/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190104.mbx C L A S S A C T I O N R E P O R T E R Friday, January 4, 2019, Vol. 21, No. 4 Headlines 3M COMPANY: Battisti Sues Over Exposure to Contaminated Water AIMBRIDGE HOSPITALITY: Flynn Seeks Prelim. OK of Class Settlement ALABAMA: EJI Releases Prison Homicide Rate Report Amid Lawsuit ALLAN STONE GALLERIES: Tucker Files ADA Suit in New York ALLERGAN PLC: Cook Files Securities Class Action ALLIED INTERNATIONAL: Mitchell Suit Removed to N.D. Georgia ALLTRAN FINANCIAL: Saifi Files Suit under ADA in New York AMSTERDAM WHITNEY: Tucker Files Suit under ADA ANDREW EDLIN: Violates ADA, Says Tucker Suit ANTHEM UM SERVICES: Removes Rainville Suit to N.D. California ANTON KERN INC: Faces ADA Class Suit ANZAI ASIAN: Underpays Teriyaki Chefs, Chen Suit Alleges APHRIA INC: Shareholders File Securities Class Action APHRODITE ANCIENT: Online Auction House Faces ADA Suit ARADER & ASSOCIATES: Mortgage Banker Faces ADA Suit ARMOURY GROUP: Dennis Files Suit under ADA in New York ART VAN: Womble Bond Discusses TCPA Class Action Settlement OK AT&T SERVICES: Gorss Motels' Bid to Certify Under Advisement AUSTRALIA: Won't Call Ludwig as Witness in Cattle Export Ban Case AUSTYN SPENCER: Underpays Delivery Drivers, Abel Suit Alleges AVCOA INC: Moyer Sues over Hidden Charges in Vending Machine BAAHNG GALLERY: Tucker Files Suit under ADA in S.D. New York BARBARA MATHES: Faces Tucker ADA Suit in NY BAUMAN BOOKS: Tucker Suit Asserts ADA Breach BAYWAY HOTEL: Borozny Files Suit under ADA in M.D. Florida BLENDER 135 MADISON: Olsen Files Suit under ADA in New York BLUE HILLS: Faces Paul Parshall Securities Suit in Maryland BOJANGLES' INC: Faces 6 Class Suits over Durational Capital Merger CANADA: Black Coalition of Quebec Sues Montreal Police Dep't CANADA: Day Scholars React to Class Action Settlement CANIDO BASONAS: Underpays Construction Workers, Jose Ayala Says CENTRAL CREDIT: Miranda Files FDCPA Class Action CHAMPION PETFOODS: Removes Vado Suit to N.D. California CITRUS WORLD: Court Dismisses Orange Juice Mislabeling Suit CLEARWATER BEACH HOTEL: Borozny Suit Asserts ADA Breach CONAGRA FOODS: Court Narrows Claims in Parkay Spray Suit CORNERSTONE RESIDENTIAL: Martinez-Coll Seeks Minimum & OT Wages COSTCO WHOLESALE: Faces Securities Class Action in Washington CULLIGAN WATER: Faces Class Action Over TCPA Violation CUYAHOGA COUNTY, OH: Inmates Sue Over Jail Inhumane Conditions DANIEL'S DELI: Castillo Soto Sues Over Unpaid Compensation DANSTE HOSPITALITY: Violates ADA, Borozny Suit Says DISNEY: Faces Class Action Over Home Video Profits ENDO INTERNATIONAL: Court Narrows Claims in SEB Securities Suit EQUUS TOTAL: Zalmanoff Sues Over Misleading Disclosures FEDERATION INTERNATIONALE: Swimmers File Monopoly Class Action FITBIT INC: Court Extends Time to Respond in Lopes FMC TECHNOLOGIES: Balderas Sues Over Unpaid Overtime Wages FORBES ENERGY: Brown Sues Over Unpaid Overtime Compensation GENERAL MOTORS: Moonan et al. Sue over Defective Injection Pumps GENOCEA BIOSCIENCES: Court Dismisses Securities Class Action GNC: Averts Investors' Securities Class Action Over Supplements GUCCI AMERICA: Faces Haggar ADA Suit in C.D. California HABITAT RESTORATION: Underpays Maintenance Keepers, Chavez Says HARDEE'S RESTAURANT: Settles Hep A Exposure Class Action HCR MANOR: Six Subclasses of Residents Certified in MacRae Suit HEARTLAND PAYMENT: Court Affirms Order in Wage Class Action HIGHER LEARNING: Students Launch Class Action Following Closure IBM: 2d Cir. Revives Securities Fraud Claims IBM: 2nd Cir. Reverses Dismissal of Jander ERISA Suit ILLINOIS: 7th Cir. Affirms Class Certification Denial in Riffey ISLE OF CAPRI: IOC Wins Summary Judgment in Larson FLSA Suit JAMES SQUARE: Judge Approves Class Action Settlement JOSEPH UK: Dennis Suit Asserts ADA Violation KAISER PERMANENTE: Must Face Discrimination Class Action KELLOG CO: Class Action Ruling May Spur More Frivolous Lawsuits LATIUM NETWORK: Must Face Class Action Over Initial Coin Offering LIFETOUCH INC: Eighth Cir. Appeal Filed in Vigeant ERISA Suit MARIN, CA: Perez Moves to Certify 3 Classes of Social Workers MARRIOTT HOTEL: Hanna Seeks to Certify Employees Class Under FLSA MARRIOTT INT'L: Gates Sues Over Failure to Secure and Safeguard PII MDL 2804: Judge Refuses to Dismiss Racketeering Claims MIDLAND CREDIT: Geisinsky Files Consumer Credit Class Suit MIDLAND FUNDING: Court Grants Bid to Amend Velazquez FDCPA Suit MISSOURI: 8th Cir. Affirms Class Certification in Postawko NCAA: No Decision Yet on Pay Restrictions Issue OLIPHANT FINANCIAL: Vedernikov Sues over Debt Collection Practices OVERNIGHT CLEANSE: Garcia Sues Over Unpaid Overtime Wages P.S.C. INC: Court OKs Filing of Confidential Doc in Open Court PACIFIC BIOSCIENCES: Rosenblatt Balks at Merger Deal with Illumina PAPA JOHN'S: Ashley Page Sues over No-Poach Policy PEGASUS RESIDENTIAL: Williams Suit Moved to M.D. North Carolina QUANTEL RESEARCH: Nefcy Sues over Unwanted Cellular Phone Calls RED HAT: Orgel Balks at Merger Deal with IBM REGIONS BANK: Files Joint Bid to Approve Notice in Hodapp FLSA Suit SCOTTS MIRACLE-GRO: Settles Class Action Over Tainted Bird Seed SERVICE EMPLOYEES: Workers to Seek Review of 7th Cir. Ruling SHANGHAI ORIGINAL: Second Circuit Appeal Filed in Lin FLSA Suit SHAREWITHNYC INC: Violates ADA, Dennis Suit Asserts SHIVA & NANBAI: Faces Borozny ADA Class Action in Fla. SNZ GROUP: Mateos Seeks Minimum Wages & Overtime SOUTH COUNTY ORTHOPEDIC: Bautista Seeks Unpaid Overtime Wages STATE FARM: 8th Cir. Affirms Class Certification in Stuart SWEPI LP: 6th Cir. Reverses Arbitration Denial in Rogers SYNGENTA AG: Settles GMO Corn Seed Class Action for $1.5-Bil. SYSTEMATIC NATIONAL: Gregory Sues over Debt Collection Practices TAKATA CORP: Podhurst Orseck Coordinates Work in Air Bag Deal UNITED STATES: Court Narrows Claims in CAM Program Suit UNITED STATES: Judge OKs Discrimination Class Action Settlement UOMINI & KUDAI: Borozny Files Suit Asserting ADA Violation VERVE HOLDINGS: Beverage Retailer Sued for ADA Breach WATERSTONE MORTGAGE: 7th Cir. Vacates $10MM FLSA Award WEST LIBERTY: Daniels Moves to Certify Class of Illinois Workers WEWORK COMPANIES: Website not Accessible to Blind, Olsen Says WGACA LLC: Faces Dennis Suit Alleging ADA Violation WORKHOUSE NYC: Olsen Bring ADA Class Action in New York WORKVILLE LLC: Olsen Sues Coworking Space Co. Under ADA WYETH BIRCH: Violates Disabilities Act, Dennis Suit Says YARD INC: Olsen Suit Asserts Disabilities Act Breach ZOCDOC: Drinker Biddle Attorneys Discuss Court Ruling [*] EU Legal Affairs Committee Passes Class Action Proposal [] Class Action Lawyers Find Allies in Arbitration Fight Asbestos Litigation ASBESTOS UPDATE: Consolidation for Discovery in Deem's Case OK'd ASBESTOS UPDATE: Cox Claims vs. Parker Hannifin Dismissed ASBESTOS UPDATE: Cox Claims vs. Standard Motor Dismissed ASBESTOS UPDATE: Determination of Utica's Liability Caused Remand ASBESTOS UPDATE: Ford Motor's Summary Judgment Granted in Doolin ASBESTOS UPDATE: Jenkins Time to Enter Additur Stipulation Enlarged ASBESTOS UPDATE: Louisiana Pacific is Liable to Atchley's ARD ASBESTOS UPDATE: Rivera's Suit Remains With District Court ASBESTOS UPDATE: Uzee's Suit Remanded to La. State Court ********* 3M COMPANY: Battisti Sues Over Exposure to Contaminated Water ------------------------------------------------------------- The case captioned David Battisti, Regina Saueracker, Mary Ann Benson, Susan Schell, Carol Smith, and Gerald Smith, her husband; and Anita Pringle and David Pringle, her husband; for themselves and on behalf of all others similarly situated, Plaintiffs, v. THE 3M COMPANY (f/k/a Minnesota Mining and Manufacturing, Co.); TYCO FIRE PRODUCTS L.P., as successor in-interest to THE ANSUL COMPANY; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.; NATIONAL FOAM, INC.; KIDDE FIRE FIGHTING, INC. (f/k/a CHUBB NATIONAL FOAM, INC. f/k/a NATIONAL FOAM, INC.), individually and as successor in interest to NATIONAL FOAM, INC.; KIDDE PLC, INC. (f/k/a WILLIAMS US INC. f/k/a WILLIAMS HOLDINGS, INC.), individually and as successor in interest to NATIONAL FOAM, INC.; KIDDE-FENWAL, INC. (f/k/a FENWAL INC.), individually and as successor-in-interest to NATIONAL FOAM, INC.; and UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a GE INTERLOGIX, INC.), individually and as successor-in interest to NATIONAL FOAM, INC., Defendants, Case No. 5:18-cv-00642 (M.D. Fla., December 20, 2018) was filed by Plaintiffs for damages sustained to their person and for medical monitoring resulting from exposure to aqueous film-forming foams ("AFFF") containing the toxic chemicals perfluorooctane sulfonate ("PFOS") and/or perfluorooctanoic acid ("PFOA") and/or from exposure to groundwater, surface water, and affected areas contaminated with PFOS and/or PFOA from AFFF products that were manufactured, designed, sold, supplied and/or distributed by each of the above-named Defendants, individually or through their subsidiaries. PFOS and PFOA are fluorosurfactants that repel oil, grease, and water. PFOS and PFOA, and/or their precursors, are or were components of the Defendants' AFFF products, which are firefighting suppressant agents used in training and firefighting activities for fighting Class B fires. Class B fires include fires involving hydrocarbon fuels such as petroleum or other flammable liquids. On or about August 2018, the Florida Department of Environmental Protection Agency began testing the wells at the Fire College and found significantly elevated levels of PFOS and PFOA greater than the national average as a result of contamination of the Fire College's water supply. Over the course of the past several decades, the Plaintiffs and putative Class members routinely used and were exposed to the Defendants' AFFF products and/or were exposed to PFOS- and PFOA-contaminated water at the Fire College where the Defendants' AFFF products were used and stored resulting in significant personal injuries and the need for medical monitoring, the complaint relates. According to the complaint, PFOS and PFOA are highly toxic and carcinogenic chemicals. The Defendants knew or should have known that PFOS and PFOA are persistent when released into the environment and present significant risks to human health and the environment. Nevertheless, the Defendants knowingly and willfully manufactured, designed, marketed, sold, and distributed AFFF products containing PFOS and/or PFOA when they knew or reasonably should have known that these harmful compounds would be released into the air, soil, and groundwater during firefighting training exercises and in firefighting emergencies, and would threaten the health and welfare of firefighters and other individuals exposed to these dangerous and hazardous chemicals. Through this action, the Plaintiffs, for themselves and on behalf of the putative Class, seek to recover compensatory and punitive damages arising out of the permanent and significant damages sustained as a direct result of their exposure to the Defendants' PFOS- and PFOA-containing AFFF products and/or to PFOS- and/or PFOA-contaminated groundwater, surface water, and affected areas from the use and/or storage of the Defendants' AFFF products at the Fire College. Plaintiffs, for themselves and on behalf of the putative Class, also seek an order directing the Defendants to fund and support a medical monitoring program, says the complaint. Plaintiff David Battisti is a resident of Tamarac, Florida, who currently resides at 6940 NW 83rd Terrace, Tamarac, Florida 33321. At all material times, Plaintiff David Battisti worked as a firefighter in or around Ocala, Florida and worked as a firefighter instructor at the Fire College in Ocala, Florida. Plaintiff Regina Saueracker is a resident of Ocala, Florida, who has resided at all material times at 4725 SW 110th Street, Ocala, Florida 34476. At all material times, Plaintiff Regina Saueracker worked as an operations management consultant at the Fire College in Ocala, Florida. Plaintiff Mary Ann Benson is a resident of Ocala, Florida, who has resided at all material times at 3216 SE 54th Circle, Ocala, Florida 33480. At all material times, Plaintiff Mary Ann Benson worked as an administrative assistant at the Fire College in Ocala, Florida. Plaintiff Susan Schell is a resident of Ocala, Florida, who has resided at all material times at 10886 SW 45th Terrace, Ocala, Florida 34476. At all material times, Plaintiff Susan Schell worked at the Fire College in Ocala, Florida. Plaintiff Carol Smith is a resident of Ocala, Florida, who has resided at all material times at 8265 SW 115th Lane, Ocala, Florida 34481. At all material times, Plaintiff Carol Smith worked as a Senior Clerk Registrar at the Florida State Fire College in Ocala, Florida. Plaintiff Gerald Smith is a resident of Ocala, Florida, who has resided at all material times at 8265 SW 115th Lane, Ocala, Florida 34481. At all times material, Gerald Smith was and is the husband of Carol Smith. Plaintiff Anita Pringle is a resident of Ocala, Florida, who has resided at all material times at 3231 NE 42nd Place, Ocala, Florida 34479. At all material times, Plaintiff Anita Pringle worked as an administrative assistant at the Fire College in Ocala, Florida. Plaintiff David Pringle is a resident of Ocala, Florida, who has resided at all material times at 3231 NE 42nd Place, Ocala, Florida 34479. At all material times, David Pringle was and is the husband of Anita Pringle. 3M Company (f/k/a Minnesota Mining and Manufacturing Company) ("3M") is a corporation organized and existing under the laws of the state of Delaware, having its principal place of business at 3M Center, St. Paul, Minnesota 55133. Tyco Fire Products, L.P. ("Tyco") is a limited partnership formed in the State of Delaware with its principal place of business at One Stanton Street, Marinette, Wisconsin 54143. Tyco is an indirect subsidiary ultimately wholly owned by Johnson Controls International plc, an Irish public limited company listed on the New York Stock Exchange. Buckeye Fire Equipment Company ("Buckeye") is a foreign corporation organized and existing under the laws of the state of Ohio, with its principal place of business at 110 Kings Road, Kings Mountain, North Carolina 28086. National Foam, Inc. ("National Foam") is a Delaware corporation, having its principal place of business and corporate headquarters located in Angier, North Carolina. Kidde Fire Fighting, Inc. (f/k/a Chubb National Foam, Inc. f/k/a National Foam Inc.), is a North Carolina corporation having a principal place of business at 160 Mine Lake Court, Suite 200, Raleigh, North Carolina 27615. At all times relevant, Kidde Fire Fighting, Inc. designed, manufactured and sold AFFF used in training operations and for emergency fire-fighting situations including at the Fire College. Kidde plc, Inc. (f/k/a Williams US Inc. f/k/a Williams Holdings, Inc.), is a Connecticut corporation having a principal place of business at One Carrier Place, Farmington, Connecticut 06302. At all times relevant, Kidde plc, Inc. designed, manufactured, and sold AFFF used in training operations and for emergency fire-fighting situations including at the Fire College. John F. Hannon was the CEO and Secretary of Williams Holdings, Inc. At all times relevant, Williams Holdings, Inc. designed, manufactured, and sold AFFF used in training operations and for emergency firefighting situations including at the Fire College. Williams Holdings, Inc., a Delaware corporation, filed as a foreign corporation with the Massachusetts Secretary of State on June 2, 1987. Kidde-Fenwal, Inc. (f/k/a Fenwal, Inc.) is a Massachusetts corporation with its principal place of business at 400 Main Street, Ashland, Massachusetts 01721. At all times relevant, Kidde-Fenwal, Inc. designed, manufactured, and sold AFFF used in training operations and for emergency fire-fighting situations including at the Fire College. UTC Fire & Security Americas Corporation, Inc. (f/k/a GE Interlogix, Inc.), is a North Carolina corporation with its principal place of business at 3211 Progress Drive, Lincolnton, North Carolina 28092. At all times relevant, UTC Fire & Security Americas Corporation, Inc. designed, manufactured and sold AFFF used for training operations and fighting fires including at the Fire College.[BN] The Plaintiffs are represented by: James L. Ferraro, Esq. Janpaul Portal, Esq. James L. Ferraro, Jr., Esq. THE FERRARO LAW FIRM Brickell World Plaza 600 Brickell Avenue, 38th Floor Miami, FL 33131 Phone: (305) 375-0111 Facsimile: (305) 379-6222 Email: jlf@ferrarolaw.com jpp@ferrarolaw.com jjr@ferrarolaw.com AIMBRIDGE HOSPITALITY: Flynn Seeks Prelim. OK of Class Settlement ----------------------------------------------------------------- The Plaintiff in the lawsuit captioned GERTRUDE MAE FLYNN, individually and on behalf of all others similarly situated v. AIMBRIDGE HOSPITALITY, LLC, Case No. 2:17-cv-01649-JFC (W.D. Pa.), moves the Court for an order preliminarily approving the terms of a proposed class action settlement; approving the form and method of providing notice of the settlement to the class; and scheduling a final hearing regarding the settlement. After conducting discovery, mediation, and multiple proposals/counterproposals, as well as consideration of the risks, possible delays and expense likely to result from prolonged litigation, Ms. Flynn and Aimbridge have reached agreement on the terms of a proposed class settlement. The Settlement Agreement represents a comprehensive settlement of the issues raised in the case. The Parties believe that the Settlement Agreement offers a fair and equitable result to those affected by it. The Parties believe that the Settlement Agreement will result in significant long-term benefits for individuals who are members of the proposed settlement class.[CC] The Plaintiff is represented by: R. Bruce Carlson, Esq. Gary F. Lynch, Esq. Kelly K. Iverson, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com glynch@carlsonlynch.com kiverson@carlsonlynch.com ALABAMA: EJI Releases Prison Homicide Rate Report Amid Lawsuit -------------------------------------------------------------- The Tribune reports that in the span of three hours at a southwest Alabama prison, one inmate was fatally stabbed and another was seriously wounded after being stabbed in a separate fight. Eighteen inmates have been killed by other inmates since October of 2016, according to statistics and news releases from the Department of Corrections. The Montgomery-based nonprofit organization Equal Justice Initiative released a report finding that Alabama's prisons are the most lethal in the nation. The report found that Alabama's rate of over 34 homicides per 100,000 people incarcerated is more than 600 percent greater than the national average from 2001 to 2014. Equal Justice Initiative attorney Charlotte Morrison said prison staff and inmates live "under constant threat of violence." "The violence is epidemic," Morrison said. "We have a crisis that is not going to get better until we see a more effective and committed response from state leadership to addressing the issue Bob Horton, a spokesman for the Department of Corrections, said the prison homicide rate is a "priority concern." He said he could not comment on the nonprofit's findings because he did not know how they did their comparison. "There is a direct correlation between the level of prison violence and the shortage of correctional staff in an overpopulated prison system with limited resources for rehabilitating offenders. The proliferation of drugs and criminal activity inside prisons also contribute to an increase in violent incidents," Horton wrote in an email. "The Alabama Department of Corrections recognizes the seriousness of the problem and is taking steps to reverse this trend," Horton wrote. The prison system's monthly reports list that 16 inmates died in homicides in fiscal years 2017 and 2018. So far this fiscal year, the department has reported two fatal stabbings. Twenty-nine-year-old Vaquerro Kinjuan Armstrong was fatally stabbed Dec. 2 at William C. Holman Correctional Facility in Atmore. Armstrong was serving a 22-year sentence on a 2009 first-degree robbery conviction in Talladega County. About three hours later, another inmate was critically wounded when another fight broke out in the same prison. Staffing levels have been raised as an issue in an ongoing lawsuit over prison mental health care. Alabama Corrections Commissioner Jeff Dunn told The Associated Press earlier this year that estimates filed with the court show the state needs to add about 1,800 officers -- nearly doubling current staffing levels. The department has begun an effort to recruit and retain additional staff. As an initial effort to increase officer ranks, the department authorized a five and 10 percent pay increase for officers at minimum and maximum security prisons. State Sen. Cam Ward, co-chair of the legislative prison oversight committee, said EJI's finding sounded accurate. Ward said a side effect of sentencing reform efforts, which sought to relieve prison overcrowding by keeping nonviolent offenders out of prison, is that prison populations are made up mostly of violent offenders. The Equal Justice Initiative filed a class-action lawsuit in 2014 against the state Department of Corrections in connection with previous homicides and assaults at St. Clair correctional facility. The Equal Justice Initiative said it re-initiated its investigation of Elmore Correctional Facility this year after receiving dozens of reports of stabbings, assaults, extortion, and excessive use of force. [GN] ALLAN STONE GALLERIES: Tucker Files ADA Suit in New York -------------------------------------------------------- Allan Stone Galleries, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Allan Stone Galleries, Inc., Defendant, Case No. 1:18-cv-11726 (S.D. N.Y., December 14, 2018). Allan Stone Galleries, Inc. is a New York gallery founded in 1960, with a far-reaching collection of Modern Masters, Contemporary Art, Tribal, and Folk art, Americana, Decorative Arts.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ALLERGAN PLC: Cook Files Securities Class Action ------------------------------------------------ Thomas F. Cook, individually and on behalf of all others similarly situated, Plaintiff, v. Allergan PLC, Brenton L. Saunders, William Meury, C. David Nicholson, Defendants, Case No. 1:18-cv-12089 (S.D. N.Y., December 20, 2018) is a federal securities class action brought on behalf of the Class for violations of the Securities Exchange Act of 1934. The complaint asserts that Allergan misled investors by boasting about various "pharma and device approvals" while concealing from investors the fact that the Company's CE Mark for its textured breast implants and tissue expanders was expiring in Europe. The truth was revealed on December 19, 2018, when the Company announced that it had suspended the sale of these products and that it was withdrawing all remaining supplies from European markets. The withdrawal followed a compulsory recall request from Agence Nationale de Securite du Medicament ("ANSM"), the French regulatory authority. The suspension of sales stemmed directly from the expiration of the company's CE Mark for these products. In connection with the acts alleged in this complaint, Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce, including, but not limited to, the mails, interstate telephone communications and the facilities of the New York Stock Exchange ("NYSE"), a national securities exchange, says the complaint. Plaintiff Thomas F. Cook is an individual residing in Maricopa County, in the State of Arizona. Plaintiff acquired and held shares of the Company at artificially inflated prices during the Class Period and has been damaged by the revelation of the Company's material misrepresentations and material omissions. Allergan PLC is an Irish-tax registered pharmaceutical company with its principal place of business in Dublin, Ireland. The Company's stock trades on the New York Stock Exchange under the ticker symbol "AGN". Brenton L. Saunders has been the Chairman, President, and Chief Executive Officer of Allergan since March 2015. William Meury has been the Chief Commercial Officer, and Executive Vice President, of Allergan since May 2016. C. David Nicholson has been the Chief Research & Development Officer, and Executive Vice President, of Allergan since March 2015.[BN] The Plaintiff is represented by: Greg Blankinship, Esq. FINKELSTEIN BLANKINSHIP FREI-PEARSON & GARBER LLP 445 Hamilton Ave, Suite 605 White Plains, NY 10601 Phone:: 914-298-3281 Fax: 914-824-1561 Email: Gblankinship@fbfglaw.com - and - Jeffrey C. Block, Esq. Jacob A. Walker, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Tel: (617) 398-5600 Fax: (617) 507-6020 Email: jeff@blockesq.com jake@blockesq.com ALLIED INTERNATIONAL: Mitchell Suit Removed to N.D. Georgia ----------------------------------------------------------- The case captioned as Devonte Mitchell, on behalf of himself and all others similarly situated, Plaintiff against Allied International Credit Corp., a Delaware Corporation, Defendant, Case No 18-A-3010, was removed from the State Court of Cobb County to the U.S. District Court for the Northern District of Georgia on December 20, 2018, and assigned Case No. 1:18-cv-05821-LMM. The docket of the case states the cause of action as violation of Telephone Consumer Protection Act. Allied International Credit Corp was founded in 1977. The Company's line of business includes collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: Clifton R. Dorsen, Esq. Skaar and Feagle 2374 Main Street, Suite B Tucker, GA 30084 Tel: (404) 373-1978 Email: cdorsen@skaarandfeagle.com - and - James Marvin Feagle, Esq. Skaar and Feagle 2374 Main Street, Suite B Tucker, GA 30084 Tel: (404) 373-1970 Fax: (404) 601-1855 Email: jfeagle@skaarandfeagle.com - and – Justin Tharpe Holcombe, Esq. Skaar & Feagle, LLP -Woodstock 133 Mirramont Lake Drive Woodstock, GA 30189 Tel: (770) 427-5600 Fax: (404) 601-1855 Email: jholcombe@skaarandfeagle.com - and - Kris Kelly Skaar, Esq. Skaar & Feagle, LLP -Woodstock 133 Mirramont Lake Drive Woodstock, GA 30189 Tel: (770) 427-5600 Fax: (404) 601-1855 Email: krisskaar@aol.com The Defendant is represented by: Kirsten H. Smith, Esq. Sessions, Fishman, Nathan & Isreal, LLP-LA 3850 North Causeway Blvd., Suite 200 Metairie, LA 70002-7227 Tel: (504) 846-7943 Email: ksmith@sessions.legal ALLTRAN FINANCIAL: Saifi Files Suit under ADA in New York --------------------------------------------------------- A class action lawsuit has been filed against Alltran Financial, LP. The case is styled as Hameed Saifi, on behalf of himself and all others similarly situated, Plaintiff v. Alltran Financial, LP, Defendant, Case No. 1:18-cv-07276 (E.D. N.Y., December 20, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Alltran Financial, LP specializes in revenue cycle, accounts receivable, and contact center solutions within healthcare, financial services, higher education, and government industries in the Unites States.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com AMSTERDAM WHITNEY: Tucker Files Suit under ADA ---------------------------------------------- Amsterdam Whitney International Fine Art, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Amsterdam Whitney International Fine Art, Inc., Defendant, Case No. 1:18-cv-11728 (S.D. N.Y., December 14, 2018). Amsterdam Whitney International Fine Art, Inc. is a premier vanguard gallery.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ANDREW EDLIN: Violates ADA, Says Tucker Suit -------------------------------------------- Andrew Edlin, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Andrew Edlin, Inc., Defendant, Case No. 1:18-cv-11730 (S.D. N.Y., December 14, 2018). Andrew Edlin, Inc. is in the art gallery business in New York City, New York.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ANTHEM UM SERVICES: Removes Rainville Suit to N.D. California ------------------------------------------------------------- The Defendants in the case of RICHARD RAINVILLE, individually and on behalf of all others similarly situated, Plaintiff v. ANTHEM UM SERVICES, INC.; BLUE CROSS OF CALIFORNIA; ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY; and DOES 1 THROUGH 100, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of San Francisco (Case No. CGC-18-568664) to the U.S. District Court for the Northern District of California on November 21, 2018. The clerk of court for the Northern District of California assigned Case No. 3:18-cv-07099. The case is assigned to Richard Seeborg. Anthem UM Services, Inc. operates as a subsidiary of UNICARE Specialty Services, Inc. [BN] The Defendants are represented by: Kenneth N. Smersfelt, Esq. Karen A. Braje, Esq. Nicole Medeiros, Esq. REED SMITH LLP 355 South Grand Avenue, Suite 2900 Los Angeles, CA 90071-1514 Telephone: (213) 457 8000 Facsimile: (213) 457 8080 ANTON KERN INC: Faces ADA Class Suit ------------------------------------ Anton Kern, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Anton Kern, Inc., Defendant, Case No. 1:18-cv-11731 (S.D. N.Y., December 14, 2018). On April 22, 2017, Anton Kern Gallery officially opened its doors at 16 East 55th Street. Designed by studioMDA, the six-story townhouse features three floors of exhibition space, with permanent installations by Martino Gamper and Jim Lambie.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ANZAI ASIAN: Underpays Teriyaki Chefs, Chen Suit Alleges -------------------------------------------------------- KEWEI CHEN, individually and on behalf of all others similarly situated, Plaintiff v. ANZAI ASIAN INC. d/b/a ANZAI ASIAN; ANZAI ASIAN EAST MEADOW, INC. d/b/a ANZAI ASIAN; HONGYAN SHEN; and ANDY CHEN, Defendants, Case No. 2:18-cv-06659-JMA-ARL (E.D.N.Y., Nov. 21, 2018) seeks to recover from the Defendants unpaid overtime compensation, prejudgment interest, maximum liquidated damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiff Chen was employed by the Defendants as teriyaki chef. Anzai Asian Inc. d/b/a Anzai Asian is a corporation organized under the laws of the State of New York. The Company is engaged in the restaurant business. The Plaintiff is represented by: Xiaoxi Liu, Esq. HANG & ASSOCIATES, PLLC. 136-20 38th Ave., Suite 10G Flushing, NY 11354 Telephone: (718) 353-8588 E-mail: xliu@hanglaw.com APHRIA INC: Shareholders File Securities Class Action ----------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP on Dec. 11 disclosed that purchasers of Aphria, Inc. (NYSE: APHA) filed a class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between July 17, 2018 and December 4, 2018. Aphria produces and sells medical cannabis. View this information on the law firm's Shareholder Rights Blog: https://www.robbinsarroyo.com/aphria-inc/ Aphria Insiders Accused of Self-Dealing According to the complaint, Aphria failed to disclose that the entities it acquired through its acquisition of LATAM Holdings Inc. lacked adequate licenses, were overvalued, and would enrich the company's CEO and other insiders at the expense of shareholders. The truth came out on December 3, 2018, when Quintessential Capital Management and Hindenburg Research published a report alleging that Aphria's recent acquisition was part of a series of transactions designed to enrich company insiders and that these acquisitions lacked operations. On this news, Aphria's stock price fell $3.39, or over 42%, over the next two trading days, closing at $4.51 on December 4, 2018. Aphria Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] APHRODITE ANCIENT: Online Auction House Faces ADA Suit ------------------------------------------------------- Aphrodite Ancient Art LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Aphrodite Ancient Art LLC, Defendant, Case No. 1:18-cv-11732 (S.D. N.Y., December 14, 2018). Aphrodite Gallery is widely regarded as the leading online auction house, featuring exclusive and authentic ancient art works.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ARADER & ASSOCIATES: Mortgage Banker Faces ADA Suit --------------------------------------------------- Arader & Associates, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Arader & Associates, LLC, Defendant, Case No. 1:18-cv-11733 (S.D. N.Y., December 14, 2018). Arader & Associates LLC is in the Mortgage Bankers business.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal ARMOURY GROUP: Dennis Files Suit under ADA in New York ------------------------------------------------------ The Armoury Group (US) Limited is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. The Armoury Group (US) Limited, Defendant, Case No. 1:18-cv-07153 (E.D. N.Y., December 16, 2018). The Armoury offers classic, well-crafted men's products.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com ART VAN: Womble Bond Discusses TCPA Class Action Settlement OK -------------------------------------------------------------- Eric Troutman, Esq. -- eric.troutman@wbd-us.com -- of Womble Bond Dickinson (US) LLP, in an article for The National Law Review, reports that another day, another 7 figure TCPA settlement. The settlement approval comes from the Eastern District of Michigan where a local furniture store saw its 2016 telemarketing effort turn into a multi-million dollar windfall for call recipients. See Bowman v. Art Van Furniture, Case No. 17-11630, 2018 WL 6445389 (E.D. Mich. Dec. 10, 2018). In Bowman the defendant had allegedly left a bunch of voicemails regarding a VIP party at their stores with prizes. Fun. But the messages were (allegedly) left using a pre-recorded voice and without consent. Not fun. Because the messages were promotional in nature, this was (allegedly) a pretty straightforward violation of the TCPA. Art Van Furniture allegedly sent similar messages to about 1,150,000 folks who made up the settlement class. The settlement figure was $5,875,000.00–or about $5.10 a class member. As one objector pointed out, the potential liability in this case–if the claims were proven–might exceed $575,000,000.00 so the recovery for the class was about 1% of the potential recovery. The Court was not bothered by this argument and whisked it away with a single line: "The Court agrees with Plaintiff that the recovery in this settlement is consistent with other TCPA class action settlements." Bowman at *7. So there. Notably the Bowman settlement is in line with similar settlements. But then again, so was the Snyder settlement that was unceremoniously rejected by the Court a few months back. [GN] AT&T SERVICES: Gorss Motels' Bid to Certify Under Advisement ------------------------------------------------------------ The Hon. Janet Bond Arterton has taken under advisement the Motion to Certify Class filed in the lawsuit styled Gorss Motels, Inc. v. AT&T Services, Case No. 3:17-cv-00403-JBA (D. Conn.). The Motion to Seal is granted and the second Motion to Seal is granted in part and denied in part.[CC] The Plaintiff is represented by: Ryan Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Rd, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 E-mail: rkelly@andersonwanca.com The Defendant is represented by: Kyle Steinmetz, Esq. MAYER BROWN LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8547 E-mail: ksteinmetz@mayerbrown.com AUSTRALIA: Won't Call Ludwig as Witness in Cattle Export Ban Case ----------------------------------------------------------------- Shan Goodwin, writing for Queensland Country Life, reports that the decision by the defence not to call former Labor Agriculture Minister Joe Ludwig as a witness has arguably been the standout development in the landmark class action claim against the Commonwealth Government over the infamous 2011 Indonesian live cattle export ban. Closing submissions in the case have been presented to the Federal Court in Sydney and Justice Steven Rares will now consider the evidence, with a judgment not expected until next year. Over the past week, the Court heard evidence of detriment in the second phase of the case, following a liability hearing in June. Lead litigants the Brett Cattle Company, from the Northern Territory, outlined the importance of the Indonesian live export market on not just the pastoral industry but the many other businesses reliant on it and devastating effects of the ban. The class action, involving 300 plaintiffs, is seeking to prove misfeasance in Mr Ludwig's decision to suspend the live cattle trade to Indonesia for up to six months in mid-2011. If successful, this will be the first time a case of misfeasance has been proven against an Australian Government minister. The plaintiffs are seeking $600 million in compensation. Spokesperson for the plaintiffs, former Northern Territory Cattlemen's Association boss Tracey Hayes said the decision not to have Mr Ludwig as a witness left a vacuum of information. There were questions only he could answer, she said. Evidence presented prior to closing submissions by businesses involved in the live export business in Indonesia, such as Elders, had proven very powerful, Ms Hayes said. "Evidence was able to be provided as to the capacity of existing supply chains to function in a manner that complied with OIE (World Organisation for Animal Health) standards," she said. "The trade could have continued to operate -- there are fattening periods in feedlots which have considerable capacity -- if there needed to be time for the government to satisfy itself these supply chains were indeed functioning and compliant." This part of the case was set down for three weeks but finished ahead of time with the defence's closing submission. [GN] AUSTYN SPENCER: Underpays Delivery Drivers, Abel Suit Alleges ------------------------------------------------------------- SHAWN ABEL, individually and on behalf of all other similarly situated, Plaintiff, v. AUSTYN SPENCER ENTERPRISES, LLC; BLUE SKY PIZZA, LLC; and RHETT HIGHTOWER, Defendants, Case No. 1:18-cv-00166-SPW (D. Mont., Nov. 21, 2018) seeks to recover proper minimum wages and overtime compensation, under the Fair Labor Standards Act. The Plaintiff was employed by the Defendants as delivery driver. Austyn Spencer Enterprises, LLC is an Arizona limited liability company which has operated a chain of Domino's Pizza franchise stores. [BN] The Plaintiff is represented by: William D'Alton, Esq. D'ALTON LAW FIRM, P.C. 1643 24th Street West, Suite 314 Billings, MT 59102 Telephone: (406) 245-6643 Facsimile: (406) 245-6693 E-mail: bill@daltonlawpc.com AVCOA INC: Moyer Sues over Hidden Charges in Vending Machine ------------------------------------------------------------ JOSHUA MOYER, individually and on behalf of all others similarly situated, Plaintiff v. AVCOA, INC., Defendant, Case No. 2018CH14539 (Ill. Cir., Cook Cty., Nov. 21, 2018) alleges that the Defendant is engaged in consumer fraud and deceptive business practices. According to the complaint, when the Plaintiff purchased item from the Defendant's vending machines via credit or debit card, the transactions include additional hidden charges or fees which were not disclosed or displayed on the vending machine or at any time during the transaction. The Plaintiff is completely unaware of the unauthorized charges at the time of the purchase.[BN] The Plaintiff is represented by: Anthony S. DiVincenzo, Esq. Robert J. Stein, III, Esq. DIVINCENZO SCHOENFIELD STEIN 33 N. Dearborn, Suite 1130 Chicago, IL 60602 Telephone: (312) 344-4809 E-mail: adivincenzo@dsschicagolaw.com - and – Vivek Jayaram, Esq. JAYARAM LAW, INC. 125 S. Clark Street, 17th Floor Chicago, IL 60603 Telephone: (646) 325-9855 E-mail: vivek@jayaramlaw.com BAAHNG GALLERY: Tucker Files Suit under ADA in S.D. New York ------------------------------------------------------------ Baahng Gallery, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Baahng Gallery, Inc., Defendant, Case No. 1:18-cv-11734 (S.D. N.Y., December 14, 2018). Baahng Gallery is a contemporary art gallery founded in New York City.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal BARBARA MATHES: Faces Tucker ADA Suit in NY ------------------------------------------- Barbara Mathes Gallery, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Barbara Mathes Gallery, Inc., Defendant, Case No. 1:18-cv-11735 (S.D. N.Y., December 14, 2018). Barbara Mathes Gallery offers a wide selection of artworks by leading artists.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal BAUMAN BOOKS: Tucker Suit Asserts ADA Breach -------------------------------------------- Bauman Books Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Henry Tucker, on behalf of himself and all others similarly situated, Plaintiff v. Bauman Books Inc., Defendant, Case No. 1:18-cv-11737 (S.D. N.Y., December 14, 2018). Bauman Books Inc. offers an extraordinary selection of rare books and autographs in all fields.[BN] The Plaintiff is represented by: Joseph H Mizrahi, Esq. Cohen & Mizrahi LLP 300 Cadman Plaza West, 12th Floor Brooklyn, NY 11201 Tel: (917) 299-6612 Fax: (929) 575-4195 Email: joseph@cml.legal BAYWAY HOTEL: Borozny Files Suit under ADA in M.D. Florida ---------------------------------------------------------- Bayway Hotel Holdings, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Bayway Hotel Holdings, LLC, a Florida limited liability company, Defendant, Case No. 8:18-cv-03068 (M.D. Fla., December 20, 2018). Bayway Hotel Holdings, LLC is a Florida Limited Liability Company from INDIAN SHORES in Florida, United States.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com BLENDER 135 MADISON: Olsen Files Suit under ADA in New York ----------------------------------------------------------- Blender 135 Madison, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Blender 135 Madison, LLC, Defendant, Case No. 1:18-cv-11779 (S.D. N.Y., December 16, 2018). Blender 135 Madison, LLC is a coworking space provider located on Madison Avenue in NoMad New York City.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com BLUE HILLS: Faces Paul Parshall Securities Suit in Maryland ----------------------------------------------------------- Blue Hills Bancorp, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on December 28, 2018, that the company has been named as defendant in a putative class action suit entitled Paul Parshall v. David J. Houston Jr. et. al. On December 26, 2018, Paul Parshall, a purported Blue Hills stockholder, filed, on behalf of himself and all Blue Hills stockholders other than the named defendants and their affiliates (the "Purported Class"), a derivative and putative class action complaint in the Circuit Court for Baltimore City, Maryland, captioned Paul Parshall v. David J. Houston Jr. et al., naming each Blue Hills director (collectively, the "Individual Defendants"), and Blue Hills as defendants. The complaint identifies Blue Hills as a nominal defendant. The complaint alleges that the Individual Defendants have breached their fiduciary duties to the Purported Class by initiating a process to sell Blue Hills that undervalues Blue Hills and Blue Hills Bank, and that Blue Hills has omitted certain material information from Independent's Registration Statement on Form S-4 filed with the Securities and Exchange Commission (the "SEC"), which includes Independent's prospectus with respect to the shares of Independent's common stock to be issued to Blue Hills' stockholders in the proposed merger, the Blue Hills proxy statement for the Blue Hills special stockholders' meeting to be held on January 16, 2019, and Independent's proxy statement for the Independent special stockholders' meeting to be held on January 25, 2019. The relief sought by the complaint includes preliminary and permanent injunction from proceeding with, consummating, or closing the proposed merger, rescission and rescissory damages if the proposed merger is completed, and damages, including attorneys' and experts' fees. Blue Hills Bancorp said, "The defendants believe the allegations in the complaint are without merit and intend to defend against them vigorously. Currently, however, it is not possible to predict the outcome of the litigation or the impact the litigation may have on Blue Hills, Independent or the proposed merger, if any." Blue Hills Bancorp, Inc. operates as the bank holding company for Blue Hills Bank that provides financial services to individuals, families, small to mid-size businesses, government, and non-profit organizations in Massachusetts. Blue Hills Bancorp, Inc. was founded in 1871 and is headquartered in Norwood, Massachusetts. BOJANGLES' INC: Faces 6 Class Suits over Durational Capital Merger ------------------------------------------------------------------ Bojangles', Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on December 31, 2018, that the company has been named as defendant in six putative class action suits related to the merger transaction with Walker Parent, Inc. On November 5, 2018, the Company, Walker Parent, Inc., a Delaware corporation ("Parent"), and Walker Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"), entered into an Agreement and Plan of Merger (as it may be amended from time to time, the "Merger Agreement") pursuant to which, upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger" and, collectively with the other transactions contemplated by the Merger Agreement, the "Transactions"), with the Company continuing as the surviving corporation and as a wholly-owned subsidiary of Parent. Parent and Merger Sub are affiliates of investment funds affiliated with Durational Capital Management LP and The Jordan Company, L.P. On November 30, 2018, Bojangles' filed with the SEC a preliminary proxy statement in connection with the Transactions, and on December 10, 2018, Bojangles' filed with the SEC a definitive proxy statement in connection with the Transactions (the "Definitive Proxy Statement"), which was mailed to Bojangles' stockholders of record. In connection with the Transactions, four putative class action lawsuits were filed in the United States District Court for the District of Delaware, and two putative class action lawsuits were filed in the United States District Court for the Southern District of New York. The four lawsuits filed in the United States District Court for the District of Delaware are captioned Kasper v. Bojangles', Inc., et al., No. 1:18-cv-01961-UNA (filed December 12, 2018), Franchi v. Bojangles', Inc., et al., No. 1:18-cv-01981-UNA (filed December 13, 2018), Shibata v. Bojangles', Inc., et al., No. 1:18-cv-01986-UNA (filed December 14, 2018), and Crowley v. Bojangles', Inc., et al., No. 1:18-cv-01993-UNA (filed December 14, 2018). The two lawsuits filed in the United States District Court for the Southern District of New York are captioned Purdessy v. Bojangles', Inc., et al., No. 1:18-cv-11649 (filed December 13, 2018) and Boyette v. Bojangles', Inc., et al., No. 1:18-cv-11697 (filed December 13, 2018) (each of the six complaints, a "Complaint," and all six lawsuits, collectively, the "Merger Litigation"). Each Complaint alleges that the Definitive Proxy Statement contains false and/or misleading statements and asserts claims for violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as amended, and SEC Rule 14a-9 against Bojangles' and its directors. Each Complaint generally seeks, among other things, injunctive relief preventing the Transactions, damages and an award of plaintiffs' costs and disbursements, including reasonable attorneys' and expert fees and expenses. The Company believes that the claims asserted in the Complaints are without merit and that no supplemental disclosure is required under applicable law. However, in order to avoid the risk of the Merger Litigation delaying or adversely affecting the Transactions, particularly in light of recent market conditions, and to minimize the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, the Company has determined to voluntarily supplement the Definitive Proxy Statement. Nothing in the Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, the Company specifically denies all allegations in the Merger Litigation that any additional disclosure was or is required. The Current Report on Form 8-K will not affect the merger consideration to be paid to stockholders of the Company in connection with the Merger or the timing of the special meeting of the Company's stockholders scheduled for January 10, 2019 at Bojangles' corporate offices, 9600 Southern Pine Boulevard, Suite J, Charlotte, North Carolina 28273 beginning at 9:00 a.m., Eastern Time (the "Special Meeting"). The Company's board of directors continues to recommend that Bojangles' stockholders vote "FOR" the proposal to adopt the Merger Agreement and "FOR" the proposal to approve one or more adjournments of the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement. A copy of the supplemental disclosure is available at https://goo.gl/XFpmwD. Bojangles', Inc. develops, operates, and franchises limited service restaurants in the United States. Its restaurants offer made-from-scratch biscuit breakfast sandwiches, hand-breaded bone-in chicken, fixin’s, and iced tea. Bojangles', Inc. was founded in 1977 and is headquartered in Charlotte, North Carolina. CANADA: Black Coalition of Quebec Sues Montreal Police Dep't ------------------------------------------------------------ Tim Sargeant, writing for Global News, reports that he hasn't been formally sworn in but already the Montreal police department's new Chief, Sylvain Caron, presented a ten point action plan to prevent racial and social profiling in the city over the next three years. Mr. Caron led a team of four senior SPVM officials before Montreal's public security commission. Caron and others took a lot of questions from councillors and members of the public concerning racial profiling. Some wanted to know concrete actions officers have already taken to prevent racial profiling. Others asked to know how the department plans to measure the problem of racial profiling and pointing out it's a breach of the Canadian constitution. The SPVM direction said there are consequences if actions aren't put into place which is why the action plan was written up. "We don't pretend the plan is perfect and this is why there will be follow-ups, in order to make sure that adjustments need to be made," said Andre Durocher, the force's communications director. Some of the action plan's ten points include: -- Favour diversity in human resources value and promote work of officers who show appropriate responses to diversity -- Consolidate confidence with residents -- Better communication between police and people While the SPVM was making a case to end racial profiling, the Black Coalition of Quebec has submitted a $4 million class action lawsuit against the police department. "Too many members of our community are being harrassed by police officers," Gabriel Bazin from the Black Coalition of Quebec told Global News. "They have no respect for them, no respect for their dignity, nothing at all." The coalition's lawyer says there are 500 claimants named in the suit, each seeking approximately $8,000 in damages as victims of racial profiling. [GN] CANADA: Day Scholars React to Class Action Settlement ----------------------------------------------------- Day Scholars reacted to news that Canada has entered into a settlement agreement regarding the Indian Day Schools class-action lawsuit by questioning why Canada has not yet resolved a similar class action lawsuit brought on behalf of Day Scholars who attended Indian Residential Schools. "Day Scholars" are individuals who attended a federally owned and operated Indian Residential School during the day but returned home at night. Day Scholars suffered many of the same harms and abuses as other students at Residential Schools. "We are happy that the pain and suffering our brothers and sisters endured in Day Schools is being recognized and compensated. But I can't help but feel angry and frustrated that once again we are being left behind," said Jo-Anne Gottfriedson, the Tk'emlùps Day Scholar coordinator and Day Scholar Executive Committee Chair. "I am optimistic that we will include the excluded and settle a fair and just settlement for those day scholars who suffered as a result of residential schools." Councilor Selina August, Sechelt First Nation stated, "Too many Day Scholars have already died waiting for justice. When will it be our turn? When will the horrific wrongs done to us by Canada's shameful Residential School policy be recognized and made right?" Lawyers say that Day Scholars are one of the few remaining groups who suffered the evils of Canada's Residential School policy who have yet to receive proper compensation. The Day Scholars' class action was certified by the Federal Court in 2015, and yet Canada continues to delay reaching a fair resolution of the claim. Lawyers for Day Scholars are in active negotiations with Canada with the goal of reaching a positive settlement of the class action. The next negotiation session is scheduled for January 2019. "Enough is enough. We urge the government of Canada to come to the table in the spirit of reconciliation with a fair offer. This should happen now, before one more Day Scholar dies without having received justice," said Doctor Matthew Coon Come, former National Chief of the Assembly of First Nations. [GN] CANIDO BASONAS: Underpays Construction Workers, Jose Ayala Says --------------------------------------------------------------- MIGUEL JOSE AYALA, individually and on behalf of all others similarly situated, Plaintiff v. CANIDO BASONAS CONSTRUCTION CORP.; and MICHAEL BRION, Defendants, Case No. 1:18-cv-06664-KAM-ST (E.D.N.Y., Nov. 21, 2018) seeks to recover from the Defendant unpaid overtime compensation, prejudgment interest, maximum liquidated damages, reasonable attorneys' fees, and costs under the Fair Labor Standards Act. Mr. Jose Ayala was employed by the Defendants as construction worker. Canido Basonas Construction Corporation works on facade envelopes and building exteriors utilizing the latest industry technology. The Company is located in Brooklyn, New York. [BN] The Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, P.C. 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 CENTRAL CREDIT: Miranda Files FDCPA Class Action ------------------------------------------------- A class action lawsuit has been filed against Central Credit & Finance, Inc. The case is styled as Lisa Miranda, on behalf of herself and all others similarly situated, Plaintiff v. Central Credit & Finance, Inc. and John Does 1-25, Defendants, Case No. 1:18-cv-11782-JSR (S.D. N.Y., December 16, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Central Credit & Finance, Inc. is a debt collector.[BN] The Plaintiff is represented by: Ben A. Kaplan, Esq. Chulsky Kaplan LLC 280 Prospect Avenue, Apt. 6G Hackensack, NJ 07601 Tel: (877) 827-3395 Fax: (877) 827-3394 Email: benkap232@aol.com CHAMPION PETFOODS: Removes Vado Suit to N.D. California ------------------------------------------------------- The Defendant in the case of JESIKA VADO, individually and on behalf of all others similarly situated, Plaintiff v. CHAMPION PETFOODS USA, INC.; CHAMPION PETFOODS LP; PET FOOD EXPRESS, LTD.; and DOES 1 through 100, inclusive, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Alameda (Case No. RG18925590) to the U.S. District Court for the Northern District of California on November 21, 2018. The clerk of court for the Northern District of California assigned Case No. 3:18-cv-07118. Champion Petfoods LP produces and markets pet food products for dogs and cats. The company offers meat ingredients, fruits and vegetables, and meat concentrated and protein based products. Its products are sold through pet specialty shops and retailers in the United States and Canada; veterinary clinics in Canada; and distributors in the United States and internationally. The company was founded in 1975 and is based in Edmonton, Canada. [BN] The Defendants are represented by: Jeffrey R. Krinsk, Esq. Joshua C. Anaya, Esq. FINKELSTEIN & KRINSK LLP 550 West C Street, Suite 1760 San Diego, CA 902101-3593 Telephone: (619) 238-1333 Facsimile: (619) 238-5425 - and – Mark L. Knutson, Essq. LAW OFFICES OF MARK L. KNUTSON, APC 1554 Plantation Way El Cajon, CA 92019 Telephone: (619) 334-9979 CITRUS WORLD: Court Dismisses Orange Juice Mislabeling Suit ----------------------------------------------------------- The United States District Court for the Eastern District of New York issued an Opinion and Order granting defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim, pursuant to Rule 12(b)(6) in the case captioned ALEXANDRA AXON, on behalf of herself and all others similarly situated, Plaintiff, v. CITRUS WORLD, INC. and FLORIDA'S NATURAL GROWERS, INC., Defendants. No. 18-cv-4162 (ARR) (RML). (E.D.N.Y.). Florida's Natural sells a variety of orange juice products (products) that contain trace amounts of glyphosate, an herbicide used to kill weeds. Plaintiff alleges that the use of the term natural in defendant's brand name is deceptive because glyphosate is not a natural ingredient. The Defendant claims that the plaintiff lacks Article III standing because she has not suffered any injury as a result of the defendant's alleged wrongdoing. The Plaintiff contends that she has suffered an economic injury because she purchased the products at a price premium based on the defendant's misleading labeling. A plaintiff's allegation that she purchased products bearing misleading labels and sustained financial injury as a result is sufficient to give that plaintiff Article III standing. Thus, plaintiff has Article III standing. The Defendant also argues that the plaintiff lacks statutory standing to bring her NYGBL claims. Defendant alleges that under the NYGBL, simply purchasing a product is insufficient to support a cause of action for deceptive practices. While New York courts have held that allegations of pecuniary loss arising solely from the purchase of the defendant's product do not suffice to plead actual injury for a Section 349 claim. According to defendant, plaintiff has not adequately alleged injury because she has failed to demonstrate that she paid a premium for defendant's products. However, while identifying the prices of competing products in the complaint would strengthen plaintiff's allegation of injury, the failure to do so is not fatal to her claim. Thus, plaintiff's unsupported assertion that she paid a premium for defendant's products is sufficient to give her statutory standing. The Defendant's motion to dismiss plaintiff's claims for failure to state a claim is granted. The Defendant first argues that plaintiff's claims are expressly preempted because FDA regulations require Florida's Natural to label its orange juice 100 percent juice and that the FDA allows 100 percent juice products to be labeled 100 percent natural. This is not accurate. The parties do not dispute that defendant is entitled to label its products 100 percent juice. However, while 21 C.F.R. Section 101.30(1) prohibits products that contain less than 100 percent juice from bearing the label 100 percent natural, it does not grant products permissibly labeled 100 percent juice permission to declare themselves 100 percent natural. Thus, the FDCA does not expressly permit Florida's Natural to use the term natural on its products. A full-text copy of the District Court's December 10, 2018 Opinion and Order is available at https://tinyurl.com/ydf7zhwr from Leagle.com. Alexandra Axon, on behalf of herself and all others similarly situated, Plaintiff, represented by Bradley Forrest Silverman -- bsilverman@fbfglaw.com -- Finkelstein, Blankenship, Frei-Pearson & Garber, LLP, Todd Seth Garber -- tgarber@fbfglaw.com -- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP & Kim Richman -- krichman@richmanlawgroup.com -- The Richman Law Group. Florida's Natural Growers, Inc. & Citrus World, Inc., Defendants, represented by Daniel H. Coultoff -- coultoff@lseblaw.com -- Latham, Shuker, Eden & Beaudine, LLP, pro hac vice, Christina Y. Taylor -- ctaylor@lseblaw.com -- Latham, Shuker, Eden & Beaudine, LLP, pro hac vice & Tom M. Fini -- tom@catafagofini.com -- Catafago Fini LLP. CLEARWATER BEACH HOTEL: Borozny Suit Asserts ADA Breach ------------------------------------------------------- Clearwater Beach Hotel, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Clearwater Beach Hotel, LLC, a Florida limited liability company, Defendant, Case No. 8:18-cv-03065-VMC-AEP (M.D. Fla., December 20, 2018). Clearwater Beach Hotel, LLC is engaged in the hotel industry in Florida.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com CONAGRA FOODS: Court Narrows Claims in Parkay Spray Suit -------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned ERIN ALLEN, et al., Plaintiffs, v. CONAGRA FOODS, INC., Defendant. Case No. 3:13-cv-01279-WHO. (N.D. Cal.). Plaintiff Erin Allen filed a complaint proposing a nationwide putative class of people who purchased Parkay Spray believing it to be a fat- and calorie-free alternative to butter. The class argues that defendant ConAgra Brands, Inc. (ConAgra) deceptively labels and markets Parkay Spray by using artificially small serving sizes. Instead of being zero calorie and zero fat, each bottle contains 832 calories and 93 grams of fat. The Plaintiffs' asterisk claim and all common law claims asserted under the laws of states other than California are dismissed with prejudice. The remainder of ConAgra's motion to dismiss is denied. ConAgra moved to dismiss the plaintiffs' claims on the grounds that they are expressly and impliedly preempted by the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act of 1990 (NLEA). ConAgra argues that the plaintiffs' claims are preempted because it labels Parkay Spray in compliance with the requirements of the FDCA, the NLEA, and the FDA regulations. Accordingly, plaintiffs' claims necessarily impose additional or different requirements and must be dismissed as preempted. In his 2013 Order, Judge Tigar concluded that Allen's claims were not preempted because they did not seek to impose requirements that differ from those imposed by the FDCA, NLEA, and FDA regulations. The complaint adequately alleged that Parkay Spray was subject to the labeling requirements of the butter, margarine, oil, and shortening category because it was a liquid butter substitute. The court disagreed with ConAgra that Parkay Spray belonged in the spray type and fat and oils category. The Court agrees with Judge Tigar's conclusion that the plaintiffs have adequately alleged that Parkay Spray is imitation butter and belongs in the same reference amount category as butter. They assert that ConAgra markets its Parkay products as a guilt-free alternative to butter and an excellent dietary choice. A campaign going back to 1973 read, The label says Parkay, the flavor says butter. The Parkay Spray label includes an image of an ear of corn. ConAgra counters that one of its dual, on-label uses is as a cooking spray and that it can also be used as a topping does not change that fact. ConAgra can rely on these arguments as this case proceeds, but they have not successfully shown that plaintiffs' claims are preempted. The plaintiffs' claims arise California's Sherman Food, Drug and Cosmetic Law, which incorporates the FDCA and NLEA by reference. ConAgra argues that although they ostensibly sue under state law, the plaintiffs' claims in fact impermissibly arise under the FDCA, which does not have a private right of action. Judge Tigar rejected this same argument by ConAgra in 2013 and found that while plaintiffs successfully alleged that that the Parkay Spray labeling violates the FDA regulations in order to avoid preemption, they had no need to rely on those allegations to bring the state law causes of action. His conclusion holds true here with the exception of the plaintiffs' asterisk claim. That claim is based on the absence of an asterisk disclosing the presence of fat on the Parkay Spray bottle, as required by 21 C.F.R. Section 101.62. ConAgra argues that this claim arises under the FDCA because state law does not obligate it to include an asterisked warning. The Court finds that the Plaintiffs failed to defend this claim in their briefing or when asked at oral argument; it is therefore dismissed with prejudice. ConAgra's motion with regard to the remaining claims is denied. ConAgra moves to dismiss counts one through four for failure to allege which state's law applies. Plaintiffs state that they do not intend to seek certification of a nationwide class or multistate subclass for counts two through four; Allen alone brings those claims under California common law. California common law claims brought by plaintiffs other than Allen, they are dismissed with prejudice. With respect to count one for unjust enrichment, the second amended complaint asserts that there are few real differences between the elements of the claims in different states. As the Court concludes below, in this case this question must wait until the class certification stage to be resolved. ConAgra argues that the eight named plaintiffs in this case, who purchased Parkay Spray in ten different states, lack standing to pursue claims on behalf of purchasers from the remaining 40 states. Plaintiffs argue that this question is more appropriate for resolution at the class certification stage. The Court decided to address the question at the pleading stage and required that plaintiffs present named class representatives who possess individual standing to assert each state law's claims against the defendant. The Court is unable to adopt the same approach here because the parties did not devote sufficient briefing to this issue to allow me to resolve it at this stage. A full-text copy of the District Court's December 10, 2018 Order is available at https://tinyurl.com/y9gekje5 from Leagle.com. Erin Allen, on behalf of herself and all others similarly situated, Plaintiff, represented by Adam Gutride -- adam@gutridesafier.com -- Gutride Safier LLP, Anthony J. Patek -- anthony@gutridesafier.com -- Gutride Safier LLP, Kristen Gelinas Simplicio -- kristen@gutridesafier.com -- Gutride Safier LLP, Seth A. Safier -- seth@gutridesafier.com -- Gutride Safier LLP & Ureka Ellie Idstrom -- uidstrom@eurekalawfirm.com -- The Eureka Law Firm. Tyoka Brumfield, Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith & Betty Vazquez, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Anthony J. Patek , Gutride Safier LLP & Kristen Gelinas Simplicio , Gutride Safier LLP. ConAgra Foods, Inc., a Delaware corporation, Defendant, represented by Rachel Elizabeth King Lowe , Alston & Bird, Andrew G. Phillips -- aphillips@mcguirewoods.com -- McGuireWoods LLP, pro hac vice, Angela M. Spivey -- angela.spivey@alston.com -- Alston & Bird LLP, Jamie Smith George -- jamie.george@alston.com -- Alston and Bird LLP, pro hac vice & Patrick E. Brookhouser, Jr. -- pbrookhouser@mcgrathnorth.com -- McGrath North Mullin & Kratz, PC LLO. CORNERSTONE RESIDENTIAL: Martinez-Coll Seeks Minimum & OT Wages --------------------------------------------------------------- QUIRINO MARTINEZ-COLL and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff, vs. CORNERSTONE RESIDENTIAL MANAGEMENT, L.L.C., the Defendant, Case No.: 1:18-cv-25312-JEM (S.D. Fla., Dec. 18, 2018), seeks overtime and minimum wages under the Fair Labor Standards Act. According to the complaint, the Defendant employed several other similarly situated employees, like Plaintiff, who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years. Cornerstone Residential Management, L.L.C. is headquartered in the United States. The company's line of business includes the operation of apartment buildings.[BN] Attorneys for Plaintiff: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71 st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: ZABOGADO@AOL.COM COSTCO WHOLESALE: Faces Securities Class Action in Washington ------------------------------------------------------------- Pomerantz LLP on Dec. 11 disclosed that a class action lawsuit has been filed against, Costco Wholesale Corporation ("Costco" or the "Company") (NASDAQ: COST) and certain of its officers. The class action, filed in United States District Court, Western District of Washington, Seattle Davison, and indexed under 18-cv-01779, is on behalf of a class consisting of all persons and entities, other than Defendants and their affiliates, who purchased or otherwise, acquired Costco securities between June 6, 2018 through October 25, 2018, both dates inclusive (the "Class Period"), seeking to recover damages caused by Defendants' violations of the federal securities laws and to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder, against the Company and certain of its top officials. If you are a shareholder who purchased Costco securities between June 6, 2018, and October 25, 2018, both dates inclusive, you have until January 7, 2019, to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and the number of shares purchased. Costco engages in the operation of membership warehouses in the United States (U.S.) and Puerto Rico, Canada, United Kingdom (U.K.), Mexico, Japan, Australia, Spain, France, Iceland and through majority-owned subsidiaries in Taiwan and Korea. As of September 3, 2017, Costco operated 741 warehouses worldwide. Through the membership warehouses, Costco aims at offering low prices on a limited selection of national products in certain categories to produce high sales volumes and rapid inventory turnover. Given the size of the Company, including its worldwide operations, it is forced to "rely extensively on information technology to process transactions, compile results, and manage [its] businesses." Throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) Costco lacked effective internal control over financial reporting; and (ii) as a result, the Company's public statements were materially false and misleading at all relevant times. On October 4, 2018, Costco issued a press release announcing its financial and operating results for the fiscal fourth quarter and year ended September 2, 2018. In the press release, Costco stated, in part, that "it expects to report a material weakness in internal control", specifically "relat[ing] to general information technology controls in the areas of user access and program change-management over certain information technology systems that support the Company's financial reporting processes." On this news, Costco's stock price fell $12.86 per share, or roughly 5.55%, to close at $218.82 per share on October 5, 2018. Then, on October 26, 2018, Costco filed its annual report for the fiscal fourth quarter and year ended September 2, 2018, which reported that the Company had identified a material weakness as previously described in its October 4, 2018 press release. On this news, Costco's stock price fell $8.21 per share, or roughly 3.63%, to close at $218.90 per share on October 26, 2018. With offices in New York, Chicago, Los Angeles, and Paris, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] CULLIGAN WATER: Faces Class Action Over TCPA Violation ------------------------------------------------------ Jenie Mallari-Torres, writing for Cook County Record, reports that a Wisconsin man has brought a class action against Culligan Water Technologies, accusing the company of calling him without his consent. Aaron Kapp filed a complaint individually and as the representative of a class of similarly situated persons on Nov. 26 in Cook County Circuit Court alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges the defendant calls residential landline phones for advertising purposes using a prerecorded message. He alleges he contacted the defendant to explain he no longer had a Culligan water system and asked to be removed from the call list, but the calls continued. The plaintiff alleges the defendant failed to obtain prior express written consent from consumers, invaded consumers' rights to privacy and seclusion, and failed to provide consumers with any function to opt out of the calls. The plaintiff requests a trial by jury and seeks judgment against defendant; asks the court approve the case as a class action; to award statutory and actual damages of at least $500-$1,500 per call; attorney fees; costs of suit; and other relief. He is represented by Phillip A. Bock -- phil@classlawyers.com -- Tod A. Lewis -- tod@classlawyers.com -- David M. Oppenheim -- david@classlawyers.com -- and Mara A. Baltabols -- mara@classlawyers.com -- of Bock, Hatch, Lewis & Oppenheim LLC in Chicago and Ilan Chorowsky and Mark Bulgarelli of Progressive Law Group LLC in Evanston, Illinois. Cook County Circuit Court case number 18-CH-14636 [GN] CUYAHOGA COUNTY, OH: Inmates Sue Over Jail Inhumane Conditions -------------------------------------------------------------- Matt Reynolds, writing for Courthouse News Service, reported that a class of inmates sued Ohio jail officials on Dec. 20 claiming chronic overcrowding and understaffing, lack of access to safe drinking water and food, and other inhumane conditions have led to a spike in deaths and assaults. Seven inmates filed a class action against Cuyahoga County and county officials in Cleveland federal court. They say detainees are also routinely denied access to proper medical care and religious services in violation of their civil rights. The county's jails have a stated 1,765-person capacity but they currently hold more 2,400, the inmates say. The lawsuit states that between June and October, at least seven inmates died, three of whom committed suicide. Fifty-five people attempted suicide in the past year, according to the complaint. "Defendants have long been on notice of the horrific conditions and constitutional deprivations occurring daily at CCCC, yet have failed to timely or effectively remedy the deplorable state of affairs," the 61-page lawsuit states, abbreviating the Cuyahoga County Corrections Center. The plaintiffs' attorney Sarah Gelsomino said on Dec. 20 that she had heard from some inmates that conditions were so bad that they were accepting plea deals to get out of the jail and into state penitentiary. "It's creating a sense of dread among inmates that's truly dangrous," Ms. Gelsomino said in a phone interview. The lawsuit targets four facilities. Two of the jails are on the same site at Cuyahoga County Corrections Center. Two others are in Euclid and Bedford. The goal of the lawsuit is to completely reform the jails, increase staffing and reduce in-custody deaths, the attorney said. "Seven deaths in one year in a facility is far beyond any average or acceptable number," Ms. Gelsomino said. County officials did not immediately respond on Dec. 20 to a request for comment. The in-custody deaths occurred during the tenure of Regional Corrections Director Kenneth Mills, who according to the inmates had "absolutely no experience in the field of corrections administration." He was hired four years ago by Cuyahoga County Executive Armond Budish, the lawsuit states. Lead plaintiff Tonya Clay says she had to sleep on a mat in her cell due to overcrowding and that showers in the jail are covered in mold. She also claims she has received inadequate medical treatment for her conditions, which include liver damage and glaucoma. She has also been denied access to Alcoholics Anonymous meetings, according to the lawsuit. A U.S. Marshals Service report issued in November and cited in the complaint condemned conditions in the jail. A dozen inmates were reportedly packed into one cell, two pregnant inmates were forced to sleep on the floor, and mice and other vermin were seen during food service. Inmates have also been confined for up to 27 hours at a time without showers, recreational time or toiletries, the complaint adds. The proposed class seeks the appointment of an independent monitor and an injunction that brings an end to the alleged constitutional violations in the county jails. The case is Clay, et al. v. Cuyahoga County, Ohio, et al., Case No. 18-cv-02929 (N.D. Ohio). A copy of the Complaint is available at https://is.gd/J0hawj DANIEL'S DELI: Castillo Soto Sues Over Unpaid Compensation ---------------------------------------------------------- Eudis Nokaidel Castillo Soto, individually and on behalf of others similarly situated, Plaintiff, v. Daniel's Deli & Grocery Corp. (d/b/a BBC Deli & Grocery (f/d/b/a Daniel's Deli & Grocery)), BBC Deli Grocery Corp. (d/b/a BBC Deli & Grocery (f/d/b/a Daniel's Deli & Grocery)), Benjamin Jasquez and Rafael Clase, Defendants, Case No. 1:18-cv-12031 (S.D. N.Y., December 20, 2018) seeks unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938, and for violations of the N.Y. Labor Law and the "spread of hours" and overtime wage orders of the New York Commissioner of Labor including applicable liquidated damages, interest, attorneys' fees and costs. Plaintiff Castillo worked for Defendants in excess of 40 hours per week, without appropriate minimum wage, overtime, and spread of hours compensation for the hours that he worked, says the complaint. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiff Castillo appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. Further, Defendants failed to pay Plaintiff Castillo the required "spread of hours" pay for any day in which he had to work over 10 hours a day. Defendants' conduct extended beyond Plaintiff Castillo to all other similarly situated employees, the complaint asserts. Plaintiff Eudis Nokaidel Castillo Soto is an adult individual residing in Bronx County, New York. Plaintiff Castillo was employed by Defendants at Daniel's Deli and Grocery (currently doing business as BBC Deli & Grocery) from approximately September 26, 2015 until on or about October 2018. Daniel's Deli & Grocery Corp. (d/b/a BBC Deli & Grocery (f/d/b/a Daniel's Deli & Grocery)) is a domestic corporation organized and existing under the laws of the State of New York. Upon information and belief, it maintains its principal place of business at 51 E Tremont Ave, Bronx, NY 10453. BBC Deli Grocery Corp. (d/b/a BBC Deli & Grocery (f/d/b/a Daniel's Deli & Grocery)) is a domestic corporation organized and existing under the laws of the State of New York. Upon information and belief, it maintains its principal place of business at 51 E Tremont Avenue, Bronx, New York 10453. Benjamin Jasquez is an individual engaging (or who was engaged) in business in this judicial district during the relevant time period. Defendant Benjamin Jasquez is sued individually in his capacity as officer and/or agent of Defendant Corporations. Rafael Clase is an individual engaging (or who was engaged) in business in this judicial district during the relevant time period. Defendant Rafael Clase is sued individually in his capacity as owner and/or agent of Defendant Corporations.[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Phone: (212) 317-1200 Facsimile: (212) 317-1620 DANSTE HOSPITALITY: Violates ADA, Borozny Suit Says --------------------------------------------------- Danste Hospitality Group, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Danste Hospitality Group, LLC, Defendant, Case No. 8:18-cv-03067 (M.D. Fla., December 20, 2018). Danste Hospitality Group, LLC (trade name Quality Beach Resort) is in the Hotels business.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com DISNEY: Faces Class Action Over Home Video Profits -------------------------------------------------- Gene Maddaus, writing for Variety, reports that Disney is facing a class-action lawsuit from the screenwriter of the 1982 hospital parody "Young Doctors in Love," who alleges that the studio has withheld millions in home video revenue. Michael Elias filed the suit on Dec. 6 in Los Angeles Superior Court. His attorney, Neville Johnson, filed similar class-action lawsuits against six other studios in 2013 and 2014, resulting in multi-million dollar settlements. The controversy dates to the early days of the VCR, when the major studios would contract out to independent distributors for VHS production. The distributors would return 20% of their receipts to the studios. Later, the studios brought their home video distribution in-house, but did not adjust the profit calculation, the suit alleges. "In other words, 80% of the revenue generated from such distribution is never subject to potential remittance to profit participants and is, instead, wrongfully kept by Disney outright," the suit alleges. According to the suit, Mr. Elias' contract entitled him to 5% of net profits on the film, which starred Michael McKean and Sean Young. Mr. Elias, now 78, also co-wrote the screenplay for "The Jerk" and co-created the 1980s TV show "Head of the Class." The suit seeks to represent profit participants on Disney films who are owed home video revenue, generally those with contracts signed before 1981. After that, studio contracts explicitly spelled out that profit participants are entitled only to 20% of home video revenue. [GN] ENDO INTERNATIONAL: Court Narrows Claims in SEB Securities Suit --------------------------------------------------------------- The United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion granting in part and denying in part Defendants' Motion to Dismiss the case captioned SEB INVESTMENT MANAGEMENT AB, Individually and On Behalf of All Others Similarly Situated, v. ENDO INTERNATIONAL, PLC, SUSAN HALL, ENDO HEALTH SOLUTIONS INC., PAUL V. CAMPANELLI BLAINE T. DAVIS, MATTHEW W. DAVIS, RAJIV KANISHKA LIYANAARCHCHIE DE: SILVA, IVAN GERGEL, DAVID P. HOLVECK, ALAN G. LEVIN, JULIE H. McHUGH, SUKETU P. UPADHYAY, DANIEL A. RUDIO, ROGER H. KIMMEL, SHANE M. COOKE, JOHN J. DELUCCA, NANCY J. HUTSON, MICHAEL HYATT, WILLIAM P. MONTAGUE, JILL D. SMITH and WILLIAM F. SPENGLERCivil Action No. 17-3711. (E.D. Pa.) In this putative class action for violations of the Securities Exchange Act of 1934 (Exchange Act) and the Securities Act of 1933 (Securities Act), SEB Investment Management AB (SEB) claims that the defendants publicly downplayed the risks of Endo's reformulated opioid pain medication, Opana ER. In essence, SEB alleges that the defendants misrepresented and omitted facts regarding the safety of the reformulated drug and the results of surveillance data that significantly impacted the chances of obtaining FDA approval for abuse-deterrent labeling, which would make the drug more marketable. In moving to dismiss, Endo International plc and Endo Health Solutions Inc. (Endo) and the individual defendants1 argue SEB engages in hindsight pleading and alleges no facts suggesting any statements were false when made, the challenged statements were merely opinions and optimistic or forward-looking statements protected by the safe harbor provision of the Exchange Act, and the alleged facts do not establish that the defendants knew their statements were untrue. Invoking Colorado River abstention, they also maintain that the Securities Act claims should be dismissed because they are being litigated in state court. The Court concludes that SEB has stated causes of action for violations of the Exchange and Securities Acts. SEB has alleged that Endo and certain of its officers consciously or recklessly made material representations and omissions regarding the safety and efficacy of reformulated Opana ER, resulting in a significant drop in Endo's share price. Therefore, the Court will deny the motion to dismiss, except as to certain individuals who made no misrepresentations. SEB alleges that the Defendants made materially false statements and omitted material facts. It avers that they misrepresented reformulated Opana ER's abuse deterrent properties and its similarity to reformulated OxyContin. It alleges they failed to disclose that reformulated Opana ER could still be manipulated for easy injection and was being abused intravenously at a greater rate than the original drug. The Defendants contend that SEB has not alleged any material omissions or misrepresentations. Endo argues that statements regarding the surveillance data, the Citizen Petition, the similarities to OxyContin, and abuse-deterrent labeling were nothing more than optimistic opinions that later proved to be wrong. The statements, according to the defendants, are inactionable personal opinions, puffery or forward-looking statements. SEB's allegations, if proven, will establish that when they made the statements, the defendants were aware of the negative information. Despite knowing that the data revealed a shift from intranasal to intravenous abuse and a resulting increase in intravenous abuse, they did not publicly disclose those facts when they touted the decrease in intranasal abuse. According to the amended complaint, the defendants possessed the adverse intravenous abuse data regarding reformulated Opana ER when it relied on the NAVIPPRO and RADARS post-marketing surveillance data in its Citizen Petition supplement filed in November 2012. They had received NAVIPPRO data on February 22, May 18, August 31, and November 2, 2012; and RADARS data on October 12, 2012. In its second supplement to the Citizen Petition filed on March 21, 2013, Endo relied on NAVIPPRO and RADARS data it had received six weeks earlier. Thus, we conclude that SEB has sufficiently alleged that the Exchange Act Defendants' statements regarding abuse deterrent features of reformulated Opana ER were false when made in the November 2012 Citizen Petition and March 2013 supplement. SEB also alleges that Endo falsely claimed that reformulated Opana ER was virtually identical to reformulated Oxycontin. In a third supplement to its Citizen Petition, Endo argued that the FDA should grant the Petition because of the two drugs' shared abuse-deterrent and physiochemical properties. Id. In fact, according to SEB, the drugs were markedly different. The post-marketing data for reformulated Opana ER was only preliminary and limited, unlike that for reformulated Oxycontin. Reformulated Opana ER was also easily prepared for injection. Reformulated Oxycontin was not. When it was placed in a syringe, it became a viscous hydrogel that made injection difficult. SEB's allegations, if proven, will show that the Exchange Act Defendants knowingly misstated the similarities between reformulated Oxycontin and Opana ER. SEB has not alleged facts stating claims against Holveck, Matthew Davis, Hall and Campanelli. SEB has stated a claim under Section 20 of the Exchange Act against De Silva only. Thus, the Court will grant the motion as to Holveck, Matthew Davis, Hall and Campanelli and deny it as to the other defendants. A full-text copy of the District Court's December 10, 2018 Memorandum Opinion is available at https://tinyurl.com/ybrhna8y from Leagle.com. SEB INVESTMENT MANAGEMENT AB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILIARY SITUATED, Lead Plaintiff, represented by DARREN J. CHECK -- dcheck@ktmc.com -- KESSLER TOPAZ MELTZER CHECK LLP, JOHNSTON DEFOREST WHITMAN, Jr. -- jwhitman@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, MARGARET E. MAZZEO -- mmazzeo@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, MICHELLE MARIE NEWCOMER -- mnewcomer@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, NAUMON A. AMJED -- namjed@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, RYAN THOMAS DEGNAN -- rdegnan@ktmc.com -- KESSLER TOPAZ MELTZER CHECK LLP & SHARAN NIRMUL -- snirmul@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP. ENDO INTERNATIONAL, PLC & SUSAN HALL, Defendants, represented by JAMES E. BRANDT -- james.brandt@lw.com -- LATHAM & WATKINS, JEFF G. HAMMEL -- jeff.hammel@lw.com -- LATHAM & WATKINS LLP, MILES N. RUTHBERG -- miles.ruthberg@lw.com -- LATHAM & WATKINS LLP, THOMAS J. GIBLIN, Jr. -- thomas.giblin@lw.com -- LATHAN & WATKINS, J. GORDON COONEY, Jr. -- gordon.cooney@morganlewis.com -- MORGAN, LEWIS,& BOCKIUS LLP & LAURA HUGHES MCNALLY -- laura.mcnally@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP. ENDO HEALTH SOLUTIONS INC., PAUL V. CAMPANELLI, BLAINE T DAVIS, MATTHEW W DAVIS, RAJIV KANISHKA LIYANAARCHCHIE DE SILVA, IVAN GERGEL, DAVID P HOLVECK, ALAN G LEVIN, JULIE H MCHUGH, SUKETU P. UPADHYAY, DANIEL A RUDIO, ROGER H. KIMMEL, SHANE M. COOKE, JOHN J. DELUCCA, ARTHUR J. HIGGINS, NANCY J HUTSON, MICHAEL HYATT, WILLIAM P. MONTAGUE, JILL D. SMITH & WILLIAM F. SPENGLER, Defendants, represented byJEFF G. HAMMEL , LATHAM & WATKINS LLP. STRATHCLYDE PENSION FUND, Movant, represented by ROBERT A. HOFFMAN , BARRACK, RODOS & BACINE. MAQSOOD SHEIKH, YUHAI DING & RA CONSULTING APS, Movants, represented by RYAN M. ERNST , O'KELLY ERNST & JOYCE, LLC. EQUUS TOTAL: Zalmanoff Sues Over Misleading Disclosures ------------------------------------------------------- Samuel Zalmanoff, Plaintiff, v. John A. Hardy, Kenneth I. Denos, Fraser Atkinson, Richard F. Bergner, Henry W. Hankinson, Robert J. Knauss, Bertrand des Pallieres and Equus Total Return Inc., Defendants, Case No. 12912-VCS (Del. Ct. of Chancery, December 13, 2018) is a single-count complaint against the members of the board of directors of Equus Total Return, Inc. in which Plaintiff alleges that Defendants breached their fiduciary duty of disclosure when seeking stockholder approval of an equity incentive plan. Plaintiff, an Equus stockholder, alleges that Defendants breached their fiduciary duty of disclosure by omitting material facts and making false and misleading disclosures in the 2016 Schedule that Equus filed with the Security Exchange Commission ("SEC") to solicit stockholder approval of the EIP. The Board proposed the EIP to stockholders as Equus was in the midst of significant transition. Specifically, in May 2014, Equus disclosed that it was considering a merger or consolidation with MVC Capital, Inc. through a two-step Plan of Reorganization. In the first step, effected in May 2014, Equus engaged in a share exchange with MVC for 20% of its shares. The exchange ratio was based on respective net asset values ("NAV"). The second step contemplated that MVC and Equus would merge, although this has yet to occur and, according to Defendants, likely will not occur, says the complaint. Plaintiff, Samuel Zalmanoff, owned Equus common stock at all times relevant to the Complaint. He brings this action on behalf of himself and a class of similarly situated Equus stockholders. The Defendants, John A. Hardy, Kenneth I. Denos, Fraser Atkinson, Richard F. Bergner, Henry W. Hankinson, Robert J. Knauss and Bertrand des Pallieres comprise the Equus Board of Directors at the time of the events giving rise to the Complaint. Hardy is Equus's CEO and Denos is its Chief Compliance Officer. Equus is a Delaware corporation with its principle place of business in Houston, Texas. At the time this action was filed, Equus was classified as a business development company.[BN] FEDERATION INTERNATIONALE: Swimmers File Monopoly Class Action -------------------------------------------------------------- Perry Cooper, writing for Bloomberg Law, reports that the Federation Internationale de Natation has a monopoly on top-tier swimming events, swimmers say in a class action filed Dec. 7. FINA's actions amount to the "unlawful restraint of the ability of the athletes, on whose bodies FINA's income and power depend, to earn what they would command in a market free of FINA's iron grip," the suit alleges. Swimmers Thomas A. Shields, Michael C. Andrew, and Katinka Hosszú filed the case. [GN] FITBIT INC: Court Extends Time to Respond in Lopes -------------------------------------------------- The United States District Court for the Northern District of California, San Francsico Division, issued an Order extending Time for the Defendants to Respond to the Complaint in the case captioned STEPHEN LOPES, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. FITBIT, INC., JAMES PARK, and WILLIAM ZERELLA, Defendants. Case No. 3:18-cv-06665-JST. (N.D. Cal.). This action is a proposed class action alleging violations of the federal securities laws against Fitbit, Inc. (Fitbit), James Park, and William Zerella. The Reform Act provides for the appointment of a lead plaintiff to act on behalf of the purported class, and further provides that the appointment of lead plaintiff shall not be made until after a decision on a motion to consolidate. Because the special procedures specified in the Reform Act contemplate (i) the consolidation of similar actions, if any (ii) appointment of Lead Plaintiff and (iii) the filing of a single consolidated complaint by Lead Plaintiff, requiring defendants to respond to the existing complaint in the above-referenced action would result in the needless expenditure of private and judicial resources. Pursuant to Civil L.R. 6-1(a), the defendants' obligation to answer, move or otherwise respond to the complaint is extended until after the appointment of a Lead Plaintiff and lead counsel, at which time the parties shall meet and confer and submit to the Court a mutually agreeable schedule for the filing of a consolidated or amended complaint and Defendants' responses thereto. Pursuant to Civil L.R. 16-2, the Initial Case Management Conference scheduled for January 30, 2019 is vacated, along with any associated deadlines under the Federal Rules of Civil Procedure and Civil Local Rules, to be reset for a date that is 30 days after the Court rules on Defendants' anticipated motion(s) to dismiss Lead Plaintiff's complaint, or such other date as the Court shall determine to be appropriate. All Associated ADR Program deadlines are likewise deferred. A full-text copy of the District Court's December 10, 2018 Order is available at https://tinyurl.com/y9s37wb7 from Leagle.com. Stephen Lopes, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Robert Vincent Prongay -- rprongay@glancylaw.com -- Glancy Prongay & Murray LLP, Charles Henry Linehan -- clinehan@glancylaw.com -- Glancy Prongay & Murray LLP, Lesley F. Portnoy -- lportnoy@glancylaw.com -- Glancy Prongay & Murray LLP & Lionel Zevi Glancy -- lglancy@glancylaw.com -- Glancy Prongay & Murray LLP. Fitbit, Inc., James Park & William Zerella, Defendants, represented by Alexis I. Caloza -- acaloza@fenwick.com -- Fenwick and West LLP, Jennifer Corinne Bretan -- jbretan@fenwick.com -- Fenwick & West LLP & Susan Samuels Muck -- smuck@fenwick.com -- Fenwick & West LLP. FMC TECHNOLOGIES: Balderas Sues Over Unpaid Overtime Wages ---------------------------------------------------------- Daniel Balderas, individually and on behalf of all similarly situated persons, Plaintiff, v. FMC Technologies, Inc., a/k/a TechnipFMC, Defendant, Case No. 4:18-cv-04796 (S.D. Tex., December 20, 2018) arises under the Fair Labor Standards Act of 1938, and brought both as an individual action and a collective action to recover unpaid overtime compensation, liquidated damages, and attorney's fees owed to Plaintiff and all other similarly situated employees employed by, or formerly employed by, Defendant, its subsidiaries and affiliated companies. Plaintiff Daniel Balderas has been employed by Defendant as an hourly technical service employee, or service technician, since September 7, 2012. Balderas's duties include, but are not limited to, installing and maintaining equipment that is supplied by Defendant to Defendant's customers. The Defendant has a policy of paying Balderas and employees like him at an improper overtime rate, the complaint asserts. This policy of not factoring non-discretionary supplemental pay into the calculation of employees' effective hourly rate is, upon information and belief, widespread across Defendant's employees. Balderas and those hourly employees who have similar non-discretionary supplemental pay that is not calculated into their effective hourly rate for overtime purposes are entitled to be compensated for this institutionalized pattern of underpayment, asserts the complaint. The Defendant has knowingly, willfully, or with reckless disregard carried out its illegal pattern or practice regarding overtime compensation with respect to Plaintiff. Such practice was and is a clear violation of the FLSA. The Defendant's actions were willful and in blatant disregard for Plaintiff's federally protected rights, says the complaint, says the complaint. Plaintiff Daniel Balderas, a current employee of Defendant, is personally engaged in interstate commerce during his employment with the Defendant. FMC Technologies, Inc., a/k/a TechnipFMC is a Delaware corporation and an "employer" as defined by the FLSA. Defendant is an enterprise engaged in interstate commerce, operating on interstate highways, purchasing materials through commerce, transporting materials through commerce and on the interstate highways, conducting transactions through commerce, including the use of credit cards, phones and/or cell phones, electronic mail and the Internet. Defendant supplies equipment and technical support services to oil and gas companies for land-based as well as offshore projects around the world.[BN] The Plaintiff is represented by: Josef F. Buenker, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Phone: 713-868-3388 Facsimile: 713-683-9940 Email: jbuenker@buenkerlaw.com - and - Vijay Pattisapu, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Phone: 713-868-3388 Facsimile: 713-683-9940 Email: vijay@buenkerlaw.com FORBES ENERGY: Brown Sues Over Unpaid Overtime Compensation ----------------------------------------------------------- Carlos Brown, individually and on behalf of all others similarly situated, Plaintiff, v. Forbes Energy Services, Ltd., Defendants, Case No. 5:18-cv-01330-DAE (W.D. Tex., December 21, 2018) is brought under the Fair Labor Standards Act ("FLSA") for declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorneys' fees as a result of Defendant's failure to pay Plaintiff and other Supervisors lawful overtime compensation for hours worked in excess of 40 hours per week. Plaintiff and other similarly-situated employees worked in excess of 40 hours per week throughout their tenure with Defendant. Plaintiff and other similarly-situated employees worked approximately 90-100 hours per week. They did not receive any overtime compensation. Defendant failed to pay these workers at the proper overtime rate. These employees are similarly situated to Plaintiff, and are owed overtime for the same reasons, says the complaint. Plaintiff Carlos Brown is a resident and citizen of Refugio County. He was employed by Defendant as a Supervisor within the 3 years preceding the filing of this Original Complaint. Defendant is a Delaware limited liability company, registered and licensed to do business in the State of Texas. Defendant's registered agent for service of process in Texas is John E. Crisp, 3000 South Business Highway 281, Alice, Texas, 78332. Defendant is an "employer" within the meaning set forth in the FLSA, and was, at all times relevant to the allegations in this Complaint, Plaintiff's employer, as well as the employer of the members of the class.[BN] The Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 South Shackleford Road, Suite 411 Little Rock, AR 72211 Phone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com GENERAL MOTORS: Moonan et al. Sue over Defective Injection Pumps ---------------------------------------------------------------- CHRISTOPHER MOONAN; SEAN T. SMITH; ISAIAH RUDY; JOSE HERNANDEZ; SEAN M. BUOB; RICHARD SAMSON; RYAN ARTHUR JENSEN; DOUGLAS CRENSHAW; ANTHONY RAYMOND SMITH; BRADLEY RICE; BRUCE K. GARLOCK; CHRIS S. MCALISTER; COLBY BARRY; DEBRA KAY CASKEY; DOUGLAS HUGHES; ERIC THOMAS CORDER; ERNEST HAROLD MILLER; GEOFF COCHEMS; JOHN THOMAS WHITE; KALEB BEAN; KENNETH MUNRO; KENNY TRAN; KEVIN ALLEN LAWSON; KEVIN SUTHERLAND; MICHAEL L. MCCOY; MILTON LEON HUSS, JR.; NICHOLAS BROCK; STACY WADE SIZELOVE; THORIN JAY ASKIN; RYAN MADURO; MARCOS R. COBAIN, JR.; MICHELE DINIZ; JAMES DUSTIN MORGANTI; and BRANDON TIROZZI, individually and on behalf of all others similarly situated, Plaintiffs v. GENERAL MOTORS LLC, Defendant, Case No. 3:18-cv-07054-JST (N.D. Cal., Nov. 20, 2018) is an action against the Defendants for selling and manufacturing a diesel-tank automobiles equipped with a defective CP4 high-pressure fuel injection pumps. According to the complaint, the Defendants knew all along, Bosch's CP4 pump was never compatible with American diesel fuel standards. The CP4 pump is not built to withstand the specifications for U.S. diesel fuel in terms of lubrication or water content, and it struggles to lift a volume of fuel sufficient to lubricate itself. As a result, the pump is forced to run dry and destroy itself as air bubbles allow metal to rub against metal. As a result of this defect, the pump secretly deposits metal shavings and debris throughout the fuel injection system and the engine until it suddenly and cataclysmically fails without warning, further contaminating the fuel delivery system with larger pieces of metal. The improved fuel efficiency of the Bosch-made component CP4 pump in American vehicles comes at the cost of running the pump nearly dry so that it destroys itself, and—ultimately and catastrophically—destroys the fuel injection system and the engine altogether. American diesel fuel is cleaner, which means that it also provides less lubrication than European diesel fuel. The lubricity specifications of American diesel are incompatible with the specifications of the CP4 system. When American diesel fuel is run through the fast moving, high pressure, lower volume CP4 pump, it struggles to maintain lubrication. The cleaner, thinner diesel allows air pockets to form inside the pump during operation, causing metal to rub against metal, generating metal shavings which are dispersed throughout the fuel injection system, contaminating and destroying the fuel system and indeed the entire engine. Contrary to the Defendants' claims that the CP4 fuel injection system is more reliable, more durable, more powerful, and more fuel-efficient, the CP4 fuel injection system is costly, destructive, and dangerous. General Motors LLC was incorporated in 2009 and is based in Wilmington, Delaware. General Motors LLC operates as a subsidiary of General Motors Company. [BN] The Plaintiffs are represented by: Jeff D. Friedman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: jefff@hbsslaw.com - and – Steve W. Berman, Esq. Sean R. Matt, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com sean@hbsslaw.com GENOCEA BIOSCIENCES: Court Dismisses Securities Class Action ------------------------------------------------------------ Shearman & Sterling LLP, in an article for JDSupra, reports that on December 6, 2018, Chief Judge Patti Saris of the United States District Court for the District of Massachusetts dismissed a putative class action asserting claims under the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against the early-stage biopharmaceutical company Genocea Biosciences, Inc. and certain of its officers and directors. Emerson v. Genocea Biosciences, Inc., No. 17-12137-PBS (D. Mass. Dec. 6, 2018). Plaintiffs alleged that Genocea omitted to disclose to investors certain six-month post-dosing clinical trial test results because it knew the results to be negative, thereby causing class members to purchase Genocea stock at an inflated price. The Court dismissed the action, holding that the alleged omissions were not material and that other disclosures weighed against finding the required strong inference of scienter. The Court rejected plaintiffs' argument that Genocea had made a material omission in failing to disclose certain six-month post-dosing results in January 2017, emphasizing that the Exchange Act "did not create an affirmative duty to disclose any and all material information," but rather only required disclosures necessary to make other statements not misleading. Slip op. at 14. The Court determined that, contrary to plaintiffs' assertion that defendants must have known in January 2017 that the six-month results were negative, Genocea's disclosures provided evidence that the data had not been expected until the "first quarter" or "first half" of 2017. Id. at 16. Without any specific factual allegation that Genocea was aware of the results sooner, the Court adopted only the inference that Genocea was aware of the results by July 2017, when the corresponding 12-month results were disclosed. Id. at 17-18. Furthermore, the Court noted that even though the 12-month results were negative, the stock price did not drop when the company released those negative results, thus supporting the conclusion that the disclosure of negative six-month results would likely not have been material to investors either. Id. at 20-21. The Court also held that plaintiff had failed to adequately allege scienter. The Court determined that Genocea's disclosure of negative 12-month results "weakens any showing of scienter," as the disclosure of some but not all adverse events gave rise to a competing inference that defendants disclosed what they considered to be relevant. Id. at 23. For this reason, the Court rejected plaintiffs' argument that scienter could be inferred through a "core operations" theory, based on how important the drug allegedly was to the company. Id. The Court also rejected plaintiffs' arguments that Genocea executives' stock sales were sufficient to show scienter, emphasizing that "insider trading cannot establish scienter on its own," and that while one executive was alleged to have sold stock during the proposed class period, there was no evidence that Genocea knew of the six-month results at the time of the first transaction, and the second trade was pursuant to a 10b5-1 plan, which had been entered into before Genocea allegedly knew of the six-month negative results, and that trades are effectuated pursuant to such a plan "generally rebuts an inference of scienter." Id. at 24-25. Thus, while the alleged insider trading was a "concern," it did not, standing alone, support a strong inference of scienter. Id. at 25. This decision is a helpful reminder that the materiality of alleged omissions (and allegations of scienter in connection with any omissions) must be analyzed in the context of other disclosures made by defendants. [GN] GNC: Averts Investors' Securities Class Action Over Supplements --------------------------------------------------------------- Bill Wichert, writing for Law360, reports that GNC knocked down a proposed securities class action accusing the retailer of misleading investors about nutrition supplements that contained unlawful ingredients ,the Third Circuit rules. [GN] GUCCI AMERICA: Faces Haggar ADA Suit in C.D. California ------------------------------------------------------- A class action lawsuit has been filed against Gucci America, Inc. d/b/a Gucci. The case is captioned as ELIA HAGGAR, individually and on behalf of all others similarly situated, Plaintiff v. GUCCI AMERICA, INC. d/b/a GUCCI, Defendant, Case No. 2:18-cv-09758-PA-FFM (C.D. Cal., Nov. 20, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Percy Anderson and referred to Magistrate Judge Frederick F. Mumm. Gucci America, Inc. operates as a multi-brand luxury goods company that designs, produces, and distributes personal luxury items for men and women in the United States and internationally. The company was formerly known as Gucci Shops, Inc. The company was founded in 1953 and is based in Secaucus, New Jersey. Gucci America, Inc. operates as a subsidiary of Gucci North American Holdings, Inc. [BN] The Plaintiff is represented by: B. Bobby Saadian, Esq. WILSHIRE LAW FIRM 3055 Wilshire Boulevard 12th Floor Los Angeles, CA 90010 Telephone: (213) 381-9988 Facsimile: (213) 381-9989 E-mail: bobby@wilshirelawfirm.com HABITAT RESTORATION: Underpays Maintenance Keepers, Chavez Says --------------------------------------------------------------- ISABEL CHAVEZ, individually and on behalf of all others similarly situated, Plaintiff v. HABITAT RESTORATION SCIENCES, INC.; and DOES 1 through 100, Defendants, Case No. 37-2018-00059030-CU-OE-CTL (Cal. Super. San Diego Cty., Nov. 20, 2018) is an action against the Defendants for failure to pay minimum wages, overtime compensation, authorize and permit meal and rest periods, and provide accurate wage statements. Ms. Chavez was employed by the Defendants as maintenance keeper for the Defendants' landscaping services. Habitat Restoration Sciences Inc. offers habitat restoration landscaping and general engineering services in California. The company is based in Carlsbad, California. Habitat Restoration Sciences Inc. operates as a subsidiary of Dudek. [BN] The Plaintiff is represented by: Farzad Rastegar, Esq. Amir Seyedfarshi, Esq. RASTEGAR LAW GROUP, APC 22760 Hawthorne Blvd., Suite 200 Telephone: (310) 961-9600 Facsimile: (310) 961-9094 E-mail: farzad@rastegarlawgroup.com amir@rastegarlawgroup.com HARDEE'S RESTAURANT: Settles Hep A Exposure Class Action -------------------------------------------------------- QSRweb reports that a class action lawsuit against a Charlotte, North Carolina Hardee's outlet has been reached, after the filing around incidents of alleged Hepatitis A exposure at the location at 2604 Little Rock Road in the city. A settlement of $246,000 was reached on behalf of those exposed to virus while at the restaurant between June 13, 2018 and June 23, 2018, according to a news release from food safety law firm, Marler Clark. The class in this case includes people who were potentially exposed to the virus at that location on those days, who then received preventive medical treatment as a result within 14 days after their exposure. Class members must obtain a claim form and instructions at www.CharlotteHepA.com and submit it to receive settlement money. A detailed notice of settlement and claim form is being sent by mail to each class member. [GN] HCR MANOR: Six Subclasses of Residents Certified in MacRae Suit --------------------------------------------------------------- The Hon. David O. Carter grants the Plaintiff's Motion for Class Certification in the lawsuit captioned THOMAS HAROLD MACRAE, by and through his Successor in Interest, Heather Watters; FRANCISCA DENNING, by and through her Successor in Interest Claudette Denning; and TOMASITA HOFFMAN, by and through her Successor in Interest Gilda Molinar v. HCR MANOR CARE SERVICES, LLC; MANOR CARE OF CITRUS HEIGHTS CA, LLC; MANOR CARE OF FOUNTAIN VALLEY CA, LLC; MANOR CARE OF HEMET CA, LLC; and DOES 1 through 250, inclusive, Case No. 8:14-cv-00715-DOC-RNB (C.D. Cal.). The six subclasses are: a. Plaintiff Subclass One 'Private Pay Residents of ManorCare Health Services (Fountain Valley) -- Consumer Legal Remedies Act Violations': all persons who resided in (or continue to reside in) the skilled nursing facility doing business under the fictitious business name ManorCare Health Services (Fountain Valley) at any time within the three years prior to the filing of the original complaint in this action through the date of the final disposition of this action wherein the Defendants were reimbursed for services provided to 'class member' by private pay and/or privately acquired insurance and/or any HMO or PPO; b. Plaintiff Subclass Two 'All Residents of ManorCare Health Services (Fountain Valley) -- Consumer Legal Remedies Act Violations': all persons who resided in (or continue to reside in) ManorCare Health Services (Fountain Valley) at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action. This subclass shall seek injunctive relief and attorneys' fees and costs only; c. Plaintiff Subclass Three 'Health & Safety Code Section 1430(b) Violations to Residents of ManorCare Health Services (Fountain Valley)': all persons who were resided in (or continue to reside in) ManorCare Health Services (Fountain Valley) at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action regardless of the manner in which Defendants were reimbursed for services; d. Plaintiff Subclass Four 'Private Pay Residents of ManorCare Health Services C Hemet) -- Consumer Legal Remedies Act Violations': all persons who resided in (or continue to reside in) the skilled nursing facility doing business under the fictitious business name ManorCare Health Services (Hemet) at any time within the three years prior to the filing of the original complaint in this action through the date of the final disposition of this action wherein the Defendants were reimbursed for services provided to 'class member' by private pay and/or privately acquired insurance and/or any HMO or PPO; e. Plaintiff Subclass Five 'All Residents of ManorCare Health Services (Hemet) -- Consumer Legal Remedies Act Violations': all persons who resided in (or continue to reside in) ManorCare Health Services (Hemet) at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action. This subclass shall seek injunctive relief and attorneys' fees and costs only; and f. Plaintiff Subclass Six 'Health & Safety Code Section 1430(b) Violations to Residents of ManorCare Health Services (Hemet)': all persons who were resided in (or continue to reside in) ManorCare Health Services (Hemet) at any time within the three years prior to the filing of this Complaint through the date of the final disposition of this action regardless of the manner in which Defendants were reimbursed for services." The Plaintiffs are former residents of one of the skilled nursing facilities owned, operated, managed and/or controlled by the Defendants in the state of California. They allege that during the proposed class period, the Defendants' skilled care facilities did not employ an adequate number of qualified personnel to carry out the functions of the facilities, in violation of California law. They allege that, prior to becoming residents of the Defendants' facilities, they (and their legal representatives) were provided with a standard admission agreement with an attachment containing a resident bill of rights as mandated by California Health and Safety Code Section 1599.1(a).[CC] HEARTLAND PAYMENT: Court Affirms Order in Wage Class Action ----------------------------------------------------------- Chandra Lye, writing for Legal Newsline, reports that the California Court of Appeal 2nd Appellate District, Division Eight has affirmed an order issued by the Los Angeles County Superior Court in a class action lawsuit over allegations of wage violations. The Superior Court denied a motion to intervene filed by two plaintiffs who sought to intervene in another plaintiff's lawsuit. The appeals court affirmed this ruling. Plaintiff Robin Edwards, a former employee of defendant Heartland Payment Systems, filed a class action lawsuit in January 2016 stating that some California-based employees did not get paid minimum wage for work they did. Jaime Torres and Jorge Martinez later filed a separate suit in March 2016 over similar allegations. "The basic claims were the same as in Edwards, albeit adding factual detail and adding claims for failure to pay wages and to pay overtime compensation," the ruling states. Mr. Edwards later entered into a proposed class action settlement with Heartland and amended her complaint to include the claims filed by Messrs. Torres and Martinez, and Messrs. Torres and Martinez filed to intervene. "Torres and Martinez filed a motion to intervene in Edwards' lawsuit. The trial court denied the motion, and Torres and Martinez appealed the court's order. We affirm." Heartland attempted mediation with the plaintiffs but was only able to come to an agreement with one. "The plaintiffs in Edwards and Heartland reached a settlement in principle and executed a memorandum of understanding," the appeals court decision stated. "The Torres plaintiffs contend the trial court erred in denying both mandatory and permissive intervention pursuant to Code of Civil Procedure section 387.3 We find no error under either provision," the court ruled. The appeals court also noted the Torres argument that "the trial court applied the 'incorrect legal standard' when it focused on its fiduciary duties to the class, rather than on the adequacy of the class representatives themselves." However, the judges also stated they saw no reason "why the court's fiduciary duties to review the settlement cannot reinforce the conclusion that the Torres plaintiffs' ability to protect their interests would not be practically impaired or impeded by the settlement." [GN] HIGHER LEARNING: Students Launch Class Action Following Closure --------------------------------------------------------------- Ashley A. Smith, writing for Inside Higher Ed, reports that about 30 colleges are shutting their doors at the end of this month, nearly a year after becoming the latest group of for-profit institutions to convert to nonprofit status. The colleges, most of which are part of the once renowned Art Institutes brand, are owned by the Pennsylvania-based nonprofit Dream Center Education Holdings, or DCEH. They were formerly owned by Education Management Corporation. Despite having a recognizable brand, EDMC struggled with decreases in enrollment and revenue and increased scrutiny by state and federal investigations before selling the properties last year to the Dream Center Foundation, a Christian missionary organization. The Dream Center purchased Argosy University, the Art Institutes, South University and Western State College of Law, which together had more than 100 campuses, from EDMC and converted the large for-profit institutions into nonprofit entities. It was reported in July that DCEH would stop enrolling students at 30 campuses and shut down those locations. The campuses have about 50,000 students enrolled in total. Officials at DCEH did not respond to multiple calls and emails seeking more information about the closures of the colleges. Trace Urdan, a managing director at the consulting firm Tyton Partners who follows and analyzes the for-profit sector, said several factors led to the closures. "The challenge of turning the business around has proven to be more difficult than anticipated and that simply declaring it nonprofit has been insufficient to shake the negative associations with the brand," he said in an email. Urdan said the dwindling appeal and high costs of programs at the Art Institutes -- the programs include culinary arts, media production, fashion, animation and interior design -- also worked against the universities. These programs require students to buy expensive course materials and equipment, which are essentially investments with low returns since most graduates end up in jobs with low starting salaries. "In the context of a full-employment economy, attracting students to what are effectively vocational programs remains very challenging," Urdan said. "They have to be persuaded that spending or borrowing money will boost their earning power enough to justify the expense. And because [the Art Institutes] is primarily a four-year degree institution, the cost and hurdle involved are that much greater." Tuition at the Art Institute of Philadelphia, for example, ranged from about $48,000 for an associate degree in graphic design to about $93,000 for a bachelor's degree in graphic design. The Philadelphia campus is among the locations that are closing. Tuition at Argosy University's San Francisco and Nashville, Tenn., campuses, which are also closing, ranged from $445 per credit hour to more than $1,000 per credit hour, according to its website. The Argosy campuses offer undergraduate and graduate degree programs. But it isn't just the cost of the programs that may be turning off potential students. The wages for the careers that the degrees lead to aren't high enough for these programs to be a good value, said Spiros Protopsaltis, an associate professor of education policy at George Mason University and former deputy assistant secretary for higher education and student financial aid at the U.S. Department of Education under the Obama administration. Employers don't seem to value these degrees, especially from a former for-profit, as much as they do when students are coming from a traditional public university or a nonprofit institution that hasn't undergone a conversion, he said. "People see through some of these things for what they are, and at the end of the day, consumers realize that just because a school converted to a nonprofit, it doesn't mean that it necessarily changed its education model," he said. "If outcomes don't improve and quality doesn't go up and the value proposition isn't there, changing tax status doesn't change the underlying problems with the business model." Prior to the Education Department's decision in August to drop the gainful-employment rule, which required for-profit institutions to prove they are preparing graduates for remunerative employment, and before the nonprofit conversion, career education programs like some of those offered at the Art Institutes failed to meet the guidelines. For example, the Art Institute of Pittsburgh charges more than $44,800 for an associate degree in graphic design, but only 12 percent of students graduated on time. And those graduates typically earned less than $22,000 a year and had more than $40,000 in federal student loan debt, according to the Institute for College Access & Success. "Changing the tax status without changing the culture or changing the product is not going to lead to any different outcomes," Protopsaltis said. When the Dream Center took over the struggling EDMC campuses, critics questioned whether the organization was equipped with the necessary knowledge and skills to run one of the country's largest for-profits. At the time of the sale, EDMC records indicated an enrollment of 65,000 students. Critics also point to another example of a failed attempt to convert a for-profit institution into a nonprofit by the ECMC Group, a student loan guarantee agency. ECMC created the Zenith Education Group to turn some of the former for-profit Corinthian Colleges into nonprofit entities. ECMC purchased 56 former Everest and WyoTech campuses in 2015 and together with Zenith spent more than $500 million to keep the former Corinthian Colleges operating. The company closed 21 of the campuses in 2017 but left three open. Protopsaltis said these types of conversions need to be scrutinized more carefully. Dream Center supporters dispute the assessment that the company doesn't understand the complexity of turning around former for-profit institutions. They point to Brent Richardson, who was previously the executive chairman of Grand Canyon University, a private, nonprofit Christian university in Phoenix. Richardson spent years investing in and helping to build GCU when it was a struggling for-profit entity. Michael Clifford, a former board member of the Dream Center who has invested in for-profit colleges and describes himself as a "friend of the nonprofit," said the campus closings are a sign that the Dream Center's administrative teams are moving the company in the right direction and in the best interests of the students who continue to attend the institutions. "They've done more positive things in six or seven months than anyone in this business," he said while declining to give specific examples on the record. "I've never seen a management team turn around a nonprofit school center as this group has done." Clifford's appraisal of Dream Center's financial outlook did not include other challenges the organization is currently facing. The Art Institute of Seattle, which was not on the list of campuses closing this year, laid off 10 of 13 full-time instructors this fall. The institute also employs 75 part-time instructors, none of whom were laid off. Meanwhile, the Middle States Commission on Higher Education, which is the accreditor for the Art Institute of Pittsburgh, recently ruled that Dream Center had to provide more evidence that it adheres to commission standards by March 1 in order for the institution to be accredited. Middle States, along with other regional accreditors for the DCEH campuses such as the Higher Learning Commission, has also approved teach-out agreements for the 30 campuses slated to close. The Higher Learning Commission, for example, approved a plan that would allow Illinois Institute of Art and Art Institute of Colorado students to transfer their earned credits to Columbia College Chicago or Rocky Mountain College of Art and Design, in Denver. Students who attended the Illinois campuses launched a class action lawsuit with the National Student Legal Defense Network. They accused the institution of hiding the fact that HLC revoked accreditation in January while continuing to encourage students to pay for courses and to graduate with unaccredited degrees. Clifford is optimistic that regulatory changes made by Education Secretary Betsy DeVos will help put DCEH campuses on stronger financial footing. He points to the administration's accreditation overhaul and its concerns that accreditors may not be in the best position to properly scrutinize the financial health of institutions and nonprofit conversions. Clifford said he supports the idea of shifting oversight from the accreditors to the states. "No one wants another Corinthian or ITT [Technical Institutes]," Clifford said, referring to for-profit chains that collapsed in recent years after being subjected to increased federal oversight. [GN] IBM: 2d Cir. Revives Securities Fraud Claims -------------------------------------------- Amanda Ottaway, writing for Courthouse News Service, reported that reviving securities fraud claims, the Second Circuit ruled on Dec. 10 that IBM must face a suit by workers accusing the company of having mismanaged their retirement plans. The New York class action stems from a 2014 announcement by IBM that it was selling its microelectronics business to GlobalFoundries Inc. Up until then IBM had been valuing its business at approximately $2 billion, but IBM revealed in 2014 that it would take a $4.7 billion pretax charge because it had been overvaluing the microelectronics business. IBM's stock price declined by more than $12 a share on the heels of the lawsuit, prompting the suit here by participants in IBM's retirement plan. Lead plantiffs Larry Jander and Richard Waksman contend that IBM officials were opting to invest their employees' retirement funds in common stock while failing to disclose their knowledge that IBM's stock price was inflated. Though a federal judge dismissed the suit, the Second Circuit reversed on Dec. 10, concluding that the plaintiffs met the standard with their claim that IBM's management violated its duty of prudence under the Employee Retirement Income Security Act. "We're gratified by the court's decision, we wholeheartedly agree with it and we look forward to litigating the case," Zamansky attorney Samuel Bonderoff said in a phone interview this afternoon. In the Dec. 10 ruling, Chief U.S. Circuit Judge Robert Katzmann called it "particularly important" that IBM is accused here of knowing "that disclosure of the truth regarding IBM's microelectronics business was inevitable, because IBM was likely to sell the business and would be unable to hide its overvaluation from the public at that point." "In the normal case, when the prudent fiduciary asks whether disclosure would do more harm than good, the fiduciary is making a comparison only to the status quo of nondisclosure," the opinion states. "In this case, however, the prudent fiduciary would have to compare the benefits and costs of earlier disclosure to those of later disclosure -- nondisclosure is no longer a realistic point of comparison." U.S. Circuit Judges Robert Sack and Reena Raggi concurred in the ruling. "While the Court's ruling on this preliminary matter is disappointing, IBM will continue to vigorously defend against these claims," IBM spokesman Doug Shelton said in an email on Dec. 10. Lawrence Portnoy of Davis Polk, who represented the defendants, did not comment, referring Courthouse News to IBM instead. In the underlying complaint, the plaintiffs said the plan administrators could have halted trading, disclosed the correct numbers or bought a hedging product to help with risk management. U.S. District Judge William Pauley found in dismissing the case, however, that those suggestions would have done the company more harm than good. Judge Katzmann wrote in the Dec. 10 reversal, on the other hand, that it plausible IBM could have foreseen that artificial inflation of stock prices would harm the company in the long term. [GN] IBM: 2nd Cir. Reverses Dismissal of Jander ERISA Suit ----------------------------------------------------- The United States Court of Appeals, Second Circuit, issued an Opinion reversing the judgment of the District Court granting Defendant's Motion to Dismiss the case captioned LARRY W. JANDER, and all other individuals similarly situated, RICHARD J. WAKSMAN, Plaintiffs-Appellants, v. RETIREMENT PLANS COMITTEE OF IBM, RICHARD CARROLL, ROBERT WEBER, MARTIN SCHROETER, Defendants-Appellees, INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant. Docket No. 17-3518. (2nd Cir.). The plaintiffs here, IBM employees who were participants in the company's Employee’s Stock Option Plan (ESOP), claim that the plan's fiduciaries knew that a division of the company was overvalued but failed to disclose that fact. This failure, the plaintiffs allege, artificially inflated IBM's stock price, harming the ESOP's members. To state a duty-of-prudence claim, plaintiffs must plausibly allege that a proposed alternative action would not have done more harm than good. The district court first dismissed Jander's case on the same day it decided the securities fraud lawsuit. As an initial matter, the district court relied on the reasoning set forth in its securities fraud decision to find that the pensioner plaintiffs had plausibly pled that IBM's Microelectronics unit was impaired and that the Plan fiduciaries were aware of its impairment. The district court granted Jander an opportunity to file a second amended complaint. Jander availed himself of that opportunity, adding further details and alleging a third alternative by which the Plan defendants could have avoided breaching their fiduciary duty: by purchasing hedging products to mitigate potential declines in the value of IBM common stock. The district court again found lacking the allegations concerning the three alternatives available to the Plan defendants, determining that each might have caused more harm than good. Duty of Prudence 29 U.S.C. Section 1104(a)(1), a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims ERISA's Duty-of Prudence Standard The parties disagree first and most fundamentally about what the plaintiffs must plead to state a duty-of-prudence claim under ERISA. Their arguments are premised on competing readings of two recent decisions by the United States Supreme Court and differing views of how they interact with the decisions of our sister circuits. Some background is therefore in order. In 2014, the Supreme Court definitively rejected the presumption of prudence in Fifth Third Bancorp v. Dudenhoeffer, which held that the law does not create a special presumption favoring ESOP fiduciaries. 134 S.Ct. 2459, 2467 (2014). The Court recognized that there is a legitimate concern that subjecting ESOP fiduciaries to a duty of prudence without the protection of a special presumption will lead to conflicts with the legal prohibition on insider trading, given that ESOP fiduciaries often are company insiders subject to allegations that they were imprudent in failing to act on inside information they had about the value of the employer's stock. Nevertheless, the Court reasoned that an ESOP-specific rule that a fiduciary does not act imprudently in buying or holding company stock unless the company is on the brink of collapse or the like is an ill-fitting means of addressing that issue. The Supreme Court summarily reversed the Ninth Circuit, holding that it failed to adequately scrutinize the plaintiffs' pleadings. Amgen Inc. v. Harris, 136 S.Ct. 758, 760 (2016) (per curiam). The Court did not reject the Ninth Circuit's reasoning outright. Rather, it found a mismatch between that reasoning and the allegations in the current form of the complaint regarding whether a prudent fiduciary in the same position `could not have concluded' that the alternative action would do more harm than good. The Court stated: The Ninth Circuit's proposition that removing the Amgen Common Stock Fund from the list of investment options was an alternative action that could plausibly have satisfied Fifth Third's standards may be true. If so, the facts and allegations supporting that proposition should appear in the stockholders' complaint. Having examined the complaint, the Court has not found sufficient facts and allegations to state a claim for breach of the duty of prudence. Amgen's analysis, however, neglects to offer any guidance about what facts a plaintiff must plead to state a plausible claim for relief." Saumer v. Cliffs Nat. Res. Inc., 853 F.3d 855, 865 (6th Cir. 2017). This is in part because the complaint in Amgen included no allegations regarding proposed alternative actions beyond the bare assertion that they were available. Accordingly, Amgen's import could be interpreted in multiple ways. It might clarify what was implicit in Fifth Third: that allegations about why an alternative action would do more good than harm must appear in the complaint itself, not merely in a court's opinion. Or it might instead confirm that the could not have concluded language from Fifth Third created a separate standard that must independently be satisfied to plead a duty-of-prudence claim. The parties spar over which of these two interpretations is correct. The Plan defendants urge us to view Fifth Third and Amgenas setting out a restrictive test, noting that at least two of our sister circuits have adopted that interpretation. Jander notes that no duty-of-prudence claim against an ESOP fiduciary has passed the motion-to-dismiss stage since Amgen, and he asserts that the courts and the Plan defendants have misread that decision. According to Jander, imposing such a heavy burden at the motion-to-dismiss stage runs contrary to the Supreme Court's stated desire in Fifth Third to lower the barrier set by the presumption of prudence. Our sole precedential post-Amgen duty-of-was never amended following Fifth Third prudence opinion does not explicitly take a side in this dispute. The Court need not here decide which of the two standards the parties champion is correct, however, because we find that Jander plausibly pleads a duty-of-prudence claim even under the more restrictive could not have concluded test. The Plaintiffs' Duty-of-Prudence Claim The district court held that Jander failed to state a duty-of-prudence claim under ERISA because a prudent fiduciary could have concluded that the three alternative actions proposed in the complaintdisclosure, halting trades of IBM stock, or purchasing a hedging product would do more harm than good to the fund. The Court respectfully disagree. Jander has limited the proposed alternative actions on appeal to just one: early corrective disclosure of the microelectronics division's impairment, conducted alongside the regular SEC reporting process. Several allegations in the amended complaint, considered in combination and drawing all reasonable inferences in plaintiff's favour plausibly establish that a prudent fiduciary in the Plan defendants' position could not have concluded that corrective disclosure would do more harm than good. First, the Plan defendants allegedly knew that IBM stock was artificially inflated through accounting violations. As the district court found, Jander has plausibly alleged a GAAP violation, and in view of the lower pleading standards applicable to an ERISA action, he has plausibly pled that IBM's Microelectronics unit was impaired and that the Plan fiduciaries were aware of its impairment. Second, the Plan defendants allegedly had the power to disclose the truth to the public and correct the artificial inflation. Two of the Plan defendants were uniquely situated to fix this problem inasmuch as they had primary responsibility for the public disclosures that had artificially inflated the stock price to begin with. The district court thought that the complaint failed to account for the risks that an unusual disclosure outside the securities laws' normal reporting regime could spook the market, causing a more significant drop in price than if the disclosure were made through the customary procedures. This reasoning assumes that any disclosure would have to have been outside the securities' laws normal reporting regime. Yet the class period here runs from January through October 2014. The amended complaint therefore plausibly alleges that disclosures could have been included within IBM's quarterly SEC filings and disclosed to the ESOP's beneficiaries at the same time in the Plan defendants' fiduciary capacity. Third, Jander alleges that the defendants' failure promptly to disclose the value of IBM's microelectronics division hurt management's credibility and the long-term prospects of IBM as an investment because the eventual disclosure of a prolonged fraud causes reputational damage that increases the longer the fraud goes on. The district court dismissed this allegation as an argument [that] rests on hindsight, which "says nothing about what a prudent fiduciary would have concluded under the circumstances then prevailing. But Jander's argument is not retrospective. A reasonable business executive could plausibly foresee that the inevitable disclosure of longstanding corporate fraud would reflect badly on the company and undermine faith in its future pronouncements. Fourth, the complaint alleges that IBM stock traded in an efficient market, such that correcting the Company's fraud would reduce IBM's stock price only by the amount by which it was artificially inflated. It is well established that the market price of shares traded on well-developed markets reflects all publicly available information. Accordingly, Jander plausibly alleges that a prudent fiduciary need not fear an irrational overreaction to the disclosure of fraud. Fifth and finally, the defendants allegedly knew that disclosure of the truth regarding IBM's microelectronics business was inevitable, because IBM was likely to sell the business and would be unable to hide its overvaluation from the public at that point. This allegation is particularly important. In the normal case, when the prudent fiduciary asks whether disclosure would do more harm than good, the fiduciary is making a comparison only to the status quo of non-disclosure. In this case, however, the prudent fiduciary would have to compare the benefits and costs of earlier disclosure to those of later disclosure non-disclosure is no longer a realistic point of comparison. Accordingly, when a drop in the value of the stock already held by the fund is inevitable, it is far more plausible that a prudent fiduciary would prefer to limit the effects of the stock's artificial inflation on the ESOP's beneficiaries through prompt disclosure. The Court therefore hold that Jander has stated a claim for violation of ERISA's duty of prudence. The Interplay Between the ERISA and Securities Fraud Suits One issue remains for us to address: the relevance, if any, of the parallel securities fraud suit against IBM. As already noted, the district court dismissed that case, and the plaintiffs did not appeal. The district court found that the plaintiffs had failed to raise a strong inference that the need to write-down Microelectronics was so apparent to Defendants before the announcement, that a failure to take an earlier write-down amounts to fraud, or that the Plan defendants knew that IBM's earnings-per-share projections lacked a reasonable basis when they were made. The plaintiffs therefore could not plausibly plead scienter. The Plan defendants assert that allowing Jander's ERISA claim to go forward on essentially the same facts would lead to an end run around the heightened pleading standards for securities fraud suits set out in the Private Securities Litigation Reform Act (PSLRA). While this concern is not without merit, it does not provide a basis to affirm the district court's dismissal of Jander's duty-of-prudence claim. Accordingly, the Second Circuit reverses the judgment and remands the matter to the district court for further proceedings consistent with this opinion. A full-text copy of the Second Circuit's December 10, 2018 Opinion is available at https://tinyurl.com/y8zaoqxb from Leagle.com. SAMUEL E. BONDEROFF (argued), JACOB H. ZAMANSKY, Zamansky LLC, 50 Broadway - 32nd Floor New York NY, 10004, for Plaintiffs-Appellants. LAWRENCE PORTNOY -- Lawrence.portnoy@davispolk.com -- (argued), J. STAN BARRETT -- j.barrett@davispolk.com -- MICHAEL S. FLYNN -- michael.flynn@davispolk.com -- W. TRENT THOMPSON -- trent.thompson@davispolk.com -- Davis Polk & Wardwell LLP, New York, NY, for Defendants-Appellees. ILLINOIS: 7th Cir. Affirms Class Certification Denial in Riffey --------------------------------------------------------------- The United States Court of Appeals, Seventh Circuit, issued an Opinion affirming the District Court's judgment denying Plaintiffs' Motion for Class Certification in the case captioned THERESA RIFFEY, et al., Plaintiffs-Appellants, v. BRUCE V. RAUNER, in his official capacity as Governor of the State of Illinois, and SEIU HEALTHCARE ILLINOIS & INDIANA, Defendants-Appellees. No. 16-3487. (7th Cir.). When this case was last before the circuit court, the Court upheld the district court's decision declining to certify a class of home health care assistants (Assistants) who were seeking a refund of the fair-share fees they had paid to a union for collective-bargaining representation. The Court agreed with the putative class that no one could be compelled to pay fair-share fees, pursuant to the Supreme Court's decision in Harris v. Quinn, 134 S.Ct. 2618 (2014), and that any such objector would be entitled to have his or her payments refunded. Seeking review of the Court's decision, the putative class representatives filed a petition for a writ of certiorari in the Supreme Court. On June 28, 2018, the Court granted that petition and remanded the case to this court for further consideration in light of Janus v. State, County, and Municipal Employees, 138 S.Ct. 2448 (2018). See 138 S.Ct. 2708 (2018). On remand, the Assistants amended their complaint to substitute new named plaintiffs for the class, and to substitute Governor Bruce V. Rauner for his predecessor, Governor Quinn. They sought certification of a class of all non-union member assistants from whom fair-share fees were collected from April 2008 until June 30, 2014 (the date of the Supreme Court's Harrisdecision), when the state stopped the fair-share deductions. The proposed class included some 80,000 members; the class representatives asserted that the total amount that needed to be refunded was approximately $32 million. As the Court explained in its 2017 opinion, the district court denied certification for several reasons: The class definition was overly broad in light of evidence (detailed by the court) that a substantial number of class members did not object to the fee and could not have suffered an injury; the named plaintiffs were not adequate representatives; individual questions regarding damages predominated over common ones; the class faced serious manageability issues; and a class action was not a superior method of resolving the issue. Janus was an individual action brought by Mark Janus, an employee of the Illinois Department of Healthcare and Family Services. Unlike the assistants in the Harris litigation, Janus was indisputably a state employee. The people in his unit were represented by the American Federation of State, County, and Municipal Employees (AFSCME) Council 31, but Janus elected not to join the Union because he disagreed with its positions on a variety of public policy matters. Although he was required to pay only a fair-share fee, he objected to that as a matter of principle. His fees amounted to about $535 a year. The Court's resolution of the agency-fee issue meant that only one further point needed to be resolved on the Harris remand: whether the remaining issues concerning refunds of agency fees that were paid by nonconsenting employees could be resolved in a class action. If this was to be a class at all, the Court recognized, it was one for money damages for each individual class member, and it would accordingly have to satisfy the requirements of Rule 23(b)(3). The decision whether to certify a class is one that depends on a careful assessment of the facts, of potential differences among class members, of management challenges, and of the overall importance of the common issues of law or fact to the ultimate outcome. Rule 23 gives the district courts broad discretion to determine whether certification of a class-action lawsuit is appropriate and thus this court reviews such decisions deferentially. The Court sees nothing approaching an abuse of discretion in the district court's decisions here that whatever common questions remain among the proposed class members do not predominate, and that a class action is not superior to other available methods for fairly and efficiently adjudicating the controversy. And this is not all that supports the district court's determination. The Union presented evidence of disharmony within the class: some of the Assistants supported the Union and have no desire to collect a refund, while others are eager to get their money back; and once they no longer had the intermediate option of paying an agency fee, some moved in one direction to join the Union, while others moved in the opposite direction and severed all ties with the Union. The court also noted that the answer to the central question that remains how much money each individual class member is entitled to recoup is particularly ill-suited for class treatment, because it depends on a myriad of factors particular to each individual worker. The Court therefore concludes, as the Court did before, that the district court acted well within its authority when it declined to certify a class action for the clean-up proceedings that are necessary in the wake of Harris and Janus. Individual assistants who wish to pursue refunds are free to seek to do so; the Court makes no comment on those cases or the defenses the Union may endeavor to raise in them. Accordingly, the decision of the district court is affirmed. A full-text copy of the Seventh Circuit's December 6, 2018 Opinion is available at https://tinyurl.com/yb8lsojc from Leagle.com. Nadine J. Wichern -- nwichern@atg.state.il.us -- for Defendant-Appellee. William L. Messenger, for Plaintiff-Appellant. Scott A. Kronland -- skronland@altshulerberzon.com -- for Defendant-Appellee. Frank Henry Bieszczat, for Defendant-Appellee. Amanda Kae Freeman, for Plaintiff-Appellant. ISLE OF CAPRI: IOC Wins Summary Judgment in Larson FLSA Suit ------------------------------------------------------------ The United States District Court for the Western District of Missouri, Western Division, issued an Order and Opinion granting Defendants Isle of Capri Casinos, Inc. (IOC)'s Motion for Summary Judgment in the case captioned CYNTHIA D. LARSON, Plaintiff, v. ISLE OF CAPRI CASINOS, INC., et al., Defendants. Case No. 16-00902-CV-W-ODS. (W.D. Mo.). The Plaintiff filed this matter on behalf of herself and others similarly situated, alleging IOC and IOC-KC violated the Fair Labor Standards Act (FLSA) and the Missouri Minimum Wage Law (MMWL), and IOC and IOC-KC were unjustly enriched by receiving the benefit of unpaid work. She later amended her complaint to include additional FLSA and MMWL claims. The Plaintiff alleges the Defendants' timekeeping policy did not compensate employees for all time worked (Counts I and V), the Defendants miscalculated the regular hourly rate (Counts II and VI), the Defendants did not properly inform employees of the tip credit policy (Counts III and VII), the Defendants failed to pay employees for required training (Counts IV and VIII) and the Defendants were unjustly enriched by employees' unpaid work (Count IX). IOC contends the Plaintiff was employed by IOC-KC only, and thus, IOC is entitled to summary judgment on the Plaintiff's claims against IOC. The Plaintiff, however, contends she was jointly employed by IOC and IOC-KC. The Plaintiff bears the burden of proving an employer-employment relationship existed. Power to Hire and Fire IOC sets forth declarations and deposition testimonies from current and former employees of IOC and IOC-KC establishing IOC did not have the power to hire and fire Plaintiff. IOC-KC managers had unilateral authority to hire and fire IOC-KC employees. IOC-KC used its own interview process, and IOC was not involved. Nothing in the record indicates IOC-KC had to obtain approval from IOC to hire or fire employees. Other than IOC-KC's VP/GM, IOC played no role in hiring or firing OC-KC employees. Plaintiff directs the Court to other portions of the record in an attempt to establish IOC had the power to hire and fire IOC-KC employees. Plaintiff first points to the fact that IOC-KC's VP/GM had a contract with IOC, and he reported to IOC. Plaintiff suggests that, because Steffen had the power to hire and fire IOC-KC employees, IOC (through Steffen) had the power to hire and fire IOC-KC employees. Plaintiff's argument is an unconvincing attempt to connect the dots. She neither provides evidence Steffen was acting as an IOC employee while he made hiring and firing decisions, nor points to anything in the record establishing IOC had anything to do with Steffen's (or IOC-KC managers') hiring and firing decisions. Also, Plaintiff does not set forth legal authority supporting her argument that simply because the subsidiary's top official reports to a parent company, the Court should assume the parent company has the power to hire and fire the subsidiary's employees. Supervised and Controlled Work Schedules or Conditions of Employment It is undisputed that IOC did not supervise Plaintiff's day-to-day activities, did not control her work hours or work schedule, and did not determine her job duties. There is no evidence IOC evaluated Plaintiff's job performance. Rather, IOC-KC managers supervised Plaintiff's day-to-day activities, controlled her work hours and work schedule, determined her job duties, and evaluated her performance. Plaintiff argues IOC supervised the daily work activities of Plaintiff and other IOC-KC employees through the VP/GM" of IOC-KC. This argument fails for the same reasons noted above. Further, IOC-KC's VP/GM was not involved in day-to-day scheduling of hourly employees, their job duties, or their job performance. Also, Plaintiff does not identify legal authority to support her argument that, because the subsidiary's top official reports to a parent company, the parent company automatically supervises and controls the subsidiary's employees. Determined Rate of Pay and Method of Compensation IOC-KC managers determined Plaintiff's rate of pay. IOC-KC paid its employees from its bank account via direct deposit or debit card. IOC-KC paid payroll taxes, unemployment insurance, and workers compensation insurance for its employees. Plaintiff asks the Court to consider other facts when analyzing whether IOC determined her rate of pay and method of compensation. Once more, she points to IOC-KC's VP/GM serving as a conduit for IOC to control IOC-KC employees, and therefore, determine IOC-KC employees' rates of pay and methods of compensation. As set forth above, there is no evidence supporting this contention. Next, Plaintiff refers to IOC-KC seeking approval from IOC regarding promotion decisions and pay raises for employees, and IOC had the final decision regarding pay. These representations are not entirely accurate. Missouri Gaming Commission regulations prohibited IOC-KC's Surveillance Department Manager from directly reporting to anyone at IOC-KC. Consequently, IOC made decisions as to her pay. There is no evidence that Plaintiff was prohibited from reporting to anyone at IOC-KC, or that IOC determined her pay. Thus, this fact is irrelevant. Maintained Employment Records IOC-KC set forth evidence that it maintained records of its employees, including personnel files, which were not shared with IOC. To support her argument that IOC maintained employment records of IOC-KC employees, Plaintiff calls attention to (1) IOC's maintenance of a website through which applications for employment with IOC subsidiaries were submitted (2) IOC's operation of timekeeping, human resources, and payroll systems (3) the Team Member Access portal (4) IOC's contract with ADP to provide and handle certain documentation (5) IOC's operation of a benefits website; (6) IOC's maintenance of 401(k) documentation; and (7) the confidential toll-free number. IOC maintained and had access to a timekeeping system as well as a human resources and payroll system. Both systems were offered to subsidiaries, but they were not required to use them. The timekeeping system contained team member name, badge number, time clock punch activity, and monetary adjustments entered by the subsidiaries. The human resources and payroll system included team member name, address, position, rate of pay, and deductions, all entered by the subsidiary. IOC keeps timekeeping and payroll data for seven years, and then the data is transferred to a storage company. The Team Member Access self-service portal allowed subsidiaries' employees to view, change, or access personal information, benefits information, pay history, and tax documents. The portal was maintained by IOC through its contract with the human resources and payroll program. Plaintiff, however, does not present evidence that IOC had access to or maintained employees' information contained in the portal. Premises and Equipment The MMWL contains a fifth factor: premises and equipment used by the employee. IOC-KC owned all personal property and equipment it used. IOC-KC purchased the timekeeping system and time clocks utilized by Plaintiff during her employment. However, Plaintiff argues IOC-KC's use of two software programs establish IOC's systems were used for her work. IOC acquired and maintained a timekeeping system, and a human resources payroll system. IOC offered these services to IOC's subsidiaries. Subsidiaries had a choice to use the programs, or whatever timekeeping or payroll programs they saw fit. If IOC-KC chose to use a program, it could make changes in that program. Plaintiff does not set forth evidence as to who controlled the premises on which she worked. She also does not counter IOC's supported facts that IOC-KC owned all personal property and equipment. Thus, this factor weighs against a finding that IOC was a joint employer of Plaintiff. Acknowledgment as Employer Plaintiff asks the Court to consider one additional factor: IOC acknowledged it was her employer. A case from this Court, Childress v. Ozark Delivery of Missouri LLC is the sole support for her argument. But Plaintiff's reliance on Childress is misplaced. In Childress, the purported joint employers (Ozark and Advantage expressly acknowledged that they were entering into a joint employer agreement, and that Advantage will enter into a written agreement with each employee recognizing Advantage's role as a joint employer. Advantage also sent new hire documents to Plaintiffs indicating Plaintiffs were entering into an employment relationship with Advantage. Unlike Childress, IOC and IOC-KC did not agree to be joint employers. No document recognizes IOC as a joint employer of Plaintiff, and IOC did not send documentation to her about an employment relationship. While there are many references to IOC in these documents, IOC, contrary to Plaintiff's representation, did not identify itself as Plaintiff's employer. Strong Presumption Parent Company Is Not Employer In Brown, the plaintiff provided evidence the parent company processed payroll and performed other services for its subsidiary in exchange for a fee. The plaintiff also demonstrated parent company's name appeared on the plaintiff's payroll check and other documents, including a handbook. Brown, 494 F.3d at 739-40. But the plaintiff did not set forth evidence suggesting the parent company and its subsidiary were a single entity. More specifically, the Eighth Circuit found there was insufficient evidence showing the parent company actually controlled individual employment decisions involving the plaintiff. While the Court understands Brown was analyzed under Title VII, the FLSA, similar to Title VII, has an expansive definition of employer. Individually, and in the aggregate, the factors discussed above establish IOC was not Plaintiff's employer and was not a joint employer with IOC-KC of Plaintiff. Considering the totality of the circumstances, the Court finds IOC did not have direct or indirect power to control significant aspects of Plaintiff's employment, and IOC did not act in the interest of IOC-KC in relation to Plaintiff. Accordingly, the Court grants IOC's motion for summary judgment on all of Plaintiff's FLSA and MMWL claims against IOC. Unjust Enrichment/Quantum Meruit Claims IOC also seeks summary judgment on Plaintiff's unjust enrichment/quantum meruit claims. To establish an unjust enrichment claim, Plaintiff must show (1) she conferred a benefit on IOC, (2) IOC appreciated the benefit, and (3) IOC accepted and retained the benefit under inequitable and/or unjust circumstances. To prevail on a quantum meruit claim, Plaintiff must show (1) she provided services to IOC at IOC's request or with IOC's acquiescence, (2) the services provided were of a certain and reasonable value, and (3) IOC refused to pay for such services after Plaintiff demanded payment. When responding to IOC's motion, Plaintiff, in a footnote, asked the Court to deny summary judgment on these claims for the same reasons the Court should deny summary judgment on Plaintiff's other claims. Other than the arguments and evidence discussed above, Plaintiff did not establish she conferred a benefit on IOC, IOC appreciated the benefit, or IOC accepted and retained the benefits under inequitable or unjust circumstances. Also, Plaintiff did not show IOC requested (or acquiesced to) her services, her services were of a certain and reasonable value, she demanded payment from IOC, and IOC refused to pay her. Accordingly, Plaintiff has failed to set forth a prima facie case of unjust enrichment or quantum meruit. Thus, the Court grants IOC's motion for summary judgment on these claims. IOC's Motion for Summary Judgment is granted with regard to all of Plaintiff's claims against IOC. A full-text copy of the District Court's December 10, 2018 Order is available at https://tinyurl.com/y7xa4tmp from Leagle.com. Cynthia D. Larson, Individually, and on Behalf of all Others similarly situated, Plaintiff, represented by Kelly L. McClelland, McClelland Law Firm, P.C., Kenneth Eugene Cox, McClelland Law Firm, P.C., Michael James Rahmberg, McClelland Law Firm, P.C. & Ryan L. McClelland, McClelland Law Firm, P.C. Isle of Capri Casinos, Inc. & IOC-Kansas City, Inc., d/b/a Isle of Capri Casino Kansas City, Defendants, represented by Amanda Colvin -- amanda.colvin@bclplaw.com -- Bryan Cave, LLP, Charles Bernard Jellinek -- cbjellinek@bclplaw.com -- Bryan Cave, LLP & Charles A. Weiss -- caweiss@bclplaw.com -- Bryan Cave LLP. JAMES SQUARE: Judge Approves Class Action Settlement ---------------------------------------------------- WSYR-TV reports that Onondaga County Supreme Court Judge Anthony Paris has approved a settlement between the class action plaintiffs and the current owner of the former James Square Nursing and Rehabilitation Centre, now renamed Bishop Health. The judge preliminarily approved the settlement over the summer, allowing the invitations to join the suit to go out to the affected patients or surviving relatives. Nearly all of the 532 patients invited opted in. Four opted out for personal reasons. Payout is based on days under the care of the current owners, with the average around $560. With the settlement's approval, a court order now oversees the required improvements at the facility, including staffing requirements and ten benchmarks for measuring quality of care, including reducing the number of patients hurt by falling. The bigger case against the former owners is still ongoing. [GN] JOSEPH UK: Dennis Suit Asserts ADA Violation -------------------------------------------- Joseph (UK) Inc is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. Joseph (UK) Inc, Defendant, Case No. 1:18-cv-07155 (E.D. N.Y., December 16, 2018). Joseph is a fashion brand and retail chain that was established in London by Moroccan entrepreneur Joseph Ettedgui and his family in 1972.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com KAISER PERMANENTE: Must Face Discrimination Class Action -------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reported that two black women who were fired from Kaiser Permanente after 16 years of employment may proceed with a class action that claims Kaiser hospitals have a policy of discriminating against black employees by firing them and denying them promotions. Lunell Gamble worked in Kaiser's human resources department for 16 years, until she was fired on false allegations of falsifying work records and acting aggressively toward her boss, she said in her lawsuit originally filed in Alameda County Superior Court in 2016. Ms. Gamble said she was routinely denied promotions despite her qualifications and clean record. In 2012, Gamble said her new supervisor Rosa Grajeda began harassing her. Among other things, Gamble said, Ms. Grajeda followed her into a bathroom and accused her of being lazy; scolded her in front of co-workers for laughing; and told her that the entire department had complained about her perfume, then acknowledged that she, Ms. Grajeda, was the only one who complained. Ms. Gamble said she received a "final written warning" in July 2014, with a negative evaluation of her performance and accusations of hostile behavior toward Ms. Grajeda. Despite making improvements and meeting with hospital officials about the discipline imposed on her, Kaiser fired Gamble within the month, she said. Sheila Kennedy, who was added to the case in 2018, also worked for Kaiser for 16 years in various positions in its chemical dependency and rehabilitation programs. She also claims she was denied promotions, transfers and pay raises that were given to other non-black employees and was eventually fired when she complained. Both women are over 40 and also claim that Kaiser discriminated against them based on their ages. On Dec. 18, U.S. District Judge Yvonne Gonzalez Rogers delivered a blow to Kaiser, rejecting the hospital's argument that the women had failed to allege plausible claims for class-wide discrimination, writing "plaintiffs' allegations of a completely arbitrary and subjective system for making employment decisions including promotions are sufficient to state a claim." Kaiser also claimed neither had identified a specific employment policy that created a disparate impact against African-Americans in the administrative charges they filed with the Equal Employment Opportunity Commission prior to the lawsuit. Judge Gonzalez Rogers rejected that argument as well, saying that while Gamble did not raise allegations that Kaiser discriminated against African-Americans in her charge, she can piggyback on Kennedy's claim. The women's attorney Jeremy Friedman said in an email that he is still reviewing the 27-page ruling, but believes it could have a significant influence on future employment cases involving race discrimination. "Judge Rogers' carefully considered opinion resolves a number of important legal questions under California and federal laws," he said. "We think it will be extremely helpful to the continuing litigation of the claims in this lawsuit, and will help guide other parties and courts addressing race discrimination and class actions in the employment setting." Attorneys for Kaiser could not be reached for comment on Dec. 18. The case is Gamble, et al. v. Kaiser Foundation Health Plan, Inc., et al., Case No. 17-cv-06621 (N.D. Cal.). A copy of the Order Granting in Part and Denying in Part Motion to Dismiss; Granting in Part and Denying in Part Motion to Strike; Denying Motion for Rule 11 Sanctions is available at: https://is.gd/w9TJEf KELLOG CO: Class Action Ruling May Spur More Frivolous Lawsuits --------------------------------------------------------------- Andrew Keshner, writing for Marketwach, reports that consumers shouldn't have to hunt for information on the side of a product's box when they're seeking the truth about certain nutrition claims, a federal appeals court ruled in a case about the wording on whole grain Cheez-Its. The Second Circuit smacked the Kellogg snack with a decision on Dec. 11 in a deceptive labeling class action lawsuit. The crackers in question said "made with whole grain" on the front of the box. But that wasn't the whole story. The aggrieved cracker consumers successfully argued that the nutrition facts panel on the side of the box, which listed enriched white flour as the main ingredient, "contradict, rather than confirm, [Kellogg's] 'whole grain' representations on the front of the box," the unanimous decision said. (Enriched white flour is flour that's been processed, but with some of the stripped-out nutrients returned back.) "The representation that a cracker is 'made with whole grain' would thus plausibly lead a reasonable consumer to conclude that the grain ingredient was entirely, or at least predominately, whole grain," Judge Pierre Leval wrote. The ruling will allow the case to move forward after a lower court tossed the matter last year. Michael Reese, the attorney for the suing consumers, said the decision "upholds the idea that consumers should be able to rely upon representations made on the front of food packages" instead of letting products tuck away disclaimers elsewhere on the product. He said the ruling put the Second Circuit, based in New York City, in line with the Ninth Circuit, on the West Coast, which made a similar ruling 10 years ago in a case about "fruit juice snacks" for toddlers. Kellogg said it did not comment on pending litigation. Foods are subject to various state and federal labeling laws, including mandated disclosures related to prevalent allergens like peanuts and shellfish. But critics on the consumer side have their issues with labels and point fingers at manufacturers and government regulators. Here, the court noted the disputed Cheez-It crackers came in two versions. One version said "Whole Grain" on the front, adding "MADE WITH 5G OF WHOLE GRAIN PER SERVING" on the front's bottom. Another version said "MADE WITH WHOLE GRAIN" and then "MADE WITH 8G OF WHOLE GRAIN PER SERVING." In both cases, nutrition facts on the side listed "enriched white flour" as the first ingredient, with whole wheat flour listed as either the second or third ingredient. The labeling was entirely accurate because the crackers were made with whole grain, lawyers for the food maker insisted. But Judge Leval said the argument was half-baked. He disagreed with the assertion it's not misleading to say a product is made with a certain ingredient if the ingredient's there. "Such a rule would permit Defendant to lead consumers to believe its Cheez‐Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour. Such a rule would validate highly deceptive marketing," he wrote. The Second Circuit ruling comes a week after the American Tort Reform Foundation dubbed New York one of the nation's top 10 "judicial hellholes," places where plaintiffs' lawyers and a friendly bench allegedly run roughshod on all types of businesses getting sued in civil courts. The national group gave New York the No. 3 spot in a report, partly for its big role in what the organization calls "the food court" where the main ingredient is "frivolous food lawsuits." The report cited research that New York accounted for 22% of food class-action cases filed in federal court while California -- the state getting the organization's award for the most hellish hall of justice -- had 36% of all food-related class action cases. The American Tort Reform Association said the ruling "opens the door for more of these frivolous food lawsuits to be filed in New York City." Mr. Reese said food lawsuits were serious matters, that can often get "noxious ingredients" removed; Reese noted he had one of the first cases 10 years ago to get trans fats removed from a food. "These cases are about nutrition, and they are very important for the public," he told MarketWatch. When it came to Cheez-Its, Mr. Reese said enriched flour was stripped its nutritional value and was "regarded as almost empty calories." [GN] LATIUM NETWORK: Must Face Class Action Over Initial Coin Offering ----------------------------------------------------------------- Jennifer Bennett, writing for BloombergLaw, reports that Latium Network Inc. can't duck a would-be class action over its initial coin offering because the company's tokens seem to pass the legal test for securities, a New Jersey federal judge said Dec. 10. The blockchain-based task platform faces an investor suit alleging its ICO was an unregistered offer and sale of securities. The first wave of putative class actions alleging unregistered ICOs violate federal securities laws began in late 2017. Since then, judges have been grappling with how to apply the 72-year-old test for securities to cryptocurrencies. Here, Latium said its LATX tokens weren't securities because they weren't part of a common enterprise and the investors didn't expect profits solely from Latium's efforts, according Judge Susan D. Wigenton's unpublished order. But the investors sufficiently alleged that ICO funds were "pooled to develop and maintain" the company's platform, Ms. Wigenton said, refusing to dismiss the case. The investors also provided enough facts to suggest that they expected to profit from their purchase of LATX tokens, the order said. Latium "stressed the limited supply of tokens," according to the judge. The company also touted the tokens as a "unique investment opportunity," the judge said, quoting the company's white paper. Although investors could eventually use the tokens to pay for tasks through Latium's platform, the platform wasn't fully functional yet, the judge said. The investors sufficiently alleged that they were dependent on Latium to promote the ICO and finish building the platform, according to the order. Calcagni & Kanefsky LLP represented the investors. Lewis Brisbois Bisgaard & Smith LLP represented Latium. The case is Solis v. Latium Network Inc., 2018 BL 456329, D.N.J., No. 18-10255, unpublished 12/10/18. [GN] LIFETOUCH INC: Eighth Cir. Appeal Filed in Vigeant ERISA Suit ------------------------------------------------------------- Plaintiffs Lawrence Anderson, Amanda Eckelbecker, Douglas Eckelbecker, Elizabeth Milane, Rodney Uting, Deborah Vigeant and Rhonda Wood filed an appeal from a court order filed November 7, 2018, and judgment filed November 8, 2018, in their lawsuit styled Deborah Vigeant, et al. v. Michael Meek, et al., Case No. 0:18-cv-00577-JNE, in the U.S. District Court for the District of Minnesota. The appellate case is captioned as Deborah Vigeant, et al. v. Michael Meek, et al., Case No. 18-3616, in the United States Court of Appeals for the Eighth Circuit. As reported in the Class Action Reporter on Dec. 4, 2018, Judge Joan N. Ericksen dismissed with prejudice the case. Lifetouch is a professional photography company focused primarily on school pictures. Until its recent sale to Shutterfly, Lifetouch was 100% owned by its employees through an Employee Stock Ownership Plan ("ESOP") sponsored by Lifetouch. Lifetouch made all contributions to the Plan and the Plan invested primarily in shares of Lifetouch stock. According to the Summary Plan Description, Defendant Lifetouch -- the Plan Administrator -- was responsible for managing the Plan and communicating with Plan participants. Under the terms of the Trust Agreement, Lifetouch's Directors appointed a Trustee, who had exclusive authority to manage the Plan assets in the trust. Defendants Ted Koenecke and Glenn Elo, Lifetouch senior executives, served as the Trustees through May 2017. Starting in 2015, Lifetouch struggled financially as new technologies transformed the professional photography industry and consumer tastes. In 2015 and 2016, Lifetouch suffered repeated financial setbacks. Lifetouch closed J.C. Penney and Target brick-and-mortar portrait studio locations. In November 2015, Lifetouch closed an entire production facility in North Carolina and laid off 206 employees. Additionally, several Lifetouch senior executives retired, culminating in the retirement of then-CEO Paul Harmel in July 2016. In August of 2016, the StarTribune, a major Minnesota newspaper, published an article about Lifetouch's struggles to stay relevant, adapt to modern technology, and satisfy consumer needs. During this time, Lifetouch's stock value decreased. Its financial troubles continued. On Jan. 30, 2018, CEO Michael Meek explained in a StarTribune article that Lifetouch had put itself up for sale because growth had slowed, and Lifetouch was not generating enough cash flow to invest in new technologies and other areas of business. That same month, Shutterfly announced it was acquiring Lifetouch for $825 million plus unspecified cash and investments. After receiving a fairness opinion from a third-party financial advisor, Trustee Newport Trust reviewed and approved the sale price. Lifetouch's sale terminated the Plan and commenced the distribution of proceeds to participants. The Plaintiffs brought a class action to recover the hundreds of millions of dollars lost when Lifetouch's stock value declined. Under Section 502 of the Employee Retirement Income Security Act ("ERISA"), the Plaintiffs claim that this loss resulted from breaches of fiduciary duties by Lifetouch, Lifetouch's Board of Directors, and Lifetouch Trustees directly responsible for managing the ESOP. The Plaintiffs allege two breach of prudence claims. First, they claim that that the Trustees and other senior executives manipulated data provided to the independent appraiser to inflate Lifetouch's stock value in 2015 and 2016. Second, they assert that the Defendants should have investigated the evident discrepancy between the 2015 and 2016 valuations and Lifetouch's financial reality and removed imprudent investments. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on or before January 22, 2019; -- Appendix is due on January 30, 2019; -- Brief of Appellants Lawrence Anderson, Amanda Eckelbecker, Douglas Eckelbecker, Elizabeth Milane, Rodney Uting, Deborah Vigeant and Rhonda Wood is due on January 30, 2019; -- Appellee brief is due 30 days from the date the Court issues the Notice of Docket Activity filing the brief of appellant; and -- Appellant reply brief is due 14 days from the date the Court issues the Notice of Docket Activity filing the appellee brief.[BN] The Plaintiffs-Appellants are represented by: Samuel E. Bonderoff, Esq. Edward H. Glenn, Esq. Justin Sauerwald, Esq. Jacob H. Zamansky, Esq. ZAMANSKY, LLC 50 Broadway, 32nd Floor New York, NY 10004 Telephone: (212) 742-1414 E-mail: samuel@zamansky.com eglenn@zamansky.com justin@zamansky.com jake@zamansky.com - and - Douglas J. Nill, Esq. NILL, PLLC 120 S. Sixth Street, Suite 2050 Minneapolis, MN 55402-1801 Telephone: (612) 573-3669 E-mail: dnill@farmlaw.com Defendants-Appellees Michael Meek, Paul Harmel, Robert P. Larson, Donald Goldfus, John Anderson, Bruce Nicholson, Bernie Alrich, Ted Koenecke, Glenn Elo and Lifetouch, Inc., are represented by: Nicholas J. Bullard, Esq. Andrew J. Holly, Esq. Stephen P. Lucke, Esq. DORSEY & WHITNEY LLP 50 S. Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 Telephone: (612) 340-2600 E-mail: bullard.nick@dorsey.com holly.andrew@dorsey.com lucke.steve@dorsey.com Defendant-Appellee Paul Harmel is represented by: Lars Golumbic, Esq. GROOM LAW GROUP 1701 Pennsylvania Avenue, N.W., Suite 1200 Washington, DC 20006-0000 Telephone: (202) 857-0620 E-mail: lcg@groom.com Defendants-Appellees Ted Koenecke and Glenn Elo are represented by: Theodore M. Becker, Esq. MCDERMOTT WILL & EMERY 444 W. Lake Street, Suite 4000 Chicago, IL 60606-0029 Telephone: (312) 372-2000 E-mail: tbecker@mwe.com Defendant-Appellee Lifetouch, Inc., is represented by: Heather Lehman Kriz, Esq. Cardelle B. Spangler, Esq. WINSTON & STRAWN LLP 35 W. Wacker Chicago, IL 60601 Telephone: (312) 558-5600 E-mail: hkriz@winston.com cspangler@winston.com MARIN, CA: Perez Moves to Certify 3 Classes of Social Workers ------------------------------------------------------------- The Plaintiffs in the lawsuit entitled VERONICA PEREZ; ALICIA BALENCIA; CLARISSA CHUI; JOLIE CLARK; SARAH COLTON; DIELLY DIAZ; LAURA ESTRADA-SHEPHERD; CHELSEA GEYER; ANDREA GONZALEZ; ROSIE HERNANDEZ; TERESA HIGUERA-TABASSI; ALANA KAPUST; LORRY KRONE; ERIN LYNCH; JILL MAIER; MILA MALDONADO; DULCE McALLISTER; SASHA CHELSEA McGOWAN; HALEY MEARS; TONY MILANI; MOLLY MILLER; LOREN ROTHBERRY; KRISTIN SHORE; DAVID SLOTTERBACK; DANIEL SOLIS; and TRACY VEGA v. COUNTY OF MARIN; and DOES 1 through 10, inclusive, Case No. 3:18-cv-04938-EDL (N.D. Cal.), move the Court for an order conditionally certifying this case as a representative collective action under the Fair Labor Standards Act of 1938. The three opt-in plaintiff classes are defined as: * Class A: All persons employed by the County of Marin as child welfare social workers after August 14, 2015, who were in positions classified as exempt under the Fair Labor Standards Act, and who were not compensated for overtime worked; * Class B: All persons employed by the County of Marin as supervising child welfare social workers after August 14, 2015, who were in positions classified as exempt under the Fair Labor Standards Act, and who were not compensated for overtime worked; and * Class C: All persons employed by the County of Marin as child welfare senior support services workers after August 14, 2015, who were in positions classified as exempt under the Fair Labor Standards Act, and who were not compensated for overtime worked. The Plaintiffs also ask the Court to (i) require Defendant County of Marin to provide the names, last known mailing and e-mail addresses, dates of employment and job classifications for all absent class members within five days of the issuance of the order of conditional certification; and (ii) approve the form and manner of notice to the absent class members. The Court will commence a hearing on February 5, 2019, at 9:00 a.m., to consider the Motion.[CC] The Plaintiffs are represented by: David W. Kesselman, Esq. Trevor V. Stockinger, Esq. Kara McDonald, Esq. KESSELMAN BRANTLY STOCKINGER LLP 1230 Rosecrans Avenue, Suite 690 Manhattan Beach, CA 90266 Telephone: (310) 307-4555 Facsimile: (310) 307-4570 E-mail: dkesselman@kbslaw.com tstockinger@kbslaw.com kmcdonald@kbslaw.com - and - Michael D. McLachlan, Esq. Edward M. Chavez, Esq. McLACHLAN LAW, APC 2447 Pacific Coast Highway, Suite 100 Hermosa Beach, CA 90254 Telephone: (310) 954-8270 Facsimile: (310) 954-8271 E-mail: mike@mclachlan-law.com edward@mclachlan-law.com MARRIOTT HOTEL: Hanna Seeks to Certify Employees Class Under FLSA ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled SAMEH HANNA, Individually and on behalf of others similarly situated v. MARRIOTT HOTEL SERVICES, INC., MARRIOTT INTERNATIONAL, INC. And OPRYLAND HOSPITALITY, LLC, Case No. 3:18-cv-00325 (M.D. Tenn.), asks the Court to enter an order conditionally certifying a proposed collective of Banquet Staff who: a. worked over 40 hours in any work week for Defendants in the United States during the Relevant Period; b. whom Defendants classified as exempt pursuant to 29 U.S.C. Section 207(i); and c. whom Defendants compensated similarly to the way Plaintiff was paid (the "Collective"). Mr. Hanna also asks the Court to order the Defendants to produce contact information for all potential Collective members and to authorize the issuance of the Proposed Court-Authorized Notice, Proposed Consent to Join Form, and Proposed Reminder Notice to all Collective members.[CC] The Plaintiff is represented by: Charles P. Yezbak, III, Esq. YEZBAK LAW OFFICES PLLC 2002 Richard Jones Rd., Suite B-200 Nashville, TN 37215 Telephone: (615) 250-2000 E-mail: yezbak@yezbaklaw.com - and - Gregory A. Owens, Esq. Wolfgang Florin, Esq. FLORIN GRAY BOUZAS OWENS, LLC 16524 Pointe Village Drive, Suite 100 Lutz, FL 33558 Telephone: (888) 814-6199 E-mail: greg@fgbolaw.com wolfgang@fgbolaw.com One of the Plaintiff's attorneys certifies that notice was sent to these attorneys of record: Andrew S. Naylor, Esq. Robert E. Boston, Esq. WALLER LANSDEN DORTCH & DAVIS, LLP Nashville City Center 511 Union Street, Suite 2700 Nashville, TN 37219 Telephone: (615) 244-6380 E-mail: andy.naylor@wallerlaw.com bob.boston@wallerlaw.com - and - Ariel D. Cudkowicz SEYFARTH SHAW LLP 2 Seaport Lane, Suite 300 Boston, MA 02210 Telephone: (617) 946-4884 E-mail: acudkowicz@seyfarth.com - and - Cheryl A. Luce, Esq. SEYFARTH SHAW LLP 233 S. Wacker Dr., Suite 8000 Chicago, IL 60606 Telephone: (312) 460-5838 E-mail: cluce@seyfarth.com MARRIOTT INT'L: Gates Sues Over Failure to Secure and Safeguard PII ------------------------------------------------------------------- Kerry Gates, individually and on behalf of all others similarly situated, Plaintiff, v. Marriott International, Inc., Defendant, Case No. 8:18-cv-03956-CBD (D. Md., December 21, 2018) is class action against Marriott International, Inc., parent of Starwood Hotels & Resorts Worldwide, LLC, for its failure to secure and safeguard hundreds of millions of Starwood's customers' personally identifiable information ("PII"), including highly sensitive information such as passport information, credit and debit card numbers, and other payment card data. Starwood collected this information at the time customers registered on its website, checked in at any of its properties, or used its loyalty program. In 2014 (or even earlier), hackers broke into Starwood's information systems to steal confidential and sensitive guest data for hundreds of millions of customers. The hackers' efforts continued through early September 2018, allowing the hackers access to PII for Starwood guests for at least four years. Incredibly, despite the Data Breach first occurring at least four years ago, neither Starwood nor Marriott discovered the breach until September 2018. Even then, Marriott -- responsible for Starwood's systems since the completion of its acquisition -- failed to notify customers about the breach until nearly three months later on November 30, 2018, asserts the complaint. Marriott disregarded Plaintiff's and Class Members' rights by intentionally, willfully, recklessly, or negligently failing to take adequate and reasonable measures to ensure its data systems were protected, failing to take available steps to prevent and stop the breach from ever happening, and failing to disclose to its customers the material facts that it did not have adequate computer systems and security practices to safeguard customers' confidential and sensitive information, says the complaint. Plaintiff, Kerry Gates, is a resident of the state of Florida. Ms. Gates is and was a Starwood Preferred Guest Member. Marriott International, Inc. is a Delaware corporation with its principal place of business in Bethesda, MD. Marriott primarily derives its revenues from hotel and restaurant operations, and it operates more than 6,700 properties across 130 countries and territories. Its brands include Marriott, Starwood, and The Ritz-Carlton. Starwood, which operates popular properties such as Westin, Sheraton, and St. Regis, is a wholly-owned subsidiary of Defendant Marriott.[BN] The Plaintiff is represented by: Glenn Ivey, Esq. PRICE BENOWITZ LLP 409 Seventh Street NW, Suite 200 Washington, DC 20004 - and - Michael P. Canty, Esq. Brian R. Morrison, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Phone: 212-907-0700 Facsimile: 212-818-0477 Email: mcanty@labaton.com bmorrison@labaton.com - and - Mark S. Goldman, Esq. GOLDMAN SCARLATO & PENNY, P.C. 161 Washington Street, Suite 1025 Conshohocken, PA 19428 Phone: 484-342-0700 Facsimile: 484-580-8747 Email: goldman@lawgsp.com MDL 2804: Judge Refuses to Dismiss Racketeering Claims ------------------------------------------------------ Matt Reynolds, writing for Courthouse News Service, reported that a federal judge in Ohio refused on Dec. 19 to dismiss racketeering claims against Purdue Pharma and other drug manufacturers, distributors and pharmacies in a massive collection of cases blaming them for the nation's opioid epidemic. The claims of hundreds of cities and counties against opioid makers including Purdue and Johnson & Johnson have been consolidated in Cleveland federal court. U.S. District Judge Dan Polster is overseeing the case. Judge Polster wrote in a 39-page ruling that it "remains to be seen" whether the cities and counties can prove that the defendants are responsible for the nationwide crisis. Nevertheless, the plaintiffs should be given the opportunity to test their claims, he wrote. "It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated," Judge Polster wrote. The judge continued, "Plaintiffs allege that defendants have contributed to the addiction of millions of Americans to these prescription opioids and to the foreseeable result that many of those addicted would turn to street drugs. While these allegations do not fit neatly into the legal theories chosen by Plaintiffs, they fit nevertheless." The plaintiffs' lead attorneys Paul Farrell, Paul Hanly and Joseph Rice foresee a day of reckoning for the drug makers, distributors and pharmacies. "In 2019, we expect opioid manufacturers, distributors and pharmacies will finally be held accountable for the public crisis they wrought when they fraudulently marketed and over-distributed addictive and dangerous opioids," they said in a joint statement. Purdue did not respond to requests for comment. A Johnson & Johnson spokesman deferred comment to a Janssen Pharmaceuticals spokesman. Janssen said in an emailed statement that it will continue to fight the litigation and that its marketing was "appropriate and responsible." "The labels for our prescription opioid pain medicines provide information about their risks and benefits, and the allegations made against our company are baseless and unsubstantiated," the company said. The cities and counties accuse the defendants of laying the foundation for today's epidemic by encouraging doctors and pharmacies to overprescribe opioids and exaggerating how safe they were to use. Deceptive marketing practices and inaction led millions of Americans on a path to addiction and fed a black market for opioid drugs, the cities and counties claim. They want to claw back the billions they say they have lost from tackling the public health crisis. The defendants asked the judge to dismiss the racketeering claims brought by the cities and counties The drug makers, distributors and pharmacies had claimed they should not be held liable for those claims and that the cities and counties lacked legal standing to move forward. Judge Polster rejected the arguments and ordered the defendants to file court papers answering the plaintiffs' second amended complaint by Jan. 15. Trial in the case is set for September 2019. Other defendants include opioid distributors McKesson and Cardinal Health. The case is In Re: National Prescription Opiate Litigation, Case No. 17-md-02804 (N.D. Ohio). A copy of the Opinion and Order is available at: https://is.gd/7rOLP3 MIDLAND CREDIT: Geisinsky Files Consumer Credit Class Suit ---------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Yisroel Geisinsky, on behalf of himself and all other similarly situated consumers, Plaintiff v. Midland Credit Management, Inc., Midland Funding LLC and Encore Capital Group, Inc., Defendants, Case No. 1:18-cv-07265 (E.D. N.Y., December 20, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Midland Credit Management, Inc., a licensed debt collector, assists customers in resolving past-due financial obligations through various education and payment plans. The company was founded in 1953 and is based in San Diego, California. Midland Credit Management, Inc. operates as a subsidiary of Encore Capital Group, Inc.[BN] The Plaintiff appears PRO SE. MIDLAND FUNDING: Court Grants Bid to Amend Velazquez FDCPA Suit --------------------------------------------------------------- The United States District Court for the District of Idaho issued a Memorandum Opinion and Order granting Plaintiffs' Motion to Amend the Complaint in the case captioned RAMON VELAZQUEZ, Plaintiff, v. MIDLAND FUNDING, LLC, a Delaware limited liability company, Defendant. Case No. 1:18-cv-00043-CWD. (D. Idaho). The Plaintiff's complaint against Defendant Midland Funding LLC included one count for misrepresentation under the Fair Debt Collection Practices Act and one count for abuse of process. The Defendant contends the Plaintiff's representation that the class claims were not known until certain discovery was conducted in this case is not true, as the class claims should have been well known due to the public nature of the Citibank consent order, and the fact that nothing was learned during the Defendant's deposition that was not already apparent from that consent order. Accordingly, the Defendant asserts that, because the factual basis for the class claims should have been known, the filing of the proposed amended complaint on the eve of the deadline is in bad faith or was pursued with undue delay. The Court holds that the Defendant's reliance upon Fidelity Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1438 (9th Cir. 1986), for the proposition that the motion should be denied when the factual bases of the claims were known prior to previous amendments, is misplaced. There, the plaintiff sought leave to file a fourth amended complaint after the court had announced its decision to grant summary judgment for the defendant. The court denied the motion to amend, finding that the new claims merely restated earlier claims and that permitting amendment would be prejudicial. Upon review, the Court of Appeals for the Ninth Circuit agreed, finding that the plaintiff was merely restating its prior claims under new labels when the factual bases of the claims were known to the plaintiff long before. Further, given the posture of the case, the court found also that the defendant would be prejudiced if the motion to amend was granted. Such is not the case here. First, the posture of this case is quite different than in Fidelity, because dispositive motions have not been filed, and Plaintiff filed the motion to amend prior to the agreed upon and Court imposed deadline. And second, Defendant's argument that the factual bases of the claims based upon the consent order cuts both ways the consent order and its terms would have been equally available to Midland Credit and Defendant, and the complaint alleges also that Defendant should have known of the amounts Citibank forgave under the terms of the asset purchase agreement. Last, it appears disingenuous for Defendant to argue that the proposed addition of Midland Credit as a defendant is not undertaken in bad faith or with undue delay, yet the class claims are. The Defendant raises two objections. First, the Defendant contends the allegations related to the classes proposed by the Plaintiff do not provide sufficient information suggesting that a class actually exists. Second, the Defendant asserts the definitions of the two classes impermissibly require a determination of the merits prior to ensuring the existence of a class. The Defendant explains that, because the classes are defined as either individuals whom the Defendant or Midland Credit impermissibly sued for amounts charged off by Citibank, or to whom Defendant or Midland Credit mailed 1099-C's that included costs and service fees not allowed by contract or statute, the class definitions erroneously require a finding of liability. The Plaintiff argues that the facts concerning the individuals comprising the two classes have been adequately pled, and any deficiencies concerning the class descriptions can be remediated at the time class certification is sought. The Court finds the factual allegations have been adequately plead and are sufficiently detailed to provide notice to Defendant and Midland Credit as to the claims against them, including the class claims. Plaintiff alleges that Defendants misrepresented the amounts owed by Citibank cardholders like Plaintiff and later misrepresented the debt forgiveness amounts in 1099-C's issued to debtors upon resolution of underlying debt collection actions. The allegations in the proposed second amended complaint do not differ materially from those asserted in the first amended complaint or in the initial complaint. The Plaintiff simply seeks to expand the same factual assertions applicable to his situation to individuals similarly situated. Defendant has not moved to dismiss the first amended complaint on the grounds of factual deficiency under Rule 8 or Rule 12(b)(6). Defendant has therefore not carried its burden to demonstrate how the facts as pled in the proposed second amended complaint fail to state class claims under the FDCPA and under state law for abuse of process on behalf of those similarly situated to the Plaintiff. Because this matter is in early stages of development, the Court finds it would be inappropriate to rule at this time that the case should not proceed as a class action, especially given the opportunity exists to amend the class descriptions at the close of discovery. Should the Court reach the question of certifying a class, and later find that Plaintiff has not or cannot adequately identify a class or classes which he can properly represent, the Court may reconsider its preliminary decision to allow the case to proceed as a class action. A full-text copy of the District Court's December 10, 2018 Memorandum Decision and Order is available at https://tinyurl.com/yc96ohn6 from Leagle.com. Ramon Velazquez, Plaintiff, represented by Ryan Adam Ballard, Ballard Law, PLLC. Midland Funding, LLC, a Delaware limited liability company, Defendant, represented by Fredric V. Shoemaker -- fshoemaker@parsonsbehle.com -- Parsons Behle & Latimer & Jason R. Mau -- jmau@parsonsbehle.com -- Parsons Behle & Latimer. MISSOURI: 8th Cir. Affirms Class Certification in Postawko ---------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, issued an Opinion affirming the judgment of the District Court granting Plaintiffs' Motion for Class Certification in the case captioned Michael Postawko; Christopher Baker; Michael C. Jamerson Plaintiffs-Appellees, v. Missouri Department of Corrections; Corizon LLC; Trinidad Aguilera; John Williams; FNU Stamps; Thomas Pryor; FNU Proctor; FNU Hardman; FNU Davison; Paul Jones; FNU Stieferman; T. Bredeman; Julie Fipps; FNU Cofield; FNC Rucker; Jamie Campbell; Dawn Baker; Geeneen Wilhite; Adrienne Hardy; Bonnie Boley; Amanda Yates; Julie LNU; J. Doe; Anne Precythe, in her official capacity as Director of the Missouri Department of Corrections Defendants-Appellants, The Arc of the United States; Center for Children's Law and Policy; Judge David L. Bazelon Center for Mental Health Law; Disability Rights Arkansas, Inc.; Human Rights First; Impact Fund; National Disability Rights Network; National Immigrant Justice Center; National Juvenile Defender Center; Missouri Protection & Advocacy Services; Lawyers' Committee for Civil Rights Under Law Amici on Behalf of Appellee(s). No. 17-3029. (8th Cir.). Michael Postawko, Christopher Baker, and Michael Jamerson sought class certification for their claims alleging that the Missouri Department of Corrections (MDOC) and various related defendants violated the Eighth Amendment and Title II of the Americans with Disabilities Act (ADA) by providing inadequate medical screening and care for chronic Hepatitis C (HCV) viral infections. The district court granted certification of a class comprised of the following: All those individuals in the custody of MDOC, now or in the future, who have been, or will be, diagnosed with chronic HCV, as that term is defined medically, but who are not provided treatment with direct acting antiviral drugs. The district court relied on evidence submitted by both the Plaintiffs and the Defendants to support its certification decision. For example, the court found that the size of the proposed class was likely to number at least 2,000 persons, relying on evidence from one of the Defendants' experts to determine how many of the roughly 5,000 inmates with HCV were likely to develop chronic HCV. The court found that evidence submitted by the Defendants bolstered Plaintiffs' typicality arguments by confirming the Named Plaintiffs' allegations that they were diagnosed with chronic HCV and had not received treatment with DAA drugs. To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy one of the three subsections of Rule 23(b). Plaintiffs carry the burden of showing that they have met those requirements. Rule 23(a) Rule 23(a) requires plaintiffs to show that the class satisfies the requirements numerosity, commonality, typicality, and fair and adequate representation. The Defendants challenge the district court's conclusion that the numerosity, commonality, and typicality requirements were satisfied. The district court did not abuse its discretion in concluding that the numerosity requirement was satisfied. Given the evidence before the district court on the number of people suffering from chronic HCV under the MDOC's care, the district court's finding that the class was likely to include at least 2,000 people was not clearly erroneous. A class of that size would make joinder of all members impracticable. Here the district court ably identified common questions whose answers were apt to drive the resolution of the litigation. For example, the members of the proposed class must show the Defendants acted with deliberate indifference to an inmate's serious medical needs to succeed on their Eighth Amendment claim. The Defendants argue that the unique medical condition of each member of the class means that resolving their claims will require a highly individualized inquiry. This misunderstands the nature of the class's claims. Plaintiffs assert that the failure of the Defendants to screen properly for a life-threatening disease and provide appropriate treatment exposes all inmates suffering from chronic HCV to the same unconstitutional injury. While a putative class seeking damages for such claims might struggle to satisfy Rule 23(a)(2), a class certified under Rule 23(b)(2) seeking only injunctive and declaratory relief suffers no such difficulty.5Here the physical symptoms eventually suffered by each class member may vary, but the question asked by each class member is susceptible to common resolution. The typicality requirement was also satisfied. Typicality is fairly easily met so long as other class members have claims similar to the named plaintiff. The Defendants argue that the Named Plaintiffs' claims require individualized inquiries, such that their claims are not typical of the class. This argument overlaps significantly with their arguments on commonality. The Court therefore rejects the argument for similar reasons. In this suit for prospective injunctive and declaratory relief, the potential for minor factual variations does not undermine the district court's conclusion that the violation allegedly suffered by the Named Plaintiffs is typical of that suffered by the class as a whole. The district court did not clearly err in finding that the Named Plaintiffs are exposed to the same alleged risk under the Defendants' policies as all other inmates suffering from HCV. The Named Plaintiffs' claims are therefore typical of the class. Rule 23(b)(2) The Plaintiffs must demonstrate that the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. For certification to be appropriate, the class claims must be cohesive. Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. This case involves claims that the Defendants uniformly applied a screening and treatment policy for HCV that was so inadequate that it amounted to a constitutional violation as to each and every incarcerated person who either suffered or will suffer from HCV. If those claims are true, they describe a party acting on grounds generally applicable to the class. Whether or not the class will be able to show that each proposed injunction is warranted on the merits is not before us. Rather, we are tasked only with determining whether the district court abused its discretion by holding that the proposed class action satisfies the requirements of Rule 23(b)(2). The district court's modified proposed injunctions identify relief that would respond to the alleged harm on a uniform, generally applicable basis. While the Defendants may continue to challenge the existence and parameters of the alleged policy at trial, at this stage they are unable to show that the district court abused its discretion in holding that sufficient evidence of a common policy existed to comply with Rule 23(b)(2). Accordingly, the Court affirms the certification decision of the district court. A full-text copy of the Eighth Circuit's December 6, 2018 Opinion is available at https://tinyurl.com/y946vzj4 from Leagle.com. Omri E. Praiss, for Plaintiff-Appellee. Jessica L. Liss -- Jessica.Liss@jacksonlewis.com -- for Defendant-Appellant. Myesha K. Braden, 601 D St SE, Criminal Section Phb 5th Floor, Washington, DC, 20003-2715, for Amicus on Behalf of Appellee. Anthony E. Rothert, 906 Olive St, Ste 1130, St. Louis, MO 63101-1432, for Plaintiff-Appellee. Dean John Sauer, 1523 New Hampshire Avenue, NorthWest, Washington, DC 20036, for Defendant-Appellant. Jon M. Greenbaum -- jgreenbaum@lawyerscommittee.org -- for Amicus on Behalf of Appellee. Andrew Ehrlich -- aehrlich@paulweiss.com -- for Amicus on Behalf of Appellee. Gillian R. Wilcox, 3601 Main StreetKansas City, MO 64111, for Plaintiff-Appellee. Carrie Lynne Kinsella -- Carrie.Kinsella@jacksonlewis.com -- for Defendant-Appellant. NCAA: No Decision Yet on Pay Restrictions Issue ----------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that a federal judge in Oakland gave no indication on Dec. 18 whether she will loosen or even abolish longstanding National Collegiate Athletic Association restrictions on pay for student-athletes, even as she stated the restrictions violate federal antitrust law. The violation will figure prominently in U.S. District Judge Claudia Wilken's decision capping a September bench trial over class action claims by Division I football and basketball players accusing the NCAA and its conferences of funneling maximum profits to themselves while the students were left scrambling to pay for food and rent. Judge Wilken presented the question at the heart of her inquiry in a hearing on Dec. 18 -- how should she weigh the anti-competitive and pro-competitive effects of the NCAA's pay restrictions to determine their impact on competition when "these two concepts aren't particularly monetized" in this case? "It seems one should balance the anti-competitive conduct against the pro-competitive justification just to see if it's meaningful," Judge Wilken said. "In other words, if you had an egregious anti-competitive violation against a tiny pro-competitive justification, does this pro-competitive justification justify the violation?" The seemingly arcane legal question will dictate the terms of any injunction Judge Wilken issues loosening or eliminating the rules -- or if she issues an injunction at all. The case stretches back to 2014, when former Clemson University football player Martin Jenkins sued the NCAA and its conferences for anti-competitive conduct and an injunction eliminating caps on compensation for student-athletes. Now encompassing 53,000 class members, the plaintiffs reason the individual conferences will step in under an injunction to enact their own pay restrictions to preserve amateurism in college sports, which is valued by many fans and believed to be a significant revenue driver. But the NCAA predicts wealthier schools in this scenario will begin offering potential team members "millions of dollars" to play for them, essentially turning them into professional athletes and hurting revenues as fans turned off by professional-grade student salaries stop buying tickets to games and television networks pay conferences less money to broadcast them. In September, Judge Wilken heard three weeks of testimony, including testimony from three former student-athletes who are plaintiffs in the case. A former West Virginia University football player testified his scholarship only covered 10 months of rent and that he was routinely hungry because he couldn't afford to buy food. A University of California at Berkeley basketball player said she skipped classes because she was too hungry to concentrate for lack of food. On cross-examination, it emerged that both students had misspent their scholarship money. Returning to court for closing arguments on Dec. 18, the plaintiffs asked Judge Wilken to make her decision using a four-step balancing test, a request the NCAA vehemently opposed. Pushing instead for a three-step test, the league's attorneys argued that adding a fourth step will gift the plaintiffs a second chance to win an injunction if they fail to show earlier in the test either that the pay limits aren't "reasonably" necessary for achieving the NCAA's pro-competitive goals of preserving amateurism and integrating student-athletes into campus life, or that the goals can be achieved in a "less restrictive" way through an injunction. They contend the plaintiffs will fail because all three of their proposed injunction schemes will "destroy the identified pro-competitive benefits" by permitting "unlimited pay-for-play." The NCAA's goals "should be able to be replicated with less restrictive means," league attorney Beth Wilkinson -- bwilkinson@wilkinsonwalsh.com -- of Wilkinson Walsh & Eskovitz, said on Dec. 18. "The reason they can't do that is because there is no less restrictive alternative that would be just as effective." Hitting back, class attorney Steve Berman scoffed at the idea that capping student-athlete compensation to the cost of attendance helps integrate players into the university community. "This whole notion of integration is a myth; there is no integration," said Mr. Berman, who is with Hagens Berman Sobol Shapiro. "The NCAA knows the time demands on these kids is so great, they're spending 40 to 50 hours a week just on sports, then they spend another 40 on school, so they have no time to be integrated." He added, "If they cared about integration, for example, they could pass national rules that kids have to live in dorms, but they don't." Also representing the class, Winston & Strawn attorney Jeffrey Kessler disputed the contention that the NCAA's conferences won't impose their own pay restrictions under an injunction. "I do believe they can be trusted to do the right thing," he said. Ms. Wilkinson attacked this argument on rebuttal, telling the judge, "You're not going to say that in your order, ‘The conferences must have rules.' They can do whatever they want." She also addressed Judge Wilken's question about whether student-athletes are more likely to succeed in school if they have "more money in their pocket." Though she didn't directly answer the question, Wilkinson said athletes have been getting extra money in the form of academic and graduation-incentive payments since the NCAA began relaxing pay restrictions in the wake of the Ninth Circuit's 2015 ruling in a similar case, O'Bannon v. NCAA. "They are getting some more" money, Ms. Wilkinson said. "Isn't that what Alternative 2 is?" She added: "There has been no impact on consumer demand," referring to the additional compensation. "Why would you get in the middle of that?" Judge Wilken concluded the hearing after listening to about three hours of arguments, remarking she still "had questions." She said she will issue a ruling at a later date. OLIPHANT FINANCIAL: Vedernikov Sues over Debt Collection Practices ------------------------------------------------------------------ IGOR VEDERNIKOV, individually and on behalf of all others similarly situated, the Plaintiff, vs. OLIPHANT FINANCIAL, LLC, and JOHN DOES 1-25 Defendants, Case No. 3:18-cv-17365 (D.N.J., Dec. 18, 2018), seeks damages and declaratory relief under the Fair Debt Collections Practices Act. According to the complaint, some time prior to April 23, 2018, an obligation was allegedly incurred to WebBank. The WebBank obligation arose out of a transaction where Plaintiff used WebBank funds to purchase items which were primarily for personal, family or household purposes. The alleged WebBank obligation is a "debt" as defined by 15 U.S.C. section 1692a(5). WebBank is a "creditor" as defined by 15 U.S.C. section 1692a(4). 25. WebBank, or a subsequent owner of the debt, contracted with the Defendant to collect the alleged debt. The Defendant collects and attempts to collect debts incurred or alleged to have been incurred for personal, family or household purposes on behalf of creditors using the United States Postal Services, telephone and internet, the lawsuit says. Oliphant Financial Group, LLC engages as a collection agency for collecting accounts receivable on behalf of its clients. The company was incorporated in 2005.[BN] Attorneys for Plaintiff: Yaakov Saks, Esq. STEIN SAKS, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: 201-282-6500 Facsimile: 201-282-6501 E-mail: ysaks@steinsakslegal.com OVERNIGHT CLEANSE: Garcia Sues Over Unpaid Overtime Wages --------------------------------------------------------- Edgar Antonio Montoya Garcia, and all others similarly situated, Plaintiff, v. Overnight Cleanse, LLC, Gesu Restaurant Group, Inc. also d/b/a Gesu Restaurant Group LLC, Sunu Samuel a/k/a Sunny Samuel, Josefina Murillo, and Alejandro Murillo, Case No. 3:18-cv-03386-S (N.D. Tex., December 21, 2018) is an action arising under the Fair Labor Standards Act. Plaintiff worked an average of 88 hours per week for Defendants for which he was paid an average hourly rate of $10.50 per hour, but was not paid the extra half-time rate for all hours worked above 40 hours in a week as required by the Fair Labor Standards Act. Plaintiff therefore claims the unpaid half-time rate for each overtime hour worked above 40 in a workweek. Defendants willfully and intentionally refused to pay Plaintiff's overtime wages as required by the Fair Labor Standards Act as Defendants knew of the overtime requirements of the Fair Labor Standards Act and recklessly failed to investigate whether those Defendants' payroll practices were in accordance with the Fair Labor Standards Act. Plaintiff requests double damages and reasonable attorney fees from Defendants jointly and severally, pursuant to the FLSA as cited above, to be proven at the time of trial for all overtime wages still owing from Plaintiff's entire employment period with those Defendants or as much as allowed by the FLSA along with court costs, interest, and any other relief that this Court finds reasonable under the circumstances, says the complaint. The Plaintiff was a resident of Dallas County, Texas during a majority of the claim period. Overnight Cleanse, LLC is a business that regularly transacts business within the Northern District of Texas. Overnight Cleanse, LLC was the FLSA employer for a portion of Plaintiff's respective period of employment. Gesu Restaurant Group, Inc. also d/b/a Gesu Restaurant Group LLC is a business that, on information and belief, regularly transacts business within the Northern District of Texas. Sunu Samuel a/k/a Sunny Samuel is a corporate officer and/or owner and/or manager of Gesu Restaurant Group, Inc. Josefina Murillo is a corporate officer and/or owner and/or manager of Overnight Cleanse, LLC who ran the day-to-day operations of Overnight Cleanse, LLC during Plaintiff's employment Alejandro Murillo is a corporate officer and/or owner and/or manager of Overnight Cleanse, LLC who ran the day-to-day operations of Overnight Cleanse, LLC during Plaintiff's employment.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. Robert L. Manteuffel, Esq. Joshua A. Petersen, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Ste. 112 Dallas, TX 75240 Phone: (972) 233-2264 Fax: (972) 386-7610 Email: zabogado@aol.com rlmanteuffel@sbcglobal.net josh.a.petersen@gmail.com P.S.C. INC: Court OKs Filing of Confidential Doc in Open Court -------------------------------------------------------------- The United States District Court for the Western District of Washington, Tacoma, issued an Order granting Plaintiffs' Motion to File Confidential Documents in Open Court in the case captioned KIMBERLY MILLER, BRIANA HOUSER, and DEAN BUCHHOLZ, on behalf of themselves and on behalf of others similarly situated, Plaintiff, v. P.S.C., INC., d/b/a PUGET SOUND COLLECTIONS, and DOES ONE THROUGH TEN, Defendant. Case No. 3:17-cv-05864-RBL. (W.D. Wash.). The Plaintiffs filed a putative class action alleging that P.S.C. violated Washington's Consumer Protection Act, Washington's Collection Agency A, and the Fair Debt Collection Practices Act. THe Plaintiffs move for an order to unseal excerpts from the Notebook, excerpts from Justin Anderson's and Angela Vanderhoof's depositions. Plaintiffs argue that most of the information P.S.C. seeks to protect relates to Stipulated Judgment Forms that are no longer in use. They argue that P.S.C. did not articulate compelling reasons to seal these excerpts and its reasons do not overcome the strong presumption for public access to court records. P.S.C. requests that the Court maintain a seal over excerpts from the Notebook, the Anderson deposition, and the Vanderhoof deposition. P.S.C. argues that it has a legitimate private interest in protecting its competitive standing. It contends that the Notebook is a trade secret containing internal and proprietary instructions on all aspects of its collection activity. Plaintiffs argue that it is unclear how its competitors or consumers could undercut or circumvent P.S.C. when the excerpts discuss information that P.S.C no longer employs. Plaintiffs argue that public access is necessary because absent members of the proposed class should be able to review their arguments in the motion for class certification. P.S.C. seeks to seal lines 85:12-14 and 97:1-17 of Mr. Anderson's Deposition and lines 25:16-26:6 of Ms. Vanderhoof's Deposition. In these lines, Anderson and Vanderhoof discuss and interpret the Stipulated Judgment Review section of P.S.C.'s Notebook. P.S.C. has not articulated any compelling reasons, let alone any specific reasons, why testimony interpreting the forms at the very crux of this case should be sealed. As a result, P.S.C. has not overcome the strong presumption for public access. P.S.C. requests blanket protection over Plaintiffs' Exhibit 3. P.S.C. asserts that its instructions are trade secrets that must be sealed in order to protect its competitive standing. P.S.C. argues that debtors and its competitors could use the information in the Notebook to undercut P.S.C.'s collection strategies and market standing. At first glance, P.S.C. appears to articulate the magic words necessary to christen the Notebook as a trade secret. However, P.S.C. merely asserts, without any specific factual basis, that the entire excerpt constitutes a trade secret. It is unclear how instructions that logically tier debt based on the principal balance due constitute a trade secret. It is unclear how debtors could use this tiered communication structure to circumvent P.S.C.'s collection strategies. It is unclear how any information regarding the stipulated judgment forms at issue in the underlying case merit protection. P.S.C. has not specifically articulated how its current business would be affected through the release of the excerpted pages from its Notebook. P.S.C. never articulates how its interest in secrecy outweighs the strong presumption for public access to judicial records. Consequently, P.S.C does not meet the compelling reasons standard. Accordingly, the Plaintiffs' Motion to File Confidential Documents in Open Court is granted. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/yazvnklw from Leagle.com. Kimberly Miller, Briana Houser & Dean Buchholz, on behalf of themselves and on behalf of others similarly situated, Plaintiffs, represented by Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL MARSHALL LAW GROUP PLLC, Blythe H. Chandler -- bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Joshua L. Turnham -- joshua@turnhamlaw.com -- THE LAW OFFICE OF JOSHUA L TURNHAM PLLC. P.S.C., Inc., doing business as Puget Sound Collections, Defendant, represented by Robert E. Sabido -- rsabido@cosgravelaw.com -- COSGRAVE VERGEER KESTER & Timothy J. Fransen -- tfransen@cosgravelaw.com -- COSGRAVE VERGEER KESTER. PACIFIC BIOSCIENCES: Rosenblatt Balks at Merger Deal with Illumina ------------------------------------------------------------------ JORDAN ROSENBLATT, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. PACIFIC BIOSCIENCES OF CALIFORNIA, INC., MICHAEL HUNKAPILLER, DAVID BOTSTEIN, WILLIAM ERICSON, CHRISTIAN HENRY, RANDY LIVINGSTON, JOHN F. MILLIGAN, MARSHALL L. MOHR, KATHY ORDONEZ, and LUCY SHAPIRO, the Defendants, Case No. 1:18-cv-02005-UNA (D. Del., Dec. 18, 2018), stems from a proposed transaction announced on November 1, 2018, pursuant to which Pacific Biosciences of California, Inc. will be acquired by Illumina, Inc. and FC Ops Corp. On November 1, 2018, Pacific Biosciences' Board of Directors caused the Company to enter into an agreement and plan of merger with Illumina. Pursuant to the terms of the Merger Agreement, Pacific Biosciences' stockholders will receive $8.00 in cash for each share of Pacific Biosciences common stock they hold. On December 6, 2018, the Defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading, the lawsuit says. Pacific Biosciences is a biotechnology company founded in 2004 that develops and manufactures systems for gene sequencing and some novel real time biological observation. PacBio describes its platform as single molecule real time sequencing, based on the properties of zero-mode waveguides.[BN] Attorneys for Plaintiff: Gina M. Serra, Esq. Brian D. Long, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@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 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com PAPA JOHN'S: Ashley Page Sues over No-Poach Policy -------------------------------------------------- ASHLEY PAGE, individually and on behalf of all others similarly situated, the Plaintiff, vs. PAPA JOHN'S INTERNATIONAL, INC., and PAPA JOHN'S USA, INC., the Defendants, Case No.: 3:18-cv-00835-CHB (W.D. Ky., Dec. 18, 2018), alleges that the Company's no-hiring and no-solicitation agreement was an illegal conspiracy between Papa John's and its franchises in violation of Section 1 of the Sherman Act. The Plaintiff is a former Papa John's employee who brings this class action on behalf of herself and the proposed class of all other similarly-situated current and former Papa John's employees against Defendants' anticompetitive policy enforced on both its franchised and company-owned restaurants, including its "non-traditional restaurants," that prevented any Papa John's franchise from hiring or soliciting current employees of any other Papa John's franchise or company-owned restaurant, and prevented Papa John's company-owned restaurants from hiring or soliciting current employees of Papa John's franchises. According to the complaint, Papa John's requires all of its franchisees to sign a franchise agreement that included a clause stating that they would not employ or solicit for employment (1) any Papa John's employee, including employees of Papa John’s company-owned restaurants or affiliates, or (2) any employee of another Papa John's franchise. Papa John's company-owned restaurants were also subject to this clause, and they could not solicit employees of Papa John's franchises. This no-solicitation agreement is per se illegal under the federal antitrust laws, the lawsuit says. Papa John's is one of the largest pizza delivery and carryout restaurant chains in the United States, providing services at approximately 3,400 restaurants in the United States. Approximately 700 of these restaurants, or roughly one-fifth of Defendant's restaurants, are corporate-owned; the rest are franchises.[BN] Attorneys for Ashley Page and the proposed Class: Kenneth A. Bohnert, Esq. Edward L. Lasley, Esq. Bradley R. Palmer CONLIFFE, SANDMANN & SULLIVAN 2000 Waterfront Plaza 325 West Main Street Louisville, KY 40202 Telephone: (502) 587-7711 Facsimile: (502) 587-7756 E-mail: kbohnert@cssattorneys.com tlasley@cssattorneys.com bpalmer@cssattorneys.com - and - John Radice, Esq. Daniel Rubenstein, Esq. April Lambert, Esq. Natasha Fernandez-Silber, Esq. Rishi Raithatha, Esq. RADICE LAW FIRM, P.C. 475 Wall Street Princeton, NJ 08540 Telephone: (646) 245-8502 Facsimile: (609) 385-0745 E-mail: jradice@radicelawfirm.com drubenstein@radicelawfirm.com alambert@radicelawfirm.com nsilber@radicelawfirm.com rraithatha@radicelawfirm.com - and - Eric L. Young, Esq. Paul V. Shehadi, Esq. MCELDREW YOUNG, ATTORNEYS-AT-LAW 123 S. Broad Street, Suite 2250 Philadelphia, PA 19109 Telephone: (215) 367-5151 Facsimile: (215) 367-5143 E-mail: eyoung@mceldrewyoung.com paul@mceldrewyoung.com PEGASUS RESIDENTIAL: Williams Suit Moved to M.D. North Carolina --------------------------------------------------------------- A case, VALERIE WILLIAMS, on behalf of herself and all others similarly situated, the Plaintiff, vs. PEGASUS RESIDENTIAL, LLC; INWOOD HOLDINGS, LLC; and MP BRIDGES AT SOUTHPOINT, LLC, doing business as: BRIDGES AT SOUTHPOINT, the Defendants, Case No. 18-CVS-4034, was removed from the Durham County Superior Court, to the U.S. District Court for the Middle District of North Carolina on Dec 18, 2018. The Middle District of North Carolina Court Clerk assigned Case No. 1:18-cv-01030 to the proceeding. Pegasus Residential, LLC manages residential real estate. It offers real estate management services under the brand names PegasusCONNECT, PegasusGREEN, PegasusPETS, and PegasusPERKS. The company caters to institutional clients, partnerships, and individual owners. Pegasus Residential, LLC was incorporated in 2008 and is based in Alpharetta, Georgia.[BN] Attorneys for Plaintiff: Patrick M. Wallace, Esq. WHITFIELD BRYSON & MASON, LLP 900 West Morgan Street Raleigh, NC 27603 Telephone: (336) 358-4153 Facsimile: (919) 600-5035 E-mail: pat@wbmllp.com Attorneys for Pegasus Residential, LLC: Deborah A. Ausburn, Esq. TAYLOR ENGLISH DUMA, LLP 1600 Parkwood Circle, ste. 400 Atlanta, GA 30339 Telephone: (770) 434-6868 Facsimile: (770) 434-7376 E-mail: dausburn@taylorenglish.com QUANTEL RESEARCH: Nefcy Sues over Unwanted Cellular Phone Calls --------------------------------------------------------------- DUNCAN NEFCY, individually and on behalf of all others similarly situated, the Plaintiff, vs. QUANTEL RESEARCH CORP., and DOES 1 through 10, inclusive, and each of them, the Defendant, Case No. 2:18-cv-10483 (C.D. Cal., Dec. 18, 2018), seeks damages and any other available legal or equitable remedies resulting from the illegal actions of Defendant, in negligently, knowingly, and/or willfully contacting Plaintiff on his cellular telephone in violation of the Telephone Consumer Protection Act, thereby invading Plaintiff's privacy. The Plaintiff also brings this action, individually and on behalf of all others similarly situated, in connection with Defendant's practice of recording calls to consumers without having first notified consumers or obtaining their consent to have the call recorded, in violation of the California Invasion of Privacy Act. The CIPA, Cal. Penal Code section 632.7 prohibits one party to a telephone call from intentionally recording the conversation without the knowledge or consent of the other while the person being recorded is on a cellular telephone, the lawsuit says.[BN] Attorneys for Plaintiff: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: 877-206-4741 Facsimile: 866-633-0228 E-mail: tfriedman@ toddflaw.com abacon@ toddflaw.com mgeorge@toddflaw.com RED HAT: Orgel Balks at Merger Deal with IBM -------------------------------------------- CHARLES ORGEL, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. RED HAT, INC., JAMES M. WHITEHURST, NARENDRA K. GUPTA, SOHAIB ABBASI, W. STEVE ALBRECHT, CHARLENE T. BEGLEY, KIMBERLY L. HAMMONDS, WILLIAM S. KAISER, KEVIN M. MURAI, and ALFRED W. ZOLLAR, the Defendants, Case No. 1:18-cv-02006-UNA (D. Del., Dec. 18, 2018), seeks to enjoin shareholder voting on a proposed transaction pursuant to which Red Hat will be acquired by International Business Machines Corporation through its wholly owned subsidiary, Socrates Acquisition Corp. According to the complaint, on October 28, 2018, Red Hat and IBM issued a joint press release announcing they had entered into an Agreement and Plan of Merger dated October 28, 2018 to sell Red Hat to IBM. Under the terms of the Merger Agreement, each Red Hat stockholder will receive $190.00 in cash for each share of Red Hat common stock they own. The Proposed Transaction is valued at approximately $34.0 billion. On December 12, 2018, Red Hat filed a Definitive Proxy Statement on Schedule 14A with the Securities Exchange Commission. The Proxy Statement, which recommends that Red Hat stockholders vote in favor of the Proposed Transaction, omits or misrepresents material information concerning, among other things: (i) the data and inputs underlying the financial valuation analyses that support the fairness opinions provided by the Company's financial advisors, Guggenheim Securities, LLC and Morgan Stanley & Co. LLC; (ii) the background process leading to the Proposed Transaction; and (iii) Guggenheim's potential conflicts of interest. The failure to adequately disclose such material information constitutes a violation of Sections 14(a) and 20(a) of the Exchange Act as Red Hat stockholders need such information in order to make a fully informed decision whether to vote in favor of the Proposed Transaction or seek appraisal. In short, unless remedied, Red Hat's public stockholders will be forced to make a voting or appraisal decision on the Proposed Transaction without full disclosure of all material information concerning the Proposed Transaction being provided to them, the lawsuit says. Red Hat, Inc. is an American multinational software company providing open-source software products to the enterprise community. Founded in 1993, Red Hat has its corporate headquarters in Raleigh, North Carolina, with other offices worldwide.[BN] Attorneys for Plaintiff Ryan M. Ernst, Esq. O'KELLY ERNST & JOYCE, LLC 901 N. Market St., Suite 1000 Wilmington, DE 19801 Telephone: (302) 778-4000 E-mail: rernst@oelegal.com - and - Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. Kelly K. Moran, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 0036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 REGIONS BANK: Files Joint Bid to Approve Notice in Hodapp FLSA Suit ------------------------------------------------------------------- The parties in the lawsuit titled JILL HODAPP v. REGIONS BANK, Case No. 4:18-cv-01389-HEA (E.D. Mo.), jointly ask the Court to approve the Notice of Collective Action to: current and former Branch Service Leaders, Branch Team Leads, Financial Relationship Associates, Financial Relationship Consultants, Financial Relationship Senior Consultants, Financial Relationship Senior Consultant- Team Leads, Financial Relationship Consultant- Team Leads, Financial Relationship Specialists, Financial Service Specialist, Tellers, and Universal Bankers, employed by Defendant Regions Bank ("Branch Non-exempt Employees"). The Plaintiff filed this case under the Fair Labor Standards Act and requested that the case proceed as a collective action under 29 U.S.C. Section 216(b) on behalf of certain non-exempt, hourly employees employed by the Defendant, who consent to join this action. The Plaintiff also asserts state common law claims, as well as claims under the Missouri Minimum Wage Law postured as a Rule 23 class action on behalf of all Branch Non-exempt Employees employed by the Defendant, who worked in Missouri. The parties have agreed and stipulated that the Defendant consents to a Court Order conditionally certifying this case as a collective action under the FLSA and authorizing that the Notice be sent to all current and former Branch Non-exempt Employees employed by Defendant from August 21, 2015, through the date of the Order approving this Joint Motion ("Putative Collective Action Plaintiffs"). The parties agree that the Defendant's stipulation to a conditional certification of all Putative Collective Action Plaintiffs shall not be construed as an admission that liability exists for any period of time, including, but not limited to, the third year. Notwithstanding this stipulation to conditional certification, the Defendant reserves the right to file its own motion to decertify the collective action. The parties agree that the Plaintiff, via a third-party administrator, shall send, via first class mail, the notice and consent form. Simultaneous with the mailing, the Parties agree that the Plaintiff, via a third-party administrator, shall send, via e-mail, the notice with a link to an online consent form, to all Putative Collective Action Plaintiffs. The parties disagree on whether to effectuate e-mail service of the notice to the Putative Collective Action Plaintiffs, Regions must produce both work and personal e-mail addresses or just personal email addresses. The parties agree to submit the issue to the Court and that each party may file a brief limited to five pages in support of their respective positions. The Defendant also agrees to produce to the Plaintiff no later than 14 days following the granting of this Joint Motion and the Court's decision on which e-mail addresses may be used to send the e-mail notice (whichever is later), an Excel spreadsheet listing, in separate columns, for each Putative Collective Action Plaintiff: (1) first name; (2) last name; (3) middle initial/name (if provided by the employee); (4) last known street address; (5) last known city; (6) last known state; (7) last known zip-code; (8) home or mobile telephone number (if provided by the employee); (9) date of birth (for address verification purposes); (10) employee ID number; (11) hire date, provided in the format maintained by Regions; (12) separation date, if separated, provided in the format maintained by Regions; and (13) current or last known work location. Plaintiff shall have 21 days after receipt of the spreadsheet to mail the notice.[CC] The Plaintiff is represented by: Matthew D. Miller, Esq. Justin L. Swidler, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway N., Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: mmiller@swartz-legal.com jswidler@swartz-legal.com The Defendant is represented by: Rodney A. Harrison, Esq. Sarah J. Kuehnel, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC. 7700 Bonhomme Avenue, Suite 650 St. Louis, MO 63105 Telephone: (314) 802-3935 Facsimile: (314) 802-3936 E-mail: rodney.harrison@ogletree.com sarah.kuehnel@ogletree.com SCOTTS MIRACLE-GRO: Settles Class Action Over Tainted Bird Seed --------------------------------------------------------------- Lauren Berg, writing for Law360, reports that Scotts Miracle-Gro Co. reached a deal on Dec. 7 in California federal court with a class of consumers who accused the lawn company of knowingly selling bird food laced with toxic pesticides. [GN] SERVICE EMPLOYEES: Workers to Seek Review of 7th Cir. Ruling ------------------------------------------------------------ Bill McMorriss, writing for The Washington Free Beacon, reports that workers seeking to take back millions in forced dues plan on taking their case to the Supreme Court after federal appellate judges rejected their class action suit. Home health aides were forced to pay more than $30 million to the labor giant Service Employees International Union (SEIU) under an agreement hatched by former governor Rod Blagojevich, who is finishing up a prison sentence for corruption. The Supreme Court declared that arrangement unconstitutional in 2014 because home health aides, many of whom are caring for disabled relatives, did not meet the standard of government employment. Several of those aides sought to recoup the money deducted by SEIU Healthcare Illinois & Indiana for several years. Those bids were rejected, but new hope emerged after the Supreme Court ruled in Janus v. American Federation of State, County, & Municipal Employees -- a case filed by an Illinois state employee -- that forced union dues from government agencies infringed on the First Amendment rights of workers. The 7th Circuit Court of Appeals, however, agreed that workers previously bound by forced dues contracts were entitled to take their money back, but said class action suits were not the appropriate venue for doing so. "We agreed with the putative class that no one could be compelled to pay fair share fees," the court said in a ruling. "Janus does not require a different result on the narrow question presented in our appeal, namely, whether the class-action device is the proper one for the Assistants to use in seeking refunds of fair-share fees." The National Right to Work Legal Defense Foundation, which successfully argued the Janus case before the Supreme Court and represents the Illinois healthcare workers, said it will ask the justices to review the 7th Circuit decision. The Supreme Court asked the appellate judges to review its previous dismissal of the class action suit following its June decision. Foundation spokesman Patrick Semmens said the court needs to rectify the multi-million dollar fraud. "As part of a backroom deal with disgraced former Illinois governor Blagojevich SEIU bosses seized over $32 millions dollars out of the pockets of tens of thousands of home care providers, and this ruling denies the victims of this scheme long overdue justice," Mr. Semmens said. The 7th Circuit did not dispute the Supreme Court's Janus ruling. The three judge panel affirmed a lower court ruling that the workers in the class lacked the similar interests or harm to constitute a class. "The answer to the central question that remains—how much money each individual class member is entitled to recoup -- is particularly ill-suited for class treatment, because it depends on a myriad of factors particular to each individual worker," the 7th Circuit ruled. The foundation has pursued the class action suit on behalf of home healthcare workers since the Harris decision. The Supreme Court has twice remanded the case to the 7th Circuit Court of Appeals. Mr. Semmens said the appellate justices have erred in their interpretation of federal labor law, and the Supreme Court is needed to clarify the rights of workers who have seen their pay docked under coercive dues schemes. The case could have major implications for union coffers, as government workers in several states have filed class action suits to recover their docked wages. "Unfortunately another Supreme Court ruling will now likely be needed to force the SEIU to return those funds to the individuals whose rights were violated," Mr. Semmens said. SEIU did not return requests seeking comment about the case. [GN] SHANGHAI ORIGINAL: Second Circuit Appeal Filed in Lin FLSA Suit --------------------------------------------------------------- Plaintiffs Hui Qiu Chen, Clara Flores, Xin He, Jian Ying Lin, Reyes Perez Guerrero and Gloria Perez Mendez filed an appeal from the District Court's opinion and order, and judgment, both dated November 6, 2018, issued in their lawsuit titled Lin, et al. v. Shanghai Original, Inc., et al., Case No. 18-cv-1715, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit seeks to recover alleged unpaid overtime wages, unpaid "spread-of-hours" premium, liquidated damages, prejudgment and post-judgment interest and attorneys' fees and costs pursuant to the Fair Labor Standards Act and New York Labor Laws. The Defendants operate as Joe's Shanghai, a chain of Chinese restaurants in New York where the Plaintiffs were employed as kitchen workers. They all claim to be denied overtime pay and wage statements. The appellate case is captioned as Lin, et al. v. Shanghai Original, Inc., et al., Case No. 18-3580, in the United States Court of Appeals for the Second Circuit.[BN] The Plaintiffs-Appellants are represented by: John Troy, Esq. JOHN TROY & ASSOCIATES, PLLC 41-25 Kissena Boulevard Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 Facsimile: (718) 762-1342 E-mail: johntroy@pllc.com Defendants-Appellees Shanghai Original, Inc., DBA Joe's Shanghai; East Brother Corp., DBA Joe's Shanghai; Shanghai City Corp, DBA Joe's Shanghai; Shanghai Duplicate Corp, DBA Joe's Shanghai; Kiu Sang Si, AKA Joseph Si; Yiu Fai Fong; Tun Yee Lam, AKA Peter Lam; Gui Bing Shi; William Ko; Yun Cai; and John Zhang are represented by: David B. Horowitz, Esq. FONG & WONG, P.C. 254 Canal Street New York, NY 10013 Telephone: (212) 966-6668 SHAREWITHNYC INC: Violates ADA, Dennis Suit Asserts --------------------------------------------------- Sharewithnyc Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. Sharewithnyc Inc., Defendant, Case No. 1:18-cv-07148 (E.D. N.Y., December 16, 2018). Sharewithnyc Inc. is a corporation registered with New York State Department of State.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com SHIVA & NANBAI: Faces Borozny ADA Class Action in Fla. ------------------------------------------------------ Shiva & Nanbai Associates, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Shiva & Nanbai Associates, LLC,a Florida limited liability company, Defendant, Case No. 8:18-cv-03066 (M.D. Fla., December 20, 2018). Shiva & Nanbai Associates, LLC filed as a Florida Limited Liability in the State of Florida. This corporate entity was filed approximately three years ago on Thursday, April 9, 2015 , according to public records filed with Florida Department of State.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com SNZ GROUP: Mateos Seeks Minimum Wages & Overtime ------------------------------------------------ LIBORIO IRIARTE MATEOS, on behalf of himself and others similarly situated, the Plaintiff, vs. SNZ GROUP INC. d/b/a CAFE 86, M&S MARKET 2350 LLC d/b/a CAFE 86, ENRIQUE CERON-CASAREZ, SAHIB SINGH, and MANJIT SINGH, the Defendants, Case No. 1:18-cv-11894 (S.D.N.Y., Dec. 18, 2018), seeks to recover unpaid minimum wages, unpaid overtime compensation, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and the New York Labor Law. According to the complaint, the Defendants employed Plaintiff to work as a non-exempt dishwasher and, subsequently, as a food preparer/kitchen helper for Defendants' Restaurant from September 2013 to October 10, 2018. The work performed by Plaintiff was directly essential to the business operated by Defendants. The Defendants knowingly and willfully failed to pay Plaintiff his lawfully earned minimum wages in direct contravention of the FLSA and New York Labor Law, the lawsuit says.[BN] Attorneys for Plaintiff: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 708 Third Avenue - 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: info@jcpclaw.com SOUTH COUNTY ORTHOPEDIC: Bautista Seeks Unpaid Overtime Wages ------------------------------------------------------------- Kimberly Bautista, individually and on behalf of all other similarly situated individuals, Plaintiff, v. South County Orthopedic Specialists, a Medical corporation Defendant, Case No. 8:18-cv-02256 (C.D. Cal., December 20, 2018) is a collective and class action brought by Plaintiff, individually and on behalf of all similarly situated persons employed by Defendant, arising from Defendant's willful violations of the Fair Labor Standards Act, the California Labor Code, the California Industrial Welfare Commission and the California Business & Professions Code. Plaintiff and the putative FLSA collective and Rule 23 class members she seeks to represent regularly worked beyond 40 hours in a workweek and eight hours in a workday but were not paid premium wages for overtime hours worked, asserts the complaint. The Defendant was aware of its obligation to pay premium overtime wages to Plaintiff for work performed beyond 40 hours in a workweek and eight hours in a workday. Nevertheless, Defendant failed and refused to pay overtime premiums to Plaintiff for all overtime hours worked. Defendant's conduct in that regard amounts to a willful violation of the overtime provisions of the FLSA and Labor Code. Plaintiff seeks a declaration that her rights, and the rights of the putative Collective and Class were violated, an award of unpaid wages, an award of liquidated damages, injunctive and declaratory relief, attendant penalties, and an award of attorneys' fees and costs to make them whole for damages they suffered, and to ensure that they and future workers will not be subjected by Defendant to such illegal conduct in the future, says the complaint. Plaintiff Kimberly Bautista, is a resident of Waikoloa, Hawaii and was employed by Defendant as a Licensed Physical Therapist at Defendant's orthopedic care and rehabilitation center in Laguna Woods, California from approximately August 2007 until March 2016. South County Orthopedic Specialists, is a California Medical Corporation with a Principal Office at 24331 El Toro Road, Suite 200, Laguna Woods, California 92637. Defendant is licensed to do business in the State of California.[BN] The Plaintiff is represented by: David Yeremian, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Phone: (818) 230-8380 Facsimile: (818) 230-0308 Email: david@yeremianlaw.com - and - Kevin J. Stoops, Esq. Rod M. Johnston, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Phone: (248) 355-0300 Facsimile: (248) 436-8453 Email: kstoops@sommerspc.com rjohnston@sommerspc.com STATE FARM: 8th Cir. Affirms Class Certification in Stuart ---------------------------------------------------------- The United States Court of Appeals, Eighth Circuit, issued an Opinion affirming the District Court's judgment granting Plaintiffs' Motion for Class Certification in the case captioned James Stuart, individually and on behalf of all others similarly situated; Careda L. Hood, Plaintiffs-Appellees, v. State Farm Fire and Casualty Company, Defendant-Appellant, American Insurance Association; Property Casualty Insurers Association of America, Amicion Behalf of Appellant. No. 16-3784. (8TH Cir.) State Farm Fire and Casualty Company appeals the district court's ruling certifying a class of Arkansas homeowners who allege that State Farm improperly withheld amounts for labor depreciation when making payments under their insurance policies. State Farm entered into replacement-cost homeowner's insurance contracts with plaintiffs. Under the form policy used in the contracts, State Farm's obligation to pay for property damage would be satisfied in two stages. First, prior to the insured making any repairs, State Farm agreed to pay the actual cash value at the time of the loss of the damaged part of the property, up to the policy's liability limit, not to exceed the cost to repair or replace the damaged part of the property. The Plaintiffs filed this class action on behalf of holders of State Farm insurance policies who received ACV payments arising from events that occurred between November 21, 2008 and December 6, 2013, where the cost of labor was depreciated. Before certifying a class under Rule 23(b)(3), a district court must find that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Plaintiffs argue that their claims share a common legal question: whether State Farm breached their contracts by depreciating labor from their ACV payments. In order to state a cause of action for breach of contract under Arkansas law, plaintiffs need only assert the existence of valid and enforceable contracts with State Farm, an obligation of State Farm thereunder, a violation of that obligation, and resulting damages. The Court finds that it was not an abuse of discretion for the district court to conclude that plaintiffs' claims share a common, predominating question of law. Plaintiffs' theory is that State Farm violated its contractual obligations by depreciating both materials and labor when calculating ACV, thereby reducing the size of their ACV payments. The viability of this theory is a common question well suited to classwide resolution. The district court previously concluded that these allegations stated a claim for breach of contract under Adams, and that decision is not before us on this appeal. Relying heavily on our recent decision in LaBrier, State Farm asserts that plaintiffs cannot demonstrate predominance and superiority because individual issues of liability and damages exist for each plaintiff that cannot be established with common evidence. In LaBrier, the Court analyzed the claims of a group of Missouri homeowners who argued that State Farm breached its contracts by deducting labor depreciation from their ACV payments. Missouri law, the Court noted, defines ACV as the difference between the reasonable value of the property immediately before and immediately after the loss. 872 F.3d at 573 The Court concluded that the plaintiffs in LaBrier could not show predominance because whether State Farm's chosen methodology produced a reasonable estimate of the difference in a property's value before and after a loss was a question for the jury to determine on a case-by-case basis. See id. In other words, because the contracts did not specify how ACV payments would be calculated, whether State Farm was in breach would depend on whether its methodology produced a reasonable estimate of ACV, as defined by Missouri law, in an individual case. Because this question could not be answered on a class basis, certification under Rule 23(b)(3) was inappropriate. It was not an abuse of discretion for the district court to conclude that common questions predominate over individualized issues and that adjudicating the claims as a class is superior to alternatives. The district court properly noted that the class members' claims are generally small and unlikely to be pursued individually. It also noted that concentrating the claims in a single forum is desirable, and that it did not anticipate unreasonable difficulty in managing the class action. We find no clear error in these findings, all of which support certification. State Farm argues that class certification is inappropriate because certain plaintiffs cannot demonstrate the injury-in-fact element of standing. The fact that some plaintiffs may be unable to succeed on their claims does not necessarily mean that they lack standing to sue. Accordingly, the order of the district court is affirmed as modified, and the case is remanded for further proceedings consistent with this opinion. A full-text copy of the Eighth Circuit's December 6, 2018 Opinion is available at https://tinyurl.com/y7st8n5n from Leagle.com. Alfred F. Thompson, III, for Plaintiff-Appellee. Beverly Ann Rowlett -- beverly.rowlett@mrmblaw.com -- for Defendant-Appellant. James Marvin Pratt, Jr., 144 N Washington St; Camden, Arkansas 71701, for Plaintiff-Appellee. John E. Moore, for Defendant-Appellant. John Clinton Goodson, 406 Walnut St, Texarkana, AR, 71854-5219, for Plaintiff-Appellee. William B. Putman, 303 E. Millsap Road, P.O. Box 8310, Fayetteville, AR 72703, for Plaintiff-Appellee. Joseph Cancila, Jr., 70 W Madison St Ste 2900, Three First National Plaza, Chicago, IL, 60602-4246, for Defendant-Appellant. Heidi Dalenberg -- hdalenberg@rshc-law.com -- for Defendant-Appellant. Richard Eugene Norman -- rnorman@crowleynorman.com -- for Plaintiff-Appellee. SWEPI LP: 6th Cir. Reverses Arbitration Denial in Rogers -------------------------------------------------------- The United States Court of Appeals, Sixth Circuit, issued an Opinion reversing the judgment of the District Court denying Defendant Shell's Motion to Compel Arbitration in the case captioned MATT A. ROGERS, Plaintiff-Appellee, v. SWEPI LP, et al., Defendants-Appellants. No. 18-3229. (6th Cir.). Matt A. Rogers and Shell entered into a lease agreement governing extraction of oil and gas from Rogers's five-acre property located in Guernsey County, Ohio. Important to Rogers, the agreement provides a signing bonus of $5,000 per acre, contingent upon Shell's timely verification that Rogers possesses good title to the property. Important to Shell, the lease contains a broad arbitration clause, providing that any dispute under the lease be resolved by binding arbitration. Rogers has sued for breach of contract, individually and on behalf of other landowners having similar contracts with Shell, alleging that Shell failed to pay the signing bonuses. Before the district court, Shell focused on the language of Sections Eight and Thirty-Three as a basis for compelling arbitration -- arguing that the Lease constituted a single agreement, signed and executed by Rogers, and commanded that disputes under the Lease be arbitrated. Rogers relied on the language in Section Twenty-Five and the final sentence of Section Sixteen, arguing that the lease agreement was executed in stages, with his signature allowing Shell to encumber the property and verify title, and Shell's payment of the signing bonus effectuating all remaining aspects, including the arbitration clause. The district court endorsed Rogers's view. The Plaintiff correctly describes the Lease as follows: while the Lease became effective upon Rogers' signature for purposes of allowing Shell to encumber the property and verify title, the last sentence of the bonus payment clause shows that the parties' remaining obligations, the long-term relational aspects of the Lease, did not become effective and Rogers was not bound thereby until the signing bonus was paid. This interpretation provides meaning to the bonus payment clause and harmonizes it with the rest of the Lease. Who decides arbitrability? Relying on Granite Rock Co. v. International Brotherhood of Teamsters, Rogers argues that his attack on the arbitration clause goes to its formation, and thus it was proper for the district court to decide the dispute. Rogers does not dispute that he properly agreed to the Lease by signing it in 2011. His attack on the arbitration provision assumes that the contract was formed; that it conferred obligations on the parties; and that Shell failed to perform one of its obligations, meaning the arbitration clause was never triggered. Rogers is correct that under Granite Rock, courts should resolve issues that call into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce, and that such issues typically concern the enforceability of the arbitration clause. But as noted above, Rogers has not attacked the enforceability of the specific arbitration clause. He has argued that much of the contract, which happens to include the arbitration clause, is unenforceable. Under the principles of Prima Paint Corp. v. Flood & Conklin Mfg. Co. and its progeny, such attacks are for the arbitrator. 388 U.S. at 403-04; Rent-A-Center, West, Inc., 561 U.S. at 70-71. Given Rogers's broad defense to arbitration, he is attacking more than just the arbitration clause. Thus, arbitrability is for the arbitrator, and the district court erred by assuming it had the power to rule on the parties' arbitration dispute. Does the Lease authorize class procedures in arbitration? Under the FAA, a party may not be compelled to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. The question of whether an arbitration agreement permits class-wide arbitration is a gateway matter, which is reserved `for judicial determination unless the parties clearly and unmistakably provide otherwise. Here, the parties have not identified a provision in the contract that clearly and unmistakably gives the arbitrator power to decide this matter. And because the district court denied arbitration altogether, it did not rule on the class arbitration issue. The Court notes the importance of this issue to the case, given that the class could include hundreds of Ohio landowners. We decline to decide the issue on this appeal, and leave that determination for the district court to decide in the first instance. See Milan Express Co. v. Applied Underwriters Captive Risk Assurance Co., 672 F. App'x 553, 556 (6th Cir. 2016). Accordingly, the judgment of the district court is reversed, and the matter is remanded to the district court for entry of an order compelling arbitration and a decision on whether the Lease allows for class-wide arbitration. A full-text copy of the Sixth Circuit's December 10, 2018 Opinion is available at https://tinyurl.com/ybm6tdks from Leagle.com. SYNGENTA AG: Settles GMO Corn Seed Class Action for $1.5-Bil. ------------------------------------------------------------- Perry Cooper, writing for Bloomberg Law, reports that Syngenta AG will pay more than $1.5 billion to U.S. farmers who alleged the marketing of the company's genetically modified corn seeds shut them out of the Chinese market, after the settlement won final approval Dec. 7. Judge John W. Lungstrum of the U.S. District Court for the District of Kansas called the settlement amount "very impressive," noting it is one of the largest known settlements in any kind of case. A total of 650,000 members make up the class. [GN] SYSTEMATIC NATIONAL: Gregory Sues over Debt Collection Practices ---------------------------------------------------------------- ALPHONSO GREGORY, individually and on behalf of all others similarly situated, Plaintiff v. SYSTEMATIC NATIONAL COLLECTIONS, INC., and DOES 1-20, Defendants, Case No. 3:18-cv-02657-DMS-JLB (S.D. Cal., Nov. 20, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Systematic National Collections, Inc. provides debt collection services. It offers monthly status reporting; skip tracing; bank account locating; and asset locating services. The company is based in Oceanside, California. [BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. Yana A. Hart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 - and - Albert R. Limberg, Esq. LAW OFFICE OF ALBERT R. LIMBERG 3667 Voltaire Street San Diego, CA 92106 Telephone: (619) 344-8667 Facsimile: (619) 344-8657 E-mail: alimberg@limberglawoffice.com TAKATA CORP: Podhurst Orseck Coordinates Work in Air Bag Deal ------------------------------------------------------------- Catherine Wilson, writing for Daily Business Review, reports that Podhurst Orseck partner Peter Prieto serves as chair lead counsel for plaintiffs in the Takata air bags multidistrict litigation, one of the largest in the nation involving the largest automotive recall in U.S. history. After more than two years of litigation, the legal team's work on behalf of over 40 million plaintiffs paid off. In October 2017 and February 2018, groundbreaking class action settlements were approved by U.S. District Judge Federico Moreno in Miami with six automakers for a total of $1.2 billion. In July, Ford agreed to settle for an additional $299 million. Final approval is pending. The settlements with Toyota, Mazda, Subaru, BMW, Nissan and Honda came three years after the litigation began. Prieto with the assistance of Podhurst lawyers Matthew Weinshall, helped secure the large-scale payouts. The newest defendants include General Motors, Fiat Chrysler, Volkswagen and Mercedes-Benz, which also installed Takata inflators in their vehicles. The MDL is a result of air bags supplied by Takata that have been recalled worldwide because of a defect that makes its inflators prone to explode. The lawsuit claims the defect is linked to the use of inexpensive and volatile ammonium nitrate, which sometimes spews shrapnel at occupants. At least 20 deaths and hundreds of injuries have been blamed on defective air bags. Motorists have alleged a decadelong scheme by Takata and automakers to conceal the defect from regulators and class members. To prosecute the claims against Takata and the automakers, the Podhurst Orseck team oversaw and coordinated the work of more than two dozen law firms with over 200 lawyers and paralegals. The MDL lawyers defeated motions to dismiss, reviewed over 10 million pages of documents and took or defended more than 150 depositions. The settlements provide compensation for economic losses resulting from the recall including reimbursement for reasonable out-of-pocket expenses, a residual distribution payment of up to $500, rental cars for the most at-risk class members while they wait for remedies and a customer-support program for repairs and adjustments on replacement inflators, including an extended warranty. [GN] UNITED STATES: Court Narrows Claims in CAM Program Suit ------------------------------------------------------- The United States District Court for the Northern District of California, San Francisco Division, issued an Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned S.A., et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. Case No. 18-cv-03539-LB. (N.D. Cal.). Under the Immigration and Nationality Act (INA), the Secretary of Homeland Security has discretion to parole foreign nationals into the United States temporarily and only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. Parole does not constitute admission in a valid immigration or nonimmigrant status, but it allows a foreign national to enter and physically be present in the United States. In 2014, the government instituted a program called the Central American Minors (CAM) Program, which allowed parents who were lawfully present in the United States to apply to bring their children and other qualifying family members in three countries, Honduras, Guatemala, and El Salvador, collectively known as the Northern Triangle, to reunite with them in the United States. A goal of the Program was to discourage children from making the long and dangerous journey from the Northern Triangle to the United States to try to reunite with their parents. The plaintiffs in this case, applicant parents lawfully residing in the United States who applied to the CAM Program, their beneficiary children in Northern Triangle countries, and the nonprofit immigrant-rights organization CASA, filed this putative class-action lawsuit against President Trump, DHS, USCIS, the Secretary of Homeland Security, the Director of USCIS, the State Department, the Secretary of State, and the United States, alleging that the government's termination of the CAM Parole Program and its rescinding of conditional approvals of parole were unlawful. The plaintiffs bring the following four categories of claims: 1. claims under the Administrative Procedure Act (APA), arguing that the government's termination of the CAM Parole Program and rescinding of conditional approvals for parole were arbitrary and capricious; 2. a claim under the Due Process Clause, arguing that the applicant-parent plaintiffs have a constitutionally protected liberty interest in the companionship and society of their family members in Central America, and that the government deprived them of this liberty interest without due process by terminating the CAM Parole Program in an arbitrary, irrational, and unlawful manner; 3. a claim under the equal-protection component of the Due Process Clause, arguing that the government's termination of the CAM Parole Program was substantially motivated by discriminatory animus by President Trump and the Trump Administration toward Latinos, and 4. a claim for equitable estoppel, arguing that the government engaged in affirmative misconduct by publicly representing between January 2017 and August 2017 that the CAM Parole Program was still in operation, when it actually had been secretly terminated. The court grants in part and denies in part the defendants' motion to dismiss. The court denies the motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding conditional approvals of parole made under the CAM Parole Program. In all other respects, the court grants the defendants' motion to dismiss. Administrative Procedure Act Claims The APA provides that a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. To constitute a final agency action, two conditions must be met: first, the action must mark the consummation of the agency's decision making proces it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. DHS's termination of the CAM Parole Program can be seen as two related but distinct agency actions: (1) terminating the Program going forward for participants who had never been approved for parole and (2) rescinding conditional approvals of parole that had been made under the Program before its termination. Rescinding Conditional Approvals of Parole The government argues that it took reliance interests into account because it did not rescind parole for beneficiaries who had arrived in the United States. The court cannot see how this decision for beneficiaries in the United States takes into account the serious reliance interests of participants with conditional approval who had not arrived or whose family members had not arrived in the United States. The court holds that when DHS mass-rescinded the conditional parole approvals of CAM Parole Program participants, it did not adequately take into account and address the participants' serious reliance interests. Consequently, its actions in mass-rescinding approvals were arbitrary and capricious and must be set aside under the APA. The serious reliance interests requirement does not mean that DHS lacks the authority to rescind conditional approvals of parole for CAM Parole Program participants, notwithstanding the participants' reliance on their approvals. DHS has that authority. It has the authority to rescind parole even from Program beneficiaries who have arrived in the United States and similarly has the authority to rescind conditional approvals of applications where the beneficiaries are still outside the United States. But DHS must recognize and acknowledge that Program participants who were approved for parole had serious reliance interests in that parole, take those reliance interests into account, and explain why it felt it appropriate to nonetheless mass-rescind their parole in the face of that reliance. This ensures transparency and accountability. If DHS thinks that Program participants' reliance on their parole is less important than its new policies in mass-rescinding that parole, it can make that choice, so long as it explains its reasons so that it can be held accountable. When it mass-rescinded conditional approvals, DHS failed to take into account and address the serious reliance interests of CAM Parole Program participants whom it had approved. Its mass-rescission was arbitrary and capricious in violation of the APA. The court denies the defendants' motion to dismiss the plaintiffs' APA claims as they relate to the government's mass-rescinding of conditional approvals of parole. The court otherwise grants the defendants' motion to dismiss the plaintiffs' APA claims. A full-text copy of the District Court's December 10, 2018 Order is available at https://tinyurl.com/ybhdyc92 from Leagle.com. S.A., J.A., A.B., R.C., on behalf of himself and as Guardian Ad Litem for J.C., a minor child, M.C., D.D., G.E., on behalf of himself and as Guardian Ad Litem for B.E., a minor child, J.F., on behalf of himself and as Guardian Ad Litem for H.F. and A.F., minor children, on behalf of themselves and on behalf of a class of all similarly situated individuals & CASA, Plaintiffs, represented by Daniel B. Asimow -- daniel.asimow@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, John A. Freedman -- john.freedman@arnoldporter.com -- Arnold and Porter Kaye Scholer LLP, David Jonathan Weiner -- david.weiner@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP, Kathryn Claire Meyer -- kmeyer@refugeerights.org -- International Refugee Assistance Project, Linda Evarts -- levarts@refugeerights.org -- International Refugee Assistance Project, Mariko Hirose -- mhirose@refugeerights.org -- & Matthew Harrison Fine -- matthew.fine@arnoldporter.com -- Arnold & Porter Kaye Scholer LLP. Donald J. Trump, in his official capacity as President of the United States, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, in her official capacity as Secretary of Homeland Security, Michael R. Pompeo, in his official capacity as Secretary of State, L. Francis Cissna, in his official capacity as Director of U.S. Citizenship and Immigration Services, United States of America & U.S. Department of State, Defendants, represented by Wendy M. Garbers , United States Attorney's Office & Alison E. Daw , US Attorney's Office. UNITED STATES: Judge OKs Discrimination Class Action Settlement --------------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that a federal judge granted final approval on Dec. 17 of a settlement of an age-discrimination class action against the Department of Homeland Security and its Federal Air Marshal Service; each class member will get $1,500 and the government must pay $425,000 in attorney's fees. The case is K.H., et al. v. Secretary of the Department of Homeland Security, Case No. 15-cv-02740 (N.D. Cal.). A copy of the Order Granting Final Approval of Collective Action Settlement is available at: https://is.gd/1nbLab UOMINI & KUDAI: Borozny Files Suit Asserting ADA Violation ---------------------------------------------------------- Uomini & Kudai, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Austin Borozny, individually and on behalf of all others similarly situated, Plaintiff v. Uomini & Kudai, LLC, a Florida limited liability company, Defendant, Case No. 2:18-cv-00824-UA-MRM (M.D. Fla., December 20, 2018). Uomini & Kudai, LLC filed as a Florida Limited Liability in the State of Florida on Wednesday, February 16, 2011 and is approximately seven years old, according to public records filed with Florida Department of State.[BN] The Plaintiff is represented by: Jessica Lynn Kerr, Esq. The Advocacy Group, LLC 200 SE 6th St Ste 504 Fort Lauderdale, FL 33301-3424 Tel: (954) 282-1858 Fax: (844) 786-3694 Email: jkerr@advocacypa.com VERVE HOLDINGS: Beverage Retailer Sued for ADA Breach ----------------------------------------------------- Verve Holdings, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. Verve Holdings, LLC, Defendant, Case No. 1:18-cv-07150 (E.D. N.Y., December 16, 2018). Verve Holdings, LLC is a retail store, retail outlet, retail shop, on-line retail store services, all featuring alcoholic beverages and spirits.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com WATERSTONE MORTGAGE: 7th Cir. Vacates $10MM FLSA Award ------------------------------------------------------ Eric Tsai, Esq., of Maurice Wutscher LLP, in an article for Lexology, repots that the U.S. Court of Appeals for the Seventh Circuit recently joined the Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits, in ruling that class or collective arbitrability is a gateway question that is presumptively for the court to decide, rather than the arbitrator. In so ruling, the Court vacated the trial court's order enforcing a $10 million federal "wage and hour" Fair Labor Standards Act arbitration award against the defendant. A copy of the opinion in Herrington v. Waterstone Mortgage Corporation is available at https://is.gd/bQXDqU The plaintiff filed a putative class and collective action against her former employer. She alleged wage and hour violations under the Fair Labor Standards Act, and breach of her employment contract. The plaintiff's employment agreement contained an arbitration clause and class action waiver: In the event that the parties cannot resolve a dispute by the [alternative dispute resolution] provisions contained herein, any dispute between the parties concerning the wages, hours, working conditions, terms, rights, responsibilities or obligations between them or arising out of their employment relationship shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association applicable to employment claims. Such arbitration may not be joined with or join or include any claims by any persons not party to this Agreement. The trial court held that the arbitration clause was enforceable but struck the sentence waiving the plaintiff's right to bring a class or collective proceeding in arbitration. The court sent the parties to arbitration. The arbitrator certified a class for two reasons. First, he determined that he was required to ignore the class action waiver because the trial court had invalidated it. Second, he determined that the parties agreed to class arbitration because the agreement incorporated the Rules of the American Arbitration Association for employment claims. The arbitrator awarded $10 million in damages and fees in favor of the plaintiff and the class. The trial court entered judgment enforcing the arbitration award. This appeal followed. The first issue addressed on appeal was whether the class action waiver was enforceable. While this case was on appeal, the U.S. Supreme Court issued its ruling in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018), which upheld the validity of class action or collective action waiver provisions like the one in the plaintiff's employment agreement. Consequently, the Seventh Circuit held that the trial court erred in striking the class action waiver. The second issue on appeal was whether it is for the court or an arbitrator to decide if an arbitration agreement permits class or collective arbitration. The plaintiff argued that, notwithstanding the class action waiver, the arbitration agreement reflected the parties' affirmative consent to class and collective arbitration. The Seventh Circuit began its analysis by observing that "every federal court of appeal to reach the question has held that the availability of class arbitration is a question of arbitrability." Joining the Fourth, Sixth, Eighth, Ninth, and Eleventh Circuits, the Seventh Circuit determined that whether the availability of class or collective arbitration is a gateway issue is presumptively for the court, rather than the arbitrator. The Seventh Circuit reasoned that whether the agreement permits class or collective arbitration required the adjudicator to determine: (1) whether the employer agreed to arbitrate not only with the plaintiff, but also with members of her proposed class; and (2) whether the agreement to arbitrate covered a particular controversy. In the Seventh Circuit's view, these issues are typically reserved for the court. The Seventh Circuit also found that class and collective arbitration involve the threshold decision of whether to certify a class. The arbitrator must investigate a variety of issues incidental to the actual dispute, including whether the putative class meets the requirements in Rule 23(a). Noting that class and collective arbitration require procedure rigor that bilateral arbitrations do not, and the stakes for the defendant due to the loss of appellate review are significant, the Seventh Circuit concluded that "the district court should conduct the threshold inquiry regarding class or collective arbitrability." Accordingly, the Seventh Circuit vacated the trial court's order enforcing the arbitration award, and remanded the case for further proceedings consistent with its opinion. [GN] WEST LIBERTY: Daniels Moves to Certify Class of Illinois Workers ---------------------------------------------------------------- The Plaintiff in the lawsuit styled KENNETH DANIELS, individually and on behalf of all others similarly situated v. WEST LIBERTY FOODS, L.L.C., an Iowa limited liability company, Case No. 1:17-cv-06670 (N.D. Ill.), moves the Court to certify a class defined as: "All current and former West Liberty employees who, between September 2014 and August 2017, scanned their fingers at a time clock in either of West Liberty's Illinois facilities." Excluded from the Class are (1) any Judge or Magistrate Judge presiding over the action, as well as members of their families, (2) Defendant, Defendant's subsidiaries, parents, successors, predecessors, and any entity in which the Defendant or its parents have a controlling interest, and those entities' current and former employees, officers, and directors, (3) persons who properly and timely file a request for exclusion from the Class, (4) persons who have had their claims in this matter finally adjudicated or otherwise released, (5) counsel in this action, and (6) the legal representatives, successors, and assigns of any excluded person. Mr. Daniels asks the Court to enter an Order appointing his counsel as class counsel.[CC] The Plaintiff is represented by: Jay Edelson, Esq. Benjamin H. Richman, Esq. Sydney M. Janzen, Esq. J. Eli Wade-Scott, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: jedelson@edelson.com brichman@edelson.com sjanzen@edelson.com ewadescott@edelson.com - and - David J. Fish, Esq. John C. Kunze, Esq. Kimberly A. Hilton, Esq. THE FISH LAW FIRM 200 East 5th Ave., Suite 123 Naperville, IL 60563 Telephone: (630) 355-7590 E-mail: dfish@thefishlawfirm.com jkunze@thefishlawfirm.com khilton@thefishlawfirm.com WEWORK COMPANIES: Website not Accessible to Blind, Olsen Says ------------------------------------------------------------- THOMAS J. OLSEN, Individually and on behalf of all other persons similarly situated, the Plaintiff, vs. WEWORK COMPANIES INC., the Defendant, Case No. 1:18-cv-11902-GHW (S.D.N.Y., Dec. 18, 2018), wants the Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually-impaired consumers, under the Americans With Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. According to the complaint, the Plaintiff, who is legally blind, brings this civil rights action against Defendant WeWork Companies Inc. for its failure to design, construct, maintain, and operate its website, www.wework.com, to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant denies full and equal access to its Website.[BN] Attorneys for Plaintiff: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Telephoner: (212) 392 4772 E-mail: chris@lipskylowe.com doug@lipskylowe.com WGACA LLC: Faces Dennis Suit Alleging ADA Violation ---------------------------------------------------- WGACA, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. WGACA, LLC, Defendant, Case No. 1:18-cv-07147 (E.D. N.Y., December 16, 2018). WGACA, LLC is a business that describes itself as "the leading global purveyor of authentic luxury vintage accessories and apparel".[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com WORKHOUSE NYC: Olsen Bring ADA Class Action in New York ------------------------------------------------------- Workhouse NYC LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Workhouse NYC LLC, Defendant, Case No. 1:18-cv-07146 (E.D. N.Y., December 16, 2018). Workhouse NYC LLC is a co-working space in New York City, New York.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com WORKVILLE LLC: Olsen Sues Coworking Space Co. Under ADA ------------------------------------------------------- Workville LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Workville LLC, Defendant, Case No. 1:18-cv-11777 (S.D. N.Y., December 16, 2018). Workville LLC is the premiere coworking space in midtown Manhattan in NYC.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com WYETH BIRCH: Violates Disabilities Act, Dennis Suit Says -------------------------------------------------------- Wyeth Birch, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Derrick U Dennis, on behalf himself and all others similarly situated, Plaintiff v. Wyeth Birch, LLC, Defendant, Case No. 1:18-cv-07149 (E.D. N.Y., December 16, 2018). Wyeth Birch, LLC is a Modern furniture specialist.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC. 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Tel: (718) 971-9474 Email: jshalom@jonathanshalomlaw.com YARD INC: Olsen Suit Asserts Disabilities Act Breach ---------------------------------------------------- The Yard Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. The Yard Inc., Defendant, Case No. 1:18-cv-11778 (S.D. N.Y., December 16, 2018). The Yard Inc. is the premier manufacturer of maintenance-free outdoor patio furniture and accessories from recycled plastic milk jugs.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: chris@lipskylowe.com ZOCDOC: Drinker Biddle Attorneys Discuss Court Ruling ----------------------------------------------------- Matthew J. Fedor, Esq. -- matthew.fedor@dbr.com -- Michael P. Daly, Esq. -- michael.daly@dbr.com -- Andrew L. Van Houter, Esq. -- andrew.vanhouter@dbr.com -- of Drinker Biddle & Reath LLP, in an article for The National Law Review, report that early three years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that claims are not mooted by unaccepted offers of complete relief under Rule 68 because they create neither an "obligation" to provide nor an "entitlement" to receive any relief. But the Court expressly left open the possibility that depositing the full amount of a plaintiff's individual claim in an account payable to the plaintiff might be enough. After Campbell-Ewald, we predicted that defendants would test various procedural mechanisms for arguing that actually making a payment will render a plaintiff's claim moot. As we reported last summer, the Seventh Circuit held that not even tendering funds into a court-monitored interest-bearing account is enough to moot a class action, reasoning that that there is "no principled distinction" between a Rule 68 offer of judgment and a deposit under Rule 67, and that would-be class representatives must be afforded an opportunity to try to certify a class. The Second Circuit recently reached a similar conclusion in Geismann v. ZocDoc, Inc., holding that a tender of payment into a court-monitored account under Rule 67 did not moot a plaintiff's putative class action because the plaintiff had not (i) received the deposited money or (ii) had an opportunity to try to certify a class and possibly earn an incentive award as lead plaintiff. The case has a tangled procedural history. After receiving a fax concerning a "patient matching service," which contained a telephone number to call if the recipient wished to stop receiving faxes, Plaintiff filed a putative TCPA class action seeking aggregated damages of $500-$1,500 per fax. ZocDoc made an offer of judgment and then argued that, since the amount of the offer exceeded the plaintiff's individual claim, that claim was moot and should be dismissed. The district court agreed and Plaintiff appealed. While that appeal was pending, the Supreme Court issued its decision in Campbell-Ewald. ZocDoc then sought leave to deposit a check with the district court in satisfaction of the judgment, which the district court granted. In a 2017 decision, however, the Second Circuit held that Plaintiff still had standing to pursue her claims. The court reasoned that Campbell-Ewald foreclosed entering a judgment on mootness grounds in light of an unaccepted offer and thus the tender in satisfaction of an erroneous judgment did not moot Plaintiff's claims. ZocDoc then tried to address the Second Circuit's concern by depositing with the district court the maximum amount of damages Plaintiff would be entitled to individually pursuant to Rule 67. After the district court allowed a $20,000 deposit, ZocDoc moved for summary judgment and argued that the tender perfected the hypothetical in Campbell-Ewald, provided Plaintiff with complete relief, and thus rendered Plaintiff's individual claim moot. The district court agreed again and found that, because Plaintiff received complete relief, the action was moot. The Second Circuit reversed. Largely relying on the Seventh Circuit's decision in Fulton Dental, LLC v. Bisco, Inc., the Second Circuit found "no material difference between a plaintiff rejecting a tender of payment (pursuant to Rule 67) and an offer of payment (pursuant to Rule 68)." The Second Circuit reasoned that although the money was deposited with the court, Plaintiff still had not received any money. Similarly, while ZocDoc had offered to submit to an injunction, the Second Circuit reasoned that ZocDoc has not actually committed to stop sending offending faxes until the injunction was actually entered. Thus, "[a]t that point in the litigation, the district court could still provide these remedies" demonstrating that Plaintiff's claims were not moot. Finally, the Second Circuit also reasoned that a judgment satisfying Plaintiff's individual claims does not offer complete relief because Plaintiff was exercising her right to proceed on a classwide basis and sought to earn an additional reward by serving as a lead plaintiff. The Second Circuit's decision in ZocDoc is difficult to square with the Rules Enabling Act and Supreme Court precedent. On the one hand, ZocDoc reaffirms the Second Circuit's prior rulings that a district court should enter judgment, even over a plaintiff's objection, when a defendant surrenders to complete relief, and recognizes that such a judgment will render moot the plaintiff's individual's claims. See e.g., Tanasi v. New Alliance Bank, 786 F.3d 195, 200 (2d Cir. 2015). On the other hand, the Second Circuit simultaneously suggests that Rule 23 affords a plaintiff an absolute right to seek to bring claims in a representative capacity on behalf of an as-yet-uncertified class. In fact, ZocDoc goes so far as to suggest that the district court could have dismissed Plaintiff's claims as moot as a result of Defendant's $20,000 deposit if the court had denied Plaintiff's motion for class certification. In so doing, the Second Circuit is erroneously elevating the procedural rights of Rule 23 into substantive rights. Indeed, the Rules Enabling Act states that the Federal Rules of Civil Procedure "shall not abridge, enlarge or modify any substantive right," and Rule 82 makes clear that the rules "do not extend . . . the jurisdiction of the district courts." 28 U.S.C. Sec. 2072(b); Fed. R. Civ. P. 82. Yet the Second Circuit's decision suggests that, regardless of whether a plaintiff's individual claim remains extant, that plaintiff has not been afforded complete relief absent an opportunity to seek class certification under Rule 23. Moreover, the court's suggestion that Plaintiff had not been made whole because the tender did not account for possible incentive awards for acting as a class representative flatly contradicts well-established Supreme Court precedent holding that "an interest that is merely a 'byproduct' of the suit itself" does not satisfy Article III's case or controversy requirement. Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 772 (2000); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 108 (1998) ("reimbursement of the costs of litigation cannot alone" satisfy Article III); Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) (an "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim"). The Second Circuit's decision will likely result in a waste of judicial resources in cases where the defendant is interested in surrendering to the individual plaintiff rather than engage in senseless and costly litigation. It remains to be seen whether ZocDoc will seek Supreme Court review. [GN] [*] EU Legal Affairs Committee Passes Class Action Proposal ----------------------------------------------------------- Sue Reisinger, writing for Law.com, reports that much to the chagrin of corporate America, a key European Union legal affairs committee has passed a proposal to allow class action lawsuits in the EU -- a major step in becoming law. While some EU member countries allow types of class action suits, others do not. Since 1998, the EU has offered only injunctive relief, allowing "qualified entities designated by the member states, such as consumer organizations or independent public bodies, to bring representative actions for the protection of the collective interests of consumers with the primary aim of stopping both domestic and cross-border infringements of EU consumer law." The new proposal, according to the committee, is specifically aimed at giving all EU consumers the opportunity of collective redress for mass harm -- that is, the right to seek damages as a class, and not just an injunction to stop the harm. After the committee's Dec. 6 vote, Lisa Rickard, president of the U.S. Chamber Institute for Legal Reform, released a statement calling the proposal "poorly written and lack[ing] clear safeguards to prevent fraud and abuse. Still missing is a requirement that consumers give their consent or 'opt-in' to join a collective claim, and clear criteria to eliminate meritless claims." Ms. Rickard added that the law would "create a whole new world of litigation in Europe, and it is crucial that EU lawmakers get it right the first time. The new directive must be for the benefit of European consumers and not import the abuses of the U.S. class action system, which primarily benefits lawyers and profit-seeking third-party investors in lawsuits." The American Association for Justice (formerly the American Trial Lawyers Association), which represents the plaintiffs' bar, did not immediately have a response about the bill. The proposal now goes to the full Parliament and the European Council, a strategic group made up of the heads of individual governments in the EU who provide general political directions and priorities. The European Commission can also have a say in the final wording. The Institute for Legal Reform plans to ask those institutions to change the bill before Parliament votes on it, according to Scevole de Cazotte, the ILR's senior vice president for international initiatives. Mr. De Cazotte said in an interview Dec. 7 that the global business community has concerns with the proposal. "And I mean companies of all sizes, from all business sectors, and not just from one country but from everywhere," he added. Although the ILR was still obtaining a final draft of the latest proposal, Mr. De Cazotte said from what ILR has learned, the most troubling aspects of the bill include: There is no certification rule, similar to U.S. Rule 23 of the Federal Rules of Civil Procedure, which requires a group to be certified as a class and to meet certain requirements. It leaves the use of contingency fees for lawyers up to the member states. The ILR wants to see contingency fees excluded, Mr. De Cazotte said, because they incentivize lawyers to sue. The bill follows the Dutch model by requiring consumers who don't want to be a party to specifically opt out of the litigation in domestic markets. But consumers must specifically opt in to the litigation when they are located outside the jurisdiction involved. The U.S. Chamber of Commerce ILR favors requiring all plaintiffs to opt in, he said. It allows multiple and overlapping claims in the EU and in member countries, with no overall EU management of duplicated claims. "This issue is very important to general counsel, who want to have finality in a case," Mr. De Cazotte said. "Companies will have a hard time knowing when they can settle. We may ultimately see chaos." He said there is a bucket of other issues. They include the probability of plaintiffs' forum shopping for a friendly jurisdiction; the layering of the EU law on top of existing countries' laws, which would mean more complexity and higher legal costs; and the use of "qualified entities," such as consumer associations to bring claims on behalf of consumers is not a real safeguard against meritless claims, he contends. Mr. De Cazotte said, "We have seen in the Netherlands that they have qualified entities, which are in fact set up by law firms to pursue these claims. They [the entities] will work with law firms and litigation funders, who will collect contingency fees. They are basically just a front." The legal affairs committee vote was an important one, he explained, but what happens next is, too. He noted, "We think there's room for serious improvements." [GN] [] Class Action Lawyers Find Allies in Arbitration Fight -------------------------------------------------------- Daniel Fisher, writing for Legal Newsline, reports that class action lawyers who see arbitration as a mortal threat to their business have found unlikely allies among some of the nation's most conservative state officials. The State Financial Officers Foundation, which bills itself as "the nation's largest and leading organization for free market-focused state treasurers," wrote a letter to the Securities and Exchange Commission last month opposing any move to allow companies to require investors to arbitrate disputes instead of filing class actions. The Nov. 13 letter extolled class actions as "the primary mechanism for compensating defrauded investors" and said mandatory arbitration "would do great damage to the dual purposes of private securities enforcement -- deterrence and compensation." The letter was signed by about half of SFOF's members, including the Republican treasurers of Kentucky, Indiana, Idaho and Nevada. Treasurers who didn't sign include Steve McCoy of Georgia, Missouri's Eric Schmitt and Josh Mandel of Ohio. SFOF President Derek Kreifels declined to comment other than to say the letter represents the organization's official position. By taking a stand in favor of class actions and against arbitration, the SFOF is breaking with business organizations like the U.S. Chamber of Commerce and siding with trial lawyer-funded organizations like Public Justice, whose executive committee members hail from some of the nation's most prominent class action firms including Hagens Berman, Robins Kaplan, Berger & Montague and Cohen Milstein Sellers & Toll. Class action lawyers have fought a fierce rearguard action against arbitration as the U.S. Supreme Court's conservative majority repeatedly has upheld a broad reading of the Federal Arbitration Act under which companies can require customers and employees to agree to individual arbitration instead of class actions. Starting with the landmark AT&T v. Concepcion decision in 2011, the high court has issued a series of pivotal rulings supporting arbitration including this year's Epic Systems v. Lewis, upholding the legality of arbitration clauses in employee contracts. Securities class action lawyers have been worried about losing one of their most lucrative businesses since Michael Piwowar, then a Republican SEC commissioner, said in 2017 he would "encourage companies to come and talk to us" about putting mandatory arbitration clauses in their corporate charters. Those clauses would require investors, as a condition of buying shares, to arbitrate disputes instead of having them handled through class actions. Mr. Piwowar broached the subject at the conservative Heritage Foundation in Washington, where Bridgett Wagner, a director of SFOF, is vice president for policy promotion. Wagner didn't respond to a request for comment on the SFOF's official position in favor of class actions and against arbitration in securities disputes. News of SFOF's Nov. 13 letter opposing arbitration was immediately promoted on the website of Secure Our Savings, a coalition of left-leaning and trial lawyer-backed organizations opposed to arbitration, including the American Association for Justice, the Center for Economic Justice, the National Association of Consumer Advocates and Public Citizen. Further revealing the close ties between trial lawyers and anti-arbitration activists, the website name Secureoursavings.com was registered by Aidan O'Shea, deputy director of communications at Public Justice. In its letter, the SFOF describes securities class actions as "a market-based remedy that do not require the expense of taxpayer money and resources." Hiring lawyers and investigating fraud "can cost many millions of dollars, which is unaffordable to almost all but the very large institutional investors." "If individual arbitration becomes the only venue available to defrauded investors, it would result in a system of justice unavailable to most market participants (i.e. the small investors, who are the backbone of our economy)," the organization wrote. The "current system" is not "free from issues," SFOF went on, but federal reform laws like the Private Securities Litigation Reform Act were "effective at curbing abuses." "if further restrictions on securities suits are needed, SFOF would be happy to work with the administration on legislation to address concerns," the group said. There is GOP resistance to mandatory arbitration within the SEC. In a Feb. 26 speech, Commissioner Robert J. Jackson, a Trump appointee, said he was "concerned about the recent rumors that the securities industry is eager to slip mandatory arbitration of shareholder disputes" into initial public offering documents. Shareholder lawsuits allow judges to shape securities law to adapt to new developments, Mr. Jackson said, while arbitration is "usually conducted in a closed-door proceeding, depriving investors of their chance to air their objections—and the rest of us the knowledge of what the law is." Critics of securities class actions -- including the Chamber and conservative organizations like the Heritage Foundation -- say the system enriches lawyers at the expense of their supposed clients: shareholders. In the typical class action settlement, companies pay former shareholders and the class action lawyers, essentially shifting money from the pockets of current shareholders to those who sold their stock after it declined. The Heritage Foundation put it this way: "Longer-term shareholders end up bearing the cost of class action settlements that benefit plaintiffs' trial lawyers." The U.S. Chamber Institute for Legal Reform owns Legal Newsline. [GN] Asbestos Litigation ASBESTOS UPDATE: Consolidation for Discovery in Deem's Case OK'd ---------------------------------------------------------------- The Hon. Benjamin H. Settle of the U.S. District Court for the Western District of Washington, at the behest of Sherri L. Deem, has granted in part Plaintiff's Motion for Consolidation of the case styled Sherri L. Deem, individually and as Personal Representative of the Estate of Thomas A. Deem, deceased, Plaintiff, v. Air & Liquid Systems Corporation, et al., Defendants, Case No. 3:17-cv-05965 BHS, (W.D. Wash.) with Cause No. 3:18-cv-05527-BHS. Case No. 3:17-cv-05965-BHS is consolidated with Cause No. 3:18-cv-05527-BHS for purposes of discovery and for purposes of handling pretrial matters through the Court's disposition of summary judgment or such other time prior to trial as the Court deems appropriate. The Court, however, will not consolidate these actions for trial at this time and will reserve any determination of that issue until discovery is completed. The parties will agree to an amended caption that adequately reflects the consolidated actions. In addition, the Clerk will administratively close Cause No. 3:18-cv-05527-BHS, strike the scheduling order in this action, and issue a new abbreviated scheduling order consistent with the scheduling order in Cause No. 3:18-cv-05527-BHS. Sherri L Deem, individually, and as Personal Representative of the estate of Thomas A Deem, deceased, Plaintiff, represented by Benjamin H. Adams -- badams@dobllp.com -- Dean Omar & Branham, LLP, pro hac vice, Elizabeth Jean McLafferty -- mclafferty@sgb-law.com -- Schroeter Goldmark & Bender, Sabrina G Stone -- sstone@dobllp.com -- Dean Omar Branham, LLP, pro hac vice, Thomas J. Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender & Lucas W.H. Garrett -- garrett@sgb-law.com -- Schroeter Goldmark & Bender. Armstrong International, Inc., Defendant, represented by Bennett J Hansen -- bhansen@pregodonnell.com -- Preg O'Donnell & Gillett, PLLC, David E Chawes -- dchawes@pregodonnell.com -- Preg O'Donnell & Gillett, PLLC & Stephanie B Ballard -- sballard@pregodonnell.com -- Preg O'Donnell & Gillett, PLLC. Anchor/Darling Valve Company, Defendant, represented by Brian D Zeringer -- zeringerb@lanepowell.com -- Lane Powell PC -- Jeffrey M Odom -- odomj@lanepowell.com -- Lane Powell PC & Katie Bass -- bassk@lanepowell.com -- Lane Powell PC. BW/IP, Inc., individually, and as, Defendant, represented by Christine E Dinsdale -- dinsdale@sohalang.com -- Soha & Lang PS & Rachel A Rubin -- rubin@sohalang.com -- Soha & Lang PS. Blackmer Pump Company & Gardner Denver, Inc., Defendants, represented by Claude Bosworth -- cbosworth@rizzopc.com -- Rizzo Mattingly Bosworth PC. Clark-Reliance Corporation, individually, and as & Jerguson Gage & Valve Company, doing business as, Defendants, represented by Alice Coles Serko -- aserko@tktrial.com -- Tanenbaum Keale LLP & Christopher S Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP. Cleaver-Brooks, Inc, formerly known as, Defendant, represented by Timothy Kost Thorson -- thorson@carneylaw.com -- Carney Badley Spellman PS. Crosby Valve, LLC, Goulds Pumps, Inc., Grinnell LLC, doing business as, ITT LLC, formerly known as & Viad Corp., individually, and as, Defendants, represented by Ronald C Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc. PLLC. Flowserve US, Inc., successor in interest, Defendant, represented by Marc Marshall Carlton -- Marc.Carlton@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP & Randy J Aliment -- Randy.Aliment@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP. FMC Corporation, individually, and as & McNally Industries, LLC, individually, and as, Defendants, represented by Katherine M. Steele -- katherine.steele@bullivant.com -- Bullivant Houser Bailey & Rachel Tallon Reynolds -- Rachel.Reynolds@lewisbrisbois.com -- Bullivant Houser Bailey. Hopeman Brothers Inc, Defendant, represented by James P. Brady -- jbrady@foleymansfield.com -- Foley & Mansfield, Jam James D Hicks -- jhicks@foleymansfield.com -- Foley & Mansfield & Melissa K Roeder -- mroeder@foleymansfield.com -- Foley & Mansfield. Ingersoll-Rand Company & Velan Valve Corp., Defendants, represented by Kevin J Craig -- kcraig@grsm.com -- Gordon Rees Scully Mansukhani LLP, Trevor J. Mohr -- tmohr@grsm.com -- Gordon Rees Scully Mansukhani LLP & Mark B Tuvim -- mtuvim@grsm.com -- Gordon Rees Scully Mansukhani LLP. John Crane, Inc., Defendant, represented by Daira S Waldenberg -- dwaldenberg@selmanlaw.com -- Selman Brietman LLP. Viking Pump, Inc., Defendant, represented by Todd M. Thacker -- tthacker@wfbm.com -- WFBM LLP. Weir Valves & Controls USA, Inc., individually, and as, Defendant, represented by Dana C Kopij -- dkopij@williamskastner.com -- Williams Kastner & Gibbs. The William Powell Company, Defendant, represented by Brian Bernard Smith -- bsmith@foleymansfield.com -- Foley & Mansfield & James D Hicks -- jhicks@foleymansfield.com -- Foley & Mansfield. ASBESTOS UPDATE: Cox Claims vs. Parker Hannifin Dismissed --------------------------------------------------------- Upon the Joint Motion of Plaintiffs, Jack Howard Cox Sr., Executor of the Estate of Percy Ray Cox, and Defendant, Parker Hannifin Corporation, the Hon. James C. Dever, III of the United States District Court for the Eastern District of North Carolina dismissed with prejudice all of Plaintiffs' claims against Parker Hannifin from the case styled Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox, Plaintiffs, v. AGCO Corporation, et al., Defendants, Civil Action No. 4:16-CV-00084-D, (E.D.N.C.). A copy of the Order dated Dec. 20, 2018, is available at https://tinyurl.com/y8thz8f2 from Leagle.com. Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox, Dec., Plaintiff, represented by Benjamin D. Braly -- bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone -- sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul -- Dean Omar Branham, LLP & Janet Ward Black , Ward Black Law. Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner Corporation, Defendant, represented by David L. Levy -- dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo, LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP, Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S. Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP. Caterpillar, Inc., Defendant, represented by William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Deere & Company, Inc., doing business as John Deere, Defendant, represented by Tracy E. Tomlin -- tomlin@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante -- bustamante@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP & William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Ford Motor Company, Defendant, represented by Christopher R. Kiger -- ckiger@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP & Addie K.S. Ries -- aries@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP. Honeywell International, Inc., individually and as successor in interest to the Bendix Corporation, Defendant, represented by H. Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick, LLP. Maremont Corporation, Defendant, represented by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William P. Early , Pierce Herns Sloan and Wilson LLC. Navistar, Inc., successor in interest to International Harvester Company, Defendant, represented by Robert O. Meriwether , Nelson Mullins Riley & Scarborough, Tracy E. Tomlin -- tomlin@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante -- bustamante@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP & William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Pneumo Abex LLC, successor in interest to Abex Corporation, Defendant, represented by Timothy W. Bouch , Bouch McLeod LLC. ASBESTOS UPDATE: Cox Claims vs. Standard Motor Dismissed -------------------------------------------------------- Upon the Joint Motion of Plaintiffs, Jack Howard Cox Sr., Executor of the Estate of Percy Ray Cox, and Defendant, Standard Motor Products, Inc., the Hon. James C. Dever, III of the United States District Court for the Eastern District of North Carolina dismissed with prejudice all of Plaintiffs' claims against Standard Motor from the case styled Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox, Plaintiffs, v. AGCO Corporation, et al., Defendants, Civil Action No. 4:16-CV-00084-D, (E.D.N.C.). A copy of the Order dated Dec. 20, 2018, is available at https://tinyurl.com/y7h69g9y from Leagle.com. Jack Howard Cox, Sr., Executor of the Estate of Percy Ray Cox, Dec., Plaintiff, represented by Benjamin D. Braly -- bbraly@dobllp.com -- Dean Omar Branham LLP, Sabrina G. Stone -- sstone@dobllp.com -- Dean Omar Branham LLP, Kevin W. Paul -- Dean Omar Branham, LLP & Janet Ward Black , Ward Black Law. Borg-Warner Morse Tec, Inc., successor in interest to Borg-Warner Corporation, Defendant, represented by David L. Levy -- dlevy@hedrickgardner.com -- Hedrick, Gardner, Kincheloe & Garofalo, LLP, Kelvin T. Wyles -- kelvin.wyles@dentons.com -- Dentons US LLP, Lisa L. Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP & Jon S. Player , Hedrick, Gardner, Kincheloe & Garofalo, LLP. Caterpillar, Inc., Defendant, represented by William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Deere & Company, Inc., doing business as John Deere, Defendant, represented by Tracy E. Tomlin -- tomlin@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante -- bustamante@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP & William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Ford Motor Company, Defendant, represented by Christopher R. Kiger -- ckiger@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, Kirk G. Warner -- kwarner@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP & Addie K.S. Ries -- aries@smithlaw.com -- Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP. Honeywell International, Inc., individually and as successor in interest to the Bendix Corporation, Defendant, represented by H. Lee Davis, Jr. -- ldavis@davisandhamrick.com -- Davis & Hamrick, LLP. Maremont Corporation, Defendant, represented by Carter T. Lambeth , Carter T. Lambeth Attorney, P.C. & William P. Early , Pierce Herns Sloan and Wilson LLC. Navistar, Inc., successor in interest to International Harvester Company, Defendant, represented by Robert O. Meriwether , Nelson Mullins Riley & Scarborough, Tracy E. Tomlin -- tomlin@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP, Travis Andrew Bustamante -- bustamante@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP & William Michael Starr -- bill.starr@nelsonmullins.com -- Nelson Mullins Riley & Scarborough, LLP. Pneumo Abex LLC, successor in interest to Abex Corporation, Defendant, represented by Timothy W. Bouch , Bouch McLeod LLC. ASBESTOS UPDATE: Determination of Utica's Liability Caused Remand ----------------------------------------------------------------- The appealed case Utica Mutual Insurance Company, Plaintiff-Counter-Defendant-Appellant-Cross-Appellee, v. Clearwater Insurance Company, Defendant-Counter-Claimant-Appellee-Cross-Appellant, Docket Nos. 16-2535 (L), 16-2824 (XAP) August Term 2017, (2d Cir.) involves several types of insurance with their own spheres of coverage. From the 1950s to the 1990s, Utica Mutual Insurance Company issued various liability insurance policies -- both primary and umbrella -- to Goulds Pumps, Inc. The Goulds-Utica policies provide liability coverage pursuant to which Utica agreed both to defend Goulds in litigation and to indemnify it for liability claims resolved in settlement or judgment. The policies provide coverage for, among other things, asbestos personal-injury claims. Clearwater Insurance Company reinsured several of these policies. However, the primary policies Utica issued to Goulds from 1978 to 1981 had a glaring omission: they did not include aggregate limits of liability. In other words, the policies failed to specify the maximum amount Utica would pay Goulds. Because that maximum amount defined the limit of Utica's liability to Goulds under its primary policies, the omissions exposed Utica to potentially limitless liability. The absence of a specific aggregate-liability limit became a problem for Utica. The Utica-Goulds policies proved valuable to Goulds when it started receiving thousands of asbestos bodily-injury claims in the 1990s. In the mid-1990s, Goulds experienced a rise in the number of claims alleging injuries from the asbestos in its products. By the early 2000s, Goulds and Utica had initiated actions against each other in California and New York seeking declarations regarding the parties' respective insurance-coverage obligations. Prompted in part by Utica's staggering potential liability stemming from the policies' failure to define Utica's maximum exposure, Goulds and Utica settled in 2007. The settlement treated the primary policies as having aggregate limits. Utica began paying Goulds pursuant to their settlement. Once Utica's obligations to Goulds reached what Utica regarded as an amount sufficient to trigger its coverage under its reinsurance contracts, Utica turned to its reinsurers, including Clearwater, for indemnity. Clearwater had reinsured the 1978 and 1979 umbrella policies for Utica through two near-identical reinsurance certificates. Each Clearwater certificate lists "Clearwater's Liability and Basis of Acceptance" as a percentage share of specified "layers" of the umbrella policies. Clearwater's liability totaled $5 million for the 1978 policy and $2.5 million for the 1979 policy. Clearwater also reinsured the 1979, 1980, and 1981 umbrella policies in three reinsurance contracts (the "TPF&C memoranda") by its participation in a pool of reinsurers then managed by Towers, Perrin, Forster & Crosby, Inc. The limits of these five policies total $7,712,500 in coverage by Clearwater. Clearwater paid nearly $1 million on Utica's reinsurance billings before stopping. According to Clearwater, the lack of aggregate limits on the primary policies meant that asbestos-related losses never reached -- and therefore never triggered indemnity under -- the reinsured umbrella policies. Utica filed suit in 2013 seeking recovery for Clearwater's alleged breach of the five reinsurance contracts spanning 1978 to 1981. Clearwater denied liability and counter-sued for recovery of the amount already paid. At the outset of the litigation, Clearwater filed a motion for partial summary judgment seeking a declaration that any liability on the Clearwater certificates is capped at their stated liability limits ($5 million and $2.5 million for 1978 and 1979, respectively). Though the Clearwater certificates indemnify Utica for loss expenses, they do not clarify whether the expense liability is capped by the stated limits. The certificates only state that "upon receipt by Clearwater of satisfactory evidence of payment of a loss for which reinsurance is provided hereunder, Clearwater will promptly reimburse Utica for its share of the loss and loss expense." Clearwater argued that the certificates' liability limits were hard caps that precluded Utica from recovering defense costs and other expense payments beyond the limits. The district court granted Clearwater's motion, holding that the reinsurer's liability limit under the Clearwater certificates, if any, unambiguously include expenses. Utica now appeals from the district court's grant of Clearwater's partial motion for summary judgment on the scope of its coverage under the reinsurance contracts. Clearwater cross-appeals from the district court's grant of Utica's motion for summary judgment on Clearwater's liability under the Utica-Goulds settlement. On appeal, Utica argues that the district court erred in that regard because the Clearwater certificates are expense-supplemental -- that is, they require Clearwater to cover all expenses in addition to Clearwater's accepted liability limit under the certificates. The question presented on appeal is, thus, whether the expenses Clearwater pays are capped at Clearwater's liability limit or must be paid in addition to it. The Second Circuit of the U.S. Court of Appeals determines that Clearwater's liability is expense-supplemental. The Court finds that Clearwater's certificates provide that it reinsures Utica "subject to the terms and General Conditions of the certificates." Its reinsurance obligations, therefore, hinge on the certificates' terms and conditions. The certificates list Clearwater's "Liability and Basis of Acceptance" as $5 million and $2.5 million. They also have boilerplate General Conditions addressing, among other topics, reinsurer liability. General Condition 1 encompasses a "follow the form" clause. Clearwater's liability therefore must follow Utica's liability unless the insurance policies' terms and conditions are inconsistent with those of the reinsurance certificates. In light of the follow-the-form clause, Clearwater's obligations on the Clearwater certificates must track Utica's obligations on the underlying policies. Because the underlying policies are expense-supplemental, the Clearwater certificates likewise are expense-supplemental. Thus, the Court determines that when Clearwater is liable to pay expenses on its issued policies, it must pay those expenses in addition to the up to $5 million and $2.5 million of reinsurance liability accepted under the 1978 and 1979 reinsurance certificates, respectively. However, the conclusion does not resolve the disagreement of the parties, it merely shifts from interpretation of the Clearwater certificates to interpretation of the umbrella policies. Utica's umbrella policies cover expenses "not covered by" primary or other insurance: Utica must pay expenses beyond the liability limit only "with respect to any occurrence not covered by the policies listed in the schedule of underlying insurance." Clearwater argues that "not covered by" means not within the scope of coverage. It reasons that because asbestos liabilities were covered by primary insurance, the umbrella policies were not triggered, and Utica (and therefore Clearwater) was not required to pay expenses in addition to the liability limit for asbestos claims. Utica argues that "not covered by" means not collected under. According to Utica, this language merely specifies that Utica pays expenses beyond the liability limit only for asbestos liabilities arising upon exhaustion of the primary policies. The Court finds, however, that the district court has not decided whether expenses stemming from Goulds' asbestos-related claims fall into this "not covered by" category. Such determination is critical, the Court says. The Court explains that follow-the-form clauses achieve congruity of policies, and thus expense liability, between the reinsurer and its reinsured; the clauses do not amplify a reinsurer's liability beyond that of the reinsured. Thus, if Utica's umbrella policies do not insure asbestos-related expenses, then Clearwater's reinsurance certificates do not either. The Court concludes that the district court must resolve in the first instance whether Utica's underlying policies obligate Utica to pay asbestos-related costs. Although the umbrella policies are expense-supplemental, and the reinsurance policies must follow form in accordance with those policies, whether Utica is obligated under its umbrella policies to pay expenses for asbestos-related claims depends on the meaning of "not covered by." Accordingly, the Court vacates the district court's grant of partial summary judgment for Clearwater and remands the case for the district court to determine the meaning of "not covered by." The cross-appeal concerns Clearwater's obligations under the TPF&C Memoranda and the Clearwater certificates to reimburse Utica for its voluntary settlement with Goulds. The TPF&C Memoranda provides: "All claims settlements when authorized by TPF&C, will be binding on the Reinsurers...." The Parties agree that the authorization language imposes a condition precedent to a reinsurer's liability for settlement payments. Clearwater argues that because Utica never sought or received TPF&C's authorization before settling, Clearwater was not bound to Utica's settlement. Utica responds that it was excused from complying with the obligation to get authorization from TPF&C because doing so would have been an impossible task. The Court finds that Utica failed to show that Clearwater was obliged to follow the settlement under the TPF&C memoranda, notwithstanding that Utica never got TPF&C's authorization before settling. Utica has established neither that (1) the condition is minor, a mere technicality, and would result in forfeiture, nor that (2) Clearwater hindered satisfaction of the condition. Although Utica argues that TPF&C's decision to step away from managing the insurance consortium is attributable to Clearwater, it fails to show that Clearwater played a part in TPF&C's decision. Even if Utica had shown that obtaining TPF&C's authorization was impossible and thus excused, the Court clarifies that Utica also needed to establish that Clearwater's performance was not also excused by reason of the unrealized condition -- the authorization for settlement. Thus, the Court concludes that Utica did not establish its entitlement as a matter of law to have Clearwater pay according to the Goulds-Utica settlement. As a matter of law, the Court determines that Clearwater is not obligated under either the memoranda or the certificates to follow Utica's settlement with Goulds, but rather Clearwater must indemnify Utica according to Utica's proven liability on the umbrella policies. Accordingly, the Court vacates the district court's grant of summary judgment for Utica and remands for trial to determine Clearwater's actual liability to Utica under both the TPF&C memoranda and the Clearwater certificates. A full-text copy of the decision is available at https://tinyurl.com/yd9gat5f from Leagle.com. William M. Sneed -- wsneed@sidley.com -- ( Daniel R. Thies , on the brief), Sidley Austin LLP, Chicago, IL, for Plaintiff-Appellant-Cross-Appellee. David C. Frederick -- dfrederick@kellogghansen.com -- Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C. (Jeremy S.B. Newman -- jnewman@kellogghansen.com -- Amelia I.P. Frenkel, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C.; John F. Finnegan , Chadbourne & Parke LLP, New York, NY, on the brief), for Defendant-Appellee-Cross-Appellant. ASBESTOS UPDATE: Ford Motor's Summary Judgment Granted in Doolin ---------------------------------------------------------------- In the case entitled Stacey Doolin, as the Personal Representative of the Estate of Richard E. Doolin, Plaintiff, v. Ford Motor Company, et al., Defendants, Case No. 3:16-cv-778-J-34PDB, (M.D. Fla.), remaining Defendants, Ford Motor Company and Pneumo Abex LLC, have filed several Daubert motions seeking to exclude Plaintiff's causation experts, Arnold R. Brody, Ph.D., and Richard L. Kradin, M.D., D.T.M. & H., and motions for summary judgment. The Hon. Marcia Morales Howard of the U.S. District Court for the Middle District of Florida grants Ford Motor Company and Pneumo Abex LLC's Motion to Exclude Plaintiff's causation expert Richard L. Kradin. As Plaintiff has offered no additional proof that exposure to the asbestos-containing products of Ford or Abex more likely than not caused the Decedent's cancer, the Court also grants Ford and Abex's Summary Judgment Motions. Richard E. Doolin was diagnosed with mesothelioma and died as a result of the mesothelioma on June 22, 2014. His wife, Plaintiff Stacey Doolin, as the personal representative of her husband's estate, initiated this products liability action pertaining to Defendants' asbestos-containing automotive products on June 22, 2016. The Plaintiff maintains that the Decedent developed mesothelioma because of his exposure to "asbestos-containing products manufactured, sold, supplied and/or distributed" by Defendants. The Plaintiff asserts causes of action for state law negligence and strict liability premised on design defect and a failure to warn. On July 8, 2016, the Plaintiff filed the Amended Complaint, which indicates that the Decedent was exposed to asbestos as a child when he would visit the automotive workshop -- the Teen Challenge Workshop -- where his father was employed. In addition, Plaintiff maintains that the Decedent continued to perform automotive work throughout his life, although not professionally, further exposing him to asbestos. As evidence of causation, Plaintiff relies on the testimony of expert witnesses Brody and Kradin. Brody intends to testify as to general causation -- the manner and means by which exposure to chrysotile asbestos can cause mesothelioma, and Kradin is prepared to testify as to specific causation -- that the Decedent's exposure to chrysotile asbestos from the automotive work did cause his mesothelioma. Ford and Abex contend that Brody and Kradin's opinions should be excluded because they fail to satisfy the requirements of Daubert for the admissibility of expert testimony, and that absent this testimony, Ford and Abex are entitled to summary judgment because Plaintiff fails to demonstrate an issue of fact on causation. Alternatively, Ford and Abex contend that even if the Court finds that Brody and Kradin's opinions are admissible, their testimony is insufficient to establish an issue of fact on causation under Florida law. Specifically, the Defendants take issue with Brody's concluding opinion that: "Once a person develops an asbestos-related cancer, it is not possible to exclude any of the person's above-background exposures to asbestos from the causal chain. Each and every exposure to asbestos that an individual with mesothelioma experienced in excess of a background level contributes to the development of the disease." The Defendants argue that Brody offers no opinions specific to the Decedent in this case and indeed, he rendered his opinion without any information regarding the quantity of the Decedent's dose exposures to asbestos. As to general causation, Ford and Abex contend that there is no evidence that exposure to chrysotile asbestos in brake dust causes mesothelioma. Ford and Abex rely on studies indicating that the conditions under which brake pads are used transforms the asbestos on the brake pad into a non-carcinogenic substance. Ford and Abex also cite to epidemiological evidence that there is no increased incidence of mesothelioma among automobile mechanics. In response, Plaintiff argues that it is well-accepted in the scientific community that chrysotile asbestos causes mesothelioma. Although Plaintiff's argument focuses on chrysotile asbestos more broadly, rather than brake dust specifically. The Court notes that neither Kradin nor Brody discuss brake dust in their expert reports, although, during his deposition, Kradin did testify to his opinion that "brakes are cause of mesothelioma, working with brakes or bystander exposures to brakes are the cause of mesothelioma." Thus, the specific causation question in the instant case is: was the Decedent's exposure to asbestos in the Teen Challenge auto shop a substantial contributing factor to the development of the mesothelioma? Kradin provides Plaintiff's sole evidence on the issue of specific causation. Kradin acknowledges that mesothelioma is a dose-response disease, such that "the more asbestos exposure an individual has, the greater his or her chance of developing mesothelioma," but he does not attempt to analyze the Decedent's particular exposure or the degree to which it increased his risk of mesothelioma. Additionally, Kradin maintains that it is not necessary to determine the amount of the Decedent's dose because "there is no safe level (or threshold) of exposure to asbestos that has been shown not to cause mesothelioma." The Court finds Kradin's disregard of the need to assess the Decedent's particular dose and attendant risk particularly problematic because the Decedent suffered from an unusual form of mesothelioma located in the pericardium. Nonetheless, the very basis of Kradin's "any exposure" causation opinion is the strong, well-established connection between asbestos exposure and pleural and peritoneal mesothelioma. Kradin resolves the discrepancy by opining that: (1) he does not have enough information to know for sure that the Decedent's mesothelioma was primary and exclusive to the pericardium, and (2) regardless, pericardial mesothelioma is not biologically distinct from other types of mesothelioma, and the scientific literature on pericardial mesothelioma supports some association to asbestos. This explanation is unsupported by citation to any scientific or medical literature, and as such, the Court finds this precisely the type of leap from an accepted scientific premise to an unsupported one that courts are cautioned against. Because Kradin's opinion is premised on data pertaining to pleural and peritoneal mesothelioma, and absent any support for his extrapolation that such data is equally applicable to pericardial mesothelioma, the Court concludes that Kradin's causation opinion is not tailored to the facts of the case and as such too unreliable. The Court maintains that Kradin's opinion lacks any analysis of the competing explanation for the Decedent's mesothelioma. Thus, the Court is convinced that Kradin's opinion is due to be excluded because Kradin reaches his opinion as to specific causation without: (1) making any attempt to analyze the Decedent's specific dose of asbestos and the degree to which it increased his risk of developing mesothelioma, (2) identifying or discussing the particular form of the Decedent's mesothelioma and its connection to asbestos exposure, or (3) adequately considering the contribution of the Decedent's therapeutic radiation and explaining why it was likely not the sole cause of his mesothelioma. Since causation is a critical element in each of Plaintiff's claims, Ford and Abex are entitled to judgment as a matter of law on all claims set forth in the Amended Complaint because Plaintiff fails to establish the existence of a genuine issue of material fact with regard to whether the Decedent's exposure to asbestos while working with Ford and Abex products caused him to develop mesothelioma. A full-text copy of the Order is available at https://tinyurl.com/y7nxn5cr from Leagle.com. Stacey Doolin, as Personal Representative of the Estate of Richard E. Doolin, Plaintiff, represented by David A. Jagolinzer , The Ferraro Law Firm & Marc Phillip Kunen , The Ferraro Law Firm. Ford Motor Company, Defendant, represented by Alina Alonso Rodriguez -- alina.rodriguez@bowmanandbrooke.com -- Bowman and Brooke, LLP, Andrew Scott Freedman -- andrew.freedman@csklegal.com -- Cole, Scott & Kissane, PA, Caroline M. Iovino -- ciovino@mwe.com -- McDermott, Will & Emery, LLP, Clarke S. Sturge -- clarke.sturge@csklegal.com -- Cole, Scott & Kissane, PA, Henry Salas -- henry.salas@csklegal.com -- Cole, Scott & Kissane, PA, Shepherd D. Wainger , McGuire Woods, LLP, pro hac vice & Wendy Frank Lumish -- wendy.lumish@bowmanandbrooke.com -- Bowman and Brooke, LLP. Honeywell International, Inc., as successor in interest to Allied Corporation, as successor in interest to The Bendix Corporation, Defendant, represented by Anthony Nolan Upshaw -- aupshaw@mwe.com -- McDermott, Will & Emery, LLP, Caroline M. Iovino -- ciovino@mwe.com -- McDermott, Will & Emery, LLP, Melissa Raspall Alvarez -- malvarez@mwe.com -- McDermott, Will & Emery, LLP & Jack Roy Reiter -- jack.reiter@gray-robinson.com -- GrayRobinson, PA. Pneumo Abex LLC, a successor in interest to Pneumo Abex Corporation, Defendant, represented by Andrew Scott Freedman -- andrew.freedman@csklegal.com -- Cole, Scott & Kissane, PA, Caroline M. Iovino -- ciovino@mwe.com -- McDermott, Will & Emery, LLP, Clarke S. Sturge -- clarke.sturge@csklegal.com -- Cole, Scott & Kissane, PA, Henry Salas -- henry.salas@csklegal.com -- Cole, Scott & Kissane, PA, Johan D. Flynn -- jflynn@dehay.com -- DeHay Elliston, LLP, pro hac vice & John M. Fitzpatrick -- fitzpatrick@wtotrial.com -- Wheeler Trigg O'Donnell, LLP, pro hac vice. ASBESTOS UPDATE: Jenkins Time to Enter Additur Stipulation Enlarged ------------------------------------------------------------------- The Appellate Division of the Supreme Court of New York, at the behest of Jenkins Bros., has enlarged Defendant-Appellant's time to choose whether to stipulate to the additur or proceed with the retrial, until its appeal to the Court of Appeals is decided. A decision and order of the Court (Appeal No. 6936-38), have been entered on Sept. 13, 2018, which, inter alia, modified an order of the Supreme Court, New York County, entered on Dec. 15, 2017, to direct a new trial on past pain and suffering only, unless, Defendant-Appellant stipulated to increase the award for past pain and suffering to $4 million, and to reinstate the jury's future pain and suffering award of $1.5 million. The appealed case is In Re: New York City Asbestos Litigation. Ann Marie Idell, As Executrix of the Estate of Thomas Mc Glynn, Deceased, Plaintiff-Respondent, v. AERCO International, Inc., et al., Defendants, Crane Co., et al., Defendants-Respondents, Jenkins Bros., Defendant-Appellant, Motion No. M-5145, Index No. 190219/16, (N.Y. App. Div.). A copy of the Order dated Dec. 20, 2018, is available at https://tinyurl.com/y7ltvm9a from Leagle.com. ASBESTOS UPDATE: Louisiana Pacific is Liable to Atchley's ARD ------------------------------------------------------------- The Hon. David M. Sandler of the Workers' Compensation Court of Montana has issued a Findings of Fact, Conclusions of Law, and Judgment in the case styled Hazel Atchley, Petitioner, v. Louisiana Pacific Corp., Respondent/Insurer, resolving the Parties' disagreement whether Edward Atchley's ARD constitutes an occupational disease for which Louisiana Pacific Corp. can be liable, particularly as to the interplay of Sections 39-72-102(10) and -408, MCA, on the one hand, and Section 39-72-303(1), MCA, on the other. LP asserts that the Court must apply Section 39-72-408, MCA, specifically to Edward's employment at the lumbermill owned by Louisiana Pacific Corp. (LP Lumbermill) and determine whether that specific employment was the proximate cause of Edward's ARD. LP argues that if Petitioner Hazel Atchley does not prove that Edward's employment at the LP Lumbermill was the proximate cause of his ARD, then Edward did not have an occupational disease for which it can be liable. However, if Hazel proves that Edward's employment at LP was the proximate cause of his ARD, then the Court can consider whether any exposure to asbestos at the LP Lumbermill constitutes a last injurious exposure under Section 39-72-303(1), MCA. Hazel maintains that if she proves that Edward's lifetime of employment was the proximate cause of his ARD, thereby proving that Edward had an occupational disease pursuant to Sections 39-72-102(10) and -408, MCA, the next step is to determine which employer is liable under the last injurious exposure rule, at Section 39-72-303(1), MCA. The Court finds that from the 1920s to 1990, Zonolite Company and then W.R. Grace operated vermiculite mine, which was 7 miles northeast of Libby. The vermiculite contained a unique, amphibole-type asbestos, called "Libby amphibole" or "Libby asbestos." Because of the mine's proximity to Libby, the town had a hazardous "background" or "ambient" level of asbestos when the mine operated. In the mid-1970s, the level was measured at 1 fiber per cubic centimeter, which exceeds the current OSHA limit. Approximately 7 to 9% of residents with no occupational or familial exposure developed ARD. It is undisputed that Edward Atchley experienced many exposures to asbestos during his lifetime. While Edward's non-occupational exposure as a Libby resident was "high enough to have increased the risk for" ARD, the Court finds that Edward's occupational exposure to asbestos was greater than his non-occupational exposure. The Court has found that he was exposed to asbestos during his service in the U.S. Navy while working in an engine room onboard the USS Herbert J. Thomas; and exposed to Libby asbestos in amounts greater than the Libby background while working at the Stimson Lumbermill, at W.R. Grace, and at the lumbermill owned by Louisiana Pacific Corp. (LP Lumbermill). It is undisputed that Edward developed ARD, and the Court finds that each of these occupational exposures significantly contributed to Edward's ARD. The evidence establishes that Edward spent more than 20 years working in jobs, including in the Navy, at the Stimson Lumbermill, at the W.R. Grace Mine, and at the LP Lumbermill, in which he was continuously exposed to significant amounts of airborne asbestos in amounts that were greater than the Libby background. The Court also finds that during the 9-year course of his full-time employment for LP, Edward was consistently exposed to air and dust contaminated with Libby asbestos while working at the LP Lumbermill, in amounts exceeding the background level found in Libby. The sources of contamination settled on the dirt roads at the mill that were regularly kicked up by vehicle traffic, adding to Edward's continuous exposure. The Court concludes that Edward's exposure to Libby asbestos at the LP Lumbermill significantly aggravated and contributed to his ARD. LP argues that since Edward was first diagnosed with ARD decades after he left the Navy and engaged in other employments, under Montana law, the Court must determine the last employment where Edward was injuriously exposed to the hazard of the disease -- not the first. Although Edward's military exposure was sufficient to cause his ARD, Montana law places liability on the last injurious exposure. The Court has found that Edward had an occupational disease because his occupational exposures significantly contributed to and aggravated his ARD and that Edward's occupational exposure at the LP Lumbermill was the type and kind of exposure that can cause ARD. Under Montana law, this is sufficient for LP to be liable. The Court concludes that Edward's exposure to airborne asbestos in amounts exceeding the Libby background in the course of his 9-year employment at the LP Lumbermill -- the same type and kind of conditions which cause ARD contributed to his occupational disease. Thus, even if earlier employers may have contributed more to the development of Edward's occupational disease, the Court determines that LP is liable as the insurer at risk at the time of Edward's last injurious exposure. A full-text copy of the Findings of Fact, Conclusions of Law, and Judgment is available at https://tinyurl.com/ybc3ytho from Leagle.com. ASBESTOS UPDATE: Rivera's Suit Remains With District Court ---------------------------------------------------------- The Hon. Jane Triche Milazzo of the U.S. District Court for the Eastern District of Louisiana denies Plaintiff's Motion to Remand the case styled Judith Punch Rivera, v. Huntington Ingalls, Inc., et al., Civil Action No. 18-6795, (E.D. La.). This asbestos litigation stems from a wrongful death and survival suit filed in state court by Plaintiff Judith Punch Rivera, on behalf of her deceased mother, Dolores Punch. The Plaintiff filed her original petition in Louisiana's 34th Judicial District Court in St. Bernard Parish on June 8, 2017, claiming Punch died from mesothelioma she contracted as a result of washing her husband's asbestos-ridden clothing for years. The suit names numerous defendants, including Kaiser Aluminum and Huntington Ingalls, Inc. ("Avondale"). Avondale is the current owner of the company where the decedent's husband worked for when he handled asbestos-containing material as a pipefitter and welder at the Avondale shipyard in New Orleans from 1948 to 1960. The decedent's husband, Richard Punch Sr., also worked from 1961 to 1967 at Kaiser Aluminum in Chalmette, Louisiana, in the same type of jobs handling the same kinds of asbestos-containing materials. On Aug. 18, 2017, the suit was transferred to the Civil District Court in Orleans Parish. There, on July 6, 2018, Plaintiff filed a first supplemental and amended petition. In it, Plaintiff alleged it was not just the asbestos-covered clothes of decedent's husband, but also those of decedent's son, that caused decedent's mesothelioma. Decedent's son, Richard Punch Jr., worked as a helper and pipefitter at Avondale from 1976 to 1979. Plaintiff alleged state law strict liability and negligent failure to warn, supervise, and train claims against Avondale and other defendants as part of her wrongful death and survival suit. On July 18, 2018, Defendant Avondale removed Plaintiffs' suit to the District Court for the Eastern District of Louisiana under the Federal Officer Removal Statute. In essence, Defendant Avondale argues it is entitled to removal because it only engaged in the conduct underlying Plaintiffs' claims -- the use of asbestos-containing products in Avondale's shipbuilding business -- because Avondale's contracts with the federal government required it to do so. Avondale raises as its colorable federal defense the jurisprudential doctrine of government contractor immunity. The Plaintiff filed a Motion to Remand the case to state court, arguing that Defendant Avondale failed to meet the necessary requirements of the Federal Officer Removal Statute. First, Plaintiff argues the government contractor defense is applicable only in design or manufacturing defect cases, not failure to warn cases. Plaintiff argues next that the defense does not apply because Plaintiff made her failure to warn claims against only manufacturers and suppliers of asbestos-containing materials, not Avondale, a shipbuilder. Plaintiff also argues that the contractor defense only applies when the asbestos-containing materials are military equipment. Despite these assertions, the Fifth Circuit has held, in other cases like this one, that Defendant Avondale (1) has satisfied that the government's mandatory contract terms required Avondale to build ships with specific asbestos-containing material; (b) has shown that the ships it built conformed to the government's contract specifications requiring the use of asbestos-containing material; and (c) has submitted affidavit and deposition testimony of a maritime historian, an industrial hygienist, and a retired Assistant Surgeon General of the United States to show Avondale knew no more than the government did about the dangers of asbestos at the time Avondale used asbestos-containing materials in its shipbuilding work. The Court concludes that Avondale successfully asserted the government contractor immunity defense as a "colorable" federal defense to support removal under the Federal Officer Removal Statute. Recognizing the fatal effect of the strict liability claims on her Motion to Remand, Plaintiff argues that the Court should allow her to undo those claims, apply the change retroactively, and grant her Motion. The outcome-determinative question before the Court is whether it should consider Plaintiff's request to amend her strict liability claims against Avondale -- a request not made until after Avondale removed the suit -- as part of its analysis of Plaintiff's Motion to Remand. The Court explains that if it allowed Plaintiff to strategically delete specific claims to defeat removal and then remanded the case, Defendants might just ground their removal on different claims in the state petition. Worse, Plaintiff might simply attempt to further amend their claims once back in state court to add removable claims. As such, it is clear that a district court should decide the issues in a Motion to Remand based on the claims pending at the time the defendant removed the case. Because the Court treats Plaintiff's amended state court petition as having stated a strict liability claim against Avondale at the time removal occurred, Defendant Avondale satisfied the causal nexus requirement of the Federal Officer Removal Statute. As such, Defendant satisfied all four elements necessary for removal under the Federal Officer Removal Statute. A full-text copy of the Order and Reasons is available at https://tinyurl.com/yaqego25 from Leagle.com. Judith Punch Rivera, Statutory heir of Dolores Punch, Plaintiff, represented by L. Eric Williams, Jr. , Williams Law Office, LLC & John Joseph Finckbeiner, Jr. , The Law Office of John J. Finckbeiner, Jr. Huntington Ingalls, Inc., formerly known as Northrop Grumman Ship Systems, Inc., Avondale Industries, Inc., Avondale Shipyards, Inc, Defendant, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Eagle, Inc. & McCarty Corporation, Defendants, represented by Susan Beth Kohn -- suek@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler -- douglask@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn -- douglasr@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Nicole M. Loup , Nicole M. Loup, Attorney at Law & Stephen Jared Austin , Stephen J. Austin, LLC. Arrowood Indemnity Company, Defendant, represented by Lawrence G. Pugh, III -- lpugh@pugh-law.com -- Pugh, Accardo, LLC, Donna M. Young -- dyoung@pugh-law.com -- Pugh, Accardo, LLC, Jacqueline Romero -- jromero@pugh-law.com -- Pugh, Accardo, LLC & Shelley L. Thompson -- sthompson@pugh-law.com -- Pugh, Accardo, LLC. Owens-Illinois, Inc., doing business as O-I, Defendant, represented by Walter G. Watkins, III -- wg.watkins@formanwatkins.com -- Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn -- elizabeth.penn@formanwatkins.com -- Forman Watkins & Krutz LLP & Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP. Crown, Cork & Seal USA, Inc., Defendant, represented by Michael D. Lonegrass -- mlonegrass@gallowaylawfirm.com -- Galloway, Johnson, Tompkins, Burr & Smith & Rodger Gregory Green, Jr. -- RGreenJr@gallowaylawfirm.com -- Galloway, Johnson, Tompkins, Burr & Smith. Reilly-Benton Company, Inc., Defendant, represented by Thomas L. Cougill , Willingham Fultz & Cougill, LLP, Jamie M. Zanovec , Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin , Willingham Fultz & Cougill, LLP & Jennifer D. Zajac , Willingham Fultz & Cougill, LLP. Foster Wheeler, LLC, Improperly named as Amec Foster Wheeler Constructors, Inc., Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Huntington Ingalls, Inc., Third Party Plaintiff, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Huntington Ingalls, Inc., Cross Claimant, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson -- arobertson@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Owens-Illinois, Inc., Cross Defendant, represented by Walter G. Watkins, III -- wg.watkins@formanwatkins.com -- Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn -- elizabeth.penn@formanwatkins.com -- Forman Watkins & Krutz LLP & Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP. Reilly-Benton Company, Inc., Cross Defendant, represented by Thomas L. Cougill , Willingham Fultz & Cougill, LLP, Jamie M. Zanovec , Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin , Willingham Fultz & Cougill, LLP & Jennifer D. Zajac , Willingham Fultz & Cougill, LLP. McCarty Corporation, Cross Defendant, represented by Susan Beth Kohn -- suek@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler -- douglask@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn -- douglasr@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Nicole M. Loup , Nicole M. Loup, Attorney at Law & Stephen Jared Austin , Stephen J. Austin, LLC. Foster Wheeler, LLC, Cross Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Arrowood Indemnity Company, Cross Defendant, represented by Lawrence G. Pugh, III -- lpugh@pugh-law.com -- Pugh, Accardo, LLC, Donna M. Young -- dyoung@pugh-law.com -- Pugh, Accardo, LLC, Jacqueline Romero -- jromero@pugh-law.com -- Pugh, Accardo, LLC & Shelley L. Thompson -- sthompson@pugh-law.com -- Pugh, Accardo, LLC. ASBESTOS UPDATE: Uzee's Suit Remanded to La. State Court -------------------------------------------------------- District Judge Jane Triche Milazzo grants Plaintiff's Motion to Remand the case styled Kathleen A. Uzee, et al., v. Huntington Ingalls Incorporated, et al., Civil Action No. 18-6856, (E.D. La.). Plaintiffs Kathleen A. Uzee, Denise A. Uzee, and Philip A. Uzee filed this asbestos litigation in state court, on behalf of their deceased relative, Atney Uzee. Plaintiffs filed their original petition in Orleans Parish's Civil District Court on March 21, 2018, claiming Atney Uzee died on October 10, 2017, because of mesothelioma caused by his exposure to asbestos-containing products during his employment at the Avondale shipyard in New Orleans from 1964 to 1972. Plaintiffs sued numerous defendants, including Defendant Huntington Ingalls Inc. ("Avondale"), under Louisiana state law negligence and failure to warn claims seeking wrongful death and survival damages. On July 19, 2018, Defendant Avondale removed Plaintiffs' suit to the District Court for the Eastern District of Louisiana under the Federal Officer Removal Statute. In essence, Defendant Avondale argues it is entitled to removal because it only engaged in the conduct underlying Plaintiffs' claims -- the use of asbestos-containing products in Avondale's shipbuilding business -- because Avondale's contracts with the federal government required it to do so. Plaintiffs filed a Motion to Remand the case to state court. Plaintiffs argue Defendant Avondale failed to satisfy the elements of the Federal Officer Removal Statute. Plaintiffs also argue that Defendant Avondale failed to timely remove this action as required by 28 U.S.C. Section 1446(b). Under that statute, a defendant must file a Notice of Removal within 30 days after receipt of a plaintiff's "initial pleading setting forth the claim for relief upon which such action or proceeding is based." Plaintiffs filed their "initial pleading" in state court on March 21, 2018 and Defendant Avondale did not remove this action until July 19, 2018. It is unclear from the record exactly when Defendant received a copy of Plaintiffs' initial pleading. The Court, however, assumes arguendo that the receipt occurred more than 30 days before Defendant removed the action because four months passed between Plaintiffs' filing of their petition and Defendant's subsequent removal. Thus, if Plaintiffs' petition contained sufficient allegations to put Defendant Avondale on notice to remove, Avondale's removal would have been untimely. Defendant Avondale argues it only became aware that Plaintiffs' suit was removable when, on July 5, 2018, Defendant received a transcript of the deposition of Tex Martinez. It was in that deposition that Defendant learned Plaintiffs were alleging the decedent suffered asbestos exposure aboard a specific federal ship at Avondale's shipyard. Because Defendant Avondale filed for removal on July 19 -- two weeks after it received the transcript of Martinez's deposition -- the removal occurred comfortably within the 30-day window provided by Section 1446(b)(3). Thus, Defendant Avondale claims the removal was timely. The Court finds Defendant Avondale failed to meet the "causal nexus" element -- that there exists a causal nexus between its actions under the direction of the federal government and the conduct underlying the plaintiff's claim in the suit. Because this case is but one of numerous others in which asbestos plaintiffs have fought with Avondale and other defendants about removability under the Federal Officer Removal Statute, there exists a plethora of Fifth Circuit cases interpreting the statute's causal nexus requirement. When a plaintiff makes a strict liability claim against Avondale based on Avondale's use of asbestos-containing material pursuant to its obligations under shipbuilding contracts it had with the federal government, the causal nexus element is satisfied. But when the claim is for negligent failure to warn, train, and adopt safety procedures regarding asbestos, "removal... is inappropriate because the nexus requirement is not met." The theory underlying the distinction is that just because the government required Avondale to use asbestos-containing material, it does not mean Avondale was not free to adopt safety measures warn its employees about the dangers of asbestos and to protect them from handling the dangerous materials. On the contrary, when a plaintiff alleges Avondale is strictly liable for the mere use of asbestos-containing products, it makes more sense to find as a matter of law that the government's mandate to use asbestos caused Avondale's allegedly unlawful behavior. However, Plaintiffs expressly disclaimed against Defendant Avondale any claims arising from strict liability. In lieu of those claims, Plaintiffs made Louisiana state law negligent failure to warn, train, supervise, and adopt safety procedures governing employee handling of asbestos-containing material. Because Plaintiffs are "masters" of their complaint, Defendant Avondale cannot force Plaintiffs to make claims they expressly disclaimed. As such, under the clear Fifth Circuit precedent created by Melancon and Legendre, the Court determines that Defendant Avondale failed to satisfy the causal nexus element of the removal statute by merely alleging that contractual provisions required it to use asbestos-containing material. A full-text copy of the Order and Reasons is available at https://tinyurl.com/yavzwgnv from Leagle.com. Kathleen A. Uzee, Individually and on behalf of the Decedent Atney R. Uzee, Jr., Denise A Uzee, Individually and on behalf of the Decedent Atney R. Uzee, Jr. & Philip A. Uzee, Individually and on behalf of decedent Atney R. Uzee, Jr, Plaintiffs, represented by J. Burton LeBlanc, IV , Baron & Budd, P.C., Christopher C. Colley , Baron & Budd, P.C., David Ryan Cannella , Cannella Law Firm, LLC & Jeremiah S. Boling , Baron & Budd, P.C. Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc., Avondale Industries, Inc., Avondale Shipyards, Inc, Northrop Grumman Ship Systems, Inc., Defendant, represented by Brian C. Bossier -- bbossier@bluewilliams.com -- Blue Williams, LLP, Christopher Thomas Grace, III -- cgrace@bluewilliams.com -- Blue Williams, LLP, Edwin A. Ellinghausen, III -- eellinghausen@bluewilliams.com -- Blue Williams, LLP, Erin Helen Boyd -- eboyd@bluewilliams.com -- Blue Williams, LLP, Jasmine Najee Brown -- jnbrown@bluewilliams.com -- Blue Williams, LLP, Laura M. Gillen -- lgillen@bluewilliams.com -- Blue Williams, LLP, Patrick Kevin Shockey -- pshockey@bluewilliams.com -- Blue Williams, LLP & Rhonda Goode Douglas , Blue Williams, LLP. Albert L. Bossier, Jr., Defendant, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Alexander R. Saunders , Irwin Fritchie Urquhart & Moore, LLC, Amanda Marie Crowley Fraser , Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Frances M. Montegut , Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. J. Melton Garrett, Defendant, represented by Gustave A. Fritchie, III -- gfritchie@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon -- dmelancon@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin -- etrapolin@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels -- tdaniels@irwinllc.com -- Irwin Fritchie Urquhart & Moore, LLC. Lamorak Insurance Company, Successor to OneBeacon America Insurance Comapny, Commercial Union Insurance Company and Employers Commercial Union Insurance Company Erroneously referred to as OneBeacon AMerica Insurance Company and American Employers Insurance Company, Defendant, represented by Samuel Milton Rosamond, III , Taylor, Wellons, Politz & Duhe, APLC, Adam Devlin deMahy , Taylor, Wellons, Politz & Duhe, APLC & Travis Layne Simmons , Taylor, Wellons, Politz & Duhe, APLC. Hopeman Brothers, Inc., Defendant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. McCarty Corporation, Successor to McCarty-Branton, Inc and Predecessor and successor to McCarty Insulation Sales, Inc & Eagle, Inc., formerly known as Eagle Asbestos & Packing Co., Inc., Defendants, represented by Susan Beth Kohn -- suek@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler -- douglask@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry -- jamesg@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP & Louis Oliver Oubre -- louiso@spsr-law.com -- Simon, Peragine, Smith & Redfearn, LLP. Trinity Industries, Inc., formerly known as Halter Marine Inc, Halter Marine Services Inc, Defendant, represented by Barbara Lee Arras -- barbara.arras@phelps.com -- Phelps Dunbar, LLP, Jeffrey A. Clayman -- jeffrey.clayman@phelps.com -- Phelps Dunbar, LLP & Patrick A. Talley, Jr. -- talleyp@phelps.com -- Phelps Dunbar, LLP. Bollinger Shipyards Lockport, LLC, Defendant, represented by Lawrence G. Pugh, III -- lpugh@pugh-law.com -- Pugh, Accardo, LLC, H. Philip Radecker, Jr. -- hpradecker@pugh-law.com -- Pugh, Accardo, LLC & Shelley L. Thompson -- sthompson@pugh-law.com -- Pugh, Accardo, LLC. International Paper Company, Incorrectly named as International Paper Company as Successor-in-interest to U.S. Plywood, Defendant, represented by Walter G. Watkins, III -- wg.watkins@formanwatkins.com -- Forman, Watkins & Krutz LLP, Daniel S. Roberts -- daniel.roberts@formanwatkins.com -- Forman, Watkins, & Krutz, LLP, Elizabeth Riddell Penn -- elizabeth.penn@formanwatkins.com -- Forman Watkins & Krutz LLP, Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith -- peyton.smith@formanwatkins.com -- Forman, Watkins, & Krutz, LLP. CBS Corporation, formerly known as Westinghouse Electric Corporatioin, Viacom Inc., Defendant, represented by John Joseph Hainkel, III -- jhainkel@frilot.com -- Frilot L.L.C., Angela M. Bowlin -- abowlin@frilot.com -- Frilot L.L.C., James H. Brown, Jr. -- jbrown@frilot.com -- Frilot L.L.C., Kelly L. Long -- klong@frilot.com -- Frilot L.L.C., Kelsey A. Eagan -- keagan@frilot.com -- Frilot L.L.C., Lacey Taylor McCoy -- LMcCoy@frilot.com -- Frilot L.L.C. & Magali Ann Puente-Martin -- mpuente@frilot.com -- Frilot L.L.C. Uniroyal Holding, Inc., Third Party Defendant, represented by Mary Reeves Arthur -- mimi.arthur@formanwatkins.com -- Forman, Watkins, & Krutz, LLP & Amy Louise Maccherone -- amy.maccherone@formanwatkins.com -- Forman, Watkins & Krutz LLP. Hopeman Brothers, Inc., Cross Defendant, represented by Kaye N. Courington -- kcourington@courington-law.com -- Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore -- bmoore@courington-law.com -- Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen -- bankersen@courington-law.com -- Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg -- jburg@courington-law.com -- Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes -- msemmes@courington-law.com -- Courington, Kiefer & Sommers, LLC & Troy Nathan Bell -- tbell@courington-law.com -- Courington, Kiefer & Sommers, LLC. ********* 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 2019. All rights reserved. ISSN 1525-2272. 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