOouO6 from Leagle.com. Vincent Bruccheri, Plaintiff, represented by Alexandra Shipman, Turley and Mara Law Firm, Jamie Kathryn Serb -- jserb@turleylawfirm.com -- Turley & Mara Law Firm, APLC, Tony Roberts -- troberts@turleylawfirm.com -- Turley & Mara Law Firm, APLC & William Turley -- wturley@nydisabilitylaw.com -- Turley & Mara Law Firm, APLC. Mario Contreras & Jerry McNeely, Plaintiffs, represented by Tony Roberts, Turley & Mara Law Firm, APLC, William Turley, Turley & Mara Law Firm, APLC & Alexandra Shipman, Turley and Mara Law Firm. Aramark Uniform & Career Apparel, LLC, Defendant, represented by Kathryn Nazarian -- kate.nazarian@morganlewis.com -- Morgan, Lewis & Bockius LLP & Eric Meckley -- eric.meckley@morganlewis.com -- Morgan, Lewis & Bockius LLP. ATLANTIC & PACIFIC: Taveras Seeks Overtime Pay under FLSA --------------------------------------------------------- JULIO A. TAVERAS, on behalf of himself and others similarly situated, the Plaintiff, vs. ATLANTIC & PACIFIC ASSOCIATION MANAGEMENT, INC., a Florida Corporation, the Defendant, Case 1:18-cv-24506-KMW (S.D. Fla., Oct. 28, 2018), seeks to recover overtime compensation and other relief under the Fair Labor Standards Act. According to the complaint, between May 2017 and May 2018, the Plaintiff regularly worked in excess of 40 hours per week for Defendant in numerous work weeks during his employment as a non-exempt, hourly employee for the Defendant. Likewise, the other employees of Defendants who are similarly situated to Plaintiff have regularly worked as non-exempt administrative office employees, however, variously titled, in excess of 40 hours in one or more work weeks during their employment with Defendant at numerous locations within the three year statute of limitations period between October 2015 and the present without being paid time and one-half wages for all of their actual overtime hours worked for Defendant, the lawsuit says. The Defendant owned and operated a real estate company specializing in acquisitions, development, property management, and investments at more than 140 properties in different locations across the United States including in Florida - with Defendant's headquarters in Bay Harbour Islands within Miami-Dade County—as well as in Georgia, Texas, and California.[BN] Attorney for Plaintiff: Keith M. Stern, Esq. E-mail: employlaw@keithstern.com LAW OFFICE OF KEITH M. STERN, P.A. One Flagler 14 NE 1st Avenue, Suite 800 Miami, FL 33132 Telephone: (305) 901-1379 Facsimile: (561) 288-9031 ATLANTIC CREDIT: Arbitration Denial in Stacy Suit Reversed ---------------------------------------------------------- In the case, ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC, ASSIGNEE OF SYNCHRONY BANK, Plaintiff and Counterclaim Defendant Below, Petitioner, v. COURTNEY R. STACY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Defendant and Counterclaim Plaintiff Below, Respondent, Case No. 17-0615 (W. Va. App.), the Supreme Court of Appeals of West Virginia reversed the Circuit Court of Wyoming County's March 6, 2017 order denying Atlantic's motion to compel arbitration and to dismiss the putative class action counterclaim filed by Stacy. In support of its motion to compel arbitration, the Petitioner submitted the affidavit of Jodi Anderson, a litigation analyst with Synchrony Bank, formerly GE Capital Retail Bank. Ms. Anderson attests to her personal knowledge of the bank's business records, which showed that on Feb. 4, 2014, a Care Credit account was applied for online in the Respondent's name with Synchrony Bank, attaching a "true and accurate copy" of the online application to her affidavit. Ms. Anderson further attests that on that same day, Synchrony Bank approved the application and opened a Care Credit account in the respondent's name, adding that on Feb. 10, 2014, the plastic credit card and the applicable Credit Card Account Agreement were mailed to the respondent to the address provided in the online application. Ms. Anderson attached to her affidavit what she described as a "true and accurate copy" of the effective credit card agreement that governed the Account. The Respondent admitted in his discovery responses that he used the credit card account. He did not submit any evidence challenging Ms. Anderson's sworn affidavit, such as an affidavit of his own denying that he applied online for the credit card or denying that he received the plastic credit card and the Credit Agreement in the mail. On Dec. 28, 2015, the Petitioner filed an action against the Respondent in the Magistrate Court of Wyoming County seeking to collect the past due balance on the credit card in the amount of approximately $720.22. The Respondent removed the action to the Circuit Court of Wyoming County where he filed an answer to the complaint, as well as a putative class action counterclaim in which he alleged unjust enrichment, negligence, and claims under the West Virginia Consumer Credit and Protection Act, West Virginia Code Sections 46A-1-101 to -8-102. The petitioner filed an answer to the counterclaim and, thereafter, the parties engaged in some written discovery. On June 7, 2016, the respondent filed a motion to compel class discovery, which the circuit court granted in an order entered on Aug. 31, 2016. Soon thereafter, the Petitioner filed a motion to compel arbitration and to dismiss the class allegations under West Virginia Rule of Civil Procedure 12(b)(6), relying upon the arbitration agreement set forth in the Credit Agreement. The Petitioner asserted that the arbitration agreement should be addressed under Utah law given the choice of law provision in the arbitration agreement and that, under Utah law, there was a valid and binding arbitration agreement and the right to seek arbitration was not waived by the petitioner. The Respondent opposed the motion, arguing, inter alia, that Petitioner failed to prove who applied online for the credit card or that an arbitration agreement existed; that even if such an agreement existed, it was both procedurally and substantively unconscionable; and that the Petitioner waived any right it might have had to compel arbitration under West Virginia law. The circuit court held a hearing on the motion after which it entered an order on March 6, 2017, denying the motion to compel arbitration. Challenging the circuit court's order, the petitioner filed a motion under West Virginia Rule of Civil Procedure 59(e) seeking an amendment of the circuit court's order and a reconsideration of the court's findings of fact and conclusions of law. Alternatively, it asked the lower court to enter an amended order that made findings of fact and conclusions of law specific to all issues raised in the petitioner's motion to compel arbitration, including the choice of law provision in the arbitration agreement, whether the parties' dispute is within the scope of the arbitration agreement, which state's laws the court applied when it found the petitioner had waived its right to arbitration, and whether the respondent's class allegations violated the terms of the arbitration agreement. On June 12, 2017, the circuit court denied the petitioner's Rule 59(e) motion. The circuit court again found the Petitioner had failed to establish the existence of a contract or to prove that the respondent had been provided a copy of the contract containing the arbitration agreement; therefore, it had no reason to address the choice of law issue. Additionally, the court affirmed its earlier ruling that even if there were a contract, the petitioner had waived its right to compel arbitration. The appeal followed. Based upon its de novo review of the Petitioner's evidence presented, and in the stark absence of any evidence from the Respondent, such as an affidavit denying that he applied for the credit account, or denying that he received a copy of the Credit Agreement in the mail, the Court is compelled to find, contrary to the circuit court, that the Respondent entered into the Credit Agreement with Synchrony Bank. Having determined that a Credit Agreement existed between the respondent and Synchrony Bank, the Court holds that the case must be remanded. On remand, the circuit court should require the parties to provide a more thorough analysis of the choice of law issue prior to issuing its choice of law ruling, bearing in mind the legal precepts set forth in General Electric and Mattingly. Once the circuit court undertakes its choice of law analysis and rules upon the same, it must then utilize the applicable state's law to address the remaining issues, including whether there is a valid arbitration agreement covering the parties' dispute; whether the petitioner acquired or was assigned those arbitration rights when it purchased the "receivable" on the respondent's account from Synchrony Bank; and, if the court finds that the arbitration agreement is valid and that the petitioner was assigned those rights, whether the petitioner has waived arbitration. Additionally, if the circuit court determines under the applicable state's law that the petitioner is Synchrony Bank's assignee, the Court observes that the arbitration agreement includes a class action waiver that might survive even if the balance of the arbitration agreement were found to be "null and void." Consequently, depending upon how the circuit court rules on the assignment issue, it may be necessary for the circuit court to address the survival provision when it rules upon the petitioner's motion to dismiss the Respondent's class counterclaim, a ruling the circuit court has not made. For the reasons stated, the Court reversed the circuit court's March 6, 2017, order denying the Petitioner's motion to compel arbitration, and remanded the case for further proceedings consistent with its Memorandum Decision. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Decision is available at https://is.gd/Wui0KQ from Leagle.com. BARRY KORNFELD: Certification of Ponzi Scheme Victims Class Sought ------------------------------------------------------------------ PAUL HONIG, CARLA HONIG, DAVID LIPPMAN, CAROLYN LIPPMAN, JOHN HERTVIK, GERALD ROY, and HEMANT NANAVATY on behalf of themselves and a class of all others similarly situated, the Plaintiffs, vs. BARRY M. KORNFELD, et al., the Defendants, Case No. 9:18-cv-80019-DMM (S.D. Fla.), the Plaintiffs ask the Court to certify these classes: 1. With respect to SAC Count XVI against GBH, class of: "all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units"; 2. With respect to SAC Count XIII against the Sales Agent Defendants, class of: "all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units, and who were either (a) residents of the State of Florida at the time of the purchase and purchased based on the solicitation or participation of the Sales Agent Defendants, or (b) purchased based on the solicitation or participation of the Kornfeld, Knowles/Goodman, and Klager Defendants"; 3. With respect to SAC Counts I through XII, class of: "all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units based on the solicitation or participation of the Kornfeld, Knowles/Goodman, and/or Klager Defendants, including: a. a subclass of all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units based on the solicitation or participation of the Kornfeld Defendants, and who were residents of the State of Florida at the time of the purchase; b. a subclass of all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units based on the solicitation or participation of the Knowles Defendants and/or Goodman, and who were residents of the State of Florida at the time of the purchase; and c. a subclass of all persons who, as of December 4, 2017, had purchased and still held Woodbridge FPCM notes or Fund Offering units based on the solicitation or participation of the Klager Defendants, and who were residents of the State of Florida at the time of the purchase; and 4. other classes or sub-classes as the Court may determine. Excluded from the proposed classes and/or sub-classes are the following: (i) Defendants, and their employees and agents; (ii) Any officer, director, employee, or promoter of Shapiro or Woodbridge, as that entity has been defined herein or in Plaintiffs' Second Amended Complaint; and (iii) Any purchaser of Woodbridge investments who has filed an arbitration demand and/or lawsuit (other than the instant lawsuit) against Defendants regarding the loss of their Woodbridge investment.[CC] Counsel for Plaintiffs: Jonathan B. Butler, Esq. JButler@ciklinlubitz.com CIKLIN LUBITZ 515 North Flagler Drive, 20th Floor West Palm Beach, FL 33401 Telephone: (561) 832-5900 Facsimile: (561) 833-4209 - and - Joseph G. Galardi, Esq. James W. Beasley, Jr., Esq. Andrew S. Kwan, Esq. BEASLEY & GALARDI, P.A. 505 South Flagler Drive, Suite 1500 West Palm Beach, FL 33401 Telephone: (561) 835-0900 Facsimile: (561) 833-4209 E-mail: galardi@beasleylaw.net beasley@beasleylaw.net kwan@beasleylaw.net BELLA VINEYARD: Faces Cruz Suit in Kern, California --------------------------------------------------- An employment-related class action lawsuit has been filed against Bella Vineyard AG Services, Inc. The case is captioned as SONIA CRUZ, individually and on behalf of all other similarly situated, Plaintiff v. BELLA VINEYARD AG SERVICES, INC., Defendants, Case No. BCV-18-102702 (Cal. Super., Kern Cty., Oct. 26, 2018). Bella Vineyard AG Services, Inc. is a California corporation engaged in the business of providing farm services such as crop harvesting. [BN] The Plaintiff is represented by Joseph Lavi, Esq. BLACK DIAMOND: Perez Seeks Unpaid OT for Construction Workers ------------------------------------------------------------- GUILLERMO PEREZ, And other similarly situated individuals, the Plaintiff (s), vs. BLACK DIAMOND OF FLORIDA LIMITED LIABILITY COMPANY and STEVEN A. KATES, individually Defendants, Case Bi, 0:18-cv-62590-FAM (S.D. Fla., Oct. 27, 2018), seeks to recover money damages for unpaid wages and failure to pay overtime, pursuant to the Fair Labor Standards Act. According to the complaint, the Defendant is a general construction contractor, providing residential and commercial new construction and remodeling services. The Plaintiff was employed by Defendant as a construction worker and maintenance employee from November 1, 2017, through August 22, 2018, or 42 weeks. The Plaintiff was a non-exempted, full-time, hourly employee. The Plaintiff worked more than 40 hours every week period. Nevertheless, Plaintiff never was properly compensated for overtime hours worked. Therefore, Defendant willfully failed to pay Plaintiff overtime hours at the rate of time and one-half his regular rate for every hour that he worked in excess of 40, in violation of Section 7 (a) of the FLSA of 1938, the lawsuit says.[BN] Attorney for Plaintiff: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com BOSTON SCIENTIFIC: Resolved 49,500 Mesh Cases as of Oct. 23 ----------------------------------------------------------- Boston Scientific Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that as of October 23, 2018, approximately 51,000 product liability cases or claims related to transvaginal surgical mesh products designed to treat stress urinary incontinence and pelvic organ prolapse have been asserted against the company. The pending cases are in various federal and state courts in the U.S. and include eight putative class actions. There were also fewer than 25 cases in Canada, inclusive of one certified and three putative class actions and fewer than 25 claims in the United Kingdom. Generally, the plaintiffs allege personal injury associated with use of the company's transvaginal surgical mesh products. The plaintiffs assert design and manufacturing claims, failure to warn, breach of warranty, fraud, violations of state consumer protection laws and loss of consortium claims. Over 3,100 of the cases have been specially assigned to one judge in state court in Massachusetts. On February 7, 2012, the Judicial Panel on Multi-District Litigation (MDL) established MDL-2326 in the U.S. District Court for the Southern District of West Virginia and transferred the federal court transvaginal surgical mesh cases to MDL-2326 for coordinated pretrial proceedings. During the fourth quarter of 2013, the company received written discovery requests from certain state attorneys general offices regarding its transvaginal surgical mesh products. The company have responded to those requests. As of October 23, 2018, the company has entered into master settlement agreements in principle or are in the final stages of entering one with certain plaintiffs' counsel to resolve an aggregate of approximately 49,500 cases and claims. These master settlement agreements provide that the settlement and distribution of settlement funds to participating claimants are conditional upon, among other things, achieving minimum required claimant participation thresholds. Of the approximately 49,500 cases and claims, approximately 30,000 have met the conditions of the settlement and are final. All settlement agreements were entered into solely by way of compromise and without any admission or concession by us of any liability or wrongdoing. Boston Scientific Corporation develops, manufactures, and markets medical devices for use in various interventional medical specialties worldwide. It operates through three segments: Cardiovascular, Rhythm Management, and MedSurg. The company was founded in 1979 and is headquartered in Marlborough, Massachusetts. BRIXMOR PROPERTY: $19.5MM Settlement Balance Remains in Escrow -------------------------------------------------------------- Brixmor Property Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the remaining settlement balance of $19.5 million remains in escrow pending final class distribution in the case filed by Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds. On December 13, 2017, the United States District Court for the Southern District of New York granted final approval of the settlement of the previously disclosed putative securities class action complaint filed in March 2016 by the Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds related to the review conducted by the Audit Committee of the Board of Directors. Pursuant to the approved settlement, without any admission of liability, the Company will pay $28.0 million to settle the claims. This amount is within the coverage amount of the Company's applicable insurance policies and has been funded into escrow by the insurance carriers. The settlement provides for the release of, among others, the Company, its subsidiaries, and their respective current and former officers, directors and employees from the claims that were or could have been asserted in the class action litigation. During the nine months ended September 30, 2018, $8.5 million of the settlement amount was released from escrow per the court approved settlement agreement for the payment of plaintiff's legal fees. The remaining settlement balance of $19.5 million remains in escrow pending final class distribution. Brixmor Property said, "As of September 30, 2018, the $19.5 million amount is included in Accounts payable, accrued expenses and other liabilities in the Company's unaudited Condensed Consolidated Balance Sheets. Because the settlement amount is within the coverage amount of the Company's applicable insurance policies, the Company accrued a receivable of $19.5 million as of September 30, 2018. This amount is included in Accounts receivable, net in the Company's unaudited Condensed Consolidated Balance Sheets." No further updates were provided in the Company's SEC report. Brixmor Property Group Inc. and subsidiaries (collectively, "BPG") is an internally-managed real estate investment trust ("REIT"). The company is based in New York, New York. BRIXMOR PROPERTY: Cohen & Steers Global Suit Settled for $8MM ------------------------------------------------------------- Brixmor Property Group Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the Company entered into an agreement to settle the claims in the suit entitled, Cohen & Steers Global Realty Shares, Inc., et al v. Brixmor Property Group Inc., et al., for $8.0 million. As previously disclosed, certain institutional investors elected to opt out of the class action settlement in the Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds suit and accordingly were not bound by the release and will not receive any of the class action settlement proceeds. On June 20, 2018, the Company and the former officers were named as defendants in a complaint filed by all remaining equity opt out investors in the Supreme Court for the State of New York in New York County. The Complaint, captioned Cohen & Steers Global Realty Shares, Inc., et al v. Brixmor Property Group Inc., et al. (Case No. 653091/2018), was filed on behalf of thirteen commonly managed investment funds that opted out of the federal class action settlement. On October 10, 2018, the Company entered into an agreement to settle these claims for $8.0 million. This amount is within the coverage amount of the Company's applicable insurance policies. The settlement provides for the release of, among others, the Company, its subsidiaries, and their respective current and former officers, directors and employees from the claims that were or could have been asserted in the opt out lawsuit. Based on current information, the Company accrued $8.0 million as of September 30, 2018 with respect to the settlement. This amount is included in Accounts payable, accrued expenses and other liabilities in the Company's unaudited Condensed Consolidated Balance Sheets. Brixmor Property said, "Because the settlement amount is within the coverage amount of the Company's applicable insurance policies, the Company has accrued a receivable of $8.0 million as of September 30, 2018. This amount is included in Accounts receivable, net in the Company's unaudited Condensed Consolidated Balance Sheets." Brixmor Property Group Inc. and subsidiaries (collectively, "BPG") is an internally-managed real estate investment trust ("REIT"). The company is based in New York, New York. BROADSPECTRUM DOWNSTREAM: Villafan Seeks Unpaid Wages under FLSA ---------------------------------------------------------------- ANGEL VILLAFAN, individually and on behalf of all others similarly situated, the Plaintiff, vs. BROADSPECTRUM DOWNSTREAM SERVICES, INC., d/b/a BROADSPECTRUM AMERICAS, INC., d/b/a TRANSFIELD SERVICES, formerly TIMEC COMPANY, INC., the Defendants, Case No. 3:18-cv-06741-LB (N.D. Cal., Nov. 6, 2018), challenges Broadspectrum's policies and practices of (1) failing to compensate Plaintiff and putative Class and Collective members for all hours worked; (2) failing to pay minimum wage for all hours worked; (3) failing to pay overtime and double time wages; (4) failing to authorize and permit to take meal and rest breaks; (5) failing to reimburse for necessary business expenditures; (6) failing to provide accurate itemized wage statements; and (7) failing to timely pay wages upon termination of employmentm pursuant to the Fair Labor Standards Act, and the California wage and hour laws. According to the complaint, the Collective members are individuals who have worked for Broadspectrum Downstream Services, Inc. as non-exempt, hourly employees, including but not limited to Safety Attendants. Broadspectrum provides skilled safety personnel to its clients operating oil drilling platforms. These employees provide support for drilling operations of Defendant's clients. Plaintiff and putative Class and Collective members work long hours. For example, Plaintiff is regularly scheduled to work, and in fact works, ten or twelve hour shifts for seven or more consecutive days. Beyond the scheduled hours for which Plaintiff and putative Class and Collective members are scheduled to work, the Plaintiff and putative Class and Collective members are also required to work before and after scheduled shifts, without compensation, the lawsuit says.[BN] Attorneys for Plaintiff: Carolyn H. Cottrell, Esq. Ori Edelstein, Esq. Michelle S. Lim, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 CAPITOL WHOLESALE: African-American Workers Sue over Bias --------------------------------------------------------- AAMBER MCGEE, TERRELL VEAL, and KENDALL MAXEY, individually and on behalf of all others similarly situated, Plaintiffs v. CAPITOL WHOLESALE MEATS, INC.; TOTAL STAFFING SOLUTIONS, INC.; and ELITE LABOR SERVICES ON 55th, LTD., Defendants, Case No. 1:18-cv-07130 (N.D. Ill., Oct. 24, 2018) is brought against the Defendants' act of discrimination against African-American laborers in the Defendants' practices of excluding or severely restricting job assignments for African-American laborers. Capitol Wholesale Meats, Inc. engages in the production and sale of meat cuts of beef, pork, and veal; and pizza supplies, cooked Italian sausages, fresh cut chickens, and ground hamburgers to pizzerias, Italian restaurants, and grocery stores in Illinois and Wisconsin. Capitol Wholesale Meats, Inc. was founded in 1960 and is based in Chicago, Illinois. As of August 16, 2017, Capitol Wholesale Meats, Inc. operates as a subsidiary of Hormel Foods Corporation. [BN] The Plaintiff is represented by: Matthew J. Piers, Esq. Christopher J. Wilmes, Esq. HUGHES SOCOL PIERS RESNICK & DYM, LTD. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Telephone: (312) 580-0100 - and - Christopher J. Williams, Esq. Alvar Ayala, Esq. WORKERS' LAW OFFICE, P.C. 53 W. Jackson Blvd, Suite 701 Chicago, IL 60604 Telephone: (312) 795-9121 CELGENE CORP: Amended Securities Complaint Due Dec. 10 ------------------------------------------------------ Celgene Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that the court has entered a scheduling order which requires lead plaintiff to file an amended complaint by December 10, 2018. On March 29, 2018, the City of Warren General Employees' Retirement System filed a putative class action against the company and certain of its officers in the U.S. District Court for the District of New Jersey. The complaint alleges that the defendants violated federal securities laws by making misstatements and/or omissions concerning (1) trials of GED-0301, (2) 2020 outlook and projected sales of OTEZLA(R), and (3) the new drug application for Ozanimod. On May 3, 2018, a similar putative class action lawsuit against the company and certain of its officers was filed by Charles H. Witchcoff in the U.S. District Court for the District of New Jersey. The complaint alleges that defendants violated federal securities laws by making material misstatements and/or omissions concerning (1) trials of GED-0301, (2) 2020 outlook and projected sales of OTEZLA(R), and (3) the new drug application for Ozanimod. On September 27, 2018, the court consolidated the two actions and appointed a lead plaintiff, lead counsel, and co-liaison counsel for the putative class. On October 9, 2018, the court entered a scheduling order which requires lead plaintiff to file an amended complaint by December 10, 2018; defendants to file their motion to dismiss the amended complaint by February 8, 2019; lead plaintiff to file its opposition to the motion to dismiss by April 9, 2019; and defendants to file their reply by May 9, 2019. Celgene Corporation, a biopharmaceutical company, engages in the discovery, development, and commercialization of therapies for the treatment of cancer and inflammatory diseases worldwide. The company was founded in 1980 and is headquartered in Summit, New Jersey. CELGENE CORP: Expert Discovery in Antitrust Suit Ends Nov. 30 ------------------------------------------------------------- Celgene Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that expert discovery is scheduled to close on November 30, 2018. On November 7, 2014, the International Union of Bricklayers and Allied Craft Workers Local 1 Health Fund (IUB) filed a putative class action lawsuit against us in the U.S. District Court for the District of New Jersey alleging that the company violated various antitrust, consumer protection, and unfair competition laws by (a) allegedly securing an exclusive supply contract with Seratec S.A.R.L. so that Barr Laboratories allegedly could not secure its own supply of thalidomide active pharmaceutical ingredient, (b) allegedly refusing to sell samples of our THALOMID(R) and REVLIMID(R) brand drugs to various generic manufacturers for the alleged purpose of bioequivalence testing necessary for ANDAs to be submitted to the FDA for approval to market generic versions of these products, and (c) allegedly bringing unjustified patent infringement lawsuits in order to allegedly delay approval for proposed generic versions of THALOMID(R) and REVLIMID(R). IUB, on behalf of itself and a putative class of third-party payers, is seeking injunctive relief and damages. In February 2015, the companty filed a motion to dismiss IUB's complaint, and upon the filing of a similar putative class action making similar allegations by the City of Providence (Providence), the parties agreed that the decision in the motion to dismiss IUB's complaint would apply to the identical claims in Providence's complaint. In October 2015, the court denied the company's motion to dismiss on all grounds. The company filed its answers to the IUB and Providence complaints in January 2016. On June 14, 2017, a new complaint was filed by the same counsel representing the plaintiffs in the IUB case, making similar allegations and adding three new plaintiffs - International Union of Operating Engineers Stationary Engineers Local 39 Health and Welfare Trust Fund (Local 39), The Detectives' Endowment Association, Inc. (DEA) and David Mitchell. Plaintiffs added allegations that the company's settlements of patent infringement lawsuits against certain generic manufacturers have had anticompetitive effects. Counsel identified the new complaint as related to the IUB and Providence cases and, on August 1, 2017, filed a consolidated amended complaint on behalf of IUB, Providence, Local 39, DEA, and Mitchell. On September 28, 2017, the same counsel filed another complaint, which it identified as related to the consolidated case, and which made similar allegations on behalf of an additional asserted class representative, New England Carpenters Health Benefits Fund (NEC). The NEC action has been consolidated with the original action involving IUB, Providence, DEA, Local 39, and Mitchell into a master action for all purposes. On October 2, 2017, the plaintiffs filed a motion for certification of two damages classes under the laws of thirteen states and the District of Columbia and a nationwide injunction class. On February 26, 2018, the company filed its opposition to the plaintiffs' motion and a motion for judgment on the pleadings dismissing all state law claims where the plaintiffs no longer seek to represent a class. The plaintiffs filed their opposition to the company's motion for judgment on the pleadings on April 2, 2018, and the company filed its reply on April 13, 2018. The plaintiffs filed their reply in support of their class certification motion on May 18, 2018. Fact discovery in these cases closed on May 17, 2018. The plaintiffs filed opening expert reports on June 18, 2018; responsive and rebuttal reports were due on August 27, 2018 and October 15, 2018, respectively. Expert discovery in these cases is scheduled to close on November 30, 2018. No trial date has been set. Celgene Corporation, a biopharmaceutical company, engages in the discovery, development, and commercialization of therapies for the treatment of cancer and inflammatory diseases worldwide. The company was founded in 1980 and is headquartered in Summit, New Jersey. CEMPRA INC: Court Dismisses Amended Hirtenstein Securities Suit --------------------------------------------------------------- In the case, JOHNATHAN HIRTENSTEIN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CEMPRA, INC., PRABHAVATHI B. FERNANDES, MARK W. HAHN, DAVID W. OLDACH, Defendants, Case No. 16cv1303 (M.D. N.C.), Judge Thomas D. Schroeder of the U.S. District Court for the Middle District of North Carolina granted the Defendants' motion to dismiss and dismissed the Plaintiffs' amended complaint. The case is a putative federal securities class action on behalf of all persons who owned common stock of the biopharmaceutical company, Cempra, between July 7, 2015, and Nov. 4, 2016. After the Court consolidated the cases under the first-filed action, the Plaintiffs filed an amended complaint. In their amended complaint, the Plaintiffs seek recovery for stock losses under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA") and Rule 10-b5 promulgated thereunder. The Plaintiffs allege that Defendants made false and misleading statements regarding the safety profile of the drug and failed to adequately disclose instances of drug-induced liver injury ("DILI") observed in clinical trials prior to and during the class period. According to the amended complaint, these false and misleading statements caused Cempra's common stock to trade at artificially high prices, so that when the risks were revealed by the FDA at the end of the class period, the Plaintiffs suffered losses from the subsequent stock price decline. The Defendants are Cempra; Fernandes, Cempra's then-CEO, president, and member of the board of directors from the company's founding in November 2005 until Dec. 12, 2016; Hahn, Cempra's executive VP and CFO during the class period; and Oldach, Cempra's chief medical officer, during the class period. The Defendants move to dismiss the consolidated complaint, contending that the Plaintiffs have failed to allege material false or misleading statements or allege sufficient facts to give rise to a strong inference of scienter under the PSLRA's heightened pleading standards. Before the Court is the Defendants' motion to dismiss the amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Plaintiffs oppose the motion and also filed a motion to strike seven exhibits contained in the appendix that the Defendants submitted in support of their motion to dismiss pursuant to Federal Rule of Civil Procedure 12(d). The challenged exhibits are as follows: (1) Cempra Form 8-K filed with the SEC on Nov. 17, 2015; (2) Carlos M Barrera et al., Efficacy and safety of oral solithromycin versus oral moxifloxacin for treatment of community-acquired bacterial pneumonia: a global, double-blind, multicentre, randomised, active-controlled, non-inferiority trial (SOLITAIRE-ORAL), 16 Lancet Infectious Diseases 421 (2016); (3) Thomas M. File Jr. et al., SOLITAIRE-IV: A Randomized, Double-Blind, Multicenter Study Comparing the Efficacy and Safety of Intravenous-to-Oral Solithromycin to Intravenous-to-Oral Moxifloxacin for Treatment of Community-Acquired Bacterial Pneumonia, 63 Clinical Infectious Diseases 1007 (2016); (4) Cempra's FDA briefing document, which was publicly filed on Nov. 2, 2016, in advance of the FDA Advisory Committee meeting; (5) FDA Advisory Committee minutes from the meeting held on Nov. 4, 2016; (6) Form 4s for Oldach, which were filed with the SEC on three separate occasions during the class period; and (7) Form 4s for Fernandes & Hahn, which were filed with the SEC on Jan. 5, 2016. On July 24, 2018, the Court held a hearing on the pending motions. Judge Schroeder holds that the Court may take judicial notice of (i) the Nov. 17, 2015 Form 8-K that Cempra filed with the SEC, and (ii) second and third challenged exhibits. As to the fourth challenged exhibit, the Judge will consider Cempra's FDA briefing document, as it is incorporated by reference or otherwise integral to the complaint. With regard to the remaining three challenged exhibits, he concludes that he needs not rely on them to resolve the Defendants' motion, particularly given the comprehensive nature of the other materials that the Court has determined it may consider. Thus, the Judge will not consider those documents. Turning to the Defendants' motion to dismiss, the Judge has reviewed all alleged misrepresentations and all other alleged bases for scienter, individually and collectively. He finds that they are insufficient to raise a strong inference that any Defendant intended to mislead any investor, or acted recklessly. He finds that Plaintiffs have failed to state a claim for relief upon which relief can be granted under Section 10(b) or Section 20(a) of the Exchange Act, or Rule 10b-5. The Judge therefore granted the Defendants' motion to dismiss, and dismissed the Plaintiffs' amended complaint. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion and Order is available at https://is.gd/TpVRFX from Leagle.com. JOHNATHAN HIRTENSTEIN, Plaintiff, represented by DAVID GARRETT SCHILLER -- david@schillerfirm.com -- SCHILLER & SCHILLER, PLLC. DONALD B. HALLOWES, Plaintiff, represented by JANET WARD BLACK -- info@wardblacklaw.com -- WARD BLACK LAW & NANCY ROUTH MEYERS, WARD BLACK LAW. CHARLES CRAIG JANIES, ROBERT F. COLWELL, JR. & JENNIFER COLWELL, Consol Plaintiffs, represented by CARISSA J. DOLAN -- cdolan@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP, REGIS C. WORLEY -- rworley@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP, TRIG R. SMITH -- trigs@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP, DAVID A. ROSENFELD -- DRosenfeld@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP, FRANK J. JOHNSON -- FrankJ@johnsonfistel.com -- JOHNSON FISTEL, LLP, KRISTEN L. O'CONNOR, JOHNSON FISTEL, LLP, LESLIE BRUCE MCDANIEL -- mcdas@mcdas.com -- MCDANIEL & ANDERSON, LLP, MICHAEL I. FISTEL -- MichaelF@johnsonfistel.com -- JOHNSON FISTEL, LLP, TOR GRONBORG -- torg@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP & WILLIAM W. STONE -- WilliamS@johnsonfistel.com --, JOHNSON FISTEL, LLP. CEMPRA, INC., PRABHAVATHI B. FERNANDES & MARK W. HAHN, Defendants, represented by JAMES R. CARROLL -- james.carroll@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, MICHAEL S. HINES -- michael.hines@skadden.com -- SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, SAMUEL A. SLATER, WYRICK ROBBINS YATES & PONTON LLP, SARA J. VAN VLIET, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP & LEE MICHAEL WHITMAN, WYRICK ROBBINS YATES & PONTON, L.L.P. DAVID W. OLDACH, Defendant, represented by JAMES R. CARROLL, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP & SAMUEL A. SLATER, WYRICK ROBBINS YATES & PONTON LLP. CEMP INVESTOR GROUP, Movant, represented by DHAMIAN A. BLUE, BLUE STEPHENS & FELLERS. YELIN LAPIDOT MUTUAL FUNDS, Movant, represented by CASEY E. SADLER -- csadler@glancylaw.com -- GLANCY PRONGAY & MURRAY LLP, DANIEL KENT BRYSON -- dan@wbmllp.com -- WHITFIELD BRYSON & MASON, LLP & ROBERT V. PRONGAY -- RProngay@glancylaw.com -- GLANCY PRONGAY & MURRAY LLP. CHAMPION PETFOODS: Rydman Sues over Contaminated Pet Food --------------------------------------------------------- HOLLY RYDMAN, individually and on behalf of a class of similarly situated individuals, the Plaintiff, vs. CHAMPION PETFOODS USA, INC., a Delaware corporation, and CHAMPION PETFOODS LP, a Canadian limited partnership, the Defendants, Case No. 2:18-cv-01578 (W.D. Wash., Oct. 26, 2018), alleges that Defendants failed to fully disclose the presence of heavy metals and toxins in their pet food sold throughout the United States. According to the complaint, the Defendants manufacture, market, advertise, label, distribute, and sell pet food under the brand names Acana and Orijen throughout the United States. The Defendants claim to have created a niche in the pet food market by "making biologically 'appropriate' pet food -- as close to what animals would eat in nature as possible -- and producing it using fresh, natural ingredients. They then charge a premium for this purportedly higher-quality food. The founder of the company, Peter Muhlenfeld, said, "Our core family beliefs are entrenched in the company, and that is to make the very best food." The Defendants tout that Biologically Appropriate ORIJEN (TM) represents a new class of food, designed to nourish dogs and cats according to their evolutionary adaptation to a diet rich and diverse in fresh meat and protein" and that it is "trusted by pet lovers everywhere." Defendants' packaging and labels further emphasize fresh, quality, and properly sourced ingredients and even declares their dog food has "ingredients we love". Yet nowhere in the labeling, advertising, statements, warranties and/or 2 packaging do Defendants disclose that the Contaminated Pet Foods contain levels of arsenic, mercury, lead, cadmium and/or BISPHENOL A ("BPA") -- all known to pose health risks to humans and animals, including dogs, the lawsuit says.[BN] Attorneys for Plaintiff: Brendan W. Donckers, Esq. Roger Townsend, Esq. BRESKIN JOHNSON TOWNSEND, PLLC 1000 Second Avenue, Suite 3670 Seattle, WA 98104 Telephone: (206)652-8660 E-mail: bdonckers@bjtlegal.com rtownsend@bjtlegal.com - and - Robert K. Shelquist, Esq. Rebecca A. Peterson, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 E-mail: rkshelquist@locklaw.com rapeterson@locklaw.com - and - Kevin A. Seely, Esq. Steven M. McKany, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 E-mail: kseely@robbinsarroyo.com smckany@robbinsarroyo.com - and - Daniel E. Gustafson, Esq. Karla M. Gluek, Esq. Joseph C. Bourne, Esq. Raina C. Borrelli, Esq. GUSTAFSON GLUEK, PLLC Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 E-mail: dgustafson@gustafsongluek.com kgluek@gustafsongluek.com jbourne@gustafsongluek.com rborrelli@gustafsongluek.com - and - Charles Laduca, Esq. Katherine Van Dyck, Esq. CUNEO GILBERT & LADUCA, LLP 4725 Wisconsin Ave NW, Suite 200 Washington, DC 20016 Telephone: 202-789-3960 E-mail: kvandyck@cuneolaw.com charles@cuneolaw.com - and - Joseph Depalma, Esq. Susana Cruz Hodge, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: jdepalma@litedepalma.com scruzhodge@litedepalma.com - and - Glen Devalerio, Esq. Daryl Andrews, Esq. ANDREWS DEVALERIO LLP 265 Franklin Street, Suite 1702 Boston, MA 02110 Telephone: (617) 936-2796 E-mail: glen@andrewsdevalerio.com daryl@andrewsdevalerio.com - and - Gustavo F. Bruckner, Esq. Samuel J. Adams, Esq. POMERANTZ LLP, Esq. 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 E-mail: gfbruckner@pomlaw.com sjadams@pomlaw.com CHEGG INC: Continues to Defend Shah Class Suit ---------------------------------------------- Chegg, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself in a class action suit entitled, Shah v. Chegg, Inc. et. al. On September 27, 2018 a purported securities class action captioned Shah v. Chegg, Inc. et. al. (Case No. 3:18-cv-05956-CRB) was filed in the United States District Court for the Northern District of California against the Company and its CEO. The complaint was filed by a purported Company shareholder and alleges claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, based on allegedly misleading statements regarding the Company's security measures to protect users' data and related internal controls and procedures, as well as Chegg's second quarter 2018 financial results. The suit is purportedly brought on behalf of purchasers of our securities between July 30, 2018 and September 25, 2018. The complaint seeks unspecified compensatory damages. Our time to respond to the complaint has not yet been set. Chegg, Inc. operates direct-to-student learning platform that supports students on their journey from high school to college and into their career with tools designed to help them pass their test, pass their class, and save money on required materials. Chegg, Inc. was founded in 2003 and is headquartered in Santa Clara, California. CHG HEALTHCARE: Leiber et al. Seek to Certify Collective Action --------------------------------------------------------------- BRANDY JO LEIBER and JORDAN LOTT, on behalf of themselves and those similarly situated, the Plaintiffs, vs. CHG HEALTHCARE SERVICES, INC., a foreign for profit corporation, CHG COMPANIES, INC., CHG MEDICAL STAFFING, INC., CHG MANGEMENT, INC., COMPHEALTH ASSOCIATES, INC., and WEATHERBY LOCUMS, INC., the Defendants, Case No.: 0:18-cv-61139-BB (S.D. Fla.), the Plaintiffs ask the Court to enter an order: 1. conditionally certifying a collective action for unpaid overtime wages, and permitting, under court supervision, notice to: "all current and former Inside Sales Consultants who were employed by CHG Healthcare nationwide, and who were required to complete the mandatory 6-8 week training program within the three year period preceding May 18, 2018"; 2. requiring CHG Healthcare to identify all putative members of the Putative Class by providing a list of their names, last known addresses, dates of employment, cell phone number, and e-mail addresses in electronic and importable format, e.g. a Microsoft Excel spreadsheet, within 14 days of an entry of an order; 3. permitting Plaintiffs' counsel to send Court-approved notice of this action to the putative class members of the proposed collective action via U.S. Mail, e-mail, and text message; 4. permitting Plaintiffs' counsel to send a reminder notice via e-mail and text message to putative class members at the half-way point in the notice period; 5. approving a 90-day opt-in period from the date the Court- approved notice is sent during which the putative class members may join this case by returning their written consents; and 6. allowing putative class members to electronically sign and return the Consent to Become an Opt-In Plaintiff.[CC] Attorneys for Plaintiff: Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. PINE ISLAND ROAD, SUITE 400 Plantation, FL 33324 Telephone: (954) WORKERS; Facsimile: (954) 327-3013 E-mail: PBotros@forthepeople.com CITIGROUP INC: Accord in Benchmark Rates Suit Wins Final Approval ----------------------------------------------------------------- Citigroup 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 in the case, IN RE FOREIGN EXCHANGE BENCHMARK RATES ANTITRUST LITIGATION, the court granted plaintiffs' motion for final approval of the proposed class settlements with Citigroup, Citibank, Citicorp, and Citigroup Global Markets Inc. (CGMI), and certain other defendants. The ruling was entered on August 6, 2018. Additional information concerning this action is publicly available in court filings under the docket number 13 Civ. 7789 (S.D.N.Y.) (Schofield, J.). Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). The company operates in North America, Latin America, Asia, Europe, the Middle East, and Africa. Citigroup Inc. was founded in 1812 and is based in New York, New York. CLAYTON MYRICK: $23K Attys' Fees Awarded in Piccinetti FDCPA Suit ----------------------------------------------------------------- In the case, BRIAN A. PICCINETTI, Plaintiff, v. CLAYTON, MYRICK, McCLANAHAN & COULTER, PLLC, et al., Defendants, Civil Action No. 16-4032 (TJB) (D. N.J.), Magistrate Judge Tonianne J. Bongiovanni of the U.S. District Court for the District of New Jersey granted in part the Plaintiffs' motion for attorneys' fees and costs. The Plaintiff filed the action against the Defendants on July 5, 2016 alleging that the Defendants used an unfair and unconscionable means to collect a debt in violation of the Fair Debt Collection Practices Act ("FDCPA"). The debt at issue involved money purportedly owed to Gold's Gym. The Plaintiff stylized his Complaint as a class action brought on behalf of a class of New Jersey consumers seeking redress for Defendant's actions. The Defendants answered the Plaintiff's Complaint on Aug. 1, 2016, denying any culpable conduct and raising several affirmative defenses. On March 2, 2017, the Defendants filed a motion for partial judgment on the pleadings under FED.R.CIV.P. 12(c), arguing that they were entitled to judgment as a matter of law on Counts III and IV of the Plaintiff's Complaint. Count III asserted claims against the PLLC and Nauseef for violations of Sections 1692e(2), 1692e(5) and 1692e(10) of the FDCPA. In the alternative, the Defendants requested permission to file an Amended Answer, allowing Nauseef to assert additional affirmative defenses. The District Court granted in part and denied in part the Defendants' motion for partial judgment on the pleadings. Specifically, the District Court granted the Defendants' motion with respect to certain claims asserted in Count III of the Complaint and as to Count IV in its entirety. With respect to Count III, the District Court dismissed the Plaintiff's claims for violations asserted under Section 1692e(2) as well as for any purported violations of Section 1692e based on the PLLC and Nauseef's lack of meaningful involvement in the collection of the Plaintiff's debt, but found that the Plaintiff adequately stated claims against the PLLC and Nauseef for violating Sections 1692e(5) and 1692e (10). Given the Plaintiff's failure to allege any facts regarding the purported lack of meaningful involvement by attorneys, the District Court granted the Defendants' motion with respect to this claim. Finally, the District Court granted the Defendants' motion to dismiss the Plaintiff's claim for alleged violations of Section 1692j. The aforementioned dismissals were made without prejudice, and the Plaintiff was given permission to file an Amended Complaint. On Sept. 19, 2017, the Defendants filed a motion for reconsideration with respect to the District Court's September 5, 2017 decision granting in part and denying in part Defendants' motion for partial judgment on the pleadings. [Docket Entry No. 30]. Through their motion for reconsideration, Defendants argued that: (1) the District Court's dismissals should have been made with, not without, prejudice; (2) the District Court should have also dismissed Plaintiff's claims asserted under 15 U.S.C. §§ 1962e(5) and (10) and that these dismissals should be made with prejudice; and (3) the District Court never addressed Defendants' request for alternative relief and should Plaintiff's claims not be dismissed with prejudice, Defendants should be permitted to amend their Answer to allow Nauseef to raise additional defenses. (See generally, Def. Letter Br. of 9/19/2017; Docket Entry No. 30-1). On September 20, 2017, Plaintiff filed his Amended Complaint. In same, Plaintiff did not pursue any claims for violations of 15 U.S.C. § 1692j. Plaintiff did, however, reassert claims based on purported violations of § 1692e(2), adding limited additional factual allegations in support of same. Plaintiff also made certain changes to his class allegations and added Theodore Lachman ("Lachman") as a defendant, seeking relief from Lachman in Counts I and II of the Amended Complaint. Shortly after the Amended Complaint was filed, the Court scheduled a status conference with the parties. During the conference, the Court engaged in settlement discussions with counsel and scheduled a formal settlement conference for Nov. 7, 2017. The settlement conference was later adjourned to Dec. 12, 2017 at the parties' request. While the matter did not settle on Dec. 12, 2017, headway was made, and the parties were to report back with an update by Dec. 22, 2017. On Dec. 28, 2017, the parties informed the Court that a settlement had been reached. The Defendants agreed to pay the Plaintiff $2,500 on Jan. 15, 2018. The parties further consented to Magistrate Judge jurisdiction with respect to the Plaintiff's anticipated fee application, as the parties could not reach an agreement with respect to what was a reasonable fee for the Plaintiff's counsel. In light of the parties' settlement agreement, the Defendants withdrew their motion for reconsideration as moot. The Court set a briefing schedule for the Plaintiff's motion for attorneys' fees and costs. The Plaintiff seeks to recover attorneys' fees for three professionals: Ari Marcus, Yitzchak Zelman and Lori Hague. Both Messrs. Marcus and Zelman have submitted declarations outlining their credentials and experience in support of their claimed hourly rates. Ms. Hague has not, and neither Mr. Marcus nor Mr. Zelman explain her role in the litigation. Despite the Defendants' objections to the contrary, Magistrate Judge Bongiovanni finds the hourly rates requested by Messrs. Marcus and Zelman to be reasonable. Everything considered, she finds that the Plaintiff has established the reasonableness of Messrs. Marcus and Zelman's requested hourly rates of $400 and $350 per hour respectively. As noted, the Plaintiff also seeks to recoup fees incurred by Ms. Hague. As further noted, the Plaintiff has provided no information regarding who Ms. Hague is, her role at Marcus & Zelman, LLC, her years of experience, etc. As a result, the Magistrate will not award any fees for the 0.3 hours she spent working on the matter. The Magistrate has thoroughly reviewed Messrs. Marcus and Zelman's billing records as well as the submissions of both parties. While she finds that many of the hours billed by the counsel are reasonable, given Messrs. Marcus and Zelman's level of expertise in consumer matters in general and FDCPA cases in particular, several hours are excessive. Having carefully reviewed the parties' submissions, she makes the following reductions: a. The time spent preparing and serving discovery on Nov. 1, 2016 will be reduced from 2.2 to 1.7 hours for Mr. Marcus and 0.5 to 0.4 hours for Mr. Zelman. b. The time spent revising the aforementioned discovery requests on April 21, 2017 will be reduced from 1.8 to 0.9 hours for Mr. Zelman. c. The time spent researching and drafting the Plaintiff's opposition to the Defendants' motion for partial judgment on the pleadings will be reduced from 6.3 to 3.2 hours for Mr. Marcus and 15.2 to 7.6 hours for Mr. Zelman. d. The time spent reviewing, researching, drafting and finalizing the Plaintiff's opposition to the Defendants' motion or reconsideration will be reduced from 3.1 to 1.6 hours for Mr. Marcus and 13.4 to 6.7 hours for Mr. Zelman. e. The time spent reviewing the Defendants' reply brief submitted in further support of the Defendants' motion for reconsideration will be reduced from 1.2 to 0.4 hours for Mr. Marcus. f. The time spent researching, drafting, reviewing and/or editing the Plaintiff's fee application will be reduced from 2.5 to 1.3 hours for Mr. Marcus and 5.1 to 2.5 hours for Mr. Zelman. g. The time spent by Mr. Marcus preparing the Plaintiff's reply brief in further support of his fee application will be reduced from 8.5 to 4.3 hours. In addition, the Magistrate finds that a reduction of the fee award is warranted based on hours Messrs. Marcus and Zelman spent on administrative tasks. Mr. Marcus' request should be reduced from 1.5 hours to 0.6 hours, and Mr. Zelman's request should be reduced from 1.3 hours to 0.7 hours. Finally, she awarded the Plaintiff the following costs: (1) the $400 filing fee; (2) the $126 process server fee incurred serving the Defendants through the North Carolina Secretary of State; and (3) the $10 parking fee incurred on Dec. 12, 2017. In total then, the Plaintiff is awarded attorneys' fees in the amount of $22,825 and $536 in costs. With respect to the attorneys' fees this breaks down to $16,000 (40 hours of work at $400 per hour) for Mr. Marcus, plus $6,825 (19.5 hours of work at $350 per hour) for Mr. Zelman. The Defendants are directed to pay same no later than Nov. 9, 2018. For the reasons stated, Magistrate Judge Bongiovanni granted in part the Plaintiff's motion for attorneys' fees and costs. An appropriate Order follows. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion is available at https://is.gd/eZKsYU from Leagle.com. BRIAN A. PICCINETTI, on behalf of himself and all others similarly situated, Plaintiff, represented by ARI HILLEL MARCUS -- ari@marcuszelman.com -- MARCUS ZELMAN LLC & YITZCHAK ZELMAN -- Yzelman@MarcusZelman.com -- Marcus Zelman, LLC. CLAYTON, MYRICK, MCCLANAHAN & COULTER, PLLC, INTERNAL CREDIT SYSTEMS, INC. & ROBERT J. NAUSEEF, Defendants, represented by CHRISTOPHER J. DALTON -- christopher.dalton@bipc.com -- BUCHANAN, INGERSOLL & ROONEY, PC. CLECO CORPORATE: Discovery Ongoing in Merger-Related Class Suit --------------------------------------------------------------- Cleco Corporate Holdings LLC 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 merger-related class action lawsuit are engaged in discovery in district court. In connection with a merger deal, four actions were filed in the Ninth Judicial District Court for Rapides Parish, Louisiana and three actions were filed in the Civil District Court for Orleans Parish, Louisiana. The petitions in each action generally alleged, among other things, that the members of Cleco Corporation's Board of Directors breached their fiduciary duties by, among other things, conducting an allegedly inadequate sale process, agreeing to the Merger at a price that allegedly undervalued Cleco, and failing to disclose material information about the Merger. The petitions also alleged that Cleco Partners, Cleco Corporation, Merger Sub, and in some cases, certain of the investors in Cleco Partners, either aided and abetted or entered into a civil conspiracy to advance those supposed breaches of duty. The petitions seek various remedies, including monetary damages, which includes attorneys’ fees and expenses. The four actions filed in the Ninth Judicial District Court for Rapides Parish are captioned: * Braunstein v. Cleco Corporation, No. 251,383B (filed October 27, 2014), * Moore v. Macquarie Infrastructure and Real Assets, No. 251,417C (filed October 30, 2014), * Trahan v. Williamson, No. 251,456C (filed November 5, 2014), and * L'Herisson v. Macquarie Infrastructure and Real Assets, No. 251,515F (filed November 14, 2014). In November 2014, the plaintiff in the Braunstein action moved for a dismissal of the action without prejudice, and that motion was granted in November 2014. In December 2014, the Court consolidated the remaining three actions and appointed interim co-lead counsel. Also in December 2014, the plaintiffs in the consolidated action filed a Consolidated Amended Verified Derivative and Class Action Petition for Damages and Preliminary and Permanent Injunction (the Consolidated Amended Petition). The consolidated action named Cleco Corporation, its directors, Cleco Partners, and Merger Sub as defendants. The Consolidated Amended Petition alleged, among other things, that Cleco Corporation's directors breached their fiduciary duties to Cleco's shareholders and grossly mismanaged Cleco by approving the Merger Agreement because it allegedly did not value Cleco adequately, failing to structure a process through which shareholder value would be maximized, engaging in self-dealing by ignoring conflicts of interest, and failing to disclose material information about the Merger. The Consolidated Amended Petition further alleged that all defendants conspired to commit the breaches of fiduciary duty. Cleco believes that the allegations of the Consolidated Amended Petition are without merit and that it has substantial meritorious defenses to the claims set forth in the Consolidated Amended Petition. The three actions filed in the Civil District Court for Orleans Parish are captioned: * Butler v. Cleco Corporation, No. 2014-10776 (filed November 7, 2014), * Creative Life Services, Inc. v. Cleco Corporation, No. 2014-11098 (filed November 19, 2014), and * Cashen v. Cleco Corporation, No. 2014-11236 (filed November 21, 2014). Both the Butler and Cashen actions name Cleco Corporation, its directors, Cleco Partners, Merger Sub, MIRA, BCI, and John Hancock Financial as defendants. The Creative Life Services action names Cleco Corporation, its directors, Cleco Partners, Merger Sub, MIRA, and Macquarie Infrastructure Partners III, L.P., as defendants. In December 2014, the plaintiff in the Butler action filed an Amended Class Action Petition for Damages. Each petition alleged, among other things, that the members of Cleco Corporation's Board of Directors breached their fiduciary duties to Cleco's shareholders by approving the Merger Agreement because it allegedly does not value Cleco adequately, failing to structure a process through which shareholder value would be maximized and engaging in self-dealing by ignoring conflicts of interest. The Butler and Creative Life Services petitions also allege that the directors breached their fiduciary duties by failing to disclose material information about the Merger. Each petition further alleged that Cleco, Cleco Partners, Merger Sub, and certain of the investors in Cleco Partners aided and abetted the directors' breaches of fiduciary duty. In December 2014, the directors and Cleco filed declinatory exceptions in each action on the basis that each action was improperly brought in Orleans Parish and should either be transferred to the Ninth Judicial District Court for Rapides Parish or dismissed. Also in December 2014, the plaintiffs in each action jointly filed a motion to consolidate the three actions pending in Orleans Parish and to appoint interim co-lead plaintiffs and co-lead counsel. In January 2015, the Court in the Creative Life Services case sustained the defendants' declinatory exceptions and dismissed the case so that it could be transferred to the Ninth Judicial District Court for Rapides Parish. In February 2015, the plaintiffs in Butler and Cashen also consented to the dismissal of their cases from Orleans Parish so they could be transferred to the Ninth Judicial District Court for Rapides Parish. In February 2015, the Ninth Judicial District Court for Rapides Parish held a hearing on a motion for preliminary injunction filed by plaintiffs Moore, L'Herisson, and Trahan seeking to enjoin the shareholder vote for approval of the Merger Agreement. Following the hearing, the Court denied the plaintiffs' motion. In June 2015, three of the plaintiffs filed their Second Consolidated Amended Verified Derivative and Class Action Petition. This will be considered according to a schedule established by the Ninth Judicial District Court for Rapides Parish. Cleco filed exceptions seeking dismissal of the amended petition in July 2015. In March 2016 and May 2016, the plaintiffs filed their Third Consolidated Amended Verified Derivative Petition for Damages and Preliminary and Permanent Injunction and their Fourth Verified Consolidated Amended Class Action Petition, respectively. The fourth petition eliminated the request for preliminary and permanent injunction and also named an additional executive officer as a defendant. Cleco filed exceptions seeking dismissal of the amended Petition. A hearing was held in September 2016, and the District Court granted the exceptions filed by Cleco and dismissed all claims asserted by the former shareholders. The plaintiffs appealed the District Court's ruling to the Louisiana Third Circuit Court of Appeal. The Third Circuit Court of Appeal heard oral arguments in the case in September 2017. In December 2017, the Third Circuit Court of Appeal issued an order reversing and remanding the case to the District Court for further proceedings. In January 2018, Cleco filed a writ with the Louisiana Supreme Court seeking review of the Third Circuit Court of Appeal's decision. The writ was denied in March 2018 and the parties are engaged in discovery in the District Court. Cleco believes that the allegations of the petitions in each action are without merit and that it has substantial meritorious defenses to the claims set forth in each of the petitions. Cleco Corporate Holdings LLC operates as a public utility holding company primarily in Louisiana. The company, through its subsidiary, operates as a regulated electric utility, which owns nine generating units with a total capacity of 3,310 megawatts and serves approximately 290,000 customers in Louisiana through its retail business; supplies wholesale power in Louisiana and Mississippi; and owns 86 active transmission substations and 239 active distribution substations. Cleco Corporate Holdings LLC was founded in 1934 and is based in Pineville, Louisiana. CMS WESTROCK: Fails to Pay Proper Wages, Rosa et al. Suit Says --------------------------------------------------------------- MONICA ROSA; JACIE WILILAMS; BELCANYELLI FANA; MARISOL RIVAS; and WILMER MELENDEZ, individually and on behalf of all other similarly situated, Plaintiffs v. CENTRAL MEDICAL SERVICES OF WESTROCK, P.C.; MICHAEL HEARNS; KAREN HEARNS; and CHRISTINE ROCKICIOLI, Defendants, Case No. 1:18-cv-06011-KAM-RLM (E.D.N.Y., Oct. 26, 2018) seeks to recover from the Defendants unpaid overtime compensation, minimum wages, damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Rosa was employed by the Defendants as manager. Williams was a front desk receptionist and later promoted to team lead. Fana, Rivas and Melendez were doctor's assistants. Central Medical Services of Westrock, P.C. is a domestic business corporation organized and existing under the laws of the State of New York. The Company provides healthcare services to people who are injured at work or suffer from work related illness or disease. [BN] The Plaintiffs are represented by: Michael Taubenfeld, Esq. FISHER TAUBENFELD LLP 225 Broadway, Suite 1700 New York, NY 10007 Telephone: (212) 571-0700 Facsimile: (212) 505-2001 COGNIZANT TECHNOLOGY: Still Defends Consolidated Class Suit in NJ ----------------------------------------------------------------- Cognizant Technology Solutions Corporation 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 company continues to defend itself from a consolidated class action suit in he United States District Court for the District of New Jersey. On October 5, 2016, October 27, 2016, and November 18, 2016, three putative securities class action complaints were filed in the United States District Court for the District of New Jersey, naming the company and certain of its current and former officers as defendants. In an order dated February 3, 2017, the United States District Court for the District of New Jersey consolidated the three putative securities class actions into a single action and appointed lead plaintiffs and lead counsel. On April 7, 2017, the lead plaintiffs filed a consolidated amended complaint on behalf of a putative class of stockholders who purchased the company's common stock during the period between February 27, 2015 and September 29, 2016, naming the company and certain of its current and former officers as defendants and alleging violations of the Exchange Act, based on allegedly false or misleading statements related to potential violations of the FCPA, the company's business, prospects and operations, and the effectiveness of its internal controls over financial reporting and its disclosure controls and procedures. The lead plaintiffs seek an award of compensatory damages, among other relief, and their reasonable costs and expenses, including attorneys' fees. Defendants filed a motion to dismiss the consolidated amended complaint on June 6, 2017, and the motion to dismiss was fully briefed as of September 5, 2017. On August 8, 2018, the Court issued an order which granted the motion to dismiss in part, including dismissal of all claims against current officers of the Company, and denied them in part. On September 7, 2018, the company filed a motion in the United States District Court for the District of New Jersey to certify the August 8, 2018 order for immediate appeal to the United States Court of Appeals for the Third Circuit pursuant to 28 U.S.C. Section 1292(b). Plaintiffs filed a response to the motion on September 28, 2018, and we filed a reply on October 9, 2018. Cognizant Technology Solutions Corp. provides information technology consulting and technology services in North America, Europe, and Asia. The company was founded in 1994 and is based in Teaneck, New Jersey. COMMERCE ENERGY: Seeks 6th Cir. Review of Order in Hurt FLSA Suit ----------------------------------------------------------------- Defendants Commerce Energy, Inc., Just Energy Group, Inc. and Just Energy Marketing Corp. filed an appeal from a court ruling in the lawsuit styled Davina Hurt, et al. v. Commerce Energy, Inc., et al., Case No. 1:12-cv-00758, in the U.S. District Court for the Northern District of Ohio at Cleveland. As reported in the Class Action Reporter on Nov. 8, 2018, Judge James S. Gwin (i) granted in part and denied in part the Plaintiffs' motion for attorney's fees and costs, and (ii) granted in part and denied in part their motion for incentive awards. In this long-lingering bifurcated litigation, a jury found that the Defendants are liable for violations of the Fair Labor Standards Act ("FLSA") and the Ohio Minimum Fair Wage Standards Act ("Ohio Wage Act"). After a long and complicated damage determination, the Court determined damages for the large collective action and class action. Judge Gwin ordered the Defendants to pay the Plaintiffs $2,718,440.75 in attorney's fees and $217,120.16 in costs. From those attorney's fees, he ordered the Plaintiffs' attorneys to pay $62,500 in incentive awards. Judge Gwin granted $5,000 each to Davina Hurt and Dominic Hill, the Plaintiffs most involved in the case. Judge Gwin also granted $2,500 each to the remaining Plaintiffs for whom incentive awards are sought. The appellate case is captioned as Davina Hurt, et al. v. Commerce Energy, Inc., et al., Case No. 18-4058, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiffs-Appellees DAVINA HURT, Individually and on behalf of all other similarly situated, and DOMINIC HILL, Individually and on behalf of all other similarly situated, are represented by: Frank A. Bartela, Esq. DWORKEN & BERNSTEIN 60 S. Park Place Painesville, OH 44077 Telephone: (440) 352-3391 E-mail: fbartela@dworkenlaw.com - and - James Andrew DeRoche, Esq. SEAMAN GARSON 614 W. Superior Avenue, Suite 1600 Cleveland, OH 44113 Telephone: (216) 830-1000 E-mail: jderoche@garson.com - and - Murray Richelson, Esq. LAW OFFICE OF DAVID A. KATZ 50 Public Square, Suite 842 Terminal Tower Cleveland, OH 44113 Telephone: (216) 696-5250 E-mail: Mrichelson@aol.com Defendants-Appellants COMMERCE ENERGY, INC., doing business as Just Energy doing business as Commerce Energy of Ohio, Inc.; JUST ENERGY MARKETING CORP.; and JUST ENERGY GROUP, INC., are represented by: Shannon K. Patton, Esq. LITTLER MENDELSON P.C. 1100 Superior Avenue, E., 20th Floor Cleveland, OH 44114 Telephone: (216) 696-7600 E-mail: spatton@littler.com - and - Bradley A. Sherman, Esq. SHERMAN BOSEMAN LEGAL GROUP 800 W. Saint Clair Avenue, Fourth Floor Cleveland, OH 44113 Telephone: (216) 647-1070 E-mail: bradley@shermanboseman.com COMMUNITY HEALTH: Appeal in Gibson Class Suit Still Pending ----------------------------------------------------------- Community Health Systems, 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 appeal in Gibson v. Byrd Regional Medical Center, is ongoing. The case is a purported class action lawsuit filed in the 30th Judicial District Court for the State of Louisiana and served on August 3, 2016, claiming the company's affiliated Leesville, Louisiana hospital violated payor contracts by allegedly improperly asserting hospital liens against third-party tortfeasors and seeking class certifications for any similarly situated plaintiffs. The court has certified a class and denied the company's motion for summary judgment. Community Health Systems said, "We have appealed both rulings to the Louisiana Third Circuit Court of Appeals. That appeal is pending. We believe these claims are without merit and will vigorously defend the case." No further updates were provided in the Company's SEC report. Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. The company provide healthcare services through the hospitals that we own and operate and affiliated businesses in non-urban and selected urban markets throughout the United States. The company is based in Franklin, Tennessee. COMMUNITY HEALTH: Class Cert. Bid in Tennessee Suit Still Pending ----------------------------------------------------------------- Community Health Systems, 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 plaintiff's motion for class certification in the consolidated class action suit filed in the U.S. District Court for the Middle District of Tennessee, is pending. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. In lieu of ruling on the company's motion to dismiss, the court permitted the plaintiffs to file a first amended consolidated class action complaint which was filed on October 5, 2015. The company's motion to dismiss was filed on November 4, 2015 and oral argument took place on April 11, 2016. The company's motion to dismiss was granted on June 16, 2016 and on June 27, 2016, the plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals. The matter was heard on May 3, 2017. On December 13, 2017, the Sixth Circuit reversed the trial court's dismissal of the case and remanded it to the District Court. The company filed a renewed partial motion to dismiss on February 9, 2018, which was denied by the District Court on September 24, 2018. The company also filed a petition for writ of certiorari with the United States Supreme Court on April 18, 2018 seeking review of the Sixth Circuit's decision. The United States Supreme Court denied the petition for a writ of certiorari on October 1, 2018. Plaintiff's motion for class certification is pending. Community Health Systems said, "We believe this consolidated matter is without merit and will vigorously defend this case." Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. The company provide healthcare services through the hospitals that we own and operate and affiliated businesses in non-urban and selected urban markets throughout the United States. The company is based in Franklin, Tennessee. COMMUNITY HEALTH: Settlement Reached in Cyber Attack Related Suits ------------------------------------------------------------------ Community Health Systems, 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 company has agreed to settle the class action lawsuits related to cyber attack, subject to approval by the District Court. On August 18, 2014, the company's computer network was the target of an external, criminal cyber-attack that the company has believe occurred between April and June, 2014. The company and Mandiant (a FireEye Company), the forensic expert engaged by the company in connection with this matter, believe the attacker was a foreign "Advanced Persistent Threat" group who used highly sophisticated malware and technology to attack the company's systems. The attacker was able to bypass the company's security measures and successfully copy and transfer outside the Company certain non-medical patient identification data (such as patient names, addresses, birthdates, telephone numbers and social security numbers), but not including patient credit card, medical or clinical information. The company worked closely with federal law enforcement authorities in connection with their investigation and possible prosecution of those determined to be responsible for this attack. Mandiant has conducted a thorough investigation of this incident and continues to advise us regarding security and monitoring efforts. The company have provided appropriate notification to affected patients and regulatory agencies as required by federal and state law. The company have offered identity theft protection services to individuals affected by this attack. The company have incurred certain expenses to remediate and investigate the matter matter. In addition, multiple purported class action lawsuits have been filed against the company and certain subsidiaries. These lawsuits allege that sensitive information was unprotected and inadequately encrypted by the company. The plaintiffs claim breach of contract and other theories of recovery, and are seeking damages, as well as restitution for any identity theft. On February 4, 2015, the United States Judicial Panel on Multidistrict Litigation ordered the transfer of the purported class actions pending outside of the District Court for the Northern District of Alabama to the District Court for the Northern District of Alabama for coordinated or consolidated pretrial proceedings. A consolidated complaint was filed and the company filed a motion to dismiss on September 21, 2015, which was partially argued on February 10, 2016. In an oral ruling from the bench, the court greatly limited the potential class by ruling only plaintiffs with specific injury resulting from the breach had standing to sue. Further, on jurisdictional grounds, the court dismissed Community Health Systems, Inc. from all non-Tennessee based cases. Finally, the court set April 15, 2016 for further argument on whether the remaining plaintiffs have sufficiently stated a cause of action to continue their cases. On April 15, 2016 in an oral ruling from the bench, the court dismissed additional claims and following this oral ruling only eight of the forty plaintiffs remained with significant limitations imposed on their ability to assert claims for damages. These oral rulings were confirmed in a written order filed on September 12, 2016. On October 20, 2016, the plaintiffs filed a renewed motion for interlocutory appeal from the motion to dismiss ruling and on February 15, 2017 this motion was denied. Plaintiffs refiled their motion for permission to seek interlocutory appeal on March 15, 2017, and that motion was also denied. The company have settled these class action lawsuits subject to approval by the District Court. Community Health Systems, Inc. is one of the largest publicly traded hospital companies in the United States and a leading operator of general acute care hospitals and outpatient facilities in communities across the country. The company provide healthcare services through the hospitals that we own and operate and affiliated businesses in non-urban and selected urban markets throughout the United States. The company is based in Franklin, Tennessee. CONTINENTAL LABORATORIES: Tompkins Seeks OT Wages for Engineers --------------------------------------------------------------- MICHAEL TOMPKINS, individually and on behalf of all others similarly situated, the Plaintiff, vs. CONTINENTAL LABORATORIES, INC., the Defendant, Case 4:18-cv-04079 (S.D. Tex., Oct. 26. 2018), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act. According to the complaint, the Plaintiff worked for Defendant as a mud logger and mud engineer during the relevant statutory time period. The Plaintiff and the other workers like him were typically scheduled for 12 hour shifts, seven days a week, for weeks at a time. But these workers never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying by the hour and overtime as required by the FLSA, Defendant paid these workers a daily rate, the lawsuit says. The Defendant provides field personnel to operators and other oil field services companies to support mud logging operators.[BN] Attorneys for Plaintiff: Michael A. Josephson, Esq. Andrew Dunlap, Esq. JOSEPHSON D UNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com CONTINENTAL RESOURCES: Pays $45.8MM for Strack Settlement --------------------------------------------------------- Continental Resources, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the Company made payments totaling $45.8 million to satisfy the majority of its obligations under the settlement in the class action suit filed by Billy J. Strack and Daniela A. Renner In November 2010, a putative class action was filed in the District Court of Blaine County, Oklahoma by Billy J. Strack and Daniela A. Renner as trustees of certain named trusts and on behalf of other similarly situated parties against the Company. The Petition, as amended, alleged the Company improperly deducted post-production costs from royalties paid to plaintiffs and other royalty interest owners from crude oil and natural gas wells located in Oklahoma. The plaintiffs alleged a number of claims, including breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and other claims and sought recovery of compensatory damages, interest, punitive damages and attorney fees on behalf of the proposed class. The Company denied all allegations and denied that the case was properly brought as a class action. On June 11, 2015, the trial court certified a "hybrid" class requested by plaintiffs over the objections of the Company. The Company appealed the trial court's class certification order. On February 8, 2017, the Oklahoma Court of Civil Appeals reversed the trial court's ruling on certification and remanded the case for further proceedings. The plaintiffs filed a Petition for Rehearing which was denied by the Oklahoma Court of Civil Appeals. Plaintiffs then filed a Petition for Writ of Certiorari on May 23, 2017 to the Oklahoma Supreme Court, which was denied on October 2, 2017. On October 10, 2017, Plaintiffs filed with the trial court a "Second Amended and Renewed Motion for Class Action Certification and Request that the Court to Set a Briefing Schedule Related to Class Certification." During the litigation the Company was not able to estimate a reasonably possible loss or range of loss or what impact, if any, the ultimate resolution of the action would have on its financial condition, results of operations or cash flows due to the preliminary status of the matter, the complexity and number of legal and factual issues presented by the matter and uncertainties with respect to, among other things, the nature of the claims and defenses, the existence and the potential size of the class, the scope and types of the properties and agreements involved, the production years involved, and the ultimate potential outcome of the matter. The Company further disclosed that it was reasonably possible one or more events could occur in the near term that could impact the Company's ability to estimate the potential effect of this matter if any, on its financial condition, results of operations or cash flows. During the litigation the Company also disclosed plaintiffs alleged underpayments in excess of $200 million as damages, which may increase with the passage of time, a majority of which would be comprised of interest. After certification of the case as a class action was reversed the parties continued settlement negotiations. Due to the uncertainty of and burdens of litigation, on February 16, 2018, the Company reached a settlement in connection with this matter. Under the settlement, the Company initially expected to make payments and incur costs associated with the settlement of approximately $59.6 million. The Company accrued a loss for such amount at December 31, 2017, which was increased to $61.7 million at June 30, 2018 to reflect additional settlement obligations resulting from the passage of time. The accrued loss was subsequently reduced due to settlement payments made by the Company in the 2018 third quarter. On April 3, 2018, the District Court of Garfield County, Oklahoma preliminarily approved the settlement and set certain dates applicable to the settlement including the timing and content of Notice, Opt-out, and Objections to Class Members. The Fairness Hearing was held on June 11, 2018. On June 12, 2018, the court entered an order formally approving the settlement. The order approving the settlement is not subject to appeal. In the third quarter of 2018, the Company made payments totaling $45.8 million to satisfy the majority of its obligations under the settlement. The Company's remaining loss accrual for this matter totals $17.3 million at September 30, 2018, representing additional settlement obligations expected to be satisfied in 2019. The accrual for this matter is included in "Accrued liabilities and other" on the condensed consolidated balance sheets. Continental Resources, Inc. explores for, develops, and produces crude oil and natural gas properties in the north, south, and east regions of the United States. Continental Resources, Inc. was founded in 1967 and is based in Oklahoma City, Oklahoma. COOK COUNTY, IL: McFields et al. Seek to Certify Class ------------------------------------------------------ In the class action lawsuit captioned as Courtney McFields, et al., the Plaintiffs, vs. Sheriff of Cook County and Cook County, Illinois, the Defendants, Case No. 1:17-cv-07424 (N.D. Ill.), the Plaintiffs move the Court to order that this case may proceed as a class action under Fed.R.Civ.P. Rule 23(b)(3) for: "all persons who, while detained at the Cook County Jail between November 1, 2013 and April 30, 2018, submitted a written "Health Service Request Form" complaining of dental pain and did not re-ceive a face-to-face assessment by a registered nurse or higher level practitioner after submitting the request."[CC] Attorneys for Plaintiffs: Kenneth N. Flaxman, Esq. Joel A. Flaxman, Esq. KENNETH FLAXMAN LAW OFFICES 200 S Michigan Ave, Ste 201 Chicago, IL 60604 Telephone: (312) 427-3200 E-mail: knf@kenlaw.com Attorneys for Defendants: Mr. Robert F. Kunkel, Esq. SANCHEZ, DANIELS & HOFFMAN, LLP, by 333 West Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 641-1555 E-mail: rkunkel@sanchezdh.com - and - Mr. Brian P. Gainer, Esq. Ms. Monica Gutowski, Esq. JOHNSON & BELL, LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: gainerb@jbltd.com gutowskim@jbltd.com CORECIVIC INC: Court Resolves Discovery Dispute No. 1 in Owino Suit ------------------------------------------------------------------- In the case, SYLVESTER OWINO, JONATHAN GOMEZ, on behalf of themselves, and all other similarly situated, Plaintiff, v. CORECIVIC, INC., a Maryland corporation, Defendant, Case No. 3:17-cv-1112-JLS-NLS (S.D. Cal.), Judge Nita L. Stormes of the U.S. District Court for the Southern District of California granted in part and denied in part the Plaintiffs' motion to set production deadlines. Before the Court is the parties' Joint Motion for Determination of Discovery Dispute No. 1. The case presents a putative class action regarding the Defendant's use of civil immigration detainees for labor at their facilities, either unpaid entirely or underpaid in the "one dollar a day" program. In sum, there are three proposed classes, (1) the Nationwide Forced Labor class, consisting of all detainees who performed unpaid work at any Corecivic facility; (2) the California Forced Labor class, identical to the nationwide class, but limited to the state of California; and (3) the California Labor Law class, for those who participated in the "one dollar a day" program and so were underpaid for labor. Discovery is currently in progress and pursuant to the Scheduling Order, the close of class discovery is March 15, 2019. The Plaintiffs' deadline to file their motion for class certification is April 15, 2019. They propounded requests for production of documents, to which the Defendant responded and has since produced various documents and spreadsheets of relevant data. The present discovery dispute arises not over the content of any specific requests for production, but instead, the timing for production of documents by the Defendant. The Plaintiffs are primarily concerned that production at the current rate may not provide enough time for review and subsequent depositions within the time allotted by the Scheduling Order for completion of class discovery. The Plaintiffs request the Court set interim deadlines for production to ensure sufficient time for review and depositions. The Defendant argues in response that many documents and spreadsheets of the relevant information have been, and continue to be, produced, and the timeline proposed by the Plaintiffs would impose an undue burden in light of the volume of documents and number of facilities involved in the process. The Defendant also indicates that some of the records sought may not exist because the nature of the work involved (e.g., time records for members of the forced labor classes who participated in cleaning of common areas as part of their daily duties as detainees) and is concerned that the Plaintiffs appear not to have reviewed the contents of produced documents thus far to determine whether the information provided is adequate. The Plaintiffs present their motion as having four issues: (1) a deadline for production of documents related to establishing the class; (2) a deadline for production of documents reflecting policies and procedures; (3) a deadline for all remaining document production; and (4) an extension to submit a discovery dispute related to ESI. The Defendant agrees that the first three issues are in dispute, and agrees with the requested extension for ESI. But, the Defendant also requests in the introductory section of the joint motion that the Court establish "relevant time periods" based on the statutes of limitations for the various claims alleged in the complaint, and limit production accordingly. The Plaintiffs reply that the claims all arise from the same unlawful practices and that the motion to dismiss establishes the relevant time frame. Judge Stormes declines to opine on the relevant time periods because the Defendant has not pointed to any specific request in dispute for which definition of the relevant time period is necessary. He says he cannot offer advisory opinions. If the Defendant wished to challenge the scope of production, it was required to identify a problematic request, show that Defendant included an objection in its response and/or seek a protective order as part of this discovery dispute. The Judge finds that a blanket request to limit the scope of production without identifying a specific request(s) in dispute fails to identify a dispute that the Court can reasonably adjudicate. He therefore denied the Defendant's request in this regard. The Judge granted in part and denied in part the Plaintiffs' motion to set production deadlines. He directed the Defendant to produce, by Nov. 9, 2018, documents sufficient to establish the members of the class, i.e., (1) the names of the detainees that performed compensated or uncompensated work at the Defendant's California facilities from Jan. 1, 2006 to the present and (2) the names of the detainees that performed compensated or uncompensated work at Defendant's facilities outside of California from Dec. 23, 2008 to the present. The Defendant must produce documents or supplement its responses to the requests for production appropriately to state, via declaration under oath, that no such documents exist, by Jan. 15, 2018. The Judge set a deadline for production of the policies and procedures of Jan. 15, 2019. This date ensures 60 days for the Plaintiff to continue with discovery, and is 90 days prior to the deadline for class certification. He strongly encouraged the Plaintiffs to review the tables of contents produced and that the parties continue to meet and confer regarding the appropriate production. Though he finds it appropriate to direct that the Defendants continue their diligent efforts and that all remaining document production continue on a rolling basis with haste, the Judge did not impose a hard and fast deadline beyond the present March 15, 2018 close of class discovery. Finally, the Judge granted the parties' joint request for a 45 day extension of time to submit a discovery dispute regarding ESI production, custodians, and search terms. He finds that they represent they continue to meet and confer, and the Defendant indicates that a list of proposed custodians and search terms has been provided. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/upSeH4 from Leagle.com. Sylvester Owino, on behalf of themselves, and all others similarly situated & Jonathan Gomez, on behalf of themselves, and all others similarly situated, Plaintiffs, represented by Geoffrey M. Raux , Foley & Lardner LLP, pro hac vice, Robert L. Teel -- lawoffice@rlteel.com -- Law Office of Robert L. Teel, Eileen Regina Ridley -- eridley@foley.com -- Foley and Lardner LLP, J. Mark Waxman -- mwaxman@foley.com -- Foley & Lardner LLP & Nicholas J. Fox -- nfox@foley.com -- Foley & Lardner, LLP. CoreCivic, Inc., a Maryland corporation, Defendant, represented by Ashlee Beth Fletcher -- ahesman@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice, Daniel P. Struck -- dstruck@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice, Nicholas D. Acedo -- nacedo@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice & Rachel Love -- rlove@strucklove.com -- Struck Love Bojanowski & Acedo, PLC, pro hac vice. CoreCivic, Inc., a Maryland corporation, Counter Claimant, represented by Ashlee Beth Fletcher, Struck Love Bojanowski & Acedo, PLC, pro hac vice, Daniel P. Struck, Struck Love Bojanowski & Acedo, PLC, Ethan H. Nelson, Law Office of Ethan H. Nelson, Jacob Brady Lee, Struck Love Bojanowski & Acedo, PLC, Nicholas D. Acedo, Struck Love Bojanowski & Acedo, PLC, Rachel Love, Struck Love Bojanowski & Acedo, PLC & Ashlee Beth Fletcher, Struck Love Bojanowski & Acedo, PLC. Jonathan Gomez, on behalf of themselves, and all others similarly situated & Sylvester Owino, on behalf of themselves, and all others similarly situated, Counter Defendants, represented by Geoffrey M. Raux, Foley & Lardner LLP, pro hac vice, Robert L. Teel, Law Office of Robert L. Teel, Eileen Regina Ridley, Foley and Lardner LLP, J. Mark Waxman, Foley & Lardner LLP, Nicholas J. Fox, Foley & Lardner, LLP, Geoffrey M. Raux, Foley & Lardner LLP & Alan R. Ouellete, Foley & Lardner LLP. CRESCENT CONSULTING: Carrillo Seeks to Certify Class ---------------------------------------------------- LUIS CARRILLO, individually and on behalf of all others similarly situated, the Plaintiff, vs. CRESCENT CONSULTING, LLC, the Defendant, Case No. 5:18-cv-00541-XR (W.D. Tex.), the Plaintiff asks the Court to conditionally certify and send Court-approved notice to the Putative Class Members: "all day rate wellsite personnel who worked as consultants for Crescent Consulting, LLC any time during the past 3 years (the "Putative Class Members")". Like many other FLSA collective actions involving misclassified oil and gas independent contractors, Mr. Carrillo worked overtime for Defendant Crescent Consulting, LLC but was paid a day rate -- not a salary or overtime pay. Crescent's failure to meet the salary basis requirement of the white-collar exemptions or pay overtime is a clear violation of the FLSA. It is also the basis of the underlying claim common between all day rate independent contractors (sometimes called Company Men, Wellsite Supervisors, Drilling Consultants, Drill Site Managers, Completions Consultants, or Rig Supervisors) working for Crescent over the past three years.[CC] Attorneys for Plaintiff: Michael A. Josephson, Esq. Richard M. Schreiber, Esq. Andrew Dunlap, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, Texas 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: mjosephson@mybackwages.com rschreiber@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com CVS HEALTH: ERISA Sec. 406 Claims in EpiPen Suit Thrown Out ----------------------------------------------------------- In the case, In re: EpiPen ERISA Litigation, Civ. No. 17-1884 (PAM/HB) (D. Minn.), Judge Paula A. Magnuson of the U.S. District Court for the District of Minnesota granted in part and denied in part the Defendants' Motions to Dismiss. The individual Plaintiffs in these consolidated putative class actions are participants in health insurance plans that are subject to the requirements of the Employee Retirement Income Security Act ("ERISA"). They allege that they or their dependents require EpiPens, a prescription medication, to manage serious allergic reactions. According to the Plaintiffs, in 2007 the list price for a pack of two EpiPens was less than $100. That year, however, Mylan Pharmaceuticals, Inc. and its related entities, Mylan N.V. and Mylan Specialty L.P., acquired the exclusive rights to market and distribute EpiPens. In the intervening decade, the price for two EpiPens has soared to more than $600. According to the Plaintiffs, because of the high deductibles of their health-insurance plans as well as the conduct they complain about in the lawsuit, they are often forced to pay nearly the entire list price for EpiPens. Defendants CVS Health Corporation, CaremarkPCS Health L.L.C, Caremark L.L.C., Caremark Rx L.L.C., Express Scripts Holding Company, Express Scripts, Inc., Medco Health Solutions, Inc., UnitedHealthGroup, Inc., UnitedHealthcare Services, Inc., Optum, Inc., Optum Rx Holdings, LLC, OptumRx, Inc. and Prime Therapeutics, LLC are pharmacy benefit managers ("PBMs"). PBMs are "middlemen" in the prescription-drug-benefit market. They develop and maintain lists of drugs, known as formularies, from which participants in a health-insurance plan must choose for their pharmaceutical needs. They also negotiate with drug manufacturers and distributors for volume discounts and rebates in exchange for inclusion and preferential placement of the drug on formularies, and exclusion of competitor's drugs from formularies. According to the Plaintiffs, the Defendants control more than 80% of the prescription-drug-benefit market and possess the market power of more than 200 million Americans. The Plaintiffs allege that the Defendants' negotiations with Mylan caused Mylan to raise the price of EpiPens, while the Defendants pocketed millions of dollars in rebates and other payments. Because the price Mylan charges for EpiPens directly affects the amount a plan's beneficiaries pay for the EpiPens, Mylan's price increases raised the Plaintiffs' out-of-pocket costs dramatically. The Plaintiffs assert that the Defendants breached their fiduciary duties under ERISA Section 404(a), and engaged in fiduciary self-dealing in violation of ERISA Section 406(b). The Defendants seek dismissal of the Complaint under Rule 12(b)(1), arguing that the Plaintiffs cannot establish that their injuries are traceable to the Defendants' conduct, nor are their injuries redressable by the injunctive relief they seek, and thus the Plaintiffs lack standing to pursue their claims. In the alternative, the Defendants contend that the Plaintiffs have failed to state any claims on which relief can be granted under Rule 12(b)(6) because the PBMs are not ERISA fiduciaries. Judge Magnuson finds that the Plaintiffs have plausibly alleged that they suffered an injury that is redressable by the relief they seek. They have also plausibly pleaded their fiduciary-duty claim under ERISA Section 404 but have not done so under Section 406. Accordingly, she granted in part and denied in part the Defendants' Motion to Dismiss. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum and Order is available at https://is.gd/3K0awv from Leagle.com Elan Klein, and all others similarly situated, Adam Klein, and all others similarly situated & Leah Weaver, and all others similarly situated, Plaintiffs, represented by Anthony F. Maul -- AFMAUL@MAULFIRM.COM -- The Maul Firm PC, pro hac vice, Arielle Wagner -- aswagner@locklaw.com -- Lockridge Grindal Nauen Pllp, Cari C. Laufenberg -- claufenberg@KellerRohrback.com -- Keller Rohrback LLP, David W. Asp -- dwasp@locklaw.com -- Lockridge Grindal Nauen PLLP, Gretchen S. Obrist -- gobrist@KellerRohrback.com -- Keller Rohrback LLP, Justin N. Saif -- jsaif@bermantabacco.com -- Berman Tabacco, pro hac vice, Karen Hanson Riebel -- khriebel@locklaw.com -- Lockridge Grindal Nauen PLLP, Kate M. Baxter-Kauf -- kmbaxter-kauf@locklaw.com -- Lockridge Grindal Nauen PLLP, Kathleen M. Donovan-Maher , Berman Tabacco, pro hac vice, Marc Jeffrey Greenspon -- mgreenspon@bermantabacco.com -- Berman Devalerio, pro hac vice, Matthew Michael Gerend -- mgerend@KellerRohrback.com -- Keller Rohrback LLP, pro hac vice, Patrick Thomas Egan -- pegan@bermantabacco.com -- Berman Tabacco, pro hac vice & Steven L. Groopman -- sgroopman@bermantabacco.com -- Berman Tabacco, pro hac vice. Susan Illis, and all others similarly situated, Plaintiff, represented by Anthony F. Maul, The Maul Firm PC, pro hac vice, Arielle Wagner, Lockridge Grindal Nauen Pllp, Cari C. Laufenberg, Keller Rohrback LLP, Christopher Heffelfinger, Berman Tabacco, pro hac vice, David W. Asp, Lockridge Grindal Nauen PLLP, Gretchen S. Obrist, Keller Rohrback LLP, Justin N. Saif, Berman Tabacco, pro hac vice, Karen Hanson Riebel, Lockridge Grindal Nauen PLLP, Kate M. Baxter-Kauf, Lockridge Grindal Nauen PLLP, Kathleen M. Donovan-Maher, Berman Tabacco, pro hac vice, Matthew Michael Gerend, Keller Rohrback LLP, pro hac vice, Patrick Thomas Egan, Berman Tabacco, pro hac vice & Steven L. Groopman, Berman Tabacco, pro hac vice. Amy M. Khan, Plaintiff, represented by Cari C. Laufenberg, Keller Rohrback LLP, Gretchen S. Obrist, Keller Rohrback LLP & Kate M. Baxter-Kauf, Lockridge Grindal Nauen PLLP. Prime Therapeutics, LLC, Defendant, represented by Andrew B. Brantingham, Dorsey & Whitney LLP, Jaime Stilson , Dorsey & Whitney LLP, Nicholas J. Bullard , Dorsey & Whitney LLP, Paul W. Heiring, Dorsey & Whitney LLP, Stephen P. Lucke , Dorsey & Whitney LLP & William R. Stoeri , Dorsey & Whitney LLP. Express Scripts, Inc., Medco Health Solutions, Inc. & Express Scripts Holding Company, Defendants, represented by Andrew S. Corkhill , Quinn Emanuel Urquhart & Sullivan LLP, pro hac vice, Donald G. Heeman , Felhaber Larson, Eric G. Serron , Steptoe & Johnson LLP, pro hac vice, Jessica J. Nelson , Felhaber Larson, Jonathan Gordon Cooper , Quinn Emanuel Urquhart & Sullivan LLP, pro hac vice, Michael John Lyle , Quinn Emanuel Urquhart & Sullivan, pro hac vice & Paul J. Ondrasik, Jr. , Steptoe & Johnson LLP, pro hac vice. CVS Health Corporation, Defendant, represented by Daniel M. Dockery -- ddockery@wc.com -- Williams & Connolly, LLP, pro hac vice, Enu A. Mainigi -- emainigi@wc.com -- Williams & Connolly LLP, pro hac vice, Isaac B. Hall -- isaac.hall@FaegreBD.com -- Paul E. Boehm -- pboehm@wc.com -- pro hac vice, Richmond Turner Moore -- rtmoore@wc.com -- Williams & Connolly LLP, pro hac vice & Steven L. Severson -- steven.severson@FaegreBD.com -- Faegre Baker Daniels LLP. Caremark, L.L.C., Caremark Rx, L.L.C. & CaremarkPCS Health, L.L.C., Defendants, represented by Daniel M. Dockery, Williams & Connolly, LLP, pro hac vice, Enu A. Mainig, Williams & Connolly LLP, pro hac vice, Isaac B. Hall, Paul E. Boehm, pro hac vice & Steven L. Severson, Faegre Baker Daniels LLP. United HealthCare Services, Inc. & UnitedHealth Group Incorporated, Defendants, represented by Donald T. Campbell -- donald.campbell@stinson.com -- Stinson Leonard Street LLP & Kadee Jo Anderson -- kadee.anderson@stinson.com -- Stinson Leonard Street LLP. Optum, Inc., OptumRx Holdings, L.L.C. & OptumRx, Inc., Defendants, represented by Brian David Boone, Alston & Bird LLP, pro hac vice, Donald T. Campbell, Stinson Leonard Street LLP, Elizabeth Broadway Brown, Alston & Bird LLP, pro hac vice, Jordan Elise Edwards, Alston & Bird LLP, pro hac vice, Kadee Jo Anderson, Stinson Leonard Street LLP & William Herman Jordan, Alston & Bird LLP, pro hac vice. UnitedHealth Group, Inc., Defendant, represented by Brian David Boone, Alston & Bird LLP, pro hac vice, Donald T. Campbell, Stinson Leonard Street LLP, Elizabeth Broadway Brown, Alston & Bird LLP, pro hac vice, Emily C. McGowan , Alston & Bird LLP, Jordan Elise Edwards, Alston & Bird LLP, pro hac vice, Kadee Jo Anderson, Stinson Leonard Street LLP & William Herman Jordan, Alston & Bird LLP, pro hac vice. Traci Brannon, Lindsey Rizzo & Jamie Herr, Movants, represented by Carolyn G. Anderson, Zimmerman Reed, PLLP, Charles S. Zimmerman, Zimmerman Reed, LLP, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback LLP, pro hac vice, Paul J. Geller, Robbins Geller Rudman & Dowd LLP, pro hac vice, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, P.A., pro hac vice, Warren T. Burns -- wburns@burnscharest.com -- Burns Charest LLP, pro hac vice & William Mark Lanier -- WML@LanierLawFirm.com -- The Lanier Law Firm, PLLC, pro hac vice. DTE ENERGY: Misrepresented Retirement Pension Plan, Nolan Claims ---------------------------------------------------------------- Leslie D. Nolan, individually and on behalf of all others similarly situated, the Plaintiff, vs. The Detroit Edison Company; DTE Energy Corporate Services LLC, an Affiliated Company of the Detroit Edison Company; DTE Energy Company Retirement Plan; DTE Energy Benefit Plan Administration Committee; Janet Posler, as Designated Representative for DTE Energy Benefit Plan Administration Committee; Qualified Plan Appeals Committee [Michael S. Cooper, Renee Moran, Jerome Hooper], the Defendants, Case 2:18-cv-13359-AJT-SDD (E.D. Mich., Oct. 26, 2018), seeks to recover for herself and all other similarly situated persons who elected to transfer to the Cash Balance Plan (i.e., "the Class Members"), the greater of: (i) the pension benefits DTE promised under the A+B Benefit Promise; that is, (A) the "frozen protected" pension benefit earned under the Traditional Plan before the transfer plus (B) the pension benefit earned under the Cash Balance Plan after the transfer; and (ii) the pension payable if they had remained in the Traditional Plan (i.e., not elected to transfer to the Cash Balance Plan), less any amount Nolan and the Class Members actually received. According to the complaint, the case is about broken promises, misrepresentations, and material omissions on the part of Defendants that induced an election on the part of Nolan and other similarly situated persons that substantially reduced their pension benefit payable upon retirement. During a two-month window in the Spring of 2002, DTE invited employees who participated in its "traditional" pension plan ("the Traditional Plan") -- a plan that computed the pension as a percentage-of-pay times years of service -- to transfer to its new "cash balance" pension plan ("Cash Balance Plan") -- a plan that computed the pension by reference to a hypothetical account to which the Plan added hypothetical Interest Credits and Contribution Credits. In connection with its invitation, DTE promised its employees that if they elected to transfer to the Cash Balance Plan they would receive (A) the "frozen and protected" pension benefit they earned under the Traditional Plan before the transfer, plus (B) the benefit they would earn thereafter under the Cash Balance Plan ("the A+B Benefit Promise"). DTE expressed the A+B Benefit Promise in both the 2001 Plan and a Retirement Choice Decision Guide DTE distributed to employees invited to transfer to the Cash Balance Plan. Under the A+B Benefit Promise, if a Participant earned (A) a $600 monthly annuity under the Traditional Plan before transferring to the Cash Balance Plan, and (B) a $500 monthly annuity thereafter under the Cash Balance Plan, the Participant would be entitled to a pension benefit at retirement equal to $1,100/month. When Participants retired, however, DTE ignored its covenant to compute their pension benefits in accordance with the A+B Benefit Promise. Instead, DTE used a "larger of" methodology whereby it compared the pension the Participant earned under the Traditional Plan before the transfer to the pension the Participant earned under the Cash Balance Plan after the transfer, and paid the Participant only the "larger of" the two amounts. DTE's "larger of" methodology deprives Participants of pension benefits they earned and are entitled to receive under the A+B Benefit Promise. Under DTE's "larger of" methodology, all Class members experienced a significant reduction in the rate of future benefit accrual after they transferred to the Cash Balance Plan with some accruing no new pension benefits for a period of time after the transfer (i.e., a zero rate of benefit accrual for that period). However, no Class member was ever provided with a notice that DTE intended to use a "larger of" methodology to compute their pension at retirement, much less an explanation of the adverse impact that methodology would have on their future pension accruals and ultimate pension amount. DTE's failure to provide such notice to the DTE employees offered the Cash Balance choice was "egregious" because, at the time, DTE was both the plan Sponsor and Plan Administrator and was empowered to designate the person or entity to act as the Plan Administrator and deliver the Employee Retirement Income Security Act of 1974 section 204(h) Notice. See 2001, the lawsuit says. Ms. Nolan worked for DTE for 38 years, from December 17, 1979 until December 1, 2017, the date she retired. She last worked for DTE as a Financial Analyst. DTE Energy is a Detroit-based diversified energy company involved in the development and management of energy-related businesses and services nationwide. Attorneys for Leslie Nolan and all others similarly situated: Eva T. Cantarella, Esq. Bradley J. Schram, Esq. Robert P. Geller, Esq. Patricia A. Stamler, Esq. HERTZ SCHRAM PC 1760 S. Telegraph Rd. Bloomfield Hills, MI 48302 Telephone: 248 335-5000 Facsimile: 248 335-3346 E-mail: ecantarella@hertzschram.com EARTHSTONE ENERGY: Dismissal of Olenik Suit under Appeal -------------------------------------------------------- Earthstone Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 7, 2018, for the quarterly period ended September 30, 2018, that the plaintiff in Olenik v. Lodzinksi et al., has filed an appeal with the Delaware Supreme Court from the decision of the Delaware Court of Chancery granting the defendants' motion to dismiss the case. On June 2, 2017, Nicholas Olenik filed a purported shareholder class and derivative action in the Delaware Court of Chancery against Earthstone's Chief Executive Officer, along with other members of the Board, EnCap, Bold, Bold Holdings and OVR. The complaint alleges that Earthstone's directors breached their fiduciary duties in connection with the Bold Contribution Agreement. The Plaintiff asserts that the directors negotiated the Bold Transaction to benefit EnCap and its affiliates, failed to obtain adequate consideration for the Earthstone shareholders who were not affiliated with EnCap or Earthstone management, did not follow an adequate process in negotiating and approving the Bold Transaction and made materially misleading or incomplete proxy disclosures in connection with the Bold Transaction. The suit seeks unspecified damages and purports to assert claims derivatively on behalf of Earthstone and as a class action on behalf of all persons who held Common Stock up to March 13, 2017, excluding defendants and their affiliates. On July 20, 2018, the Delaware Court of Chancery granted the defendants' motion to dismiss and entered an order dismissing the action in its entirety with prejudice. The Plaintiff filed an appeal with the Delaware Supreme Court. Earthstone and each of the other defendants believe the claims are entirely without merit and they intend to mount a vigorous defense. The ultimate outcome of this suit is uncertain, and while Earthstone is confident in its position, any potential monetary recovery or loss to Earthstone cannot be estimated at this time. Earthstone Energy, Inc., an oil and natural gas development and production company, operates in the up-stream segment of the oil and natural gas industry in the United States. Its asset portfolio includes the Midland Basin of west Texas and the Eagle Ford trend of south Texas. Earthstone Energy, Inc. was founded in 1969 and is headquartered in The Woodlands, Texas. EMILIO PUCCI: Olsen Files ADA Suit in S.D.N.Y. ---------------------------------------------- A class action lawsuit has been filed against Emilio Pucci, LTD. The case is styled as Thomas J. Olsen individually and on behalf of all other persons similarly situated, Plaintiff v. Emilio Pucci, LTD., Defendant, Case No. 1:18-cv-10585 (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 Moët Hennessy Louis Vuitton S.E.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com ENGILITY HOLDINGS: Wolf Balks at Merger Deal with SAIC ------------------------------------------------------ The case, JACK WOLF, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, vs. ENGILITY HOLDINGS, INC., JOHN BARTER, STEVEN A. DENNING, LYNN A. DUGLE, DAVID M. KERKO, PETER A. MARINO, KATHARINA MCFARLAND, DARYLL J. PINES, ANTHONY PRINCIPI, CHARLES S. REAM, DAVID A. SAVNER, WILLIAM G. TOBIN, DAVID TOPPER, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, and RAPTORS MERGER SUB, INC., the Defendants, Case No. 1:18-cv-01751-UNA (D. Del., Nov. 6, 2018), stems from a proposed transaction announced on September 10, 2018, pursuant to which Engility Holdings, Inc. will be acquired by Science Applications International Corporation and Raptors Merger Sub, Inc. On September 9, 2018, Engility's Board of Directors caused the Company to enter into an agreement and plan of merger with SAIC. Pursuant to the terms of the Merger Agreement, Engility's stockholders will receive 0.450 shares of Parent common stock for each share of Engility they own. On October 18, 2018, defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading, the lawsuit says.[BN] Attorneys for Plaintiff: Timothy J. MacFall, Esq. Seth D. Rigrodsky, Esq. Timothy J. MacFall, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 825 East Gate Boulevard, Suite 300 Garden City, NY 11530 Telephone: (516) 683-3516 E-mail: sdr@rl-legal.com tjm@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 E-mail: rm@maniskas.com FIDELITY NATIONAL: Garey Files ADA Suit in New York --------------------------------------------------- A class action lawsuit has been filed against Fidelity National Financial, Inc. The case is styled as Kevin Garey on behalf of himself and all others similarly situated, Plaintiff v. Fidelity National Financial, Inc., Defendant, Case No. 1:18-cv-10577 (S.D. N.Y., Nov. 13, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Fidelity National Financial, Inc., together with its subsidiaries, provides title insurance, technology, and transaction services to the real estate and mortgage industries in the United States.[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 FIRST ALARM: Faces Nessim Suit in Sacramento, Califorina -------------------------------------------------------- An employment-related class action lawsuit has been filed against First Alarm Security & Patrol Inc. The case is captioned as Carol Nessim, individually and on behalf of all others similarly situated, Plaintiff v. First Alarm Security & Patrol Inc., and Does 1 to 100, Defendants, Case No. 34-2018-00243370-CU-OE-GDS (Cal. Super., Sacramento Cty., Oct. 26, 2018). First Alarm Security & Patrol, Inc. provides professional security and patrol services to commercial and industrial facilities in California. The company was founded in 1966 and is based in Aptos, California. [BN] The Plaintiff is represented by Galen T Shimoda, Esq. FIRST CITIZENS: Virzi et al. Suit Moved to D. South Carolina ------------------------------------------------------------ Michael Virzi and Natasha A. Brenchak, individually and on behalf of all other similarly situated, the Plaintiffs, vs. First Citizens Bank of South Carolina, a wholly owned subsidiary of First Citizens Bancshares Inc., the Defendant, Case No. 2018-CP-40-05022, was removed from the Court of Common Pleas Richland County, to the U.S. District Court for the District of South Carolina (Columbia) on Oct. 26, 2018. The District of South Carolina Court Clerk assigned Case No.: 3:18-cv-02902-TLW to the proceeding. The suit alleges consumer credit violation. The case is assigned to the Hon. Judge Terry L Wooten. First Citizens provides full range of banking products and services.[BN] Attorneys for Plaintiffs: David Andrew Maxfield, Esq. DAVID MAXFIELD ATTORNEY LLC PO Box 11865 Columbia, SC 29211 Telephone: (803) 509-6800 Facsimile: (855) 299-1656 E-mail: dave@consumerlawsc.com Attorneys for Defendant: Emily Irene Bridges, Esq. Michael Kevin McCarrell, Esq. SMITH MOORE LEATHERWOOD LLP 2 West Washington Street, Suite 1100 Greenville, SC 29601 Telephone: (864) 751-7618 E-mail: emily.bridges@smithmoorelaw.com kevin.mccarrell@smithmoorelaw.com FORD MOTOR: Court Narrows Claims in Baranco Suit ------------------------------------------------ In the case, DAVID BARANCO, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant, Case No. 17-cv-03580-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted in part and denied in part Ford's partial motion to dismiss three specific counts in the Plaintiffs' Third Amended Complaint: (1) Plaintiff James Abbitt's breach of implied warranty claim under North Carolina law; (2) Plaintiff April Nicolo's New Jersey Consumer Fraud Act ("NJCFA") claims; and (3) Plaintiff Gary Dicken's Ohio Consumer Protection Sales Practice Act ("OCPSA") claim. The Plaintiffs allege that Defendant Ford manufactured vehicles with defective door latch mechanisms that cause sensors to falsely indicate that a door is open when it is in fact closed, posing a variety of safety risks. They assert causes of action for breach of implied warranty and under consumer protection laws for failure to disclose a material defect. The Plaintiffs allege that Ford knew about the defect. They suggest that Ford intentionally used a less expensive temporary fix during the warranty period in order to shift the cost of repairing the underlying defect onto consumers once their warranties expire. The Plaintiffs filed their First Amended Complaint in August 2017, and Ford moved to dismiss in October 2017. On March 12, 2018, the Court issued an order granting in part and denying in part Ford's motion. The Plaintiffs filed a Second Amended Complaint in April 2018. The parties then stipulated that the Plaintiffs would file a TAC without Ford responding to the Second Amended Complaint. The TAC, filed on May 31, 2018, added four new named Plaintiffs (Nicolo, Dicken, Greg Garat, and John Hannah). The TAC brings claims for violations of the consumer protection laws of the respective states where the Plaintiffs purchased their vehicles as well as breach of the implied warranty of merchantability. Ford moves to dismiss three counts in the TAC: (1) Abbitt's breach of implied warranty claim under North Carolina law; (2) Nicolo's NJCFA claims; and (3) Dicken's OCPSA. As to Plaintiff Abbitt's implied warranty claim, Judge Chen finds that Abbitt's claim satisfies all three relation-back requirements and is therefore not barred by the statute of limitations. Ford has not identified any unfair prejudice it would suffer from the addition of Abbitt's claim, and there is an identity of interests between Abbitt and Baranco. Therefore, Ford's motion to dismiss Abbitt's implied warranty claim is denied. As to Plaintiff Nicolo's NJCFA claims, in light of the broad legislative intent evident from the language and policy goals of the CFA, and in keeping with New Jersey courts' instruction that the Act should be construed liberally in favor of consumers, the Judge finds that the Plaintiffs' allegations that Ford's failure to disclose the "door ajar" defect poses risks to their safety are sufficient to state a claim under the NJCFA. Accordingly, Ford's motion to dismiss the Plaintiffs' NJCFA claims is denied. Finally, as to Plaintiff Dicken's OCSPA claim, the Judge holds that because Dicken cannot establish an OSCPA violation by Ford within the two years before he joined the suit, his OCSPA claim is dimsmissed with prejudice. An affirmative misrepresentation is actionable post-sale, but omissions/failures to disclose are only actionable up until the point of sale. In addition, the Plaintiffs point to a number of cases cited in their TAC purportedly holding that actions substantially similar to those attributed to Ford here violated the OCSPA. Upon review, the Judge finds that most of these cases do not involve violations "substantially similar" to Ford's alleged conduct to the extent that Ford can be deemed to have been put on notice that it was acting unlawfully. For these reasons, Judge Chen Ford's motion to dismiss is (i) denied as to Plaintiff Abbitt's implied warranty claim; (ii) denied as to Plaintiff Nicolo's NJCFA claims; and (iii) granted as to Plaintiff Dicken's OCSPA claim, with leave to amend to substitute in a new Named Plaintiff for the putative Ohio class. The order disposes of Docket No. 110. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/N8gZjU from Leagle.com. David Baranco, individually and on behalf of all others similarly situated, Plaintiff, represented by Ben Barnow, Barnow and Associates, P.C., pro hac vice,Erich Paul Schork, Barnow and Associates, P.C., pro hac vice, Courtney L. Davenport -- courtney@thedavenportlawfirm.com -- The Davenport Law Firm LLC, pro hac vice, David Christopher Wright -- dcw@mccunewright.com -- McCune Wright Arevalo, LLP, Leslie E. Hurst -- lhurst@bholaw.com -- Blood Hurst & O'Reardon LLP, Matthew David Schelkopf -- mds@mccunewright.com -- McCuneWright LLP, pro hac vice, Richard Lyle Coffman -- rcoffman@coffmanlawfirm.com -- The Coffman Law Firm, pro hac vice & Timothy G. Blood -- tblood@bholaw.com -- Blood Hurst & O'Rearden, LLC. Malisa Nicolau, individually and on behalf of all others similarly situated, James Abbitt, individually and on behalf of all others similarly situated, Daniel Caron, individually and on behalf of all others similarly situated, Gary Kubber, individually and on behalf of all others similarly situated, Anita Farrell, individually and on behalf of all others similarly situated, Harriet Abruscato, individually and on behalf of all others similarly situated, Donald Brown, individually and on behalf of all others similarly situated & John Furno, individually and on behalf of all others similarly situated, Plaintiffs, represented by Ben Barnow, Barnow and Associates, P.C., pro hac vice, Erich Paul Schork, Barnow and Associates, P.C., pro hac vice, Leslie E. Hurst, Blood Hurst & O'Reardon LLP, Courtney L. Davenport, The Davenport Law Firm LLC, pro hac vice, David Christopher Wright, McCune Wright Arevalo, LLP, Matthew David Schelkopf, McCuneWright LLP, pro hac vice & Timothy G. Blood, Blood Hurst & O'Reardon, LLP. April Nicolo, individually and on behalf of all others similarly situated, John Hannah, individually and on behalf of all others similarly situated, Gary Dicken, individually and on behalf of all others similarly situated & Greg Garat, individually and on behalf of all others similarly situated, Plaintiffs, represented by Leslie E. Hurst, Blood Hurst & O'Reardon LLP & Timothy G. Blood, Blood Hurst & O'Reardon, LLP. Ford Motor Company, a Delaware corporation, Defendant, represented by Tamara Alicia Bush -- tbush@dykema.com -- Dykema Gossett LLP, David Matthew George -- dgeorge@dykema.com -- Dykema Gossett PLLC, John Mark Thomas -- jthomas@dykema.com -- Dykema Gossett PLLC & Sherry Ann Rozell, McAfee and Taft, pro hac vice. FOREVER 21: Court Dismisses Patterson TCCWNA Suit Without Prejudice ------------------------------------------------------------------- In the case, TIFANY PATTERSON, Plaintiff, v. FOREVER 21, INC., Defendant, Civil Action No. 16-05087 (MAS) (TJB) (D. N.J.), Judge Michael A. Shipp of the U.S. District Court for the District of New Jersey (i) dismissed the Plaintiff's Complaint without prejudice, and (ii) denied as moot the Defendant's Motion to Dismiss and to Strike. On April 4, 2016, the Plaintiff purchased a necklace and a pair of sunglasses from the Defendant's website, www.forever21.com. The Defendant markets a variety of women's apparel throughout the State of New Jersey via its website. The Plaintiff alleges that the Defendant imposed unfair, one sided provisions in its Terms and Conditions in violation of certain statutory and common law standards and New Jersey's Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"). Specifically, she asserts that the "Disclaimer" and "Indemnification" provisions within the "Terms and Conditions" posted on the Defendant's website unlawfully bind consumers and therefore violate the TCCWNA. The Plaintiff also contends that the T&C Provisions violate common law and various Federal Regulatory Standards because it purports to absolve the Defendant of its duty as a business to protect consumers from the illegal acts of third parties. She alleges that the "Terms & Conditions" violate the New Jersey Punitive Damages Act ("NJPDA") because it purports to bar her from seeking punitive damages for any and all harm caused by the Defendant and because it purports to absolve the Defendant of its legal obligation to refrain from maliciously and/or wantonly and/or willfully creating an unreasonable risk of harm to consumers. The Plaintiff's sole cause of action is a violation of the TCCWNA. She and the proposed Class Members seek the statutory relief of a civil penalty of not less than $100 for each violation of the TCCWNA. On Aug. 19, 2016, the Plaintiff filed a single-count putative class action complaint asserting that the Court has jurisdiction pursuant to the Class Action Fairness Act ("CAFA"). On Nov. 30, 2016, in addition to filing its Motion to Dismiss and Motion to Strike, the Defendant filed a Motion to Stay. The Plaintiff opposed the Defendant's Motion to Dismiss and Motion to Strike, but did not oppose its Motion to Stay. The Defendant replied to both. On Feb. 7, 2017, the Court granted the Defendant's Motion to Stay pending the Third Circuit's decision in Russell v. Croscill Home LLC. In Russell, the plaintiff alleged that the defendant "imposed the unfair, one-sided provisions in its Terms & Conditions in violation of certain statutory and common law standards and the TCCWNA. The Defendant argued that the matter should be stayed because the Third Circuit will consider whether an identically-situated plaintiff is an 'aggrieved consumer,' as required by Section 17 of the TCCWNA. The Plaintiff did not oppose the stay to the extent that the Court sought guidance from the Third Circuit addressing the same question as to the meaning of 'aggrieved consumer' within Section 17 of the TCCWNA. The Court granted the stay, noting that several cases are currently on appeal to the Third Circuit, seeking the Third Circuit's interpretation of standing in light of Spokeo, Inc. The Third Circuit, however, dismissed Russell on May 16, 2018, after the parties filed a stipulation of dismissal. Although the Third Circuit never provided the anticipated guidance in Russell, a recent New Jersey Supreme Court case, Spade v. Select Comfort Corp., addressed an issue that is determinative of the Court's subject matter jurisdiction in the matter, as currently pled by the Plaintiff: the meaning and scope of an "aggrieved consumer" under the TCCWNA. Judge Shipp finds that whether the Court has subject matter jurisdiction on the grounds the Plaintiff has currently pled is dependent on whether the Plaintiff is an "aggrieved consumer" under the TCCWNA. Specifically, the CAFA requires the Plaintiff to plead a minimum of $5 million in controversy as to the class, and the Plaintiff has done so. The Plaintiff's right to relief under the TCCWNA, however, depends upon whether she is an "aggrieved consumer." Accordingly, if the Plaintiff is not an "aggrieved consumer" under the TCCWNA, then the Plaintiff cannot satisfy CAFA's minimum amount-in-controversy requirement. The Judge finds that the Plaintiff is not an "aggrieved consumer" as defined in the TCCWNA and clarified in Spade. The Plaintiff's contention that the Defendant's alleged violations of certain New Jersey laws, without any alleged harm arising from the violations, entitles her to relief under the TCCWNA is vitiated by the New Jersey Supreme Court's holding in Spade. Specifically, like the plaintiffs in Spade, the Plaintiff has not alleged that she was prevented from returning the items or otherwise pursuing any remedies relating to the purchased items or that the Defendant attempted to enforce the T&C Provisions to her detriment. The Plaintiff's allegations mirror the hypothetical consumer, in Spade, who entered into a sales contract that contained a provision allegedly violating a New Jersey statute, but received timely delivery of conforming goods. The New Jersey Supreme Court stated such a consumer was not an "aggrieved consumer," and thus was not entitled to relief under the TCCWNA. Here, the Judge reaches the same conclusion -- Plaintiff is not an "aggrieved consumer." As a result of his finding that the Plaintiff is not an "aggrieved consumer," the Judge finds that the Plaintiff has not met her burden of establishing CAFA's $5 million minimum requirement. Because she is not an "aggrieved consumer," the Plaintiff is not entitled to a civil penalty of a minimum $100, actual damages, or both, pursuant to Section 17 of the TCCWNA. The Plaintiff, as a result, cannot establish that the putative class members would be entitled to an aggregated sum of $5 million, or more, to satisfy the CAFA minimum amount in controversy. He, accordingly, finds that the Court lacks subject matter jurisdiction and must sua sponte dismiss the Complaint. The Plaintiff did not have the benefit of Spade at the time she filed the Complaint. The Judge, accordingly, granted the Plaintiff leave to file an Amended Complaint. For the reasons set forth, Judge Shipp dismissed the Complaint, and denied as moot the Defendant's Motion. An order consistent with the Memorandum Opinion will be entered. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion is available at https://is.gd/L5K4yP from Leagle.com. TIFANY PATTERSON, individually and on behalf of all others similarly situated, Plaintiff, represented by GERALD H. CLARK, Clark Law Firm, PC & MARK W. MORRIS, CLARK LAW FIRM. FOREVER 21, INC., a Delaware corporation, Defendant, represented by JOSEPH D. JEAN -- joseph.jean@pillsburylaw.com -- PILLSBURY WINTHROP SHAW PITTMAN LLP & MATTHEW D. STOCKWELL -- matthew.stockwell@pillsburylaw.com -- Pillsbury Winthrop Shaw Pittman LLP. FRESH DEL MONTE: Continues to Defend DBCP-Related Suits ------------------------------------------------------- Fresh Del Monte Produce 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 28, 2018, that the company and its subsidiaries continues to defend themselves in several actions involving class actions related to the chemical dibromochloropropane ("DBCP"). Beginning in December 1993, certain of the company's U.S. subsidiaries were named among the defendants in a number of actions in courts in Texas, Louisiana, Hawaii, California and the Philippines involving claims by numerous non-U.S. plaintiffs alleging that they were injured as a result of exposure to a nematocide containing the chemical dibromochloropropane ("DBCP") during the period 1965 to 1990. As a result of a settlement entered into in December 1998, the remaining unresolved DBCP claims against the company's U.S. subsidiaries are pending in Hawaii, Delaware, Costa Rica and the Philippines. On October 14, 2004, two of the company's subsidiaries were served with a complaint in an action styled Angel Abarca, et al. v. Dole Food Co., et al. filed in the Superior Court of the State of California for the County of Los Angeles on behalf of more than 2,600 Costa Rican banana workers who claim injury from exposure to DBCP. On January 2, 2009, three of the company's subsidiaries were served with multiple complaints in related actions styled Jorge Acosta Cortes, et al. v. Dole Food Company, et al. filed in the Superior Court of the State of California for the County of Los Angeles on behalf of 461 Costa Rican residents. An initial review of the plaintiffs in the Abarca and Cortes actions found that a substantial number of the plaintiffs were claimants in prior DBCP actions in Texas. On June 27, 2008, the court dismissed the claims of 1,329 plaintiffs who were parties to prior DBCP actions. On June 30, 2008, the company's subsidiaries moved to dismiss the claims of the remaining Abarca plaintiffs on grounds of forum non conveniens in favor of the courts of Costa Rica. On September 22, 2009, the court granted the motion to dismiss and on November 16, 2009 entered an order conditionally dismissing the claims of those remaining plaintiffs who allege employment on farms in Costa Rica exclusively affiliated with our subsidiaries. Those dismissed plaintiffs re-filed their claim in Costa Rica on May 17, 2012 (The "Lagos" case). On January 18, 2013, all remaining plaintiffs in California filed Requests for Dismissal effecting the dismissal of their claims without prejudice. On September 25, 2013, the company's subsidiaries filed an answer to the claim re-filed with the courts of Costa Rica. In the Lagos case, the trial court dismissed the claims of all plaintiffs for defective powers of attorney. On appeal from that decision, the appellate court remanded the action for the trial court to consider a preliminary issue before addressing the validity of the powers of attorney. The case is back before the trial court. Two additional DBCP-related lawsuits were filed in Costa Rica in 2015, which have since been dismissed by the court on procedural grounds. On May 31 and June 1, 2012, eight actions were filed against one of the company's subsidiaries in the United States District Court for the District of Delaware on behalf of approximately 3,000 plaintiffs alleging exposure to DBCP on or near banana farms in Costa Rica, Ecuador, Panama, and Guatemala. The company and its subsidiaries were not involved with any banana growing operations in Ecuador or Panama during the period when DBCP was in use. The plaintiffs include 229 claimants who had cases pending in the United States District Court for the Eastern District of Louisiana which were dismissed on September 17, 2012. On August 30, 2012, the company's subsidiary joined a motion to dismiss the claims of those plaintiffs on the grounds that they have first-filed claims pending in the United States District Court for the Eastern District of Louisiana. The motion was granted on March 29, 2013 and appealed to the United States Court of Appeals for the Third Circuit. On September 21, 2012, the company's subsidiary filed an answer with respect to the claims of those plaintiffs who had not already filed in Louisiana. On May 27, 2014, the court granted a motion made by a co-defendant and entered summary judgment against all remaining plaintiffs based on the September 19, 2013 affirmance by the United States Court of Appeals for the Fifth Circuit of the dismissal on statute of limitations grounds of related cases by the United States District Court for the Eastern District of Louisiana. On July 7, 2014, the company's subsidiary joined in a motion for summary judgment on statute of limitations grounds as to all remaining plaintiffs on the basis of the court’s May 27, 2014 ruling. Plaintiffs agreed that judgment be entered in favor of all defendants for the claims still pending in the United States District Court for the District of Delaware on the basis of the summary judgment granted on May 27, 2014 and the district court entered judgment dismissing all plaintiffs' claims on September 22, 2014. On October 21, 2014, a notice of appeal was filed with the United States Court of Appeals for the Third Circuit expressly limited the appeal to the claims of 57 (out of the more than 2,600) plaintiffs who had not previously filed claims in Louisiana. On August 11, 2015, a panel of the Court of Appeals affirmed the dismissal of the claims of these plaintiffs. Plaintiffs filed a Motion for Rehearing en Banc with the Third Circuit, which was granted on September 22, 2015. On September 2, 2016, the Third Circuit en banc reversed the District Court's dismissal on first-filed doctrine grounds of the claims of approximately 229 of the plaintiffs and remanded the case back to the District Court for further proceedings. On June 2, 2017, the Third Circuit issued a Petition for Certification of State Law to the Delaware Supreme Court to resolve the complex procedural question pending on appeal regarding the duration of the tolling of limitations afforded by a class action that had been pending in Texas. The Delaware Supreme Court accepted certification of the pending question of law. On March 15, 2018, the Delaware Supreme court decided the complex procedural question in favor of the plaintiffs and is in the process of returning the case to the United States District Court for the District of Delaware for further proceedings. On remand, there remain approximately 285 claims pending, although roughly two of those claims are of plaintiffs from Panama and Ecuador, where the company have not been involved with any banana growing during the period when DBCP was in use. In Hawaii, plaintiffs filed a petition for certiorari to the Hawaii Supreme Court based upon the Hawaii Court of Appeals affirmance in March 2014 of a summary judgment ruling in defendants' favor at the trial court level. The Hawaii Supreme Court accepted the petition and oral argument was held on September 18, 2014 with respect to whether the claims of the six named plaintiffs were properly dismissed on statute of limitations grounds. On October 21, 2015, the Hawaii Supreme Court reversed the Hawaii Court of Appeals and the Hawaii state trial court's grant of partial summary judgment against the DBCP plaintiffs on statute of limitations grounds. The Hawaii Supreme Court remanded the claims of six remaining plaintiffs back to the Hawaii state trial court for further proceedings, where they remain pending without any significant activity since 2015. Fresh Del Monte Produce Inc., through its subsidiaries, produces, markets, and distributes fresh and fresh-cut fruits and vegetables worldwide. Fresh Del Monte Produce Inc. was founded in 1886 and is headquartered in Coral Gables, Florida. FUTURE TECH: Dominguez FLSA Suit Settlement Has Prelim Approval --------------------------------------------------------------- In the case, RAFAEL DOMINGUEZ and CESAR GRULLON, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, v. FUTURE TECHNOLOGIES, LLC, Defendant, Civil Action No. 3:16-cv-00144 (D. Conn.), Judge Stefan R. underhill of the U.S. District Court for the District of Connecticut granted the Plaintiffs' Uncontested Motion for Preliminary Approval of Collective and Class Action Settlement. The Judge finds, for the purposes of preliminary approval, the proposed settlement, as set forth in the Settlement and Release Agreement, is fair, reasonable, adequate, and in the best interest of the FLSA Class and Rule 23 Class. He finds that the Settlement was entered into at arm's-length by highly experienced counsel. He therefore preliminarily approved the proposed settlement. The Judge conditionally certified, for settlement purposes only, pursuant to 29 U.S.C. Section 216 an FLSA Class, defined as all current or former technicians employed by Future Technologies, LLC during the Class Period who properly fill out and return the Opt-in Form (attached to the Class Notice) before the expiration of the Opt-In/Opt-Out/Objection Deadline. He also conditionally certified, for settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3), a Rule 23 Class defined as all current or former technicians who were employed by Future Technologies, LLC in Connecticut, Nebraska, Virginia, Rhode Island, and Ohio during the Class Period who do not properly fill out and return the Opt-out Form (attached to the Class Notice) before the expiration of the Opt-In/Opt-Out/Objection Deadline. The Judge appointed Plaintiffs Rafael Dominguez and Caesar Grullon as the Class Representatives; Jeffrey S. Morneau of Connor & Morneau, LLP, 273 State Street Springfield, MA 01103 as the Class Counsel; and KCC as the Settlement Administrator. He approved, as to form and content, the Class Notice attached to the Settlement Agreement. The following schedule for dissemination of the Class Notice, requesting exclusion, opting-in to the FLSA Class, or objecting to the settlement, submitting papers in connection with final approval, and the Final Approval Hearing, are approved as follows: a. Within 10 days after full Settlement execution and filing with the Court, Future Technologies, LLC will provide the Administrator with a list, in electronic form, of the names, Social Settlement Agreement Security Numbers, and last known addresses of all potential members of each of the classes identified. b. Within 21 days after entry of Preliminary Approval, the Settlement Administrator will mail to All Class Members by first-class mail the Class Notice, Opt-in Form, Opt-out Form, and a Order stamped, self-addressed envelope or business reply mail envelope. c. Upon mailing of Class Notice, Opt-In/Opt-Out/Objection Period begins. d. Deadline for filing Objections - 45 days after mailing of Opt-In/Opt-Out/Objection Deadline. e. Class Notice Deadline for postmarking and mailing Opt-in Form and/or Opt-out Form to Settlement Administrator f. Within 10 days after Opt-In/Opt-Out/Objection Deadline, the Plaintiffs will file a motion for final approval of settlement, an application for the award of attorneys' fees, costs, and enhancement awards for the Plaintiffs, and a proposed Final Approval Order. g. Within 7 days of receipt by the Settlement Administrator, the Class Notice will be re-mailed by the Settlement Administrator to the new address of any Class Notice that is returned via USPS with a forwarding address h. Within 7 days of receipt Class Notice, the Settlement Administrator will conduct address searches using a skip trace on these addresses by using Accurint (LEXISNEXIS Administrator of any Company) and re-mail to any Person for whom updated address is located. No future address checking will be required or performed without a forwarding address. i. At least 21 days prior to Final Approval Hearing, the Class Counsel will serve and file an affidavit of the Settlement Administrator declaring compliance with the notice provisions of the Order and CAFA notice requirements. j. At least 7 days prior to the Final Approval Hearing, the parties will file responses to any Objections. k. Earliest date for entry of Final Approval Order - 90 days after Settlement Administrator serves notice required under 28 U.S.C. Section 1715(b) Any Person who intends to object to the settlement must do so by the Opt-In/Opt-Out/Objection Deadline. The Final Approval Hearing is for Feb. 5, 2019 at 3:00 p.m. A full-text copy of the Court's Oct. 30, 2018 Order is available at https://is.gd/awa2Rf from Leagle.com. Rafael Dominguez, Individually and on Behalf of All Other Persons Similarly Situated & Cesar Grullon, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs, represented by Jeffrey S. Morneau -- jmorneau@cmolawyers.com -- Connor, Morneau & Olin LLP & Lan T. Kantany -- lkantany@cmolawyers.com -- Connor, Morneau & Olin LLP. Future Technologies, LLC, Defendant, represented by Delaney M. Busch -- dbusch@grsm.com -- Gordon & Rees LLP, Greil Roberts -- groberts@grsm.com -- Gordon & Rees LLP, Joseph James Blyskal, III -- jblyskal@grsm.com -- Gordon & Rees LLP & William E. Murray -- wmurray@anspachlaw.com -- Law Offices of William E. Murray, LLC. GENERAL ELECTRIC: Bid to Dismiss Hachem Class Suit Underway ----------------------------------------------------------- General Electric 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, that the company has filed a motion to dismiss the case Hachem v. GE et al., and briefing on the motion has been concluded. Since November 2017, several putative class actions under the federal securities laws have been filed against GE and certain affiliated individuals. All of those actions filed to date have been consolidated into a single action currently pending in the U.S. District Court for the Southern District of New York (Hachem v. GE et al.). In May 2018, the court appointed Sjunde AP-Fonden (AP7) as Lead Plaintiff and Kessler Topaz Meltzer & Check, LLP as Lead Counsel for the consolidated shareholder actions. In October 2018, AP7 filed a Fourth Amended Consolidated Class Action Complaint naming as defendants GE, Jeffrey R. Immelt, Jeffrey S. Bornstein, Jamie S. Miller, Keith S. Sherin, Jan R. Hauser and Richard A. Laxer. It alleges violations of Sections 10(b) and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 related to insurance reserves and accounting for long-term service agreements and seeks damages on behalf of shareowners who acquired GE stock between February 27, 2013 and January 23, 2018. GE has filed a motion to dismiss on behalf of all defendants, and briefing on that motion concluded in October 2018. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. GENERAL ELECTRIC: Seeks to Dismiss Bezio Suit --------------------------------------------- General Electric 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, that the company is seeking dismissal of the Bezio class suit. In June 2018, an additional lawsuit (the Bezio case) was filed in New York state court derivatively on behalf of participants in the GE Retirement Savings Plan (the GE RSP), and alternatively as a class action on behalf of shareowners who acquired GE stock between February 26, 2013 and January 24, 2018, alleging violations of Section 11 of the Securities Act of 1933 based on alleged misstatements and omissions related to insurance reserves and performance of GE's business segments in a GE RSP registration statement and documents incorporated therein by reference. In October 2018, GE filed a motion to dismiss. General Electric Company operates as a digital industrial company worldwide. It operates through Power, Renewable Energy, Oil & Gas, Aviation, Healthcare, Transportation, Lighting, and Capital segments. General Electric Company was founded in 1892 and is headquartered in Boston, Massachusetts. HARRAH'S NC: Clark Appeals W.D.N.C. Decision to Fourth Circuit -------------------------------------------------------------- Plaintiff Joseph Clark filed an appeal from a court ruling in the lawsuit styled Joseph Clark v. Harrah's NC Casino Co., LLC, et al., Case No. 1:17-cv-00240-MR-DLH, in the U.S. District Court for the Western District of North Carolina at Asheville. The lawsuit is brought over alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Joseph Clark v. Harrah's NC Casino Co., LLC, et al., Case No. 18-2293, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening Brief and Appendix are due on December 10, 2018; and -- Response Brief is due on January 8, 2019.[BN] Plaintiff-Appellant JOSEPH CLARK, On Behalf of Himself and All Others Similarly Situated, is represented by: Philip J. Gibbons, Jr., Esq. GIBBONS LEIS, PLLC 14045 Ballantyne Corporate Place Charlotte, NC 28277 Telephone: (704) 612-0038 E-mail: Pgibbons@stephanzouras.com - and - Jeffrey A. Leon, Esq. QUANTUM LEGAL LLC 513 Central Avenue Highland Park, IL 60035 Telephone: (847) 433-4500 E-mail: Jeff@QULegal.com - and - James B. Zouras, Esq. STEPHAN ZOURAS, LLP 205 North Michigan Avenue Chicago, IL 60603 Telephone: (312) 233-1550 E-mail: Jzouras@stephanzouras.com Defendants-Appellees HARRAH'S NC CASINO COMPANY, LLC, d/b/a Harrah's Cherokee Casino Resort, d/b/a Harrah's Cherokee Valley River Casino, and BROOKS ROBINSON are represented by: Patrick McQuillan Aul, Esq. Tracy Lynn Eggleston, Esq. COZEN O'CONNOR 301 South College Street Charlotte, NC 28202-6037 Telephone: (704) 376-3400 E-mail: paul@cozen.com teggleston@cozen.com - and - Susan Nadler Eisenberg, Esq. Jennifer Taylor Williams, Esq. COZEN O'CONNOR 200 South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 704-5941 E-mail: seisenberg@cozen.com jtwilliams@cozen.com HEALTH CARE: E. Craft Settlement Distribution Deadline Extended --------------------------------------------------------------- In the case, ELIZABETH A. CRAFT; JANE DOE, a minor, by her next friend and parent, ELIZABETH A. CRAFT; BRYAN L. PAUTSCH; MARY DOE, a minor, by her next friend and parent, BRYAN L. PAUTSCH; on their own behalf and on behalf of all others similarly situated, Plaintiffs, v. HEALTH CARE SERVICE CORPORATION, Defendant, Case No. 14 C 5853 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Plaintiffs' Motion to Modify Administration of Settlement by Extending Distribution Deadline. In their class action suit, the Plaintiffs allege Defendant HCSC engaged in discriminatory and illegal practices by restricting the scope of their insurance coverage for treatment of mental illness in residential treatment centers, in violation of its duties owed to health insurance plan participants and beneficiaries pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, as incorporated into ERISA. The parties entered settlement discussions in 2016. On Sept. 20, 2017, the Court entered an Order preliminarily approving the Class Action Settlement on behalf of individuals who after July 30, 2011 were participants in or beneficiaries of an ERISA-governed employee welfare benefits plan administered and/or insured by HCSC, submitted a claim for treatment of mental illness in a residential treatment center, and had their claim denied by HCSC based on plan exclusions for coverage of residential treatment of mental illness. They identified Settlement Class Members through HCSC data and provided these individuals Notice of the proposed settlement and opportunity to opt out. No Settlement Class Members opted out of the Settlement. On Feb. 26, 2018, the Court issued a Final Order and Judgment approving the Settlement Agreement and dismissing the action with prejudice. The approved Settlement Agreement established a Settlement Fund of $5.25 million and appointed Dahl Administration, LLC as Settlement Administrator. The Agreement incorporates a Plan of Allocation for the distribution of the Net Settlement Fund ($5.25 million less certain taxes, costs, fees, etc.) to all the Class Members who did not opt out of the Settlement Class. The Plan of Allocation sets forth how each Member's share is to be calculated and provides a procedure and schedule for distributing checks to each Member. The Plan of Allocation then provides the schedule for distributing the checks to the Participating Settlement Class Members. The Effective Date of Settlement was March 29, 2018. The Final Settlement Class List included approximately 300 Participating Members. Dahl Administration initiated the distribution of checks, per the schedule provided in the Plan of Allocation, on May 11, 2018. On Aug. 9, 2018, the 90-day deadline for issuing a stop-payment request on all uncashed or undeliverable checks, Dahl Administration informed Class Counsel that 37 checks remained: 11 undeliverable checks (totaling approximately $45,000) and 26 deliverable but uncashed checks (totaling approximately $330,000). For five of the 26 deliverable but uncashed checks, the respective Participating Member contacted Dahl Administration after the August 9 deadline requesting that the check be reissued. The 120-day deadline for initiating the second-round distribution was Sept. 8, 2018. The Plaintiffs filed their Motion to Modify Administration of Settlement by Extending Distribution Deadline on Sept. 14, 2018. In the Motion, the Plaintiffs seek a modest adjustment to the distribution schedule to allow Dahl Administration one further attempt to complete the distribution of the 26 deliverable but uncashed checks. Specifically, they seek 45 days to complete this additional processing. The Plaintiffs argue that the 45-day extension sought is within the Court's continuing jurisdiction as reserved in the Final Order and Judgment and the Settlement Agreement and the Court's equitable power to make such adjustments to the Agreement. The Defendants disagree, arguing the 45-day extension constitutes a substantive change to the terms of the Agreement requiring formal modification to the Final Order and Judgment. Judge Kendall holds that the Court has no authority under the jurisdiction retained through the Order and the Agreement to grant the modification to the Plan of Allocation requested by the Plaintiffs. However, she finds that it is within the Court's equitable authority to consider the requested 45-day extension. The 45-day extension will not prejudice the Defendants, who face no further exposure at this point in the case since the Settlement Fund is capped. Likewise, the 45-day extension will not cause any harmful delay to Participating Members that have already cashed their first-round distribution checks. Furthermore, the delay to any second-round distribution will be minimal. Finally, the Judge finds and the Defendants do not dispute that the Plaintiffs have acted in good faith in requesting the extension. On balance, the equities favor permitting the 45-day extension to complete distribution of the deliverable but uncashed checks. For the reasons set forth, Judge Kendall granted the Plaintiffs' Motion to Modify Administration of Settlement by Extending Distribution Deadline. The Settlement Administrator will have 45 days from the date of the Order to further attempt to complete distributions to the Settlement Class Members who received but did not cash the checks made payable to them. On the conclusion of the 45-day period, the Settlement Administrator will resume the schedule and procedures under the Plan of Allocation to distribute the Residual Settlement Fund. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion and Order is available at https://is.gd/H59Ipd from Leagle.com. Elizabeth A. Craft & Jane Doe, on their own behalves and on behalf of all others similarly situated,, Plaintiffs, represented by Adam Abelson -- aabelson@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Caroline Elizabeth Reynolds -- creynolds@zuckerman.com -- Zuckerman Spaeder Llp, pro hac vice, D. Brian Hufford -- dbhufford@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice, Daniel P. Moylan , Zuckerman Spaeder LLP, pro hac vice, George Freeman Galland, Jr. -- ggalland@lawmbg.com -- Miner Barnhill & Galland, P.C., Jason S. Cowart -- jcowart@zuckerman.com -- Zuckerman Spaeder LLP, Martin S. Himeles, Jr. -- mhimeles@zuckerman.com -- Zuckerman Spaeder LLP, pro hac vice & Meiram Bendat, Psych-Appeal, Inc., pro hac vice. Bryan L. Pautsch & Mary Doe, a minor, by her next friend and parent, Bryan L. Pautsch; on their own behalf and on behalf of all others similarly situated, Plaintiffs, represented by Adam Abelson, Zuckerman Spaeder LLP, pro hac vice, Caroline Elizabeth Reynolds, Zuckerman Spaeder Llp, pro hac vice, D. Brian Hufford, Zuckerman Spaeder LLP, pro hac vice, Daniel P. Moylan, Zuckerman Spaeder LLP, pro hac vice, Jason S. Cowart, Zuckerman Spaeder LLP, Martin S. Himeles, Jr., Zuckerman Spaeder LLP, pro hac vice & Meiram Bendat, Psych-Appeal, Inc., pro hac vice. Health Care Service Corporation, Defendant, represented by Helen E. Witt -- helen.witt@kirkland.com -- Kirkland & Ellis LLP, Brian Patrick Kavanaugh -- brian.kavanaugh@kirkland.com -- Kirkland & Ellis LLP,Catherine Morgan Cottle, Kirkland & Ellis Llp & Devon McKechan Largio -- devon.largio@kirkland.com -- Kirkland & Ellis LLP. HEALTH INSURANCE: Awaits Court OK on Bid to Dismiss Florida Suit ---------------------------------------------------------------- Health Insurance Innovations, 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 company is awaiting the court's decision on its motion to dismiss the consolidated class action suit entitled, In re Health Insurance Innovations Securities Litigation, Case No. 8:17-cv-2186-EAK-MAP (M.D. Fla.). In September 2017, three putative securities class action lawsuits were filed against the Company and certain of its current and former executive officers. The cases were styled: -- Cioe Investments Inc. v. Health Insurance Innovations, Inc., Gavin Southwell, and Michael Hershberger, Case No. 1:17-cv-05316-NG-ST, filed in the U.S. District Court for the Eastern District of New York on September 11, 2017; -- Michael Vigorito v. Health Insurance Innovations, Inc., Gavin Southwell, and Michael Hershberger, Case No. 1:17-cv-06962, filed in the U.S. District Court for the Southern District of New York on September 13, 2017; and -- Shilpi Kavra v. Health Insurance Innovations, Inc., Patrick McNamee, Gavin Southwell, and Michael Hershberger, Case No. 8:17-cv-02186-EAK-MAP, filed in the U.S. District Court for the Middle District of Florida on September 21, 2017. All three of the foregoing actions (the "Securities Actions") were filed after a decline in the trading price of the Company's common stock following the release of a report authored by a short-seller of the Company's common stock raising questions about, among other things, the Company's public disclosures relating to the Company's regulatory examinations and regulatory compliance. All three of the Securities Actions, which were based substantially on the allegations raised in the short-seller report, contained substantially the same allegations, and alleged that the Company made materially false or misleading statements or omissions relating to regulatory compliance matters, particularly regarding the Company's application for a third-party administrator license in the State of Florida. In November and December 2017, the Cioe Investments and Vigorito cases were transferred to the U.S. District Court for the Middle District of Florida, and on December 28, 2017, they were consolidated with the Kavra matter under the case caption, In re Health Insurance Innovations Securities Litigation, Case No. 8:17-cv-2186-EAK-MAP (M.D. Fla.). On February 6, 2018, the court appointed Robert Rector as lead plaintiff and appointed lead counsel, and lead plaintiff filed a consolidated complaint on March 23, 2018. The consolidated complaint, which dropped Patrick McNamee as a defendant and added Michael Kosloske as a defendant, largely sets forth the same factual allegations as the initially filed Securities Actions filed in September 2017 and adds allegations relating to alleged materially false statements and omissions relating to the regulatory proceeding previously initiated against the Company by the Montana State Auditor, Commissioner of Securities and Insurance (the "CSI"), which proceeding was dismissed on October 31, 2017 in light of CSI's decision to join the Indiana Multistate Examination. The complaint also adds allegations regarding insider stock sales by Messrs. Kosloske and Hershberger. The consolidated complaint alleges violations of Section 10(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), SEC Rule 10b-5, and Section 20(a) of the Exchange Act. According to the consolidated complaint, the plaintiffs in the action are seeking an undetermined amount of damages, interest, attorneys' fees and costs on behalf of putative classes of individuals and entities that acquired shares of the Company's common stock on periods ending September 11, 2017. On May 7, 2018, the Company and the co-defendants filed a motion to dismiss call claims set forth in the complaint, and as of October 29, 2018, the motion had been fully briefed and is awaiting the court's decision. Health Insurance Innovations said, "At this time, the Company cannot predict the probable outcome of this action, and, accordingly, no amounts have been accrued in the Company's condensed consolidated financial statements for this action." Health Insurance Innovations, Inc. operates as a cloud-based technology platform and distributor of individual and family health insurance plans, and supplemental products in the United States. . Health Insurance Innovations, Inc. was founded in 2008 and is based in Tampa, Florida. HMSHOST CORP: Fails to Pay Proper OT, Storch et al. Say ------------------------------------------------------- AMY STORCH; SAMANTHA CURRY; and JENNA PLOTKIN, individually and on behalf of all others similarly situated, Plaintiffs v. HMS HOST CORPORATION; and HMS HOST USA, INC., Defendants, Case No. 8:18-cv-03322-PX (D. Md., Oct. 26, 2018) seeks to recover from the Defendants unpaid overtime compensation, interest, maximum liquidated damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as hourly-paid tipped employees. HMSHost Corporation provides food and beverage services for people on the move. The company creates a dining program that meets various types of travelers' needs. HMSHost Corporation was formerly known as Host Marriott Services Corporation and changed its name to HMSHost Corporation in March 2000. The company was founded in 1995 and is based in Bethesda, Maryland. HMSHost Corporation operates as a subsidiary of Autogrill S.p.A. [BN] The Plaintiffs is represented by: Timothy Maloney, Esq. Alyse L. Prawde, Esq. JOSEPH GREENWALD & LAAKE, P.A. 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Telephone: (301) 220-2200 Facsimile: (240) 553-1737 E-mail: tmaloney@jgllaw.com aprawde@jgllaw.com - and - Gordon E. Jackson, Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. Robert E. Turner, IV, Esq. JACKSON SHIELDS YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: gjackson@jsyc.com rbryant@jsyc.com pjackson@jsyc.com rturner@jsyc.com HUMANE SOCIETY: Righetti Sues over Unsolicited Text Messages ------------------------------------------------------------ MATTHEW RIGHETTI, on behalf of himself and all similarly situated persons, the Plaintiff, vs. The Humane Society of the United States, the Defendants, Case No. 4:18-cv-06562-DMR (N.D. Cal.. Oct 26. 2018), seeks to stop the Defendant's practice of sending unsolicited text messages to the cellular telephones of consumers nationwide and to obtain redress for all persons injured by Defendant's conduct, pursuant to the Telephone Consumer Protection Act. According to the complaint, the Defendant knew Plaintiff's phone number was a cellular telephone phone number before Defendant sent text messages to Plaintiff's phone. The Defendant never had permission to text or call Plaintiff's cellular phone. The Defendant used an automated phone dialing system to text message Plaintiff's cellular telephone. The telephone dialing system used to call Defendant has the capacity to store telephone numbers. Defendant sent prerecorded text messages for Plaintiff on Plaintiff's The telephone dialing system used to call Defendant has the capacity to call or text telephone numbers automatically, the lawsuit says.[BN] Attorneys for Plaintiff, individually, and on behalf of others similarly situated: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 W. Coast Hwy. Suite #200 Newport, CA 92663 Telephone: (949) 270-2798 E-mail: rnathan@nathanlawpractice.com IHI E&C: Walthall Seeks Overtime Pay under FLSA ----------------------------------------------- JOHNATHAN WALTHALL, Individually and For Others Similarly Situated, vs. IHI E&C INTERNATIONAL CORPORATION, the Defendant, Case 4:18-cv-04078 (S.D. Tex., Oct. 26, 2018), alleges that Defendant failed to pay Mr. Walthall and other workers like him, overtime pay as required by the Fair Labor Standards Act. According to the complaint, Mr. Walthall was staffed to IHI through Aerotek as Material Specialist. Walthall was paid by the hour and was not guaranteed a salary. He reports the hours he works to IHI for approval on a regular basis. If Walthall worked fewer than 40 hours in a week, he was only paid only for the hours he worked. Walthall regularly worked more than 40 hours in a week. The hours Walthall works are reflected in IHI's records. 24. IHI set the pay applicable to Walthall, which was the same hourly rate for all hours worked, including those in excess of 40 in a workweek. Rather than receiving time and half as required by the FLSA, Walthall only received "straight time" pay for overtime hours worked. Instead, IHI pays Walthall, and other workers like him, the same hourly rate for all hours worked, including those in excess of 40 in a workweek, the lawsuit says. IHI is an engineering firm providing design, consulting, construction and management services. Specifically, IHI was responsible for maintenance of the nuclear waste treatment facility at issue.[BN] Attorneys for Walthall: Andrew W. Dunlap, Esq. Michael A. Josephson, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TXs 77046 Telephone: 713 352-1100 Facsimile: 713 352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com IMPINJ INC: Bid to Join Montemarano & Baton Rouge Suit Pending -------------------------------------------------------------- Impinj, Inc. said in iMontemarano ts Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that a court has not yet ruled on the motions to consolidate the Montemarano and Baton Rouge action and appoint lead plaintiff. On August 27, 2018, a class action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Western District of Washington against the company, its chief executive officer, chief operations officer and former chief financial officer. Captioned Montemarano v. Impinj, Inc., et al., the complaint, purportedly brought on behalf of all purchasers of the company's common stock from May 4, 2017 through and including August 2, 2018, asserts claims that the company made false or misleading statements in its financial statements, press releases and conference calls during the purported class period. The complaint seeks monetary damages, costs and expenses. On October 2, 2018, a class action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Western District of Washington against the company, its chief executive officer, chief operations officer and former chief financial officer. Captioned Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge v. Impinj, Inc., et al., the complaint, purportedly brought on behalf of all purchasers of the company's common stock from November 3, 2016 through and including February 15, 2018, asserts claims that the company made false or misleading statements in its financial statements, press releases and conference calls during the purported class period. The complaint seeks monetary damages, costs and expenses. On October 10, 2018, motions to consolidate the Montemarano and Baton Rouge action and to appoint lead plaintiff were filed. The court has not yet ruled on these motions. Impinj, Inc. operates a platform that enables wireless connectivity to everyday items by delivering each item’s unique identity, location, and authenticity to business and consumer applications. Impinj, Inc. was founded in 2000 and is headquartered in Seattle, Washington. IMPINJ INC: Schultz Class Action Voluntarily Dismissed ------------------------------------------------------ Impinj, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that plaintiffs in Schultz v. Impinj, Inc., et al, have voluntarily dismissed their complaint. On August 7, 2018, a class action complaint for violation of the federal securities laws was filed in the U.S. District Court for the Central District of California against the company, its chief executive officer and chief operations officer. Captioned Schultz v. Impinj, Inc., et al, the complaint, purportedly brought on behalf of all purchasers of the company's common stock from May 7, 2018 through and including August 2, 2018, asserted claims that the company's quarterly statement filed on Form 10-Q for the first quarter of 2018 and a concurrent press release made false or misleading statements about the company's business prospects and financial condition. The plaintiffs voluntarily dismissed this complaint on October 3, 2018. Impinj, Inc. operates a platform that enables wireless connectivity to everyday items by delivering each item’s unique identity, location, and authenticity to business and consumer applications. Impinj, Inc. was founded in 2000 and is headquartered in Seattle, Washington. INDIANA UNIVERSITY: Removes Thomas et al. Suit to S.D. Indiana -------------------------------------------------------------- The Defendant in the case of JADEN THOMAS; RYAN BRAVERMAN; KATIE DEDELOW; JAKE RAMSEY; ISABELLA BLACKFORD; MICHAEL DUKE; and LINDSAY FREEMAN, individually and on behalf of all others similarly situated, Plaintiffs v. THE TRUSTEES OF INDIANA UNIVERSITY, Defendant,, filed a notice to remove the lawsuit from the Circuit Court of the State of Indiana, County of Monroe (Case No. 53C01-1810-PL-002169) to the U.S. District Court for the Southern District of Indiana on October 26, 2018. The clerk of court for the Southern District of Indiana assigned Case No. 1:18-cv-03305. The case is assigned to Judge Tanya Walton Pratt and referred to Magistrate Debra Mcvicker Lynch. The Indiana University Board of Trustees is the university's governing body. Established by the state legislature in 1820, the board has shaped the growth of the university since its beginning. The board is made up of nine trustees, and its business is overseen by six officers. [BN] The Defendant is represented by: Thomas A. Barnard, Esq. Ann O'Connor McCready, Esq. TAFT STETTINIUS & HOLLISTER LLP One Indiana Square, Suite 3500 Indianapolis, IN 46204 Telephone: (317) 713-3500 Facsimile: (317) 713-3699 E-mail: tbarnard@taftlaw.com amccready@taftlaw.com IQVIA INC: Wins Bid to Strike Mussat's Class Definition ------------------------------------------------------- In the case, FLORENCE MUSSAT, M.D., S.C., on behalf of plaintiff and the class members defined herein, Plaintiff, v. IQVIA INC., and JOHN DOES 1-10, Defendants, Case No. 17 C 8841 (N.D. Ill.), Judge Virginia M. Kendall of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted IQVIA's motion to strike Mussat's class definition. Florence Mussat, M.D, S.C. is an Illinois corporation with its principal place of business in Illinois. IQVIA is a Delaware corporation with its principal place of business in Pennsylvania. Mussant sued IQVIA on behalf of a putative class, alleging that IQVIA violated the Telephone Consumer Protection Act ("TCPA") by sending it two unsolicited advertisements via fax. Mussat seeks to represent a geographically unrestricted putative class of individuals, including (a) all persons with fax numbers (b) who, on or after a date four years prior to the filing of the action, (c) were sent faxes by or on behalf of Defendant IQVIA, promoting its good or services for sale (d) and which did not contain an opt out notice as described in 47 U.S.C. Section 227. Mussat contends that IQVIA violated the Act by sending junk faxes to the unnamed members of the putative class. On Feb. 27, 2018, Mussat amended its complaint. IQVIA then amended its answer on March 21, just nine days following Practice Mgmt. Support Services, Inc. v. Cirque Du Soleil, Inc. In its answer, IQVIA expressly denied the existence of the Court's personal jurisdiction over it -- whether it be general or specific -- regarding the claims of the unnamed putative class members residing outside Illinois. After another district court applied Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., to a federal class action under the Act, IQVIA moved to strike Mussat's class definition, arguing that the Court lacks personal jurisdiction over IQVIA with respect to the unnamed putative class members who are not Illinois residents. IQVIA argues that the Court cannot assert personal jurisdiction over it regarding the nonresident putative class members' claims because those claims do not arise out of, or relate to, IQVIA's contacts with Illinois. Mussat, in response, claims that IQVIA "waived" its personal jurisdiction defense, and even if it did not, its contention is contrary to Supreme Court precedent, which supports the further proposition that Bristol-Myers does not apply to class actions. Judge Kendall explains that the focus of the personal jurisdiction inquiry is the Defendant's relationship to the forum state. Because there is no connection between Illinois and the absent class members' claims, she granted IQVIA's motion to strike Mussat's class definition to the extent that Mussat seeks to assert those claims on behalf of nonresidents that did not allegedly receive faxes in Illinois. A full-text copy of the Court's Oct. 26, 2018, 2018 Memorandum Opinion and Order is available at https://is.gd/kUDQkn from Leagle.com. Florence Mussat, M.D., S.C., on behalf of plaintiff and class members defined herein, Plaintiff, represented by Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, Curtis Charles Warner -- cwarner@warnerlawllc.com -- Warner Law Firm, LLC, Heather A. Kolbus, Edelman, Combs, Latturner & Goodwin, LLC, James O. Latturner, Edelman, Combs, Latturner & Goodwin LLC & Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC. IQVIA, Inc., Defendant, represented by Edward C. Eberspacher, IV -- teberspacher@meyerlex.com -- Meyer Law Group LLC. JB HUNT: California Drivers to Settle Class Suit for $15MM ---------------------------------------------------------- J.B. Hunt Transport, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the company has reached an agreement to resolve all pending claims in California-based drivers' class action suit for a class settlement payment of $15 million. J.B. Hunt Transport said, "We are a defendant in certain possible class-action lawsuits in which the plaintiffs are current and former California-based drivers who allege claims for unpaid wages, failure to provide meal and rest periods, and other items." In the lead class-action, the United States District Court for the Central District of California issued an Order in late July 2018 granting in part and denying in part Plaintiffs' motion for partial summary judgment. In early August 2018 the Court issued an Order decertifying the class and granting in part and denying in part the company's motion for partial summary judgment on certain claims. Plaintiffs requested the United States Court of Appeals for the Ninth Circuit to review the Court's decertification Order and to stay the September 2018 trial of the named plaintiffs' individual claims. In September 2018, the company reached an agreement to resolve all pending claims for a class settlement payment of $15 million, subject to Court approval. The Court's preliminary settlement approval hearing is scheduled for late October 2018. The overlapping claims in the other lawsuits remain stayed pending final approval of the settlement in the lead class-action case. J.B. Hunt Transport, Inc. offers truckload freight and intermodal transportation services, logistics management, dry van, and e-business. The company was founded in 1969 and is based in Lowell, Arkansas. The company has operations in the United States, Canada, and Mexico. J.B. Hunt Transport, Inc. operates as a subsidiary of JB Hunt Transport Services Inc. JCT LOGISTICS: Moreno Seeks to Certify Class & Subclass ------------------------------------------------------- In the class action lawsuit captioned as CARLOS MORENO, an individual and on behalf of himself and all others similarly situated, the Plaintiffs, vs. JCT LOGISTICS, INC.; and DOES 1 through 10, inclusive, the Defendants, Case 5:17-cv-02489-JGB-KK (C.D. Cal.), the Plaintiff will move the Court on December 3, 2018, for an order: 1. certifying case as a class action under Federal Rules of Civil Procedure, Rule 23, for the following class and subclass: Class: "all current and former California residents who drove for Defendant John Christner Trucking, LLC intra-state pursuant to a contract-carrier agreement at any time from July 6, 2013 through the date notice is mailed to the Class"; and Reimbursement Sub-Class: "all current and former California residents who drove for Defendant intra-state pursuant to a 18 contract-carrier agreement where one truck was made available 19 to JCT, at any time from July 6, 2013 through the date notice is 20 mailed to the Class." 2. appointing Plaintiff's counsel, Haffner Law PC to serve as counsel to the class; and 3. authorizing notice to the class of the pending action and its members' right to opt-out under Federal Rules of Civil 25 Procedure, Rule 23(d)(2).[CC] Attorneys for Plaintiff and all others: Joshua H. Haffner, Esq. Graham Lambert, Esq. Michael K. Teiman, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Telephone: (213) 514-5681 Facsimile: (213) 514-5682 E-mail: jhh@haffnerlawyers.com gl@haffnerlawyers.com mt@haffnerlawyers.com JENSEN-LEWIS CO: Court Denies Bid to Dismiss ADA Suit ----------------------------------------------------- Judge Edgardo Ramos of the U.S. District Court for the Southern District of New York denied Jensen-Lewis's motion to dismiss the case, KATHY WU, on behalf of herself and all other persons similarly situated, Plaintiffs, v. JENSEN-LEWIS CO., INC. and JENSEN-LEWIS EAST, INC., Defendants, Case No. 17 Civ. 6534 (ER) (S.D. N.Y.), for lack of subject matter jurisdiction and for failure to state a claim. The case is a putative class action by a legally blind Plaintiff, Wu, claiming that the website of Jensen-Lewis Co., Inc. and Jensen-Lewis East, Inc. is not compliant with the Americans with Disabilities Act ("ADA") because it is not fully and equally accessible to Wu and other blind or visually impaired people. Wu is a resident of Brooklyn, New York. As a blind person, she is considered to be an individual with a disability under the ADA. In order to browse websites on her computer, Wu must use a screen-reading software. Jensen-Lewis is a business with its principal executive offices in New York, New York. It operates brick-and-mortar retail furniture stores in the Southern District of New York and elsewhere in the United States. It also operates a website, www.Jensen-Lewis.com, on which users can find information about store locations, hours of operation, the services provided in its stores, special promotions, return policies, and shipping and delivery policies. Wu visited Jensen-Lewis's website multiple times, with the last visit occurring in August 2017, and claims to have encountered multiple access barriers while browsing the website. Wu was unable to access information about store location and hours, applicable special promotions, return policies, and shipping and delivery policies. On Aug. 28, 2017, Wu filed the instant complaint, alleging that Jensen-Lewis's website posed accessibility barriers in violation of Title III of the ADA, the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. She seeks (1) preliminary and permanent injunctive relief preventing Jensen-Lewis from violating the applicable federal, state, and local laws; (2) declaratory relief stating Jensen-Lewis operates its website in a manner that discriminates against the blind; (3) an order under Rule 23 certifying a nationwide class, a New York State subclass, and a New York City subclass of all legally blind individuals who have attempted to access Jensen-Lewis's website, of which Wu would be the Class Representative and her attorneys Class Counsel; (4) compensatory, statutory, and punitive damages and fines under N.Y.C. Admin. Code Section 8-107 and N.Y. Exec. L. Section 296(2) et seq.; (5) pre- and post-judgment interest; and (6) attorneys' and experts' fees and costs. On Feb. 12, 2018, months after Wu filed her complaint but before Jensen-Lewis filed the instant motion to dismiss, Jensen-Lewis revamped its website. It claims that its new website contains "entirely new code" and new functions, including the ability to electronically process sales. Wu concedes that the revamp makes the "old website" that she originally accessed "irrelevant." However, Wu argues that the revamped website contains the same barriers alleged in her complaint. On March 7, 2018, Jensen-Lewis moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). It contends that the Court lacks subject matter jurisdiction over the case because the complaint has been rendered moot by Jensen-Lewis' new website, which went live on Feb. 12, 2018, after the filing of the instant complaint. The new website, Jensen-Lewis claims, is "fully accessible" and was developed to be in substantial compliance with the ADA and guidelines of WCAG 2.0. Judge Ramos disagrees with Jensen-Lewis that the case is consequently now moot. He holds that Jensen-Lewis has a new website is relevant only if the new website is ADA-compliant. Jensen-Lewis does not convincingly show that its new website is ADA-compliant, consequently, it has not shown that the "wrongful behavior" has permanently ceased. Wu's ADA claim is therefore not moot. Jensen-Lewis argues that, even if subject matter jurisdiction over the ADA claim is present, Wu's ADA claim must be dismissed because she fails to plausibly allege that Jensen-Lewis discriminated against her. The Judge finds otherwise. Because the parties do not dispute that Title III prohibits Jensen-Lewis from having a website that discriminates against disabled people, the Judge assumes without deciding that Title III applies to the private commercial websites of retail outlets with brick-and-mortar stores, like Jensen-Lewis. Moreover, the Judge finds that Wu's allegations, taken as true, plausibly show that Jensen-Lewis discriminated against Wu by denying her a full and equal opportunity to use its website. They are specific facts concerning Jensen-Lewis's website. Consequently, Wu has made a plausible claim under Title III of the ADA. For the reasons set forth, Judge Ramos denied Jensen-Lewis's motion to dismiss. He directed the parties to appear for an initial pretrial conference on Nov. 3, 2018, at 10:00 a.m. The Clerk of the Court is respectfully directed to terminate the motion. A full-text copy of the Court's Oct. 30, 2018 Opinion and Order is available at https://is.gd/5fsj9i from Leagle.com. Kathy Wu, and on behalf of all other persons similarly situated, Plaintiff, represented by Justin Alexander Zeller -- Jazeller@zellerlegal.com -- The Law Office of Justin A. Zeller, P.C. Jensen-Lewis Co, Inc. & Jensen-Lewis East, Inc., Defendants, represented by Maximilian Travis -- mtravis@muchmorelaw.com -- Law Office of Andrew Muchmore. KERBEROS INTERNATIONAL: Faces Ralston Suit in Sacramento -------------------------------------------------------- An employment-related class action lawsuit has been filed against Kerberos International Inc. The case is captioned as JASON RALSTON, individually and on behalf of all others similarly situated, Plaintiff v. KERBEROS INTERNATIONAL INC.; THE WHITESTONE GROUP INC.; and Does 1-100, Defendants, Case No. 34-2018-00243371-CU-OE-GDS (Cal. Super., Sacramento Cty., Oct. 26, 2018). Kerberos International, Inc. offers information technology consulting services. The company provides communications and scatterable media systems; spectrum security services; electromagnetic opposing force; portable electronic warfare systems; and electronic warfare classroom instruction services. It caters to Energy Industry; Government and Defense; Commercial Enterprises; and Emergency Management sectors. Kerberos International, Inc. was founded in 2006 and is based in Temple, Texas. [BN] The Plaintiff is represented by Galen T Shimoda, Esq. KROGER CO: Perez Appeals C.D. California Ruling to Ninth Circuit ---------------------------------------------------------------- Plaintiff Sonia Perez filed an appeal from a court ruling in the lawsuit titled Sonia Perez v. The Kroger Co., et al., Case No. 2:17-cv-02448-ODW-AGR, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, Judge Otis D. Wright, II, denied the Defendant's Motion to Dismiss Perez's Second Amended Class Action Complaint. The lawsuit is a consumer product class action. Ms. Perez alleges that Kroger's use of the statement "No Sugar Added" on Kroger 100% Apple Juice, Kroger 100% Natural Apple Juice, and Simple Truth Organic 100% Apple Juice, does not comply with the applicable Food and Drug Administration ("FDA") regulations. She alleges that Kroger's failure to comply with FDA regulations violates various California consumer protection statutes -- the Unfair Competition Law ("UCL"), the False Advertising Law ("FAL"), and the Consumer's Legal Remedies Act ("CLRA"). The appellate case is captioned as SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, Plaintiff-Appellant v. THE KROGER CO., an Ohio corporation; DOES, 1-10, inclusive, Defendants-Appellees, Case No. 18-56458, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- November 28, 2018 -- Transcript shall be ordered; -- December 28, 2018 -- Transcript shall be filed by court reporter; -- February 6, 2019 -- Appellant's opening brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1; and -- March 8, 2019 -- Appellees' answering brief and excerpts of record shall be served and filed pursuant to FRAP 31 and 9th Cir. R. 31-2.1.[BN] LADENBURG THALMANN: Bid for Class Cert. in Tennessee Suit Pending ----------------------------------------------------------------- Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 7, 2018, for the quarterly period ended September 30, 2018, that plaintiffs' motions for class certification and to remand the case to state court remain pending. In November 2015, two purported class action complaints were filed in state court in Tennessee against Miller Energy Resources, Inc.'s ("Miller") officers, directors, auditors and nine firms that underwrote six securities offerings by Miller in 2013 and 2014, which offerings raised approximately $151,000. Ladenburg was one of the underwriters of two of the offerings. The complaints allege, among other things, that the offering materials were misleading based on the purportedly overstated valuation of certain assets, and that the underwriters are liable for violations of federal securities laws. The plaintiffs seek an unspecified amount of compensatory damages, as well as other relief. In December 2015 the defendants removed the complaints to the U.S. District Court for the Eastern District of Tennessee; in November 2016, the cases were consolidated. In August 2017, the court granted in part and denied in part the underwriters' motion to dismiss the complaint. The plaintiffs' motions for class certification and to remand the case to state court are pending. Ladenburg intends to vigorously defend against these claims. No further updates were provided in the Company's SEC report. Ladenburg Thalmann Financial Services Inc. operates as a diversified financial services company in the United States. Its Independent Advisory and Brokerage Services segment offers advisory and securities brokerage services for clients, including advisor managed accounts, general securities, mutual funds, and variable and fixed annuities; brokerage support services, such as access to stock, bond, ETF, and options execution; products comprising insurance, non-traded real estate investment trusts, and unit trusts; and research, compliance, supervision, accounting, and related services. Ladenburg Thalmann Financial Services Inc. was founded in 1876 and is based in Miami, Florida. LPL FINANCIAL: Continues to Defend Class Action Suit ---------------------------------------------------- LPL Financial 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 company continues to defend a putative class action suit. A putative class action lawsuit has been filed against the Company and certain of its executive officers in federal district court alleging certain misstatements and omissions related to the Company's share repurchases and financial performance in late 2015. The Company intends to defend vigorously against the lawsuit. No further updates were provided in the Company's SEC report. LPL Financial Holdings Inc., together with its subsidiaries, provides an integrated platform of brokerage and investment advisory services to independent financial advisors and financial advisors at financial institutions in the United States. LPL Financial Holdings Inc. was founded in 1968 and is based in Boston, Massachusetts. LUMBER LIQUIDATORS: Continues to Defend Mason Class Suit -------------------------------------------------------- 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 company continues to defend itself against a purported class action suit initiated by Ashleigh Mason, Dan Morse, Ryan Carroll and Osagie Ehigie. On or about August 15, 2017, Ashleigh Mason, Dan Morse, Ryan Carroll and Osagie Ehigie filed a purported class action lawsuit in the United States District Court for the Eastern District of New York on behalf of all current and former store managers, store managers in training, installation sales managers and similarly situated current and former employees holding comparable positions but different titles (collectively, the "Putative Class Employees") alleging that the Company violated the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") by classifying the Putative Class Employees as exempt. The alleged violations include failure to pay for overtime work. The plaintiffs seek certification of the Putative Class Employees for (i) a collective action covering the period beginning three years and 115 days prior to the filing of the complaint through the disposition of this action for the Putative Class Employees nationwide in connection with FLSA and (ii) a class action covering the period beginning six years and 115 days prior to the filing of the complaint through the disposition of this action for members of the Putative Class Employees who currently are or were employed in New York in connection with NYLL. The plaintiffs did not quantify any alleged damages but, in addition to attorneys' fees and costs, the plaintiffs seek class certification, unspecified amount for unpaid wages and overtime wages, liquidated and/or punitive damages, declaratory relief, restitution, statutory penalties, injunctive relief and other damages. The Company disputes the claims and intends to defend the matter vigorously. Lumber Liquidators said. "Given the uncertainty of litigation, the preliminary stage of the substantive inquiry and briefing in the case, and the legal standards that must be met for, among other things, class certification and success on the merits, the Company cannot estimate the reasonably possible loss or range of loss, if any, that may result from this action and therefore no accrual has been made related to this. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company's results of operations, financial condition and liquidity." 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. LUMBER LIQUIDATORS: Kramer Class Suit Ongoing in California ----------------------------------------------------------- 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 company continues to defend itself from a purported class action suit filed by Robert J. Kramer. On or about November 17, 2017, Robert J. Kramer, on behalf of himself and all others similarly situated (collectively, the "Kramer Plaintiffs") filed a purported class action lawsuit in the Superior Court of California, County of Sacramento on behalf of all current and former store managers, all others with similar job functions and/or titles and all current and former employees classified as non-exempt or incorrectly classified as exempt and who worked for the Company in the State of California (collectively, the "CSM Employees") alleging violation of the California Labor Code including, among other items, failure to pay wages and overtime and engaging in unfair business practices. The Kramer Plaintiffs seek certification of the CSM Employees for a class action covering the prior four-year period prior to the filing of the complaint through the disposition of this action for the CSM Employees who currently are or were employed in California (the "California SM Class"). The Kramer Plaintiffs did not quantify any alleged damages but, in addition to attorneys' fees and costs, the Kramer Plaintiffs seek unspecified amounts for unpaid wages and overtime wages, liquidated and/or punitive damages, declaratory relief, restitution, statutory penalties, injunctive relief and other damages. The Company disputes the Kramer Plaintiffs' claims and intends to defend the matter vigorously. Lumber Liquidators said, "Given the uncertainty of litigation, the preliminary stage of the case and the legal standards that must be met for, among other things, class certification and success on the merits, the Company cannot estimate the reasonably possible loss or range of loss, if any, that may result from this action and therefore no accrual has been made related to this. Any such losses could, potentially, have a material adverse effect, individually or collectively, on the Company’s results of operations, financial condition and liquidity." 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. MASTERCARD INC: Class Cert. Bid Filed Anew in Liability Shift Suit ------------------------------------------------------------------ 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 plaintiffs in the shift fraud liability litigation have filed a renewed motion for class certification, following the district court's denial of their initial motion. In March 2016, a proposed U.S. merchant class action complaint was filed in federal court in California alleging that Mastercard, Visa, American Express and Discover (the "Network Defendants"), EMVCo, and a number of issuing banks (the "Bank Defendants") engaged in a conspiracy to shift fraud liability for card present transactions from issuing banks to merchants not yet in compliance with the standards for EMV chip cards in the United States (the "EMV Liability Shift"), in violation of the Sherman Act and California law. Plaintiffs allege damages equal to the value of all chargebacks for which class members became liable as a result of the EMV Liability Shift on October 1, 2015. The plaintiffs seek treble damages, attorney's fees and costs and an injunction against future violations of governing law, and the defendants have filed a motion to dismiss. In September 2016, the court denied the Network Defendants' motion to dismiss the complaint, but granted such a motion for EMVCo and the Bank Defendants. In May 2017, the court transferred the case to New York so that discovery could be coordinated with the U.S. merchant class interchange litigation. The plaintiffs have filed a renewed motion for class certification, following the district court's denial of their initial motion. 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. MASTERCARD INC: Continues to Defend ATM Surcharge-Related Suits --------------------------------------------------------------- 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 company continues to defend class action lawsuits related to ATM Surcharge Fees. In October 2011, a trade association of independent Automated Teller Machine ("ATM") operators and 13 independent ATM operators filed a complaint styled as a class action lawsuit in the U.S. District Court for the District of Columbia against both Mastercard and Visa (the "ATM Operators Complaint"). Plaintiffs seek to represent a class of non-bank operators of ATM terminals that operate in the United States with the discretion to determine the price of the ATM access fee for the terminals they operate. Plaintiffs allege that Mastercard and Visa have violated Section 1 of the Sherman Act by imposing rules that require ATM operators to charge non-discriminatory ATM surcharges for transactions processed over Mastercard's and Visa's respective networks that are not greater than the surcharge for transactions over other networks accepted at the same ATM. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. Subsequently, multiple related complaints were filed in the U.S. District Court for the District of Columbia alleging both federal antitrust and multiple state unfair competition, consumer protection and common law claims against Mastercard and Visa on behalf of putative classes of users of ATM services (the "ATM Consumer Complaints"). The claims in these actions largely mirror the allegations made in the ATM Operators Complaint, although these complaints seek damages on behalf of consumers of ATM services who pay allegedly inflated ATM fees at both bank and non-bank ATM operators as a result of the defendants' ATM rules. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. In January 2012, the plaintiffs in the ATM Operators Complaint and the ATM Consumer Complaints filed amended class action complaints that largely mirror their prior complaints. In February 2013, the district court granted Mastercard's motion to dismiss the complaints for failure to state a claim. On appeal, the Court of Appeals reversed the district court's order in August 2015 and sent the case back for further proceedings. No further updates were provided in the Company's SEC report. 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. MASTERCARD INC: Still Awaits Court OK on Canadian POS Case Accord ----------------------------------------------------------------- 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 company's class settlement agreement to resolve all of the Canadian class action litigation related to point-of-sale (POS) acceptance rules is still subject to court approval in each applicable province. In December 2010, a proposed class action complaint was commenced against Mastercard in Quebec on behalf of Canadian merchants. The suit essentially repeated the allegations and arguments of a previously filed application by the Canadian Competition Bureau to the Canadian Competition Tribunal (dismissed in Mastercard's favor) concerning certain Mastercard rules related to point-of-sale acceptance, including the "honor all cards" and "no surcharge" rules. The Quebec suit sought compensatory and punitive damages in unspecified amounts, as well as injunctive relief. In the first half of 2011, additional purported class action lawsuits were commenced in British Columbia and Ontario against Mastercard, Visa and a number of large Canadian financial institutions. The British Columbia suit sought compensatory damages in unspecified amounts, and the Ontario suit sought compensatory damages of $5 billion on the basis of alleged conspiracy and various alleged breaches of the Canadian Competition Act. Additional purported class action complaints were commenced in Saskatchewan and Alberta with claims that largely mirror those in the other suits. In June 2017, Mastercard entered into a class settlement agreement to resolve all of the Canadian class action litigation. The settlement, which is subject to court approval in each applicable province, requires Mastercard to make a cash payment and modify its "no surcharge" rule. During the first quarter of 2017, the Company recorded a provision for litigation of $15 million related to this matter. No further updates were provided in the Company's SEC report. 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. MAWKS EDELWEISS: Fails to Pay OT Waitstaff, Aniszewski Claims ------------------------------------------------------------- MONICA ANISZEWSKI, individually and on behalf of all others similarly situated, Plaintiff v. MAWKS EDELWEISS, LTD. d/b/a EDELWEISS RESTAURANT; MATTHEW KOSCH; and WALTER KOSCH, Defendants, Case No. 1:18-cv-07195 (N.D. Ill., Oct. 28, 2018) is an action against the Defendants' failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Aniszewski was employed by the Defendants as waitstaff.[BN] The Plaintiff is represented by: John C. Ireland, Esq. THE LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin, IL 60177 Telephone: (630) 464-9675 Facsimile: (630) 206-0889 E-mail: attorneyireland@gmail.com MDL 2804: Pioneer Tel vs. Purdue Pharma over Opiates Consolidated ----------------------------------------------------------------- The case, Pioneer Telephone Cooperative Inc. Employee Benefits Plan and Bios Companies Inc as Plan Sponsor and Fiduciary of Bios Companies Inc Welfare Plan, individually and on behalf of all others similarly situated, the Plaintiffs, v. Purdue Dharma LIP., Purdue Dharma Inc.; Cephalic Inc.; Neva Pharmaceutical Industries Ltd.; Neva Pharmaceuticals USA, Inc.; Jansen Pharmaceuticals Inc.; Johnson & Johnson; Aramco Inc.; Or tho-McNeil-Janssen Pharmaceuticals, Inc., now known as Jansen Pharmaceuticals Inc.; Jansen Pharmaceutical Inc., now known as Jansen Pharmaceuticals Inc.; Undo Health Solutions Inc.; Undo Pharmaceuticals Inc.; Allergen PL, formerly known as: Activist PL; Watson Pharmaceuticals, Inc., now known as Activist Inc.; Watson Laboratories Inc.; Activist Dharma, Inc., formerly known as: Watson Dharma, Inc.; Activist LLC; Maeterlinck PL; Maeterlinck LLC; McPherson Corporation; Cardinal Health Inc.; Counterinsurgency Drug Corporation; and Purdue Frederick Company, Inc., the Defendants, Case No. 5:18-cv-00994, was transferred from the US. District Court for the Western District of Oklahoma, to the US. District Court for the Northern District of Ohio (Cleveland) on Oct. 26, 2018. The Northern District of Ohio Court Clerk assigned Case No. 1:18-op-46186-PAD to the proceeding. The Pioneer case is being consolidated with ML 2804 in re: NATIONAL PRESCRIPTION OPIATE LITIGATION. The ML was created by Order of the United States Judicial Panel on Multi district Litigation on December 5, 2017. These cases concern the alleged improper marketing of and inappropriate distribution of various prescription opiate medications into cities, states and towns across the country. Responding plaintiffs' positions on centralization vary considerably. Plaintiffs in over 40 actions or potential tag-along actions support centralization. Plaintiffs in 15 actions or potential tag-along actions oppose centralization altogether or oppose transfer of their action. In addition to opposing transfer, the State of West Virginia suggests that the ML Panel delay transferring its case until the Southern District of West Virginia court decides its motion to remand to state court. Third party payer plaintiffs in an Eastern District of Pennsylvania potential tag-along action (Philadelphia Teachers Health and Welfare Fund) oppose centralization of third participatory actions. Western District of Washington plaintiff City of Everett opposes centralization and, alternatively, requests exclusion of its case. Northern District of Illinois tag-along Plaintiff City of Chicago asks the Panel to defer transfer of its action until document discovery is completed. The Presiding Judge in the ML is Sarah S. Vance, United States District Judge. The lead case is 1:17-MD-02804-PAD.[BN] Attorneys for Plaintiffs: Brandon P Long, Esq. Henry D Hiss, Esq. Mark D. Spencer, Esq. Richard D Nix, Esq. CAFE & TAFT-KC 211 N Robinson Ave., 10th Fl Oklahoma City, OK 73102 Telephone: (405) 235-9621 Facsimile: (405) 235-0439 E-mail: brandon.long@mcafeetaft.com henry.hoss@mcafeetaft.com mark.spencer@mcafeetaft.com richard.nix@mcafeetaft.com MONDELEZ INT'L: Antitrust Suit over Wheat Prices Underway --------------------------------------------------------- Mondelez 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, that the company, together with Kraft Foods Group, continues to defend a lawsuit over alleged market manipulation of wheat prices. On April 1, 2015, the U.S. Commodity Futures Trading Commission ("CFTC") filed a complaint against Kraft Foods Group and Mondelez Global LLC ("Mondelez Global") in the U.S. District Court for the Northern District of Illinois, Eastern Division (the "CFTC action") following its investigation of activities related to the trading of December 2011 wheat futures contracts that occurred prior to the spin-off of Kraft Foods Group. The complaint alleges that Kraft Foods Group and Mondelez Global (1) manipulated or attempted to manipulate the wheat markets during the fall of 2011; (2) violated position limit levels for wheat futures and (3) engaged in non-competitive trades by trading both sides of exchange-for-physical Chicago Board of Trade wheat contracts. The CFTC seeks civil monetary penalties of either triple the monetary gain for each violation of the Commodity Exchange Act (the "Act") or $1 million for each violation of Section 6(c)(1), 6(c)(3) or 9(a)(2) of the Act and $140,000 for each additional violation of the Act, plus post-judgment interest; an order of permanent injunction prohibiting Kraft Foods Group and Mondelez Global from violating specified provisions of the Act; disgorgement of profits; and costs and fees. Additionally, several class action complaints were filed against Kraft Foods Group and Mondelez Global in the U.S. District Court for the Northern District of Illinois by investors in wheat futures and options on behalf of themselves and others similarly situated. The complaints make similar allegations as those made in the CFTC action and seek class action certification; an unspecified amount for damages, interest and unjust enrichment; costs and fees; and injunctive, declaratory and other unspecified relief. In June 2015, these suits were consolidated in the Northern District of Illinois. Mondelez International said, "It is not possible to predict the outcome of these matters; however, based on our Separation and Distribution Agreement with Kraft Foods Group dated as of September 27, 2012, we expect to bear any monetary penalties or other payments in connection with the CFTC action." No further updates were provided in the Company's SEC report. Mondelez International, Inc., through its subsidiaries, manufactures and markets snack food and beverage products worldwide. It offers biscuits, including cookies, crackers, and salted snacks; chocolates; gums and candies; coffee and powdered beverages; and cheese and grocery products. Mondelez International, Inc. was founded in 2000 and is based in Deerfield, Illinois. MONSANTO COMPANY: Bindon Sues over Sale of Herbicide Roundup ------------------------------------------------------------ ANNETTE A. BINDON, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01854 (E.D. Mo., Oct. 29, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb #51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Singletary Sues over Use of Herbicide Roundup --------------------------------------------------------------- MARY B. SINGLETARY, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01851 (E.D. Mo., Oct. 29, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb No. 51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Sinka Suit Moved to N.D. California ----------------------------------------------------- The class action lawsuit titled TIM SINKA, individually and on behalf of all others similarly situated, Plaintiff v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01422, was removed from the U.S. District Court for the Eastern District of Missouri, to the U.S. District Court for the Northern District of California on October 26, 2018. The District Court Clerk assigned Case No. 3:18-cv-06550 to the proceeding. The Case is assigned to the Hon. Vince Chhabria. Monsanto Company, together with its subsidiaries, provides agricultural products for farmers worldwide. The company was formerly known as Monsanto Ag Company and changed its name to Monsanto Company in March 2000. Monsanto Company was founded in 2000 and is based in St. Louis, Missouri. As of June 7, 2018, Monsanto Company operates as a subsidiary of Bayer Aktiengesellschaft. [BN] The Plaintiff is represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC. 9500 Nall Ave. Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MONSANTO COMPANY: Sixbury Sues over Sale of Herbicide Roundup ------------------------------------------------------------- DAN L. SIXBURY, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01821 (E.D. Mo., Oct. 26, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb #51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MONSANTO COMPANY: Strong Sues over Sale of Herbicide Roundup ------------------------------------------------------------ MARIE STRONG, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-01824 (E.D. Mo., Oct. 26, 2018), seeks to recover damages suffered by Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb #51236 BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com NATIONAL GUNITE: Kamm et al. Seek to Certify FLSA Class ------------------------------------------------------- JOSHUA ZIEMBOWICZ, RONALD KAMM, and PHILIP WIRTH, individually and on behalf of all others similarly situated, the Plaintiffs, vs. NATIONAL GUNITE CO., INC., and STEVEN MILLIGAN, the Defendants, Case No. 4:18-cv-12561-LVP-DRG (E.D. Mich.), the Plaintiffs move the Court for an order: 1. certifying collective action for unpaid overtime wages under 29 U.S.C. section 216(b) of the Fair Labor Standards Act: "all hourly workers employed by Defendants in the past three years"; 2. appointing Ziembowicz and Kamm as class representatives, and Plaintiffs' counsel as class counsel; 3. directing Defendants to provide Plaintiffs with the names and last-known addresses and contact information of all potential Class members; and 4. directing Court-supervised notice at Defendants' expense to all potential Class members.[CC] Attorney for Plaintiffs and the Putative Collective: Amy Marino, Esq. MARINO LAW, PLLC 18977 W. Ten Mile Rd., Ste. 100E Southfield, MI 48075 Telephone: (248) 797-9944 E-mail: amy@marinopllc.com NEW YORK, NY: Elsayed Files Civil Rights Class Suit --------------------------------------------------- A class action lawsuit has been filed against the city of New York, et al. The case is styled as Gehad Elsayed, Laila Ibrahim on behalf of themselves and others similarly situated, Plaintiffs v. City of New York, NYPD Officer Chenise Brodie, NYPD Officers John and Jane Doe # 1, 2, 3, etc., Defendants, Case No. 1:18-cv-10566 (S.D. N.Y., Nov. 13, 2018). The nature of suit is stated as Other Civil Rights. The City of New York, often called New York City (NYC) or simply New York (NY), is the most populous city in the United States. With an estimated 2017 population of 8,622,698 distributed over a land area of about 302.6 square miles, New York City is also the most densely populated major city in the United States.[BN] The Plaintiffs are represented by: Luna Droubi, Esq. Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 Phone: (212) 277-5875 Fax: (212) 277-5880 Email: ldroubi@blhny.com OCEAN SPRAY: Court Denies Summary Judgment Bid in Hilsley Suit -------------------------------------------------------------- In the case, CRYSTAL HILSLEY, on behalf of herself and all others similarly situated, Plaintiff, v. OCEAN SPRAY CRANBERRIES, INC.; ARNOLD WORLDWIDE LLC; and DOES defendants 1 through 5, inclusive, Defendants, Case No. 17cv2335-GPC(MDD)(S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California denied the Defendants' motion for summary judgment. The action was removed to the Court pursuant to the Class Action Fairness Act on Nov. 16, 2017. Plaintiff Hilsley brings a purported consumer class action against Defendants Ocean Spray Cranberries, Inc. and Arnold Worldwide, LLC for violations of California consumer protection laws based on misrepresentation of labels on certain Ocean Spray products. Ocean Spray manufactures, distributes, advertises, markets and sells a variety of juices and juice-based beverage products. Arnold participates in the labeling and advertising of these products for Ocean Spray. According to Hilsley, the labels on the Defendants' juice-based beverage products labeled "Cran-Apple" and "Cran-Grape" states "No artificial flavors." The Cran-Apple juice drink includes fumaric acid and malic acid as ingredients. The Cran-Grape juice drink contains fumaric acid. According to Hilsley, the Cran-Apple juice drink contains an artificial ingredient called d-l malic acid. Dl-malic acid is a racemic mixture that does not occur naturally but is produced synthetically by hydration of fumaric acid or maleic acid. The complaint alleges that Ocean Spray uses a synthetic form of fumaric acid to simulate the flavor of grapes in its Cran-Grape product. The Plaintiff purchased four Ocean Spray juice drinks: 1) Ocean Spray Cran-Apple; 2) Ocean Spray Cran-Grape; 3) Ocean Spray 100% Apple Juice; and 4) Ocean Spray Cranberry Juice Cocktail. She concedes that Ocean Spray Cranberry Juice Cocktail does not contain malic acid or fumaric acid and she is no longer asserting claims as to the Cranberry Juice Cocktail. While the Plaintiff agrees that the Ocean Spray 100% Apple Juice does not contain fumaric acid, she disputes the Defendants' claim that Ocean Spray 100% Apple Juice does not contain malic acid and refers to Ocean Spray's own website where malic acid is an ingredient in the 100% Apple Juice product for the 15.2-ounce bottles. The Defendants argue that since the Plaintiff purchased the 64-ounce3 100% Apple Juice product which does not contain malic acid, her reference to the single-serve bottle is not relevant in the case. The Court disagrees. Neither party has explained the difference in the ingredient labels of the 15.2-ounce and 60-ounce bottle of the same exact product. Accordingly, the Court concludes that this is a disputed issue of fact. When the Plaintiff purchased the Defendants' juice products, she read and relied on the products' labels including "No artificial flavors or preservatives" and the fact that the labels failed to state that they contained artificial flavorings. The Plaintiff would not have purchased the juice products had she known they contained artificial ingredients. The complaint alleges that the Defendants' product labels stating the products contain "No Artificial Flavors" are false and misleading because their juice products contain artificial flavor ingredients of dl-malic acid and fumaric acid. The complaint also claims that the products' ingredient list violates federal and state law because it incorrectly identifies malic acid as a generic "malic acid" instead of using the correct, specific, non-generic chemical name. The Plaintiff alleges six causes of action for violation of the Consumer Legal Remedies Act; violation of the unlawful prong of the Unfair Competition Law ("UCL"); violation of the unfair prong of the UCL; violation of California's False Advertising Law, breach of express warranty and breach of implied warranty. Before the Court is the Defendants' motion for summary judgment on all six causes of action arguing that malic and fumaric acids do not function as flavors in their juice products but instead are acidulants used to control the pH and titratable acid levels in their juices. Because each cause of action is dependent on the determination that malic and fumaric acids function as flavors in the Defendants' products, they argue that summary judgment should be granted on all causes of action. The Plaintiff responds arguing there are genuine issues of material fact that malic and fumaric acids act as flavors in the Defendants' products. Judge Curiel concludes that there is a material issue of disputed fact whether malic acid and fumaric acid function as flavors in the Defendants' juice products. He finds that (i) simply because malic and fumaric acids are not on the FDA lists does not mean that the FDA has determined they are not artificial flavors; and (ii) use of "taste" and "flavor profile" to describe l-malic acid in Ocean Spray's own documents challenges the Defendants' assertion that taste and flavor are distinct. Based on the competing declarations, the Judge denied the Defendants' motion for summary judgment. The Defendants argue malic acid, as stated in the regulations, is the common and usual name that is properly placed on their labels' ingredient list. Whether the Defendants failed to comply with federal labeling laws is dependent on whether malic and fumaric acids function as flavors in the Defendants' juice products. At this stage, since there is a genuine issue of material fact whether malic acid and fumaric acid are flavors, there remains an issue as to how those specific ingredients must be labeled. Accordingly, the Judge rejects the Defendants' argument as premature. The Defendants filed a Request for Judicial Notice of two court orders from the Southern District of California denying motions to dismiss in Allred v. Kellogg Co., No. 17-cv-1354-AJB, Dkt. No. 20, Order Denying Defendant's Motion to Dismiss (Feb. 23, 2018); and Allred v. Frito-Lay North Am., Inc., No. 17-cv-1345-JLS, (Dkt. No. 26), Order Denying Defendants' Motion to Dismiss (Mar. 7, 2018). The Plaintiff did not file an opposition. Accordingly, the Judge granted the Defendants' request for judicial notice. A full-text copy of the Court's Oct. 30, 2018 Order is available at https://is.gd/wu0RDU from Leagle.com. Crystal Hilsley, on behalf of herself and all others similarly situated, Plaintiff, represented by David Elliot, The Elliott Law Firm, Michael Houchin -- mike@consumeradvocates.com -- Law Offices of Ronald A. Marron, Ronald Marron -- ron@consumersadvocates.com -- Law Office of Ronald Marron & Tania Babaie -- tania@consumersadvocates.com -- Law Offices of Ronald A Marron. Ocean Spray Cranberries, Inc. & Arnold Worldwide LLC, Defendants, represented by Ricky Lynn Shackelford -- shackelfordr@gtlaw.com -- Greenberg Traurig, LLP. The Nielsen Company (U.S.), LLC, Miscellaneous Party, represented by Heather Elizabeth Belville -- heatherbelville@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP & Robert James Slobig -- rslobig@torshen.com -- Torshen, Slobig & Axel, Ltd., pro hac vice. OLD COUNTRY ROAD: Zisholtz Sues over Security Deposits ------------------------------------------------------ ZISHOLTZ & ZISHOLTZ, LLP, individually and for and on behalf of all the occupants and residents similarly situated occupying portions of the premises known as and located at 170 Old Country Road, Mineola, New York, the Plaintiff, vs. OLD COUNTRY ROAD REALTY, LP, SKYLINE MANAGEMENT CORP. and EMPIRE NATIONAL BANK, the Defendants, Case No. 613416/2018 (N.Y. Sup. Ct., Oct. 4, 2018), demands $42,849.01 in judgment against the Defendants, as well as an accounting to the plaintiff and all other parties similarly situated occupying the premises located at 170 Old Country Road, Mineola, New York, with respect to the security deposits delivered to the Defendants and the benefits derived from the deposits. According to the complaint, the plaintiff and the class have judgment against the Defendants for all taxes and electric bills paid to the Defendants and the calculations used to determine the appropriate calculations. The Defendants derived substantial benefits and income as a result of the use and manipulation of Plaintiffs' security deposit.[BN] Attorneys for Plaintiff Gerald Zisholtz, Esq. ZISHOLTZ & ZISHOLTZ LLP 170 Old Country Road Mineola, NY 11501 Telephone: (516) 741-2200 OM PURSHANTAM: Smith Seeks Unpaid Overtime Pay under FLSA --------------------------------------------------------- MALLORY SMITH, Individually and on behalf of All Others Similarly Situated, the Plaintiff, vs. OM PURSHANTAM, LLC and TANVI DESAI, the DEFENDANTS, Case No.: 4:18-cv-00797-KGB (E.D. Ark., Oct. 29, 2018), seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorneys' fees, as a result of Defendants' failure to pay Plaintiff and other hourly-paid employees lawful overtime compensation for hours worked in excess of 40 hours per week under the Fair Labor Standards Act and Arkansas Minimum Wage Act. According to the complaint, the Plaintiff worked for Defendants as a front desk worker for Defendants' motel. The basic duties of Plaintiff included checking guests in and out, assisting guests and cleaning the lobby of the motel. The Plaintiff and other hourly-paid employees were paid an hourly rate by Defendants. The Plaintiff and other hourly-paid employees routinely worked more than 40 hours in a single workweek. The Defendants had a practice of not paying Plaintiff and other hourly-paid employees one and one-half (1.5) times their regular rate for any hours worked in excess of 40 hours per workweek, the lawsuit says.[BN] Attorneys for Plaintiff: Allison Koile, Esq. Chris Burks, Esq. Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: allison@sanfordlawfirm.com chris@sanfordlawfirm.com josh@sanfordlawfirm.com P.A.M. TRANSPORT: Browne Seeks to Certify Class & Subclass ---------------------------------------------------------- In the class action lawsuit captioned as DAVID BROWNE, et al., the Plaintiffs, vs. P.A.M. TRANSPORT, INC., et al., the Defendants, Case 5:16-cv-05366-TLB (W.D. Ark.), the Plaintiffs move the Court for an order: 1. certifying a class of: "individuals who were employed by Defendants as over-the- road truck drivers, whether employed as a solo or team driver, from December 9, 2013 to the present"; 2. certifying two subclasses: "all individuals who were were paid wages and/or advances by Defendants via COMDATA from December 9, 2013 to the present"; and "all individuals who were discharge from employment from December 9, 2013 to the present". 3. directing to facilitate notice to putative class. 4. permitting counsel for the parties to work out the language of the opt-out notice following the Court's decision on instant motion. 5. appointing Swartz Swidler LLC, Justin Swidler, Richard Swartz, Joshua Boyette and Travis Martindale-Jarvis as class counsel; 6. appointing David Browne, Antonio Caldwell and Lucretia Hall as class representatives. Attorneys for Plaintiffs: Justin L. Swidler, Esq. Joshua S. Boyette, Esq. Travis B. Martindale-Jarvis, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway N, Ste. 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jswidler@swartz-legal.com PARAMOUNT BEAUTY: Unlawfully Terminates Pregnant Women, Diaz Says ----------------------------------------------------------------- LETICIA MENJIVAR DIAZ, individually and on behalf of all others similarly situated, Plaintiff v. PARAMOUNT BEAUTY DISTRIBUTING ASSOCIATES, INC.; and JEFFREY HAGLER, Defendants, Case No. 2:18-cv-05922 (E.D.N.Y., Oct. 23, 2018) alleges violation of the Pregnancy Discrimination Act. According to the complaint, on July 6, 2018, the Plaintiff informed the Defendant that she was pregnant and requested light duty. The Defendant summarily terminated the Plaintiff's employment that same date without warning or justification. Paramount Beauty Distributing Associates, Inc. wholesales and distributes personal care products. The Company provides hair, nail and skincare products. Paramount Beauty Distributing Associates serves customers in the United States. [BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC Peter A. Romero, Esq. 825 Veterans Highway-Ste B Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: promero@romerolawny.com PATIENT INNOVATION: Fails to Pay Minimum & OT Wages, Tomala Says ---------------------------------------------------------------- Boguslawa Tomala individually and on behalf of all persons similarly situated as class representative under Illinois Law and/or as members of the Collective as permitted under the Fair Labor Standards Act, vs. Patient Innovation Center, NFP and Christopher Gay and Angelica Magana Named as an Employers under the IWPCA, the Defendants, Case No.: 2018L011666 (Ill. Cir. Ct., Cook Cty., Oct. 26, 2018), seeks to recover minimum wage for all hours worked and overtime pay for all hours worked over 40 hours per week pursuant to the Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act. According to the complaint, the Plaintiff worked for Defendant as a healthcare insurance advisor, assistant and call center employee, helping persons to sign up for insurance. The Plaintiff was hired and promised an Agreed-To rate of pay of $20.00 per hour and $30.00 per hour for an overtime rate of pay. The Plaintiff began working on October 22, 2015 and she worked for Defendants full time and overtime. During the two months of work for Defendants from October 22, 2015 to December 31, 2015, Plaintiff worked a total of 279.4 hours and 6.63 hours of overtime. Despite Plaintiff working these hours in 2015 for PIC, Plaintiff was only paid a single paycheck for those 279.4 hours, the lawsuit says.[BN] Attorney for Plaintiff and Class: John C. Ireland, Esq. THE LAW OFFICE OF JOHN C. IRELAND 636 Spruce Street South Elgin IL Telephone: 630 464-9675 Facsimile: 630 206-0889 E-mail: attorneyireland@mgmail.com PAYLESS SHOESOURCE: Tucker Files ADA Suit in New York ----------------------------------------------------- A class action lawsuit has been filed against Payless Shoesource, Inc. The case is styled as Henry Tucker on behalf of himself and all others similarly situated, Plaintiff v. Payless Shoesource, Inc., Defendant, Case No. 1:18-cv-10609 (S.D. N.Y., Nov. 14, 2018). The Plaintiff filed the case under the Americans with Disabilities Act. Payless ShoeSource Inc. is an American discount footwear retailer headquartered in Dallas, Texas. Established in 1956 by cousins Louis and Shaol Pozez, Payless is a privately held company owned by Blum Capital, and Golden Gate Capital.[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 PEOPLE'S UNITED: Walker Seeks to Certify 2 Classes -------------------------------------------------- TERRIANN WALKER, individually, and on behalf of others similarly situated, the Plaintiff, vs. PEOPLE'S UNITED BANK and DOES 1 through 100, the Defendants, Case No. 3:17-cv-00304-AVC (D. Conn.), the Plaintiff asks the Court to certify these classes: Account Balance Class: "all United States residents who have or have had accounts with People’s United Bank who incurred an overdraft fee or overdraft fees when the balance in the checking account was sufficient to cover the transaction or transaction at issue during the period beginning six years prior to the filing of the Complaint (i.e., February 21, 2011) and ending on November 1, 2016"; and Regulation E Class: "all United States residents who have or have had accounts with People’s United Bank who incurred overdraft fee or overdraft fees for ATM or non-recurring debit card transaction(s) during the period beginning August 15, 2010 and through the present." Excluded from the Classes are: any entity in which Defendant has a controlling interest; officers or directors of Defendant; this Court and any of its employees assigned to work on the case; and all employees of the law firms representing Plaintiff and the Class members.[CC] Attorneys for Plaintiff and Putative Classes: Richard D. McCune, Esq. Emily J. Kirk, Esq. McCUNE WRIGHT AREVALO LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: rdm@mccunewright.com ejk@mccunewright.com - and - Richard E. Hayber, Esq. HAYBER LAW FIRM, LLC 221 Main Street, Suite 502 Hartford, CT 06106 Telephone: (860) 522-8888 Facsimile: (860) 218-9555 E-mail: rhayber@hayberlawfirm.com - and - Taras Kick, Esq. Robert J. Dart, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Telephone: (310) 395-2988 Facsimile: (310) 395-2088 E-mail: Taras@kicklawfirm.com Robert@kicklawfirm.com PEPPERIDGE FARM: Underpays Distributors, Phelps et al. Allege ------------------------------------------------------------- GREGORY PHELPS; KEVIN TANEY; and RANDOLPH LATIMER, individually and on behalf of all others similarly situated, Plaintiffs v. PEPPERIDGE FARM, INC., Defendant, Case No. 8:18-cv-03313-PWG (D. Md., Oct. 26, 2018) is an action against the Defendant for failure to pay minimum wages, overtime compensation, provide accurate wage statements, and reimburse necessary business expenses. The Plaintiffs were employed by the Defendant as distributors. Pepperidge Farm, Inc. provides fresh bakery products, cookies, crackers, and frozen foods. The Company offers crackers, chips, breakfast, fresh breads, roll frozen breads and rolls, desserts and puff pastry, meals, and goldfish crackers. [BN] The Plaintiffs are represented by: Jon Pels, Esq. PELS LAW FIRM, LLC 4845 Rugby Avenue, Third Floor Bethesda, MD 20814 Telephone: (301) 986-5570 - and – Anthony S. Fernandez, Esq. LAW OFFICE OF ANTHONY S. FERNANDEZ, LLC 4845 Rugby Avenue, Third Floor Bethesda, MD 20814 Telephone: (301) 656-5500 PGA INC: Court Decertifies Sinclair FLSA Class ---------------------------------------------- In the case, ERIK SINCLAIR and DAVID KRALL, on behalf of themselves and all others similarly situated, Plaintiffs, v. PGA INC., Defendant, Case No. 17-cv-224-wmc (W.D. Wis.), Judge William M. Conley of the U.S. District Court for the Western District of Wisconsin (i) denied the Plaintiffs' motion for class certification of the state law claim; and (2) granted the Defendant's motion to decertify the FLSA collective action. In this hybrid FLSA collective action and state labor law putative class action, Plaintiffs Sinclair and Krall assert claims against Defendant PGA for: (1) a violation of the FLSA by failing to calculate a straight time average rate and pay overtime based on that rate, rather than the rate of pay for the work performed during overtime hours; and (2) a violation of state law by misclassifying employees as general laborers on prevailing wage projects. In a related lawsuit, Schilling v. PGA, Inc., No. 16-cv-202 (W.D. Wis. filed Apr. 1, 2016), the Court denied the plaintiffs leave to amend their complaint to add a claim challenging the defendant's classification of employees on prevailing wage projects, finding that the plaintiff unduly delayed in asserting that claim and the defendant would be prejudiced by the addition of it so late in the procedural posture of that case. The court similarly denied the plaintiffs leave to add an individual claim on the part of plaintiff Sinclair based on weekend work on one project. The Plaintiffs then filed the present lawsuit in state court, asserting those two state law claims but also asserting an FLSA claim based on the same "straight time average rate" theory pursued in the Schilling case under state law. The assertion of an FLSA claim provided the federal question jurisdictional hook for the defendant to remove the case to federal court. By stipulation of the parties, the Court previously conditionally certified an FLSA collective action on the first claim. However, no members opted into the FLSA collective action. Nevertheless, the Plaintiffs attempt to piggyback on the previous FLSA collective notice and opt-ins from the Schilling case. As to their misclassification state law claim, the Plaintiffs seek to certify a class of all hourly employees who worked on a prevailing wage jobsite for PGA, Inc. during the time period on or after Feb. 17, 2015. Before the Court are: (1) the Plaintiffs' motion for class certification of the state law claim; and (2) the Defendant's motion to decertify the FLSA collective action. Before addressing the Plaintiffs' motion to certify a state law class and the Defendant's motion to decertify the FLSA collective action, the Court must address two preliminary issues. First, the Plaintiffs move for leave to file a second amended complaint, seeking to add Dale Mills as a Plaintiff and replace David Krall as the class representative. Second, the Defendant moves to dismiss voluntarily its counterclaim for unjust enrichment against Plaintiff Sinclair. Judge Conley requires any dismissal of the counterclaim to be with prejudice. He, however, gave the Defendant until Nov. 6, 2018, to inform the Court and the Plaintiffs whether it wishes to stand on its motion for leave to voluntarily dismiss its counterclaim, with that dismissal being with prejudice, or whether it wishes to withdraw its motion and continue to prosecute this counterclaim. The Plaintiffs move for certification under Rule 23(b)(3), which requires them to show both that: (1) questions of law and fact common to class members predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Judge Conley finds that the Plaintiffs' motion stumbles on both of these requirements. While the Plaintiffs could prove on a classwide basis that PGA had a policy of breaking out work into different trades, whether that policy violates state law would necessarily require individual determinations of the degree of "relatedness" between the work classified by PGA as general laborer work and any skilled trade work proffered by the individual worker. These type of individual questions are not amenable to class treatment, and liability would turn on the answer to those individual questions. For the same reasons numerosity and predominance are not satisfied, the Judge further finds that a class action is not a superior method of resolving a fairly limited number of individualized employee claims. Not only would there be significant difficulties in managing that class action, but it is not clear what, if any, economies of scale would be achieved. Accordingly, he will deny the Plaintiffs' motion for class certification. The individual Plaintiffs may continue to pursue their state law claims based on the misclassification of their work on prevailing wage jobs as general laborer work. As to the Defendant's motion to decertify the FLSA collective action, Judge Conley will grant it, finding that the lack of opt-ins undermines the entire purpose of a collective action. The named Plaintiffs are free to pursue the FLSA claim on an individual basis. Accordingly, he decertified the FLSA collective action. Based on the foregoing, Judge Conley (i) granted the Plaintiffs' motion for leave to file second amended complaint; (ii) denied the Plaintiffs' motion to certify class under Rule 23; (iii) granted the Defendant's motion to decertify the FLSA collective action; (iv) reserved the Defendant's motion to voluntarily dismiss its counterclaim without prejudice. Having never submitted an opt-in form to join the FLSA collective action at issue in the case, the clerk of court is directed the terminate the following individuals as Plaintiffs: Eric Schilling, Blaine Krohn, Douglas P. Bannister, Wyly D. Schiebe, Ryan W. Bergeman, Jeremy R. Buck and Timothy J. Danley. A full-text copy of the Court's Oct. 30, 2018 Opinion and Order is available at https://is.gd/Nt0dvJ from Leagle.com. Erik Sinclair, David Krall & Dale B. Mills, Plaintiffs, represented by Yingtao Ho -- yh@previant.com -- The Previant Law Firm, S.C. PGA, Inc., Defendant, represented by John H. Zawadsky -- jzawadsky@reinhartlaw.com -- Reinhart Boerner Van Deuren, SC & Robert S. Driscoll -- rdriscoll@reinhartlaw.com -- Reinhart Boerner Van Deuren s.c. PGA, Inc., Counter Claimant, represented by John H. Zawadsky, Reinhart Boerner Van Deuren, SC & Robert S. Driscoll, Reinhart Boerner Van Deuren s.c. Erik Sinclair, Counter Defendant, represented by Yingtao Ho, The Previant Law Firm, S.C.. PRINSTON PHARMA: Court Dismisses Molinaro Suit Without Prejudice ---------------------------------------------------------------- In the case, RON MOLINARO, individually and on behalf of all others similarly situated Plaintiff, v. PRINSTON PHARMACEUTICAL INC. d/b/a Solco Healthcare LLC, SOLCO HEALTHCARE U.S., LLC and HUAHAI US INC., Defendants, Case No. 2:18-cv-710-FtM-99CM (M.D. Fla.), Judge Sheri Polster Chappell of the U.S. District Court for the Middle District of Florida, Fort Myers Division, dismissed Molinaro's complaint for lack of subject matter jurisdiction without prejudice to filing an amended complaint. Molinaro brings the seven-count class action suit against Defendants Prinston Pharmaceutical Inc, Soloco Healthcare U.S., LLC, and Huahai U.S. Inc., alleging breach of express warranties, breach of implied warranty of merchantability, fraud, violation of Florida's Deceptive and Unfair Trade Practice Act, unjust enrichment, negligence and negligence per se. Molinaro pleads diversity under the Class Action Fairness Act as the basis for the Court's subject matter jurisdiction. Judge Chappell finds that she takes issue with the citizenship of Defendant Solco. She explains that limited liability companies are citizens of every state in which one of its members is domiciled. Molinaro pleads that Defendant Solco is a Delaware limited liability company with its principal place of business in New Jersey. The Judge finds this insufficient. Each member of an LLC and their citizenship must be pled to confirm that the parties are minimally diverse. Furthermore, the Plaintiff alleges that he is a Florida resident, residing in Estero, Florida, which is insufficient as well. In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State. Finally, the Plaintiff states that Prinston's principal place of business is in Cranbury, New Jersey. However, a corporation is a citizen of any State by which it is incorporated and of the State where it has its principal place of business. The Plaintiff has not pled Prinston's state of incorporation. Because the Complaint lacks the allegations, the Judge cannot determine whether the parties are minimally diverse. She thus dismissed without prejudice the Complaint for lack of subject matter jurisdiction, and the Plaintiff is provided the opportunity to state the presence of federal jurisdiction pursuant to 28 U.S.C. Section 1653. The Amended Complaint must be filed by Nov. 7, 2018. Failure to do so will result in the Court closing the case without further notice. A full-text copy of the Court's Oct. 30, 2018, 2018 Order is available at https://is.gd/YKh5sA from Leagle.com. Ron Molinaro, individually and on behalf of all others similarly situated, Plaintiff, represented by Allan Kanner -- a.kanner@kanner-law.com -- Allan Kanner & Associate, P.C., Brian T. Ku -- info@kumussman.com -- Ku & Mussman, PA, Conlee S. Whiteley -- c.whiteley@kanner-law.com -- Kanner & Whiteley, L.L.C., David J. Stanoch -- dstanoch@golombhonik.com -- Golomb & Honik, P.C., John R. Davis -- jdavis@slackdavis.com -- Slack Davis Sanger, LLP, Layne Hilton -- l.hilton@kanner-law.com -- Kanner & Whiteley, LLC, Michael L. Slack -- mslack@slackdavis.com -- Slack & Davis, L.L.P., Ruben Honik -- rhonik@golombhonik.com -- Golomb & Honik, PC & Louis I. Mussman, Ku & Mussman, PA. QUAKER OATS: Steckler Sues over Glyphosate Content in Products -------------------------------------------------------------- MORGAN STECKLER, On Behalf of Himself and All Others Similarly Situated, the Plaintiff, vs. PEPSICO, INC., a North Carolina Corporation and THE QUAKER OATS COMPANY, INC., a New Jersey Corporation, the Defendant, Case No. 2:18-cv-09211-DDP-AFM (C.D. Cal., Oct. 26, 2018), contends that in marketing its Products, Defendants seek to appeal to the consuming public's ever-growing health consciousness and increasing appetite for nutritious, wholesome foods that will benefit their health and avoidance of highly-processed foods with non-healthy attributes such as genetically modified organisms, artificial additives, gluten, added sugars, and hydrogenated oils. The Defendants make several detailed representations about the health attributes of the Products on the front of the Product packages. For example, Defendants represent on the front of the Old Fashioned Oats Product that the Product is "100% Whole Grain" and verified "NON GMO", that it provides "Lasting Energy" and a "Good source of fiber to help support a healthy digestive system", and that it can help reduce cholesterol", and "may reduce the risk of heart disease". Similarly, the front of the Quaker Steel Cut Oats Product states that the Product contains "HEARTY 100% WHOLE GRAIN OATS", is a "Good source of fiber to help support a healthy digestive system", "can help reduce cholesterol", "may reduce the risk of heart disease", is "Non GMO verified", and provides "lasting energy". Defendants make one or more similar attribute representations on the front of the other Product packages. The Product Health Representations lead reasonable consumers to believe the Products will foster their "good health" and not pose safety risk to or potentially harm their health. However, recent testing by the Environmental Working Group (EWG), a nonprofit organization dedicated to protecting human health and the environment, revealed that Defendants' Products contain glyphosate, with Quaker Old Fashioned Oats having the highest levels of the 45 products tested. EWG's Children's Health Initiative, "Breakfast With a Dose of Roundup?" August 15, 2018, available at https://www.ewg.org/childrenshealth/glyphosateincereal/#.W3TTbPZFw2w ("EWG') (last visited August 23, 2018); see also EWG, "Roundup for Breakfast, 21 Part 2: In New Tests, Weed Killer Found in All Kids' Cereals Sampled.” October 24, 22 2018, available at https://www.ewg.org/release/roundup-breakfast-part-2-new-tests- 23 weed-killer-found-all-kids-cereals-sampled ("EWG 2") (last visited October 26, 24 2018). Glyphosate is one of the most widely used weed killing poisons in the United States. EWG. Each year, more than 250 million pounds of glyphosate is sprayed on American crops, including wheat, barley, and oats just before they are harvested. Glyphosate adheres to the crops and Defendants the glyphosate residue. Even though Defendants knew that the Products contain the probable carcinogen glyphosate or, at a minimum, that they could not guarantee the Products did not contain glyphosate given its wide use as a pesticide, Defendants do not disclose this information on the front of the Product labels, choosing instead to specifically identify only the healthy attributes of the Products. Nor do Defendants include this information on the back or sides of the packages, where more detailed Product information is generally found, instead choosing to repeat and reinforce the Health Representations identified on the front of the packages. In fact, nowhere on the Product packages -- inside or out -- do Defendants disclose that the Products contain or likely contain glyphosate, such that Defendants' Product Health Representations are false, deceptive, or, at a minimum, misleading half-truths, the lawsuit says. Quaker Oats Company, known as Quaker, is an American food conglomerate based in Chicago. It has been owned by PepsiCo since 2001.[BN] Attorneys for Plaintiff: Patricia N. Syverson, Esq. Manfred P. Muecke, Esq. Elaine A. Ryan, Esq. Carrie A. Laliberte, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 600 W. Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 798-4593 E-mail: psyverson@bffb.com mmuecke@bffb.com eryan@bffb.com claliberte@bffb.com - and - Stewart M. Weltman, Esq. Todd L. McLawhorn, Esq. Michael Chang, Esq. SIPRUT PC 17 North State Street Chicago, IL 60602 Telephone: (312) 236-0000 E-mail: sweltman@siprut.com tmclawhorn@siprut.com mchang@siprut.com RANBAXY INC: Sued over Supracompetitive Prices for Diovan & Nexium ------------------------------------------------------------------ UNITED FOOD AND COMMERCIAL WORKERS HEALTH AND WELFARE FUND OF NORTHEASTERN PENNSYLVANIA, on behalf of itself and all others similarly situated, the Plaintiffs, vs. RANBAXY INC., RANBAXY LABORATORIES, LTD. RANBAXY U.S.A., INC., and SUN PHARMACEUTICAL INDUSTRIES LTD., the Defendants, Case No. 2:18-cv-04807-GEKP (E.D. Pa., Nov. 6, 2018), alleges that Ranbaxy committed fraud and delaying tactics, resulting to consumers paying supracompetitive prices for the branded Diovan, Nexium, and Valcyte products when a safe, effective, and cheaper generic alternative(s) should have been available. According to the complaint, beginning in the early 2000s, Ranbaxy, one of the world's largest generic pharmaceutical manufacturers, pursued an aggressive business growth strategy at the expense of quality and integrity. Instead of abiding by the limited regulations required of ANDA applicants, Ranbaxy adopted a practice of blatantly disregarding testing, storage, and documentation protocols. While most generic pharmaceutical companies devoted 18 months to the necessary testing before filing an ANDA, Ranbaxy required only 12 months. Ranbaxy routinely received "first-to-file" status. As coveted first filers, Ranbaxy positioned itself to reap enormous profits. First-to-file status guaranteed Ranbaxy 180 days of exclusivity over the generics market. During the 180-day exclusivity period, no other generic manufacturer can gain final FDA approval and enter the market. The 180-day or 6 month window begins from the date Ranbaxy starts to sell its product. As the first entry generic and only competitor to the brand product, Ranbaxy can price its drug slightly below the brand competitor, gain most of the market share, and all the associated profits with none of the front-end research and development costs required to develop new drugs. If the first filer diligently pursues final approval from the FDA, consumers can enjoy a 20% to 30% percent reduction in costs when the first generic enters the market and often 80% to 90% reduction once the 180-day exclusionary period is over and additional competitors enter the market. Ranbaxy, however, exploited the ANDA process by routinely submitting applications filled with falsified information to obtain the first-filer status. Ranbaxy then maintained its first-filer status by perpetuating that fraud as it continued to engage with the FDA throughout the approval process. Once the FDA identified Ranbaxy's deceptive practices and fraudulent submissions, Ranbaxy hired an outside law firm and an ostensibly independent consultant to further audit their manufacturing facilities and reassure the FDA of their compliance. The FDA provided Ranbaxy with numerous opportunities to correct their practices, re-test their products, and re-submit their ANDA applications, all while maintaining their first-to-file status for multiple drugs, including Diovan, Nexium, and Valcyte. Instead of correcting their misrepresentations and complying, Ranbaxy used the law firm and audit consultant to further perpetuate their fraud. During several years, Ranbaxy, the law firm, and the consultant continued to falsely represent to the FDA regarding Ranbaxy's compliance and the status and outcome of the audits. Based on these false representations, the FDA granted "tentative approval" to Ranbaxy for manufacturing Diovan, Nexium, Valcyte, and other drugs. With tentative approval, Ranbaxy had the authority to bring Diovan, Nexium, Valcyte, and other drugs to market pending the resolution of litigation. Instead of diligently pursuing market entry, Ranbaxy, supported by their law firm and consultant, employed further delay tactics: settling patent infringement litigation with corresponding brand manufacturers by accepting huge lump sum payments in exchange for delaying entry of their generic product; preventing the FDA from obtaining access to audits of Ranbaxy's facilities; and threatening the FDA with litigation if they didn't grant tentative approvals, among other tactics. In 2012, after issuing subpoenas, executing search warrants, and launching a criminal investigation, the U.S. Department of Justice filed a civil complaint and consent decree. Ranbaxy agreed to try to remedy its misconduct and bring its drug manufacturing operations in compliance. Many Ranbaxy ANDAs were withdrawn, resubmitted, or placed on hold. In 2013, Ranbaxy entered into a plea agreement with the federal government, paying $350 million in fines for selling adulterated drugs in the United States. Ranbaxy pled to serious compliance violations and multiple examples of fraud related to their regulatory submissions. Under the government settlements, Ranbaxy maintained their ANDA status for five "Excepted Applications," including Nexium, Diovan, and Valcyte. These drugs were subject to additional FDA audits, but did not lose their right to the 180-day exclusivity period. Despite the opportunity, once again, to comply and bring these Excepted Application drugs to market, Ranbaxy's obstinate delay tactics and excessive compliance failures continued. Their scheme of fraud and deception prevented generic alternatives for Nexium, Diovan, and Valcyte from promptly entering the market . Ranbaxy originally applied for the Diovan, Nexium, and Valcyte ANDAs in 2004-2005. Patent settlements did not allow for the entry of generic Diovan, Nexium, and Valcyte until 2012, 2014, and 2013 respectively. Still, Ranbaxy's failure to comply delayed the entry of a generic product onto the market for at least another 28 months for Diovan, 9 months for Nexium, and 20 months for Valcyte, the lawsuit says. In the pharmaceutical industry, generic drugs offer consumers substantial cost savings compared to their brand alternative, but must conform to regulatory requirements that ensure they are truly a safe and effective alternative to the brand medication. While new brand or "innovator" drugs require years of research, development, testing, and trials before they can gain approval for sale in the United States, Congress recognized that an expedited application and approval process for the nearly identical generic drug would benefit U.S. consumers by generating competition and driving down costs. To accomplish this end, Congress passed the Hatch-Waxman Act and established the Abbreviated New Drug Application. To balance the desire to bring generics to market faster with the need to ensure a generic drug's safety, effectiveness, and equivalence to the brand drug, the United States Food and Drug Administration (FDA) oversees the ANDA application process, which requires generic manufacturers to submit to certain testing, documentation, and storage protocols.[BN] Attorneys for Plaintiffs: Gerald Lawrence, Esq. Julia R. McGrath, Esq. Renee A. Nolan, Esq. LOWEY DANNENBERG, P.C. One Tower Bridge 100 Front Street, Suite 520 West Conshohocken, PA 19428 Telephone: (215) 399-4770 - and - Peter D. St. Phillip, Esq. 44 South Broadway, Suite 1100 White Plains, NY 10601 Telephone: (914) 997-0500 E-mail: PStPhillip@lowey.com RIVERS BILLING: Krane Files Placeholder Class Certification Bid --------------------------------------------------------------- JILL KRANE, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, vs. RIVERS BILLING, INC., the Defendant, Case No. 2:18-cv-01750-DEJ (E.D. Wisc.), the Plaintiff asks the Court to enter an order certifying proposed classes in this case, appointing Plaintiff as class representative, and appointing Ademi & O'Reilly, LLP as Class Counsel, and for such other and further relief as the Court may deem appropriate. The Plaintiff further asks that the Court stay this class certification motion until an amended motion for class certification is filed, and that the Court grant the parties relief from the local rules' automatic briefing schedule and requirement that Plaintiff file a brief and supporting documents in support of this motion. 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. Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545-46 (7th Cir. 2017). 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).[CC] Attorneys for Plaintiffs: 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 SABER HEALTHCARE: J. Bartels' Suit Remanded to N.C. State Court --------------------------------------------------------------- Judge Terrence W. Boyle of the U.S. District Court for the Eastern District of North Carolina, Western Division, remanded the case, EDWARD BARTELS, Administrator of The ESTATE OF JEANNE T. BARTELS, and JOSEPH J. PFOHL, Executor of the Estate of BERNICE C. PFOHL, on behalf of themselves and all others similarly situated, Plaintiffs, v. SABER HEALTHCARE GROUP, LLC, et al., Defendants, Case No. 5:16-CV-283-BO (E.D. N.C.), remanded to Franklin County Superior Court. The Plaintiffs primarily argue that the Defendants should each be bound by the forum-selection clause under an alter ego theory, which requires the presence of factors including inadequate capitalization, noncompliance with corporate formalities, lack of a separate corporate identity, excessive fragmentation, siphoning of funds by the dominant shareholder, nonfunctioning officers and directors, and an absence of corporate records. In its opinion in the case, the court of appeals also recognized other paths through which the Defendants could by bound by Franklin Manor's forum-selection clause, which include: where the non-signatory is closely related to the dispute and it would be foreseeable that the non-signatory would be bound, where the dispute against a parent and subsidiary are based on the same facts and are inherently inseparable, and where a non-signatory is equitably estopped from contesting a party's standing to invoke a forum-selection clause. The Plaintiffs have named five Defendants in their amended complaint: Saber Healthcare Group, LL; Saber Healthcare Holdings, LLC; Franklin Operations, LLC, doing business as Franklin Manor Assisted Living Center; Smithfield East Health Holdings, LLC, doing business as Gabriel Manor Assisted Living Center; and Queen City AL Holdings, LLC, doing business as The Crossings at Steele Creek. The Plaintiffs have alleged that the Defendants are all alter egos of one another. The evidence further supports that the Plaintiffs have satisfied their burden to show that all of the Defendants should be bound by the Franklin Manor forum-selection clause. The Defendants contend that the Court must look to the law of the state of incorporation to determine whether the corporate veil may be pierced, and must therefore apply North Carolina, Ohio, and Virginia law to determine whether the Plaintiffs may pierce the corporate veil of the Defendants and find that they are alter egos. They further contend that Ohio law would prohibit veil piercing in this context, at least as to Saber Group and Franklin Operations. Because North Carolina state courts have applied North Carolina law when considering whether to pierce the veil of a foreign corporation, Judge Boyle will do the same. Under North Carolina law, the presence or absence of a particular factor is not determinative, and the alter ego or instrumentality theory of liability is an equitable one which aims to place the burden of loss on the party who should be held responsible. He finds that the Plaintiffs' evidence of interrelated corporate structure, siphoning of funds, and domination or control over the day-to-day activities of the NC care centers is sufficient to make a prima facie showing that all of the named Defendants were, in fact, Saber entities or alter egos of one another. Moreover, where multiple corporations have functioned as a single business enterprise in substance, if not in form, North Carolina courts have permitted the corporate veil to be pierced. The Plaintiffs' evidence further supports that the conduct of the defendants was sufficiently closely related to bind them all to the Franklin Manor forum-selection clause. The interrelated corporate and financial structure of the Defendant entities is sufficient to show at this stage of the proceedings that interests of the Defendants are directly related to, if not predicated upon the interests of Franklin Manor, the signatory to the contract containing the forum-selection clause at issue. For the foregoing reasons, Judge Boyle holds that the Plaintiffs have satisfied their burden to show that the Defendants should all be bound by the Franklin Manor forum-selection clause. The action is remanded in its entirety to the Superior Court of Franklin County, North Carolina. He granted the motions to seal, allowed the motion for leave to file surreply, and denied as moot the motion for leave. The Judge directed the clerk to amend the docket to reflect the voluntary dismissal of the claims of Claire M. Murphy and to reflect the corrected party for Plaintiff Jeanne Bartels, pursuant to the state court's order entered Aug. 17, 2017. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/BHn10h from Leagle.com. Joseph J. Pfohl, Executor of the Estate of Bernice C. Pfohl, Plaintiff, represented by Andrew D. Hathaway, Gugenheim Law Offices, P.C., Daniel K. Bryson -- dan@wbmllp.com -- Whitfield, Bryson & Mason, LLP, Gary E. Mason, Whitfield Bryson and Mason LLP, Jeremy Richard Williams, Whitfield, Bryson & Mason, LLP, Matthew E. Lee -- matt@wbmllp.com -- Whitfield, Bryson & Mason, LLP & Stephen J. Gugenheim, Gugenheim Law Offices, P.C. Saber Healthcare Group, LLC, Saber Healthcare Holdings, LLC, Franklin Operations, LLC, d/b/a Franklin Manor Assisted Living Center, Smithfield East Health Holdings, LLC, d/b/a Gabriel Manor Assisted Living Center & Queen City Al Holdings, LLC, d/b/a The Crossings at Steele Creek, Defendants, represented by Edward Bennett, Williams and Connolly LLP, Mary Beth Hickcox-Howard -- mhickcox-howard@wc.com -- Williams and Connolly LLP, Robert A. Leandro -- robbleandro@parkerpoe.com -- Parker, Poe, Adams & Bernstein, LLP, Scott Elliot Bayzle -- scottbayzle@parkerpoe.com -- Parker Poe Adams & Berstein, LLP & Stephen V. Carey -- stevecarey@parkerpoe.com -- Parker Poe Adams & Bernstein LLP. SABRE CORP: Bid for Class Cert. in Air Fare Prices Suit Denied -------------------------------------------------------------- Sabre Corp. 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 plaintiffs' motion for class certification of a lawsuit over air fare prices has been denied with prejudice. In July 2015, a putative class action lawsuit was filed against the company and two other Sabre global distribution system (GDSs), in the United States District Court for the Southern District of New York. The plaintiffs, who are asserting claims on behalf of a putative class of consumers in various states, are generally alleging that the GDSs conspired to negotiate for full content from the airlines, resulting in higher ticket prices for consumers, in violation of various federal and state laws. The plaintiffs sought an unspecified amount of damages in connection with their state law claims, and they requested injunctive relief in connection with their federal claim. In July 2016, the court granted, in part, the company's motion to dismiss the lawsuit, finding that plaintiffs' state law claims are preempted by federal law, thereby precluding their claims for damages. The court declined to dismiss plaintiffs' claim seeking an injunction under federal antitrust law. The plaintiffs may appeal the court's dismissal of their state law claims upon a final judgment. In August 2018, the plaintiffs sought leave from the court to withdraw their motion for class certification. In October 2018, the court denied the plaintiffs' motion for class certification, with prejudice. Sabre said, "We believe that the losses associated with this case are neither probable nor estimable and therefore have not accrued any losses as of September 30, 2018. We may incur significant fees, costs and expenses for as long as this litigation is ongoing. We intend to vigorously defend against the remaining claims." Sabre Corporation, through its subsidiary, Sabre Holdings Corporation, provides technology solutions to the travel and tourism industry worldwide. It operates through two segments, Travel Network, and Airline and Hospitality Solutions. Sabre Corporation was founded in 2006 and is headquartered in Southlake, Texas. SACRAMENTO COUNTY, CA: Court Narrows Claims in Welchen Suit ----------------------------------------------------------- In the case, GARY WAYNE WELCHEN, Plaintiff, v. THE COUNTY OF SACRAMENTO, KAMALA HARRIS, in her official capacity as the California Attorney General, and SCOTT JONES, in his official capacity as the Sacramento County Sheriff, Defendants, Case No. 2:16-cv-00185-TLN-DB (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 Defendants' Motions to Dismiss. The Plaintiff, a 50-year-old indigent and homeless resident of Sacramento, was arrested by Sacramento police on Jan. 29, 2016, for suspicion of second-degree burglary of an uninhabited dwelling. The Plaintiff alleges that after he was taken to jail, he was informed he would be kept in jail unless he paid $10,000 for bail. He alleges that because he could not afford to pay $10,000, he was detained for six days before he was released by the Sheriff's Department. That same day, the Plaintiff filed the class action against the County and AG alleging that enforcement of California Penal Code section 1269b ("Bail Law") and the County's bail schedule adopted pursuant to that law violate his Constitutional rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. The Plaintiff later named the Sheriff as an additional Defendant in the FAC for the same claims. The Plaintiff alleges the Bail Law violates substantive due process because the system is not narrowly tailored to public safety or ensuring court appearances. He alleges that the Defendants' policy and practice of enforcing the money-based bail system is excessive in relation to the Bail Law's regulatory purpose. The Plaintiff brings suit under 42 U.S.C. Section 1983, alleging the County violates the Plaintiffs' Fourteenth Amendment rights by its policy and practice of implementing the Bail Law's wealth-based detention system. He alleges the Sheriff, in his official capacity, violates the Plaintiffs' Fourteenth Amendment rights by implementing the Bail Schedule through his oversight of the county jail, by implementing the state's bail laws, and by enforcing provisions of California state law regarding the use of money bail. Finally, Plaintiff alleges the AG, in her official capacity, violates the Plaintiffs' Fourteenth Amendment rights by requiring the County and Sheriff to adopt and implement a bail schedule that results in detaining them solely because they cannot afford to pay money bail. The Plaintiff requests declaratory judgment that: (1) the Defendants violated and continue to violate the Plaintiff's and proposed class members' rights under the Fourteenth Amendment; (2) the Defendants must follow the requirements of the Equal Protection and Due Process Clauses, regardless of contrary state law or contrary policies and practices; (3) California Penal Code section 1269b(b) and any other state statutory or constitutional provisions that require the use of secured money bail to detain any person without an inquiry into ability to pay are facially unconstitutional; and (4) as applied by the Defendants against the Plaintiff and the class members, California Penal Code section 1269b(b) and any other state statutory or constitutional provisions that require the use of secured money bail to detain any person without an inquiry into ability to pay are unconstitutional. The Plaintiff also seeks preliminary and permanent injunctive relief enjoining the Defendants and all involved employees of the County from enforcing the bail policy and practices against all the proposed class members and request money damages and attorneys' fees and costs. Judge Nunley (i) granted County Defendants' Motion to Dismiss as to the Plaintiff's claims for monetary damages against the Sheriff, and as to the Plaintiff's claims against the County; and (ii) denied both the County Defendants' and AG's Motions to Dismiss as to the Plaintiff's Due Process claim. He finds that the Plaintiff's allegations suggest that implementation of the Bail Law necessarily results in the deprivation of liberty even where not necessary to ensure appearance at trial. Given the Plaintiff's allegations, the Judge finds that the Plaintiff sufficiently pleaded the Bail Law is excessive in relation to its purpose of ensuring court appearances. Thus, the Sheriff and AG's motions to dismiss the Due Process claim under Rule 12(b)(6) are denied. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/1U24If from Leagle.com. Gary Wayne Welchen, Plaintiff, represented by Phil Telfeyan, Equal Justice Under Law. Kamala Harris & Kathleen A. Kenealy, Defendants, represented by Jose Alfonso Zelidon-Zepeda, Department of Justice, Office of the Attorney General. Sacramento County, Defendant, represented by Carl L. Fessenden -- cfessenden@porterscott.com -- Porter Scott, PC, Terence John Cassidy -- tjcass@comcast.net -- Porter Scott, APC & Jeffrey A. Nordlander -- jnordlander@hhlawyers.com -- Porter Scott Attorneys. Scott Jones, Defendant, represented by Carl L. Fessenden, Porter Scott, PC & Jeffrey A. Nordlander, Porter Scott Attorneys. SAINT-GOBAIN PERFORMANCE: $19K Attys' Fees Awarded in Dowling Suit ------------------------------------------------------------------ In the case, Dowling et al., v. Saint-Gobain Performance Plastics Corp. et al, Civil No. 18-cv-180-JL (D. N.H.), Judge Joseph N. Laplante of the U.S. District Court for the District of New Hampshire awarded the Defendants their costs ($2,063) and attorney fees ($18,799) occasioned by removing the actions and opposing the motions to remand them. The Plaintiffs initiated these actions as proposed class actions by filing complaints in the Court on Dec. 5, 2016. After consolidation with other, related cases, and after the Court appointed other counsel as the interim class counsel, these Plaintiffs voluntarily dismissed their claims with the stated intention of refiling those claims in state court. Though the Court expressed concern that dismissal and refiling would simply result in the cases returning to the Court, resulting in an unnecessary expenditure of judicial and litigant resources, the Plaintiffs' counsel assured the Court that their state-court complaints would be structured to avoid the Court's subject-matter jurisdiction under the Class Action Fairness Act. Despite these assurances, the Plaintiffs' state-court complaints contained several references to the "class members." The Defendants removed the actions to Court on that basis. On July 6, 2018, the Court granted the Plaintiffs' motions to remand these consolidated actions to Hillsborough County Superior Court. At the same time, having found that the Plaintiffs' counsel's inartful pleading occasioned the cases' removal and the Defendants' motions to remand, the Court awarded the Defendants their costs and attorney fees occasioned by removing these actions and opposing the motions to remand them. It further ordered the parties to attempt to agree on the precise amount and file a stipulation accordingly. The Plaintiffs have reached such an agreement with one of the Defendants, the Merrimack Village District Water Works. They have been unable to do so with Defendants Saint-Gobain Performance Plastics Corp., Gwenael Busnel, and Chris Gilman ("Saint-Gobain"). These Defendants seek an award of more than $85,000, though have indicated a willingness to accept $55,000. The Plaintiffs, on the other hand, deem an award of around $6,000 more appropriate. Having been informed of this impasse, and at the request of both parties, the Court ordered the Ddefendants to produce their counsels' relevant billing record for in camera review. Judge Laplant awarded the Defendants their costs and attorney fees occasioned by removing these actions and opposing the motions to remand them. As a first step, therefore, the Judge reviewed the defense counsel's billing records. A dozen of the defense counsel's entries within that timeframe lacked sufficient detail for the Court to determine whether those tasks related to removal or objecting to the motion to remand, as opposed to other tasks. Because approximately half of the defense counsel's entries related to tasks for which the Court intended to award fees, it considers half of the 3.7 hours accounted for in those entries. These calculations resulted in consideration of a total of 13 hours completed by partners, 67.1 hours of work completed by associates and counsel, and 0.9 hours of work completed by paralegals. At the second step, the Judge determines a reasonable hourly rate or rates, which is often benchmarked to the prevailing rates in the community for lawyers of like qualifications, experience, and competence. In doing so, he attributed to all partners a rate commensurate with that of an experienced partner in the New Hampshire legal market -- specifically, the rate charged by Attorney Bruce Felmly ($525 per hour) -- and to all associates and counsel a rate commensurate with that of a senior associate in the New Hampshire legal market -- specifically, the rate charged by Attorney Nicholas Casolaro ($270 per hour). And, it attributed to all paralegals a rate of $137 per hour. Multiplying the total hours remaining after the first step by the rates established in the second results in a lodestar of $25,065. The final step allows the Judge to "further adjust" the lodestar calculation based on other considerations. Here, the Defendants proposed to reduce their rates by a further 25%. The Judge likewise discounts the lodestar total by 25%, for a final award of $18,799 in fees. The Defendants are also entitled to $2,063 in costs associated with removing the case. The clerk will remand the case. A full-text copy of the Court's Oct. 30, 2018 Memorandum Order is available at https://is.gd/7nUmhT from Leagle.com. Jean Dowling, James Bollengier, Brian Mendez, Amy Mendez, Individually and as natural parent and personal representative for M.M., Beverly Volner, James Volner, Administrator of the Estate of Judith Volner, Dawna Worcester, Craig Worcester, Richard Slide, Erin Slide, Individually and as natural parent and personal representative for C.S. and M.S, Jonathan Kiley, Jennifer Kiley, Individually and as natural parent and personal representative for A.K., K.K., E.K.1, and E.K.2, Shauna Morten, Raymond Forrest, Barbara Forrest, John Mooney, Linda Morrison, Jeffrey Richelson, Brenda Morse, Jean Murphy, Stephen Patch, Administrator of the Estate of Michelle Patch, Individually and as natural parent and personal representative for C.P., L.P., and M.P., Jennie Paulette, Virginia Slide & Cathryn Warrington, Plaintiffs, represented by Kirk C. Simoneau -- ksimoneau@davenixonlaw.com -- Nixon Vogelman Barry Slawsky & Simoneau PA, David P. Slawsky -- dslawsky@davenixonlaw.com -- Nixon Vogelman Barry Slawsky & Simoneau PA, Lawrence A. Vogelman -- lvogelman@davenixonlaw.com -- Nixon Vogelman Barry Slawsky & Simoneau PA, Patrick J. Lanciotti -- PLanciotti@napolilaw.com -- Napoli Shkolnik PLLC, pro hac vice & Tate J. Kunkle -- TKunkle@napolilaw.com -- Napoli Shkolnik PLLC, pro hac vice. Dianne Hunter, Heather Irving, Brian McCrossin, Gerard Miner, Tanya O'Mara, Individually and as natural parent and personal representative for A.O.(1), A.O.(2), L.O., and V.O., Lynda Albert-Brown, Karen Russell, Individually and as natural parent and personal representative for K.R.(1) and K.R.(2), Alan Sandler, Walter Scott, Priscilla Sepessy, George Simard, Doris Simard, Melissa Simard, Debbie Simon, Desire Upton, Charles Williams, Phyllis Provencher, Richard Provencher, April Provencher, Thomas Russell & Kyle Russell, Consol Plaintiffs, represented by David P. Slawsky, Nixon Vogelman Barry Slawsky & Simoneau PA, Kirk C. Simoneau, Nixon Vogelman Barry Slawsky & Simoneau PA, Lawrence A. Vogelman, Nixon Vogelman Barry Slawsky & Simoneau PA, Patrick J. Lanciotti, Napoli Shkolnik PLLC, pro hac vice & Tate J. Kunkle, Napoli Shkolnik PLLC, pro hac vice. Saint-Gobain Performance Plastics Corp., Individually and as successor in interest to Chemfab, Chris Gilman & Gwenael Busnel, Defendants, represented by Lincoln D. Wilson -- lincolnwilson@quinnemanuel.com -- Dechert LLP, pro hac vice, Douglas E. Fleming, III -- douglasfleming@quinnemanuel.com -- Dechert LLP, pro hac vice, Mark Cheffo -- markcheffo@quinnemanuel.com -- Dechert LLP, pro hac vice, Nicholas F. Casolaro -- nicholas.casolaro@mclane.com -- McLane Middleton, Paul A. LaFata, Dechert LLP, pro hac vice, Sheila L. Birnbaum -- sheilabirnbaum@quinnemanuel.com -- Dechert LLP, pro hac vice & Bruce W. Felmly -- bruce.felmly@mclane.com -- McLane Middleton. Merrimack Village District Water Works, Defendant, represented by Thomas B.S. Quarles, Jr., Devine Millimet & Branch PA, Chad W. Higgins, Bernstein Shur, pro hac vice, Christina Ann Ferrari, Bernstein Shur PA, Christopher D. Hawkins, Devine Millimet & Branch PA, Katherine A. Joyce, Bernstein Shur, pro hac vice & Roy W. Tilsley, Jr., Bernstein Shur PA. SAN FRANCISCO, CA: Litivinova Seeks to Certify FLSA Collective -------------------------------------------------------------- In the class action lawsuit captioned as LITVINOVA, individually and on behalf of all others similarly situated, the Plaintiff, vs. The CITY AND COUNTY OF SAN FRANCISCO, the Defendant, Case No. 3:18-cv-01494-R (N.D. Cal.), the Plaintiff asks the Court for an order: 1. certifying proposed Fair Labor Standards Act collective action; 2. directing Defendant to produce a class list to Plaintiff's counsel; and 3. directing the dissemination of notice of the pendency of the action on the proposed terms.[CC] Attorneys for Plaintiff: Eduardo G. Roy, esq. John R. Hurley, esq. PROMETHEUS PARTNERS L.L.P. 220 Montgomery Street Suite 1094 San Francisco, CA 94104 Telephone: (415) 527 0255 SANFORD LP: Ninth Circuit Appeal Filed in Spacone Class Suit ------------------------------------------------------------ Plaintiff David Spacone filed an appeal from a court ruling in the lawsuit titled David Spacone v. Sanford, LP, Case No. 2:17-cv-02419-AB-MRW, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as David Spacone v. Sanford, LP, Case No. 18-56465, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Plaintiff filed an appeal from a court ruling in the lawsuit. That appellate case is entitled David Spacone v. Sanford, LP, Case No. 18-56208. The Hon. Andre Birotte, Jr., previously denied the Plaintiff's motion for class certification of: "all individuals who purchased one or more KG Stay Fresh Container Products in California from January 31, 2013, until the date of trial." The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by November 28, 2018; -- Transcript is due on December 28, 2018; -- Appellant David Spacone's opening brief is due on February 6, 2019; -- Appellee Sanford, LP's answering brief is due on March 8, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant DAVID SPACONE, individually, and on behalf of others members of the general public similarly situated, is represented by: Ryan Wu, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4177 E-mail: Ryan.Wu@CapstoneLawyers.com Defendant-Appellee SANFORD, LP, Erroneously Sued As Elmers Products, Inc., a Delaware corporation, is represented by: Jean-Paul P. Cart, Esq. SCHIFF HARDIN LLP One Market Spear Street Tower San Francisco, CA 94105 Telephone: (415) 901-8732 Facsimile: (415) 901-8701 E-mail: jcart@schiffhardin.com SCELZI ENTERPRISES: Fails to Pay Proper Wages, Murray Alleges ------------------------------------------------------------- RODERICK MURRAY, individually and on behalf of all others similarly situated, Plaintiff v. SCELZI ENTERPRISES, INC.; and DOES 1 to 50, inclusive, Defendants, Case No. 1:18-cv-01492-LJO-SKO (E.D. Cal., Oct. 26, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. The Plaintiff Murray was employed by the Defendants as an hourly, non-exempt employee. Scelzi Enterprises, Inc., is a California Corporation with its principal place of business in Fresno, California. The Company designs and manufactures service buddies for utility trucks. [BN] The Plaintiff is represented by: Craig J. Ackermann, Esq. ACKERMANN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 E-mail: cja@ackermanntilajef.com - and - Jonathan Melmed, Esq. MELMED LAW GROUP P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 E-mail: jm@melmedlaw.com SCELZI ENTERPRISES: Violates Wage & Hour Laws, Murray Says ---------------------------------------------------------- RODERICK MURRAY an individual, on behalf of the State of California, as a private attorney general, and on behalf of all others similarly situated, the Plaintiff, vs. SCELZI ENTERPRISES, INC, a California corporation, and DOES 1 to 50, inclusive, Case No. 1:18-at-00786 Document (E.D. Cal., Oct. 26, 2018), alleges that the Defendants failed to provide off-duty rest breaks and/or pay missed rest break premiums; failed to provide complete and accurate wage statements within one year prior to the filing of this complaint; and failed to pay all wages owed upon termination, pursuant to the Labor Code Private Attorneys General Act of 2004. According to the complaint, the Defendants failed to have a lawful rest period policy in place that informed Plaintiff, the Class Members, and all Aggrieved Employees of their right to take rest periods for shifts that were a major fraction of a four hour work period and to make rest breaks available to these employees. Instead, the Defendants' rest period policy advised Plaintiff, the Class Members, and all Aggrieved Employees to take rest breaks on-site and to remain on duty during their rest periods. In fact, the Defendants' rest period policy advised Plaintiff and the other Aggrieved Employees that they "may not leave the work premises during the rest period", the lawsuit says. Scelzi builds utility truck bodies in the USA, including flatbed bodies, water truck bodies, custom truck bodies, and service truck bodies.[BN] Attorneys for Plaintiff, the Class and the Aggrieved Employees: Craig J. Ackermann, Esq. ACKERMANN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 E-mail: cja@ackermanntilajef.com - and - Jonathan Melmed, Esq. MELMED LAW GROUP P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 E-mail: jm@melmedlaw.com SEVEN STAR: Michelle Wells Seeks OT Pay for Fence Installers ------------------------------------------------------------ MICHELLE WELLS, Individually and on behalf of all Others Similarly Situated, the Plaintiff, vs. SEVEN STAR HOTELS GROUP INC; KHURRAM CHAUDHRY; and MOHAMAD AYACHE, the Defendants, Case No. 4:18-cv-00828-SWW (E.D. Ark., Nov. 6, 2018), seeks declaratory judgment; monetary damages; liquidated damages; prejudgment interest; costs; and a reasonable attorney's fee, as a result of Defendant's failure to pay Plaintiff and other fence installers lawful overtime compensation for hours worked in excess of 40 hours per week, under the Fair Labor Standards Act, and the Arkansas Minimum Wage Act. According to the complaint, the Plaintiff and other hourly-paid employees routinely were scheduled to work and did work more than 40 hours in a single workweek. The Defendants had a practice of not paying Plaintiff and other hourly-paid employees 1.5 times their regular rate for any hours worked in excess of 40 per workweek. Rather than pay Plaintiff and other hourly-paid employees 1.5 times their regular rate for their hours worked in excess of 40 per workweek, Defendants simply paid hourly employees their regular rate for all hours worked, including hours worked in excess of 40 per week, the lawsuit says.[BN] Attorneys for Plantiff: Josh Sanford, Esq. Chris Burks, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford, Suite 411 Little rock, Arkansas 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: chris@sanfordlawfirm.com josh@sanfordlawfirm.com SOLANO COUNTY, CA: Warfield May Proceed in Forma Pauperis --------------------------------------------------------- In the case, BRODERICK WARFIELD, Plaintiff, v. HEATHER McCOUGH, et al., Defendants, Case No. 2:17-cv-2620 DB P (E.D. Cal.), Magistrate Judge Deborah Barnes of the U.S. District Court for the Eastern District of California (i) granted the Plaintiff's request for leave to proceed in forma pauperis, and (ii) dismissed the action without leave to amend as frivolous. The Plaintiff brings the class action against an array of the Defendants, including "Mike P. Solano County Nurse County Jail (Asian)," "rich inmate Vacaville Resident (Meth user)," ("Guy in I-#14 before moved to H-#4," "Suisun Homeless church suspect cowboy hat trenchcoat," "Solano County Nurse Claudine 1st-2nd generations and siblings x husbands and husband if any step-children," and "others castrated." The Plaintiff accuses the Defendants, collectively, of illegal criminal activity that range from first degree murder, second degree murder, conspiracy to commit murder, capital case murder, and as well statutory rape, rape and child molestation committed by pedophiles and other sexual offenses, sexual trafficking, pimping and pandering adults and minors, money laundering, exhortion illegal possessions of firearms automatic weapons, racketeering incorporated corrupt organizations by arbitrary contract forgery and fraud all crimes of either state or federal violations of law. By way of relief, the Plaintiff seeks "full retirement benefits," a transfer to a military retirement facility, the issuance of arrest warrants for the Defendants, castration, lobotomies, and the death penalty. Magistrate Judge Barnes finds that the Plaintiff's complaint does not comply with the standards of Rule 8. It is confusing and fails to set forth the facts in a comprehensible manner. It also fails to clearly articulate the facts giving rise to any claim. For this reason, it is must be dismissed. The Plaintiff's allegations are also fanciful rather than merely unlikely. The allegations rise to the level of irrational or the wholly incredible. Accordingly, the complaint must be dismissed as frivolous. The Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42 U.S.C. Section 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. Section 1915. He has submitted a declaration that makes the showing required by 28 U.S.C. Section 1915(a). Accordingly, Magistrate Judge Barnes granted the request to proceed in forma pauperis. The Plaintiff is required to pay the statutory filing fee of $350 for the action. By the order, the Plaintiff will be assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. Section 1915(b)(1). By separate order, Magistrate Judge Barnes will direct the appropriate agency to collect the initial partial filing fee from the Plaintiff's trust account and forward it to the Clerk of the Court. Thereafter, the Plaintiff will be obligated for monthly payments of 20% of the preceding month's income credited to the Plaintiff's prison trust account. These payments will be forwarded by the appropriate agency to the Clerk of the Court each time the amount in the Plaintiff's account exceeds $10 until the filing fee is paid in full. All fees will be collected and paid in accordance with the Court's order to the Director of the California Department of Corrections and Rehabilitation filed concurrently with the Order. The findings and recommendations are submitted to the United States District Judge assigned to the case. Within 14 days after being served with these findings and recommendations, the Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections will be filed and served within 14 days after service of the objections. The Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. A full-text copy of the Court's Oct. 30, 2018, 2018 Order is available at https://is.gd/l3tBbv from Leagle.com. Broderick James Warfield, Plaintiff, pro se. SOUTHWESTERN ENERGY: Snow Case Settlement Receives Final Approval ----------------------------------------------------------------- Southwestern Energy Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that the settlement in the case entitled Snow et al. v. SEECO, Inc., et al., received final approval by the court during the third quarter, and the deadline to appeal the order approving the settlement passed without any appeals filed. The Company has been a defendant in three certified class actions alleging that the Company underpaid lessors of lands in Arkansas by deducting from royalty payments costs for gathering, transportation and compression of natural gas in excess of what is permitted by the relevant leases. Two of the these class actions were filed in Arkansas state courts and the third in the United States District Court for the Eastern District of Arkansas. The Company denied liability in all these cases. In June 2017, the jury returned a verdict in favor of the Company on all counts in Smith v. SEECO, Inc. et al., the class action in the federal court, whose plaintiff class comprises the vast majority of the lessors in these cases. The plaintiff had asserted claims for, among other things, breach of contract, fraud, civil conspiracy, unjust enrichment and violation of certain Arkansas statutes. Following the verdict, the court entered judgment in favor of the Company on all claims. The trial court denied the plaintiff's motion for a new trial, and the plaintiff has filed a notice of appeal with the United States Court of Appeals for the Eighth Circuit. Independent of the plaintiff's appeal, several different parties sought to intervene in the Smith case prior to or shortly after trial, and have appealed the trial court's order denying their request to intervene. Briefing is complete in these appeals, and oral argument has been granted but has not yet been scheduled. In the second quarter of 2018, the Company entered into an agreement to settle another of the class actions, which has been pending in the Circuit Court of Conway County, Arkansas under the caption Snow et al. v. SEECO, Inc., et al. The settlement received final approval by the court during the third quarter, and the deadline to appeal the order approving the settlement passed without any appeals filed. The amount of the settlement is reflected in the Company's consolidated statement of operations for the second quarter of 2018 and was paid early in the fourth quarter of 2018. The third class action was dismissed in the second quarter of 2018. The Smith and the Snow cases cover all affected lessors, except a small percentage who opted out. Most of those have filed separate actions. The Company does not expect those cases to have a material adverse effect on the results of operations, financial position or cash flows of the Company. Additionally, it is not possible at this time to estimate the amount of any additional loss, or range of loss, that is reasonably possible. Southwestern Energy Company, an independent energy company, engages in the exploration, development, and production of natural gas and oil in the United States. It operates through two segments, Exploration and Production, and Midstream. Southwestern Energy Company was founded in 1929 and is headquartered in Spring, Texas. SP PLUS: Ignored Credit Card Truncation Duties, Orsi Says --------------------------------------------------------- JENNIFER ORSI, individually and on behalf of all others similarly situated, the Plaintiff, vs. SP PLUS CORPORATION, a Delaware corporation, the Defendant, Case No. 0:18-cv-62589-UU (S.D. Fla., Oct. 27, 2018), alleges that SP Plus knowingly or recklessly ignored its credit card truncation duties by printing receipts with more than five digits of their credit or debit card numbers. As a result, SP Plus violated their trust and exposed them to a heightened level of identity theft. According to the complaint, SP Plus is one of the leading providers of parking management and other ancillary services at airports across the United States, including Ft. Lauderdale, Florida. SP Plus accepts credit card and debit card payments from consumers for these services. SP Plus has willfully violated Fair and Accurate Credit Transactions Act causing Plaintiff and the other class members concrete injuries, which entitles them to statutory damages between $100 and $1,000, as well as attorney's fees and costs, the lawsuit says.[BN] Attorneys for Plaintiff and the Putative Class: J. Dennis Card, Jr., Esq. Darren R. Newhart, Esq. CONSUMER LAW ORGANIZATION , P.A. 721 US Highway 1, Ste. 201 North Palm Beach, FL 33408 Telephone: 561 822-3446 E-mail: Dennis@cloorg.com Darren@cloorg.com - and - Christopher W. Legg, Esq. CCHRISTOPHER W. LEGG , P.A. 499 E. Palmetto Park Rd., Ste. 228 Boca Raton, FL 33432 Telephone: 954 962-2333 E-mail: Chris@theconsumerlawyers.com SPRINGER NATURE: Website not Accessible to Blind, Sullivan Says --------------------------------------------------------------- PHILLIP SULLIVAN, JR., on behalf of himself and all others similarly situated, the Plaintiff, vs. SPRINGER NATURE AMERICA, INC., the Defendant, Case 1:18-cv-09983 (S.D. Fla., Oct. 29, 2018), alleges that the Defendant denies deaf and hard-of-hearing individuals throughout the United States equal access to the goods and services that it provides to non-disabled individuals, through its web site at https://www.scientificamerican.com The Defendant provides a wide array of goods, services to the public through its Website. However, the Website contains access barriers that make it difficult for deaf and hard-of-hearing individuals to use the Website. In fact, the access barriers make it impossible for deaf and hard-of-hearing users to comprehend the audio portion of videos that are posted on the Website. Defendant thus excludes the deaf and hard of hearing from the full and equal participation in the growing Internet economy that is increasingly a fundamental part of the common marketplace and daily living. In the wave of technological advances in recent years, assistive technology is becoming an increasingly prominent part of everyday life, allowing deaf and hard-of-hearing people to fully and independently access a variety of services, including accessing online videos. The Plaintiff, who currently lives in New York City, is a deaf individual. He brings this civil rights class action against Defendant for failing to design, construct, and/or own or operate a website that is fully accessible to, and independently usable by, deaf and hard-of-hearing people. According to the complaint, approximately 36 million people in the United States are deaf or hard of hearing. Many of these individuals require captioning to meaningfully comprehend the audio portion of video content. Just as buildings without ramps bar people who use wheelchairs, video content without captions excludes deaf and hard-of-hearing individuals. Closed captioning is a viewer-activated system that displays text on, for instance, online videos, television programming, or DVD movies. This is different from open captioning or subtitles, which are burned into the video file and automatically displayed for everyone to see, such as subtitles in foreign language movies. With closed captioning, deaf and hard-of-hearing individuals have the opportunity to watch videos by reading the captioned text, the lawsuit says. Despite readily available accessible technology, such as the technology in use at other heavily trafficked websites, which makes use of closed captioning for hard-of-hearing individuals, such as YouTube and Netflix, Defendant has chosen to post videos without closed captioning, or with limited closed captioning, that are inaccessible to deaf and hard-of-hearing individuals. Without closed captioning, deaf and hard-of-hearing people cannot comprehend the audio portion of the videos on the Website. By failing to make the Website accessible to deaf and hard-of-hearing persons, Defendant is allegedly violating basic equal access requirements under both state and federal law.[BN] Attorneys for Plaintiff and the Class C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: 212-465-1188 Facsimile: 212-465-1181 STATE COLLECTION: Judgment on Pleadings on Bahr's TCPA Claim Denied ------------------------------------------------------------------- In the case, MATTHEW BAHR, on behalf of himself and all others similarly situated, Plaintiff, v. STATE COLLECTION SERVICE, INC., Defendant, Case No. 18 C 2910 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied SCS' motion for judgment on the pleadings regarding Count II of Bahr's Telephone Consumer Protection Act ("TCPA") claim. Bahr brings the putative class action complaint against Defendant SCS, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), and the TCPA. Bahr claims that SCS violated the FDCPA by sending a letter requiring him to speak with an SCS representative even after SCS received notice that Bahr had attorney representation. He also claims that SCS violated the TCPA by calling his cellular telephone using an automatic telephone dialing system ("ATDS") without his express consent. SCS, a debt collection agency, sought to collect a consumer debt from Bahr, which Bahr allegedly owed to Advocate Lutheran General, the original creditor. From November 2017 to February 2018, SCS sent Bahr a series of collection letters informing Bahr of the debt he owed. However, the letters made inconsistent assertions regarding both the account number and the amount owed. Bahr consulted with an attorney because he was confused about the discrepancies and whether he owed the alleged debt. On Feb. 12, 2018, Bahr's attorney faxed a letter to SCS that included his and his firm's contact information and indicated that Bahr disputed the debt. In addition, the fax from the counsel stated his office represents Bahr with respect to any and all debts SCS seeks to collect, now or in the future, until notified otherwise by his office. As legal representative for Bahr, all communication must be through the counsel's office, and stated not to contact Bahr directly. After receiving the fax, SCS sent Bahr a letter acknowledging his counsel's letter while also stating that Bahr would need to contact SCS if he wanted SCS to discuss the account with a third party. Bahr did not respond to SCS' letter. SCS then began using an ATDS to call Bahr on his cellular phone in March 2018, calling numerous times and leaving multiple voicemails. SCS persisted in calling Bahr right to the filing of the lawsuit. SCS has filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) regarding Bahr's TCPA claim. It argues both that Bahr failed to plead a lack of prior express consent and that he did not effectively revoke his prior express consent to phone calls under the TCPA. Judge Ellis holds that at the pleading stage, where consent is an affirmative defense, Bahr's allegation that SCS made calls without consent suffices to allow his TCPA claim to proceed. Having determined that Bahr's complaint does not conclusively demonstrate consent so as to require dismissal of the TCPA claim, the Judge holds she needs not reach SCS' argument that Bahr's counsel's fax did not effectively revoke any prior consent. She leaves this determination to a later motion for summary judgment upon a more fully developed record. Because she concludes that Bahr's complaint does not conclusively establish the existence of prior express consent, Judge Ellis denied SCS' motion for judgment on the pleadings on Bahr's TCPA claim. A full-text copy of the Court's Oct. 30, 2018 Opinion and Order is available at https://is.gd/MUZl4L from Leagle.com. Matthew Bahr, on behalf of himself and all others similarly situated, Plaintiff, represented by Stacy Michelle Bardo -- stacy@bardolawpc.com -- Bardo Law, P.C., Bryan Paul Thompson -- bryan.thompson@cclc-law.com -- Chicago Consumer Law Center, P.C. & Robert W. Harrer -- rob.harrer@cclc-law.com -- Chicago Consumer Law Center, P.C. State Collection Service, Inc., Defendant, represented by Patrick Daniel Newman -- pnewman@bassford.com -- Bassford Remele. STORM TIGHT: Spinelli Sues over Unsolicited Text Messages --------------------------------------------------------- ANTHONY SPINELLI, individually and on behalf of a class of others similarly situated, the Plaintiff, vs. STORM TIGHT WINDOWS, INC., the Defendant, Case 0:18-cv-62592-WPD (S.D. Fla., Oct. 28, 2018), seeks statutory damages for himself and the classes along with an injunction prohibiting Defendant from making impermissible, Telephone Consumer Protection Act violative calls in the future. According to the complaint, the Plaintiff has received text message(s) to his cellular phone from Defendant consisting of the advertising of various promotions for services and goods offered by Defendant. All the text messages sent by Defendant were without Plaintiff's prior express written consent to be sent marketing/promotional text messages by use of an automatic telephone dialing system in violation of the Telephone Consumer Protection Act. Defendant's unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. The Defendant's text messages also inconvenienced Plaintiff and caused disruption to his daily life, the lawsuit says.[BN] Attorneys for Plainttiff: Jibrael S. Hindi, Esq. T HE LAW OFFICE OF JIBRAEL S. HINDI , PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com SUSHI MARU: Court Refuses to Consolidate 2 FLSA Suits ----------------------------------------------------- Magistrate Judge Michael A. Hammer of the U.S. District Court for the District of New Jersey denied the Plaintiff's motion to consolidate the case, DAE SUB CHOI, Plaintiff, v. SUSHI MARU EXPRESS CORP., SUSHI NARA, KOMOLO, INC., KEVIN KIM, HAK JAE LIM, et al., Defendants, Civil Action No. 17-5230 (MCA) (MAH) (D. N.J.), with another matter pending in the district, Chun v. Sushi Maru Express Corp., et al., Civil Action No. 17-6411 (JMV)(MF). In Choi, Plaintiff Dae Sub Choi originally filed a putative class and collective action in the U.S. District Court for the Southern District of New York against various Defendants alleging wage and hour violations under the Fair Labor Standards Act ("FLSA"). The Plaintiff alleges that the Defendants employed him as a sushi chef from approximately November 2011 through November 2016. He further alleges that he was hired to make sushi products at one or more of the Defendants' locations. The Plaintiff is a New Jersey resident. On Jan. 30, 2017, District Judge Swain of the Southern District of New York ordered the Plaintiff to show cause why venue was proper in the Southern District of New York ("SDNY"), and why the case should not be transferred to the U.S. District Court for the District of New Jersey or the Eastern District of New York ("EDNY"). The Plaintiff filed a response to the Order to Show Cause on Feb. 8, 2017. The Defendants also filed a response to the Order to Show Cause on Feb. 20, 2017. On Feb. 21, 2017, the Court deemed the Order to Show Cause satisfied by the Plaintiff's response without prejudice to motion practice by the Defendant in accordance with the Federal Rules of Civil Procedure. Thereafter, the Defendants moved to transfer the matter to the District of New Jersey. On July 10, 2017, the Court issued an Order and Opinion granting the Defendants' motion and transferring the action to the district. On Aug. 3, 2017, the Plaintiff sought to "retransfer" the action to the SDNY or to the EDNY. In an Opinion dated Feb. 27, 2018, the Court denied that request. While the motion was pending, the Plaintiff petitioned the U.S. Court of Appeals of the Second Circuit for a writ of mandamus or prohibition to direct the SDNY to vacate its order transferring the action to the District of New Jersey. On Oct. 19, 2017, the Second Circuit denied the petition and dismissed the proceeding because the Plaintiff has not demonstrated that exceptional circumstances warrant the requested relief. In Chun, on the other hand, Plaintiff Lois Chun originally filed a Complaint on Aug. 25, 2017 in the U.S. District Court for the District of New Jersey naming the same Defendants as Plaintiff Choi, with the exceptions of Defendant Hak Jae Lim, Defendant ABC Companies 1-50, and Defendant John Does 1-30. While Plaintiff Lois Chun's Complaint similarly alleges wage and hour violations under the FLSA as well as New Jersey Labor Law violations and failure to keep proper records, it also alleges defamation, violation of the New Jersey Conscientious Employee Protection Act ("NJ CEPA"), and retaliation for filing a worker's compensation request. Specifically, Plaintiff Chun, a New Jersey resident, alleges that the Defendants employed her for nearly six months, from April 2016 through September 2016. Plaintiff Chun submits that she was hired as a marketing employee to be in charge of the then-future marketing direction of the Maru-Nara-Komolo combination of entities towards the next 'chapter' of their development. However, within one week of working as a marketing employee, Plaintiff Chun was allegedly informed that there was insufficient marketing work and she would be expected to do other things, such as addressing sanitary code violations. According to her Complaint, since the first month of her being on the job with defendants, she reported to upper management about unsanitary and unlawful practices and warned the officers and companies that they required immediate, remedial and compliance actions. Plaintiff Chun's reports were allegedly to no avail, and, as retaliatory actions against her grew worse, she was forced to stop going to work. Furthermore, while a description of the matter is unnecessary as it does not appear to be included in the Plaintiff's consolidation request, it is worthwhile to mention that there is also a related state court action, Choi v. Sushi Maru Express Corp., et al., BER-L-2113-18, pending in the New Jersey Superior Court, Law Division, Bergen County. The matter comes before the Court on the Plaintiff's motion to consolidate Choi with Chun. The Plaintiff submits that the two cases should be consolidated for judicial economy. The Plaintiff further submits that because the cases are related; involve essentially the same Defendants; involve employment and labor law issues; and most if not all the parties are amenable to process in New Jersey, consolidation is most favorable and clearly supported by the law. The Defendants oppose the Plaintiff's consolidation request, generally arguing that the actions should remain independent due to their different procedural postures and the different legal issues involved. Magistrate Judge Hammer finds consolidation of the two matters inappropriate. While Sushi Maru Express Corp., Sushi Nara, Komolo, Inc., and Kevin Kim are named as Defendants in both Complaints, and both Complaints allege wage and hour violations under the FLSA, New Jersey Labor Law violations, and failure to keep proper records, the similarities end there. Most of the facts alleged in the operative Chun Complaint relate to her NJ CEPA, defamation, and retaliation claims -- claims that are not alleged in the operative Choi Complaint. Most relevant, however, is the fact that discovery for the NJ CEPA, defamation, and retaliation claims will be vastly different than discovery for the FLSA, New Jersey Labor Law, and failure to keep proper records claims. Based on the foregoing, the Magistrate Judge finds no benefit in consolidating these matters. In fact, consolidation is more likely to be confusing, prejudicial, and inefficient given the discovery differences. Furthermore, the Plaintiff did not explain, nor can the Court infer, any benefits related to expediting pretrial discovery that outweigh the potential for confusion, prejudice, and inefficiency by consolidating these matters. For the reasons he stated, Magistrate Judge Hammer denied the Plaintiff's motion to consolidate. The Court will issue an order consistent with the Opinion. A full-text copy of the Court's Oct. 30, 2018 Opinion is available at https://is.gd/GOkW62 from Leagle.com. DAE SUB CHOI, Plaintiff, represented by ADAM GARCIA -- support@kimmlaw.com -- KIMM LAW FIRM & MICHAEL S. KIMM. Sushi Maru Express Corp., Sushi Nara, Komolo, Inc., KEVIN KIM & Hak Jae Lim, Defendants, represented by SUKJIN HENRY CHO. TATA CONSULTANCY: Ct. Grants Bids in Limine Nos. 7 & 8 in Buchanan ------------------------------------------------------------------ In the case, BRIAN BUCHANAN, ET AL., Plaintiffs, v. TATA CONSULTANCY SERVICES, LTD., Defendant, Case No. 15-cv-01696-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the Plaintiffs' motions in limine nos. 7 and 8. The pretrial conference on the motions was held on Oct. 12, 2018. The Plaintiffs' motion in limine no. 7 seeks to Exclude TCS' termination forms. Judge Rogers finds that the termination forms contain hearsay and do not fall within any of the exceptions to the rule against hearsay. These forms are prepared by the human resources department in preparation of a request to terminate an employee. They are reviewed and, in some cases, revised after the legal department reviews them. They are not shown to the employee nor are they used for any ongoing business purpose. Notwithstanding the foregoing, the Judge will allow a witness to discuss the existence of the forms and the lack of any statement therein of intent to discriminate. In addition, the forms can be used as a demonstrative, i.e., a witness can show the jury how many pages exist if all the forms were to be printed out, but the forms themselves will not be admitted. Further, she will allow the introduction of a template or redacted termination form which shows only the questions included on the form, but no other content and/or appended materials. The Plaintiffs' motion in limine no. 8 seeks to exclude TCS' termination form summaries. In light of her ruling regarding the Plaintiffs' motion in limine no. 7, she also granted this motion. Her Order terminates Docket Numbers 525 and 527. A full-text copy of the Court's Oct. 23, 2018 Pretrial Order is available at https://is.gd/O4KJh4 from Leagle.com. Brian Buchanan & Christopher Slaight, Plaintiffs, represented by Daniel A. Kotchen -- dkotchen@kotchen.com -- Kotchen & Low LLP, Daniel Lee Low -- dlow@kotchen.com -- Kotchen and Low LLP, Michael J. von Klemperer -- mvonklemperer@kotchen.com -- Kotchen and Low LLP, Lindsey Grunert -- ltremaine@kotchen.com -- Kotchen and Low LLP, Michael F. Brown -- mbrown@dvglawpartner.com -- DVG Law Partner LLC & Steven Gregory Tidrick -- sgt@tidricklaw.com -- The Tidrick Law Firm. Seyed Amir Masoudi & Nobel Mandili, Plaintiffs, represented by Lindsey Grunert, Kotchen and Low LLP, Michael J. von Klemperer, Kotchen and Low LLP & Daniel A. Kotchen , Kotchn & Low LLP. Tata Consultancy Services, Ltd, Defendant, represented by Michelle M. LaMar -- mlamar@loeb.com -- Loeb & Loeb LLP, Bernard Robert Given, II -- bgiven@loeb.com -- Loeb & Loeb, Erin Michelle Smith -- esmith@loeb.com -- Loeb and Loeb LLP, Laura Ann Wytsma -- lwytsma@loeb.com -- Loeb & Loeb LLP, Patrick Norton Downes -- pdownes@loeb.com -- Loeb And Loeb LLP, Terry D. Garnett -- tgarnett@loeb.com -- Loeb & Loeb LLP & William Michael Brody -- wbrody@loeb.com -- Loeb & Loeb. Apple Inc., Movant, represented by Danielle Conley -- DANIELLE.CONLEY@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP, Kathryn Diane Zalewski -- KATHRYN.ZALEWSKI@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP & Kimberly A. Parker -- KIMBERLY.PARKER@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP. TRI-STATE ADJUSTMENTS: Wright Sues over Debt Collection Practices ----------------------------------------------------------------- ERROL WRIGHT, on behalf of himself individually and all others similarly situated, the Plaintiff, vs. TRI-STATE ADJUSTMENTS, INC., the Defendant, Case No. 2:18-cv-06018 (E.D.N.Y., Oct. 27, 2018), seeks to recover for damages brought by an individual consumer for Defendant's violations of the Fair Debt Collection Practices Act. According to the complaint, the Defendant sent to plaintiff a collection letter dated November 28, 2016. In the letter, Defendant fails to identify the current creditor to whom the debt is owed. Defendant's failure to identify clearly and effectively the current creditor of the debt contravenes the FDCPA, the lawsuit says. TSA is a debt collection agency located in La Crosse, Wisconsin.[BN] Attorneys for Plaintiff: Novlette R. Kidd, Esq. FAGENSON & PUGLISI, PLLC 450 Seventh Avenue, Suite 704 New York, NY 10123 Telephone: (212) 268-2128 E-mail: Nkidd@fagensonpuglisi.com TRINET GROUP: Awaits Hearing Date on Welgus Appeal -------------------------------------------------- TriNet Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 29, 2018, for the quarterly period ended September 30, 2018, that the company is awaiting the U.S. Court of Appeals for the Ninth Circuit to schedule a hearing date on plaintiff's appeal in the case entitled, Welgus v. TriNet Group, Inc., et. al. In August 2015, Howard Welgus, a purported stockholder, filed a putative securities class action lawsuit, Welgus v. TriNet Group, Inc., et. al., under the Securities Exchange Act of 1934 in the United States District Court for the Northern District of California. The complaint was later amended in April 2016 and again in March 2017. On December 18, 2017, the district court granted TriNet's motion to dismiss the amended complaint in its entirety, without leave to amend. Plaintiff filed a notice of appeal of the district court's order on January 17, 2018. Plaintiff-Appellant filed his opening appeal brief before the Ninth Circuit Court of Appeals on April 27, 2018. TriNet filed a responsive brief on June 28, 2018. Plaintiff-Appellant filed his reply brief on August 20, 2018. TriNet Group said, "We are now waiting for the Ninth Circuit to schedule a hearing date, which could be 15 to 30 months from the date of appeal (a hearing date between April 2019 and July 2020 is likely). We see no basis for a reversal of the district court's decision. We are unable to reasonably estimate the possible loss or expense, or range of losses and expenses, if any, arising from this litigation." TriNet Group, Inc. provides human resources solutions for small and midsize businesses in the United States and Canada. The company offers multi-state payroll processing and tax administration; employee benefits programs, including health insurance and retirement plans; workers compensation insurance and claims management; employment and benefit law compliance; and other services. TriNet Group, Inc. was founded in 1988 and is headquartered in San Leandro, California. TRINITY INDUSTRIES: Isolde Consolidated Suit Still Stayed --------------------------------------------------------- Trinity Industries, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that that the Isolde suit has remained administratively closed pending the conclusion of the appeal in the Joshua Harman FCA case. On January 11, 2016, the previously reported cases styled Thomas Nemky, Individually and On Behalf of All Other Similarly Situated v. Trinity Industries, Inc., Timothy R. Wallace, and James E. Perry, Case No. (2:15-CV-00732) ("Nemky") and Richard J. Isolde, Individually and On Behalf of All Other Similarly Situated v. Trinity Industries, Inc., Timothy R. Wallace, and James E. Perry, Case No. (3:15-CV-2093) ("Isolde"), were consolidated in the District Court for the Northern District of Texas, with all future filings to be filed in the Isolde case. On March 9, 2016, the Court appointed the Department of the Treasury of the State of New Jersey and its Division of Investment and the Plumbers and Pipefitters National Pension Fund and United Association Local Union Officers & Employees’ Pension Fund as co-lead plaintiffs ("Lead Plaintiffs"). On May 11, 2016, the Lead Plaintiffs filed their Consolidated Complaint alleging defendants Trinity Industries, Inc., Timothy R. Wallace, James E. Perry, and Gregory B. Mitchell violated Section 10(b) of the Securities Exchange Act of 1934, Rule 10b-5 promulgated thereunder, and defendants Mr. Wallace and Mr. Perry violated Section 20(a) of the Securities Exchange Act of 1934 by making materially false and misleading statements and/or by failing to disclose material facts about Trinity's ET Plus and the FCA case styled Joshua Harman, on behalf of the United States of America, Plaintiff/Relator v. Trinity Industries, Inc., Defendant, Case No. 2:12-cv-00089-JRG (E.D. Tex.). On August 18, 2016, Trinity, Mr. Wallace, Mr. Perry, and Mr. Mitchell filed motions to dismiss Lead Plaintiffs Consolidated Complaint, which remain pending. On March 13, 2017, the Court granted defendant's motion to stay and administratively close proceedings pending Fifth Circuit appeal. The Isolde matter is stayed and remains administratively closed pending the conclusion of the appeal in the Joshua Harman FCA case. Trinity Industries said, "Trinity, Mr. Wallace, Mr. Perry, and Mr. Mitchell deny and intend to vigorously defend against the allegations in the Isolde case. Based on the information available to the Company, we currently do not believe that a loss is probable with respect to this shareholder class action; therefore, no accrual has been included in the accompanying consolidated financial statements. Because of the complexity of these actions as well as the current status of certain of these actions, we are not able to estimate a range of possible losses with respect to these matters." No further updates were provided in the Company's SEC report. Trinity Industries, Inc. provides various products and services to the energy, chemical, agriculture, transportation, and construction sectors in the United States and internationally. Trinity Industries, Inc. was founded in 1933 and is headquartered in Dallas, Texas. TWITTER INC: Continues to Defend Consolidated Class Suit in Calif. ------------------------------------------------------------------ Twitter, 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 plaintiffs' motion for class certification in the consolidated securities action in the U.S. District Court for the Northern District of California. Beginning in September 2016, multiple putative class actions and derivative actions were filed in state and federal courts in the United States against Twitter, Twitter's directors, and/or certain officers alleging false and misleading statements in violation of securities laws and breach of fiduciary duty. The Company disputes the claims and intends to continue to defend the lawsuits vigorously. The putative class actions were consolidated in the U.S. District Court for the Northern District of California. On October 16, 2017, the court granted in part and denied in part the Company's motion to dismiss. On July 17, 2018, the court granted plaintiffs' motion for class certification in the consolidated securities action. No further updates were provided in the Company's SEC report. Twitter, Inc. operates as a platform for public self-expression and conversation in real time. The company offers various products and services, including Twitter that allows users to consume, create, distribute, and discover content; and Periscope, a mobile application that enables user to broadcast and watch video live with others. Twitter, Inc. was founded in 2006 and is headquartered in San Francisco, California. ULTA SALON: Tellez Suit Moved to Southern District of California ---------------------------------------------------------------- Raycheal Tellez, individually, and on behalf of other members of the general public similarly situated, and as aggrieved employees pursuants to the Private Attorneys General Act ("PAGA"), the Plaintiff, vs. Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware corporation, and Does 1 through 100, inclusive, the Defendants, Case No.: 37-02018-00050739-CU-OE-CTL, was removed from the Superior Court of CA, San Diego, to the U.S. District Court for the Southern District of California (San Diego) on Oct. 29, 2018. The Southern District of California Court Clerk assignes Case No. 3:18-cv-02480-CAB-KSC to the proceeding. The suit alleges labor-related violations. The case is assigned to the Hon. Judge Cathy Ann Bencivengo. Ulta Beauty Inc., is a chain of beauty stores in the United States, headquartered in Bolingbrook, Illinois. Ulta Beauty carries cosmetics and skincare brands, men's and women's fragrances, and haircare products. Each store is also equipped with a salon.[BN] Attorneys for Raycheal Tellez: Matthew R. Bainer, Esq. THE BAINER LAW FIRM 1901 Harrison St., Suite 1100 Oakland, CA 94612 Telephone: (510) 922-1802 Facsimile: (510) 844-7701 E-mail: mbainer@bainerlawfirm.com Attorneys for Defendants: Lena Kae Sims, Esq. Littler Mendelson 501 West Broadway, Suite 900 San Diego, CA 92101-3577 Telephone: (619) 232-0441 Facsimile: (619) 232-0442 E-mail: lsims@littler.com UNITED PARCEL: Morgate Class Action Concluded --------------------------------------------- United Parcel Service, 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 Court approval on the settlement in the case entitled, Morgate v. The UPS Store, Inc. et al., was received and the case was resolved in the third quarter of 2018. UPS and its subsidiary The UPS Store, Inc. were defendants in Morgate v. The UPS Store, Inc. et al., an action in the Los Angeles Superior Court brought on behalf of a certified class of all franchisees who chose to rebrand their Mail Boxes Etc. franchises to The UPS Store in March 2003. Plaintiff alleged that UPS and The UPS Store, Inc. misrepresented and omitted facts to the class about the market tests that were conducted before offering the class the choice of whether to rebrand to The UPS Store. In May 2018, the company reached an agreement to resolve the case for an immaterial amount, subject to court approval. Court approval was received and the case was resolved in the third quarter of 2018. United Parcel Service, Inc. provides letter and package delivery, specialized transportation, logistics, and financial services. It operates through three segments: U.S. Domestic Package, International Package, and Supply Chain & Freight. United Parcel Service, Inc. was founded in 1907 and is headquartered in Atlanta, Georgia. UNITED PARCEL: Wright and Zislin Suit in Canada Concluded --------------------------------------------------------- United Parcel Service, 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 court approval of the settlement in the case entitled, Ryan Wright and Julia Zislin v. United Parcel Service Canada Ltd., was received and the case was resolved in the third quarter of 2018. United Parcel Service said, "We are a defendant in Ryan Wright and Julia Zislin v. United Parcel Service Canada Ltd., an action brought on behalf of a certified class of customers in the Superior Court of Justice in Ontario, Canada. Plaintiffs filed suit in February 2007, alleging inadequate disclosure concerning the existence and cost of brokerage services provided by us under applicable provincial consumer protection legislation and infringement of interest restriction provisions under the Criminal Code of Canada." Partial summary judgment was granted to the company and the plaintiffs by the Ontario motions court in August 2011, when it dismissed plaintiffs' complaint under the Criminal Code and granted plaintiffs' complaint of inadequate disclosure. The company appealed the Court's decision pertaining to inadequate disclosure in September 2011. In June 2018, the company reached an agreement to resolve the case for an immaterial amount, subject to court approval. Court approval was received and the case was resolved in the third quarter of 2018. United Parcel Service, Inc. provides letter and package delivery, specialized transportation, logistics, and financial services. It operates through three segments: U.S. Domestic Package, International Package, and Supply Chain & Freight. United Parcel Service, Inc. was founded in 1907 and is headquartered in Atlanta, Georgia. UNITIL CORP: Continues to Defend Bellermann Class Action -------------------------------------------------------- said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend a putative class action suit entitled, Bellermann et al v. Fitchburg Gas and Electric Light Company. In early 2009, a putative class action complaint was filed against Unitil's Massachusetts based utility, Fitchburg, in Massachusetts' Worcester Superior Court, (captioned Bellermann et al v. Fitchburg Gas and Electric Light Company). The Complaint sought an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December 2008. The Massachusetts Supreme Judicial Court issued an order denying class certification status in July 2016, though the plaintiffs' individual claims remain pending. The Company continues to believe these claims are without merit and will continue to defend itself vigorously. No further updates were provided in the Company's SEC report. Unitil Corporation, a public utility holding company, engages in the distribution of electricity and natural gas in the United States. It operates through three segments: Utility Gas Operations, Utility Electric Operations, and Non-Regulated. Unitil Corporation was incorporated in 1984 and is headquartered in Hampton, New Hampshire. US AIRWAYS: Hickcox-Huffman TCPA Suit Deal Has Prelim Approval -------------------------------------------------------------- In the case, HAYLEY HICKCOX-HUFFMAN, Plaintiff, v. US AIRWAYS, INC., et al., Defendants, Case No. 10-cv-05193-VKD (N.D. Cal.), Magistrate Judge Virginia K. DeMarchi of the U.S. District Court for the Northern District of California, San Jose Division, preliminarily approved the class action settlement. On Nov. 16, 2010, the Plaintiff filed a proposed nationwide class action lawsuit against Defendants US Airways, Inc. and US Airways Group, Inc., which asserted claims for breach of contract, unjust enrichment, breach of the covenant of good faith and fair dealing, negligent misrepresentation, and interference with use of property/bailment. On Jan. 31, 2011, the Plaintiff filed her First Amended Complaint, which asserted claims for breach of self-imposed undertaking, breach of contract (express), breach of contract (implied), breach of contract (federal law), breach of the implied covenant of good faith and fair dealing, unjust enrichment, intentional misrepresentation, and negligent misrepresentation, that related to or arose from US Airways' transporting baggage for passengers on its airline. The Parties briefed a number of motions directed to the pleadings as well as an appeal to the Ninth Circuit of the Court's ruling on the Defendants' Motion to Dismiss the First Amended Complaint. The Ninth Circuit reversed and remanded the matter to the Court in May 2017. On remand, the Parties stipulated to dismiss certain causes of action and the Court dismissed a number of others, leaving only Plaintiff's claim for breach of contract (express). The Parties have entered into a Stipulation of Class Action Settlement, in which they have agreed to settle the Action pursuant to the terms and conditions of the Agreement, and which will result in dismissal of the Action with prejudice. Magistrate Judge DeMarchi finds that the Class Counsel have conducted an extensive investigation into the facts and law relating to the matters alleged in the Action. The Parties reached a settlement following extensive arms'-length negotiations that occurred over the course of two full-day, in-person mediation sessions with Jill Sperber, Esq., of Judicate West. Having carefully reviewed the Agreement, including the exhibits attached thereto and all file, records and prior proceedings to date in the matter, and good cause appearing based on the record, the Magistrate Judge preliminarily approved the Agreement, adopted and incorporated the definitions contained in the Agreement. She stayed all proceedings in the Action, other than proceedings necessary to carry out or enforce the terms and conditions of the Agreement and the Order. The Action is preliminarily certified as a class action, for settlement purposes only, pursuant to Fed. R. Civ. P. 23(a) and (b)(3). The Class will consist of all passengers of US Airways who traveled on a domestic flight between Nov. 16, 2005 and April 29, 2010, checked baggage that was lost or delayed, reported to US Airways during the Class Period that their checked baggage was lost or delayed, and whose checked baggage fee was not previously refunded. The "Subject Service" is US Airways' commitment to transport a passenger's checked baggage to a passenger's destination on domestic flights at any time between Nov. 16, 2005 and April 29, 2010, inclusive. The Magistrate designated the Plaintiff as the representative of the conditionally certified Class; and Karczag and Associates PC, Foley Bezek Behle & Curtis LLP, and the Law Office of William M. Aron, as the Class Counsel. A Fairness Hearing will be held before the Court on April 1, 2019, 10:00 a.m. Objections to the Agreement or the Fee Application will be filed with the Court on or before the Objection Deadline set, and papers in response to such objections must be filed on March 25, 2019. The Magistrate approved the form and content of the proposed Long Form Notice and Summary Notice, and the notice methodology described in the Agreement. Pursuant to the Agreement, she appointed KCC, LLC as the Settlement Administrator to help implement the terms of the Agreement. No later than Nov. 23, 2018, the Settlement Administrator will provide notice to the Class pursuant to the terms of the Agreement and the deadlines set, in accordance with the notice program set forth in the Agreement. The Parties will coordinate with the Settlement Administrator to provide notice to the Class pursuant to terms therein. Any Request for Exclusion must be postmarked and sent or electronically submitted via the Settlement website to the Settlement Administrator no later than Feb. 21, 2019. The Settlement Administrator will file a list reflecting all timely requests for exclusion with the Court no later than seven days before the Fairness Hearing. In summary, the deadlines set by the Order may be extended by order of the Court, for good cause shown, without further notice to the Class. The Class Members must check the Settlement Website regularly for updates and further details regarding the Settlement: (a) The Long Form Notice will be published on the Settlement Website no later than Nov. 23, 2018. (b) The Summary Notice will be published as soon as possible after the Notice Date. (c) The Settlement Website and Toll-Free Telephone Number will be established and become operational no later than Nov. 23, 2018. (d) The Plaintiff's motion for attorney's fees will be filed no later than Feb. 7, 2019. (e) All completed Claim Forms must be postmarked and mailed to the Settlement Administrator or uploaded to the Settlement Website no later than Feb. 21, 2019. (f) All written objections to the Agreement will be filed with the Court no later than Feb. 21, 2019. (g) All Requests for Exclusion will be postmarked and sent to the Settlement Administrator no later than Feb. 21, 2019. (h) All written notices of an objector's intention to appear at the Fairness Hearing will be filed with the Court no later than March 25, 2019. (i) A Fairness Hearing will be scheduled for April 1, 2019 at 10:00 a.m. (j) Not later than seven calendar days before the date of the Fairness Hearing, the Settlement Administrator will file with the Court: (a) a list of those persons who have opted out or excluded themselves from the Settlement; and (b) the details regarding the number of valid Claim Forms received and processed by the Settlement Administrator. (k) The Plaintiff's motion in support of final approval of the Settlement will be filed no later than Feb. 25, 2019 and posted to the Settlement Website as soon as practicable thereafter, and may be supplemented no later than seven days prior to the Fairness Hearing. A full-text copy of the Court's Oct. 26, 2018, 2018 Order is available at https://is.gd/auaSpi from Leagle.com. Hayley Hickcox-Huffman, on behalf of herself and all others similarly situated, Plaintiff, represented by Roger N. Behle, Jr. -- rbehle@foleybezek.com -- Foley Bezek Behle & Curtis, LLP, Thomas G. Foley, Jr. -- tfoley@foleybezek.com -- Foley Bezek Behle & Curtis, LLP, Justin Potter Karczag -- Justin@EncoreLaw.com -- Karczag and Associates PC, Kevin David Gamarnik -- kgamarnik@foleybezek.com -- Foley Bezek Behle Curtis LLP, Robert A. Curtis -- rcurtis@foleybezek.com -- Foley Bezek Behle & Curtis, LLP & William Michael Aron -- bill@aronlawfirm.com -- Law Office of William M. Aron. US Airways, Inc., Defendant, represented by Kelly S. Wood -- kwood@omm.com -- O'Melveny and Myers LLP, Michael Gerard McGuinness -- mmcguninness@omm.com -- O'Melveny Myers LLP & Robert Alan Siegel -- rsiegel@omm.com -- O'Melveny and Myers LLP. U.S. Airways Group, Inc., Defendant, represented by Kelly S. Wood, O'Melveny and Myers LLP & Michael Gerard McGuinness, O'Melveny Myers LLP. USG CORP: Still Defends Wallboard Price Fixing Related Suits ------------------------------------------------------------ USG Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 25, 2018, for the quarterly period ended September 30, 2018, that the company continues to defend itself against lawsuits alleging price fixing of wallboards. In 2015, USG, the company's subsidiary United States Gypsum Company, the company's former subsidiary L&W Supply Corporation, and seven other wallboard manufacturers were named as defendants in a lawsuit filed by twelve homebuilders alleging that the defendants conspired to fix the price of wallboard sold in the United States. Earlier, in 2013, class action lawsuits making similar allegations were filed in Canada on behalf of a class of purchasers of wallboard in Canada. USG said, "We believe that the cost, if any, of resolving the homebuilders' lawsuit and Canadian class action litigation will not have a material effect on our results of operations, financial position or cash flows." No further updates were provided in the Company's SEC report. USG Corporation, through its subsidiaries, manufactures and sells building materials worldwide. The company's Gypsum division manufactures and markets gypsum and related products to construct walls, ceilings, roofs, and floors of residential, commercial, and institutional buildings, as well as for various industrial applications. USG Corporation was founded in 1901 and is headquartered in Chicago, Illinois. UZBEK LOGISTICS: Kopaleishvili Seeks to Certify Class ----------------------------------------------------- In the class action lawsuit captioned RAUL KOPALEISHVILI, the Plaintiff, vs. UZBEK LOGISTICS, INC., et al., the Defendants, Case No. 1:17-cv-00702-TSB (S.D. Ohio), the Plaintiff move the Court for an Order: 1. certifying action as a class action pursuant to Fed. R. Civ. P. 23; 2. authorizing that notice of this matter be sent to members of the putative class; 3. appointing the law firms of Virginia & Ambinder, LLP and Croskery Law Offices as Class Counsel pursuant to Rule 23(g), together with such other and further relief as the Court may deem just and proper; and 4. granting certification of the following class and appointing Plaintiff Raul Kopaleishvili as Class Representative: "Plaintiffs and all individuals hired as truck drivers by Uzbek Logistics, Inc. and/or Uzbek Transport Express, LLC, from April 2009 through March 2018." The Court said, "Corporate officers, shareholders, directors and administrative employees shall not be part of the proposed class."[CC] Attorneys for Plaintiff and Putative Class: LaDonna M. Lusher, Esq. VIRGINIA & AMBINDER, LLP 40 Broad, Seventh Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: llusher@vandallp.com - and - Robert F. Croskery, Esq. CROSKERY LAW OFFICES 3905 Eastern Avenue, Suite 200 Cincinnati, OH 45226 Telephone: (212) 232-5297 VENATOR MATERIALS: Final Judgment Signed in TiO2-Related Suit ------------------------------------------------------------- Venator Materials PLC 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 judge in the TiO2-related antitrust class action suit has signed a final judgment resolving the case. In the past, the company was named as a defendant in multiple civil antitrust suits alleging that the company, its co-defendants and other alleged co-conspirators conspired to fix prices of TiO2 sold in the U.S. The company settled litigation involving both direct purchasers of TiO2 and purchasers who opted out of the direct purchaser litigation for amounts immaterial to the company's unaudited condensed consolidated and combined financial statements. The company was also named as a defendant in a class action civil antitrust suit filed on March 15, 2013 in the U.S. District Court for the Northern District of California by purchasers of products made from TiO2 (the "Indirect Purchasers") making essentially the same allegations as did the direct purchasers. On October 14, 2014, plaintiffs filed their Second Amended Class Action Complaint narrowing the class of plaintiffs to those merchants and consumers of architectural coatings containing TiO2. On August 11, 2015, the court granted othe company's motion to dismiss the Indirect Purchasers litigation with leave to amend the complaint. A Third Amended Class Action Complaint was filed on September 29, 2015 further limiting the class to consumers of architectural paints. Plaintiffs have raised state antitrust claims under the laws of 15 states, consumer protection claims under the laws of nine states, and unjust enrichment claims under the laws of 16 states. On November 4, 2015, the company and its co-defendants filed another motion to dismiss. On June 13, 2016, the court substantially denied the motion to dismiss except as to consumer protection claims in one state. Venator Materials said, "We have agreed to settle this matter for an amount immaterial to our unaudited condensed consolidated and combined financial statements. The court gave final approval on August 16, 2018 and the judge signed the final judgment on October 22, 2018." The Indirect Purchasers sought to recover injunctive relief, treble damages or the maximum damages allowed by state law, costs of suit and attorneys' fees. The company is not aware of any illegal conduct by it or any of its employees. Venator Materials PLC manufactures and markets chemical products worldwide. It operates through two segments, Titanium Dioxide and Performance Additives. The company was founded in 2017 and is headquartered in Stockton-On-Tees, the United Kingdom. W.W. GRAINGER: Rangel Suit Moved to Eastern Dist. of California --------------------------------------------------------------- Selina Rangel, an individual, on behalf of herself and others similarly situated, the Plaintiff, vs. W.W. Grainger, Inc., an Illinois Corporation, the Defendant, Case No. CV-18-003041, was removed from the Stanislaus County Superior Court, to the U.S. District Court Eastern District of California (Sacramento) on Oct 26, 2018. The Eastern District of California Court Clerk assigned Case No. 2:18-at-01649. W.W. Grainger, Inc. is a Fortune 500 industrial supply company founded in 1927 in Chicago by William W. Grainger. He founded the company in order to provide consumers with access to a consistent supply of motors. Attorneys for Plaintiff: Alvin B Lindsay, Esq. David Harmik Yeremian, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N Brand Blvd., Suite 705 Glendale, CA 91203 Telephone: (818) 230-8380 Facsimile: (818) 230-0308 E-mail: alvin@yeremianlaw.com david@yeremianlaw.com Attorneys for W.W. Grainger, Inc.: Ryan H. Crosner, Esq. Michael John Nader, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Telephone: (213) 239-9800 Facsimile: (213) 239-9045 E-mail: ryan.crosner@ogletreedeakins.com michael.nader@ogletree.com WATERSTONE FINANCIAL: 7th Cir. Vacates District Court Order ----------------------------------------------------------- Waterstone Financial, 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 U.S. Court of Appeals for the Seventh Circuit has issued a ruling vacating a district court's order enforcing an arbitration award. Waterstone Mortgage Corporation is a defendant in a class action lawsuit that was filed in the United States District Court for the Western District of Wisconsin and subsequently compelled to arbitration before the American Arbitration Association. The plaintiff class alleged that Waterstone Mortgage Corporation violated certain provisions of the Fair Labor Standards Act (FLSA) and failed to pay loan officers consistent with their employment agreements. On July 5, 2017, the arbitrator issued a Final Award finding Waterstone Mortgage Corporation liable for unpaid minimum wages, overtime, unreimbursed business expenses, and liquidated damages under the FLSA. On December 8, 2017, the District Court confirmed the award in large part, and entered a judgment against Waterstone in the amount of $7,267,919 in damages to Claimants, $3,298,851 in attorney fees and costs, and a $20,000 incentive fee to Plaintiff Herrington, plus post-judgment interest. On February 12, 2018, the District Court awarded post-arbitration fees and costs of approximately $98,000. The judgment was appealed by Waterstone to the Seventh Circuit Court of Appeals, where oral argument was held on May 29, 2018. On October 22, 2018, the Seventh Circuit issued a ruling vacating the District Court's order enforcing the arbitration award. Waterstone Financial said, "If the District Court determines the agreement only allows for individual arbitration, the award would be vacated and the case sent to individual arbitration for a new proceeding. If the District Court determines the arbitration agreement nevertheless allows for collective arbitration, the District Court could confirm the prior award." Waterstone Financial finally said, "If the judgment is upheld in full, the Company has estimated that the award, which includes attorney's fees, costs, and interest, could be as high as $11 million. However, Waterstone has meaningful appellate rights and intends to vigorously defend its interests in this matter, including arguing for complete reversal on appeal. Although the Company believes there is a strong basis to vacate the award, there remains a reasonable possibility that the Court's judgment will be affirmed in whole or in part, with the possible range of loss from $0 to $11 million. We do not believe that the loss is probable at this time, as that term is used in assessing loss contingencies. Accordingly, in accordance with the authoritative guidance in the evaluation of contingencies, the Company has not recorded an accrual related to this matter." Waterstone Financial, Inc. operates as a bank holding company for WaterStone Bank SSB that provides various financial services to customers in southeastern Wisconsin, the United States. It operates through two segments, Community Banking and Mortgage Banking. Waterstone Financial, Inc. was founded in 1921 and is based in Wauwatosa, Wisconsin. WEBLOYALTY.COM INC: Remaining Claims in Wiretapping Suit Dismissed ------------------------------------------------------------------ In the case, L.S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, Plaintiff, v. WEBLOYALTY.COM, INC., GAMESTOP CORPORATION, and VISA INC., Defendants, Civil Action No. 3:10-CV-1372 (CSH) (D. Conn.), Judge Charles S. Haight, Jr. of the U.S. District Court for the District of Connecticut (i) granted Webloyalty's Motion for Partial Summary Judgment on Plaintiff's EFTA claim, and (ii) denied Webloyalty and GameStop's Motion for Judgment on the Pleadings on Plaintiff's CUTPA claim. In November 2009, the Plaintiff purchased a video game from GameStop's website. A banner for Defendant Webloyalty appeared on the wepbage after the Plaintiff completed his online purchase, but the banner included a "Continue" button that led the Plaintiff to believe he was still in the process of completing his GameStop purchase. Clicking on the banner led the Plaintiff to Webloyalty's enrollment page that advertised a $20 GameStop coupon and included references to GameStop throughout its description of Webloyalty's membership program. The page at issue required the Plaintiff to enter the last four digits of his debit card number and to enter and verify his email. He apparently did so. Webloyalty asserts that the Plaintiff was then shortly presented with an acknowledgment page, and an email to confirm his enrollment. Both the Acknowledgment Page and Join Email indicate to an enrollee that he was being given a 30-day free trial, but that he would be charged $12 per month after the trial unless he cancelled his program membership. Neither the Acknowledgment Page nor Join Email is an exact reproduction of the Enrollment Page. The Plaintiff asserts Webloyalty violated the Electronic Funds Transfer Act ("EFTA") by not providing a copy of the electronic fund transfer authorization, i.e., the Enrollment Page. Webloyalty contends that the Acknowledgment Page and Join Email satisfy the copy requirement under EFTA. The Court had considered the parties' arguments before in the case, ruling in Webloyalty's favor on its motion to dismiss the Plaintiff's entire complaint. However, the Second Circuit vacated the Court's grant of the motion to dismiss on the EFTA claim on the basis that the Court considered the Join Email in its decision even though it was not referenced in the Plaintiff's complaint, not relied on in the course of the complaint's allegations, and the Plaintiff contends that he never saw it. On remand, the legal viability of the Plaintiff's EFTA claim against Webloyalty is again challenged by that Defendant, this time in the form of a motion for summary judgment under Rule 56. The Second Circuit affirmed in part and vacated in part the Court's opinion in L.S. v. Webloyalty.com, Inc. Specifically, the Second Circuit affirmed dismissal of a number of Plaintiff L.S.' claims, but vacated the Court's dismissal of the Plaintiff's (1) EFTA claim against Webloyalty, and (2) Connecticut Unfair Trade Practices Act ("CUTPA") claim against Defendants Webloyalty and GameStop. These are the only surviving claims from the Plaintiff's second amended complaint. Webloyalty now moves for summary judgment on the EFTA claim, and Webloyalty and GameStop move for judgment on the pleadings on the CUTPA claim. Even in light most favorable to the Plaintiff, Judge Haight finds that the Plaintiff's EFTA claim must be rejected and Webloyalty granted summary judgment on that claim. The Plaintiff's strict reading of EFTA's copy requirements does not further the objectives of the statute and cut against prevailing interpretations. Webloyalty, through the Acknowledgment Page and Join Email, met EFTA's requirements by providing a copy of membership terms and other relevant information. Arguments that the Acknowledgment Page and Join Email, although meeting EFTA's copy requirements, are still unfair and deceptive are best adjudicated outside of the EFTA claim. For these, the Judge granted Webloyalty's motion for partial summary judgment on the Plaintiff's EFTA claim. Judgment will enter dismissing that claim. Turning to the Plaintiff's CUTPA claim against Defendants Webloyalty and GameStop, the Judge finds that because CUTPA is a state statute, he can only rule on the CUTPA claim if he chooses to exercise supplemental jurisdiction. He holds that although the case was first filed 10 years ago in the Court, discovery is still incomplete, and trial would be many months away. Considerations of "judicial economy, convenience, fairness, and comity favor state adjudication of this state claim. The potential uncertainty regarding the viability of the case as a class action in federal court also suggests that the Court should choose not to exercise supplemental jurisdiction. Therefore, the Judge declines to exercise supplemental jurisdiction over the Plaintiff's CUTPA claims. Accordingly, he dismissed the CUPTA claims without prejudice, for lack of subject matter jurisdiction. As a result, there are no pending claims in the action. The Clerk is directed to close the file. A full-text copy of the Court's Oct. 26, 2018, 2018 Omnibus Ruling is available at https://is.gd/jIQmc8 from Leagle.com. L. S., a minor, by P.S., his parent and next friend, on behalf of himself and all others similarly situated, Plaintiff, represented by David C. Katz -- dkatz@weisslawllp.com -- WeissLaw LLP, pro hac vice, James E. Miller -- jmiller@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP & Laurie Rubinow, Sheperd Finkelman Miller & Shah, LLP. Webloyalty.Com, Inc., Defendant, represented by James T. Fawcett -- james.fawcett@wilmerhale.com -- Wilmer, Cutler, Pickering, Hale & Dorr, LLP, James E. Nealon -- james.nealon@withersworldwide.com -- Withers Bergman, LLP, Jessica R. Lisak -- jessica.lisak@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr, pro hac vice, John J. Butt --, john.butts@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr, pro hac vice & John J. Regan -- john.regan@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr, pro hac vice. Visa Inc., Defendant, represented by Jonathan B. Orleans -- jborleans@pullcom.com -- Pullman & Comley, Matthew A. Eisenstein -- matthew.eisenstein@apks.com -- Arnold & Porter, pro hac vice & Robert C. Mason -- Robert.mason@apks.com -- Arnold & Porter Kaye Scholer LLP, pro hac vice. GameStop Corporation, Defendant, represented by James E. Nealon, Withers Bergman, LLP, Jessica R. Lisak, Wilmer Cutler Pickering Hale & Dorr, pro hac vice & James T. Fawcett -- james.fawcett@wilmerhale.com -- Wilmer, Cutler, Pickering, Hale & Dorr, LLP. YWL USA: Wan Seek Minimum & OT Wages under FLSA ----------------------------------------------- LU WAN, on their own behalf and on behalf of others similarly situated, the Plaintiffs, vs. YWL USA INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; JWC GROUP INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; MEI LAN INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; FENG HUA INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; 251 USA INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; FANG LAN INC d/b/a Buddha Asian Bistro Sushi Hibachi Steak House; AI QIN CHEN, CHO YI JUEY WONG, YU WEI LI, FANG QI LI, SUK ANG CHEUNG, and JANE DOE, the Defendants, Case No. 7:18-cv-10334 (S.D.N.Y., Nov. 6, 2018), seeks to recover unpaid minimum wages and overtime wages, liquidated damages, prejudgment and post-judgement interest; and or attorney's fees and cost under the Fair Labor Standards Act and New York Labor Law. According to the complaint, the Defendants have willfully and intentionally committed widespread violations of the FLSA and NYLL by engaging in pattern and practice of failing to pay its employees, including Plaintiffs, minimum wage for each hour worked and overtime compensation for all hours worked over 40 each workweek, the lawsuit says. Attorney for the Plaintiffs, proposed FLSA Collective and potential Rule 23 Class: John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 ZACKY & SONS: Vance Files Suit in C.D. California ------------------------------------------------- A class action lawsuit has been filed against Zacky & Sons Poultry, LLC. The case is styled as Karen Vance, on behalf of herself and all others similarly situated, Plaintiff v. Zacky & Sons Poultry, LLC, Defendant, Case No. 2:18-ap-01375-RK (C.D. Cal., Nov. 14, 2018). The nature of suit is stated as Other Injunctive Relief. Zacky & Sons Poultry, LLC grows, processes, and distributes poultry products. The Company offers turkey and deli products such as sausages, franks, and sliced meat. Zacky & Sons Poultry operates in the United States.[BN] The Plaintiff is represented by: Gail L Chung, Esq. Outten and Golden LLP 685 Third Avenue 25th Floor New York, NY 10017 Phone: (646) 824-0803 Fax: (646) 509-2073 Email: GL@outtengolden.com The Defendant is represented by: Zacky & Sons Poultry, LLC PO BOX 12556 FRESNO, CA 93778 Tax ID / EIN: 46-1989252 PRO SE The U.S. Trustee may be reached at: United States Trustee (LA) 915 Wilshire Blvd, Suite 1850 Los Angeles, CA 90017 Phone: (213) 894-6811 ZACKY FARMS: Vance Seeks Wages & Benefits for Terminated Workers ---------------------------------------------------------------- KAREN VANCE on behalf of herself and all others similarly situated, the Plaintiff, vs. ZACKY FARMS, LLC and ZACKY & SONS POULTRY, LLC, the Defendants, Case 1:18-at-00813 (E.D. Cal., Nov. 6, 2018), seeks to recover 60 days' wages benefits, pursuant to the Worker Adjustment and Retraining Notification Act, and the California Labor Code (CAL-WARN Act). According to the complaint, the Plaintiff worked for Defendants at its facility in 2020 S East Ave, Fresno, CA until she was terminated without cause on or about October 29, 2018. Beginning on or about that date, Defendants ordered the terminations of approximately 500 employees without cause. The Plaintiff brings this action on behalf of herself and the other similarly situated former employees who worked for Defendants and who were terminated without cause, as part of, or as the result of, the mass layoffs or plant closings ordered by Defendants on or about October 29, 2018 and within 30 days of that date, and who were not provided 60 days advance written notice of their terminations by Defendants, as required by the Worker Adjustment and Retraining Notification Act, and the California Labor Code (CAL-WARN Act), the lawsuit says. Defendants operate a vertically-integrated business based in Fresno, California that is engaged in the growing, processing, distributing, and wholesaling of turkey products in the United States.[BN] Attorneys for Plaintiff Karen Vance, on behalf of herself and all others similarly situated: Jahan Sagafi, Esq. Gail Lin Chung, Esq. Jack A. Raisner, Esq. Rene S. Roupinian, Esq. OUTTEN & GOLDEN LLP One California Street, 12 th Floor San Francisco, CA 94111 Telephone: (415) 638-8800 Facsimile: (415) 638-8810 E-mail: jsagafi@outtengolden.com gl@outtengolden.com rsr@outtengolden.com jar@outtengolden.com ZOE'S KITCHEN: Faces Calgano and Connole Merger-Related Suits ------------------------------------------------------------- Zoe's Kitchen, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 29, 2018, 2018, that faces two putative class action suits entitled, Jo-Ann Calcagno, Individually and on Behalf of All Others Similarly Situated, v. Zoe's Kitchen, Inc., Greg Dollarhyde, Thomas Baldwin, Sue Collyns, Cordia Harrington, Kevin Miles, and Alec Taylor and Jason Connole, Individually and on Behalf of All Others Similarly Situated, v. Zoe's Kitchen, Inc., Greg Dollarhyde, Kevin Miles, Thomas Baldwin, Sue Collyns, Cordia Harrington and Alec Taylor On August 16, 2018, Zoe's Kitchen, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger (as it may be amended from time to time, the "Merger Agreement") with Cava Group, Inc., a Delaware corporation ("Parent"), and Pita Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), pursuant to which, subject to the terms and conditions of the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger"), with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Parent. A putative class action captioned Jo-Ann Calcagno, Individually and on Behalf of All Others Similarly Situated, v. Zoe's Kitchen, Inc., Greg Dollarhyde, Thomas Baldwin, Sue Collyns, Cordia Harrington, Kevin Miles, and Alec Taylor, Case No. 1:18-cv-01571-MN, was filed in the United States District Court for the District of Delaware on October 11, 2018. The complaint alleges claims under Sections 14(a) and Section 20(a) of the Exchange Act, 15 U.S.C. Sections 78n(a) and 78t(a), and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the defendants in connection with the proposed Merger. The complaint alleges that the Proxy Statement omitted certain material information relating to the Proposed Transaction, including, among other things, (i) certain details relating to the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion, (ii) certain provisions of the confidentiality agreements entered into by the Company and (iii) the fact that Ron Shaich will serve as Chairman of the combined company. The complaint seeks (i) to enjoin the defendants from proceeding with, and consummating, or closing the Proposed Transaction, (ii) in the event the defendants consummate the Proposed Transaction, to rescind it and set it aside or award rescissory damages, (iii) to direct the defendants to file a proxy statement that states all material facts required in it or necessary to make the statements contained therein not misleading, (iv) to declare that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, and (v) the award of unspecified costs, including reasonable attorneys' and experts' fees, to the plaintiff. The second action, a putative class action captioned Jason Connole, Individually and on Behalf of All Others Similarly Situated, v. Zoe's Kitchen, Inc., Greg Dollarhyde, Kevin Miles, Thomas Baldwin, Sue Collyns, Cordia Harrington and Alec Taylor, Case No. 1:99-mc-09999, was filed in the United States District Court for the District of Delaware on October 12, 2018. The complaint alleges claims under Sections 14(a) and Section 20(a) of the Exchange Act, 15 U.S.C. Sections 78n(a) and 78t(a), and SEC Rule 14a-9, 17 C.F.R. Section 240.14a-9, against the defendants in connection with the proposed Merger. The complaint alleges that the Proxy Statement omitted or misrepresents certain material information, including, among other things, certain information relating to (i) potential conflicts of interest faced by Company insiders and Piper Jaffray, (ii) the background process leading to the Proposed Transaction and (iii) certain details concerning the financial analyses and valuation methodologies used by Piper Jaffray in connection with its fairness opinion. The complaint seeks (i) to preliminarily and permanently enjoin the defendants from proceeding with, consummating, or closing the Proposed Transaction, unless and until the defendants disclose the information allegedly omitted from the Proxy Statement, (ii) in the event the defendants consummate the Proposed Transaction, to rescind it and set it aside or award rescissory damages, (iii) to declare that the defendants violated Sections 14(a) and/or 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, and (iv) the award of unspecified costs, including reasonable attorneys' and experts' fees, to the plaintiff. The Company believes that plaintiffs' claims and allegations in the Litigation are entirely without merit and that no additional disclosure is required to supplement, amend or update any of the disclosures contained in the Proxy Statement previously disseminated to holders of record of the Company's common stock, and that the disclosures contained in the previously disseminated Proxy Statement are legally sufficient to enable such holders to make a fully informed voting decision whether to adopt the Merger Agreement at the special meeting. Accordingly, while the Company believes that the disclosures set forth in the Proxy Statement previously disseminated to holders of record of the Company's common stock comply fully with all applicable federal and state disclosure laws, in order to avoid the administrative nuisance, potential defense costs and possible transaction delays inherent in the defense of any litigation, the Company voluntarily includes in the Proxy Statement the additional disclosures to render moot plaintiffs' claims and allegations. A copy of the additional disclosures to proxy statement is available at https://goo.gl/HWD4xL. Zoe's Kitchen, Inc., through its subsidiaries, develops and operates a chain of fast-casual restaurants. It operates a range of restaurant formats, including in-line, end-cap, and free-standing restaurants. Zoe's Kitchen, Inc. was founded in 1995 and is based in Plano, Texas. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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