/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190111.mbx C L A S S A C T I O N R E P O R T E R Friday, January 11, 2019, Vol. 21, No. 9 Headlines 1ST CENTURY: Stay Order in Drulias Shareholders Suit Affirmed 3M COMPANY: Bates et al. Suit Moved to D. South Carolina A NEW ENTRY: Jerrell Seeks to Certify Supervisors Class A NEW ENTRY: Jerrell Seeks to Notify Potential Class Members AFNI INC: Collection Letter Violates FDCPA, Glass Suit Alleges ALLEGHENY, PA: Court Dismisses 2nd Amended Donohue Suit AMAZON.COM LLC: Accused by Green Class Suit of Violating FLSA AMAZON.COM: Gongaware Seeks Overtime Wages ATHENAHEALTH INC: Hamilton Suit Challenges Sale to Veritas AXZES, LLC: Halawani Sues over Unsolicited Text Messages BANK OF NEW YORK: $2.15MM Attorneys' Fees Awarded in Becker Suit BELIEVE TREATMENT: Reilly Seeks Minimum & OT Wages BLACK BOX: Monteverde & Associates Files Class Action Lawsuit BLACKROCK MORTGAGE: Garfield Sues over Business Reorganization BLUE CROSS: Court Narrows Claims in Cotten ERISA Suit BORO PARK: Faces Williamson Suit in Kings County, NY Court C&R RESTAURANT: Faces Paez Labor Suit in California Superior Court CALIFORNIA BOARD OF CORRECTIONS: Faces Doe Suit in State Court CALIFORNIA: Homeowners Mull Class Actions Over Carr Fire CIOX HEALTH: Carter Stayed Pending Appeal Ruling in Ruzhinskaya COINBASE: XRP Class Action Moved to Federal Court COMPETITIVE EDGE: Granger Seeks to Recover Overtime Pay Under FLSA CONNECTICUT: Barfield Seeks to Certify Class COVERMYMEDS LLC: Made Unsolicited Calls, Kenneth A. Thomas Says CREDIT BUREAU: Ozminkowski Sues over Debt Collection Practices CTAC HOLDINGS: Faces Delacruz ADA Suit in S.D. New York CURO GROUP: Feb. 4 Lead Plaintiff Bid Deadline Set DEUTSCHE BANK: Settles Class Action Over RMBS Trusts DITECH MORTGAGE: Bolen Suit Moved to Central Dist. of California DOLCE PANE: Underpays Servers & Sommeliers, Powers Suit Claims DONALD TRUMP: Honduran Families Sue over Migrants' Rights FCA US: Court Narrows Claims in Gilvin Suit Under Ohio's Lemon Law FEDEX GROUND: Sullivan-Blake & Claiborne Seek OT Pay for Drivers FINK & ASSOCIATES: Faces Ross' FDCPA Suit in N.D. Illinois FLORIDA ADVERTISING: Sued over Unwanted Cellular Telephone Calls FQ MEN'S CLUB: Denial of Arbitration Bid in Dancers' Suit Vacated GATES CORPORATION: Court Issues Protective Order in Lundine GAZELLE TRANSPORTATION: Faces Bibb Labor Suit in Calif. State Court GKG RESTAURANT: Gadea Seeks Minimum & OT Wages H.U.M. LARROC: Lodge & McLean Seek Minimum and OT Pay for Servers HOUSLANGER & ASSOCIATES: Sued over Debt Collection Practices ILLINOIS: DCFS Faces Class Action Over Foster Care System IMAGE FIRST: Court OKs Bid to Deny Rule 23 Cert in Campanelli Suit INFORMATION STRATEGY: Class in Scales Suit Conditionally Certified JACKSON HEWITT: Tom Endres Sues over No-Poach Policy JIFFY LUBE: Hit With Class Action Over No-Poach Agreement LAKHI GENERAL: Settlement in Andrew Suit Okayed LINDENHURST, NY: Residents Mull Class Action Over Flooding LOMA NEGRA: Bronstein Gewirtz Files Securities Class Action MARIEBELLE NEW YORK: Diaz Files Suit under ADA in New York MARKETSOURCE, INC: Court Denies Class Certification in "Delgado" MARRIOT INTERNATIONAL: Inamullah et al. Suit Goes to Federal Court MARRIOTT INT'L: Kessler Topaz Files Data Breach Class Action Suit MARRIOTT INTERNATIONAL: Abdulmalik et al. Sue over Data Breach MDL 2460: Direct Purchasers Move for Class Cert. in Niaspan MDL MDL 2591: Kellogg Suit Remains in Kansas Court MDL 2741: Capo Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Coviello Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Dailey Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Goodson Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Griffith Suit v Monsanto over Roundup Sales Consolidated MDL 2741: Hildebrand Suit v Monsanto over Roundup Consolidated MDL 2804: W.E. Suit v. Purdue over Opiates Sales Consolidated MDL 2873: Dutchess vs. 3M Company over AFFF Products Consolidated MEDMEN ENTERPRISES: Faces Class Suit From Former Employees MIDLAND CREDIT: Fiorilli Sues over Debt Collection Practices MILLER BROS: Underpays Landscape Laborers, Carbajal Alleges MODA OPERANDI: Diaz Files Suit under ADA in New York MONSANTO COMPANY: Hatfields Sue over Sale of Herbicide Roundup MORGAN PROPERTIES: Court Partly Allows Filing of Amended Zehm Suit MORTGAGE LENDERS: Court Conditionally Certifies Charbonneau Class MXD GROUP INC: Faces Kimbo Labor Suit in Sacramento Court NATIONAL CREDIT: Faces Narcisse FDCPA Suit in W.D. Louisiana NATIONWIDE CREDIT: Barrios' FDCPA Suit Moved to E.D. New York NESTE USA: Bids to Strike/ Dismiss Beasley Suit Denied as Moot NETBRANDS MEDIA: Made Unsolicited Calls, Krick Suit Alleges NEW YORK: Court Partly Quashes Johnson Counsel's Subpoena ORIGINS NATURAL: Faces Diaz Class Suit under ADA PADRE HOTEL: Faces Aguirre Suit in Kern County Court PERFECT BAR: Court Dismisses Class Suit Over False Ads PG&E CORP: Court Vacates CMC & Related Deadlines in Securities Suit PINNACLE PLASTERING: Cal. App. Affirms Arbitration Denial in Castro PLANET FITNESS: Court Grants Bid to Dismiss Amended Truglio Suit PPG ARCHITECTURAL: Faces Hernandez Labor Suit in Calif. State Court PRICEWATERHOUSECOOPERS: Court OKs Summary Judgment in Adamov PRINSTON PHARMACEUTICAL: Sued over Sale of Adulterated Valsartan PRUDENTIAL FINANCIAL: Faces Dowe Suit in S.D. New York QUORA INC: Faces Huynh Class Suit Arising From 2018 Data Breach REVCLAIMS LLC: Court OKs Limited Discovery in Scott PAGA Suit RICK'S YELLOW: El Beyrouti Seeks Overtime Wages under FLSA RIO STATION: Floris Sues over Minimum & Overtime Pay, Tip Credit RITE AID: Martinez Sues over "Natural" Claim in Body Care Products SBHC HOLDING: Faces Henderson Labor Suit in California State Court SERVICE CORPORATION: Court Narrow Claims in Bernstein UTPCL Suit SERVICE EMPLOYEES: NRWLDF Seeks Review of Union Case SERVOMATION REFRESHMENT: Gilbert Seeks Unpaid Overtime SICHUAN PEPPER: Wei Files FLSA Suit in Connecticut SMARTPAY LEASING: Esparza Seeks to Certify Two Classes SOTHEBY'S: Violates ADA, Diaz Suit Asserts SQUARETRADE INC: Starke's 8th Cir. Appeal Underway STERLING JEWELERS: Hoffman Remanded to California State Court SUNPOWER CORPORATION: Faces Sanchez Labor Suit in Calif. Court SUTTELL AND HAMMER: Ochoa Files FDCPA Suit in Calif. SWAPP LAW: Ct. Denies Bid to Compel Subpoena Compliance in Wilcox SWIFT BEEF: Faces Cabrera Suit in Central District of California SYMMETRY PROPERTY: Investors File Securities Fraud Class Action TELECOM EVOLUTIONS: Has Inferior Broadband Internet, Chinitz Says TEXAS: Court Dismisses Schwarzer Inmate's Pro Se Complaint THESY LLC: Tyksinski Suit Moved to Northern District of Illinois THOMAS DART: Discovery Underway in Bennett Suit TIGER NATURAL: Court OKs Service by Email in Fishman TOMSON, INC: Serrano Seeks Unpaid Overtime Premium for Purchasers TRANS WORLD: Faces Class Action in NY for ADA Breach TRUSTMARK: Faces Class Action Over Unfair Overdraft Fees TUXEDO JUNCTION: Tux Rental Firm Violates ADA, Says Suit ULLIANCE INC: Court Denies Class Certification in Lucas ULTA SALON: Terry Suit Moved to Northern District of California UNITED BY BLUE: Sued by Diaz for ADA Violation UNITED STATES: Court Certifies Iraq, Afghanistan Veterans Class UNITED STATES: Dry Bean Farmers Can't Supplement Admin Record UNIVAR USA: Njoku Seeks Unpaid Overtime for Supply Planners WAL-MART STORES: Settlement in Securities Suit Has Prelim Court OK WALLACE RUSH: Amended Bid to Certify FLSA Class Denied as Moot WALMART INC: Feb. 21 Hearing on Bid to Dismiss Cappello Suit WASHINGTON: Batiste's Bid for Summary Judgment in Wilcox Suit OKd WECONNECT INC: Court Grants Conditional Certification in Goplin WELLS FARGO: Pieterson's Class Certification Bid Underway WENDY'S INTERNATIONAL: Affected by Data Breach Class-Action Lawsuit WEST COAST SELF-STORAGE: Ruby Hunter Sues over Unfair Rental Fees WHOLE FOODS: Court Allows Filing of 4th Amended Kellman Suit YALE STONE: Orellana Seeks Overtime Pay under FLSA ZEMAN HOMES: Augustyniak Seeks Interest from Security Deposits [*] One Big Case May Open US-Style Class Action Floodgates in UK Asbestos Litigation ASBESTOS UPDATE: $13MM Verdict Should Be Upheld, Family Says ASBESTOS UPDATE: 6 Judges to Hear Montana's Asbestos Claims Backlog ASBESTOS UPDATE: A&E Claims Cost Continue to Rise ASBESTOS UPDATE: Atty Hopes $4.69B Verdict to Propel Accountability ASBESTOS UPDATE: Birmingham Landlord Fined for Asbestos Breaches ASBESTOS UPDATE: Cashmere Bouquet Suit Proceeds to Trial ASBESTOS UPDATE: Company Fined $318K for Asbestos Exposure ASBESTOS UPDATE: Contractor Fined $52K for Asbestos Violations ASBESTOS UPDATE: DOJ Objects to Patton as Fairbanks FCR ASBESTOS UPDATE: EPA Asked to Answer Reports on J&J Talc ASBESTOS UPDATE: Future Asbestos Deaths from Oil Boom Inevitable ASBESTOS UPDATE: Glasgow Man Fined for Asbestos Materials Release ASBESTOS UPDATE: Harkreader Couple Sues Over Failure to Warn ASBESTOS UPDATE: J&J Execs Raise Asbestos Concerns in 1971 ASBESTOS UPDATE: J&J Fails to Throw Out $4.69-Bil. Verdict ASBESTOS UPDATE: J&J Moves to Limit Impact of Asbestos Reports ASBESTOS UPDATE: Long Melford Man Dies Due to Asbestos Exposure ASBESTOS UPDATE: Lurgan Man To Be Sentenced for Asbestos Exposure ASBESTOS UPDATE: No Asbestos in J&J Baby Powder, HSA Says ASBESTOS UPDATE: NYCAL Affirms Vacatur of $11MM Jury Award ASBESTOS UPDATE: Opposition to Remand Espinosa Suit Due on Jan. 17 ASBESTOS UPDATE: P. Warner Says Asbestos Caused Husband's Death ASBESTOS UPDATE: Rail Worker Awarded GBP40K for Asbestos Exposure ASBESTOS UPDATE: S. Kosmides Sues ABB, et al., Over Lung Cancer ASBESTOS UPDATE: Scott Couple Files Asbestos Suit vs. CBS Corp ASBESTOS UPDATE: Scottish Nat'l Gallery Workers Exposed to Asbestos ASBESTOS UPDATE: Utica's Extra-Contractual Claims Dismissed ASBESTOS UPDATE: Warren Pumps Bid for Summary Judgment Denied ASBESTOS UPDATE: Woman in 20s Dies of Asbestos Cancer ********* 1ST CENTURY: Stay Order in Drulias Shareholders Suit Affirmed ------------------------------------------------------------- Judge Franklin D. Elia of the Court of Appeals of California for the Sixth District affirmed the trial court's order staying the the case, DEAN DRULIAS, Plaintiff and Appellant, v. 1ST CENTURY BANCSHARES, INC., et al., Defendants and Respondents, Case No. H045049 (Cal. App.). 1st Century was a Delaware corporation headquartered in Los Angeles, California, whose shares were publicly traded on the NASDAQ. On March 10, 2016, 1st Century and Midland Financial Co. announced plans to merge. The merger agreement called for Midland to acquire 1st Century for $11.22 in cash per share, a 36.3% premium over 1st Century's closing share price on March 10, 2016. The merger was subject to approval by the holders of a majority of 1st Century's outstanding shares. A shareholder vote on the proposed merger agreement was scheduled for June 20, 2016. Drulias is a California resident and a 1st Century shareholder. On May 3, 2016, he filed a putative class action on behalf of all holders of 1st Century's common stock against 1st Century and its directors. The complaint alleged that 1st Century and the director Defendants breached their fiduciary duties in connection with their approval of the merger agreement. Pursuant to a stipulation between the parties, the court, on May 24, 2016, ordered the 1st Century defendants to respond to the complaint on July 1, 2016. On May 25, 2016, Drulias filed an application for a preliminary injunction enjoining the closing of the shareholder vote on the merger until curative disclosures were made to shareholders. The 1st Century Defendants opposed that application on June 6, 2016. They argued that the forum selection bylaw required Drulias' claims to be litigated in Delaware and that Drulias' claims lacked merit. On June 9, 2016, the court entered an order deeming the case complex and staying discovery. Drulias and the 1st Century Defendants reached a proposed settlement, which they memorialized in a stipulation of settlement dated June 10, 2016. Under the terms of the proposed settlement agreement, 1st Century agreed to make supplemental disclosures to the SEC and its shareholders in connection with the merger agreement and to pay Drulias' counsel $400,000 in exchange for the settlement and release of the putative class's merger-related claims. The trial court declined to approve the stipulation of settlement on Nov. 21, 2016. It reasoned that the settlement was not fair and reasonable to the putative class because the supplemental disclosures were not plainly material, such that they were of minimal value to the class and did not justify the release of all claims associated with the merger. The parties submitted a joint Case Management Conference statement on Dec. 22, 2016. In it, they indicated that Drulias intended to file a first amended complaint and proposed a Jan. 13, 2017 deadline for that filing. The parties also informed the court that the 1st Century Defendants might file a motion to stay or dismiss for forum non conveniens"= and proposed a Feb. 10, 2017 deadline for such a motion. The court adopted the parties' proposed briefing schedule at a Jan. 6, 2017 hearing. Drulias's first amended complaint, filed on Jan. 13, 2017, added Sandler O'Neill & Partners, L.P., the investment bank that advised 1st Century in connection with the merger, as a Defendant. Like the original complaint, the first amended complaint asserted breach of fiduciary duty claims against the 1st Century Defendants; it also included an aiding and abetting the breach of fiduciary duties claim against Sandler. On Feb.y 10, 2017, the 1st Century Defendants filed a motion to dismiss pursuant to sections 410.30 and 418.10, arguing that the forum selection bylaw requires Drulias's claims be litigated in Delaware. Following briefing and a hearing, the trial court declined to dismiss the action but stayed it under section 410.30. Drulias timely appealed from that order. The appeal raises the issue of whether a forum selection bylaw adopted by a Delaware corporation without stockholder consent is enforceable in California. The trial court concluded the bylaw was enforceable and, accordingly, stayed the putative shareholder class action under Code of Civil Procedure section 410.30. On appeal, Plaintiff and Appellant Drulias contends the trial court erred in enforcing the forum selection bylaw, which designates Delaware as the exclusive litigation forum for intra-corporate disputes. He maintains the bylaw conflicts with California law and, alternatively, that its enforcement is unreasonable given the manner and timing of its adoption and defendants' litigation conduct below. Judge Elia finds that the forum selection bylaw does not conflict with California law or public policy. Drulias' contrary view that Corporations Code section 2116 was enacted to protect California shareholders from misconduct by directors of foreign corporations by giving them the right to sue such directors in California finds no support in case law or other binding authority. In short, there is no basis for concluding that Corporations Code section 2116 creates substantive rights. Accordingly, he finds that Drulias has not shown that enforcement of the forum selection bylaw will impair his statutory rights or otherwise violate California public policy. Next, the Judge finds that the trial court did not err in concluding that enforcement of the forum selection bylaw is reasonable in the case. Nine months passed between the filing of the complaint and the section 410.30 motion. That delay was attributable, not to the 1st Century Defendants, but to the parties' attempt to settle, the court's scheduling orders, and Drulias' decision to file an amended complaint. He finds that the 1st Century Defendants did not file a cross-complaint or seek discovery from the Plaintiff. Nor did they file multiple motions seeking relief from the court; aside from their motion to dismiss, they filed a single motion seeking relief—namely, approval of the settlement agreement. Given the state's strong public policy in favor of pre-trial settlements, the Judge holds that the trial court did not err in concluding that the Defendants' settlement efforts did not render enforcement of the forum selection bylaw unreasonable. In light of the foregoing, Judge Elia affirmed the order staying the action. The Respondents will recover their costs on appeal. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/WQVXxa from Leagle.com. Kirk Bartlett Hulett -- kbh@hulettharper.com -- Hulett Harper Stewart , John F. Keating, Jr. -- jkeating@brualdilawfirm.com -- The Brualdi Law Firm, Counsel for Plaintiff and Appellant, DEAN DRULIAS. Adam Seth Paris -- parisa@sullcrom.com -- Jackson S. Trugman -- trugmanj@sullcrom.com -- Zac A. Tafoya -- tafoyaz@sullcrom.com -- Laura Kabler Oswell -- oswelll@sullcrom.com -- Sullivan & Cromwell, Anna-Rose Mathieson -- annarose.mathieson@calapplaw.com -- California Appellate Law Group, William Savitt -- WDSavitt@wlrk.com -- Anitha Reddy -- AReddy@wlrk.com -- Wachtell, Lipton, Rosen & Katz, Counsel for Defendants and Respondents, 1ST CENTURY BANCSHARES, INC et al. 3M COMPANY: Bates et al. Suit Moved to D. South Carolina -------------------------------------------------------- The class action lawsuit titled HANAH BATES; MICHAEL S. BRIDGES; ANN MARIE KUTER; KELLEY LIOTT; LYNDA MILLS, as parent and natural guardian of S. M., a minor; JENNIFER ROCK; and CAROLYN SIPPEL, individually and on behalf of all others similarly situated, Plaintiffs v. THE 3M COMPANY f/k/A MINNESOTA MINING AND MANUFACTURING CO.; Angus Fire; Tyco Fire Products LP, successor-in-interest to THE ANSUL COMPANY; BUCKEYE FIRE PROTECTION COMPANY; CHEMGUARD; and NATIONAL FOAM, Defendants, Case No. 2:16-cv-04961, was removed from the U.S. District Court for the Eastern District of Pennsylvania, to the U.S. District Court for the District of South Carolina on December 12, 2018. The District Court Clerk assigned Case No. 2:18-cv-03349 to the proceeding. The Case is assigned to the Hon. Richard M. Gergel. 3M Company operates as a diversified technology company worldwide. The company's Industrial segment offers tapes; coated, non-woven, and bonded abrasives; adhesives; ceramics; sealants; specialty materials; purification products; closure systems for personal hygiene products; acoustic systems products; automotive components; and abrasion-resistant films, and paint finishing and detailing products. The company was founded in 1902 and is headquartered in St. Paul, Minnesota. [BN] The Plaintiff is represented by: John M. Broaddus, Esq. WIETZ & LUXENBURG 200 Lake Driver East, Suite 205 Cherry Hill, NJ 08002 Telephone: (856) 755-1115 Facsimile: (856) 755-1995 A NEW ENTRY: Jerrell Seeks to Certify Supervisors Class ------------------------------------------------------- In the class action lawsuit captioned as ISSAC JERRELL, Individually and on behalf of All Others Similarly Situated, the PLAINTIFF, vs. A NEW ENTRY, INC., the DEFENDANT, Case No. 1:18-cv-00929-RP (W.D. Tex.), the Plaintiff asks the Court to conditionally certify a class consisting of "each supervisor, monitor or similar position after October 29, 2015." The Plaintiff brought this suit on behalf of certain former and current supervisors, monitors and similar positions employed by Defendant A New Entry, Inc., to recover overtime wages and other damages pursuant to the Fair Labor Standards Act, 29 U.S.C. section 201, et seq.[CC] Attorneys for Isaac Jerrell, Individually and on Behalf of All Others Similarly Situated: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com A NEW ENTRY: Jerrell Seeks to Notify Potential Class Members ------------------------------------------------------------ In the class action lawsuit captioned as ISSAC JERRELL, Individually and on behalf of All Others Similarly Situated, the PLAINTIFF, vs. A NEW ENTRY, INC., the DEFENDANT, Case No. 1:18-cv-00929-RP (W.D. Tex.), the Plaintiff asks the Court for an order: 1. directing Defendant to produce contact information of all class members, no later than one week after the date of the entry of the Order granting the motion; 2. approving proposed Notice and Consent; 3. approving sending of the Notice and Consent, and Plaintiff's complaint and Defendant's Answer, if Defendant so requests; 4. approving sending of the Postcard; 5. approving notice through both U.S. mail and text message (or alternatively email); and 6. setting a period of 90 days from the date Defendant fully and completely releases the class members' contact information during which to distribute the Notice and to file Consent forms. The Plaintiff brought this suit on behalf of certain former and current supervisors, monitors and similar positions employed by Defendant A New Entry, Inc., to recover overtime wages and other damages pursuant to the Fair Labor Standards Act, 29 U.S.C. section 201, et seq.[CC] Attorneys for Isaac Jerrell, Individually and on Behalf of All Others Similarly Situated: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 E-mail: josh@sanfordlawfirm.com AFNI INC: Collection Letter Violates FDCPA, Glass Suit Alleges -------------------------------------------------------------- Karl Glass, individually and on behalf of all others similarly situated v. Afni, Inc., an Illinois corporation, Case No. 1:18-cv-03990-TWP-DLP (S.D. Ind., December 18, 2018), alleges that the Defendant's form collection letter violates the Fair Debt Collection Practices Act. Afni, Inc., is an Illinois corporation that acts as a debt collector, as defined by Section 1692a of the FDCPA, because it regularly uses the mails and/or the telephone to collect, or attempt to collect, defaulted consumer debts. Afni operates a nationwide debt collection business and attempts to collect debts from consumers in virtually every state, including consumers in the state of Indiana.[BN] The Plaintiff is represented by: David J. Philipps, Esq. Mary E. Philipps, Esq. Angie K. Robertson, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: davephilipps@aol.com mephilipps@aol.com angie@philippslegal.com - and - John T. Steinkamp, Esq. JOHN STEINKAMP & ASSOCIATES 5214 S. East Street, Suite D1 Indianapolis, IN 46227 Telephone: (317) 780-8300 Facsimile: (317) 217-1320 E-mail: steinkamplaw@yahoo.com ALLEGHENY, PA: Court Dismisses 2nd Amended Donohue Suit ------------------------------------------------------- In the case, JOSEPH DONOHUE, Executor of the Estate of SUSAN DONOHUE, and DEBORAH KINEST, individually and on behalf of all persons similarly situated, Plaintiffs, v. THE RETIREMENT SYSTEM OF ALLEGHENY COUNTY and RETIREMENT BOARD OF ALLEGHENY COUNTY, Defendants, Case No. C.A.17-1167 (W.D. Pa.), Chief Magistrate Judge Cynthia Reed Eddy of the U.S. District Court for the Western District of Pennsylvania (i) granted the Defendants' motion to dismiss the second amended class action complaint ("SAC"), and (ii) denied as moot their motion to strike the class action allegations, or, in the alternative, to deny class certification. The action was removed from the Court of Common Pleas of Allegheny County on Sept. 6, 2017. A suggestion of death for named Plaintiff Susan Donohue was filed on Jan. 24, 2018, and on Feb. 28, 2018, the SAC was filed. The SAC names as a Plaintiffs is Joseph Donohue, Executor of Susan Donohue's estate, and added a newly-named Plaintiff, Deborah Kinest.Code. The SAC allege that the Retirement System of Allegheny County and the Retirement Board are established under the Second Class County Cose. The Retirement System is established for the administration of retirement benefits for County employees and is directed by the Retirement Board under 16 P.S. Section 4703. A member who has been employed for not less than 12 years may receive, upon application, a retirement allowance if totally and permanently disabled physically even though the employee has not reached the age of 60, provided that such proof of such total and permanent disability will be by the unanimous opinion and sworn statements of three practicing physicians of the county designated by the board. The Plaintiffs allege violations of the constitutional right to due process because 16 P.S. Section 4711(a) ("the statute") provides no means for an applicant to prove, or offer evidence in support of, his or her entitlement to a disability pension, and no means to obtain review of, or offer evidence challenging the opinion of a Board-designated physician. They aver that the statute provides no standards for determining whether an employee is "totally and permanently disabled" and the Board, despite having been empowered to do so, has not adopted rules and regulations pertaining to disability pension applications, citing 16 P.S. Section 4705. Presently before the Court are two motions filed by the Defendants, The Retirement System of Allegheny County and the Retirement Board of Allegheny County. They first move to dismiss the SAC for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Second, they move to strike the class action allegations, or, in the alternative, to deny class certification. These motions were both filed on April 3, 2018. As to Count I, the Defendants argue that neither Plaintiff Donohue's estate nor Plaintiff Kinest have set forth a plausible procedural due process claim. After a careful review of the allegations in the SAC and the applicable case law, Magistrate Judge Eddy holds that the Plaintiffs have not alleged facts sufficient to support their procedural due process claims and dismissed Count I. She finds that the Plaintiffs both failed to exhaust the adjudicatory procedures available to them under state law. Donohue deferred her statutory appeal in the Court of Common Pleas (after requesting and receiving two hearings at which she was represented by counsel but did not subpoena the Board-appointed physicians for cross examination); and Kinest did not request a hearing. This failure to utilize state law remedies bars the claims. Moreover, the applicants are provided with a copy of the medical reports from the Board-designated physicians, are given an opportunity to respond, to subpoena and cross-examine the physicians and seek clarification of procedures used by the physicians, question their qualifications, and the like. Some such appeals have been successful, as based upon the uncontroverted public record provided by the Defendants. Next, the Defendants seek the dismissal of Count II. At issue is whether the Plaintiffs have stated a clam for denial of substantive due process, specifically, whether that statute is a facially invalid legislative act, which is to say, whether there is a legitimate state interest to which 16 P.S. Section 4711 is rationally related. The Magistrate finds that there do not appear to be any precedential cases on point, but nevertheless, the Defendants have posited numerous legitimate government interests, including limiting the Retirement Board's discretion and preventing potential waste while preserving the financial condition of the pension fund maintained for the benefit of a broad range of employees. There is a rational basis to establishing a strict approval process that requires the unanimous agreement of three physicians, rather than a single physician, when making the determination on a claimant's total and permanent disability status. The Retirement Board's discretion is therefore limited. This prevents waste and abuse. For all of these reasons, she finds that the Plaintiffs have failed to state a facial-challenge substantive due process claim. Accordingly, the Defendants motion to dismiss is granted with respect to the Plaintiff's substantive due process claim raising a facial challenge to the statute at Count II. Finally, the Defendant has also moved, to the extent the Court determines that the Plaintiffs have advanced a viable constitutional claim at either Count I or II, that the class action allegations be stricken and/or dismissed, pursuant to Federal Rule of Civil Procedure 12(f). Having determined that the Plaintiffs' claims do not survive the motion to dismiss, the Magistrate denied the motion as moot. A full-text copy of the Court's Dec. 21, 2018 Memorandum Opinion and Order is available at https://is.gd/HZTHzh from Leagle.com. JOSEPH DONOHUE, Executor of the Estate of SUSAN DONOHUE, individually and on behalf of all persons similarly situated & DEBORAH KINEST, individually and on behalf of all persons similarly situated, Plaintiffs, represented by Tybe A. Brett -- tbrett@fdpklaw.com -- Feinstein Doyle Payne & Kravec, LLC. THE RETIREMENT SYSTEM OF ALLEGHENY COUNTY & RETIREMENT BOARD OF ALLEGHENY COUNTY, Defendants, represented by Brian P. Gabriel -- bgabriel@cdblaw.com -- Campbell Durrant Beatty Palombo & Miller, P.C. & Julie A. Aquino -- jaquino@cdblaw.com -- Campbell Durrant Beatty Palombo & Miller. AMAZON.COM LLC: Accused by Green Class Suit of Violating FLSA ------------------------------------------------------------- FREDRICH GREEN, on behalf of himself and others similarly situated v. AMAZON.COM, LLC, AMAZON LOGISTICS, INC., and CAV LOGISTICS LLC d/b/a CAVALIER LOGISTICS LLC, Case No. 1:18-cv-01032 (M.D.N.C., December 18, 2018), alleges violations of the Fair Labor Standards Act. This case is about Amazon's alleged unlawful scheme to attempt to avoid responsibility for paying its Delivery Associates, including the Plaintiff, in accordance with federal wage and hour laws by attempting to contract out that responsibility to third-party Delivery Service Providers, such as CAV, Mr. Green alleges. He contends that Delivery Associates deliver Amazon's packages; are paid through CAV a day rate; and are not paid for all time worked, including overtime that is required to deliver hundreds of Amazon packages each day. Amazon.com, LLC, is a limited liability company with principal offices in Seattle, Washington. Amazon Logistics, Inc., is a corporation with principal offices in Seattle. Amazon.com is an e-commerce company and one of the largest -- if not the largest -- Internet retailers in the world, operating the Web site http://www.amazon.com/. CAV Logistics LLC, doing business as Cavalier Logistics LLC, is a limited liability company organized under the laws of Georgia with principal offices in Atlanta, Georgia. CAV provides Delivery Associates to Amazon as a Delivery Service Provider. CAV operates a carrier and logistics business in providing vehicles and drivers to deliver goods on behalf of Amazon.com and its affiliates.[BN] The Plaintiff is represented by: Henry Clay Turner, Esq. BEST, LAWRENCE LAW, P.A. 188 E. Thomas Street P.O. Box 2124 Rocky Mount, NC 27802 Telephone: (252) 977-1366 E-mail: lawfirm@bestlawrencelaw.com - and - Sarah R. Schalman-Bergen, Esq. Camille Fundora Rodriguez, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4620 E-mail: sschalman-bergen@bm.net crodriguez@bm.net - and - Ryan Allen Hancock, Esq. Jessica Brown, Esq. WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24th Floor Philadelphia, PA 19103 Telephone: (215) 656-3600 Facsimile: (215) 567-2310 E-mail: rhancock@wwdlaw.com jbrown@wwdlaw.com AMAZON.COM: Gongaware Seeks Overtime Wages ------------------------------------------ HEATHER GONGAWARE, on behalf of herself and others similarly situated, the Plaintiff, vs. AMAZON.COM, LLC, AMAZON LOGISTICS, INC., and SHEARD-LOMAN TRANSPORT, LLC, the Defendants, Case No. 1:18-cv-08358 (N.D. Ill., Dec. 20, 2018), seeks all available remedies under the Fair Labor Standards Act. The case is about Amazon.com, LLC and Amazon Logistics, Inc.'s unlawful scheme to attempt to avoid responsibility for paying its employees in accordance with federal wage and hour laws by attempting to contract out that responsibility to third-party Delivery Service Providers, such as Defendant Sheard-Loman Transport, LLC. Further, it is about Sheard-Loman's retaliatory termination of Plaintiff's employment for discussing her pay, and the Dispatchers' and Delivery Associates' legal options to address the unlawful scheme, which has robbed her and fellow employees of significant amounts of unpaid overtime wages. Plaintiff and the other Dispatchers continue to be paid a day rate and are not paid for all time worked, including overtime. Sheard-Loman Transport terminated Plaintiff's employment on the basis of her discussing the prospect of pursuing legal action to vindicate her rights and the rights other employees who were not paid overtime for all hours worked in excess of 40 hours in a workweek. The Plaintiff brings this case to redress Defendants' violations of the anti-retaliation and overtime provisions of the FLSA, the lawsuit says. Amazon.com LLC was founded in 1994 and is based in Hebron, Kentucky. Amazon.com LLC operates as a subsidiary of Amazon.com Inc.[BN] Attorneys for the Plaintiff and the Proposed FLSA Collective: Sarah R. Schalman-Bergen, Esq. Camille Fundora Rodriguez, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4620 E-mail: sschalman-bergen@bm.net crodriguez@bm.net - and - Ryan Allen Hancock, Esq. WILLIG, WILLIAMS & DAVIDSON 1845 Walnut Street, 24 th Floor Philadelphia, PA 19103 Telephone: (215) 656-3600 Facsimile: (215) 567-2310 E-mail: rhancock@wwdlaw.com - and - John Bielski, Esq. WILLIG, WILLIAMS & DAVIDSON 77 W. Washington St., Suite 2120 Chicago, IL 60602 E-mail: jbielski@wwdlaw.com ATHENAHEALTH INC: Hamilton Suit Challenges Sale to Veritas ---------------------------------------------------------- RICHARD HAMILTON, Individually and on Behalf of All Others Similarly Situated v. ATHENAHEALTH, INC., AMY ABERNETHY, BRANDON HULL, JEFFREY R. IMMELT, DEV ITTYCHERIA, JOHN A. KANE, JACQUELINE B. KOSECOFF, BRIAN P. MCKEON, ED PARK, THOMAS J. SZKUTAK, VERITAS CAPITAL FUND MANAGEMENT, L.L.C., EVERGREEN COAST CAPITAL CORP., MAY MERGER SUB INC., and MAY HOLDING CORP., Case No. 1:18-cv-12602 (D. Mass., December 18, 2018), arises out of the Board of Directors' attempt to sell the Company to Veritas Capital Fund Management, L.L.C., and Evergreen Coast Capital through a company affiliated with both Veritas and Evergreen. The complaint says the Defendants have violated the Securities Exchange Act of 1934 by causing a materially incomplete and misleading preliminary proxy statement to be filed with the Securities and Exchange Commission, which recommends that athenahealth shareholders vote in favor of a proposed transaction whereby athenahealth will be acquired by Veritas and Evergreen for $135 per share. The deal is valued at approximately $5.68 billion and is expected to close in the first quarter of 2019. athenahealth is a corporation organized and existing under the laws of the state of Delaware. The Company's principal executive offices are located in Watertown, Massachusetts. The Individual Defendants are directors and officers of the Company. athenahealth offers hospitals software services focusing on medical records, revenue cycle, patient engagement, care coordination and population health. The software, called athenaNet, allows hospitals to handle the business side of medicine through one interface. Most of the Company's revenues are generated as a percentage of payments collected by the hospital via athenaNet. Veritas is a private equity firm that focuses on technology products and services for government and commercial customers. Veritas is headquartered in New York City. Evergreen is a subsidiary of Elliott Associates, L.P., and is based in Menlo Park, California. May Holding Corp. is a Delaware corporation affiliated with Veritas and Evergreen. May Merger Sub Inc. is a Delaware corporation and is a wholly owned subsidiary of May Holding Corp.[BN] The Plaintiff is represented by: Theodore M. Hess-Mahan, Esq. HUTCHINGS BARSAMIAN MANDELCORN, LLP 110 Cedar Street, Suite 250 Wellesley Hills, MA 02481 Telephone: (781) 431-2231 E-mail: thess-mahan@hutchingsbarsamian.com - and - Shane T. Rowley, Esq. Danielle Rowland Lindahl, Esq. ROWLEY LAW PLLC 50 Main Street, Suite 1000 White Plains, NY 10606 Telephone: (914) 400-1920 Facsimile: (914) 301-3514 E-mail: srowley@rowleylawpllc.com AXZES, LLC: Halawani Sues over Unsolicited Text Messages -------------------------------------------------------- Shlomy Halawani, individually and on behalf of a class of others similarly situated, the Plaintiff, vs. Axzes, LLC, the Defendant, Case No. 0:18-cv-63127-BB (S.D. Fla., Dec. 22, 2018), seeks statutory damages along with an injunction prohibiting Defendant from making impermissible, Telephone Consumer Protection Act violative calls in the future. According to the complaint, this year, Shlomy Halawani, began receiving unsolicited text message solicitations on his cellular telephone. The content of the messages indicate that they were placed by or on behalf of Axzes, LLC. At all times relevant, including at least the 31 days prior to receipt of the first alleged text message, the Plaintiff's cellular telephone number was registered with the national do-not-call registry of persons who do not wish to receive telephone solicitations. Such do-not-call registrations must be honored indefinitely, or until the registration is canceled by the consumer or the telephone number is removed by the database administrator.[BN] Attorneys for Plaintiff: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI , PLLC 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com BANK OF NEW YORK: $2.15MM Attorneys' Fees Awarded in Becker Suit ---------------------------------------------------------------- In the case, LEONARD BECKER, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, Defendants, C.A. No. 2:11-cv-06460 (JRS), Consolidated with C. A. No. 2:12-cv-06412 (JRS) (E.D. Pa.), Judge Juan R. Sanchez of the U.S. District Court for the Eastern District of Pennsylvania granted the Class Counsel's Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses. On Sept. 20, 2018, a hearing was held before the Court to consider, among other matters, the Class Counsel's Fee and Expense Motion, filed on Aug. 3, 2018, supported by declarations and a memorandum of law. After due deliberation, Judge Sanchez granted the Fee and Expense Motion. His Order incorporates by reference the definitions in the Stipulation and Agreement of Settlement dated June 8, 2018. He awarded the Class Counsel is awarded the sum of $2.15 milllion in attorneys' fees, plus interest at the same rate earned by the Settlement Fund, and $273,284.51 in reimbursement of litigation expenses. The Class Counsel is further entitled to withdraw from the Settlement Fund, without further order of the Court, an amount not to exceed $100,000 for Notice and Administration Costs. There is no just reason for delay in the entry of the Order Granting Class Counsel's Fee and Expense Motion, and immediate entry of the Order by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/Q2Ub6s from Leagle.com. LEONARD BECKER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by DANIEL E. BACINE -- dbacine@barrack.com -- BARRACK RODOS & BACINE, LISA M. PORT -- lport@barrack.com -- BARRACK, RODOS & BACINE, CHARLES M. GOLDEN, FELLHEIMER and EICHEN & JEFFREY B. GITTLEMAN, BARRACK, RODOS & BACINE. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. & J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, Defendants, represented by CHRISTINE CESARE -- cbcesare@bryancave.com -- BRYAN CAVE LLP, HOWARD M. ROGATNICK, BRYAN CAVE LLP, MATTHEW C.R. ZIEGLER, MORGAN LEWIS & BOCKIUS LLP, STEPHANIE WICKOUSKI -- stephanie.wickouski@bryancave.com -- BRYAN CAVE LLP, THOMAS J. SCHELL -- tjschell@bryancave.com -- BRYAN CAVE LLP, ANN LAUREN CARPENTER, MORGAN LEWIS & BOCKIUS LLP, EVAN K. JACOBS, MORGAN LEWIS & BOCKIUS LLP, JOHN C. GOODCHILD, III -- john.goodchild@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, L.L.P. & MARC J. SONNENFELD, MORGAN, LEWIS & BOCKIUS LLP. SAUL EWING LLP & ADAM ISENBERG, Respondents, represented by TIMOTHY W. CALLAHAN, II -- tcallahan@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP. BLANK ROME LLP & JOHN LUCIAN, Respondents, represented by JEREMY A. RIST -- Rist@BlankRome.com -- BLANK ROME LLP. SILVERCREST FUNDS, Respondent, represented by KAREN E. FRIEDMAN -- kfriedman@luriefriedman.com -- LURIE FRIEDMAN LLP & MATTHEW TODD NEWCOMER -- mnewcomer@postschell.com -- POST & SCHELL, PC. BELIEVE TREATMENT: Reilly Seeks Minimum & OT Wages -------------------------------------------------- DESIREE REILLY, and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff(s), v. BELIEVE TREATMENT CENTER, LLC, a Florida limited liability company, and WILLIAM SCHMIDT, individually, the Defendants, Case No. 9:18-cv-81743-DMM (S.D. Fla., Dec. 21, 2018), alleges that Defendants have unlawfully deprived Plaintiff, and all other employees similarly situated, of minimum wage compensation and overtime during the course of their employment, pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff began working for Defendants on or about November 19 until on or about December 2. The Plaintiff worked an average of 66 hours per week. The Defendants advised Plaintiff she was to be paid at an hourly rate of $14.00 per hour. However, Defendants failed to compensate Plaintiff for the hours she worked from November 19 through December 2 in any conceivable way. The Defendants were expressly aware of the work performed by Plaintiff, but nevertheless required Plaintiff to continue working without receiving any compensation for any hours worked during the relevant period of her employment. The Plaintiff's unpaid work for Defendants equates to substantial unpaid minimum wage and overtime at the federal statutorily required rate of time-and-one-half for all hours worked over 40 in any given workweek, the lawsuit says.[BN] Counsel for Desiree Reilly: Jordan Richards, Esq. Melissa Scott, Esq. USA EMPLOYMENT LAWYERS- JORDAN RICHARDS, PLLC 805 E. Broward Blvd. Suite 301 Fort Lauderdale, Florida 33301 Telephone: (954) 871-0050 E-mail: Jordan@jordanrichardspllc.com Livia@jordanrichardspllc.com Melissa@jordanrichardspllc.com Jake@jordanrichardspllc.com BLACK BOX: Monteverde & Associates Files Class Action Lawsuit ------------------------------------------------------------- Notice is hereby given that Monteverde & Associates PC has filed a class action lawsuit in the United States District Court for the Central District of California, Case No. 5:18-cv-02537JGB-SHK, on behalf of public common shareholders of Black Box Corporation ("Black Box" or the "Company") (NASDAQ:BBOX) who hold Black Box securities as of the close of the tender offer on December 19, 2018 (the "Class Period"), and have been harmed by Black Box and its board of directors' (the "Board") alleged violations of Sections 14(e) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to AGC Networks Ltd. ( the "Proposed Transaction"). Under the terms of the Merger Agreement, Black Box shareholders will only receive $1.08 in cash for each share of Black Box common stock they own (the "Offer Price"). The complaint alleges that the Merger Consideration is inadequate and that the Schedule 14D-9 Solicitation/Recommendation Statement regarding the Proposed Transaction (the "Recommendation Statement") provides shareholders with materially incomplete and misleading information about the Proposed Transaction, in violation of Sections 14(e) and 20(a) of the Exchange Act. In particular, the Recommendation Statement alleges materially incomplete and misleading information concerning: (i) financial projections for the Company; (ii) the valuation analyses performed by the Company's financial advisor, Raymond James & Associates, Inc., in support of its fairness opinion; and (iii) the potential conflict of interest Raymond James faced as a result of its prior dealings with Black Box. The Tender Offer is scheduled to expire at midnight on December 19, 2018. If you wish to serve as lead plaintiff, you must move the Court no later than February 4, 2019. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Click here for more information: https://www.monteverdelaw.com/case/black-box-corporation.It is free and there is no cost or obligation to you. Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com [GN] BLACKROCK MORTGAGE: Garfield Sues over Business Reorganization -------------------------------------------------------------- ROBERT GARFIELD, the Plaintiff, vs. BLACKROCK MORTGAGE VENTURES, LLC, BLACKROCK, INC.; HC PARTNERS, LLC, STANFORD L. KURLAND, DAVID A. SPECTOR; ANNE D. MCCALLION, MATTHEW BOTEIN, FARHAD NANJI, MARK WIEDMAN, JOSEPH MAZELLA, and ANDREW S. CHANG, the Defendants and PENNYMAC FINANCIAL SERVICES, INC., the Nominal Defendant, Case No. 2018-0917-KSJM (Del. Ch., Dec. 27, 2018), alleges that the Defendants violated their fiduciary duties of loyalty and care by agreeing to and entering into a business reorganization without ensuring that the Reorganization was entirely fair to the Company or to Plaintiff and other public stockholders. According to the complaint, in March 2008, BlackRock, Highfields, and Kurland (the former Chief Operating Officer of Countrywide Financial Corporation) formed a private company called Private National Mortgage Acceptance Company, LLC ("OpCo"). OpCo's stated purpose was to acquire and restructure distressed residential mortgages. In 2013, BlackRock, Highfields, and Kurland took PennyMac public in a so-called Up-C structure, which created a new publicly traded holding company -- Old HoldCo -- above OpCo. Old HoldCo became the sole managing member of OpCo. Public stockholders received Class A Common Stock in Old HoldCo. BlackRock, Highfields, Kurland, and the other existing owners of OpCo were issued Class A Units in OpCo, plus one share each of Class B Common Stock in Old HoldCo. OpCo Units had 100% of the economic rights in OpCo but no voting rights (as Old HoldCo was the sole managing member). OpCo Units were exchangeable on a one-for-one basis with Class A Common Stock in Old HoldCo. The Class B Common Stock issued to OpCo Unitholders had no economic rights in Old HoldCo but carried one vote for each OpCo Unit owned. Following an initial public offering, BlackRock, Highfields, and Kurland were a control group that, at all relevant times, controlled a majority of the voting power in Old HoldCo. Following the IPO, however, OpCo's business operations changed in a way that resulted in less taxable income than had been expected at the time of the IPO. Indeed, by 2018, this would mean that the tax benefits to OpCo Unitholders of an Up-C structure were essentially eliminated. (There is no need to avoid double taxation if you do not have taxable income and no tax benefits would be created by exchanges if there was no taxable income to reduce). But the Up-C structure still posed a significant obstacle to OpCo Unitholders who wished to liquidate their stake by converting to Class A Common Stock and selling: the exchange of OpCo Units for Class A Common Stock was treated as a taxable event for the unitholder and their gain was taxed at the (higher) ordinary-income rate rather than the (lower) capital gains rate. This was a problem for BlackRock, Highfields, Kurland and the other holders of OpCo Units (a group that included a majority of the Board of Directors). So Kurland -- with the support of BlackRock and Highfields -- pushed through the "Reorganization," a transaction that created New HoldCo, merged Old HoldCo into New HoldCo, and converted both OpCo Units and Class A Common Stock of Old, the lawsuit says. The Reorganization was not conditioned on majority-of-the-minority approval. As the Definitive Proxy informed Plaintiff and other public stockholders, "Even if no affirmative votes of Class A common stockholders are cast in favor of the Reorganization Proposal, the Reorganization Proposal will be approved if a sufficient number of votes of Class B common stockholders [i.e., Class A Unit holders] are cast in favor of the Reorganization Proposal. Based upon the percentage of control of the Class B Common Stock of the vote of the shares of Class A Common Stock and Class B Common Stock, voting together as a single class, if sufficient affirmative votes of Class B common stockholders are cast in favor of the Reorganization Proposal, the Reorganization will be approved even if no affirmative votes of Class A common stockholders are cast in favor of the Reorganization Proposal." On August 2, 2018, the Board declared a special, one-time cash dividend of $0.40 per share of Class A Common Stock to holders of record of Class A Common Stock as of August 13, and that was distributed on or about August 30. Also on August 2, the parties entered into the Reorganization Agreement and publicly announced the proposed Reorganization. Not surprisingly, between February 27, 2018 -- when Kurland first proposed the Reorganization -- and when it closed on November 1, 2018, insiders sold a significant number of shares of Class A Common Stock.[BN] Attorneys for Plaintiff Robert Garfield: Kurt M. Heyman, Esq. Melissa N. Donimirski, Esq. Aaron M. Nelson, Esq. HEYMAN ENERIO GATTUSO & HIRZEL LLP 300 Delaware Avenue, Suite 200 Wilmington, DE 19801 Telephone: (302) 472-7300 - and - Jason M. Leviton, Esq. Joel A. Fleming, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Telephone: (617) 398-5600 BLUE CROSS: Court Narrows Claims in Cotten ERISA Suit ----------------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum and Order granting in part and denying in part Defendant's Motion to Dismiss the case captioned DAVID COTTEN, JAMES ROBINSON, and CAROLYN CAIN, individually and on behalf of himself and all others similarly situated, v. BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS HMO BLUE, INC. and BLUE CROSS AND BLUE SHIELD OF MASSACHUSETTS, INC. Civil Action No. 16-12176-RGS. (D. Mass.). David Cotten, James Robinson, and Carolyn Cain are plaintiffs in this putative class action brought against Blue Cross and Blue Shield of Massachusetts HMO Blue, Inc. and Blue Cross and Blue Shield of Massachusetts, Inc. (BCBS). The Plaintiffs allege that BCBS improperly denied claims for the costs of treating their children's mental health issues in wilderness therapy programs. The Second Amended Complaint sets out three claims: plan enforcement under the Employee Retirement Income Security Act of 1974 (ERISA) (Count I), breach of protections under the Mental Health Parity and Addiction Equity Act (Count II), and breach of fiduciary duty under ERISA and the Parity Act (Count III). BCBS moves to dismiss Counts I and III. Two basic principles guide the court's analysis. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Count I ERISA provides a private right of action for a participant to recover benefits due under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. The Plaintiffs argue that their children's wilderness therapy is covered under a correct reading of the plans' language, using the applicable rules of construction. They also argue that the court must construe all plan ambiguities against BCBS and in favor of coverage. While the plaintiffs' recitation of the rules of construction is sound, their reading of the plans is not. The exclusionary language cited by BCBS is unambiguous: it specifically disclaims coverage for residential or other care that is custodial care, including services that are performed in educational, vocational, or recreational settings; and outward bound-type, wilderness, camp, or ranch programs. The plans define custodial care as, among other things, care that is given primarily by medically-trained personnel for a member who shows no significant improvement response despite extended or repeated treatment. This describes the three children's regimens: they were each treated in a wilderness program by mental health professionals after other therapies failed. BCBS's denial of coverage under the plans was therefore proper. Count III ERISA authorizes a plan participant to bring an action to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or to obtain other appropriate equitable relief to redress such violations or to enforce any provisions of this subchapter or the terms of the plan. The Plaintiffs allege that BCBS breached its fiduciary duty under ERISA and the Parity Act by failing to act in accordance with the documents and instruments governing plaintiffs' health benefit plan. BCBS asserts that this claim fails as a matter of law on three grounds. BCBS argues that the section 1132(a)(3) claim is duplicative because adequate relief is available under section 1132(a)(1)(B) (Counts I and II). BCBS maintains that Count III should be dismissed because it simply reiterates and relabels the claims for benefits set forth" in Counts I and II. The Plaintiffs counter with a more recent Supreme Court decision, CIGNA Corp. v. Amara, 563 U.S. 421 (2011). In Amara, the Court held that while section 1132(a)(1)(B) does not permit a court to alter the terms of an ERISA plan, section 1132(a)(3) authorizes equitable relief when appropriate. The Eighth and Ninth Circuits read Amara as implicitly allowing double-barreled relief. The Plaintiffs contend that their section 1132(a)(3) claim can similarly be pled in the alternative. The Court disagrees. While the First Circuit has yet to address the issue, the Court reasonably confident that it would adhere to its prior position as set out in LaRocca. LaRocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002) Accordingly, BCBS's motion to dismiss Counts I and III is allowed. A full-text copy of the District Court's December 6, 2018 Memorandum and Order is available at https://tinyurl.com/yaulz89r from Leagle.com. David Cotten, Plaintiff, represented by Deborah J. Winegard -- dwinegard@whatleykallas.com -- Whatley Kallas, LLP, pro hac vice, Jordan Lewis, Jordan Lewis, P.A., pro hac vice & Patrick J. Sheehan -- psheehan@whatleykallas.com -- Whatley Kallas, LLP. James Robinson & Carolyn Cain, Plaintiffs, represented by Patrick J. Sheehan, Whatley Kallas, LLP. Blue Cross and Blue Shield of Massachusetts HMO Blue, Inc., Defendant, represented by Charles L. Solomont -- carl.solomont@morganlewis.com -- Morgan Lewis & Bockius LLP, Joseph J. Costello -- joseph.costello@morganlewis.com -- Morgan, Lewis & Bockius, pro hac vice, Lisa Veasman -- lisa.veasman@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice, Molly Moriarty Lane -- mlane@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro hac vice & Peter J. Mee -- peter.mee@morganlewis.com -- Morgan, Lewis & Bockius LLP. BORO PARK: Faces Williamson Suit in Kings County, NY Court ---------------------------------------------------------- A class action has been filed against Boro Park Operating Co., LLC d/b/a Boro Park Center For Rehabilitation And Healthcare. The case is captioned as YVONNE WILLIAMSON, individually and on behalf of all others similarly situated, Plaintiff v. BORO PARK OPERATING CO., LLC D/B/A BORO PARK CENTER FOR REHABILITATION AND HEALTHCARE, Defendant, Case No. 525337/2018 (N.Y. Sup., Kings County, Dec. 12, 2018). Boro Park Operating Co., LLC, doing business as Boro Park Center for Rehabilitation and Healthcare, provides rehabilitation and healthcare services. The company is based in New York, New York. [BN] C&R RESTAURANT: Faces Paez Labor Suit in California Superior Court ------------------------------------------------------------------ A class action lawsuit has been filed against C&R RESTAURANT GROUP, L.P. The case is captioned MELISSA PAEZ, INDIVIDUALLY, AND ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED AND ON BEHALF OF AGGRIEVED EMPLOYEES PURSUANT TO THE PRIVATE ATTORNEYS GENERAL ACT ("PAGA"), the Plaintiff, vs. C&R RESTAURANT GROUP, L.P., A CALIFORNIA LIMITED PARTNERSHIP, the Defendants, Case No. BCV-18-103171 (Cal. Super. Ct., Dec. 21, 2018). The case is assigned to the Hon. Stephen D. Schuett. The suit alleges employment-related issues.[BN] Attorneys for Plaintiff: Douglas Han, Esq. JUSTICE LAW CORPORATION 411 N Central Ave., Ste 500 Glendale, CA 91203-2095 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com CALIFORNIA BOARD OF CORRECTIONS: Faces Doe Suit in State Court -------------------------------------------------------------- A class action lawsuit has been filed against California Board of State and Community Corrections. The case is captioned as Jane Doe Inmate and on behalf of all others similarly situated individuals, the Plaintiff, vs. California Board of State and Community Corrections, Does 1-1000, Scott Jones, and Sheriff's Department, the Defendants on Dec. 19, 2018, Case No: 34-2018-00246913-CU-MC-GDS (Cal. Super. Ct.). Established in 2012, the California Board of State and Community Corrections (BSCC) is an independent statutory agency that provides leadership to the adult and juvenile criminal justice systems, expertise on Public Safety Realignment issues, a data and information clearinghouse, and technical assistance on a wide range of community corrections issues.[BN] Attorneys for Plaintiff: Paula Canny, Esq. THE LAW OFFICES OF PAULA CANNY 840 Hinckley Rd., Suite 101 Burlingame, CA 94010 Telephone: 650 652 7862 Facsimile: 650 652 7835 CALIFORNIA: Homeowners Mull Class Actions Over Carr Fire -------------------------------------------------------- Michele Chandler, writing for Redding Record, reports that in the latest legal action related to the devastating Carr Fire, a developer and a group of people whose homes were destroyed in the blaze are gearing up to file class action lawsuits against the city of Redding and California. So far, two administrative claims have been filed by homeowners who had their properties destroyed in the Carr Fire, which roared through portions of Redding and Shasta and Trinity counties in the summer. Claims are legal actions required before a formal lawsuit can be filed against government agencies. Only if the agencies deny settling the claim can a lawsuit be filed in court. One claim was filed against the California Department of Transportation, while the second claim was filed against the city of Redding, said Dugan Barr, a Redding attorney who is representing the homeowners. City Attorney Barry DeWalt did not immediately return a call for comment on Dec. 14. City officials declined to settle the homeowners' claims on Dec. 7. That paves the way for a lawsuit seeking class action status to be filed against the municipality and state, Barr said. The second settlement claim, filed against Caltrans, is pending. If the state fails to act by Jan. 21, the claim "will be deemed to be denied and then we can go ahead and file suit" against the state, Barr said. By the time it was extinguished on Sept. 4, the Carr Fire had wiped out 1,079 single-family homes carrying an estimated market value of nearly $292 million. Mr. Barr, of the law firm Barr & Mudford, said both administrative claims were first filed in November by Redding developer W. Jaxon Baker and Kate Baker. In December, each claim was amended to include several homeowners whose properties were destroyed by the Carr Fire. Each claim is based on a different theory. One claim against the state alleges that Caltrans did not maintain the shoulder areas of its roadways by keeping them clear of combustible vegetation. That failure and others made the areas more prone to wildfires, the claim says. According to the claim, Caltrans failed to take sufficient efforts to "consider the fire risk" on Highway 299 in the Whiskeytown National Recreation area. The Carr Fire started at Highway 299 and Carr Powerhouse Road near Whiskeytown Lake and went on to char nearly 230,000 acres. State agencies also failed to "adequately assess" the fire risk along its roadways or remove dry trees and "other potential vegetative fuel sources," according to the claim. The second claim alleges the city of Redding failed to ensure that "adequate and defensible space was being provided for all new and existing homes." The city also failed to remove dry trees, brush and vegetation that could serve as wildfire fuel, the claim said. The city's hazard reduction plan, adopted in 2014, included an obligation to reduce vegetation fuel in the greenbelt areas within a year, Barr said. "They haven't done anything," he said. "In fact, the plan describes a fire coming into the northwest part of the city, only the one (wildfire) the plan described is much smaller than the one we actually got," said Barr. Since the Bakers filed the claim, other homeowners have joined. The claim now includes Laura McHaney and Ted and Debhora Aukland, as well as others whose properties were damaged or destroyed. The claim against the state was originally filed by the Bakers, McHaney and the Auklands. It now includes Kimberly Hurst, Max and Alice Carter and Larry Larson and others who are "similarly situated," according to the claim. Mr. Barr said that as time has passed, "One of the things that's going on is that people are starting to find out how much their insurance doesn't cover." This is Jaxon Baker's second time filing action against the city in connection with the Carr Fire. On Nov. 6, the Redding City Council rescinded its Aug. 21 approval of the its 2018 Parks, Trails and Open Space Master Plan. Mr. Baker, who was represented by Redding attorney Walt McNeill, had sued the city in September, alleging the master plan inadequately addressed ways to deal with flammable brush, grass and trees in the city's open space. Baker said the plan failed to take into account the sort of devastation caused by the Carr Fire. Mr. Baker's suit argued a more comprehensive environmental document is required through the California Environmental Quality Act process. The revocation was approved as part of the council's consent calendar. City staff recommended the council rescind the plan, noting that if it didn't, the result would be costly litigation. Staff plans to "prepare and publish the plan for adoption again." [GN] CIOX HEALTH: Carter Stayed Pending Appeal Ruling in Ruzhinskaya --------------------------------------------------------------- Magistrate Judge Marian W. Payson of the U.S. District Court for the Western District of New York grantd the Defendants' motion to stay the case, MARISSA CARTER, et al., Plaintiffs, v. CIOX HEALTH, LLC, f/k/a HealthPort Technologies, LLC, et al., Defendants, Case No. 14-CV-6275G (W.D. N.Y.). Plaintiffs Carter, Evelyn Grys, Bruce Currier, Sharon Koning, Sue Beehler, Marsha Mancuso, and Jaclyn Cuthbertson commenced the putative class action against CIOX Health, LLC, formerly known as HealthPort Technologies, LLC, the Rochester General Hospital, the Unity Hospital of Rochester, and the F.F. Thompson Hospital, Inc., alleging that they systematically overcharged patients who requested copies of their medical records, in violation of New York Public Health Law Section 18. Currently pending is the Defendants' motion to stay the matter pending resolution of an appeal before the Second Circuit in a similar case, Spiro v. HealthPort Technologies, LLC, 18-1034 (2d Cir. 2018) ("Ruzhinskaya"). The Plaintiffs join the Defendants' request to the extent it seeks a stay pending a decision from the Second Circuit in the Ruzhinskaya matter. Weighing the interests, Magistrate Judge Payson finds that a stay is warranted. Given the lack of opposition, there is little prejudice to the Plaintiffs, and the interests of the Defendants, the Court, the public, and possible nonparties are all advanced by a stay pending decision from the Second Circuit that will provide invaluable guidance to the Court on key trial issues in the case." For the reasons stated, the Magistrate granted the Defendants' motion to stay the proceedings. Within seven days of the issuance by the Second Circuit of its decision in Ruzhinskaya, the counsel will confer and submit to the Court a jointly-proposed amended scheduling order. A full-text copy of the Court's Dec. 21, 2018 Decision and Order is available at https://is.gd/Ez7u8W from Leagle.com. Marissa Carter, Evelyn Grys, Bruce Currier, Sharon Koning, Sue Beehler, Marsha Mancuso & Jaclyn Cuthbertson, as individuals and as representatives of the classes, Plaintiffs, represented by Anna P. Prakash -- aprakash@nka.com -- Nichols Kaster, PLLP, Kai H. Richter -- krichter@nka.com -- Nichols Kaster, PLLP, Kathryn Lee Bruns -- kbruns@faraci.com -- Faraci Lange LLP, Mark Edward Thomson -- mthomson@nka.com -- Nichols Kaster, PLLP & Stephen G. Schwarz -- sschwarz@faraci.com -- Faraci Lange LLP. CIOX Health, LLC, f/k/a HealthPort Technologies, LLC, Defendant, represented by Aaron M. Saykin -- asaykin@hodgsonruss.com -- Hodgson Russ LLP, Jodyann Galvin -- jgalvin@hodgsonruss.com -- Hodgson Russ LLP & Rebecca A. Brazzano -- Rebecca.Brazzano@ThompsonHine.com -- Thompson Hine LLP. the Rochester General Hospital & the Unity Hospital of Rochester, Defendants, represented by Aaron M. Saykin, Hodgson Russ LLP & Jodyann Galvin, Hodgson Russ LLP. F.F. Thompson Hospital, Inc., Defendant, represented by Jodyann Galvin, Hodgson Russ LLP. COINBASE: XRP Class Action Moved to Federal Court ------------------------------------------------- John P. Njui, writing for Ethereum World News, reports that as we wind down 2018, crypto traders have endured an almost 12 month wait for Coinbase to make a decision whether to list XRP or not. Around the 4th of January in 2018, the price of XRP climbed to $3.84 due to anticipation by crypto traders that the digital asset would be added on Coinbase. However, this did not happen and the digital asset fell by almost 25% the following day after representatives from the exchange dispelled rumors that listing XRP was in their plans. Pending Lawsuits Claiming XRP is a Security Around the same time period, the team at Ripple was served with lawsuits that claimed that the digital asset was an unauthorized security. One of the cases -- that is a consolidated class-action suit -- has been moved to Federal Court at the request of Ripple attorneys. Ripple's lawyers applied for the case to be moved to Federal court because some of the plaintiffs were residents of other States other than California where it was first filed. Many Crypto Enthusists Believe XRP Is Not A Security It is due to the above lawsuit in Federal court that many crypto enthusiasts believe that the team at Coinbase is waiting on the outcome to decide whether to list the digital asset or not. However, many have concluded that it is not a security. Even the CEO of Binance, Changpeng Zhao, shared his opinion on twitter that XRP was not a security. CZ's exact words were as follows: The court case may take years. But if XRP is ruled as a security, it would seriously hurt a lot of US users, and to a certain extent, other users around the world too. It certainly doesn't look like a security to me, but that's just one person's opinion. Coinbase Needs XRP Now More Than Ever It is no secret that the crypto bear market is hurting not only individual traders and investors, but also ICOs and cryptocurrency exchanges. The trade volume of Coinbase has decreased by 80% since the last Bull Run of December 2017 and January 2018. This is according to an August 2018 report by diar. This then brings us to the first reason why Coinbase needs XRP now more than ever. Listing the digital asset would attract users to the platform who are holders and fans of XRP. HODLers of the digital asset have been known to be very enthusiastic about the vision of fast, efficient and cheap transactions made possible by the XRP ledger. Listing XRP on the platform, would excite an already enthusiastic community to create new accounts on the platform. Secondly, with the new users and increased trade volume brought about by XRP, the exchange is surely to gain revenue from trading fees. From a business point of view, no executive running a company hates profit brought about by new business from clients. Listing XRP would bring in more traders automatically boosting revenue. Thirdly, the aforementioned hodlers and enthusiasts of XRP are now convinced that Coinbase has lost its credibility by listing ERC20 tokens linked to projects that many believe are not worthy of the exchange. Listing XRP might just be the move that will boost the reputation of the exchange in the eyes of many traders. In the world of business and finance, reputation is key. Conclusion With time and as the bear market continues to cause losses for crypto exchanges, the tables might have turned for Coinbase in the sense that it might need XRP now more than ever. Listing XRP might just be the spark needed to ignite a rush of new accounts on the platform as well as increasing its trade volume in the current bear market. There is also the fact that the reputation of the exchange might also be on the line as many traders have migrated elsewhere. This is due to the exchange delaying to list other prominent digital assets such as Stellar (XLM) and Cardano (ADA). [GN] COMPETITIVE EDGE: Granger Seeks to Recover Overtime Pay Under FLSA ------------------------------------------------------------------ JOSEPH GRANGER, on behalf of himself and others similarly situated v. COMPETITIVE EDGE GROUP, INC., A Florida Profit Corporation, and FRED R. BOOTHBY, individually, Case No. 6:18-cv-02164-ACC-GJK (M.D. Fla., December 18, 2018), seeks to recover alleged unpaid overtime wages under the Fair Labor Standards Act of 1938. CEG is a Florida for-profit company that conducts its for-profit landscaping business in Florida, with its principal places of business in Seminole and Palm Beach Counties, Florida. Fred R. Boothby is the owner and operator of CEG. The Defendants own and operate a landscaping service that utilizes cars, vans, mowers, hedgers, weeders, computers, telephones, phone systems, and other materials and supplies that originated outside the State of Florida.[BN] The Plaintiff is represented by: Noah E. Storch, Esq. RICHARD CELLER LEGAL, P.A. 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (866) 344-9243 Facsimile: (954) 337-2771 E-mail: noah@floridaovertimelawyer.com CONNECTICUT: Barfield Seeks to Certify Class -------------------------------------------- In the case, Robert Barfield, the Plaintiff, vs. SCOTT SEMPLE, in his official capacity, as Commissioner of the Connecticut Department of Correction, the Defendant, Case No. 3:18-cv-01198-MPS (D. Conn.), Robert Barfield, John Knapp and Darnell Tatem move the Court for an order: 1. certifying a class of: "all people who are or will be prisoners in the custody of the Connecticut Department of Correction ("DOC"), and who have or will have Hepatitis C while in custody and have not yet been cured." 2. appointing Robert Barfield, John Knapp and Darnell Tatem as class representatives; and 3. appointing Attorneys Kenneth J. Krayeske and DeVaughn L. Ward as class counsel.[CC] Attorneys for Robert Barfield: Kenneth J. Krayeske, Esq. KENNETH J. KRAYESKE LAW OFFICES 255 Main Street, 5th Floor Telephone: (860) 969-4911 Facsimile: (860) 760-6590 E-mail: attorney@kenkrayeske.com - and - DeVaughn L. Ward, Esq. WARD LAW LLC 363 Main Street, 4th floor Hartford, CT 06106 Telephone: 860-869-4086 Facsimile: 860-471-8406 E-mail: dward@attyward.com COVERMYMEDS LLC: Made Unsolicited Calls, Kenneth A. Thomas Says --------------------------------------------------------------- KENNETH A. THOMAS MD, LLC, individually and on behalf of all others similarly situated, Plaintiff v. COVERMYMEDS, LLC, Defendant, Case No. 3:18-cv-02038-KAD (D. Conn., Dec. 12, 2018) seeks to stop the Defendant's practice of sending unsolicited faxes to the Plaintiff and the class without any prior express written consent in violation of the Telephone Consumer Protection Act. CoverMyMeds, LLC provides electronic prior authorization solutions. The company’s CoverMyMeds platform allows electronic health records, payers, pharmacies, and life sciences to fill out prior authorization requests electronically. The company was founded in 2008 and is based in Highland Hills, Ohio. It has an additional office in Columbus, Ohio. As of April 3, 2017, CoverMyMeds LLC operates as a subsidiary of McKesson Corporation. [BN] The Plaintiff is represented by: Jason R. Campbell, Esq. JASON R. CAMPBELL, ATTORNEY AT LAW 250 First Avenue, Unit 602 Charlestown, MA 02129 Telephone: (617) 872-8652 E-mail: jasonrcampbell@ymail.com - and - Avi R. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Telephone: (305) 469-5881 E-mail: kaufman@kaufmanpa.com - and - Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 S. Biscayne Blvd, 28th Floor Miami, Fl 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-8946 E-mail: law@stefancoleman.com CREDIT BUREAU: Ozminkowski Sues over Debt Collection Practices -------------------------------------------------------------- LEANA OZMINKOWSKI, individually and on behalf of all others similarly situated, Plaintiff v. CREDIT BUREAU DATA, INC., Defendant, Case No. 3:18-cv-01034-slc (W.D. Wis., Dec. 12, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Magistrate Judge Stephen L. Crocker. Credit Bureau Data, Inc. is engaged as a collection agency. [BN] The Plaintiff is represented by: Nathan Edward DeLadurantey, Esq. DELADURANTEY LAW OFFICE, LLC 330 S. Executive Drive, Suite 109 Brookfield, WI 53005 Telephone: (414) 377-0515 E-mail: nathan@dela-law.com - and - Thomas John Lyons , Jr., Esq. CONSUMER JUSTICE CENTER, P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: (651) 770-9707 E-mail: tommy@consumerjusticecenter.com - and - Zeshan Usman, Esq. USMAN LAW FIRM, LLC 525 Junction Rd., Ste. 8520N Madison, WI 53717 Telephone: (608) 829-1112 Facsimile: (888) 876-2636 E-mail: Z@UsmanLaw.com CTAC HOLDINGS: Faces Delacruz ADA Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against CTAC Holdings LLC doing business as LI-LAC Chocolates. The case is captioned as EMANUEL DELACRUZ, individually and on behalf of all others similarly situated, Plaintiff v. CTAC HOLDINGS LLC doing business as: LI-LAC Chocolates, Defendant, Case No. 1:18-cv-11590-PAE-RWL (S.D.N.Y., Dec. 12, 2018). The lawsuit alleges violation of the Americans with Disabilities Act. The case is assigned to Judge Paul A. Engelmayer and referred to Magistrate Judge Robert W. Lehrburger. CTAC Holdings LLC doing business as: LI-LAC Chocolates provides fresh, gourmet chocolate and chocolate gifts. [BN] The Plaintiff is represented by: Dana Lauren Gottlieb, Esq. GOTTLIEB & ASSOCIATES 150 East 18th Street, Suite PHR New York, NY 10003 Telephone: (917) 796-7437 Facsimile: (212) 982-6284 E-mail: danalgottlieb@aol.com CURO GROUP: Feb. 4 Lead Plaintiff Bid Deadline Set -------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of CURO Group Holdings Corp. ("CURO") (NYSE: CURO) between July 31, 2018 through and including October 24, 2018. You are hereby notified that a securities class action lawsuit has been commenced in the United States District Court for the District of Kansas. To obtain additional information go to: https://www.zlk.com/pslra-1/curo-group-holdings-corp-loss-form or contact Joseph E. Levi, Esq. either via email at jlevi@levikorsinsky.com or by telephone at (212) 363-7500, toll-free: (877) 363-5972. There is no cost or obligation to you. Throughout the Class Period, Defendants materially misrepresented to investors the deleterious effect that the up-front loan loss provisioning in connection with a transition of its Canadian inventory to Open-Ended loans was having on the Company's financial performance and 2018 full-year Company guidance. Because CURO's Open-End Loans had a materially lower lending yield than the Single-Pay Products, and the portfolio of Open-End Loans was still immature and unseasoned, the up-front loan loss provisioning for these loans was far greater than publicly revealed (and the yield far lower). This caused the Company to materially overstate its 2018 projected financial results, including CURO's adjusted EBITDA, net revenue and operating earnings. On October 24, 2018, the Company announced disappointing financial results for the third quarter of 2018 and substantially reduced its guidance for full-year fiscal 2018. Upon this news, CURO stock fell from $22.87 on October 24, 2018 to $15.18 on October 25, 2018. If you suffered a loss in CURO you have until February 4, 2019 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Contact: Joseph E. Levi, Esq. Levi & Korsinsky, LLP 55 Broadway, 10th Floor New York, NY 10006 Website: www.zlk.com Telephone: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (212) 363-7171 Email: jlevi@levikorsinsky.com [GN] DEUTSCHE BANK: Settles Class Action Over RMBS Trusts ---------------------------------------------------- James Comtois, writing for Pensions & Investments, reports that Deutsche Bank agreed to settle a class action over its handling of residential mortgage-backed securities trusts. The suit, filed by lead plaintiff BlackRock (BLK) on behalf of its Balanced Capital Portfolio in U.S. District Court in New York, alleged that defendants Deutsche Bank National Trust Co. and Deutsche Bank Trust Co. Americas "breached its contractual duties by failing to address breaches of representations and warranties across dozens of RMBS trusts containing hundreds of thousands of mortgage loans," said court documents. "We are pleased to have resolved the matter," a Deutsche Bank spokesman said. Terms of the resolution were not disclosed. BlackRock spokesman Farrell Denby declined to comment.[GN] DITECH MORTGAGE: Bolen Suit Moved to Central Dist. of California ---------------------------------------------------------------- The case, Latiena Bolen, on behalf of themselves and all similarly situated persons, and the general public, the Plaintiff, vs. Ditech Mortgage Corp., Ditech Financial LLC, and Does 1 through 25, inclusive, the Defendants, Case No. 30-02018-01020307-CU-OE-CXC, was removed from the Superior Court of California for the County of Orange, to the U.S. District Court for the Central District of California (Southern Division - Santa Ana) on Dec. 19, 2018. The Central District of California Court Clerk assigned Case No. 8:18-cv-02250-JVS-ADS to the proceeding. The case is assigned to the Hon. Judge James V. Selna. Ditech Financial, a mortgage company, lends and services residential mortgages. It offers a range of purchase loan options, including fixed rate, adjustable rate, jumbo, FHA, and VA loans.[BN] Attorneys for Plaintiff: Reuben D Nathan, Esq. NATHAN AND ASSOCIATES APC 2901 West Pacific Coast Highway Suite 200 Newport Beach, CA 92663 Telephone: (949) 270-2798 E-mail: rnathan@nathanlawpractice.com Attorneys for Defendants: Christina Theresa Tellado, Esq. Deisy Castro, Esq. Thomas E. Hill, Esq HOLLAND AND KNIGHT LLP 400 South Hope Street 8th Floor Los Angeles, CA 90071 Telephone: (213) 896-2400 Facsimile: (213) 896-2450 E-mail: christina.tellado@hklaw.com deisy.castro@hklaw.com tom.hill@hklaw.com DOLCE PANE: Underpays Servers & Sommeliers, Powers Suit Claims -------------------------------------------------------------- MICHAEL POWERS, individually and on behalf of all others similarly situated, Plaintiff v. DOLCE PANE E VINO, INC.; and DOES 1 through 50, inclusive, Defendants, Case No. 37-2018-00062854-CU-OE-CTL (Cal. Super., San Diego Cty., Dec. 12, 2018) is an action against the Defendants for unpaid regular hours, overtime hours, minimum wages, wages for missed meal and rest periods. Mr. Powers was employed by the Defendants as server and sommelier. Dolce Pane E Vino, Inc. is corporation organized under the laws of the State of California. The Company is engaged in the restaurant business. [BN] The Plaintiff is represented by: Malte L. L. Farnaes, Esq. Christina M. Lucio, Esq. Robert R. Luster, Esq. Mitchell J. Murray, Esq. FARNAES & LUCIO, APC 2235 Encinitas Blvd., Suite 210 Encinitas, CA 92024 Telephone: (760) 942-9431 E-mail: malte@farnaeslaw.com clucio@farnaeslaw.com rluster@famaeslaw.corn mitch@farnaeslaw.com DONALD TRUMP: Honduran Families Sue over Migrants' Rights --------------------------------------------------------- A class action lawsuit has been filed against U.S. President Donald John Trump, Sr. The case is captioned Six Honduran Families and their Children as Unidentified and all Similarly situated migrants, the Plaintiff, vs. Honorable Donald John Trump, Sr., President of the United States of America; Jefferson Beauregard Sessions, United States Attorney General; and Department of Justice, the Defendants, Case No. 2:18-cv-10598-DMG-JDE (C.D. Cal., Dec. 21, 2018). The suit alleges civil rights violation. The case is assigned to the Hon. Judge Dolly M. Gee.[BN] Attorneys for Plaintiff: Lamar C Chapman, III P.O. Box 9000 Forrest City, AZ 72336-9000 Federal Correctional Institution PRO SE FCA US: Court Narrows Claims in Gilvin Suit Under Ohio's Lemon Law ------------------------------------------------------------------ In the case, MELISSA GILVIN, et al., Plaintiffs, v. FCA US LLC, et al., Defendants, Case No. 1:18-cv-107 (S.D. Ohio), Magistrate Judge Susan J. Dlott of the U.S. District Court for the Southern District of Ohio, Western Division, (i) denied the Plaintiffs' motion to remand, and (ii) granted in part and denied in part the Defendants' motions to dismiss. The Plaintiffs reside in Clermont County, Ohio. Defendant FCA US distributes, markets, and sells motor vehicles to persons in Ohio. Defendant ISG is an agent of FCA US. In May 2016, the Plaintiffs leased a new 2016 Ram 1500 truck which was sold, manufactured or distributed by FCA US. They leased the motor vehicle from Jeff Wyler, Eastgate Auto Mall in Batavia, Ohio, at which time they received a written statement of their rights under the Ohio Lemon Law. The Plaintiffs did not pay the costs of the taxes, security deposit, or title fees. The Plaintiffs' claim that their vehicle was out of service by reason of repair for a cumulative total of 30 or more calendar days. They further assert that their motor vehicle was possessed substantially the same nonconformity, which was subject to repair three or more times, and the nonconformity either continued to exist or was recurring. According to them, FCA US, their agents and/or their authorized dealer, were unable to conform their motor vehicle to any applicable express warranty by repairing or correcting the nonconformity after a reasonable number of repair attempts. In January 2017, the Plaintiffs were forwarded to Defendant FCA US's agent, ISG, to facilitate an informal dispute resolution to the nonconforming motor vehicle issue. During the informal negotiations, ISG made a "refund" offer to the Plaintiffs. ISG explained to the Plaintiffs that, as a matter of course, the amount of an offer made for the return of a vehicle included a deduction for the costs for taxes, title fees, and security deposits if the consumer had not paid the costs of these items at the outset of the consumer's dealings with FCA US. The Plaintiffs were told that since FCA US LLC had paid the costs of taxes, title fees, and security deposits (or simply waived these costs), they were not included in the offer being made. After ISG explained that FCA US was entitled to these costs, ISG gave the Plaintiffs few days to either accept the settlement offer or ISG would close the case. The Plaintiffs did not accept the settlement offer from ISG. Thereafter, the Plaintiffs initiated the action for alleged violations of Ohio's Lemon Law. Notably, they originally filed the action in the Court of Common Pleas for Clermont County, Ohio in January 2018. They seek relief for, inter alia, damages in excess of $25,000 for the refund of the full purchase price of their nonconforming motor vehicles. In addition to compensatory damages, the Plaintiffs also seek punitive damages, attorneys' fees, and injunctive and declaratory relief. The Plaintiffs' also seek to bring the action on behalf of themselves as well as two classes of persons: a. The "First Sub-Class" is apparently attempting to plead a fraud claim, and is defined as persons within the state of Ohio who, within the last five years, are identified under R.C. §1345.71 as a 'consumer,' that has engaged in a consumer transaction with FCA US, LLC where the consumer acquires a motor vehicle manufactured by FCA US, LLC, and these person-consumers have attempted to exercise their right to a refund of their nonconforming motor vehicle under R.C. Section 1345.72, and, either through dealing with FCA, US LLC or contact with the agents of FCA US, LLC, have been denied the refund of the 'full purchase price' for this nonconforming motor vehicle as defined under R.C. Section 1345:72, either through denial of a refund for title fees, taxes, and security deposits, or being forced to retroactively pay the cost of these items, which the consumer is specifically entitled to under R.C. Section 1345.71 et seq. b. The "Second Sub-Class" which is apparently seeking declaratory and injunctive relief, encompasses persons within the state of Ohio who, within the last five years, are identified under R.C. Section 1345.71 as a 'consumer' of a motor vehicle manufactured by FCA US, LLC, these persons are currently attempting to exercise their right to a refund of their nonconforming motor vehicle under R.C. Section 1345.72, and, either through dealing with FCA US, LLC or contact with the agents of FCA US, LLC, are being denied the refund of the 'full purchase price' for this nonconforming motor vehicle as defined under R.C. Section 1345.72, either through a denial of a refund for title fees, taxes, and security deposits, or being asked to retroactively pay the cost of these items, which the consumer is specifically entitled to under R.C. §1345.71 et seq. The Defendants filed a notice of removal with the Court on Feb. 14, 2018. Their Defendants' notice of removal asserted jurisdiction under 28 U.S.C. Section 1332(d)(2), which is commonly referred to as the Class Action Fairness Act ("CAFA"), as well as diversity jurisdiction pursuant to 28 U.S.C. Section 1332(a). On Aug. 21, 2017, the Plaintiffs made a written settlement demand on FCA US, claiming that the fraudulent actions at issue caused them to sustain far greater damages than simply the recoupment of the 'full purchase price' of their nonconforming motor vehicle. In the demand letter, they valued their compensatory, incidental, and punitive damages at no less than $400,000. The Plaintiffs now seek to remand the matter back to state court. Specifically, they contend: 1) the notice of removal was flawed where Defendant FCA US failed to adequately show that the amount in controversy exceeds the statutory limits set forth in the CAFA; 2) the Defendant failed to show that subject matter jurisdiction for the Court exists separate from the requirements set forth in the CAFA; and 3) the Defendant has not provided the Court or the Plaintiffs with any actual proof as to the size of the class or the amount in controversy. Magistrate Judge Dlott finds the Plaintiffs' contentions are not well-taken. The Plaintiffs have no way of knowing the costs of security deposits, taxes, and title fees for each individual class member, but they are similarly able to roughly estimate that the total cost of security deposits, taxes, and title fees for even the most expensive automobile that FCA US has to offer would most likely amount to less than $5,000 per class member. As such, the Plaintiff's contend that the Defendants could not meet the $5 milion threshold. Such an evidentiary dispute, however, according to the Magistrate, does not require remand at this time. Furthermore, she finds that the Court also has jurisdiction of the case under the general diversity statute because the value of the Plaintiffs' individual claims exceeds $75,000. The Plaintiffs' claim for punitive damages alone is enough to put the case over the $5M threshold even if their $3 million compensatory figure is adopted. Lastly, both the Sixth Circuit and this District have found that settlement demands, like the $400,000 one made by the Plaintiffs, are evidence that a district court must consider when determining the amount in controversy. For these reasons, the Magistrate denied the Plaintiff's motion to remand. The Defendants ask the Court to dismiss the Plaintiffs' complaint asserting that they failed to state a claim upon which relief may be granted. Specifically, the Defendants contend that the Plaintiffs have failed to meet the pleading standards of Rule 8(a). In the alternative, to the extent that the Court were to find that the Plaintiffs have pleaded a valid claim, the Defendants contend that the class Plaintiffs define is legally improper. The Magistrate finds that the Defendants' contentions are not well-taken, in part. She holds that the Plaintiffs' complaint contains sufficient allegations to state a claim for relief under Ohio's Lemon law. Because the classes proffered by the Plaintiffs are defined by legal conclusions, the Defendants argue that the issue of whether a person is actually a class member can only be resolved by adjudications on the merits. As such, the Defendants ask the Court to dismiss the class allegations in Paragraphs 45, 57, and 94. The Magistrate finds that the Plaintiffs' response in opposition to the Defendants motion to dismiss fails to address FCA US' argument that the class they have defined is an improper fail-safe class. A s such, the Plaintiffs do not dispute the Defendants' argument that the Court should dismiss or strike their class allegations as legally improper. Accordingly, she finds that Paragraphs 45, 57, and 94 should be dismissed from the complaint. In light of foregoing, Magistrate Judge Dlott recommended that the Plaintiffs' motion to remand should be denied, and the Defendants' motions to dismiss be granted in part and denied in part, consistent with her Report and Recommendation. A full-text copy of the Court's Dec. 21, 2018 Report & Recommendation is available at https://is.gd/o34eUM from Leagle.com. Melissa Gilvin & Jamie Gilvin, Plaintiffs, represented by Kristopher David Burgess -- kristopher@theburgessfirm.com -- T. David Burgess Co., L.P.A & Daniel T. Monk, T. David Burgess Co., L.P.A., pro hac vice. FCA US LLC, Defendant, represented by Carolyn Ann Taggart -- ctaggart@porterwright.com -- Porter Wright Morris & Arthur, LLP, Terrance Michael Miller -- tmiller@porterwright.com -- Porter Wright Morris & Arthur, Kathy Wisniewski -- kwisniewski@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice & Stephen Anthony D'Aunoy -- sdaunoy@thompsoncoburn.com -- Thompson Coburn LLP, pro hac vice. Impartial Services Group, also known as Stericycle Expert Solutions, Defendant, represented by Alex S. Rodger, STRAUSS TROY CO., LPA. Ally Financial Inc., Defendant, represented by Joel E. Sechler -- sechler@carpenterlipps.com -- Carpenter & Lipps LLP. FEDEX GROUND: Sullivan-Blake & Claiborne Seek OT Pay for Drivers ---------------------------------------------------------------- ANGEL SULLIVAN-BLAKE and HORACE CLAIBORNE, on behalf of themselves and others similarly situated, the Plaintiffs, vs. FEDEX GROUND PACKAGE SYSTEM, INC., the Defendant, Case No. 2:18-cv-01698-CRE (W.D. Pa., Dec. 21, 2018), seeks to recover overtime pay under the Fair Labor Standards Act. The Plaintiffs bring this collective action lawsuit against Defendant who have been employed by FedEx through intermediary employers to perform delivery services on FedEx's behalf and who have been eligible to receive overtime pay but have not been paid time-and-a-half compensation for their hours worked in excess of forty hours per week, in violation of the FLSA. FedEx operates a package pickup and delivery business servicing customers throughout the United States. FedEx employs thousands of package delivery drivers within the United States, including the named Plaintiffs and others similarly situated, who: (a) work for FedEx through intermediary employers called "independent service providers" ("FedEx ISPs"); (b) are classified as "employees" of the FedEx ISPs; (c) have worked more than 40 hours per week delivering packages for FedEx but are not paid time-and-a-half compensation for hours worked over 40; and (d) drive, in whole or in part, vehicles with a gross vehicle weight rating of 10,000 pounds or less. The Plaintiffs and the drivers all worked as FedEx delivery drivers pursuant to FedEx's common business practices and, as a result of such practices, have not been paid the legally mandated overtime premium, the lawsuit says.[BN] Attorneys for Plaintiffs: Peter Winebrake, Esq. R. Andrew Santillo, Esq. Mark J. Gottesfeld, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 E-mail: pwinebrake@winebrakelaw.com - and - Shannon Liss-Riordan, Esq. Michelle Cassorla, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: sliss@llrlaw.com mcassorla@llrlaw.com FINK & ASSOCIATES: Faces Ross' FDCPA Suit in N.D. Illinois ---------------------------------------------------------- A class action lawsuit has been filed against Stephen J. Fink & Associates, P.C. The case is captioned as Vivian Ross, individually and on behalf of all others similarly situated, the Plaintiff, vs. Stephen J. Fink & Associates, P.C. and HBLC, Inc., the Defendants, Case No. 1:18-cv-08327 (N.D. Ill., Dec. 19, 2018). The case is assigned to the Hon. Charles R. Norgle, Sr. The suit alleges Fair Debt Collection Act violation.[BN] Attorneys for Plaintiff: Yitzchak Zelman, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (845) 367-7146 E-mail: yzelman@marcuszelman.com FLORIDA ADVERTISING: Sued over Unwanted Cellular Telephone Calls ---------------------------------------------------------------- ISABEL GUTIERREZ individually and on behalf of all others similarly situated, the Plaintiff, vs. FLORIDA ADVERTISING AND MARKETING CORP. d/b/a BOOKHOTELSTAYS, the Defendant, Case No. 1:18-cv-25400-FAM (S.D. Fla., Dec. 22, 2018), seeks injunctive relief to halt Defendant's illegal conduct, arising from Defendant’s knowing and willful violations of the Telephone Consumer Protection Act. According to the complaint, the Defendant is timeshare marketing company based in Miami, Florida. As part of its marketing strategy, the Defendant calls unsuspecting consumers on their cellular telephones with pre-recorded messages to sell their timeshare services and goods. The Defendant caused thousands of pre-recorded messages to be sent to the cellular telephones of Plaintiff and Class Members, causing them injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.[BN] Counsel for Plaintiff: Ignacio J. Hiraldo, Esq. Manuel S. Hiraldo, Esq. IJH LAW 1200 Brickell Ave Suite 1950 Miami, FL 33131 Telephone: 786.496.4469 E-mail: ijhiraldo@ijhlaw.com - and - Manuel S. Hiraldo, Esq. HIRALDO P.A. 401 E. Las Olas Boulevard, Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 400 4713 E-mail: mhiraldo@hiraldolaw.com FQ MEN'S CLUB: Denial of Arbitration Bid in Dancers' Suit Vacated ----------------------------------------------------------------- The Supreme Court of Nevada vacated the district court's order denying Men's Club's motion to compel arbitration in the case, FQ MEN'S CLUB, INC., (D/B/A RENO MEN'S CLUB, THE MEN'S CLUB, AND MEN'S CLUB OF RENO), A NEVADA CORPORATION; FRENCH QUARTER, INC., (D/B/A RENO MEN'S CLUB, THE MEN'S CLUB, AND MEN'S CLUB OF RENO), A NEVADA CORPORATION; THE FRENCH QUARTER, INC., A NEVADA CORPORATION; FRENCH QUARTER RESTAURANT, INC., A NEVADA CORPORATION; AND EUGENE CANEPA, AN INDIVIDUAL, Appellants, v. JANE DOE DANCERS I, II AND III, INDIVIDUALLY AND ON BEHALF OF CLASS OF SIMILARLY SITUATED INDIVIDUALS, Respondents, Case No. 74037 (Nev.). Three exotic dancers, Jane Doe Dancers I-III, filed a proposed class action lawsuit against the Men's Club, alleging that they were employees, not independent contractors, and therefore entitled to the rights and protections afforded employees. The Men's Club then filed a motion requesting that the district court compel arbitration per the parties' contractual agreement. The appeal centers upon the enforceability of that arbitration provision, not upon the merits of the underlying proposed class action. The Dancers were all existing performers for the Men's Club when its policies changed on Dec. 31, 2015, to conform to new legislation and caselaw. Per the new policies, the Dancers were required to sign a Memo, in which they chose their status as employees or independent contractors. The front door hostesses were instructed to present the Memo to the Dancers when they came in for their shifts, and to tell the dancers that if they want to stay the same as they have been for the last 20 years choose independent contractor. The Dancers who chose to be independent contractors were then asked to sign a Guest Cabaret Performer Licensing Agreement ("GCPLA"). The Dancers were not given an explanation of the GCPLA and were required to sign the documents before they could work. They also were not allowed to take a copy of the agreement home. The GCPLA was similar to the Dancers' original performance contract; however, it now contained a multi-page arbitration agreement and class action waiver. The district court held an evidentiary hearing wherein Dancers maintained that they did not remember signing the GCPLA. The Men's Club employees testified to the circumstances under which the agreements were presented to the Dancers and signed. Based on the testimony and evidence presented, the district court held that the contracts were validly signed by the Dancers, but that the arbitration provision in question was unconscionable. The district court denied the motion to compel arbitration and granted a stay on the proceedings pending the appeal. The Men's Club now appeals the district court's order denying its motion to compel arbitration and argues that the district court erred because it did not make specific and separate factual findings to support its conclusion that the arbitration clause is procedurally and substantively unconscionable. The Court agrees. It finds that the district court did not make specific and separate findings as to the procedural and substantive unconscionability of the contract under the U.S. Home Corp. v. Michael Ballesteros Tr. analysis. Instead, it made findings supporting the procedural unconscionability of the arbitration clause. The district court must determine under the Court's recent holding in Ballesteros whether the contract was procedurally and substantively unconscionable. Based on this, the Court vacated the judgment of the district court and remanded the matter to the district court for proceedings consistent with the Order. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/qvXkq7 from Leagle.com. GATES CORPORATION: Court Issues Protective Order in Lundine ----------------------------------------------------------- The United States District Court for the District of Kansas issued an Order granting Parties' Request for Protective Order in the case captioned PEGGY LUNDINE on behalf of herself and others similarly situated, Plaintiff, v. GATES CORPORATION, Defendant. Case No. 6:18-cv-1235-EFM (D. Ks.). The parties jointly request entry of this proposed Protective Order to limit the disclosure, dissemination, and use of certain identified categories of confidential information. Plaintiff Peggy Lundine, on behalf of herself and all others (Plaintiff) and Defendant Gates Corporation (Gates) agree that during the course of discovery it may be necessary to disclose certain confidential information relating to the subject matter of this action. They agree that certain categories of such information should be treated as confidential, protected from disclosure outside this litigation, and used only for purposes of prosecuting or defending this action and any appeals. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/y7s7nfwb from Leagle.com. Peggy Lynn Lundine, on behalf of herself and others similarly situated, John Stronghoner, Jim Aikens, Jeanne L. Carson, Andrew DeSpain, Shawn W. Tubbs, Hannah Arnold, Elizabeth Lydy, Mary Von Kannon-Marchand, Anthony Rogers, Ethan Hammock, Tyler Chamberlain, Jeremey Chamblee, Courtney Belue, Zachary Tehee, Ellis Wooten & Harlon D. Farr, Jr., Plaintiffs, represented by Brendan J. Donelon, Donelon, PC & Daniel W. Craig, Donelon, PC. Gates Corporation, Defendant, represented by Christopher J. Eby -- christopher.eby@akerman.com -- Akerman, LLP, pro hac vice, Christopher S. Shank -- chris@shankmoore.com -- Shank & Moore, LLC, Colin L. Barnacle -- colin.barnacle@akerman.com -- Akerman, LLP, pro hac vice & David Lee Heinemann -- davidh@shankmoore.com -- Shank & Moore, LLC. GAZELLE TRANSPORTATION: Faces Bibb Labor Suit in Calif. State Court ------------------------------------------------------------------- A class action lawsuit has been filed against Gazelle Transportation, LLC The case is captioned as DAVID BIBB; INDIVIDUALLY AND ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED, the Plaintiff, vs. GAZELLE TRANSPORTATION, LLC, A DELAWARE COMPANY, the Defendant, Case No. BCV-18-103172 (Cal. Super. Ct., Dec. 21, 2018). The case is assigned to the Hon. Judge David R. Lampe. The suit alleges employment law-related violation. Gazelle Transportation, Inc. provides crude oil transportation and logistics services for the oil and gas industry. The company was founded in 1992 and is based in Bakersfield, California. It has operations in California, South Texas, West Texas, and the Rocky Mountains.[BN] Attorneys for Plaintiff: Douglas Han, Esq. JUSTICE LAW CORPORATION 411 N Central Ave, Ste 500 Glendale, CA 91203-2095 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com GKG RESTAURANT: Gadea Seeks Minimum & OT Wages ---------------------------------------------- TEODOMIRO PINEDA GADEA, individually and on behalf of others similarly situated, the Plaintiff, vs. GKG RESTAURANT, INC. (D/B/A SCOTTY'S DINER), THEODORE GROUTAS, and STELIOS GROUTAS, the Defendants, Case No. 1:18-cv-12061 (S.D.N.Y., Dec. 20, 2018), seeks to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff is a former employee of GKG Restaurant, Inc. The Defendants own, operate, or control a diner located at 336 Lexington Ave, New York, New York 10016 under the name "Scotty's Diner". The Plaintiff was employed as a delivery worker. However, he was required to spend a considerable part of his work day performing non-tipped duties, including but not limited to cleaning bathrooms, kitchen, bar area, basement, cutting vegetables, cheese, ham, cooking sausages, sweeping the floors of the restaurant, basement, and the front of the restaurant, breaking down cardboard boxes, taking out the garbage and recycling, cleaning out the grill/stove vent, dishwashing, and bringing up items from the basement for the kitchen staff. The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that he worked. Rather, Defendants failed to maintain accurate recordkeeping of the hours worked and failed to pay Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. The Defendants employed and accounted for Plaintiff as a delivery worker in their payroll, but in actuality his duties required a significant amount of time spent performing the non-tipped duties. The Defendants maintained a policy and practice of requiring Plaintiff and other employees to work in excess of 40 hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations, the lawsuit says.[BN] Attorneys for Plaintiff: MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 H.U.M. LARROC: Lodge & McLean Seek Minimum and OT Pay for Servers ----------------------------------------------------------------- CHRISTOPHER LODGE, KELLY MCLEAN, and all others similarly situated under 29 U.S.C. 216(b), the Plaintiff(s), vs. H.U.M. LARROC, INC., d/b/a BEEFCAKES BAR & GRILL, a Florida Profit Corporation, VICTOR ZEPKA, individually, and SCOTT LAUGHERTY, individually, the Defendants, Case No. 0:18-cv-63123-JIC (S.D. Fla., Dec. 21, 2018), alleges that Defendants unlawfully deprived Plaintiffs, and all other employees similarly situated, of federal minimum wage and overtime compensation during the course of their employment under the Fair Labor Standards Act. According to the complaint, Beefcakes uniformly treats and classifies its employees as employees in Broward County, Florida as it relates to the payment of wages. The Plaintiffs, and the class members performed the same or similar job duties as one another in that they worked as restaurant servers of Beefcakes within the past three years without receiving proper minimum wage and/or overtime pay for hours worked in each workweek during their employment. The Plaintiffs and the class members were subjected to the same pay provisions in that they suffered or were permitted to work hours but not properly paid at the correct rate for all hours worked. Thus, the class members are owed federal minimum wages and/or overtime wages for the same reasons as Plaintiffs, the lawsuit says.[BN] Counsel for Plaintiffs: Jordan Richards, Esq. Melissa Scott, Esq. USA EMPLOYMENT LAWYERS - JORDAN RICHARDS, PLLC 805 E. Broward Blvd. Suite 301 Fort Lauderdale, FL 33301 E-mail: jordan@jordanrichardspllc.com melissa@jordanrichardspllc.com jake@jordanrichardspllc.com livia@jordanrichardspllc.com HOUSLANGER & ASSOCIATES: Sued over Debt Collection Practices ------------------------------------------------------------ BRITNEY RUDLER, individually and on behalf of all others similarly situated, Plaintiff v. HOUSLANGER & ASSOCIATES, PLLC; TODD E. HOUSLANGER, ESQ.; and BRYAN BRYKS, ESQ., Defendants, Case No. 2:18-cv-07068-SJF-AYS (E.D.N.Y., Dec. 12, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Sandra J. Feuerstein and referred to Magistrate Judge Anne Y. Shields. Houslanger & Associates PLLC operates as a law firm. The Company is located in Huntington, New York. [BN] The Plaintiff is represented by: J. Remy Green, Esq. COHEN & GREEN P.L.L.C. 1639 Centre Street, Suite 216 Ridgewood, NY 11385 Telephone: (929) 888-9480 Facsimile: (929) 888-9457 E-mail: remy@femmelaw.com ILLINOIS: DCFS Faces Class Action Over Foster Care System --------------------------------------------------------- According to the Sun-Times Editorial Board, let's be blunt: Illinois is doing a shameful job of caring for some of its most vulnerable, traumatized children. Sometimes it takes a lawsuit to force systemic change, and we hope a Cook County public guardian's recent lawsuit accomplishes that. Acting Public Guardian Charles Golbert filed a class-action case against the Illinois Department of Children and Family Services, accusing the agency of letting hundreds of foster children languish in psychiatric hospitals for months after doctors had cleared them to be discharged. The suit follows a ProPublica Illinois investigation earlier in 2018. Take the story of 11-year-old Jamya B., one of the children named in the lawsuit. Jamya, who'd been placed in foster care because of physical abuse at home, had a rare behavioral condition that was almost certainly made worse by an extra four months locked in a psychiatric ward, the suit alleges. Jamya "has a heightened need for predictable long-term relationships, which extended hospital stays necessarily disrupt," says the lawsuit. The stories of 14 other children, similar to or even more heartbreaking than Jamya's, are all outlined in the suit. Ideally, traumatized children who need psychiatric care but no longer need to be in a hospital would be placed in a group home, or in other setting with support services. Tragically, but not surprisingly, appropriate placements for these difficult-to-handle children are as scarce as hen's teeth. DCFS struggles to find them, and it takes a herculean effort. As Ed Yohnka of the American Civil Liberties Union told us, "The reality is, when you look at these kids staying [in hospitals] beyond medical necessity -- those ought to be the cases where the agency, even the director, gets on the phone to make things happen." "It's definitely the result of a lack of services," Mr. Yohnka added. "It's also definitely a result of an agency [that] has not put the energy or resources into developing those services. A psychiatric hospital shouldn't be the first destination. It should be the last resort." Mr. Golbert's lawsuit could be the first step to much-needed systemic change. [GN] IMAGE FIRST: Court OKs Bid to Deny Rule 23 Cert in Campanelli Suit ------------------------------------------------------------------ In the case, KYLE L. CAMPANELLI, Plaintiff, v. IMAGE FIRST HEALTHCARE LAUNDRY SPECIALISTS, INC., et al., Defendants, Case No. 15-cv-04456-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted in part and denied in part Defendants Image First Healthcare Laundry Specialists, Inc. and Image First of California, LLC's motion for partial summary judgment. ImageFIRST's motion for partial summary judgment came on for hearing before the Court on Sept. 19, 2018. The case is a putative class and collective action based on the Fair Labor Standards Act ("FLSA") and the California Labor Code. I mageFIRST of California employed Campanelli as a delivery person from March 2014 to March 2015. The Plaintiff's primary job duty was to pick up soiled laundry from ImageFIRST customers and deliver it to a laundry center, and to pick up clean laundry from the laundry center and deliver it to ImageFIRST customers. Campanelli alleges that he worked over forty hours a week but was denied meal and rest periods, and was never paid overtime compensation. Campanelli seeks to represent similarly situated delivery drivers of ImageFIRST entities nationwide in a collective action for failure to pay overtime wages under the FLSA. He also seeks to represent a Rule 23 class of similarly situated delivery persons who were misclassified as exempt under California labor laws. Both the class and collective action define putative members as past and present employees of ImageFIRST entities who engage/were engaged in the pick-up and delivery of ImageFIRST products to and from health care providers, however that employment was denominated, and who were classified as exempt from Federal or California overtime laws. Critically, the proposed class/collective includes delivery drivers who have signed arbitration agreements. That is not by accident. Though Campanelli is not subject to an arbitration agreement, he nevertheless seeks to represent delivery drivers subject to mandatory arbitration. In fact, the Defendants have submitted uncontroverted evidence that the vast majority of putative class/collective action members are subject to either a Dispute Resolution Agreement ("DRA"), which contains an explicit arbitration clause and a collective action waiver; or an Employment Agreement, which contains an arbitration provision but is silent on whether arbitration can proceed collectively. Specifically, the evidence shows that 17 of the 21 putative Rule 23 class members that the Defendants' affiliated entities employed from Sept. 28, 2011 to July 21, 2018, signed at least one of the two arbitration agreements. As to the putative FLSA collective action, of the 214 delivery drivers employed by ImageFIRST affiliated entities operating exclusively outside of California since about June 27, 2015, 187 delivery drivers signed a DRA and 209 signed an employment agreement. Though relevant case law provides no need for the Court to reach the issue in the case, the DRA and Employment Agreement appear likely to be enforceable arbitration agreements. The present motion, like much of the past two years of the litigation, is directed at determining whether Campanelli, a driver not subject to an arbitration agreement, can represent putative collective/class members who have signed arbitration agreements. Judge Hamilton finds that though the Plaintiff is not subject to an arbitration agreement, he seeks to represent a Rule 23 class that includes drivers who are subject to arbitration agreements. The Ninth Circuit has foreclosed the viability of that proposition. Campanelli is neither subject to an arbitration clause nor a class/collective action waiver. Thus, he is not an adequate representative and his claims lack typicality with respect to putative Rule 23 Plaintiffs who have signed the DRA or the Employment Agreement. Accordingly, the Judge granted the Defendants' motion to deny class certification based on the currently defined class because the named Plaintiff is not an adequate representative and his claims lack typicality with respect to putative Rule 23 Plaintiffs who have signed the DRA or the Employment Agreement. With respect to the FLSA collective action, the Judge denied the Defendants' motion for summary judgment -- or motion to deny FLSA certification-- without prejudice. She finds that the Court must first allow the Plaintiff to seek FLSA certification and, if appropriate, order notice to be sent to all putative FLSA collective action members. Only after the FLSA Plaintiffs join the action, may the Court entertain the Defendants' arbitration-related motions seeking to compel the opt-in Plaintiffs to arbitrate or to prohibit them from proceeding collectively. While that sequencing strikes the Court as highly inefficient, it is what Campbell demands. The Plaintiff will file his motion for conditional certification, which will include his tolling-related arguments, by Jan. 23, 2019. For the foregoing reasons, Judge Hamilton granted in part ad denied in part the Defendants' motion. She granted the Defendants' motion to deny Rule 23 certification, and denied their motion in all other respects. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/driL3w from Leagle.com. Kyle L. Campanelli, Plaintiff, represented by David C. Feola -- David@Feolalaw.com -- Hoban & Feola, LLC & Brian J. Malloy -- info@brandilaw.com -- The Brandi Law Firm. Image First Healthcare Laundry Specialists, Inc. & Image First of California, LLC, Defendants, represented by Eric Meckley, Esq. -- eric.meckley@morganlewis.com -- Morgan, Lewis and Bockius LLP, Kathryn M. Nazarian -- kate.nazarian@morganlewis.com -- Morgan, Lewis and Bockius & Nancy Villarreal -- nancy.villarreal@morganlewis.com -- Morgan Lewis & Bockius LLP. INFORMATION STRATEGY: Class in Scales Suit Conditionally Certified ------------------------------------------------------------------ In the case, Gabriel Scales, Plaintiff, v. Information Strategy Design Incorporated, et al., Defendants, Case No. CV-18-00087-PHX-DLR (D.. Ariz.), Judge Douglas L. Rayes of the U.S. District Court for the District of Arizona Scales' Motion for Conditional Certification and Court-Supervised Notice of Pending Collective Action, but for a narrower class than requested. Scales brings the action against Defendants Information Strategy Design, Steven Losefky, and Michele Losefsky ("ISD") to recover allegedly unpaid overtime wages under the Fair Labor Standards Act ("FLSA"). From January 2015 to mid-October 2017, Scales worked as a Help Desk Technician for ISD, an Arizona corporation that provides IT support and solutions to ISD clients. In addition to his normal, on-site hours, Scales periodically was expected to perform on-call work. As a result, Scales routinely worked 80-90 hours per week while assigned on-call duty. He also claims that he routinely worked more than 40 hours per week, sometimes by as much as 20 hours, even when not on call. Scales, however, was compensated on a salaried basis and therefore was not paid the one and one-half times pay premium required by the FLSA for overtime hours worked by non-exempt employees. Help Desk Technicians performed on-call work in rotations, with each technician spending an entire week on-call. During his employment with ISD, Scales shared the on-call rotation with approximately ten other employees. When he was not assigned on-call duties, another similarly situated employee would be. Scales claims that he personally witnessed other technicians performing similar tasks and working more than 40 hours per week without receiving overtime compensation. He believes that this pay discrepancy is the result of ISD's misclassification of Help Desk Technicians as exempt employees and ISD's standard on-call policy. Scales therefore seeks to pursue the case as a collective action and to conditionally certify the class of all persons who worked as computer help desk technicians (or in other positions with similar job titles or job duties), and/or persons who performed on-call duties for the Defendants, and/or persons who worked in excess of 40 hours in a given workweek but were not paid overtime, at any time from three years prior to the filing of this Complaint through the entry of judgment. Judge Rayes finds that Scales has met his light burden for obtaining conditional class certification. He agrees in part, however, with ISD that Scales' proposed class is too broad. In his complaint, Scales defined the proposed class as all persons who worked as computer help desk workers (or in other positions with similar job titles or job duties) for the Defendants at any time from three years prior to the filing of the Complaint through the entry of judgment. Yet, in his motion for conditional class certification, Scales expands this proposed class to include persons who performed on-call duties for the Defendants, and persons who worked in excess of 40 hours in a given workweek but were not paid overtime, apparently regardless of whether those persons also worked as computer help desk technicians. In so doing, the Judge finds that Scales likely ropes in far too many employees who were not engaged in similar work. Judge Rayes finds that Scales' original formulation was closer to the mark, and therefore will conditionally certify the class of all persons who worked as computer help desk workers (or in other positions with similar job titles or job duties) and worked more than 40 hours in a given workweek for the Defendants at any time from three years prior to the filing of the Complaint through the entry of judgment. The Judge will grant ISD's request for additional time to meet and confer regarding the notice, especially considering some common ground seems possible. With that said, he addresses one of ISD's objections now. Scales asks that the Court permits him to serve potential class members with a copy of the notice via both first-class mail and email, and that the Court limits notice to only first-class mail. He finds no reason to impose such a limitation, especially considering Scales has proffered evidence that on-call computer help desk workers are required to check their email regularly. So long as the potential class members are provided with the notice via first-class mail, the Judge sees no harm in supplementing that notice with an email. Lastly, Scales asks the Court to order ISD to produce the names, all known addresses, phone numbers, dates of birth, all known email addresses, driver's license numbers, social security numbers, and dates of employment for all potential class members. ISD objects to this request as overly broad and asks the Court to limit such production to names and last known addresses. The Judge agrees that the request is overly broad to achieve the purpose of identifying and notifying potential class members. Accordingly, he will order ISD to produce only the names, last known mailing addresses, last known email addresses, and dates of employment for all potential class members. Based on the foregoing, Judge Rayes granted Scales' motion for conditional class certification. He ordered the parties to meet and confer to craft a mutually agreeable proposed notice. By no later than Jan. 11, 2019, the parties will submit either (1) a revised copy of the proposed notice for final court review and approval or, if the parties cannot resolve all disagreements; and (2) a joint explanation of the parties' disagreements, limited to 10 pages. The Court will set a deadline for mailing/emailing the notice to the potential class members after final review and approval of the parties' proposed notice. By no later than Jan. 11, 2019, ISD will produce names, last known mailing addresses, last known email addresses, and dates of employment for all the potential class members. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/SWvSRg from Leagle.com. Gabriel Scales, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jason Saul Barrat, Zoldan Law Group PLLC, Jessica Elizabeth Miller, Zoldan Law Group PLLC, Michael David Zoldan, Zoldan Law Group PLLC & James Joseph Weiler, Zoldan Law Group PLLC. Information Strategy Design Incorporated, an Arizona limited liability company, Steven Losefsky, an Arizona resident & Michele Losefsky, an Arizona resident, Defendants, represented by Douglas Calvin Lynn, III -- Trey.Lynn@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC & Tracy Ann Miller -- tracy.miller@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart PC. JACKSON HEWITT: Tom Endres Sues over No-Poach Policy ---------------------------------------------------- TOM ENDRES individually and on behalf of others similarly situated, the Plaintiff, vs. JACKSON HEWITT, INC., JACKSON HEWITT TAX SERVICE INC., and TAX SERVICES OF AMERICA, INC., the Defendants, Case No. 18-cv-17452 (D.N.J., Dec, 20, 2018), seeks injunctive relief and recover damages, including treble damages, costs of suit, and reasonable attorneys' fees arising from Defendants' violations of Section 1 of the Sherman Act. According to the complaint, the case is an antitrust class action brought by and on behalf of individuals who work or have worked for Jackson Hewitt, a tax preparation services company and franchisor, for unlawfully conspiring to suppress the wages of its employees through agreements with its franchisees not to compete for workers in violation of Section 1 of the Sherman Act. Jackson Hewitt orchestrated and enforced this conspiracy at least in part through an explicit contractual prohibition contained in standard Jackson Hewitt franchise agreements that severely limited Plaintiff's and Class members' job mobility and served to significantly suppress their compensation, the lawsuit says.[BN] Attorneys for Plaintiff: Bruce D. Greenberg, Esq. LITE DEPALMA GREENBERG, LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 E-mail: bgreenberg@litedepalma.com - and - Richard M. Paul III, Esq. Ashlea Schwarz, Esq. Laura C. Fellows, Esq. PAUL LLP 601 Walnut Street, Suite 300 Kansas City, MO 64106 Telephone: (816) 984-8100 E-mail: Rick@PaulLLP.com Ashlea@PaulLLP.com Laura@PaulLLP.com - and - Jason S. Hartley, Esq. HARTLEY LLP 500 West C Street, Suite 1750 San Diego, CA 92101 Telephone: (619) 400-5822 E-mail: hartley@hartleyllp.com JIFFY LUBE: Hit With Class Action Over No-Poach Agreement --------------------------------------------------------- Riia O'Donnell, writing for HRDIVE, reports that Jiffy Lube and its parent company are facing a potential class action suit alleging that it prohibited franchises from hiring other Jiffy Lube employees, in violation of federal law (Victor Fuentes, et al. v. Royal Dutch Shell PLC, Shell Oil Company, Pennzoil-Quaker State Company and Jiffy Lube International, Inc., No. 18-5174 (E.D. Penn., Nov. 29, 2018)). It required franchise owners to enter into this no-poach agreement, which likely suppressed wages, the plaintiff argued. Because franchise owners are barred from hiring an employee from another location for at least six months after they leave, the practice obviates the "need for franchise owners to compete for the best workers." The plaintiff, Victor Fuentes, said he believes he is owed "antitrust damages for years of wage suppression." [GN] LAKHI GENERAL: Settlement in Andrew Suit Okayed ----------------------------------------------- In the class action lawsuit styled KANAN ANDREW, on Behalf of Himself and All Others Similarly Situated, the Plaintiff, vs. LAKHI GENERAL CONTRACTOR INC., ABC CONSTRUCTION SERVICES CORP., ENDURANCE AMERICAN INSURANCE COMPANY, GURCHARAN S. SINGH and TONY KAJA, the Defendants, Case No. 16-CIV-2216-RJD-JO (E.D.N.Y.), Magistrate Judge James Orenstein on Jan. 8, 2019, granted the plaintiffs' motion for certification of settlement class, final approval of the class action settlement, approval of the FLSA settlement, and approval of the attorneys' fees and service awards. Judge Orenstein indicated at a fairness hearing held Jan. 3 that he would approve the settlement subject to certain revisions. "I discussed with the parties' counsel the motion to approve the proposed class settlement. No objectors appeared and no one has lodged any objection. As set forth on the record, I will approve the settlement in modified form," Judge Orenstein said. "Specifically, I will adjust the fee award based on the following hourly rates: $400 for William Cafaro and Daniela Nanau, $225 for Amit Kumar, $200 for Louis Leon, $125 for Constance Christie, $100 for Nicholas Duran, $75 for Pamela Santos and Odaris Palacios, and $60 for Emma Bernstein. I make no adjustment to the claimed hours." "I will multiply the resulting lodestar amount of $271,922.50 by 2.25 to reflect the unique challenges of this case, resulting in a total fee award of $611,200.97 (plus costs in the amount of $28,374.34). To the extent the total award of fees and costs is less than that the parties proposed, I respectfully direct the difference to be distributed among the class members pro rata. The parties consent to the adjustments summarized above. In all other respects I conclude that the motion should be granted, and I respectfully direct the parties' counsel to submit an amended proposed order reflecting the foregoing rulings." Attorneys for Plaintiff: William Cafaro, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Telephone: (212) 583-7400 Facsimile: (212) 583-7401 E-mail: BCafaro@CafaroEsq.com LINDENHURST, NY: Residents Mull Class Action Over Flooding ---------------------------------------------------------- Denise M. Bonilla, writing for Newsday, reports that there are days when the water gets so high that Angela Hojnacki has to carry her young daughters on her back to reach her truck, which she parks on dry land a quarter of a mile away from her house in Lindenhurst. Sean Esna says he sometimes misses work because his sedan can't get down his flooded street. These are the adjustments to daily life that residents in Lindenhurst and other South Shore communities have had to make after years of chronic street flooding -- even living several blocks north of the Great South Bay. Some are so fed up, they say they may even take legal action. "It's more than weekly at this point," Ms. Hojnacki said of the flooding, which at times prevents the school bus used by her daughter, who is on the autism spectrum, from coming down their block on South Ninth Street. "What if we had a medical emergency? How is an ambulance going to get through?" To address flooding, Lindenhurst, like most municipalities, has installed check valves -- backflow prevention devices designed to allow water to flow out but not back into streets. But officials are now realizing the limitations of check valves and looking to new options. "We're being told to hold back the bay," said Brian Zitani, Babylon Town's waterways management supervisor. "We can make little improvements, but quite frankly they are little improvements." Mr. Zitani said communities near the bay were developed on filled wetlands and with rising tides, more intense rainfall events and bay water that has climbed 8 inches since 1960, some neighborhoods are barely a foot above sea level. He said officials have "limited options" in trying to stem flooding. Check valves can become ineffective when debris gets into them and when hit with the double whammy of a high tide and large rainfall, they will not be able to keep water from pooling in the street, officials said. Residents complain that municipalities don't clean the street basins often enough, leading to a buildup of debris that makes the devices useless. Check valves are favored due to their relatively inexpensive pricetag compared to other options. Raising a roadway can cost millions of dollars for a small section, whereas check valves run as little as $1,500 each, said Rick Sorrentino, Lindenhurst's Superintendent of Public Works. "It's the cheapest and certainly the easiest fix for us and I don't really see another way out," he said. Manufacturers have been racing the last few years to try and improve on check valve technology, officials said. "Whoever invents the most successful one will be the next Bill Gates," Mr. Zitani said. "Nationwide, every highway department is waiting for a very dependable one." In 2018 Lindenhurst began installing check valves at locations prioritized in a 2017 drainage study that identified $60 million in potential flood fixes. The village has put in a dozen valves with about 30 more planned for a total cost of between $63,000 and $105,000 in village funding, officials said. Two more valve locations are being planned using federal superstorm Sandy money. But Mr. Sorrentino said that as they inspect the basins, they are finding metal pipes that have corroded and have to be replaced or pipes that are just gone, resulting in more work. "Street by street we're correcting all the mistakes that were made," he said. "It was poor planning and bad oversight." Eyeing a new solution Now Lindenhurst is trying a new approach: installing electric pumps in basins to pump out any pooling water. The village will divert some of the Sandy money for a pump on South Sixth Street in the spring. Pumps, including wiring and installation can cost as much as $100,000, Mr. Sorrentino said. He said the village will wait to see how the pump works before committing to more locations. "It's a bad situation and people are impatient and I don't blame them," he said. "But we're trying hard to correct things." The village decided to try a pump after talking with Freeport Village Mayor Robert Kennedy, who said he has installed pumps at eight locations so far, with plans for more in the coming weeks at a total cost of about $1 million. He said the pumps have been successful, taking over during conditions when check valves don't work by pumping out water when it reaches a certain level. Mr. Kennedy said municipalities looking to address street flooding also have to tackle the issue of deficient bulkheading on private property. He said Freeport has begun enforcing a law it has had on the books for several years that requires property owners to repair their bulkheading or else the village will fix it and place the cost on their tax bill. Residents look for relief Residents said they are tired of having to wait for a fix. They say flooding has gone from inches to feet in recent years. "It doesn't even have to be high tide . . . it goes from nothing to two feet of water in the middle of the street in under 20 minutes," Sean Esna, who lives on South Eighth Street, told the Lindenhurst board of trustees. Mr. Esna was one of about a dozen residents who showed up to a recent Lindenhurst board meeting to ask officials for help with flooding. Many raised their homes after Sandy, investing thousands of dollars into their properties, only to have corrosive salt water lapping at their vehicles and disrupting their daily lives. The havoc the chronic flooding has caused may even prompt residents to take legal action. Bob Anastasio, of Lindenhurst, said residents have consulted with an attorney who said the situation "is an excellent class action suit waiting to be filed." Mr. Anastasio isn't the first town resident to mention a lawsuit. Bill Walters, who lives in Babylon, told the town earlier in 2018 that a class-action lawsuit may be in the works because the situation has become a "huge safety issue" that the town "is refusing to fix." Ms. Hojnacki, who keeps a tide table app on her phone and a pair of rain boots with her at all times, said residents are tired of having to plead for help. "I don't think they understand what we deal with," she said. "We're all going to end up leaving, that's how bad it is." [GN] LOMA NEGRA: Bronstein Gewirtz Files Securities Class Action ----------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC notifies investors that a class action lawsuit has been filed against Loma Negra Compania Industrial Argentina Sociedad Anonima ("Loma" or the "Company") (NYSE: LOMA) pursuant and/or traceable to Loma Negra's Registration Statement filed in connection with its November 2017 Initial Public Offering ("IPO"). Such investors are encouraged to join this case by visiting the firm's site: bgandg.com/loma. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1933. The complaint alleges that Loma's Registration Statement contained materially false statements and omitted facts including: (1) downplaying and misrepresenting Loma Negra's exposure to a massive, ongoing corruption scandal engulfing its majority owner, InterCement ParticipaçoÞes S.A.; (2) misrepresenting a purported increased demand for Loma Negra's cement and other products as a result of economic growth and government funding for public works projects in Argentina, as well as the purported benefits to Loma Negra from that increased demand; (3) misrepresenting events and trends in the Argentinian economy, as well as Loma Negra's exposure thereto; and (4) including references to known risks that "if" occurring "might" or "could" affect Loma Negra, despite the fact that these "risks" had already materialized at the time of the IPO. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: bgandg.com/loma or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Loma you have until February 4, 2019 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Peretz Bronstein, Esq. Yael Hurwitz, Esq. Bronstein, Gewirtz & Grossman, LLC Telephone: 212-697-6484 Email: peretz@bgandg.com [GN] MARIEBELLE NEW YORK: Diaz Files Suit under ADA in New York ---------------------------------------------------------- Mariebelle New York LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Mariebelle New York LLC, Defendant, Case No. 1:18-cv-12395 (S.D. N.Y., December 31, 2018). MarieBelle New York creates luxury chocolates and hot chocolate.[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 MARKETSOURCE, INC: Court Denies Class Certification in "Delgado" ---------------------------------------------------------------- In the case, RAY DELGADO, the Plaintiff, vs. MARKETSOURCE, INC., the Defendant, Case No. 5:17-cv-07370-LHK (N.D. Cal.), the Hon. Lucy H. Koh entered an order denying Plaintiff's motion for class certification. According to the complaint, the Plaintiff seeks to certify a class on Plaintiff's cause of action for violation of California Labor Code. The Defendant raises several arguments for why class certification is unwarranted. Primarily, Defendant contends that Plaintiff has not satisfied the Rule 23(a)(2) commonality requirement or the Rule 23(b)(3) predominance requirement because Plaintiff has identified no question common to the class. The Defendant also contends that Plaintiff has not satisfied the Rule 23(a)(3) typicality requirement because "there is nothing typical about the unique circumstances" of Plaintiff's termination and final wage payment. Finally, Defendant contends that Plaintiff -- the only named plaintiff -- is an inadequate class representative under Rule 23(a)(3) because by his own admission, the Plaintiff personally fired multiple class members. The Court agrees with the Defendant on all points.[CC] MARRIOT INTERNATIONAL: Inamullah et al. Suit Goes to Federal Court ------------------------------------------------------------------ Kyo-ya Hotels & Resorts, LP removed the case captioned OVAIS INAMULLAH, M.D.; SANA KHALIQUE; CYRIL MARTIN; JENNIFER MARTIN; RUSSELL BAIRD; CYNDY BAIRD; MICHAEL ARCHIBALD; SHELLEY ARCHIBALD; STEVE OLSON; JULIE OLSON; ROBERT HAZELTON; and ALICIA HAZELTON, individually and on behalf of all others similarly situated, the Plaintiffs, vs. MARRIOT INTERNATIONAL, INC.; KYO-YA HOTELS & RESORTS, LP; and DOE DEFENDANTS 1-50, the Defendants, Case No. 18-1-1796-11-JHA filed in the Circuit Court of the First Circuit, Sate of Hawaii, to the U.S. District Court for the District of Hawaii on Dec. 20, 2018. The District of Hawaii Court Clerk assigned Case No. 1:18-cv-00494-JAO-KSC to the proceeding. On November 8, 2018, the Plaintiffs filed their complaint against Defendants. The Complaint was not served on Defendants. On November 20, the Plaintiffs filed their First Amended Complaint (FAC) against Defendants. The FAC alleges that "Marriot operates such a substantial number of hotels that its operation is in practice and effect a monopoly within the meaning of HRS Chapter 480 within the Waikiki and Hawaii markets."[BN] Attorneys for Defendant: Nathan H. Yomoshito, Esq. Wesley D. Shimazu, Esq. YOMOSHITO LAW GROUP 201 Merchant Street, Suite 2440 Honolulu, HI 96813 Telephone: (808) 695 4500 Facsimile: (808) 695 4599 E-mail: nyoshimoto@hi-lawyers.com - and - Leslie R. Kop, Esq. LAW OFFICES OF LESLIE R. KOP Honolulu, HI 96814 Telephone: (808) 527 7736 Facsimile: (808) 527 7102 E-mail: lkop@Staffcounsel1808.com 1100 Ward Avenue, Suite 500 MARRIOTT INT'L: Kessler Topaz Files Data Breach Class Action Suit ----------------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP disclosed that it has filed a national class action lawsuit against Marriott International, Inc. ("Marriott") and Starwood Hotels & Resorts Worldwide, LLC ("Starwood") on behalf of over 500 million consumers whose personal information was compromised as a result of the data breach announced by Marriott. This action, Weinstein v. Marriott International, Inc., Case No. 8:18-cv-03704-GJH, was filed in the U.S. District Court for the District of Maryland. Marriott or Starwood hotel guests who booked stays from 2014 through September 10, 2018, and who wish to discuss their legal rights or interests are encouraged to contact Kessler Topaz Meltzer & Check, LLP (James Maro, Esq. or Adrienne Bell, Esq.) at (888) 299-7706 or (610) 667-7706, or via e-mail at info@ktmc.com. For additional information please visit: www.ktmc.com/marriott-international-inc-data-breach. On November 30, 2018, Marriott announced that hackers gained access to personally identifying information, including, among other things, names, mailing addresses, passport numbers and credit card information with expiration dates, for guests who made reservations at Starwood properties from 2014 through September 10, 2018. Marriott also announced that it first learned of the data breach on September 8, 2018, however, it failed to notify its customers that their personally identifying information had been compromised for over two months. This data breach marks potentially one of the largest data breaches of a single company to ever occur. The class action lawsuit alleges that Defendants failed to implement proper cyber-security measures to safeguard its customers' personal and financial information, and to timely notify customers of the data breach. As a result, the hackers may have had access to guests' information for years, exposing them to identity theft and financial harm, including drained bank accounts and opening and re-opening of accounts in their names. Defendants' failure to take appropriate measures to protect their guests' information may have violated consumer protection statutes and breached implied contracts with its customers. James Maro, Jr., Esq. Adrienne Bell, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (888) 299-7706 (610) 667-7706 Email: abell@ktmc.com jmaro@ktmc.com [GN] MARRIOTT INTERNATIONAL: Abdulmalik et al. Sue over Data Breach -------------------------------------------------------------- A class action lawsuit against Marriott International seeks equitable relief and damages as a result of Marriott's failure to take adequate and reasonable measures to secure its customers' personally identifiable information (PII) collected in transactions and stored on its databases. The Plaintiffs further allege that Marriott failed to adequately notify Plaintiffs and Class Members in a timely manner. On November 30, 2018, Marriott announced that it had discovered a data breach of its reservation and database systems where unauthorized parties since 2014 accessed the guest reservation system and acquired the private information of up to 500 million guests (the "Breach"). For approximately 327 million of these guests, the personally identifiable information includes some combination of name, mailing address, phone number, email address, passport number, Starwood Preferred Guest account information, date of birth, gender, arrival and departure information, reservation date, communication preferences, payment card numbers, and payment card expiration dates (PII). The Breach was reasonably foreseeable given that numerous other hotel chains in the hospitality industry, including Starwood, maintained inadequate data security resulting in prior data breaches and other data security incidents, the lawsuit says. The case is captioned as Atiya Abdulmalik, Francine Adams, Annemarie Amarena, Melissa Ames, Jamie Bannon, Robert Barbour, Joanne Barrett, Ann Bascom, Dana Bass, Paulette Beale, Kimberly Bentley, Catherine Berrahou, Michael Betit, Juliet Black, Darrell Black, Winnie Blackwell, Steven Bloom, Heidi Bodian, Bridget Bodie-Papino, Michelle Bonifacio, Candace Boston, Cory Bovair, Celia Bowman, Katesha Box, Miriam Boyd, Julia Boykin, Anitra Braley, Brian Braid, Byron Brewer, Barbara Brooks, Dorothy Brooks, Adrianne Brown, David Bruemmer, Cheryl Butler-Adams, Kathrina Cajigal, Cole Callahan, Valerie Campanella, Alisha Campbell, Cayla Campbell, Claudia Canedo, Chastity Canfall, Elizabeth Capper, Arhonda Carlisle, Yvette Caruthers, Luke Castle, Chris Cervantes, Amy Chen, Kevin Cheng, Raphael Chieke, Cindy Chism, Nycole Chisum, Ryan Ciavarra, Rob Colletti, Brady Collins, Kevin Collins, Rita Connuck, Scott Coogan, Carol Cook, James Cook, Meghan Cook, Kristie Cooley, Laura Coombs, Cassandra Cooper, William Copeland, Jeri Covington, Kelly Cox, Ivette Crawford, Ebony Currie, Betty Dampier, Davidez Dampier, Barbara Dane, Julie Davis, Kimberly R Davis, Shanti Davis, Austin Delaney, Jenn Demarco, Sherry Denny, Benjamin Desantis, Mark Diefenbach, Tammy Doles, Nathlie Dowdell, Perkins Drake, Lula Draper, Eric Dubitsky, Tommy Dudley, Alexander Duff, India Dugat, Stephanie Dyer, Allison Eells, Romel Fajardo, Jeremaih Fanyui, Annette Fears, Arnold Fishon, Eric Fishon, Sara Flesch, Sharay Floyd, Donna Fontaine, Jeral Forger, Adam Fornal, Shaelyn Forrest, Arlona Fredrickson, Philip Friedman, Lisa Gadsby, Cindy Gaines, Christopher Galasso, Pablo Gallegos, Julie Ganuelas, Fae Garden, Mark Gardner, Mitchell Gerson, Kim Gibbs, John Gilmour, Robert Glass, Paula Glass, Maxine Glass, Kimberly Gomez, Billy Goodman, Lonja Green, Dale Grimes, Samir Gupta, Laurie Hansen, John Hariaczyi, Basimah Hasan, Philip Haskett, Andrew Hickner, Thomas Hickner, Robin Hollingsworth, Paul Holloway, Mary Hopson, Talitha Huddleston, Gennell Hunter, Dustin Iagulli, Chasity Jackson, Christina Jackson, Tameka Jackson, Michael Jennings, Lisa Johnson, Shana Jordan, Teisha Jordan, Robert Keil, Raymond Kerkvliet, Marybeth Kern, Pegi Klaess, Robert Korn, Stanley Kubinski, Julius Kuperberg, Tina Lapene, Robin Lawler, Krystal Lear, Donna Level, Deborah Lewandowski, Courtney Lewis, Jahmelia Lewis, Tishaunda Lewis, Valerie Lewis, Violet Limen, Agnieszka Lizewska, Jay Lockaby, Melanie Lopez, Shayla Lowry, Juan Lozano, Elizabeth Lyons, Tiffany Maberry, Rita Mair, Charity Maldonado, Suzanne Mallon, Deann Mankell, Bryan Mantei, Pauline Marco, Leslie Martin, Mark Mason, Maria Masucci, Eric Mcpherson, Deborah Meade, Chloe Merjil, Collin Messer, Laura Messier, Cariss Milano, Shane Miller, Vickie Mondane, Gabrielle Moore, Jason Moore, Tanika Moore, John Moy, Albert Muick, Jose Munoz, Gwendolyn Murai, Maggie Murphy, Ron Musto, Amelia Naccarto-Coleman, Maria Naclerio, Sarah Newcomb, Dianna Nolan, Gerard Ohara, Sherita Olive-Miller, Sandra Ortner, Anita Overton-Smith, Alicia Page, Nikki Page, Rebecca Pageau, Kevin Parker, Michael Anthony Partland, Douglas Patton, Shanisha Perkins, Patrice Perrier, Yaroslava Petraitis, Terri Pettiford, Michelle Pfannenstiel, Sean Phillips, Patrick Plank, Emily Poltrack, George Pouliot, Walter Powell, Andrea Preston, Tammie Pry, David Rado, Frank Ragan, Giorgio Ramirez, Lupe Ramos, Nicole Regne, Donna Riggins, Steve Risinger, Marvin Roberson, Dominique Robertson, Lamarkis Robinson, Nick Robinson, Lanny Rodgers, Robert Rodriguez, Kathleen Romeo, Elizabeth Rosch, Stacey Rowland, Paul Rozzo, Steven Ruga, Joshua Ruhlman, Niesha Rush, Brittany Rushing, Stacy Ryan, Adam Sanderson, Luis Santos, Stephen Sawyer, Holly Schmidt, Terry Senn, Hiren Shah, Svetlana Shtofmakher, Jose Siandre, Lenord Simmons, Janet Simonitsch, Illya Singh, Lori Smallwood, Julissa Solano, Steven Spagnolo, Michael Spain, Donald Springer, Shelli Stapp, Bahasha Stigall, Tammy Stiller, Daniel Stinson, Debra Stolte, Simon Sum, Jennifer Sykes, Yanina Szenkman, Gerald Taylor, Melissa Taylor, Nicole Theiss, Carla Theriot, Roy Thompson, Valerie Tolliver, Matthew Tragarz, Michael Traugott, Ryan Truskowski, Martin Turnauer, Stella Ureno, Audrey Varner, Leo Varshavsky, David Viggiano, Anne Vitasek, April Vrtis, Bryan Wallace, James Walton, Andrew Walts, Clara White, Matthew White, Randolph White, Octavia Wilkerson, Dolly Wright, Chris Wright, Fugong Wu, Debra Yokoyama, Glenn Young, Brittany Young, Jacqueline Zenon, Individually and on Behalf of All Others Similarly Situated, the Plaintiffs, vs. MARRIOTT INTERNATIONAL, INC. and STARWOOD HOTELS & RESORTS WORLDWIDE, LLC., the Defendants, Case No. 8:18-cv-03933-PWG (D. Md., Dec. 19, 2018).[BN] Attorneys for Plaintiff: Gary E. Mason, Esq. WHITFIELD BRYSON & MASON LLP 5101 Wisconsin Avenue NW | Ste 305 Washington, DC 20016 Telephone: 202-640-1168 Facsimile: 202-429-2294 E-mail: gmason@wbmllp.com - and - Daniel S. Robinson, Esq. Wesley K. Polischuk, Esq. Michael W. Olson, Esq. ROBINSON CALCAGNIE, INC. 19 Corporate Plaza Dr. Newport Beach, CA 92660 Telephone: 949-720-1288 Facsimile: 949-720-1292 E-mail: drobinson@robinsonfirm.com wpolischuk@robinsonfirm.com moloson@robinsonfirm.com - and - Steven M. Pavsner, Esq. Veronica Byam Nannis, Esq. Jay P. Holland, Esq. JOSEPH, GREENWALD & LAAKE, P.A. 6404 Ivy Lane, Suite 400 Greenbelt, MD 20770 Telephone: 301-220-2200 Facsimile (301) 220-1214 E-mail: spavsner@jgllaw.com vnannis@jgllaw.com jholland@jgllaw.com - and - Jeffrey S. Goldenberg, Esq. GOLDENBERG SCHNEIDER, LPA One West Fourth Street, 18th Floor Cincinnati, OH 45202 Telephone: 513-345-8297 Facsimile: 513-345-8294 E-mail: jgoldenberg@gs-legal.com - and - Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN, LLP 510 Walnut Street, Suite 500 Philadelphia, PA 19106 Telephone: 215-592-1500 Facsimile: 215-592-4663 E-mail: cschaffer@lfsblaw.com - and - Greg Coleman, Esq. GREG COLEMAN LAW PC First Tennessee Plaza Knoxville, TN 37929 Telephone: 865-247-0080 Facsimile: 865-522-0049 E-mail: greg@gregcolemanlaw.com - and - D. Greg Blankinship, Esq. Jeremiah Frei-Pearson, Esq. FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP 445 Hamilton Avenue, Suite 605 White Plains, NY 10601 Telephone: 914-298-3281 Facsimile: 914-824-1561 E-mail: gblankinship@fbfglaw.com jfrei-pearson@fbfglaw.com - and - Jay D. Miller, Esq. Craig M. Silverman, Esq. LAW OFFICES OF PETER G. ANGELOS, P.C. One Charles Center 100 N. Charles Street, 20th Floor Baltimore, MD 21201 Telephone: (410) 649-2000 Facsimile: (410) 649-2101 E-mail: jmiller@lawpga.com csilverman@lawpga.com MDL 2460: Direct Purchasers Move for Class Cert. in Niaspan MDL --------------------------------------------------------------- The Direct Purchaser Class Plaintiffs in the multidistrict litigation entitled IN RE: NIASPAN ANTITRUST LITIGATION, MDL No. 2:13-md-02460-JD (E.D. Pa.), move the Court for an order certifying this class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure: All persons or entities in the United States and its territories who purchased brand name Niaspan directly from any defendant, and generic Niaspan (extended-release niacin) at any time during the period April 5, 2009 through June 26, 2014; or who purchased generic Niaspan (extended-release niacin) directly from any defendant during that time period; or who purchased brand name Niaspan directly from any defendant at any time after April 5, 2009 but ceased operations before generic Niaspan entered in September 2013. Excluded from the class are the defendants, their officers, directors, management, employees, subsidiaries, and affiliates, and all federal governmental entities. The Direct Purchaser Class Plaintiffs are Rochester Drug Co-Operative, Inc., Value Drug Company, and Professional Drug Company, Inc. The Direct Purchaser Class Plaintiffs also move for the Court to appoint Plaintiffs Rochester Drug Co-Operative, Value Drug, and Professional Drug Company Inc. as representatives of the Class, and to confirm Berger Montague PC, Garwin Gerstein & Fisher LLP, and Hagens Berman Sobol Shapiro LLP as Lead Counsel for the Class.[CC] The Plaintiffs are represented by: David F. Sorensen, Esq. Nicholas Urban, Esq. BERGER MONTAGUE PC 1818 Market Street, Suite 3600 Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: dsorensen@bm.net nurban@bm.net - and - Thomas M. Sobol, Esq. Jessica MacAuley, Esq. Hannah Schwarzschild, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Telephone: (617) 482-3700 E-mail: tom@hbsslaw.com jessicam@hbsslaw.com hannahs@hbsslaw.com - and - Bruce E. Gerstein, Esq. Joseph Opper, Esq. Kimberly Hennings, Esq. GARWIN GERSTEIN & FISHER LLP 88 Pine Street, 10th Floor New York, NY 10005 Telephone: (212) 398-0055 E-mail: bgerstein@garwingerstein.com jopper@garwingerstein.com khennings@garwingerstein.com MDL 2591: Kellogg Suit Remains in Kansas Court ---------------------------------------------- The Hon. Circuit Judges Holmes, Kelly and Matheson denied Petitioners' writ of mandamus seeking to reverse an order of the Judicial Panel on Multidistrict Litigation that transferred their putative class action filed in the United States District Court for the District of Minnesota, Kellogg v. Watts Guerra, LLP, Case No. 18-cv-1082-DWF-BRT, to In re: Syngenta AG MIR162 Corn Litig., Case No. 18-cv-2408-JWL, MDL No. 2591, pending in the United States District Court for the District of Kansas. The Court said, "To be entitled to a writ of mandamus, three conditions must be met: First, because a writ is not a substitute for an appeal, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires. Second, the petitioner must demonstrate that his right to the writ is clear and indisputable. Finally, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. The Petitioners have failed to establish one or more of these conditions and we therefore deny the petition for App. a writ of mandamus. We grant petitioners' motion to file a reply brief."[BN] On April 24, 2018, Plaintiffs filed their initial complaint, alleging that Defendants deceptively solicited corn growers to sign Defendants' 40% contingent fee retainer contracts to file individual lawsuits in Minnesota state courts as a scheme to collect an unreasonable fee. On April 30, Defendants moved to transfer the matter to MDL 2591, In re: Syngenta AG MIR162 Corn Litig., pending in the United States District Court for the District of Kansas. On May 1, 2018, the Judicial Panel on Multidistrict Litigation issued a Conditional Transfer Order, which transferred this case to the MDL proceeding. On May 7, Plaintiffs filed their opposition to CTO-85. The JPML scheduled a hearing, without oral argument, for July 26 on Plaintiffs' motion to vacate CTO-85. As reported by the Class Action Reporter, the case was later transferred to the District of Kansas, which assigned Case No. 2:18-cv-02408-JWL-JPO to the proceeding, and consolidated the matter with MDL 2591 in re: Syngenta AG Mir162 Corn Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on December 11, 2014. These cases concern the Syngenta defendants' decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162" that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait.[BN] Attorneys for Plaintiffs: Douglas J Nill, Esq. DOUGLAS J. NILL, P.L.L.C. 120 South Sixth Street, Suite 2050 Minneapolis, MN 55402-1801 Telephone: (612) 573 3669 Attorneys for Watts Guerra, LLP; Mikal C. Watts; and Francisco Guerra: Christopher L. Goodman, Esq. THOMPSON, COE, COUSINS & IRONS, LLP 408 Saint Peter Street, Ste 510 Saint Paul, MN 55102 Telephone: (651) 389 5025 Facsimile: (651) 389 5099 E-mail: cgoodman@thompsoncoe.com Attorneys Daniel M. Homolka P.A.; and Yira Law Office LTD: Joao C.J.G. De Medeiros, Esq. Richard A Lind, Esq. LIND, JENSEN, SULLIVAN & PETERSON, P.A. 1300 AT&T Tower 901 Marquette Avenue South Minneapolis, MN 55402 Telephone: (612) 333 3637 Facsimile: (612) 333 1030 Attorneys for Hovland and Rasmus, PLLC; Dewald Deaver, P.C., LLO; Patton Hoversten & Berg, P.A.; and Wojtalewicz Law Firm, Ltd.: John M Degnan, Esq. Kathryn M Short, Esq. Briggs & Morgan, PA 80 S 8th St Ste 2200 Mpls, MN 55402 Telephone: (612) 977 8660 Facsimile: (612) 977 8650 Attorneys for Mauro, Archer & Associates, LLC; Wagner Reese, LLP; VanDerGinst Law, P.C.; and Law Office of Michael Miller: Arthur G Boylan, Esq. ANTHONY OSTLUND BAER & LOUWAGIE PA 90 S 7th St Ste 3600 Mpls, MN 55402 Telephone: (612) 349 6969 Facsimile: (612) 349 6996 Attorneys for Pagel Weikum, PLLP: Chad J Hintz, Esq. Richard J Thomas, Esq. BURKE & THOMAS, PLLP 3900 Northwoods Drive, Suite 200 Arden Hills, MN 55112 Telephone: (651) 490 1808 Facsimile: (651) 490 1872 MDL 2741: Capo Suit v Monsanto over Roundup Sales Consolidated -------------------------------------------------------------- The class action lawsuit titled ARTHUR CAPO, the Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01990, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07633-VC to the proceeding. This is an action for damages suffered by Plaintiff as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Capo case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. 156 N. Main St. Edwardsville, IL 62025 Telephone: (618) 659-9833 Facsimile: (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com MDL 2741: Coviello Suit v Monsanto over Roundup Sales Consolidated ------------------------------------------------------------------ The class action lawsuit titled JOHN COVIELLO, the Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01984, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07632-VC to the proceeding. This is an action for damages suffered by Plaintiff as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Coviello case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: D. Todd Mathews, Esq. Joseph B. Carnduff, Esq. 156 N. Main St. Edwardsville, IL 62025 Telephone: (618) 659-9833 Facsimile: (618) 659-9834 E-mail: todd@gorijulianlaw.com jcarnduff@gorijulianlaw.com MDL 2741: Dailey Suit v Monsanto over Roundup Sales Consolidated ---------------------------------------------------------------- The class action lawsuit titled JOHN J. DAILEY JR., the Plaintiff, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01994, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07635-VC to the proceeding. This is an action for damages suffered by Plaintiff as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Dailey case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Goodson Suit v Monsanto over Roundup Sales Consolidated ----------------------------------------------------------------- The class action lawsuit titled LESLIE A. GOODSON and WANDA M. GOODSON, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01991, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07634-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Goodson case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Griffith Suit v Monsanto over Roundup Sales Consolidated ------------------------------------------------------------------ The class action lawsuit titled JOHNNY W. GRIFFITH and SANDRA R. GRIFFITH, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01997, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07636-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Griffith case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2741: Hildebrand Suit v Monsanto over Roundup Consolidated -------------------------------------------------------------- The class action lawsuit titled LINDSAY R. HILDEBRAND and ZACHARY HILDEBRAND, the Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-02003, was transferred from the U.S. District Court for the Eastern District of Missouri to the U.S. District Court for the Northern District of California (San Francisco) on Dec. 20, 2018. The Northern District of California Court Clerk assigned Case No. 3:18-cv-07637-VC to the proceeding. This is an action for damages suffered by Plaintiffs as a direct and proximate result of Defendant negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Hildebrand case is being consolidated with MDL 2741 in re: Roundup Products Liability Litigation. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on October 3, 2016. These actions share common factual questions arising out of allegations that Monsanto's Roundup herbicide, particularly its active ingredient, glyphosate, causes non-Hodgkin's lymphoma. Plaintiffs each allege that they or their decedents developed non-Hodgkin's lymphoma after using Roundup over the course of several or more years. Plaintiffs also allege that the use of glyphosate in conjunction with other ingredients, in particular the surfactant polyethoxylated tallow amine (POEA), renders Roundup even more toxic than glyphosate on its own. Issues concerning general causation, the background science, and regulatory history will be common to all actions. In its October 3, 2016 Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge Vince Chhabria. The lead case is 3:16-md-02741-VC.[BN] Attorneys for Plaintiff: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 E-mail: sethw@getbc.com Telephone: (314) 222-2222 Facsimile: (314) 421-0359 MDL 2804: W.E. Suit v. Purdue over Opiates Sales Consolidated ------------------------------------------------------------- The case, W.E. on behalf of herself and all others similarly situated, by and through her guardian and next friend other Pamela Osborne, the Plaintiff, v. Purdue Pharma LP., Purdue Pharma Inc.; Cephalic Inc.; Neva Pharmaceutical Industries Ltd.; Neva Pharmaceuticals USA, Inc.; Jansen Pharmaceuticals Inc.; Johnson & Johnson; Aramco Inc.; Or tho-McNeil-Janssen Pharmaceuticals, Inc., now known as Jansen Pharmaceuticals Inc.; Jansen Pharmaceutical Inc., now known as Jansen Pharmaceuticals Inc.; Undo Health Solutions Inc.; Undo Pharmaceuticals Inc.; Allergen PL, formerly known as: Activist PL; Watson Pharmaceuticals, Inc., now known as Activist Inc.; Watson Laboratories Inc.; Activist Dharma, Inc., formerly known as: Watson Dharma, Inc.; Activist LLC; Maeterlinck PL; Maeterlinck LLC; McPherson Corporation; Cardinal Health Inc.; Counterinsurgency Drug Corporation; and Purdue Frederick Company, Inc., the Defendants, Case No. 5:18-cv-006292:18-cv-00719, was transferred from the U.S. District Court for the Eastern of District of Kentucky, to the U.S. District Court for the Northern District of Ohio (Cleveland) on Dec. 20, 2018. The Northern District of Ohio Court Clerk assigned Case No. 1:18-op-46347-DAP to the proceeding. The W.E. case is being consolidated with ML 2804 in re: NATIONAL PRESCRIPTION OPIATE LITIGATION. The ML was created by Order of the United States Judicial Panel on Multi district Litigation on December 5, 2017. These cases concern the alleged improper marketing of and inappropriate distribution of various prescription opiate medications into cities, states and towns across the country. Responding plaintiffs' positions on centralization vary considerably. Plaintiffs in over 40 actions or potential tag-along actions support centralization. Plaintiffs in 15 actions or potential tag-along actions oppose centralization altogether or oppose transfer of their action. In addition to opposing transfer, the State of West Virginia suggests that the ML Panel delay transferring its case until the Southern District of West Virginia court decides its motion to remand to state court. Third party payer plaintiffs in an Eastern District of Pennsylvania potential tag-along action (Philadelphia Teachers Health and Welfare Fund) oppose centralization of third participatory actions. Western District of Washington plaintiff City of Everett opposes centralization and, alternatively, requests exclusion of its case. Northern District of Illinois tag-along Plaintiff City of Chicago asks the Panel to defer transfer of its action until document discovery is completed. The Presiding Judge in the ML is Sarah S. Vance, United States District Judge. The lead case is 1:17-MD-02804-PAD.[BN] Attorneys for Plaintiff: Andrew Sacks, Esq. SACKS WESTON DIAMOND, LLC 1845 Walnut Street, Suite 1600 Philadelphia, PA 19103 Telephone: (215) 925-8200 - and - Ashley M. Liuzza, Esq. John Weston, Esq. Kelly Cox Bilek, Esq. Matthew Douglas Rogenes, Esq. Michael G. Stag, Esq. STAG LIUZZA 365 Canal Street,Ste. 2850 New Orleans, LA 70130 Telephone: (504) 593-9600 Facsimile: (504) 593-9601 E-mail: aliuzza@stagliuzza.com mrogenes@stagliuzza.com mstag@stagliuzza.com - and - Rodney Garrett Davis, Esq. DAVIS LAW, PSC 230 N. Second Street P.O. Box 1060 Richmond, KY 40476-1060 Telephone: (859) 624-3380 Facsimile: (859) 624-0912 E-mail: rgd@davislawky.com - and - Thomas E. Bilek, Esq. Houston, TX 77002 (713) 227-7720 Ste. 3950 700 Louisiana MDL 2873: Dutchess vs. 3M Company over AFFF Products Consolidated ----------------------------------------------------------------- A case, County of Dutchess, individually and on behalf of all others similarly situated, the Plaintiff, vs. The 3M Company formerly known as: Minnesota Mining and Manufacturing, Co., The Ansul Company; Buckeye Fire Protection Co.; Chemguard; National Foam; and Angus Fire, the Defendants, Case No. 2018-53225, was removed from the from Supreme Court, County of Dutchess, to the the U.S. District Court for the District of South Carolina (Charleston) on Dec. 17, 2018. The District of South Carolina Court Clerk assigned Case No. 2:18-cv-03525-RMG to the proceeding. The case is assigned to the Hon. Honorable Richard M Gergel. The lead case is Case No. 2:18-mn-02873-RMG. The Plaintiffs bring this cause of action for medical monitoring and property damage as a result of their exposure to water contaminated with toxic chemicals resulting from Defendants' harmful and defective products, aqueous firefighting foams ("AFFF") and other materials containing perfluorochemicals (PFCs) including perfluorooctanesulfonic acid ("PFOS") and related fluorochemicals that can degrade to perfluorooctanoic acid ("PFOA") or PFOS, which were released onto the ground, into the environment and infiltrated the groundwater and Plaintiffs' drinking/potable water. The County of Dutchess case is being cosolidated with MDL 2873 in RE: Aqueous Film-Forming Foams (AFFF) Products Liability Litigation. 3M Company, is an American multinational conglomerate corporation operating in the fields of industry, health care, and consumer goods.[BN] Attorneys for Plaintiff: Hunter Jay Shkolnik, Esq. Patrick James Lanciotti, Esq. Paul J. Napoli, Esq. Tate J Kunkle, Esq. NAPOLI SHKOLNIK PLLC 360 Lexington Avenue, 11th Floor New York, NY 10017 Telephone: (212) 397-1000 E-mail: hunter@napolilaw.com planciotti@napolilaw.com pnapoli@napolilaw.com tkunkle@napolilaw.com Attorneys for 3M Company: Andrew Jonathan Calica, Esq. MAYER BROWN 1675 Broadway New York, NY 10019 Telephone: (212) 506-2500 Facsimile: (212) 262-1910 E-mail: acalica@mayerbrown.com MEDMEN ENTERPRISES: Faces Class Suit From Former Employees ---------------------------------------------------------- John Schroyer, writing for Marijuana Business Daily, reports that one of the biggest names in cannabis retail, California-based MedMen, is facing a class action lawsuit from former employees that allege multiple labor law violations. Filed Nov. 16 in California Superior Court in Los Angeles County, the suit alleges -- among other things -- that two MedMen subsidiaries, Manlin I and DT Fund II Group, failed to: -- Pay employees minimum wages for off-the-clock work. -- Pay employees for the full amount of hours worked, including overtime. -- Provide all mandatory meal and rest breaks. -- Keep accurate records of employee hours worked. The lawsuit alleges MedMen "intentionally failed" to pay employees appropriately under California law. "It's wage theft," said Daniel Srourian, Esq. -- daniel@slfla.com -- attorney for the two plaintiffs in the case, Chelsea Medlock and Anthony Torres, who formerly worked at a MedMen West Hollywood shop. Srourian said the suit could eventually include hundreds, if not thousands, of plaintiffs because any current or former MedMen employees could join. Srourian declined to speculate when asked how much the suit could cost MedMen if it's successful, but he said the costs to the company could be "substantial." He also said it could take "months to years" for the case to be resolved, and the suit still must gain class action status from a judge. MedMen senior vice president of communications Daniel Yi wrote in an email to Marijuana Business Daily: "We do not comment on ongoing litigation or personnel matters. We value the contributions of every team member here at MedMen. "We offer competitive compensation and strive to cultivate a thriving work environment." San Francisco attorney Katy Young, Esq. who specializes in cannabis business disputes, said the suit is "a big deal, definitely." "Class actions are very serious to deal with, and if the class gets certified, it's a real problem for the employer," she noted. "Wage and hour issues are very serious as there are penalties. Not only are there liabilities for what you didn't pay, sometimes there are treble damages." Young called the suit "a potentially multimillion-dollar problem" for MedMen. MedMen is a publicly traded company on the Canadian Securities Exchange (MMEN).[GN] MIDLAND CREDIT: Fiorilli Sues over Debt Collection Practices ------------------------------------------------------------ ALISON FIORILLI formerly known as: ALISON KOWALESKI, individually and on behalf of all others similarly situated, Plaintiff v. MIDLAND CREDIT MANAGEMENT, INC.; and JOHN DOES 1-25, Defendants, Case No. 3:18-cv-17136-MAS-DEA (D.N.J., Dec. 12, 2018) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. The case is assigned to Judge Michael A. Shipp and referred to Magistrate Judge Douglas E. Arpert. 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 is represented by: Ben A. Kaplan, Esq. 280 Prospect Ave. 6G 6G Hackensack, NJ 07601 Telephone: (201) 803-6611 Facsimile: (866) 596-4973 E-mail: ben@chulskykaplanlaw.com MILLER BROS: Underpays Landscape Laborers, Carbajal Alleges ----------------------------------------------------------- JOSE C. CARBAJAL, individually and on behalf of all others similarly situated, Plaintiff v. MILLER BROS. LANDSCAPE MAINTENANCE, LLC; SCOTT W. MILLER; and EDWARD A. MILLER, Defendants, Case No. 2:18-cv-07070 (E.D.N.Y., Dec. 12, 2018) is an action against the Defendants to recover unpaid minimum wages and overtime compensation under the Fair Labor Standards Act. Mr. Carbajal was employed by the Defendants as landscape laborer. Miller Bros. Landscape Maintenance, LLC provides site and landscape services. [BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 825 Veterans Highway-Ste. B Hauppauge, NY 11788 Telephone: (631) 257-5588 E-mail: promero@romerolawny.com MODA OPERANDI: Diaz Files Suit under ADA in New York ---------------------------------------------------- Moda Operandi, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Moda Operandi, Inc., Defendant, Case No. 1:18-cv-12385 (S.D. N.Y., December 31, 2018). Moda Operandi, Inc. is an online fashion pretailer that allows customers to preorder ready-to-wear fashion, shoes, accessories, handbags, and jewelry. It runs online designer trunkshows for customers to preorder products. The company also offers gifts, including arts and objects for men, women, and children. It ships products for customers in the United States and internationally. The company was formerly known as Trunk Show Inc. and changed its name to Moda Operandi, Inc. in August 2010. Moda Operandi, Inc. was founded in 2010 and is based in New York, 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 MONSANTO COMPANY: Hatfields Sue over Sale of Herbicide Roundup -------------------------------------------------------------- ELIZABETH AND ROBERT L. HATFIELD, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:18-cv-02113 (E.D. Mo., Dec. 20, 2018), seeks to recover damages suffered by Plaintiffs, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs maintain that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiffs' injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiffs bring this action for personal injuries sustained by exposure to Roundup (TM), which contains the active ingredient glyphosate and the surfactant polyethoxylated tallow amine (POEA). As a direct and proximate result of being exposed to Roundup, the Plaintiff developed diffuse Non-Hodgkin's Lymphoma. Roundup refers to all formulations of Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiffs are represented by: Seth S. Webb, Esq. BROWN & CROUPPEN, P.C. 211 North Broadway, Suite 1600 St. Louis, MO 63102 Telephone: (314) 222-2222 Facsimile: (314) 421-0359 E-mail: sethw@getbc.com MORGAN PROPERTIES: Court Partly Allows Filing of Amended Zehm Suit ------------------------------------------------------------------ In the case, AVA ZEHM, individually and on behalf of others similarly situated, Plaintiff, v. MORGAN PROPERTIES and MOORESTOWNE WOODS APARTMENT ASSOCIATES, LLC d/b/a MOORESTOWNE WOODS APARTMENT ASSOCIATES, LP, Defendants, Civil No. 17-1758 (NLH/KMW) (D. N.J.), Judge Noel l. Hillman of the U.S. District Court for the District of New Jersey granted in part, and denied in part without prejudice the Plaintiff's Motion for Leave to File an Amended Complaint. The case is a putative class action concerning allegedly illegal provisions in a residential lease. The claims were originally brought under the New Jersey Consumer Fraud Act ("CFA"), the New Jersey Truth-in-Renting Act ("TRA"), and New Jersey common law. Presently before the Court is Plaintiff Zehm's Motion for Leave to File an Amended Complaint. Defendants Morgan Properties Management Co., LLC's and Moorestown Wood Apartment Associates, LLC ("MWAA")'s opposed. The Plaintiff lived in an apartment in Moorestown, New Jersey owned by MWAA. The apartment complex consisted of approximately 172 residential units and was managed by Morgan Properties. The Plaintiff executed her first lease with MWAA in 2014 for the rental of an apartment. She renewed her lease in 2015, signing a second lease. As part of her leases, the Plaintiff signed a utility addendum, which provided that charges for water would be based on the number of bedrooms in each resident's apartment unit. Her leases also contained a provision that stated, in pertinent part, that with regard to a breach of the lease, if an attorney is employed, including in-house counsel, the resident was required to pay $400 in attorneys' fees. That amount could be reduced to $200 "in the event an eviction action is filed for non-payment of rent, and the tenant pays all rent due. The Morgan Defendants filed a complaint in January 2016 against the Plaintiff for rent due. The complaint declared $873.85 due and owing: $331.65 for rent due, a $142.20 late charge, and $400 in attorneys' fees. Following that litigation, the Plaintiff filed a class action complaint against the Defendants which was removed to federal court on March 15, 2017. The complaint alleged: (i) Count One - violation of the TRA based on the attorneys' fees provision (against the Morgan Defendants); (ii) Count Two - violation of the TRA based on the utility addendum (against the Morgan Defendants); (iii) Count Three - violation of the CFA based on the attorneys' fees provision (against the Morgan Defendants); (iv) Count Four - civil conspiracy based on the attorneys' fees provision (against the Morgan Defendants); (v) Count Five - violation of the CFA based on the utility addendum (against all the Defendants); (vi) Count Six - civil conspiracy based on the utility addendum (against all the Defendants); (vii) Count Seven: - declaratory judgment (against all the Defendants); and (viii) Count Eight - violation of the CFA (against the Morgan Defendants). The Morgan Defendants filed an April 5, 2017 motion for partial abstention and partial dismissal of the complaint. NWP then filed an April 26, 2017 motion to dismiss. By Order and Opinion on Oct. 27, 2017, the Court denied the Morgan Defendants' request for partial abstention and granted the request for partial dismissal. The Court found that the Plaintiff failed to state a claim on the basis of the utility addendum. In the same Order and Opinion, the Court granted NWP's motion to dismiss, thus terminating it from the case. As a result, Counts 2, 5, 6, and 7 were dismissed, with Count 7 only being dismissed to the extent it sought declaratory judgment against the Morgan Defendants on the basis of the utility addendum. On May 11, 2018, the Plaintiff filed a Motion for Leave to Amend the Complaint. She presents three proposed amendments to her complaint. First, the Plaintiff requests the Court to allow her to correct the names of the Morgan Defendants throughout the complaint. Second, she requests the Court to allow her to eliminate the claims that it dismissed in its Oct. 27, 2017 Order. Third, she requests the Court to allow her to add additional violations to her TRA claims and include additional statutory, case law, and rule citations. The Morgan Defendants only resist Plaintiff's third request. Accordingly, Judge Hillman will grant the Plaintiff's request to perform the housekeeping matters described. Considering the Morgan Defendants' arguments concerning the third request, the Plaintiff requests, if the Court finds she does not have standing to assert the new TRA claims, the Court remand the entire case. The Judge holds that the Plaintiff has cited no authority, and the Court is unaware of any, that stands for the proposition that a federal Court should decline to exercise jurisdiction over claims it has jurisdiction over merely because the Plaintiff also has additional state law claims that do not meet Article III standards. The Plaintiff also argues if the Court lacks subject matter jurisdiction over the new TRA allegations, then it should sever the entire TRA claim and remand it to New Jersey state court. This also cannot be done, for the same reasons as expressed, the Judge opines. He says the Court has jurisdiction over the original TRA claim, but not over the new allegations. The Court therefore continues to have an obligation to exercise jurisdiction over the original TRA claim. Finally, if the standard for standing is broader in New Jersey state court, notwithstanding the entire controversy doctrine, nothing in this Opinion precludes the Plaintiff from filing the new TRA claims in New Jersey state court, the Judge holds. While this may create additional logistical issues because two courts, one federal and one state, will be deciding cases involving the same general subject matter, there are a number of ways in which the two courts and the litigants might coordinate, including staying the state court action until disposition of the first-filed federal court action. Regardless, the Court is unable to assert jurisdiction over the new TRA claims presented. Therefore, the Judge leaves it to the Plaintiff to determine whether it is appropriate and advisable for her to pursue the new TRA claims in state court. Based on the foregoing, Judge Hillman granted in part and denied in part the Plaintiff's Motion for Leave to File an Amended Complaint. An appropriate Order will be entered. A full-text copy of the Court's Dec. 21, 2018 Opinion is available at https://is.gd/jaUIJX from Leagle.com. AVA ZEHM, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, Plaintiff, represented by LEWIS G. ADLER, LAW OFFICE OF LEWIS ADLER. MORGAN PROPERTIES & MOORESTOWNE WOODS APARTMENT ASSOCIATES, LLC, doing business as MOORSETOWNE WOODS APARTMENT ASSOCIATES, LP, Defendants, represented by RACHEL C. HEINRICH -- rheinrich@wilentz.com -- WILENTZ GOLDMAN & SPITZER, P.A.. MORTGAGE LENDERS: Court Conditionally Certifies Charbonneau Class ----------------------------------------------------------------- The United States District Court for the District of Kansas issued a Memorandum and Order granting Plaintiffs' Motion for Conditional Certification in the case captioned BEAU CHARBONNEAU, on behalf of himself and all others similarly situated, Plaintiff, v. MORTGAGE LENDERS OF AMERICA L.L.C., Defendant. Case No. 18-2062-CM-KGS. (D. Kan.). The Plaintiff seeks conditional certification of two separate FLSA classes: team leads and loan officers. Plaintiff Beau Charbonneau brings this putative collective action under the Fair Labor Standards Act (FLSA), claiming that his former employer, defendant Mortgage Lenders of America L.L.C., misclassified a certain employment position (team lead) as an exempt position. Plaintiff also claims that defendant requires non-exempt employees to perform work off the clock, without pay. Misclassification of Team Leads as Exempt The Defendant classifies its team leads as exempt, thereby denying them overtime compensation. The Plaintiff claims that the primary duty of team leads is to sell mortgages. They regularly work over forty hours a week. The Defendant is aware of team leads' excess hours because defendant directs its customers to contact team leads on their personal cell phones and sees the team leads' loan production results. The Defendant does not pay team leads at least $455 per week on a salary basis. Instead, team leads receive a $1,000 recoverable monthly draw. Team leads receive a monthly amount equal to $175 times the number of members on each lead's team. Defendant then nets out the monthly amount from the $1,000 recoverable draw. Because of this pay structure, plaintiff argues, team leads do not qualify for a white collar FLSA exemption. Team leads also get commissions from their own sales and the sales of the loan officers assigned to their teams. But defendant withholds certain fees from the team leads' wages. Plaintiff claims that this compensation structure is uniformly applied. Team leads share common job duties and descriptions. The Defendant has presented evidence that the duties are different than what plaintiff represents, but defendant's evidence still suggests that team leads share common duties whatever those duties ultimately are shown to be. Team leads are classified as exempt employees and perform work without overtime compensation. And defendant does not maintain accurate records of team leads' hours or require them to report all overtime. Failure to Pay Loan Officers for All Hours Worked The primary duty of loan officers is to sell mortgage loans. Loan officers regularly work over forty hours a week, and defendant is aware of these excess hours because defendant directs its customers to contact loan officers on their personal cell phones and sees the loan production results. The Defendant classifies loan officers as hourly, non-exempt employees. Loan officers are paid under the same or similar compensation agreements. These agreements require a minimum wage and overtime payments and use a draw against commission. Defendant recaptures any minimum wage paid to loan officers from their paid commissions. The Defendant does not allow its loan officers to report all of their after-hours work, although loan officers typically check and respond to work emails and calls early in the morning, into the evening, and on weekends. Defendant knows about these practices because it allows loan officers to put their cell phone numbers on their business cards and requires them to include their number on email. Defendant instructs loan officers during training how to set their cell phones to receive work emails outside the office. The issue before the court is whether plaintiff has met his light burden of showing that members of each putative class are similarly situated. Plaintiff asks the court to conditionally certify two collective classes: (1) All persons who are, have been, or will be employed by Defendant as Team Leads, Team Leaders, and other individuals with similar job titles within the United States at any time during the last three years through the entry of judgment in this case (FLSA Team Lead Collective) and (2) All persons who are, have been, or will be employed by Defendant as Loan Officers, Mortgage Loan Officers, Entry Level Loan Officers, and other individuals who originated loan products with similar job titles within the United States at any time during the last three years through the entry of judgment in this case (FLSA Loan Officer Collective). For each of these groups, the court has allegations and evidence before it that the putative plaintiffs' job duties and descriptions are similar, as well as the policies impacting their pay. The putative plaintiffs work at the same location. Plaintiff has also presented allegations and evidence showing that members of the putative class regularly work early in the morning, in the evenings, and on weekends and that defendant is aware of these practices (and even expects them to do so), but does not pay them for all—and, in some cases, any of the extra hours. That is all that is required in the notice stage. Many of defendant's arguments focus on the potential variations in plaintiff's claims. But it is only during the second stage analysis that a court reviews the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendant which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made any required filings before instituting suit. The court is not persuaded by defendant's arguments. Plaintiff Charbonneau stated in a declaration that defendant was the cause of meal periods being deducted from loan officers' paychecks. In other words, if he made the changes, those changes were at the direction of defendant. The court also does not find the other potential conflicts relevant at least at this stage of conditional certification. The court concludes that the above-cited evidence is sufficient to conditionally certify a class. Accordingly, the Plaintiff's Motion for Conditional Class Certification Under Section 216(b) of the FLSA is granted. A full-text copy of the District Court's December 6, 2018 Memorandum and Order is available at https://tinyurl.com/yb8zsbpm from Leagle.com. Beau Charbonneau, Brian Leonard, Chris Mikel, Dana Self, Kevin Heindel, Laura Whisner, Scott Ponick, Peter Legaspi, Jeff Hiller, Robert White & Jake Bernard, Plaintiffs, represented by Brett A. Davis -- brett@dgmlawyers.com -- Davis George Mook, LLC & Tracey Flexter George -- tracey@dgmlawyers.com -- Davis George Mook, LLC. Mortgage Lenders of America, LLC, also known as MLOA, Defendant, represented by Christopher L. Kurtz -- ckurtz@rousepc.com -- Rouse Frets White Goss Gentile Rhodes, P.C., Joel Henry Driskell -- hdriskell@rousepc.com -- Rouse Frets White Goss Gentile Rhodes, P.C. & Mary C. O'Connell -- moconnell@rousepc.com -- Rouse Frets White Goss Gentile Rhodes, PC. MXD GROUP INC: Faces Kimbo Labor Suit in Sacramento Court --------------------------------------------------------- An employment-related class action lawsuit has been filed against MXD Group Inc. The case is captioned as JOSEPH KIMBO, individually and on behalf of all others similarly situated, Plaintiff v. MXD GROUP INC.; RYDER SYSTEM INC.; and DOES 1-10, Defendants, Case No. 34-2018-00246338-CU-OE-GDS (Cal. Super., Sacramento Cty., Dec. 12, 2018). MXD Group, Inc. provides logistics services for home delivery and retail replenishment in the United States and Canada. The company was formerly known as Exel Direct, Inc. and changed its name to MXD Group, Inc. on August 29, 2013. MXD Group, Inc. was founded in 1970 and is headquartered in New Albany, Ohio. As of April 2, 2018, MXD Group, Inc. operates as a subsidiary of Ryder System, Inc. [BN] The Plaintiff is represented by: Leslie Joyner, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: ljoyner@schneiderwallace.com NATIONAL CREDIT: Faces Narcisse FDCPA Suit in W.D. Louisiana ------------------------------------------------------------ A class action lawsuit has been filed against National Credit Audit Corp. The case is styled as Darius Narcisse, individually & on behalf of all others similarly situated, the Plaintiff, vs. National Credit Audit Corp. and John Does 1-25, the Defendants, Case No.: 6:18-cv-01638-RRS-PJH (W.D. La. Dec 20, 2018). The case is assigned to the Hon. Judge Robert R Summerhays. The suit alleges Fair Debt Collection Act violation.[BN] Attorneys for Plaintiff: Samuel John Ford, Esq. VARADI HAIR & CHECKI 909 Poydras St Ste 1100 New Orleans, LA 70112 Telephone: (504) 684-5200 Facsimile: (504) 613-6351 E-mail: ford@svhclaw.com NATIONWIDE CREDIT: Barrios' FDCPA Suit Moved to E.D. New York ------------------------------------------------------------- The case, Cindy Barrios, on behalf of herself and all others similarly situated, the Plaintiff, vs. Nationwide Credit, Inc., the Defendant, Case No. 609821/2018, was removed from the New York Supreme Court, County of Suffolk, to the U.S. District Court for the Eastern District of New York (Central Islip) on Dec. 19, 2018. The Eastern District of New York Court Clerk assigned Case No. 2:18-cv-07248-JS-AYS to the proceeding. The case is assigned to the Hon. Judge Joanna Seybert. The suit alleges Fair Debt Collection Act violation. Nationwide Credit is a collection agency and provides customer relationship and accounts receivable management services.[BN] Attorneys for Plaintiff: Mitchell L. Pashkin, Esq. 775 Park Avenue, Ste. 255 Huntington, NY 11743 Telephone: (631) 335-1107 E-mail: mpash@verizon.net Attorneys for Nationwide Credit, Inc.: Benjamin Samuel Noren, Esq. Ellen Beth Silverman, Esq. HINSHAW & CULBERTSON 800 3rd Avenue, 13th Floor New York, NY 10022 Telephone: (212) 471-6200 Facsimile: (212) 935-1166 E-mail: bnoren@hinshawlaw.com esilverman@hinshawlaw.com NESTE USA: Bids to Strike/ Dismiss Beasley Suit Denied as Moot -------------------------------------------------------------- In the case, MARK BEASLEY, Plaintiff, v. LUCKY STORES, INC., et al., Defendant, Case No. 18-cv-07144-MMC (N.D. Cal.), Judge Maxine M. Chesney of the U.S. District Court for the Northern District of California denied as moot (i) the Defendants' Motion to Dismiss Plaintiff's Complaint., and (ii) Nestle's Motion to Strike Portions of the Complaint. Before the Court are the two motions, both filed Nov. 30, 2018: the Defendants' Motion to Dismiss which seeks dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and Nestle's Motion to Strike which seeks to strike several allegations from the Plaintiff's initial complaint pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. On Dec. 19, 2018, the Plaintiff filed a First Amended Class Action Complaint ("FAC"). The Plaintiff filed his FAC within 21 days after service of both motions, and, consequently, was entitled to amend as of right. Accordingly, the motion to dismiss, and the motion to strike are denied as moot. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/BEG5ev from Leagle.com. Mark Beasley, on behalf of himself and all others similarly situated, Plaintiff, represented by Gregory Weston -- greg@weston.firm.com -- & Andrew Christopher Hamilton -- andrew@weston.firm.com -- The Weston Firm. Lucky Stores, Inc. & The Save Mart Companies, Inc., Defendants, represented by Dale Joseph Giali -- dgiali@mayerbrown.com -- Mayer Brown LLP. Nestle USA, Inc., Save Mart Super Markets & The Kroger Company, Defendants, represented by Keri Elizabeth Borders -- kborders@mayerbrown.com -- Mayer Brown LLP & Dale Joseph Giali, Mayer Brown LLP. NETBRANDS MEDIA: Made Unsolicited Calls, Krick Suit Alleges ----------------------------------------------------------- BRANDON KRICK, individually and on behalf of all others similarly situated, Plaintiff v. NETBRANDS MEDIA CORPORATION, dba Imprint.com; and DOES 1 through 10, Defendants, Case No. 1:18-cv-01696-LJO-SKO (E.D. Cal., Dec. 12, 2018) seeks to stop the Defendants' practice of making unsolicited calls. Netbrands Media Corporation, dba Imprint.com is a product development and marketing agency. [BN] The Plaintiff is represented by: Joshua Swigart, Esq. Yana A. Hart, Esq. HYDE AND SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com yana@westcoastlitigation.com NEW YORK: Court Partly Quashes Johnson Counsel's Subpoena --------------------------------------------------------- In the case, MICHAEL JOHNSON, Plaintiff, v. THE CITY OF NEW YORK, MICHAEL GALA, individually and in his official capacity as Deputy Chief in the New York City Fire Department; MICHAEL CURNEEN, individually and in his official capacity as Captain in the New York City Fire Department, JAKE LAMONDA, individually: and in his official capacity as an employee of the New York City Fire Department, PAUL D. MANNIX, individually and in his official capacity as Deputy Battalion Chief of the New York City Fire Department, JOSEPH KEARNEY, individually and in his official capacity as Firefighter of the New York City Fire Department, JAMES McCARTHY, individually and in his official capacity as a Lieutenant of the New York City Fire Department and JOHN DOES or JANE DOES, individually and in his or her or their official capacity as an employee of the New York City Fire Department, Defendants, Case No. 16 Civ. 6426 (KAM) (VMS) (E.D. N.Y.), Magistrate Judge Vera M. Scanlon of the U.S. District Court for the Eastern District of New York (i) granted in part and denied in part the Plaintiff's motion to quash the subpoena of his counsel, Peter Gleason, and (ii) denied Mr. Gleason's motion for leave to file his unredacted declaration under seal. The Plaintiff brought the action against the Defendants, alleging employment discrimination and retaliation. He was a priority hire firefighter as a result of a class action lawsuit brought against the New York City Fire Department ("FDNY") alleging racially discriminatory hiring practices. The Plaintiff alleges that he was retaliated against under Title VII, and New York City Human Rights Law, and that he suffered First Amendment retaliation under 42 U.S.C Section 1983 for his membership in, and hiring as part of, the class. The Plaintiff claims he was subjected to humiliating tasks, psychiatric examinations and given failing performance evaluations without cause. Most of his claims and the present motion derive primarily from an article published in the New York Post on May 17, 2015 about the Plaintiff's alleged inclination to avoid fighting fires, including an April 2, 2015 three-alarm fire. In the Article, the Plaintiff is described as lazy, slow and a danger. The Article revealed the Plaintiff's medical leave record and claimed that he was scared of fires and that he flees from them. The Article quoted several FDNY "sources." As to Mr. Gleason's testimony, Magistrate Judge Scanlon finds that (i) the Defendants have demonstrated a specific need to depose Mr. Gleason as he has specific personal knowledge as to the identity of one of the reporter's FDNY sources; (ii) that it is unlikely that Mr. Gleason's knowledge would be offered directly at trial; rather, the hope is that it will lead to admissible evidence that itself may be offered; (iii) that it is reasonable to permit some limited discovery of Mr. Gleason; (iv) the the information being sought by the subpoena is not covered by either the attorney-client or the work-product privileges; and (v) a narrowly circumscribed written deposition of Mr. Gleason should be permitted. Accordingly, the Plaintiff's motion to quash the subpoena with respect to Mr. Gleason's deposition is denied in part and granted in part. With respect to Mr. Gleason's request for leave to file in his unredacted declaration in support of the motion to quash under seal, the Magistrate finds that the Plaintiff did not offer a legal basis for overcoming the presumption of public access to the redacted portion of his declaration in support of the motion to quash. She has reviewed the unredacted version of his declaration and finds that the information contained therein is neither privileged nor confidential. Thus, Mr. Gleason's motion for leave to file the unredacted declaration in support of his motion to quash under seal is denied. Mr. Gleason may either publicly file the unredacted version of his declaration or not file it at all. The Plaintiff is ordered to produce Mr. Gleason for a deposition on written questions as permitted within 60 days of the date of the Order. Mr. Gleason does not need to produce his telephone records for the period of March 1, 2015 through May 31, 2015. A full-text copy of the Court's Dec. 21, 2018 Memorandum and Order is available at https://is.gd/BPutpv from Leagle.com. Michael Johnson, Plaintiff, represented by John David Lenoir, Peter Joseph Gleason, Peter J. Gleason, PC & Nathaniel B. Smith, Law Office of Nathaniel B. Smith. City of New York, Daniel A. Nigro, in his official capacity as Commissioner of the New York City Fire Department, Michael Gala, individually and in his official capacity as Deputy Chief in the New York City Fire Department & Michael Curneen, individually and in his official capacity as Captain in the New York City Fire Department, Defendants, represented by Kimberly Kirsten Brown, NYC Law Department & Monica M. Pogula, New York City Law Department. Jake Lamonda, individually and in his official capacity as employee of the New York City Fire Department, Defendant, represented by Seth H. Greenberg -- sgreenberg@gbglawoffice.com -- Greenberg Burzichelli Greenberg P.C. Paul Mannix, new defendant & Joseph Kearney, new defendnat, Defendants, represented by Keith M. Sullivan -- keith@sullivangalleshaw.com -- Sullivan & Galleshaw LLP. James McCarthy, new party, Defendant, represented by Steven Charles Berlowitz -- sberlowitz@pryorcashman.com -- Pryor Cashman & Steven Michael Rabinowitz -- srabinowitz@pryorcashman.com -- Pryor Cashman LLP. ORIGINS NATURAL: Faces Diaz Class Suit under ADA ------------------------------------------------ Origins Natural Resources Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Origins Natural Resources Inc., Defendant, Case No. 1:18-cv-12394 (S.D. N.Y., December 31, 2018). Origins Natural Resources Inc. engages in the manufacture and retail of skin care, bath and body, and makeup products for men and women. It offers cleansers, exfoliators, eye care products, lip care products, face masks, moisturizers, serums, toners and treatment lotions, face oil products, blemish remover, sun protection, tinted skincare, concealers, foundations and primers, blush, eye makeup, lip products, accessories, body creams, body scrubs, body washes, body oils, sensory therapy, haircare products, hand and foot care products, lotions, and soaps.[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 PADRE HOTEL: Faces Aguirre Suit in Kern County Court ---------------------------------------------------- A class action lawsuit has been filed against Padre Hotel, L.P. The case is captioned as SHLEY AGUIRRE, individually and on behalf of all others similarly situated, Plaintiff v. PADRE HOTEL, L.P., Defendant, Case No. BCV-18-103081 (Cal. Super., Kern Cty., Dec. 12, 2018). The case is assigned to David R. Lampe. Padre Hotel is a historical landmark hotel located on the corner of 18th and "H" streets in Bakersfield, California. Originally constructed in 1928 as a luxury hotel and restaurant, the eight-story building recently went through an extensive renovation and reopened in 2010. [BN] The Plaintiff is represented by: Nicholas Barthel, Esq. KAZEROUNI LAW GROUP, APC Costa Mesa, CA Telephone: (866) 299-6190 Facsimile: (800) 520-5523 PERFECT BAR: Court Dismisses Class Suit Over False Ads ------------------------------------------------------ Judge William Alsup of the U.S. District Court for the Northern District of California granted Perfect Bar's motion to dismiss the case, HOWARD CLARK and MICHAEL SIMS on behalf of themselves, those similarly situated and the general public, Plaintiffs, v. PERFECT BAR, LLC, Defendant, Case No. C 18-06006 WHA (N.D. Cal.). Clark and Michael Sims brought the putative class action involving product-labeling claims against Perfect Bar. The Plaintiffs' grievance is that the packaging led them to believe that the bars would be "healthy" when, in supposed point of fact, the added sugar rendered them unhealthy or, in the alternative, less healthy from what they otherwise had believed. The Defendant moves to dismiss pursuant to FRCP 12(b)(6). Judge Alsup finds that the Defendant, at all material times in question, remained in compliance with all sugar-disclosure regulations. It is true that the bars contained honey and thus sugar, but that was disclosed on the packaging as well as the amount of sugar. The Plaintiffs' grievance is untenable. The actual ingredients were fully disclosed. He says reasonable purchasers could decide for themselves how healthy or not the sugar content would be. No consumer, on notice of the actual ingredients described on the packing including honey and sugar, could reasonably overestimate the health benefits of the bar merely because the packaging elsewhere refers to it as a health bar and describes its recipe as having been handed down from a health-nut parent. The honey/sugar content was properly disclosed -- that is the end of it -- period. The Judge finds that the argument in the alternative that the Plaintiffs would have paid less had they known that the health benefits had been overstated is like saying a sports car wasn't sporty enough so please give a partial refund. As to the misrepresentation-based consumer protection claims predicated on alleged failure to disclose fat content and misleading protein content claim violations, the Judge finds that the Plaintiffs lack standing. The whole theory of their case rests on the accusation that the health and wellness statements on the packaging ware deceptive because high sugar content -- not fat or protein -- made the products inherently unhealthy. The Order adopts the arguments made by the Defendant. Accordingly, Judge Alsup granted Perfect Bar's motion to dismiss. Leave to amend will not be allowed. Judgment will follow. The case may now proceed to the court of appeals. A full-text copy of the Court's Dec. 21, 2018 Order is available at jhttps://is.gd/hXhhUC from Leagle.com. Howard Clark & Michael Sims, Plaintiffs, represented by Jack Fitzgerald -- jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald, PC, Melanie Rae Persinger -- melanie@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald, PC, Trevor Matthew Flynn -- trevor@jackfitzgeraldlaw.com -- Law Office of Jack Fitzgerald, PC & Paul Kenneth Joseph -- paul@pauljosephlaw.com -- The Law Office of Paul K. Joseph, PC. Perfect Bar, LLC, Defendant, represented by Amit Rana -- rana@braunhagey.com -- BRAUNHAGEY & BORDEN LLP, Jonas Noah Hagey -- hagey@braunhagey.com -- BraunHagey & Borden LLP & Matthew Brooks Borden -- borden@braunhagey.com -- BraunHagey & Borden LLP. PG&E CORP: Court Vacates CMC & Related Deadlines in Securities Suit ------------------------------------------------------------------- In the case, IN RE PG&E CORPORATION SECURITIES LITIGATION, Case No. 3:18-cv-03509-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California, San Francisco Division, has issued a stipulated order vacating Case Management Conference ("CMC") and related deadlines. On June 15, 2018, the Court set a CMC for Sept.r 20, 2018. On Aug. 28, 2018, the CMC was continued to Sept. 27, 2018. On Sept. 10, 2018, the Court appointed Public Employees Retirement Association of New Mexico ("PERA") as the Lead Plaintiff, and vacated the hearing set for Sept. 27, 2018. On Sept. 14, 2018, the CMC was continued to Jan. 10, 2019. On Dec. 14, 2018, PERA filed a Second Amended Consolidated Class Action Complaint ("SAC"). The SAC asserts claims under the federal securities laws that are subject to the procedural requirements of the Private Securities Litigation Reform Act of 1995 ("PSLRA"), including those set forth in 15 U.S.C. Section 78u-4. The Defendants intend to file a motion to dismiss, which triggers a stay of discovery under the PSLRA. Their deadline to respond to the SAC is Feb. 15, 2019. The parties have conferred and agreed that it is in the interests of the parties and judicial efficiency to continue the CMC and vacate all related deadlines. The Stipulation and Order is without prejudice to, or waiver of, any rights, arguments, or defenses otherwise available to the parties to the action. The parties stipulated and agreed, and Judge Seeborg granted, that the Jan. 10, 2019 CMC and related deadlines will be vacated. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/ymZFc9 from Leagle.com. David C. Weston, on behalf of himself and all others similarly situated, Plaintiff, represented by Rosemary M. Rivas -- rrivas@zlk.com -- Levi & Korsinsky LLP. Jon Paul Moretti, individually and on behalf of all others similarly situated (CV18-3545), Plaintiff, represented by J. Alexander Hood -- ahood@pomlaw.com -- II , Pomerantz, LLP, Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP, Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice & Patrick Vincent Dahlstrom -- pdahlstrom@pomlaw.com -- Pomerantz LLP. Public Employees Retirement Association of New Mexico, Plaintiff, represented by Carol C. Villegas -- cvillegas@labaton.com -- Labaton Sucharow LLP, Thomas A. Dubbs -- tdubbs@labaton.com -- Labaton Sucharow LLP, Frank H. Busch, Wagstaffe, von Loewenfeldt, Busch & Radwick LLP, James Leon Ostaszewski, Labaton Sucharow LLP, Jeffrey Dubbin, Labaton Sucharow LLP, Louis J. Gottlieb -- lgottlieb@labaton.com -- Labaton Sucharow LLP & Wendy Tsang -- wtsang@labaton.com -- Labaton Sucharow LLP. PG&E Corporation, Defendant, represented by James E. Brandt -- james.brandt@lw.com -- Latham and Watkins, pro hac vice, Robert Ward Perrin -- robert.perrin@lw.com -- Latham & Watkins LLP & Michael J. Reiss -- michael.reiss@lw.com -- Latham and Watkins LLP. Anthony F. Earley, Jr., Jason P. Wells, Geisha J. Williams, Christopher P. Johns, Dinyar B. Mistry & David S. Thomason, Defendants, represented by Charles Edward Weir -- cweir@mwe.com -- McDermott Will & Emery LLP, Steven Samuel Scholes -- sscholes@mwe.com -- McDermott Will Emery LLP, pro hac vice & Gregory Raymond Jones -- gjones@mwe.com -- McDermott Will & Emery. Pacific Gas and Electric Company, Defendant, represented by Robert Ward Perrin, Latham & Watkins LLP. Oklahoma Firefighters Pension and Retirement System, Movant, represented by Daniel E. Barenbaum -- dbarenbaum@bermantabacco.com -- Berman Tabacco. Ron Williams, Miscellaneous, represented by Robert Charles Moest, Law Offices of Robert C. Moest. PINNACLE PLASTERING: Cal. App. Affirms Arbitration Denial in Castro ------------------------------------------------------------------- The Court of Appeals of California, Fourth District, Division Two, issued an Opinion affirming the Order of the District Court denying Pinnacle Plastering, Inc.'s petition to compel arbitration in the case captioned ASDEL CASTRO, Plaintiff and Respondent, v. PINNACLE PLASTERING, INC., Defendant and Appellant. No. E067822. (Cal. App.). Defendant Pinnacle Plastering, Inc. (Pinnacle) appeals a trial court order denying its petition to compel arbitration of a dispute with a former employee. Defendant Pinnacle Plastering, Inc. (Pinnacle) appeals a trial court order denying its petition to compel arbitration of a dispute with a former employee. The employee, Asdel Castro, sought to enforce the Labor Code on behalf of the State of California under the Private Attorneys General Act of 2004 (PAGA), Labor Code section 2698 et seq. The trial court held the Supreme Court's decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) required it to refuse to enforce arbitration. Pinnacle argues the trial court erred because (i) Castro's complaint includes individual claims that are subject to arbitration under Iskanian and (ii) Iskanian bars waiver of representative PAGA claims, but not their arbitration. A PAGA plaintiff sues on behalf of other employees to recover penalties due for violations of their statutory rights, and sues as the proxy or agent of the state, to vindicate its interest in enforcing compliance with the labor laws. Before bringing a PAGA action, the aggrieved employee must give written notice of the alleged violation to the employer and the California Labor and Workforce Development Agency (LWDA), and the agency has a period in which to investigate and/or issue a citation before the employee may proceed to litigation. Pinnacle first argues the trial court erred in construing Castro's complaint. As the Court has noted, the trial court read the complaint as stating a single representative PAGA claim, not individual claims for violations of the Labor Code. Castro, for his part, disclaimed any individual claims and amended his pleading to omit requests for damages not available under PAGA. Pinnacle argues the trial court misconstrued the complaint and the Court should construe it as stating only individual claims or individual claims in addition to a representative claim. It is true, as Pinnacle notes, the body of the complaint alleges Pinnacle violated Castro's and other employees' rights under several other provisions of the Labor Code. However, it does not follow that the complaint articulates individual or class action claims based on those provisions. Such allegations are required as predicate violations to state a PAGA representative claim. Labor Code section 2699, subdivision (a) provides any provision of this code that provides for a civil penalty to be assessed and collected for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees. Section 2699.3 sets out the procedure for making such a claim, and section 2699.5 enumerates the provisions of the Labor Code that may serve as predicate violations. Those PAGA predicates are the violations on which Castro has built his PAGA claim. Thus, the fact that Castro alleged Pinnacle violated other Labor Code provisions supports rather than undermines his position that he brought a single representative PAGA claim. The Court concludes the trial court's interpretation of the pleadings was correct. Castro stated a single representative PAGA claim. It follows that we need not address Pinnacle's numerous arguments that Castro's individual claims are arbitrable and must be arbitrated under the agreement. All that remains is the question whether Pinnacle is entitled to compel arbitration of the representative PAGA claim. Pinnacle argues these cases affirmatively decide representative PAGA claims can be arbitrated under predispute agreements. That's a misconstrual. In the first place, though the courts recognized the issue of arbitration may arise after they invalidated a waiver provision, neither case raised the issue. It is axiomatic that cases are not authority for propositions not considered. The holding of a decision is limited by the facts of the case being decided, notwithstanding the use of overly broad language by the court in stating the issue before it or its holding or in its reasoning. Second, and more fundamental, any suggestion in Iskanian and Sakkab that the parties may agree to arbitrate representative PAGA claims concerns post dispute agreements to arbitrate. The Iskanian decision makes that clear. The Court raised the possibility of arbitration in discussing what issues may arise on remand. It held the predispute arbitration agreement did not resolve whether the parties would agree to arbitrate representative PAGA claims, but noted the parties may subsequently agree to resolve the individual claims and the PAGA claim in a single forum. To the extent that dicta approves agreements to arbitrate PAGA representative claims at all, it approves only post dispute agreements to arbitrate, which do not raise the same problems as predispute agreements to arbitrate. Our holding is limited to the enforceability of predispute agreements to arbitrate. The Court take no position on whether parties may agree to arbitrate after a dispute has fully ripened. It is conceivable such later agreements to arbitrate may be enforceable. For example, a PAGA plaintiff who provides notice to her employer and the LDWA and ultimately receives clearance from the state to pursue a representative PAGA claim may acquire the authority to agree to resolve the dispute in arbitration. At that point, the plaintiff would understand the claims she is permitted to pursue, and the state would have ceded to the employee the authority to prosecute. Thus, the plaintiff would have both the knowledge and the authority necessary to choose the forum. The plaintiff in Iskanian found himself in exactly those circumstances after the Supreme Court decided his case. The violations had occurred, he had given notice of his claims to the state and his employer, and the state had ceded authority to pursue the claim. It's possible, though unlikely, the parties to this case may decide after remand to arbitrate the case, but the Court have no call to decide that question today. The Court affirms the order denying Pinnacle's petition to compel arbitration. A full-text copy of the Cal. App.'s December 6, 2018 Opinion is available at https://tinyurl.com/ybglxtlp from Leagle.com. Hill, Farrer & Burrill, James A. Bowles -- jbowles@hillfarrer.com -- Richard A. Zuniga -- rzuniga@hfbllp.com -- and Elissa L. Gysi -- egysi@hillfarrer.com -- for Defendant and Appellant. James Hawkins, James R. Hawkins, and Gregory E. Mauro for Plaintiff and Respondent. PLANET FITNESS: Court Grants Bid to Dismiss Amended Truglio Suit ---------------------------------------------------------------- In the case, MARNI TRUGLIO, individually and as a class representative on behalf of others similarly situated, Plaintiff, v. PLANET FITNESS, INC.; FIT TO BE TIED II, LLC d/b/a PLANET FITNESS; JOHN DOES 1-75; PLANET FITNESS FRANCHISES 1-75; AND XYZ CORPORATIONS 1-10, Defendants, Civil Action No. 15-7959 (FLW) (D. N.J.), Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey granted the Defendants' motion to dismiss the sole surviving claim in the Plaintiff's Amended Complaint. The Plaintiff commenced the action in 2015, bringing various claims centered on allegedly unlawful provisions in the Defendants' health club membership contract. The Plaintiff sought to enroll in a health club membership in the Defendants' organization, and the Defendants provided her with a membership agreement. The Plaintiff executed the membership agreement, but contends that the agreement's terms violated New Jersey law by, as relevant to her remaining Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA") claim, imposing misleading requirements to cancel her health club membership. Specifically, she alleges that the Defendants extracted dues for one or more months beyond the Plaintiff's contracted-for membership periods by inserting cancellation provision into the membership agreement. According to the Plaintiff, given that written notification of cancellation of the Membership Agreement by a consumer must be completed "by the 10th of the month" (to avoid the monthly charge on the 17th of each month) but also upon "30 days notice," the written notification must be actually completed upon 37 days notice, forcing consumers to pay at least one additional month of membership fees after they cancel the contract. The Amended complaint does not allege, however, that the Plaintiff ever cancelled or attempted to cancel her membership. On Sept. 28, 2015, the Plaintiff brought suit against the Defendants in the Superior Court of New Jersey, Law Division. On Oct. 19, 2015, the Plaintiff filed an Amended Complaint, setting forth claims, individually and on behalf of a putative class, under the TCCWNA (Count I), as well as the Health Club Services Act ("HCSA") and the Consumer Fraud Act ("CFA") (Count II). The Defendants removed the action to the Court on Nov. 6, 2015, and moved to dismiss on Dec. 4, 2015. On July 28, 2016, the Court issued an opinion and order dismissing Count II, the Plaintiff's CFA and HCSA claims, without prejudice, and dismissing Count I, the Plaintiff's TCCWNA claim, with prejudice, to the extent that it was based on omissions in the membership agreement. After the Court's order and after the Court denied the Plaintiff's motion for reconsideration, Truglio v. Planet Fitness, Inc. ("Truglio II"), the only surviving claim in the Amended Complaint was the Plaintiff's Count I TCCWNA claim for statutory damages based upon the inclusions of the allegedly misleading cancellation provision in the membership agreement. Although Judge Wolfson had already dismissed an identical claim under Count Two because the CFA prohibits damages claims where no ascertainable loss is alleged, she declined to reach that issue with respect to the TCCWNA claim because it found a lack of binding precedent as to whether a TCCWNA claim can be based upon an unlawful practice in violation of the CFA, but for which no ascertainable loss occurred. On April 9, 2018, the Court stayed and administratively terminated the matter pending the New Jersey Supreme Court's decision in Spade v. Select Comfort Corp. and Wenger v. Bob's Discount Furniture, LLC, 232 N.J. 504 (2018), which promised to fill the precedential gap by deciding whether a consumer who enters into an unlawful contract under the TCCWNA but suffers no "adverse consequences" can be an aggrieved consumer" authorized to bring a TCCWNA damages claim. After Spade-Wenger answered that question in the negative, the Defendants renewed their motion to dismiss the Plaintiff's remaining TCCWNA claim. The sole question before the Court on the Defendants' motion to dismiss is whether the Plaintiff can maintain a TCCWNA claim despite the apparent lack of any "adverse consequences. Judge Wolfson holds that the Spade-Wenger decision appears to dictate that the Plaintiff, whose only alleged harm was entering into a gym membership contract containing an allegedly unlawful cancellation provision, is not an "aggrieved consumer" capable of obtaining relief under the TCCWNA. It is, as an initial matter, undisputed that the Plaintiff has not suffered any monetary harm. As the Plaintiff has not renewed a monetary loss argument, and because her TCCWNA claim is premised on the same allegations as the CFA claim, the Judge Court sees no reason why the monetary loss analysis should be different in the instant case. Undeterred, the Plaintiff offers two alternative arguments for why Spade-Wenger did not foreclose her TCCWNA claim. First, fixating on the fact that the decision left room for non-monetary-damage claims in certain contexts, she contends that she suffered adverse consequences, a phrase that, according to her, includes intangible harms, or informational injuries, such as a health club contract, like the Defendants'. Yet, the Amended Complaint merely alleges that the Plaintiff entered into the gym membership contract containing an allegedly misleading cancelation provision, but contains no allegations of concrete harm, such as that she wished or attempted to cancel her membership agreement but was prevented from doing so, or that the cancellation provision somehow impacted her ability to use the gym membership. Thus, the Plaintiff did not suffer the harm required in order to be an "aggrieved consumer" capable of asserting a TCCWNA claim. Second, the Plaintiff alternatively argues that her case is somehow distinguishable from Spade-Wenger because the plaintiffs there "ultimately received the furniture they contracted for and did not suffer any economic consequences. However, in the instant case too, the Plaintiff received what she contracted for -- the gym membership -- and also did not suffer the type of economic consequences necessary to assert a TCCWNA claim. Indeed, the import of Spade-Wenger extends far beyond its particular context: since the case was decided, various federal and state courts have relied on the decision in a variety of contexts to find that plaintiffs who similarly did not suffer any concrete, particularized harm were not "aggrieved consumers." Thus, because Spade-Wenger dictates that the Plaintiff is not an "aggrieved consumer," the remaining TCCWNA claim must fail. Accordingly, for the foregoing reasons, Judge Wolfson granted the Defendants' motion to dismiss the Plaintiff's Amended Complaint, and therefore dismissed the case. A full-text copy of the Court's Dec. 21, 2018 Opinion is available at https://is.gd/xmkEKh from Leagle.com. MARNI TRUGLIO, on behalf of herself and all others similarly situated, Plaintiff, represented by BENJAMIN JARRET WOLF, Jones, Wolf & Kapasi, LLC & JOSEPH K. JONES -- jjones@mcoblaw.com -- Jones, Wolf & Kapasi, LLC. PLANET FITNESS, INC., Defendant, represented by KURT MICHAEL MULLEN -- kmullen@nixonpeabody.com -- NIXON PEABODY, LLP. FIT TO BE TIED II, LLC, doing business as PLANET FITNESS, Defendant, represented by LOUIS A. FELICETTA -- louis.felicetta@littletonpark.com -- Littleton Park Joyce Ughetta & Kelly LLP. PPG ARCHITECTURAL: Faces Hernandez Labor Suit in Calif. State Court ------------------------------------------------------------------- A class action lawsuit has been filed against PPG Architectural Finishes Inc., and PPG Industries Inc. The case is captioned as, Erick Hernandez on behalf of himself and all others similarly situated, the Plaintiff, vs. Does 1-10, PPG Architectural Finishes Inc., and PPG Industries Inc., the Defendants, Case No. 34-2018-00246879-CU-OE-GDS (Cal. Super. Ct., Dec. 19, 2018). The case alleges employment-related violation. PPG Architectural Finishes, Inc. manufactures architectural and industrial products, sundries, and wall coverings.[BN] Attorneys for Plaintiff: Gary R. Basham, Esq. 8801 Folsom Boulevard, Suite 177 Sacramento, CA 95826 Telephone: (916) 993-4840 Facsimile: (916) 266-7478 PRICEWATERHOUSECOOPERS: Court OKs Summary Judgment in Adamov ------------------------------------------------------------ The United States District Court for the Eastern District of California issued an Order Granting PricewaterhouseCoopers LLP's (PwC) Motion for Summary Judgment in the case captioned YURY ADAMOV, individually, and on behalf of himself and all other similarly situated current and former employees of PricewaterhouseCoopers LLP, Plaintiff, v. PRICEWATERHOUSECOOPERS LLP, a Limited Liability Partnership, Defendant. No. 2:13-cv-01222-TLN-AC. (E.D. Cal.). The Plaintiff filed a putative class action against PwC alleging violations of California labor laws, including failure to pay overtime wages, failure to provide itemized employee wage statements, failure to provide meal periods, and failure to provide rest periods. The Plaintiff filed a First Amended Complaint asserting the same causes of action. The Plaintiff filed a Second Amended Complaint (SAC) asserting only the following causes of action: (1) Violations of California Labor Code Sections 510 & 1194 for failure to pay overtime wages and (2) Violations of California Business and Professions Code Section 17200. PwC moves for summary judgment, arguing that the Plaintiff's claims should be dismissed because he lacks Article III standing. Constitutional standing requires a plaintiff to demonstrate: (1) an injury in fact (2) traceability, i.e., a causal connection between the injury and the actions complained of and (3) redressability. PwC argues that the Plaintiff lacks an injury because the undisputed facts establish that the Plaintiff worked no overtime hours as a first-year Associate during the pleaded class period. PwC maintains that the Plaintiff worked as a first-year Attest Associate from September 15, 2008 to August 31, 2009, and became a second-year Attest Associate on September 1, 2009 with the rest of the Fall 2008 class. The Plaintiff responds that there is no first-year Associate job position at PwC. The Plaintiff argues that worked as first-year Associates means fifty-two weeks spent actually working, and therefore, the Plaintiff's sabbatical should not be included in determining the time he worked as a first-year Associate. The Plaintiff's contrived definition of his pleaded class is inconsistent with its plain meaning. The phrase first-year Associates includes the hyphenated phrasal adjective first-year to modify the word Associates. Thus, first-year describes a specific group of Associates, not a period of time Associates spend working. Indeed, Plaintiff's own brief demonstrates the futility of his argument. There, the Plaintiff is forced to engage in linguistic gymnastics in order to fashion his argument. The Plaintiff may not plead ignorance to PwC's practice of grouping Associates by class year. In addition to the Plaintiff's employment agreement discussing pay raises occurring on September 1, 2009, one of the Plaintiff's performance reviews from 2009 repeatedly refers to the Plaintiff as a first year associate. Ultimately, the Plaintiff chose to use the term first-year Associate and he must now live with the consequences of his decision to limit the class in such a way. The Plaintiff may not unilaterally redefine his class definition in an attempt to circumvent the fact that he pleaded a class definition he initially thought advantageous to his claims, but in the end left him with no injury. Of course, even under the Plaintiff's definition of first-year Associate, the Plaintiff did not work any overtime during his first fifty-two weeks of work. The Plaintiff began his first day of work on September 15, 2008, and thus completed his first fifty-two weeks of work on September 13, 2009 at the latest. The parties agree Plaintiff has no actionable overtime hours through September 13, 2009. Thus, for the Plaintiff to have a colorable claim for overtime, he further strains his class definition by arguing that the fifty-two weeks must exclude any time where no work is performed. Therefore, the Plaintiff has not shown he worked any overtime hours during the relevant class period. Accordingly, the Plaintiff has suffered no injury in fact and lacks standing to bring a claim either individually or on behalf of a class. The Plaintiff asserts that if the Court were to accept PwC's version of the class definition, the Plaintiff requests the Court's permission to clarify the class definition to rule out the version of it advanced by PwC in support of its motion. However, the Plaintiff has not even attempted to demonstrate that he has good cause to make an amendment under Federal Rule of Civil Procedure (Rule) 16(b), nor has he attempted to demonstrate that amendment is proper under Rule 15(a). Accordingly, the Court denies the Plaintiff's request to amend his class definition. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/yaboxe7p from Leagle.com. Yury Adamov, Plaintiff, represented by James P. Ulwick -- julwick@kg-law.com -- Kramon & Graham, P.A., pro hac vice, Lyle W. Cook, Kershaw, Cutter & Ratinoff, LLP, Stuart C. Talley, Kershaw, Cook & Talley PC & William A. Kershaw, Kershaw, Cook & Talley PC. PricewaterhouseCoopers LLP, Defendant, represented by Joseph M. Ortega -- jortega@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice, Julie A. Totten -- jatotten@orrick.com -- Orrick, Herrington & Sutcliffe LLP, Norman C. Hile -- nhile@orrick.com -- Orrick Herrington and Sutcliffe LLP, Daniel J. Thomasch -- dthomasch@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice & Lauren J. Elliot -- lelliot@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, pro hac vice. PRINSTON PHARMACEUTICAL: Sued over Sale of Adulterated Valsartan ---------------------------------------------------------------- CARRIE COLLINS, individually and on behalf of all others similarly situated, Plaintiff v. PRINSTON PHARMACEUTICAL INC. d/b/a SOLCO HEALTHCARE LLC; SOLCO HEALTHCARE U.S., LLC; and DOES 1 through 10, inclusive, Defendants, Case No. 37-2018-00063224-CU-BT-CTL (Cal. Super., San Diego Cty., Dec. 12, 2018) is an action against the Defendants for the manufacture, design and distribution of the prescription drug Valsartan. According to the complaint, the Defendants represented and advertised that Valsartan was safe for its intended use. However, the Valsartan manufactured by the Defendants has been contaminated with a chemical called N-nitrosodimethylamine, or "NDMA," which is a probable human carcinogen. Prinston Pharmaceutical Inc. develops, manufactures, markets, and registers generic prescription pharmaceutical products. Prinston Pharmaceutical Inc. was founded in 2009 and is based in Cranbury, New Jersey. [BN] The Plaintiff is represented by: Joshua H. Haffner, Esq. Graham G. Lambert, Esq. Michael K. Teiman, Esq. HAFFNER LAW PC 445 South Figueroa Street, Suite 2325 Los Angeles, CA 90071 Telephone: 1213) 514-5681 Facsimile: (213) 514-5682 E-mail: jhh@haffnerlawvers.com gl@harfnerlawycrs.com mt@haffnerlawyers.co m - and - Jimmy Hanaie, Esq. LEGALCLEAR 8306 Wilshire Blvd, Suite 5007 Beverly Hills, CA 90211 Telephone: (800) 444-6962 E-mail: legal@legalclear.com - and - Alexander Larian, Esq. LARIAN LAW FIRM 8306 Wilshire Blvd., Suite 2058 Beverly Hills, CA 90211 Telephone: (310) 720-0505 Facsimile: (213) 5M-5682 E-mail: alarian@larianlaw.com PRUDENTIAL FINANCIAL: Faces Dowe Suit in S.D. New York ------------------------------------------------------ A class action lawsuit has been filed against Prudential Financial Inc. The case is captioned as MAUREEN DOWE, individually and on behalf of all others similarly situated, Plaintiff v. PRUDENTIAL FINANCIAL INC.; LEEDS & MORELLI; LEEDS, MORELLI & BROWN PC; LEEDS, MORELLI & BROWN LLP; LENARD LEEDS; STEVEN A. MORELLI; JEFFREY K. BROWN; ERIC SCHWIMMER; GERALD E. HARPER; PAUL, WEISS, RIFKIND, WHARTON & GARRISON, LLP; and JOHN DOES 1-25, Defendants, Case No. 1:18-cv-11633-DLC (S.D.N.Y., Dec. 12, 2018). The case is assigned to Judge Denise L. Cote. Prudential Financial, Inc., through its subsidiaries, provides insurance, investment management, and other financial products and services in the United States and internationally. Prudential Financial, Inc. was founded in 1875 and is headquartered in Newark, New Jersey. [BN] The Plaintiff is represented by: Andrew Lavoott Bluestone, Esq. 233 Broadway, Suite 2702 New York, NY 10279 Telephone: (212) 791-5600 Facsimile: (212) 513-7206 E-mail: alb@bluestonelawfirm.com QUORA INC: Faces Huynh Class Suit Arising From 2018 Data Breach --------------------------------------------------------------- ALEXANDER HUYNH, individually, and on behalf of a class of similarly situated individuals v. QUORA, INC., a Delaware corporation, Case No. 5:18-cv-07597 (N.D. Cal., December 18, 2018), is brought on behalf of all persons, who reside in the United States and who created an account with Quora, whose personal or financial information was accessed, compromised, or stolen in the 2018 Data Breach. In an ongoing investigation, Quora recently revealed that its users' personal information was subject to a massive data security breach in November 2018, affecting approximately 100 million Quora Users' PII ("2018 Data Breach"). Quora released a statement on its blog on December 3, 2018, publicly exposing details of the 2018 Data Breach for the first time. Headquartered in Mountain View, California, Quora, Inc., is a corporation organized and in existence under the laws of the state of Delaware and registered to do business in the state of California. Quora is engaged in the business of operating a social networking Web site and mobile application in Santa Clara County and throughout the United States of America. Quora created and operates a user-based Q&A platform through its Web site and mobile application that facilitate private and public communications, including messages, posts, and photographs, from and between its Users, as well as providing access to certain account information to third party applications.[BN] The Plaintiff is represented by: Tarek H. Zohdy, Esq. Cody R. Padgett, Esq. Trisha K. Monesi, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Tarek.Zohdy@capstonelawyers.com Cody.Padgett@capstonelawyers.com Trisha.Monesi@capstonelawyers.com REVCLAIMS LLC: Court OKs Limited Discovery in Scott PAGA Suit ------------------------------------------------------------- The United States District Court for the Eastern District of Arkansas, Jonesboro Division, issued an Order granting Plaintiffs' Request for Limited Discovery in the case captioned TRACEY SCOTT and LORRENZO HAMPTON individually and on behalf of all others similarly situated, Plaintiffs, v. REVCLAIMS, LLC; and ST. BERNARD'S HOSPITAL, INC., Defendants. No. 3:18CV00056 JLH. (E.D. Ark.). The Court directed the plaintiffs to file a brief (1) explaining the basis for the assertion that the amount in controversy exceeds $5 million as required by 28 U.S.C. Section 1332(d)(2) and addressing the elements of Section 1332(d)(4). The complaint in Garrison alleged that hundreds if not thousands of persons could be included in the potential class and, thus, the amount in controversy exceeded $5 million. In light of the number and size of the hospitals named as defendants, that allegation appeared plausible. No party argued that the amount in controversy fell short of CAFA's $5 million requirement. Based on the face of the complaint and the absence of any dispute on that issue, the Court concluded that the statutory minimum amount in controversy was met. Here, the putative class is identical to the class in Garrison except that it is limited to persons who received treatment at St. Bernard's Hospital in Jonesboro. As in Garrison, the complaint alleges that the putative class includes hundreds if not thousands of persons; but since the class is limited to persons who received treatment at St. Bernard's and who otherwise meet the class definition, that allegation cannot be deemed plausible on its face. The plaintiffs have not, in their complaint or their brief, explained the basis for the allegation that the amount in controversy here exceeds $5 million. The plaintiffs request an opportunity to conduct a limited amount of discovery on the issue of whether the amount in controversy exceeds $5 million. That request is granted. The Court authorizes the parties to engage in discovery for a period of 60 days from the date of this Order on the issue of whether this Court has subject matter jurisdiction. The parties must file simultaneous briefs, together with any evidence upon which they rely, on March 6, 2019. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/ycog9yp4 from Leagle.com. Tracey Scott, individually and on behalf of all others similarly situated & Lorrenzo Hampton, individually and on behalf of all others similarly situated, Plaintiffs, represented by Brandon W. Lacy, Lacy Law Firm & Jeffrey Owen Scriber, Attorney at Law. Revclaims LLC, Defendant, represented by Jeffrey W. Puryear -- jpuryear@wpmfirm.com -- Womack Phelps Puryear Mayfield & McNeil, P.A., Joseph L. Adams, Jones Walker LLP, pro hac vice, Mark Alan Mayfield -- mmayfield@wpmfirm.com -- Womack Phelps Puryear Mayfield & McNeil, P.A. & Ryan M. Wilson -- rwilson@wpmfirm.com -- Womack Phelps Puryear Mayfield & McNeil, P.A. RICK'S YELLOW: El Beyrouti Seeks Overtime Wages under FLSA ---------------------------------------------------------- JARID J. EL BEYROUTI, and all others similarly situated, the Plaintiff, vs. RICK'S YELLOW BAIT HOUSE, LLC, a Florida Limited Liability Company, and RICARDO FERNANDEZ, individually, the Defendants, Case No. 1:18-cv-25340-RNS (S.D. Fla., Dec. 19, 2018), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for violations of overtime and minimum wages under the Fair Labor Standards Act, and unpaid wages under Florida law. According to the complaint, El Beyrouti and at least one other employee of Bait House would routinely handle or use fishing tools and materials, such as fishing supplies, fishing gear, and fishing bait. The Defendants knew and/or showed reckless disregard of the provisions of the FLSA concerning the payment of overtime wages as required by the FLSA. The Defendants were aware of Plaintiff's work schedule and further aware that Plaintiff was working more than 40 hours per week. Defendants were aware of Plaintiff’s pay records and the rate that he was being paid for his hours. The Defendants were aware of their obligation to pay overtime and/or failed to conduct a reasonable investigation as to whether they were obligated to pay overtime wages. Despite the obligation to pay overtime and that Plaintiff was working overtime, the Defendants continued to fail to pay overtime wages. Thus, Defendants continue to willfully violate the FLSA despite having been sued for overtime wages, the lawsuit says. Ricks Yellow Bait House is in the sporting goods stores and bicycle shops industry in Homestead, Florida.[BN] Attorneys for Plaintiff and those similarly-situated: Isaac Mamane, Esq. MAMANE LAW LLC 10800 Biscayne Blvd., Suite 350A Miami, FL 33161 Telephone (305) 773 6661 E-mail: mamane@gmail.com - and - Daniel T. Feld, Esq. DANIEL T. FELD, P.A. 2847 Hollywood Blvd. Hollywood, FL 33020 Telephone: (954) 361-8383 E-mail: DanielFeld.Esq@gmail.com RIO STATION: Floris Sues over Minimum & Overtime Pay, Tip Credit ---------------------------------------------------------------- STEFANO FLORIS, on behalf of himself and others similarly situated, the Plaintiff, vs. RIO STATION JUICE BAR, INC., a Florida profit corporation, and RODOLFO CARDOSO, an individual, the Defendants, Case No. 1:18-cv-25358-KMW (S.D. Fla., Dec. 20, 2018), seeks to recover unpaid minimum wage compensation, unpaid overtime wage compensation, liquidated damages, return of tips wrongfully taken, and other relief under the Fair Labor Standards Act of 1938. According to the complaint, throughout his employment as a tipped employee at Rio Station Grill, the Defendants claimed the tip credit even though Mr. Floris was required to share his tips with non-tipped employees, such as kitchen staff, managers and owners. Mr. Floris was required to pay for impermissible business expenses, such as the maintenance of his required work uniform. Mr. Floris was required to perform non-tip-producing sidework for 20% or more of his work time. Throughout his employment, the Plaintiff regularly worked in excess of 40 hours per seven-day week. As the result of the above violations, the Defendants did not satisfy the requirements of 29 U.S.C. 203(m) and thus cannot apply Plaintiff's tips towards satisfaction of Defendants' minimum and overtime wage obligation, and must therefore pay Plaintiff the full minimum wage for each regular hour worked and the overtime wage for each overtime hour worked, the lawsuit says [BN]. Attorney for Plaintiff: Robert W. Brock II, Esq. LAW OFFICE OF LOWELL J. KUVIN 17 East Flagler Street, Suite 223 Miami, FL 33131 Telephone: 305-358-6800 E-mail: robert@kuvinlaw.com legal@kuvinlaw.com RITE AID: Martinez Sues over "Natural" Claim in Body Care Products ------------------------------------------------------------------ KATHERINE MARTINEZ, individually and on behalf of all others similarly situated, Plaintiff v. RITE AID CORPORATION; and DOES 1 through 20, inclusive, Defendants, Case No. 37-2018-00063258-CU-MC-CTL (Cal. Super., San Diego Cty., Dec. 12, 2018) is an action arising out of the Defendant's false and misleading advertising of its "natural" body care products. According to the complaint, the Defendant markets, sells and distributes the "Daylogic Daily Moisturizing Lotion Skin Protectant," through its labeling and packaging, and through the Defendant's other advertising and marketing materials, communicates the same substantive message to consumers: that the Lotion Product provides "natural" daily moisture to the skin, free from unnatural, synthetic ingredients. Specifically, on every Product label, the Defendant expressly represents that it provides "fragrance free," "dermatologist tested" daily moisture "with natural colloidal oatmeal" and "relieves & moisturizes dry skin." Through its deceptive practice of marketing and selling its Product as comparable to "Active Naturals" despite the presence of synthetic ingredients, the Defendant is able to command a premium price by deceiving consumers about the attributes of the Product. Rite Aid Corporation, through its subsidiaries, operates a chain of retail drugstores in the United States. Rite Aid Corporation was founded in 1927 and is headquartered in Camp Hill, Pennsylvania. [BN] The Plaintiff is represented by: Todd D. Carpenter, Esq. Eric D. Zard, Esq. Alyshia K. Lord, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1350 Columbia Street, Ste. 603 San Diego, CA 92101 Telephone: (619) 762-1910 Facsimile: (619) 756-6991 E-mail: tcarpenter@carlsonlynch.com exard@carlsonlynch.com alord@carlsonlynch.com - and - Bruce Carlson, Esq. Kelly K. Iverson, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com kiverson@carlsonlynch.com SBHC HOLDING: Faces Henderson Labor Suit in California State Court ------------------------------------------------------------------ A class action lawsuit has been filed against SBHC Holding LLC. The case is captioned as Tiffany Henderson and on behalf of all others similarly situated, the Plaintiff, vs. Does 1-20, SBHC Holding LLC, Summit Behavioral Healthcare LLC, Summit Behavioral Holdings I LLC, Summit BHC, and Summit BHC Sacramento LLC, the Defendants, Case No.: 34-2018-00246927-CU-OE-GDS (Cal. Super. Ct., Dec. 19, 2018). The suit alleges violation of labor laws. Summit Behavioral Healthcare is a Brentwood, Tennessee-based behavioral health services company that owns and operates a large network of addiction treatment centers throughout the United States. Originating in 2012, the company was founded by Trey Carter, former CEO of Acadia Healthcare.[BN] Attorneys for Plaintiff: Randy Scott Erlewine, Esq. Phillips Erlewine, Esq. GIVEN & CARLIN LLP 39 Mesa St Ste 201 San Francisco, CA 94129 Telephone: (415) 398-0900 Facsimile: (415) 398-0911 E-mail: rse@phillaw.com SERVICE CORPORATION: Court Narrow Claims in Bernstein UTPCL Suit ---------------------------------------------------------------- The United States District Court for Eastern District of Pennsylvania issued an Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned CAROLINE BERNSTEIN, an individual, MARLA UROFSKY on behalf of RHEA SCHWARTZ, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. SERVICE CORPORATION INTERNATIONAL and SCI PENNSYLVANIA FUNERAL SERVICES, Defendants. Civil Action. No. 17-4960. (E.D. Pa.). Upon consideration of the Defendants' Motion to Dismiss Counts I, III, and IV of the Plaintiffs' First Amended Class Action Complaint, the Plaintiffs' Response, and the parties' supplemental briefs, the Court ordered that the Motion to Dismiss is granted without prejudice with respect to the negligence claim in Count I and with prejudice as to the breach of duty of good faith and fair dealing claim in Count IV. The Motion is denied with respect to the UTPCL claim in Count III A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/ybkcd5ff from Leagle.com. MARJORIE SCHAEFER, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, CAROLINE BERNSTEIN, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED & MARLA UROFSKY, ON BEHALF OF RHEA SCHWARTZ, AN INDIVIDUAL, ON BEHALF OF THEMSELVES, AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by BRYAN R. LENTZ -- blentz@bochettoandlentz.com -- BOCHETTO & LENTZ PC & JOSEPH G. SAUDER -- jgs@mccunewright.com -- McCune Wright Arevalo LLP. SCI PENNSYLVANIA FUNERAL SERVICES, INC. & SERVICE CORPORATION INTERNATIONAL, INC., doing business as SHALOM MEMORIAL PARK AND FOREST HILLS CEMETERY, Defendants, represented by CATHLEEN M. DEVLIN -- cathleen.devlin@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP, JOHN F. STOVIAK -- john.stoviak@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP & ALBERT FRANCIS MORAN -- albert.moran@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP. SERVICE EMPLOYEES: NRWLDF Seeks Review of Union Case ---------------------------------------------------- Bill McMorris, writing for The Washington Free Beacon, reports that a group of Minnesota parents caring for family members is asking the Supreme Court to help them break away from union representation. On Dec. 14, the National Right to Work Legal Defense Foundation petitioned the Supreme Court to review Bierman v. Dayton, a case challenging exclusive union representation. The case was filed on behalf of home health workers, including a mother caring for a child with cerebral palsy. The aides claim that they have been forced to surrender their representation rights to labor giant Service Employees International Union Minnesota Healthcare despite the fact that only 13 percent of workers participated in a 2014 mail-in representation election. "For those who do not want that union speaking on their behalf, exclusive representation results in a 'significant impingement on [their] associational freedoms,'" the petition says, pointing to the Court's June opinion in Janus v. AFSCME. "SEIU's authority to speak for providers necessarily associates them with SEIU and its speech." The Right to Work Foundation has scored several major victories before the Supreme Court in recent years, including successfully overturning an Illinois scheme to force home health aides to pay union dues in the 2014 Harris v. Quinn case. The group also represented government workers in Janus v. AFSCME, which successfully overturned longstanding precedent in public sector unionism. In June, the Supreme Court ruled 5-4 that forcing government employees to pay union dues or fees as a condition of employment violated the First Amendment rights of workers. The lawsuit was rejected by the 8th Circuit Court of Appeals. That court held that SEIU's representation of the state's 27,000 home health aides did not violate the First Amendment rights of any dissenting caregivers. Appellate judges acknowledged the Janus ruling in its opinion, but said the Supreme Court only addressed the financial aspect of coercive unionism, rather than the concept of monopoly representation, in which a state only recognizes one bargaining partner during contract negotiations or disputes over work conditions. The 8th Circuit affirmed the constitutionality of allowing a single union to represent a diverse workforce provided they abide by state and federal labor policies. It also pointed to SEIU Minnesota's stated position that it "would not seek mandatory fees from providers who did not join the union," as another factor differentiating it from the Janus case. "Under those decisions, a State cannot compel public employees and homecare providers, respectively, to pay fees to a union of which they are not members, but the providers here do not challenge a mandatory fee," the appeals court ruled. "The constitutionality of exclusive representation standing alone was not at issue [in Janus]." The plaintiffs argue in their Supreme Court petition that the reasoning behind Janus should extend to monopoly bargaining. Government agencies should not outsource the input of individual citizens to a favored labor organization. Home health aides, the foundation says, are treated as if they are government workers in violation of the Harris precedent when in fact they only receive reimbursements that are set by federal authorities. While the High Court has held that the public sector can grant exclusive representation if it demonstrates a "compelling interest," the Bierman plaintiffs argue that "no such interest justifies extending exclusive representation to individuals who are not full-fledged public employees." "The government cannot be allowed to dictate, on any mere rational basis, which organization speaks for individuals in dealing with the government. The First Amendment reserves this choice to each individual," the petition says. The fallout from the Janus decision has led to a number of class action suits in states across the country from workers seeking to reclaim their back payments. National Right to Work Foundation President Mark Mix said the Minnesota case will help bring resolution in the dispute between dissenting workers and labor groups at the state and local level. "If the Supreme Court agrees to hear Bierman, these home care providers will be one step closer toward ending an unconstitutional scheme that forces them to associate with a union they oppose as a condition of state assistance in providing care for their sons and daughters," he said in a statement. "Forcing individuals under union monopoly representation flies in the face of the First Amendment's protection of freedom of association." The union did not respond to requests for comment. [GN] SERVOMATION REFRESHMENT: Gilbert Seeks Unpaid Overtime ------------------------------------------------------ ANTHONY GILBERT, on behalf of himself and all others similarly situated, the Plaintiff, vs. SERVOMATION REFRESHMENT, INC., and BRIAN BRUNO, individually and in his official role as owner and officer of SERVOMATION REFRESHMENT, INC., the Defendants, Case No. 6:18-cv-06933 (W.D.N.Y., Dec. 21, 2018), seeks to recover unpaid overtime an other wages on behalf of himself and all other similarly-situated current and former employees of Defendants performing vending route van driven duties, who have not agreed to arbitrate employment claims against Defendants, and who have not waived their rights to proceed against Defendants as a member of a class and/or collective, under the Fair Labor Standards Act. According to the complaint, the Defendants willfully engaged in a pattern, practice, and policy of unlawful conduct by classifying Representative Plaintiff and members of the prospective FLSA Collective and Rule 23 Class. The Defendants allegedly failed the Plaintiffs overtime rate of 40 hours per workweek as required by the FLSA and New York Labor Law for non-exempt employees. Servomation Refreshments, Inc. provides vending and office refreshments. The company offers self-checkout kiosks, touchscreen credit card readers, mobile payments, electronic real time refunds, guaranteed delivery system, online account management, monthly promotions and loyalty rewards for the customers, GPS tracking, remote monitoring, online access to inventory and service levels, and light speed automation services.[BN] Attorneys for Plaintiff and the Putative Class: Andre L. Lindsay, Esq. Langston D. McFadden, Esq. LAW OFFICES OF PULLANO & FARROW PLLC 69 Cascade Drive, Suite 307 Rochester, NY 14614 Telephone: (585) 730 4773 Facsimile: (888) 971 3736 E-mail: alindsay@lawpf.com lmcfadden@lawpf.com SICHUAN PEPPER: Wei Files FLSA Suit in Connecticut -------------------------------------------------- A class action lawsuit has been filed against Sichuan Pepper Inc. The case is styled as Zhenhai Wei, Fangqiong Zhong, Junjie Zhu and Fanhe Meng, on their own behalf and on behalf of others similarly situated, Plaintiffs v. Sichuan Pepper Inc doing business as: Sichuan Pepper, Michael Shieh and "Jane" Ye, Defendants, Case No. 2:18-cv-02154 (D. Conn., December 31, 2018). The lawsuit arises under the Fair Labor Standards Act. Michael Shieh opened Sichuan Pepper on Hartford Turnpike in Vernon looking to fill a void in the market for authentic Sichuan food.[BN] The Plaintiffs appear PRO SE. SMARTPAY LEASING: Esparza Seeks to Certify Two Classes ------------------------------------------------------ SHAWN ESPARZA, on behalf of herself, and all others similarly situated, the Plaintiff, vs. SMARTPAY LEASING, INC., the Defendant, Case No. 3:17-cv-03421-WHA (N.D. Cal.), the Plaintiff will move the Court for an order on Jan. 17, 2019: 1. appointing Plaintiff as class representative; 2. appointing Plaintiff's counsel as class counsel; and 3. certifying Classes with respect to claims against Defendant under the Telephone Consumer Protection Act: Re-Engagement Text Message Class: "all persons within the United States (i) to whose cellular telephone number (ii) SmartPay Leasing, Inc. sent a text message (iii) using its vendor Twilio, Inc.'s platform, (iv) from September 29, 2015 to the date of class certification, (v) where the text message began with content stating "Congrats. Youre pre-qualified for a SmartPay lease""; and STOP Text Message Class: "all persons within the United States (i) to whose cellular telephone number (ii) SmartPay Leasing, Inc. sent a text message (iii) using its vendor Twilio, Inc.'s platform (iv) from September 29, 2015 to June 13, 2017, (v) after texting the word "STOP".[CC] Attorneys for Plaintiff and the Proposed Classes: Ronald A. Marron, Esq. Alexis M. Wood, Esq. Kas L. Gallucci, Esq. LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, Ca 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com alexis@consumersadvocates.com kas@consumersadvocates.com SOTHEBY'S: Violates ADA, Diaz Suit Asserts ------------------------------------------ Sotheby's is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Sotheby's, Defendant, Case No. 1:18-cv-12391 (S.D. N.Y., December 31, 2018). Sotheby's is a British founded American multinational corporation headquartered in New York City. One of the world's largest brokers of fine and decorative art, jewelry, real estate, and collectibles, Sotheby's operation is divided into three segments: auction, finance, and dealer.[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 SQUARETRADE INC: Starke's 8th Cir. Appeal Underway -------------------------------------------------- Adam J. Starke has taken an appeal from a court ruling in the case, Swinton v SquareTrade, Inc., Case No. 4:18-cv-00144 (D. Iowa, May 14, 2018). The appellate case is, DAVID M. SWINTON, on behalf of himself and all others similarly situated, Plaintiff- Appellee, v. SQUARETRADE, INC., Defendant-Appellee and Adam J. Starke, Movant - Appellant, Case No.: 18-3186 (8th Cir.). [BN] * * * District Court Judge Stephanie M. Rose will hold a hearing on Plaintiff's Motion for Preliminary Approval of Class Action Settlement on Feb. 11, 2019, at 9:00 a.m. In the case, Swinton seeks to certify an opt-out Settlement Class consisting of "purchasers of certain types of protection plans that Defendant sells through Amazon.com." Swinton filed the Motion for Preliminarily Settlement Approval in August. Attorneys for David M. Swinton: Harley C. Erbe, Esq. ERBE LAW FIRM 2501 Grand Avenue Des Moines, IA 50312 Telephone: 515 281−1460 Facsimile: 515 281−1474 E-mail: erbelawfirm@aol.com - and - Steven P Wandro, Esq. Alison Florence Kanne, Esq. WANDRO & ASSOCIATES, P.C. 2501 Grand Ave., Suite B Des Moines, IA 50312 Telephone: 515 281 1475 Facsimile: 515 281 1474 E-mail: swandro@2501grand.com akanne@2501grand.com Attorneys for SquareTrade, Inc.: John F Lorentzen, Esq. NYEMASTER GOODE PC 700 Walnut Street, Suite 1600 Des MoinesS, IA 50309−3899 Telephone: 515 283 3156 Facsimile: 515 283 8045 E-mail: jfl@nyemaster.com - and - Carolyn A. Pearce, Esq. Douglas A. Winthrop, Esq. Katelyn Elizabeth Rey, Esq. Michael A. Berta, Esq. ARNOLD & PORTER KAYE SCHOLER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111 Telephone: (415) 471−3100 Facsimile: (415) 471−3400 E-mail: carolyn.pearce@arnoldporter.com douglas.winthrop@arnoldporter.com katelyn.rey@arnoldporter.com michael.berta@arnoldporter.com Attorneys for Adam J. Starke: Gary R Fischer, Esq. Abigail Legg Thiel, Esq. SIMPSON JENSEN ABELS FISCHER & BOUSLOG PC 400 Locust Street, Suite 400 Capital Sqaure Des Moines, IA 50309 Telephone: 515 288 5000 Facsimile: 515 288 7718 E-mail: gfischer@iowafirm.com athiel@iowafirm.com - and - Bradley J. Nash, Esq. SCHLAM STONE & DOLAN LLP 26 Broadway New York, NY 10004 Telephone: 212 344−5400 Facsimile: 212 344−7677 E-mail: bnash@schlamstone.com - and - Chet B. Waldman, Esq. Matthew Tucker Insley Pruitt, Esq. WOLF POPPER LLP Third Avenue, 12th Floor New York, NY 10022 Telephone: 212 451−9600 E-mail: cwaldman@wolfpopper.com minsley−pruitt@wolfpopper.com STERLING JEWELERS: Hoffman Remanded to California State Court ------------------------------------------------------------- Judge Roger T. Benitez of the U.S. District Court for the Southern District of California granted in part and denied in part the Plaintiff's Motion to Remand the case, REBECCA HOFFMAN, on behalf of herself and all other aggrieved employees, Plaintiffs, v. STERLING JEWELERS, INC.; DOES 1-100, et al., Defendants, Case No. 18-cv-0696-BEN-WVG (S.D. Cal.). The case is a civil action filed in California state court under the California Labor Code Private Attorneys General Act of 2004 ("PAGA"). The Defendant removed the action to the Court under the Class Action Fairness Act ("CAFA"). Plaintiff Hoffman now moves to remand, arguing that her lawsuit is not a class action and thus, cannot invoke jurisdiction under CAFA. She additionally moves for an award of fees and expenses incurred as a result of the removal, which she contends was improper. Hoffman filed the action against her employer, the Defendant, in the California Superior Court, County of San Diego, bringing her First Amended Complaint for recovery of Civil Penalties Pursuant to PAGA. Specifically, she brings four Labor Code violations for: (1) failure to pay overtime wages in violation of Labor Code Sections 510 and 1198; (2) failure to pay vested vacation pay upon resignation or termination in violation of Labor Code Section 227.3; (3) failure to pay all wages owed upon resignation or termination in violation of Labor Code Sections 201-203; and (4) failure to provide accurate wage statements in violation of Labor Code Section 226(a). The Defendant contends the PAGA lawsuit does invoke CAFA jurisdiction because in essence, it is a class action in disguise. As a result, it theorizes, the statutory penalties the Plaintiff seeks in her PAGA Complaint are unavailable to her unless she brings a class action, an amendment Defendant seems to anticipate she will make. Judge Benitez finds that although a representative action, a PAGA action is not a class action. Setting aside the hypothetical amendments to the Plaintiff's future Complaint, the Judge considers the Plaintiff's Complaint in its current form and finds that it does not assert a class action under CAFA. The Ninth Circuit is clear that actions brought under PAGA are not class actions qualifying for CAFA jurisdiction. Moreover, a complaint's failure to request class status or its equivalent is fatal to CAFA jurisdiction. The Plaintiff's Complaint does not satisfy either requirement. Accordingly, because the Plaintiff's Complaint does not assert a class action, the Court lacks jurisdiction under CAFA, and the matter will be remanded to the California Superior Court, County of San Diego. Additionally, the Judge finds that the Defendant had an objectively reasonable basis for removal, notwithstanding his finding that it lacked jurisdiction under CAFA. As explained previously and argued by the Defendant, the Plaintiff's Complaint appears to seek damages that are available only on behalf of a class, not a representative PAGA action. Thus, the Defendant's removal based on those allegations, though incorrect, was not unreasonable. Accordingly, the Judge will deny the Plaintiff's request for fees. For these reasons, Judge Benitez granted in part and denied in part the Plaintiff's Motion to Remand. The action is remanded to the California Superior Court, County of San Diego for all further proceedings. He denied the Plaintiff's request for fees. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/9PO49q from Leagle.com. Rebecca Hoffman, on behalf of herself and all other aggrieved employees, Plaintiff, represented by Patrick N. Keegan -- pkeegan@keeganbaker.com -- Keegan & Baker, LLP. Sterling Jewelers, Inc., a Delaware corporation, licensed to do business in the State of California, Defendant, represented by Tracie Lynn Childs -- tracie.childs@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart P.C.. SUNPOWER CORPORATION: Faces Sanchez Labor Suit in Calif. Court -------------------------------------------------------------- A class action lawsuit has been filed against Sunpower Corporation. The case is styled as EDGAR SANCHEZ, INDIVIDUALLY, AND ON BEHALF OF OTHER MEMBERS OF THE GENERAL PUBLIC SIMILARLY SITUATED AND ON BEHALF OF AGGRIEVED EMPLOYEES PURSUANT TO THE PRIVATE ATTORNEYS GENERAL ACT ("PAGA"), the Plaintiff, vs. SUNPOWER CORPORATION, A DELAWARE CORPORATION, the Defendant, Case No. BCV-18-103138 (Cal. Super. Ct., Dec. 19, 2018). The case is assigned to the Hon. Judge Stephen D. Schuett. The suit alleges employment-related violation.[BN] Attorneys for Plaintiff: Douglas Han, Esq. JUSTICE LAW CORPORATION 411 N Central Ave, Ste 500 Glendale, CA 91203-2095 Telephone: (818) 230-7502 Facsimile: (818) 230-7259 E-mail: dhan@justicelawcorp.com SUTTELL AND HAMMER: Ochoa Files FDCPA Suit in Calif. ---------------------------------------------------- A class action lawsuit has been filed against Suttell, Hammer and White, P.C. The case is styled as Maria A. Ochoa, on behalf of herself and all others similarly situated, Plaintiff v. Suttell, Hammer and White, P.C. doing business as: Suttell and Hammer, APC, Defendant, Case No. 5:18-cv-02688 (C.D. Cal., December 31, 2018). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Suttell, Hammer and White, P.C. is a debt collection agency.[BN] The Plaintiff is represented by: Nicholas M Wajda Wajda Law Group APC 11400 West Olympic Boulevard Suite 200M Los Angeles, CA 90064 Tel: (310) 997-0471 Fax: (866) 286-8433 Email: nick@wajdalawgroup.com SWAPP LAW: Ct. Denies Bid to Compel Subpoena Compliance in Wilcox ----------------------------------------------------------------- The United States District Court for the Eastern District of Washington issued an Order denying Defendant's Motion for Compel Compliance with Subpoena in the case captioned JADE WILCOX on behalf of herself and all others similarly situation, Plaintiff, v. JAMES CRAIG SWAPP, individually; and SWAPP LAW, PLLC, doing business as Craig Swapp and Associates, Defendants. No. 2:17-CV-275-RMP. (E.D. Wash.). This case involves allegations that Defendants violated the Driver's Privacy Protection Act (DPPA), by purchasing accident reports from the Washington State Patrol (WSP) and using drivers' personal information from the accident reports to solicit clients for the Defendants' personal injury law practice. The Defendants ask the Court to compel Sweetser to produce documents related to their investigation of Defendants' purchases of accident reports before Sweetser began its representation of Ms. Wilcox. The subpoena compels Sweetser to produce the following to Defendants, inter alia, documents reflecting communication between you and any individual, agency, or entity concerning the process by which law enforcement personnel create and complete Collision Reports, including but not limited to communications with the Washington State Patrol, the Department of Licensing, the Office of the Attorney General, the Washington State Bar Association, reporters and editors of the Inlander publication, members of the Bar, and participants in internet forums and e-mail listservs, such as WSAJ listservs. The Defendants argue that the documents are not privileged because they are not related to the representation of Ms. Wilcox and that they are relevant to Ms. Wilcox's claims because they formed the basis of the allegations in the complaint. Additionally, the Defendants assert that Mr. Sweetser is a fact witness in this case because of his correspondence with third parties prior to his representation of Ms. Wilcox and the potential class. Ms. Wilcox and Sweetser oppose the motion to compel, arguing the subpoena seeks information that is irrelevant, overly burdensome, protected as work product, and available from third party sources, including requests for public disclosure from state agencies. Sweetser argues that the Defendants must meet a higher-than-ordinary burden to justify the subpoena due to the Shelton doctrine, which states that an increased burden applies when parties seek discovery from opposing counsel. The Shelton doctrine requires parties seeking discovery from opposing counsel to meet a heightened burden to obtain that discovery. Under the Shelton doctrine, before the discovery into opposing counsel is permitted, a party must show that (1) no other means exist to obtain the desired discovery (2) the information sought is relevant and non-privileged and (3) the information is crucial to the preparation of the case. However, it is unclear whether the Shelton doctrine is applicable in this dispute. First, the Ninth Circuit has never expressly adopted the Shelton framework. In re Allergan, Inc., No. 14-cv-2004-DOC (KES), 2016 WL 5922717, at *3 (C.D. Cal. Sept. 23, 2016). Second, it is unclear whether the Shelton doctrine applies to all forms of discovery, considering that Shelton concerned taking depositions of opposing counsel, as opposed to serving a subpoena duces tecum on counsel. Regardless, the Court finds that the applicability of the Sheltondoctrine is not dispositive to the outcome of this motion. Therefore, the Court does not make a ruling as to whether the Shelton doctrine applies to this dispute. Sweetser claims that the documents subpoenaed by Defendants are protected work product. The Defendants argue that the documents are not protected work product. Under Rule 26, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Interpreting this rule, the Ninth Circuit has held that, to qualify for work-product protection, documents must (1) be prepared in anticipation of litigation or trial and (2) be prepared by or for another party or by or for that other party's representative. The Defendants argue that the documents that they requested in the subpoena do not relate to the representation of Ms. Wilcox because the documents would have been created prior to Sweetser's representation of Ms. Wilcox, which began in August of 2016. The Court first determines whether the documented communications were made in anticipation of litigation. A document should be considered prepared in anticipation of litigation if in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation. Here, as the Defendants admit in their motions, Sweetser was investigating whether Defendants' practice was legal. These communications potentially developed into the current litigation between the parties. Accordingly, it can be fairly said that the communications were made because of the prospect of litigation. The second element of work product protection is that the evidence was made by or for another party. The Defendants argue that the documents could not have been made by or for another party if the documents were made before Sweetser's representation of Ms. Wilcox. However, Defendants ignore several aspects of this situation. First, this is a putative class action. It is possible that Sweetser was investigating the putative class members other than Ms. Wilcox, as Sweetser affirms in its motion. Second, the Defendants ignore the ethical obligations that a plaintiff's counsel has to investigate prior to filing a complaint. If Defendants' interpretation were correct, any evidence uncovered from an attorney's investigation prior to filing a complaint could be considered discoverable. The attorney would be in an untenable position: pursuant to Fed. R. Civ. P. 11, the attorney must investigate to ensure that a good faith basis exists to file claims, but then would be faced with having any of the attorney's investigatory documents not covered by the work product privilege and subject to discovery requests. Similar contradictions would occur if plaintiff's counsel could be deemed to be a fact witness, as Defendants claim in this case, solely because plaintiff's counsel performed the due diligence required before filing a lawsuit. The Court finds that Sweetser's communications with third parties were made in preparation of litigation by or for Ms. Wilcox and the putative class, satisfying the work product test. For this reason, the Court finds that the work product privilege applies and quashes Defendants' subpoena. Although the Court finds that the motion to quash should be granted based on the work product doctrine, the Court also considers whether the subpoenaed documents would be subject to discovery if the work product privilege did not apply in order to complete the record for review by any future court. The Defendants argue that the documented communications they seek from Sweetser are relevant. Sweetser argues that the communications are not relevant. Evidence is discoverable if it is relevant to any party's claim or defense and proportional to the needs of the case. To determine whether information is relevant and proportional, courts analyze the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' own resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The Defendants fail to justify how the communications themselves relate to the parties' claims or defenses. It is not apparent how the communications that Sweetser had with other parties prior to its representation of Ms. Wilcox prove or disprove the legality of Defendants' practices. The Court finds no basis for concluding that Sweetser's communications with third parties prior to the filing of the present complaint has any bearing on whether Defendants' practices were legal under the DPPA, or on the merits of the claims by Ms. Wilcox and the putative class. The Court finds that the Defendants' subpoena to Sweetser seeks the discovery of irrelevant information. Therefore, the Court denies the Defendants' motion to compel and quashes the Defendants' subpoena. A full-text copy of the District Court’s December 6, 2018 Order is available at https://tinyurl.com/ybaqnlam from Leagle.com Jade Wilcox, on behalf of herself, and all others similarly situated, Plaintiff, represented byJames Richard Sweetser , Sweetser Law Office, 1020 North Washington, Suite 1, Spokane, WA, 99201-2237, Jason M. Leviton - jason@blockesq.com - Block & Leviton LLP, pro hac vice, Robert Joseph Barton - joe@blockesq.com - Block & Leviton LLP, pro hac vice, Thomas G. Jarrard , Law Office of Thomas G Jarrard, 1020 N Washington St, Spokane, WA 99201 & Marcus Sweetser , Sweetser Law Office. 1020 North Washington, Suite 1, Spokane, WA, 99201-2237 James Craig Swapp, individually & Swapp Law PLLC, doing business as Craig Swapp and Associates, Defendants, represented by Barbara J. Duffy - duffyb@lanepowell.com - Lane Powell PC, Ryan P. McBride - mcbrider@lanepowell.com - Lane Powell PC & Taylor Washburn - washburnt@lanepowell.com - Lane Powell PC. SWIFT BEEF: Faces Cabrera Suit in Central District of California ---------------------------------------------------------------- The case, Silvia Valdivia De Cabrera an individual, on behalf of herself and all others similarly situated, the Plaintiff, vs. Swift Beef Company, a Delaware corporation; JBS USA, LLC, an unknown limited liability company; JBS USA Holdings, Inc.; JBS USA Inc., an unknown corporation; Pilgrim's Pride Corporation; JBS USA Food Company, an unknown corporation; JBS USA Food Company Holdings, an unknown corporation ; JBS USA, an unknown entity; and DOES, 1 through 100, inclusive, the Defendants, Case No. RIC1824312, was removed from the Riverside Superior Court to the U.S. District Court for the Central District of California (Eastern Division – Riverside). The Central District of California Court Clerk assigned Case No. 5:18-cv-02632-PA-SP to the proceeding. The case is assigned to the Hon. Judge Percy Anderson. The suit alleges employment discrimination. JBS USA is an American food processing company and a wholly owned subsidiary of JBS S.A., a Brazilian company that is the world's largest processor of fresh beef and pork, with more than US$50 billion in annual sales as of 2017.[BN] Attorneys for Plaintiff: Andranik Tsarukyan, Esq. Armen Zenjiryan, Esq. REMEDY LAW GROUP LLP 610 East Providencia Avenue Unit B Burbank, CA 91501 Telephone: (818) 422-5941 E-mail: andy@remedylawgroup.com armen@remedylawgroup.com Attorneys for Defendants: Neil S. Tyler, Esq. Tritia M Murata, Esq. MORRISON AND FOERSTER LLP 707 Wilshire Boulevard Suite 6000 Los Angeles, CA 90017 Telephone: (213) 892-5292 Facsimile: (213) 892-5454 E-mail: ntyler@mofo.com tmurata@mofo.com SYMMETRY PROPERTY: Investors File Securities Fraud Class Action --------------------------------------------------------------- Steven Dahlman and Peter von Buol, writing for Loop North News, report that the 90 Chinese investors who each invested $550,000 in a hotel/condominium proposed for Rush & Superior Streets have filed a federal class action lawsuit, a year and eight months after the project was cancelled. The Carillon would have replaced three 19th century Victorian row houses at 42, 44, and 46 East Superior Street with 246 condo units, 216 hotel rooms, 120 hotel timeshare units, and 30,000 square feet of retail space. Concerned about its impact on traffic in the neighborhood, 42nd Ward Alderman Brendan Reilly rejected the proposal in April 2017. Architectural preservationists are now trying to protect the row houses from demolition. The lawsuit, filed on November 28 in United States District Court, alleges securities fraud, breach of contract, and breach of fiduciary duty. Seven defendants are named in the suit, including Symmetry Property Development of New York and its managing partner, Jeffrey Laytin. Annabelle Yao, a Chinese citizen, is suing on behalf of herself and the other investors, all of whom reside in China and collectively invested $49.5 million in the project, money they now say they cannot get back. At the time, the project was called Carillon Tower and described as a 42-story building with a 200-unit Hilton hotel, 154 apartment units, 225-seat Gibson's restaurant, and parking spaces for 154 vehicles. Investors thought money was safely in escrow According to Ms. Yao, the investors believed their money was going to be held in escrow by TD Bank until the project was submitted to the Chicago Department of Planning and Development. That never happened but, according to the lawsuit, the money was released to developers anyway. TD Bank is now one of the defendants. "Defendants failed to prominently disclose the fact that, based on long-standing policy and procedure for all development in the City of Chicago, and the defendants' knowledge of such policy and procedure, the project required alderman/ward approval prior to the submission of a project plan to the city commissioner of development and planning," reads the lawsuit, "and that the submission of any project plan to the city commissioner without such alderman/ward approval would result in rejection by the commissioner and failure of the project." According to the lawsuit, the project was presented to the Chinese investors as an EB-5 project. The EB-5 program was created in 1990 to stimulate the U.S. economy through capital investment by immigrant investors. If an immigrant investor puts $500,000 into a new commercial enterprise that creates at least ten full-time jobs, the investor qualifies for admission to the United States as a Conditional Permanent Resident. They are asking for a full refund of their money, plus interest, court costs, and attorney fees. [GN] TELECOM EVOLUTIONS: Has Inferior Broadband Internet, Chinitz Says ----------------------------------------------------------------- RONALD CHINITZ, individually and on behalf of all other similarly situated, Plaintiff v. TELECOM EVOLUTIONS, LLC; and QUALITY SPEAKS, LLC, Defendants, Case No. 18STCV08068 (Cal. Super., Los Angeles Cty., Dec. 12, 2018) alleges that the Defendants deceptively and misleadingly marketed their trueSTREAM broadband internet service as providing a "fiber optic" connection, when in fact it did not. Rather, the Defendants provided an inferior, slower copper line connection. Telecom Evolutions, LLC is a corporation organized and existing under the laws of the State of California. The Company provides internet services. [BN] The Plaintiff is represented by: George V. Granade, Esq. Michael R. Reese, Esq. REESE LLP 100 West 93rd Street. 16th Floor New York, NY 10025 Telephone: (212)643-0500 Facsimile: (212)253-4272 E-mail: ggranade@reesellp.com mreese@reesellp.com - and - Christopher J. Moreland, Esq. Charles D. Moore, Esq. Brandon K. Brouillette, Esq. HALUNEN LAW 80 South Eighth Street Minneapolis, MN 55402 Telephone: (612) 605-4098 Facsimile: (612) 605-4099 E-mail: moreland@halunenlaw.com moore@halunenlaw.com brouillette@halunenlaw.com TEXAS: Court Dismisses Schwarzer Inmate's Pro Se Complaint ---------------------------------------------------------- The United States District Court for the Southern District of Texas, Victoria Division, issued a Memorandum and Order dismissing the Pro Se Complaint in the case captioned MARK CLIFF SCHWARZER, (TDCJ-CID #1433741) Plaintiff, v. DALE WAINWRIGHT, et al., Defendants. Civil Action No. V-18-0029. (S.D. Tex.). The threshold issue is whether Schwarzer's claims should be dismissed as frivolous. Mark Cliff Schwarzer, an inmate of the Texas Department of Criminal Justice , Correctional Institutions Division, alleging civil rights violations resulting from a denial of due process. Schwarzer alleges that he watched Officer White enter multiple cells to take dozens of bottles and jars. Officer White did not provide confiscation papers for any of the property he had taken. When confronted about his actions, Officer White claimed the bottles were contraband because they had been altered from their original condition. Schwarzer referred Officer White to Texas Department of Criminal Justice policy regarding contraband. Schwarzer asserts that Defendant Baros used the same reasoning in her response for the Step 1 Grievance. Since Schwarzer admitted the label was missing from his bottle, Defendant Baros alleged it was contraband. Schwarzer asserts that Defendant Beard approved the Step 1 response, thereby agreeing with the simple definition of contraband. Schwarzer seeks the following relief, inter alia: (1) A declaration for Class Action Status to include all inmates of the Texas Department of Criminal Justice who have been incarcerated for nine months or more; (2) A declaration that acts and omissions described herein violated plaintiffs' rights under the Constitution and Laws of the United States; (3) A preliminary and permanent injunction ordering TDC to not transfer plaintiff Schwarzer from the Stevenson Unit or retaliate against him in any form whatsoever. The Claim Based on a Deprivation of Property An inmate's allegation that his property was lost or damaged, or its receipt delayed by a prison official, does not state a claim under 42 U.S.C. Section 1983, even when the prison official acted intentionally. In Texas, when an inmate's property is taken without compensation, he has a remedy in state court, not a federal court claim under 42 U.S.C. Section 1983 for loss or damage to property, unless there is no post-deprivation remedy or the remedy is inadequate. Schwarzer has made neither of the required showings. His claim against the defendants lacks an arguable basis in law. The Claim of an Inadequate Grievance System Schwarzer alleges that the defendants violated his civil rights by failing to resolve the complaints presented in his grievances. A prisoner has a liberty interest only in freedoms from restraint imposing atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. An inmate does not have a constitutionally protected liberty interest in having grievances resolved to his satisfaction. There is no due process violation when prison officials fail to do so. The defendants' alleged failure to address the grievances to Schwarzer's satisfaction did not violate his constitutional rights. The excerpts from the grievance responses submitted by Schwarzer show that the defendants investigated his grievances and provided timely responses. Schwarzer's due process claim based on an inadequate grievance procedure lacks merit. The Failure to Comply with Prison Regulations Schwarzer further alleges that prison officials did not follow prison rules and regulations regarding the confiscation of inmate property. Schwarzer has not shown that any errors during the confiscation of his property amount to a constitutional due process violation. The mere failure to comply with prison rules and regulations does not, without more, give rise to a constitutional violation. A prison official's failure to follow state regulations does not establish a constitutional violation. Schwarzer's claim that his due process rights were violated by the failure of prison officials to comply with prison regulations lacks an arguable basis in law because, in light of Sandin v. Conner, 515 U.S. 472 (1995), Schwarzer has no created liberty interest in the regulations of the Texas Department of Criminal Justice, Correctional Institutions Division. The action filed by Mark Cliff Schwarzer (TDCJ-CID Inmate #1433741) lacks an arguable basis in law. Accordingly, his claims are dismissed with prejudice under 28 U.S.C. Section 1915A. Schwarzer's constructive motion for class certification to include all individuals currently incarcerated in the TDCJ-CID for nine months or longer is denied. A full-text copy of the District Court's December 6, 2018 Memorandum and Opinion is available at https://tinyurl.com/y7ztwzor from Leagle.com. Mark Cliff Schwarzer, Plaintiff, pro se. THESY LLC: Tyksinski Suit Moved to Northern District of Illinois ---------------------------------------------------------------- A case, Artur Tyksinski, individually and on behalf of similarly situated individuals, the Plaintiff, vs. Thesy, LLC, a California limited liability corporation, the Defendant, Case No. 18-CH-14318, was removed from the Cook County Circuit Court to the U.S. District Court for the Northern District of Illinois (Chicago). The Northern District of Illinois Court Clerk assigned Case No. 1:18-cv-08413. The case assigned to the Hon. Judge Gary Feinerman.[BN] Attorneys for Plaintiff: David Louis Gerbie, Esq. MCGUIRE LAW, P.C. 55 W. Wacker, 9th Floor Chicago, IL 60601 Telephone: (312) 893-7002 E-maiLdgerbie@mcgpc.com - and - Jad Sheikali, Esq. MCGUIRE LAW, P.C. 55 West Wacker Drive, 9th Fl. Chicago, IL 60601 Telephone: (312) 893-7002 E-mail: jsheikali@mcgpc.com Attorneys for Defendant: James A. Foster, Esq. John David Hackett, Esq. William H Schramm, III, Esq. CASSIDAY SCHADE LLP 20 North Wacker Drive, Suite 1000 Chicago, IL 60606-2903 Telephone: (312) 641-3100 E-mail: jfoster@cassiday.com jhackett@cassiday.com wschramm@cassiday.com THOMAS DART: Discovery Underway in Bennett Suit ----------------------------------------------- In the class action captioned as Preston Bennett, the Plaintiff, vs. Thomas Dart, et al., the Defendant, Case No. 1:18-cv-04268 (N.D. Ill.), the Hon. Judge John Robert Blakey entered an order taking Plaintiff's motion to compel under advisement as stated in open court. According to the docket entry made by the Clerk on December 18, 2018, discovery and motion hearing was held on Dec. 18, 2018. The Parties report that they are on track to completing discovery. As reported by the Class Action Reporter, the Plaintiff in the lawsuit entitled Preston Bennett, individually and for a class v. Thomas Dart, Sheriff of Cook County, and Cook County, Illinois, Case No. 1:18-cv-04268 (N.D. Ill.), moved the Court to order that this case may proceed as a class action under Rule 23(b)(3) of the Federal Rules of Civil Procedure for: All inmates housed in Division 10 at the Cook County Department of Corrections from June 27, 2016 to the date of entry of judgment, who were prescribed either a walker, crutch, or cane by the medical staff and were denied an accommodation for toileting and showering. Mr. Bennett alleges the Sheriff and County violated his rights under the Americans with Disabilities Act and Rehabilitation Act by assigning him to Division 10 without elements that satisfy the ADA Structural Standards and by failing to provide reasonable accommodations to overcome the structural non-compliance. Dart is the Sheriff of Cook County, Illinois.[CC] The Plaintiff is represented by: Patrick W. Morrissey, Esq. Thomas G. Morrissey, Esq. THOMAS G. MORRISSEY, LTD. 10150 S. Western Ave. Chicago, IL 60643 Telephone: (773) 233-7900 E-mail: patrickmorrissey1920@gmail.com TIGER NATURAL: Court OKs Service by Email in Fishman ---------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Plaintiff' Motion for Leave to Serve Defendant Community Gas Center by e-mail in the case captioned EMILY FISHMAN and SUSAN FARIA, individually and on behalf of others similarly situated, Plaintiffs, v. TIGER NATURAL GAS INC., an Oklahoma corporation; COMMUNITY GAS CENTER INC., a Colorado corporation; JOHN DYET, an individual; and DOES 3-100 Defendants. No. C 17-05351 WHA. (N.D. Cal.). After receiving Attorney Allen's contact information, plaintiffs' counsel had a telephone call with Attorney Allen's office who indicated that Attorney Allen was authorized to accept service of process for CGC. Plaintiffs subsequently mailed a copy of the complaint and summons to Attorney Allen's office. In June 2018, plaintiffs filed a motion to serve defendant John Dyet by e-mail. Although Dyet was CGC's agent for service of process, the June 2018 motion did not request to serve CGC by e-mail because plaintiffs believed they had effected service on CGC. After CGC failed to respond to the operative complaint, plaintiffs filed a request for default on the ground that CGC had authorized Attorney Allen to accept service. In Dyet's recent deposition, however, Dyet stated that he never authorized anyone to accept service for CGC. A November 4 order accordingly concluded that plaintiffs had failed to demonstrate that CGC authorized Attorney Allen to accept service and denied plaintiffs' request for entry of default. Section 413.30 of the California Code of Civil Procedure states: "Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court." Here, the plaintiffs have demonstrated that CGC's owner and registered agent for service, Dyet, cannot with reasonable diligence be found. Based on the evidence adduced at the July 19 evidentiary hearing, a prior order concluded that plaintiff had made reasonable attempts to serve Dyet at various addresses in California and Colorado. The addresses associated with CGC are those very same addresses. Moreover, because Dyet appeared in this action after receiving service by e-mail, serving Dyet by e-mail is reasonably calculated to give actual notice to CGC. The motion to serve the summons and complaint via e-mail is granted. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/y97bwzdy from Leagle.com. Emily Fishman, individually and on behalf of all others similarly situated & Susan Faria, individually and on behalf of all others similarly situated, Plaintiffs, represented by Daniel L. Balsam -- calbar@danbalsam.com -- The Law Offices of Daniel Balsam, Jacob N. Harker -- harkerjacob@gmail.com -- Law Offices of Jacob Harker, Kathleen Styles Rogers krogers@kraloweclaw.com, Kralowec Law, P.C. & Kimberly Ann Kralowec -- kkralowec@kraloweclaw.com -- Kralowec Law, P.C. Tiger Natural Gas, Inc., an Oklahoma corporation, Defendant, represented by Janet Chung -- janet.chung@hklaw.com -- Holland and Knight LLP, John Andrew Canale -- john.canale@hklaw.com -- Holland and Knight LLP, Leah E. Capritta -- Leah.Capritta@hklaw.com -- Holland & Knight LLP, Thomas Drew Leland -- Thomas.Leland@hklaw.com -- Holland and Knight LLP & Vince Lee Farhat -- vince.farhat@hklaw.com -- Holland and Knight LLP. TOMSON, INC: Serrano Seeks Unpaid Overtime Premium for Purchasers ----------------------------------------------------------------- ISABEL SERRANO, and other similarly situated buyers, the Plaintiff, vs. TOMSON, INC.; TOMSON HOSPITALITY; and TOMMASO CARDANA, the Defendants, Filing No. 82371594 (Fla. 11th Jud. Cir, in and for Miami Dade Cty., Dec. 19, 2018), seeks to recover unpaid overtime wages, an additional equal amount as liquidated damages, and reasonable attorneys' fees and costs, pursuant to the Fair Labor Standards Act. According to the complaint, the Plaintiff performed work for Defendants as a non-exempt buyer from January 2018 through August 2018. The Plaintiff's duties and responsibilities included primarily, but were not limited to, completion of purchase orders and follow up with vendors. The Plaintiff performed numerous hours of overtime nearly each and every week for which Defendants failed to pay Plaintiff a proper overtime premium. The Defendants had or should have had full knowledge of all hours worked by Plaintiff, including those hours worked by Plaintiff in excess of 40 in a given week, the lawsuit says.[BN] Attorneys for Plaintiff: Gary S. Rosner, Esq. Joshua W. Brankamp, Esq. RITTER CHUSID, LLP 5850 Coral Ridge Drive, Suite 201 Coral Springs, FL 33076 Telephone: (954) 340-2200 Facsimile: (954) 340-2210 E-mail: grosner@ritterchusid.com jbrankamp@ritterchusid.com TRANS WORLD: Faces Class Action in NY for ADA Breach ---------------------------------------------------- Trans World Entertainment Corporation is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Trans World Entertainment Corporation doing business as: FYE, Defendant, Case No. 1:18-cv-12390 (S.D. N.Y., December 31, 2018). Trans World Entertainment Corporation is an American company which operates entertainment media retail stores across the United States of America. It currently operates just over 300 freestanding and shopping mall-based stores under several brand names, down from about 540 in August 2010.[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 TRUSTMARK: Faces Class Action Over Unfair Overdraft Fees -------------------------------------------------------- The Associated Press reports that two women say in a lawsuit that a Mississippi-based bank is unfairly charging overdraft fees. The Clarion Ledger reports Cryesha McDonald of Waynesboro and Chantal Lewis of Jackson sued Trustmark National Bank in December in federal court in Jackson. Lawyers representing the women seek approval for a class-action lawsuit representing all the bank's customers. They allege Trustmark also charges surprise fees for using automated teller machines on a different bank's network. The suit claims Trustmark is unjustly enriching itself and breaking its account agreement with customers. Similar lawsuits have been filed against other banks. The Jackson-based bank, with $13 billion in assets, didn't immediately respond to a request for comment. Trustmark holds the largest share of bank deposits in Mississippi, and also has offices in Alabama, Florida, Tennessee and Texas. [GN] TUXEDO JUNCTION: Tux Rental Firm Violates ADA, Says Suit -------------------------------------------------------- Tuxedo Junction Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. Tuxedo Junction Inc., Defendant, Case No. 1:18-cv-12389 (S.D. N.Y., December 31, 2018). Tuxedo Junction, Inc. provides tuxedos rental services for weddings and other events in the United States. It offers suits, vests, shirts, pants, ties, and shoes; and accessories, such as hats/scarves/gloves, stud and link sets, and pocket squares. The company offers products through stores and authorized distributors. Tuxedo Junction, Inc. was founded in 1969 and is based in Williamsville, 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 ULLIANCE INC: Court Denies Class Certification in Lucas ------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division, issued an Opinion and Order denying Plaintiffs' Motion for Class Certification for a class of similarly situated health professionals in the case captioned CAROL LUCAS, ET AL., Plaintiffs, v. ULLIANCE, INC., ET AL., Defendants. Case No. 15-10337. (E.D. Mich.). The Michigan legislature created the Health Professional Recovery Program (HPRP) to ensure that healthcare professionals find treatment for mental health and substance abuse problems that could pose a risk to themselves or the public. State law requires Michigan's Department of Licensing and Regulatory Affairs (LARA) to contract with a private entity to oversee the HPRP. LARA has entered into such a contract with Ulliance, Inc (Ulliance). The Plaintiffs are health professionals who were reported by Ulliance as noncompliant with the HPRP. LARA summarily suspended each plaintiff's license after such report. The Plaintiffs allege breach of contract against Ulliance. They allege violations of the Americans with Disabilities Act (ADA) and the Rehabilitation Act against LARA and Carole Engle, the former director of the Bureau of Healthcare Service ("BHCS"), in her official capacity. The Plaintiffs' proposed class consists of all persons who are, or were, participants in the HPRP program during the period of January 1, 2011 to the present. The Plaintiffs also seek to certify a sub-class of healthcare professionals who were or are HPRP participants and who received summary suspension of their license between January 1, 2011 and the present because of LARA's purported policy that all health professionals that are deemed noncompliant by HPRP shall be suspended. The Court finds that the Plaintiff has not made an adequate showing of commonality. There are significant differences between the four named plaintiffs as to who dropped out at which stage of the HPRP and therefore who was governed by which contract provisions. Only Plaintiff Lucas, for instance, was governed by the monitoring agreement, and, as the three other named plaintiffs demonstrate, not all of those who were suspended after dropping out of the HPRP took part in the monitoring agreement. None of the four named plaintiffs had asked for the list of evaluators, and there is no indication that the class members will have a common claim out of the list of evaluators, for the contract specifies that the list will be available upon request, not as a matter of course. Similarly, whether Ulliance was contractually obligated, or forbidden, from sharing participant's information with LARA will depend on the extent to which the information was pertinent to the licensee's ability to perform their work, and on the extent and type of the information shared. These are idiosyncratic and particularized questions that are ill-suited to a common answer. As to LARA, there can be no charge of a systematic discrimination against disabled individuals. Dr. Candilis has unequivocally denied that there exists a LARA policy that summarily suspends program participants for non-compliance alone. Non-compliant licensees are evaluated at multiple levels by LARA decision-makers, from analyst to manager to division director to board chair. The administrative complaint is filed along with the summary suspension to lay out the facts on which the decision-makers based their decision. Between September 2012 and December 2015, 292 nurses were reported as noncompliant, but 88 did not have their licenses summarily suspended. Plaintiffs do nothing to dispute Dr. Candilis' characterization of the summary suspension process as multilayered, particularized, and discretionary. Their motion therefore fails to demonstrate that LARA's license suspension procedures implicate "a common mode of exercising discretion. The Court also rules that the class most obviously lacks typicality because only one of the four named plaintiffs signed a monitoring agreement. Indeed, the class's inclusion of both those who signed monitoring agreements and those who were reported as non-compliant is problematic because each group will have different litigation goals based on its particular circumstances. There may be similarities between all HPRP participants, but this does not prove a collective nature to the challenged conduct. Further, although the parties dispute the percentage, the majority of HPRP participants have not left the program prematurely. The Plaintiffs are thus atypical. The subclass also lacks typicality. LARA suspended the licenses of HPRP non-compliant participants at different stages of their treatment and for different reasons. The licensees suffered from different alleged disabilities and held different licenses that implicated different public safety concerns. Some, such as three of the named plaintiffs, had their licenses reinstated upon administrative appeal. Others, such as Lucas, have yet to get their licenses back. A full-text copy of the District Court's December 6, 2018 Opinion and Order is available at https://tinyurl.com/ya6gazq5 from Leagle.com. Carol Lucas, Tara Vialpando & Kelly M Schultz, Plaintiffs, represented by Aaron J. Kemp, Chapman Law Group, Ronald W. Chapman, Chapman Law Group & Ronald William Chapman, II, Chapman Law Group. John/Mary Doe, Healthcare Professionals & Scott Sanders, Plaintiffs, represented by Aaron J. Kemp, Chapman Law Group & Ronald William Chapman, II, Chapman Law Group. Ulliance, Inc., Defendant, represented by Andrew M. Pauwels -- apauwels@honigman.com -- Honigman Miller Schwartz and Cohn, Eric J. Eggan, Honigman, Miller & I. W. Winsten, Honigman, Miller. Carole H. Engle & Department of Licensing and Regulatory Affairs, Defendants, represented by Bruce C. Johnson, Michigan Department of Attorney General, Erik A. Grill, Michigan Department of Attorney General Public Employment, Elections and Tort, John G. Fedynsky, State of Michigan Attorney General's Office Complex Litigation Division, Joshua O. Booth, Department of Attorney General & Neil Anthony Giovanatti, Michigan Department of Attorney General. ULTA SALON: Terry Suit Moved to Northern District of California --------------------------------------------------------------- A case, Quianna Terry, an individual, or behalf of herself and all others similarly situated and as a representative plaintiff, the Plaintiff, vs. Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware limited liability company, the Defendant, Case No. CIV 1803329, was removed from the Marin County Superior Court to the U.S. District Court for the Northern District of California (San Francisco). The Northern District of California Court Clerk assigned Case No. 3:18-cv-07683-JCS to the proceeding. The suit asserts claims over labor management relations. The case is assigned to the Hon. Judge Joseph C. Spero. Ulta Salon, Cosmetics & Fragrance, Inc. sells cosmetics, fragrances, skin and hair care products, appliances, and accessories.[BN] The Plaintiff appears pro se. Attorneys for Defendant: Blair Amelia Copple, Esq. Littler Mendelson, Esq. 333 Bush Street San Francisco, CA 94115 Telephone: (415) 399-8499 E-mail: bcopple@littler.com UNITED BY BLUE: Sued by Diaz for ADA Violation ---------------------------------------------- United By Blue Walnut Street LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Edwin Diaz, on behalf of himself and all others similarly situated, Plaintiff v. United By Blue Walnut Street LLC, Defendant, Case No. 1:18-cv-12388 (S.D. N.Y., December 31, 2018). United By Blue Walnut Street LLC manufactures and sells apparel and accessories for men and women. It offers boardshorts, graphic shirts, shirts and wovens, jackets and fleece, accessories, and grooming products for men; products for women, such as dresses, graphic shirts, shirts and wovens, jackets and fleece, accessories, and beauty products; messenger bags, tote bags, crossbody bags, backpacks, travel bags, and small goods; and outdoor products. The company operates a store and coffeehouse.[BN] The Plaintiff appears PRO SE. The Defendant 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 UNITED STATES: Court Certifies Iraq, Afghanistan Veterans Class --------------------------------------------------------------- In the case, STEPHEN M. KENNEDY, and ALICIA J. CARSON, individually and on behalf of all similarly situated persons, Plaintiffs, v. MARK ESPER, Secretary of the Army, Defendant, Case No. 16cv2010 (WWE) (D. Conn.), Judge Warren W. Eginton of the U.S. District Court for the District of Connecticut granted the Plaintiffs' motion for class certification. Plaintiffs Kennedy and Carson, veterans of the conflicts in Iraq and Afghanistan respectively, filed the action pursuant to the Administrative Procedure Act ("APA") and the Fifth Amendment due process clause, individually and on behalf of all similarly situated persons. Specifically, the Plaintiffs seek a class-wide injunction ordering the Army Discharge Review Board ("ADRB") reviewing less-than-Honorable discharges to follow the directive of the memorandum issued by the Secretary of Defense Hagel to give liberal consideration to diagnoses of post-traumatic stress disorder and similar mental health conditions, and records indicating symptoms of those conditions. Kennedy joined the Army in 2006 and served in Iraq in 2007 and 2008. After his combat deployment, Kennedy returned to the United States with severe PTSD and major depression that the Army failed to diagnose or treat adequately. On Dec. 8, 2016, he filed the original complaint in the case. In the complaint, Kennedy seeks to set aside the October 2015 ADRB decision and have the Court directs that his characterization of service be changed to Honorable. On April 17, 2017, Kennedy filed an amended complaint that joined Carson to the action. Carson was deployed to Afghanistan from February until November 2010. During her deployment, she earned a promotion in rank, an Army Commendation, and a Combat Action Badge. Upon her return to Connecticut, Carson informed her commander that she was experiencing symptoms of PTSD, and as result, she was referred to a medical provider for treatment. The Connecticut National Guard characterized her service as General, Under Honorable Conditions. In the complaint, Carson requests to have her discharge upgraded to Honorable and seeks to have the Army prevented from recouping any part of her unearned enlistment bonus. The Plaintiffs have moved for certification of a class pursuant to Federal Rule of Civil Procedure 23(b)(2) seeking equitable relief. Specifically, their proposed class consists of all Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era—the period between Oct. 7, 2001 to present who: (a) were discharged with a less-than Honorable service characterization (this includes General and Other than Honorable discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of PTSD or PTSD-related conditions or records documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration. After the Plaintiffs had filed a motion for class certification, the Defendant moved to dismiss or, in the alternative, voluntarily remand. On Sept. 19, 2017, the Court remanded both of the Plaintiffs' cases to the ADRB to revisit the original applications that are the subject of the litigation. In October 2017, the Connecticut Army National Guard granted Carson an upgrade to Honorable; accordingly, the ADRB did not render a decision with regard to Carson. In March 2018, the ADRB upgraded Kennedy's discharge characterization to Honorable. Among other things, Judge Eginton finds that an injunction to ensure that adherence to the directive of the Hagel Memo relevant to the review of less-than-Honorable discharges will provide relief to each class member as a whole. Accordingly, he finds that the case is appropriate for class certification under Federal Rule of Civil Procedure 23(b)(3). Judge Eginton granted the Plaintiffs' motion for certification. In accordance with Federal Rule of Civil Procedure 23(c)(1), he certified the class of all Army, Army Reserve, and Army National Guard veterans of the Iraq and Afghanistan era -- the period between Oct. 7, 2001 to present -- who (a) were discharged with a less-than Honorable service characterization (this includes General and Other than Honorable discharges from the Army, Army Reserve, and Army National Guard, but not Bad Conduct or Dishonorable discharges); (b) have not received discharge upgrades to Honorable; and (c) have diagnoses of PTSD or PTSD-related conditions or record documenting one or more symptoms of PTSD or PTSD-related conditions at the time of discharge attributable to their military service under the Hagel Memo standards of liberal and special consideration. The representatives will be the named Plaintiffs Stephen M. Kennedy and Alicia J. Carson, and the class counsel will be the Yale Law School's Veterans Legal Services Clinic and the law firm Jenner & Block LLP. The order may be altered or amended before final judgment consistent with Federal Rule of Civil Procedure 23(c)(1)(C). A full-text copy of the Court's Dec. 21, 2018 Memorandum of Decision is available at https://is.gd/6HKGQH from Leagle.com. Stephen M. Kennedy, on behalf of themselves and all others similarly situated & Alicia J. Carson, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Michael J. Wishnie -- michael.wishnie@ylsclinics.org -- Jerome N. Frank Legal Services, Jacob Tracer -- jtracer@jenner.com -- Jenner & Block LLP, Jeremy M. Creelan -- JCreelan@jenner.com -- Jenner & Block, LLP & Susan J. Kohlmann -- skohlmann@jenner.com -- Jenner & Block LLP. Robert Speer, Acting Secretary of the Army, Defendant, represented by David Christopher Nelson, U.S. Attorney's Office. UNITED STATES: Dry Bean Farmers Can't Supplement Admin Record ------------------------------------------------------------- In the case, GREGORY ACKERMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al, Defendant, Case No. 17-cv-11779 (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, denied the Plaintiffs' motion for supplementation of the administrative record. On June 5, 2017, a group of farmers and incorporated farms filed suit against a number of insurance companies, the United States Department of Agriculture, the Risk Management Agency, and the Federal Crop Insurance Corp. The Plaintiffs are dry bean farmers in Michigan, Minnesota, and North Dakota who have not received indemnity for crop insurance to which they believe they are entitled. The Plaintiffs are bringing the putative class action on behalf of all dry bean farmers in the Eastern District of Michigan (navy pea beans or small red beans). Each Plaintiff purchased Dry Bean Revenue Endorsement ("DRBE") crop insurance for their dry bean crops in 2015. The purpose of this insurance was to protect dry bean farmers against a market price decline. However, even though dry bean market prices declined greatly in 2015, no indemnity was paid to the Plaintiffs. In the present suit, the Plaintiffs seek a declaratory judgment invalidating certain administrative determinations related to the DBRE and ordering the Defendants to ensure that the Plaintiffs' losses are indemnified or their premiums reimbursed. On Nov. 22, 2017, the Federal Defendants and the Insurance Defendants both filed motions to dismiss. On March 8, 2018, the Plaintiffs filed a motion for leave to file a second amended complaint correcting the names of certain Plaintiffs. On April 18, 2018, the Court issued an order granting the motions to dismiss and also granting the motion for leave to file an amended complaint. In that order, the Court dismissed without prejudice all the Plaintiffs who do not farm or reside in the Eastern District of Michigan. It also dismissed all the Insurance Defendants after concluding that the Plaintiffs had not complied with the contractual requirements for bringing suit found within the insurance policies. On April 30, 2018, the Plaintiffs filed a second amended complaint. On May 2, 2018, the Plaintiffs filed a motion for reconsideration of the Court's order to dismiss. In the motion, they argued that the the Plaintiffs from outside the Eastern District of Michigan should have been transferred to the proper venue instead of dismissed. The motion was granted in part and the Minnesota Plaintiffs were transferred to the District of Minnesota. On Oct. 31, 2018, the Plaintiffs filed a motion for supplementation of the administrative record. They contend that certain information was excluded from the administrative record that is necessary for the Court to make a determination as whether the Defendants acted arbitrarily and capriciously. The Plaintiffs have now filed a motion for supplementation of the administrative record. They request that the following material be added to the record: (i) the 2015 sales records from every Michigan dry bean processor on which the Defendants relied, or on which they purported to rely; (ii) any and all communications between the Defendants and dry bean processors from Sept. 1, 2015 through Dec. 15, 2015; and (iii) any notes or other records possessed by Jonathan Gittlein on which Defendants relied in determining market prices to be published or not, in the Dry Bean Market News. The Plaintiffs further request that additional discovery be permitted to supplement the record with the following: (a) as an alternative to (i), if the sales records are not in the possession of the Defendants, the Plaintiffs request leave of the Court to subpoena 015 sales records of the dry bean processors on which the Defendants should have relied to establish the harvest prices in 2015; (b) the Plaintiffs also request leave of the Court to serve Requests to Admit on the Defendants regarding the Bean Market News and the decision-making process which led to the non-publication of market prices for beans at issue during the relevant time period; (c) as an alternative or supplement to (v), the Plaintiffs request leave to depose Jonathan Gittlein, of Greeley, Colorado, an employee of Defendant United States Department of Agriculture tasked with compiling the Bean Market News, on which the harvest price in this matter is based; and (d) the Plaintiffs also request leave to depose Alex Offerdahl of Watts & Associates, who was instrumental in drafting, proposing, and maintaining the Dry Bean Revenue Endorsement. Judge Ludington denied without prejudice the Plaintiffs' motions to complete and/or supplement the administrative record. He finds that the 2015 sales records from every Michigan dry bean processor on which the Defendants relied, or on which they purported to rely would not assist the Court in deciding the two counts presented in the Plaintiffs' second amended complaint; (ii) the 2015 records might affect the consequences of the Defendants' actions, but they do not address whether Defendants were arbitrary and capricious when they approved the DBRE back in 2012 and 2013; (iii) there is no reason to supplement the administrative record with additional information concerning the Bean Market News from 2015; (iv) it is unnecessary at least at this stage in the development of the case to supplement the administrative record with the requested communications related to the 2015 Bean Market News; and (v) Alex Offerdahl of Watts and Associates' testimony would contribute little to what is already present in the administrative record on how the DBRE harvest price system was supposed to work. Accordingly, the Judge denied without prejudice the Plaintiffs' motions to complete and/or supplement the administrative record. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/cCJgXa from Leagle.com. Ackerman Brothers Farms, LLC, Back Road Farming, Inc., Daniel E. Balcer, Becker Farms, LLC, Randy Beckering, Bernia & Sons Farms, Inc., Bernia Family Farms, Inc., Brian Brandenburg, Gary Bulzan, D. T. Rouech Farms, LLC, Todd W. Draggoo, Beatrice Elenbaum, French Farms, Harry Gaiser, Jr., Jason Gaiser, Goebel Farms, Inc., James Gremel, Gro Green Acres, Gruehn Farms, Inc., Gruehn Acre Farms, Jason Haag, Terry Haag, Tom Haag, Scott Hawken, John Schluckebier Farms, Inc., Fred Karg, Kurtis Kreger, Timothy Kubacki, Kundinger Farms, Inc., Laracha Farms, LLC, Matthew Lutz, R & J Farms, Inc., Robert Rathje, Rayl Farms, Inc., Richmond Brothers Farms, LLC, Rodammer Farms, Inc., Russell Transport, Inc., Daniel Sahr, Leasly Schaper, Gregory Schian, Jeffrey Schian, John Schian, Brad Singer, Stacer Farms Ltd. Partnership, Constance Kreger, Mark Stambaugh, Donald Stecker, Vern Stephen, Lucas M. Stockmeyer, Robert Stockmeyer, Kendall Stoeckle, Stoutenburg Farms, Three R Farms, Inc., Vader and Son, LLC, Vader Farms, Inc., Vanhoost Farms, Inc., Glenn L. Vogel, Joseph Vohwinkle, Jim Wilkinson, Terry Wood, Don Zaremba, Zimmer Farms, Inc. & Ackerman & Son LLC, Plaintiffs, represented by John D. Tallman. United States Department of Agriculture, Risk Management Agency & Federal Crop Insurance Corporation, Defendants, represented by Sarah Pring Karpinen, U.S. Attorney's Office. UNIVAR USA: Njoku Seeks Unpaid Overtime for Supply Planners ----------------------------------------------------------- PEACE NJOKU, individually and on behalf of all others similarly situated, Plaintiffs, vs. UNIVAR USA INC., the Defendant, Case No. 1:18-cv-05845-SCJ (N.D. Ga., Dec., 21, 2018), seeks to recover unpaid and incorrectly paid wages for all hours worked in a workweek, unpaid overtime, liquidated damages, interest, and attorneys' fees and costs, pursuant to the Fair Labor Standards Act. According to the complaint, the case is a collective action brought by Plaintiff challenging acts committed by Defendant against Plaintiff and those similarly situated, which amount to violations of federal wage and hour laws. The Defendant employed Plaintiff and all those similarly situated as Supply Planners, Senior Supply Planners, and Supply Planner Leads at Defendant's various Supply Facilities located throughout the United States. Supply Planners' job duties included ordering supplies and materials from third party vendors for the purposes of stocking Defendant's warehouse to later fulfill Defendant's customer's orders. Defendant did not permit SPs to exercise their independent discretion in performing these duties. To fully perform their job duties, SPs worked in excess of 40 hours per workweek. The Defendant, however, did not compensate SPs with an overtime premium for all hours worked in excess of 40 hours per workweek. Despite Defendant's internal classification of SPs as exempt employees, SPs were only performing the duties of non-exempt employees and were not permitted to exercise discretion and independent judgment pertaining to matters of significance. The Plaintiffs were allegedly not paid the statutorily required rate of one-and-one-half times their hourly rate for all hours worked in excess of 40 per workweek, the lawsuit says. Univar is a global chemical and ingredients distributor and provider of value-added services who works with leading suppliers worldwide. The company was founded in 1924 and as of 2016, it employed approximately 8,700 employees worldwide and generated net sales of $8.073 billion in 2016.[BN] Attorneys for Plaintiff: Beth A. Moeller, Esq. Tracey T. Barbaree, Esq. MOELLER BARBAREE LLP 1100 Peachtree Street, N.E., Suite 200 Atlanta, GA 30309 Telephone: (404) 692-5543 E-mail: bmoeller@moellerbarbaree.com tbarbaree@moellerbarbaree.com - and - James A. Vagnini, Esq. Robert R. Barravecchio, Esq. Alexander M. White, Esq. VALLI KANE & VAGNINI LLP 600 Old Country Road, Suite 519 Garden City, NY 11530 Telephone: (516) 203-7180 Facsimile: (516) 706-0248 E-mail: jvagnini@vkvlawyers.com rrb@vkvlawyers.com awhite@vkvlawyers.com - and - Jay D. Ellwanger, Esq. Ellwanger Law LLLP 8310-1 N. Capital of Texas Hwy., Suite 190 Austin, TX 78731 Telephone: (737) 808-2262 E-mail: jellwanger@equalrights.law WAL-MART STORES: Settlement in Securities Suit Has Prelim Court OK ------------------------------------------------------------------ The United States District Court for the Western District of Arkansas, Fayetteville Division, issued an Order granting Lead Plaintiff's Motion for Preliminary Approval of Settlement Agreement in the securities class action captioned CITY OF PONTIAC GENERAL EMPLOYEES' RETIREMENT SYSTEM, Individually and on Behalf of All Others SimilarlySituated, Plaintiff, v. WAL-MART STORES, INC. and MICHAEL T. DUKE, Defendants. Case No. 5:12-cv-5162. (W.D. Ark.). A fairness hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure is hereby scheduled to be held on April 4, 2019, at 10:00 a.m. CT, at the United States Courthouse in Hot Springs, Arkansas. The Court may adjourn the Settlement Hearing without further notice to the Class and reserves the right to approve the Settlement, including, if appropriate, with any such modifications as may be agreed to by the parties without further notice to the Class. The Court further reserves the right to enter its Judgment approving the Settlement and dismissing the Litigation on the merits and with prejudice regardless of whether it has approved the Plan of Allocation or awarded attorneys' fees and expenses. The Court approves the appointment of Gilardi & Co. LLC as the Claims Administrator to supervise and administer the notice procedure in connection with the proposed Settlement as well as the processing of Proofs of Claim. A full-text copy of the District Court's December 6, 2018 Order is available at https://tinyurl.com/ybcltdzj from Leagle.com. City of Pontiac General Employees' Retirement System, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Austin P. Brane -- abrane@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Danielle Myers -- danim@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Darren J. Robbins -- darrenr@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, pro hac vice, Debra J. Wyman – debraw@rgrdlaw.com -- Robbins Geller Rudman Dowd LLP, Ellen Gusikoff Stewart -- elleng@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Jason A. Forge, Robbins Geller Rudman Dowd LLP, pro hac vice, Michael Albert, Robbins Geller Rudman Dowd LLP, Scott H. Saham, Robbins Geller Rudman Dowd LLP, Cynthia J. Billings -- cbillings@swappc.com -- Sullivan Ward Asher Patton PC, pro hac vice, Douglas S. Johnston, Jr. -- djohnston@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC, pro hac vice, Geoffrey P. Culbertson -- gpc@texarkanalaw.com -- Patton Tidwell & Culbertson, LLP, George Edward Barrett -- gbarrett@barrettjohnston.com -- Barrett Johnston Martin & Garrison, LLC, pro hac vice, Jerry E. Martin -- jmartin@barrettjohnston.com -- Barrett Johnston Martin Garrison LLC & Timothy L. Miles -- tmiles@barrettjohnston.com -- BARRETT JOHNSTON MARTIN & GARRISON, LLC, pro hac vice. Wal-Mart Stores, Inc., Defendant, represented by Andrew R. Gray -- andrew.gray@lw.com -- Latham Watkins LLP, Brian T. Glennon -- brian.glennon@lw.com -- Latham Watkins LLP, Brian H. Ratcliff -- brian@ppgmrlaw.com -- PPGMR Law, PLLC, Colleen C. Smith -- colleen.smith@lw.com -- Latham Watkins LLP, Jess L. Askew, III -- Jess.Askew@KutakRock.com -- KUTAK ROCK LLP, Marcy C. Priedeman -- marcy.priedeman@lw.com -- Latham Watkins LLP,Nicholas J. Siciliano -- nicholas.siciliano@lw.com -- Latham Watkins LLP, Peter A. Wald -- peter.wald@lw.com -- Latham Watkins LLP, Sarah A. Tomkowiak -- sarah.tomkowiak@lw.com -- Latham Watkins LLP, pro hac vice, Sean M. Berkowitz -- sean.berkowitz@lw.com -- Latham & Watkins LLP, pro hac vice & Teresa M. Wineland -Teresa.Wineland@KutakRock.com -- Kutak Rock LLP. WALLACE RUSH: Amended Bid to Certify FLSA Class Denied as Moot -------------------------------------------------------------- In the class action lawsuit captioned DEMARCUS THOMAS, the Plaintiff, vs. WALLACE, RUSH, SCHMIDT, INC., the Defendants, Case No. 3:16-cv-00572-BAJ-RLB (M.D. La.), the Hon. Judge Brian A. Jackson entered an order: 1. denying as moot amended motion to conditionally certify FLSA collective action, motion for partial dismissal of second amended complaint, motion to strike second amended complaint, and motion for leave for file reply of Plaintiffs opposition to motion for partial dismissal; 2. directing Plaintiff to file a second amended motion for conditional certification, if he seeks to conditionally certify this action as a collective action under 29 U.S.C. section 216(b); and 3. directing Defendant to re-urge its motion in response to Plaintiffs Third Amended Collective Action Complaint, Class Action Complaint, and Demand for Jury Trial within the period provided by Federal Rule of Civil Procedure 2(a).[CC] WALMART INC: Feb. 21 Hearing on Bid to Dismiss Cappello Suit ------------------------------------------------------------ In the case, ALICIA CAPPELLO and CATHERINE MOSQUEDA, for themselves and all others similarly situated, Plaintiffs, v. WALMART, INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants, Case No. 4:18-cv-06678-RS (N.D. Cal.), Judge Richard Seeborg of the U.S. District Court for the Northern District of California, Oakland Division, has issued a stipulated order extending the Plaintiffs' time to respond to the Defendant's Motion to Dismiss and related papers, and setting hearing date. The Plaintiffs filed the putative class action lawsuit against Walmart on Oct. 4, 2018, in the Superior Court of the State of California for the County of Alameda, which Walmart removed on Nov. 2, 2018. The action was reassigned to Judge Saundra Brown Armstrong on Nov. 16, 2018, resetting all pending hearing dates before the prior-assigned Magistrate Judge Laurel Beeler. The Parties stipulated to extend Walmart's time to respond to the Complaint on Nov. 6, 2018, granting Walmart until Dec. 14, 2018 to respond. Walmart filed its Notice of Motion and Motion to Dismiss, and its Request for Judicial Notice regarding its Motion to Dismiss on Dec. 14, 2018, and thereafter submitted a stipulation and proposed order providing for a more accommodating briefing schedule for that motion. Judge Armstrong thereafter recused herself and the matter was reassigned to Judge Seeborg, vacating all dates. The Parties stipulated under Civil Local Rule 6-1(b) to a briefing schedule for Walmart's Motion. The briefing schedule will be completed two weeks before the agreed upon hearing date. The Court has set its initial Case Management Conference for Jan. 31, 219 at 10 a.m., but no other dates are yet set. The modification would not affect the case schedule as none has been entered. The Parties stipulated and agreed, and Judge Seeborg granted, to set the following deadlines: (i) Jan. 17, 2019 - the Plaintiffs' deadline to respond to Walmart's Motion; (ii) Feb. 7, 2019 - Walmart's Reply due; and (iii) Feb. 21, 2019 at 1:30 - hearing date for the Motion. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/qkSZQG from Leagle.com. Alicia Cappello & Catherine Mosqueda, Plaintiffs, represented by Ray Edwin Gallo -- rgallo@gallo.law -- Gallo LLP & Dominic R. Valerian -- dvalerian@gallo.law -- Gallo LLP. Walmart Inc., Defendant, represented by Michael Graham Rhodes -- rhodesmg@cooley.com -- Cooley LLP, Kyle Christopher Wong -- kwong@cooley.com -- Cooley LLP, Maxwell Evan Alderman -- malderman@cooley.com -- Cooley LLP & Whitty Somvichian -- wsomvichian@cooley.com -- Cooley LLP. WASHINGTON: Batiste's Bid for Summary Judgment in Wilcox Suit OKd ----------------------------------------------------------------- In the case, JADE WILCOX, Plaintiff, v. JOHN BATISTE and JOHN DOES 1-300, Defendant, Case No. 2:17-CV-122-RMP (E.D. Wash.), Judge Rosanna Malouf Peterson of the U.S. District Court for the Eastern District of Washington granted Batiste's Motion for Summary Judgment. In the state of Washington, the Washington State Patrol ("WSP") creates Police Traffic Collision Reports ("PTCRs") when responding to the scene of a car accident. The PTCRs include, among other things, the name, address, driver's license number, telephone number, and other identifying information about the drivers involved in the car accidents, as well as the names and information of any witness to the accident. The WSP creates the PTCRs using a program called SECTOR. SECTOR is a program installed on a WSP officer's computer that works by scanning the bar code on a driver's license or motor vehicle registration to auto-populate the information into the PTCR. The WSP allows public access to PTCRs on the Washington Requests for Electronic Collision Reports website. This website allows members of the public to search through PTCRs and request access to them for a fee of $10.50 for each collision report. If the requestor was not an involved party or a representative of an involved party, the WSP would redact birth date and driver's license numbers from the report, but otherwise would leave uncensored the rest of the document, including the parties' names, addresses, and telephone numbers. Ms. Wilcox was involved in a car accident on July 9, 2016. Five days later, she received a letter from a law firm in Spokane soliciting her business for its automobile injury practice. The letter explained that the law firm obtained Ms. Wilcox's information from the PTCR public records request process. The Collision Records Manager for the WSP later confirmed that the WSP disclosed Ms. Wilcox's July 9, 2016, PTCR to the law firm pursuant to a request on the Washington Requests for Electronic Collision Report website. The WSP redacted Ms. Wilcox's birth date and driver's license number, but otherwise left Ms. Wilcox's name, address, and telephone number uncensored. Following these events, Ms. Wilcox filed the class action complaint against Chief Batiste, the head of the WSP, and 300 John Does. She alleged that Chief Batiste's policies with the WSP violated the Driver's Privacy Protection Act ("DPPA"), because he knowingly disclosed personal information from motor vehicle records of Ms. Wilcox and others by providing uncensored PTCRs to third parties. She also alleged that Chief Batiste violated her and others' constitutional right to privacy and committed the common law tort of invasion of privacy. Ms. Wilcox later re-alleged these claims in an amended complaint. Ms. Wilcox seeks monetary damages and permanent injunctive relief. Ms. Wilcox also moved for a preliminary injunction. In her motion for a preliminary injunction, she argued that Chief Batiste violated the DPPA and that she and the class would suffer irreparable harm if the disclosure policies were not enjoined because their personal information could be dangerously disseminated. Chief Batiste opposed the motion. Following a hearing, the Court instituted a preliminary injunction, finding that Ms. Wilcox and the putative class were likely to succeed on the merits, that they would suffer irreparable harm without an injunction, and that the balance of equities and the public interest weighed in favor of granting the injunction. It ordered Chief Batiste to redact addresses, driver's license numbers, dates of birth, information about sex, height, and weight from PTCRs before distribution to third parties. Chief Batiste now moves the Court for summary judgment on all of Ms. Wilcox's and the putative class' claims. He argues that he is entitled to Eleventh Amendment immunity and qualified immunity. Additionally, he argues that the three claims all fail on the merits. Judge Peterson finds that Chief Batiste is entitled to Eleventh Amendment immunity in his official capacity and qualified immunity in his individual capacity for any violations of the DPPA that may have occurred. Ms. Wilcox abandoned her other claims. Additionally, she failed to identify and prosecute the John Doe Defendants. Therefore, the Judge will dismiss all claims against Chief Batiste with prejudice, all claims against the John Does without prejudice, and dissolve the preliminary injunction. Accordingly, she granted the Defendant's Motion for Summary Judgment, (ii) dismissed with prejudice Ms. Wilcox's claims against Chief Batiste in his official and personal capacities; and (iii) dismissed without prejudice Ms. Wilcox's claims against the 300 John Does. The Judgment is entered in favor of the Defendants. Upon entry of judgment, the Preliminary Injunction imposed by the Court is dissolved. The District Court Clerk is directed to enter the Order, provide copies to the counsel, and close the case. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/dCvrli from Leagle.com. Jade Wilcox, on behalf of herself and all others similarly situated, Plaintiff, represented by James Richard Sweetser, Sweetser Law Office, Thomas G. Jarrard -- TJARRARD@att.net -- Law Office of Thomas G. Jarrard & Marcus Sweetser, Sweetser Law Office. John Batiste, Chief of Washington State Patrol, Defendant, represented by Shelley Anne Williams, Washington State Attorney General's Office. WECONNECT INC: Court Grants Conditional Certification in Goplin --------------------------------------------------------------- The United States District Court for the Western District of Wisconsin issued an Opinion and Order granting Plaintiffs' motion for conditional certification of a class of similarly-situated current and former satellite technicians in the case captioned BROOKS GOPLIN, Plaintiff, v. WECONNECT, INC., Defendant. No. 17-cv-773-jdp. (W.D. Wis.). Plaintiff Brooks Goplin has sued defendant WeConnect, Inc. for violations of the Fair Labor Standards Act (FLSA) and Wisconsin wage and hour laws. Initially, the plaintiff moves for conditional certification, at which point he need only make a modest factual showing sufficient to demonstrate that he and potential plaintiffs together with victims of a common policy or plan that violated the law. The Court finds that Goplin has made the modest factual showing necessary for conditional certification. He adduces evidence that he and other putative class members were paid only from the time they arrived at their first client site to the time they finished at their last client site. They received no compensation for the time spent performing pre- and post-shift tasks, such as loading and unloading equipment from their vehicles at the beginning of every workday and traveling to and from customers' homes. As a result, technicians were systematically denied the overtime wages that they were entitled to under the FLSA. WeConnect challenges the sufficiency of Goplin's evidence that he is similarly situated to others in the putative class of technicians on four fact-specific grounds. First, it contends that Goplin and the other opt-in plaintiffs' practice of storing company equipment in their homes and loading it into and out of their vans every day violated the company's official written policy. WeConnect argues that this precludes a showing of similarly situatedness because any alleged FLSA violations would only have occurred by dint of individual technicians' failure to follow company policy. Goplin, Oquist, and Bobb acknowledged that this policy existed on paper, but testified that their vans were only large enough to hold approximately one day's worth of supplies. They allege that their managers knew about and encouraged their practice of storing excess company equipment in their homes, because it enabled technicians to wait longer in between restocking trips to their territory offices. Second, WeConnect highlights various factual distinctions between Goplin and other members of the putative collective that it says should preclude conditional certification. It notes that Goplin was an hourly employee, whereas the vast majority of other technicians received unit pay. This distinction might be relevant for damage calculation purposes, but it does not preclude conditional certification. Unit pay employees are also entitled to overtime wages. And WeConnect adduces no evidence that the time reporting policies Goplin challenges varied based on compensation scheme. Third, the court rejects WeConnect's argument that Goplin is not sufficiently similarly situated because he was a rural technician rather than a local technician. WeConnect may be correct in suggesting that local technicians generally had less need to store company equipment in their homes by virtue of their ability to return to their territory offices to restock with greater frequency. But this distinction ultimately goes to damages, not the propriety of conditional certification. Fourth, WeConnect notes that Goplin testified about his regular practice of driving his daughters to daycare in the mornings in between loading up his van and driving to his first customer site. WeConnect suggests that this undermines his continuous workday theory such that conditional certification would be inappropriate. But these are precisely the sort of fine-grained factual distinctions that are the more appropriately addressed at decertification. None of these fact-specific distinctions are sufficient to preclude conditional certification. WeConnect contends that Goplin is not similarly situated to other members of the proposed collective because his arbitration agreement is not representative of other members of the collective. Although Goplin's arbitration agreement has been deemed unenforceable by this court, other technicians signed different versions of the agreement that do not suffer from the same defects. This issue raises a closer question about the propriety of conditional certification. There are three different versions of the arbitration agreement in issue here. The first is the version signed by Goplin and the opt-in plaintiffs, which WeConnect says was signed by a total of 786 technicians between February 2013 and October 2017. WeConnect contends that the vast majority of these agreements were executed before AEI became WeConnect in August 2016. The second version of the arbitration agreement went into effect on November of 2017, when WeConnect updated its template to replace all references to AEI with WeConnect, Inc. This second version of the agreement was in use between November 2017 and June 2018 and was signed by approximately 145 technicians. WeConnect contends that all copies of this agreement were countersigned by the company, but there are no executed examples of it in the record. Goplin points out that other district courts have conditionally certified collective actions and even certified classes under Rule 23 despite the presence of potentially enforceable arbitration agreements among putative class members. In light of these considerations, the court will conditionally certify the class now, but will order the parties to address the arbitration issue in their decertification and Rule 23 briefing. Specifically, the parties should develop the record as to whether the three versions of the arbitration agreement signed by opt-in plaintiffs are enforceable. The parties should focus their discussion on the various categories of arbitration agreement at issue, which should not entail individualized analysis of each opt-in plaintiff. If the court determines that one or more versions of the agreement are enforceable, or that adjudicating their enforceability will require substantial individualized review, that will militate in favor of decertifying the collective and allowing only Goplin and the subclass of technicians without enforceable agreements to move forward assuming that that subclass otherwise meets the requirements necessary to proceed collectively. Scope of conditionally certified class The court grants Goplin's motion to conditionally certify and send court-authorized notice to a class consisting of all technicians who worked for WeConnect on or after March 6, 2015 three years from the date that Goplin filed his conditional certification motion. WeConnect argues that, in light of the prior briefing on Goplin's arbitration agreement, Goplin should be precluded by judicial estoppel from now taking the position that AEI and WeConnect are the same entity for the purposes of this lawsuit. It asks the court to cabin the opt-in class by starting the class period on August 18, 2016, the date that AEI became WeConnect. But Goplin has never, in fact, taken the position that AEI and WeConnect were different companies. Rather, Goplin raised questions about the enforceability of Goplin's arbitration agreement, which WeConnect then failed adequately to rebut. WeConnect's failure to carry its own burden is not a basis for judicial estoppel. Plaintiff Brooks Goplin's motion for conditional certification and court-authorized notice, is GRANTED. A full-text copy of the District Court's December 6, 2018 Opinion and Order is available at https://tinyurl.com/yc267jhs from Leagle.com. Brooks Goplin, Plaintiff, represented by Caitlin Marie Madden, Hawks Quindel, S.C. & David C. Zoeller, Hawks Quindel, S.C. WeConnect, Inc., Defendant, represented by Kurt A. Goehre, Liebmann, Conway, Olejniczak & Jerry, S.C., Ralph George Burnett, Liebmann, Conway, Olejniczak & Jerry, S.C. & Ross William Townsend, Conway, Olejniczak & Jerry, S.C. WeConnect, Inc., Counter Claimant, represented by Kurt A. Goehre, Liebmann, Conway, Olejniczak & Jerry, S.C. & Ross William Townsend, Conway, Olejniczak & Jerry, S.C. Brooks Goplin, Counter Defendant, represented by Caitlin Marie Madden, Hawks Quindel, S.C. &David C. Zoeller, Hawks Quindel, S.C. WELLS FARGO: Pieterson's Class Certification Bid Underway --------------------------------------------------------- In the class action lawsuit captioned ALBERT PIETERSON, on behalf of himself and all others similarly situated, the Plaintiff, vs. WELLS FARGO BANK, N.A., the Defendant, Case No. 3:17-cv-02306-EDL (N.D. Cal.), a case management conference was held before Magistrate Judge Elizabeth D. Laporte on Jan. 7, 2019. A discussion was held regarding the class certification motion and the settlement that occurred in a related case from the Northern District of Illinois. Prior to this, Wells Fargo on Jan. 2 filed an administrative motion to present expert testimony and evidence at the Feb. 5, 2019 hearing on Plaintiff's Motion to Certify Class and Wells Fargo's Daubert motion.[BN] Attorneys for Plaintiff: Jonathan D. Selbin, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9692 E-mail: jselbin@lchb.com WENDY'S INTERNATIONAL: Affected by Data Breach Class-Action Lawsuit ------------------------------------------------------------------- Patrick Anderson, writing for Sioux Falls Argus Leader, reports that customers of two Sioux Falls Wendy's restaurants might qualify for a class-action lawsuit that resulted from a company-wide data breach in the winter of 2016. The restaurant chain was the target of a cyber attack, which targeted the point-of-sale software used by some of its franchisee-owned locations. None of the restaurants owned by the larger chain were affected. The two affected locations in Sioux Falls are the Wendy's at 400 S. Lyons Ave. and 708 S. Minnesota Ave. Local franchisee The Boyle Cos. did not immediately respond to a request for comment on December 5. The third-party data breach exposed customer financial data to malware. Victims who used their credit card at a Wendy's during the specified period -- from Oct. 29, 2015 until Feb. 14, 2016 -- qualify for a cash payment of up to $5,000. Wendy's investigated their systems after the attack and in 2016 released a statement saying it targeted the names of cardholders, as well as the numbers and expiration dates of both credit and debit cards used at the affected stores. A class-action suit was filed that same year and Wendy's agreed to a $3.4 million settlement in October without admitting fault. Victims of the attack will have to wait to receive their money from the settlement. Courts have until Feb. 25, 2019 to approve the settlement and appeals are also possible. More information and claim forms can be filled out at kccsecure.com/wendysdatabreachsettlement/Claimant [GN] WEST COAST SELF-STORAGE: Ruby Hunter Sues over Unfair Rental Fees ----------------------------------------------------------------- RUBY HUNTER, an individual and all other Plaintiff similarly situated, the Plaintiff, vs. WEST COAST SELF-STORAGE GROUP, LLC dba WEST COAST SELF-STORAGE COST A MESA, and DOES 1 through 100, inclusive, the Defendants, Case No. 01038744 (Cal. Super. Ct., Dec. 18, 2018), alleges that the Defendants offered, represented and enforced terms and conditions in their rental agreements that were unlawful, fraudulent on its face in violation of the California Self-Storage Facility Act. The Plaintiff were charged by the Defendants unfair renting fees. The Defendants are the owners and operators of "self-service storage facilities" in the State of California as defined by Business and Professions Code section 21701(a). "Self-service storage facilities" are subject to the regulations of the California Self-Service Storage Facilities Act. According to the complaint, from on or about April 11, 2018 to December 18, 2018, the Defendant leased real property to the Plaintiff for the purpose of safely and securely storing her valuable personal possessions.[BN] The Plaintiff appears pro se. WHOLE FOODS: Court Allows Filing of 4th Amended Kellman Suit ------------------------------------------------------------ In the case, SHOSHA KELLMAN, on behalf of herself and all others similarly situated, Plaintiff, v. WHOLE FOODS MARKET, INC., et al., Defendants, Case No. 17-cv-06584-LB (N.D. Cal.), Magistrate Judge Laurel Beeler of the U.S. District Court for the Northern District of California, San Francisco Division, (i) denied without prejudice the Defendants' motion to dismiss in part the third amended complaint ("3AC") as moot; (ii) granted Ms. Kellman's motion for leave to amend and file a fourth amended complaint ("4AC"); and (iii) granted the Defendants' request that several of the exhibits to the parties' motion-to-dismiss and motion-to-amend briefing and the discussions of those exhibits in the briefs be sealed on the ground that they contain Whole Foods trade secrets. Ms. Kellman brings the putative consumer class action on behalf of two putative classes: one of all U.S. residents who purchased these products, and one of all California residents who bought these products. Her 3AC names as the Defendants (1) Whole Foods Market, Inc. ("WFMI"), the parent Whole Foods holding company, (2) Whole Foods Market California, Inc., a subsidiary that operates Whole Foods retail stores in northern California, (3) Whole Foods Market Services, Inc., a subsidiary that allegedly provides various administrative services to other Whole Foods entities, and (4) Whole Foods Market Distribution, Inc., a subsidiary that allegedly distributes Whole Foods's private-label products to its retail stores.6 WFMI, WFM Services, and WFM Distribution moved to dismiss the claims against them for lack of personal jurisdiction, and all the four Defendants moved to dismiss Ms. Kellman's claims on behalf of the Putative Nationwide Class. She alleges that Whole Foods has been mislabeling certain of its private-label household and body-care products as "hypoallergenic" despite the fact that they contain known allergens. The Court permitted Ms. Kellman to take certain jurisdictional discovery of the Defendants. Following jurisdictional discovery, Ms. Kellman filed an opposition to the Defendants' motion to dismiss. She attached as exhibits several documents that she received in discovery that the Defendants had marked "confidential" or "highly confidential" pursuant to the protective order in the case. Pursuant to the protective order, Ms. Kellman filed an administrative motion to seal those exhibits and portions of her opposition brief that discussed those exhibits. The Defendants filed a reply in support of their motion to dismiss. Their cited to several of Ms. Kellman's exhibits that were subject to the pending motion to seal. The Defendants filed an administrative motion to seal portions of their reply brief that discussed the exhibits. The Court granted in part and provisionally denied the motions to seal. With respect to the denial, it held that the Defendants had not sufficiently shown that the materials to be sealed were trade secrets or otherwise entitled to protection under the law and that the proposed sealing and redactions were not narrowly tailored. The Court allowed the Defendants to file a supplemental declaration showing why the materials should be sealed, narrowly tailored to the specific portions of the materials that they believe should be sealed. They filed a supplemental declaration. In addition to filing an opposition to the Defendants' motion to dismiss, Ms. Kellman filed a motion for leave to file a 4AC. Her proposed 4AC dismisses WFMI as a Defendant and adds a new Defendant, WFM Private Label, L.P., in addition to WFM California, WFM Services, and WFM Distribution. The Defendants oppose Ms. Kellman's motion to amend, arguing that (1) the Court lacks personal jurisdiction over WFM Services and WFM Distribution and that, if Ms. Kellman were allowed to amend her complaint, those Defendants would have to challenge personal jurisdiction again, and (2) Ms. Kellman's 4AC attaches as exhibits confidential internal Whole Foods documents and that, if the Court were to grant their motion to dismiss WFM Services and WFM Distribution now, there would be no need for those documents to be attached to the 4AC. With respect to Ms. Kellman's motion to amend, Magistrate Judge Beeler finds that there is at most a weak showing of prejudice to the Defendants. The Defendants raise two arguments: (1) having to file a new motion to dismiss and (2) that the proposed 4AC attaches as exhibits documents that the defendants assert are confidential. Regarding the first issue, she says while the Defendants may have to file a new motion to dismiss the 4AC, many if not all of their arguments with respect to WFM Services and WFM Distribution will be the same as the ones they advanced with respect to the 3AC, so the prejudice from having to file a new motion is limited. Regarding the second issue, the documents at issue have been filed on the docket already, so the confidentiality issue is in play in any event. The Magistrate is granting the narrowed motions to seal, which addresses the Defendants' confidentiality concerns. While Ms. Kellman has previously amended her complaint several times, there is no showing of bad faith or undue delay on her part. The Magistrate considered the Defendants' futility arguments but to the extent that they exist, they can be addressed through future motions or in a case-management context. Considering the Court's knowledge of the entire case and taking all factors into consideration, she finds good cause and will grant Ms. Kellman's motion to file a 4AC. As to the Defendants' motion to seal, the Magistrate finds that the Defendants have shown good cause to seal the portions of the exhibits, and the discussions of those exhibits in the parties' filings, as narrowed in their supplemental statement. While the Defendants' original declarations in support of sealing did not narrowly tailor their sealing requests and did not sufficiently establish that the materials sought to be sealed were trade secrets or otherwise entitled to protection under the law, their supplemental statement more narrowly tailors their sealing requests and better establishes those materials as trade secrets. The Magistrate finds that the Defendants have shown good cause, or in the alternative, compelling reasons, to seal that paragraph and portions of the exhibits, as narrowed in the Defendants' supplemental statement. Based on the foregoing, Magistrate Judge Beeer (1) granted Ms. Kellman's motion for leave to amend and file a 4AC and (2) granted the motions to seal as narrowed by the Defendants' supplemental statement of Nov. 19, 2018. She denied without prejudice the Defendants' motion to dismiss in part the 3AC as moot. The Defendants may re-raise their arguments (if they choose) in a motion to dismiss the 4AC. A full-text copy of the Court's Dec. 21, 2018 Order is available at https://is.gd/rVvN2e from Leagle.com. Shosha Kellman & Abigail Starr, Plaintiffs, represented by David A. Searles, Francis & Mailman, James A. Francis, Francis and Mailman, P.C., Yvette Y. Golan -- info@tgfirm.com -- The Golan Firm & Stephanie R. Tatar -- Stephanie@thetatarlawfirm.com -- Tatar Law Firm, APC. Whole Foods Market, Inc., Defendant, represented by Brian R. Blackman -- bblackman@blaxterlaw.com -- Blaxter & Blackman LLP & J.T. Wells Blaxter -- wblaxter@blaxterlaw.com -- Blaxter & Blackman LLP. Whole Foods Market California, Inc., Whole Foods Market Services, Inc., Whole Foods Market Group, Inc. & Whole Foods Market Distribution, Inc., Defendants, represented by Brian R. Blackman, Blaxter & Blackman LLP. YALE STONE: Orellana Seeks Overtime Pay under FLSA -------------------------------------------------- LELIS EDGARDO DELCID ORELLANA, individually and on behalf of others similarly situated, the Plaintiff, vs. YALE STONE LLC (D/B/A YALE TILE & STONE), YALE TILE & STONE LLC (D/B/A YALE TILE & STONE), JOHN DOE CORP. (D/B/A FSB CONSTRUCTION), ANTONIO DATTOLO, FRANCESCO LORENTI, and FREDY LEONARDO ESPINOZA, the Defendants, Case No. 1:18-cv-12081 (S.D.N.Y., Dec. 20, 2018), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act of 1938 and the New York Labor Law. According to the complaint, the Defendants own, operate, or control construction corporations, under the names "Yale Tile & Stone" and "FSB Construction" with their respective offices located at 120 Glen Head Road Glen Head, NY 11545 and in Queens, New York. The Plaintiff was employed as a construction worker at the construction companies, which conducted various construction projects in Manhattan. The Plaintiff worked for Defendants in excess of 40 hours per week, without appropriate overtime compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate record-keeping of the hours worked, failed to pay the Plaintiff appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. The Defendants' conduct extended beyond Plaintiff to all other similarly situated employees. The Defendants maintained a policy and practice of requiring Plaintiff and other employees to work in excess of 40 hours per week without providing the overtime compensation required by federal and state law and regulations, the lawsuit says.[BN] Attorneys for Plaintiff: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Faillace@employmentcompliance.com ZEMAN HOMES: Augustyniak Seeks Interest from Security Deposits -------------------------------------------------------------- Edward Zeman and entities affiliated with Zeman, including Zeman Homes and Blackhawk Estates MHC, LLC, are facing a class action lawsuit alleging that the defendants failed to properly pay interest on security deposits from their tenants as required by the Illinois Compiled Statutes. All Defendants are subsidiaries of Zeman Homes, LLC and managed by Zeman Homes. Zeman Homes and all of its related entities are owned by Edward Zeman. Zeman maintained separate LLCs for holding each property and its assets, but managed all properties and the subsidiary LLCs through Zeman homes. The lawsuit alleges that Zeman, individually and through his companies, commingled funds, resources, employees, professional services, documents, and advertising for all properties with all Defendants. Zeman knew of the requirement to pay interest payment but intentionally withheld the payments. The lawsuit says plaintiff Athenia Augustyniak maintained a security deposit for her leased site of $630.00 until 2018. All other residents of the Defendants' properties maintained a security deposit until 2018. The residents of Zeman Home Communities were forced to accept the Defendants' violations with regards to non-payment of interest in order to avoid risking their tenancy. The lawsuit claims Zeman was told of the issues with security deposits by the Plaintiffs in this matter as early as 2015 and still refused to pay appropriate interest to residents. The case is captioned as Athenia Augustyniak, Individually and on behalf of those Similarly Situated, the Plaintiff, vs. Edward Zeman, Blackhawk Estates MHC, LLC., Zeman Homes, Inc.,Great American Homes LLC; Mobile Management Co., Inc.; Creek Ridge LLC; Edgebrook LLC; Edgebrook Owner LLC; Edgebrook Managing Member LLC; Farmington Estates LLC; Farmington Estates Owner LLC; Farmington Estates Managing Member LLC; Forest Hills Village, LLC; Harbor Lites MHC LLC; Kingsway Estates LLC; Kingsway Estates Owner LLC; Maple Grove Estates LLC; Maple Grove Estates Owner LLC; Midway Estates LLC; Midway Estates Owner LLC; Midway Estates Managing Member LLC; Old Oaks Estates LLC; Old Oaks Estates Owner LLC; Old Oak Estates Managing Member LLC; Pleasant Ridge LLC; Pleasant Ridge Owner LLC; Pleasant Ridge Managing Member LLC; Rockland Homes LLC; Rosebud MHC LLC; Rosebud MHC 2, LLC; Rosebud MHC Manager LLC; Shady Oaks II LLC; Shady Oaks Owner LLC; Shady Oaks Managing Member LLC; Southwest Estates LLC; Southwest Estates Managing Member LLC; Southwest Estates Owner LLC; Sunny Acres Estates LLC; Sunny Acres Estates Owner LLC; Sunny Acres Estates Managing Member LLC; Town & Country MHC LLC; Town & Country MHC Owner LLC; Town & Country MHC Managing Member LLC; Valley Oaks LLC; Valley Oaks Owner LLC; Valley Oaks Managing Member LLC; Waters Edge Estates MHC LLC; Willoway Terrace LLC; Willoway Terrace Two, LLC, Case No. 2018CH15645 (Ill. Cir, Ct., Cook Cty, Dec. 18, 2018).[BN] Attorneys for Plaintiff: LAW OFFICES OF MATTHEW M. SAFFAR 800 E. Northwest Highway, Suite I 095 Palatine, IL 60074 Telephone: (847) 259 6647 E-mail: saffarlaw@gmail.com [*] One Big Case May Open US-Style Class Action Floodgates in UK ---------------------------------------------------------------- James Booth, writing for City A.M., reports that the Royal Bank of Scotland, Lloyds Banking Group, Tesco, Google and Mastercard. These are just a handful of the household names that have been targeted in group action lawsuits in the UK with billions of pounds at stake. The UK, unlike the US or Australia, does not have a long history of class action-style lawsuits, however, London is full of canny claimant lawyers looking for the next big case to bring and litigation funders with full coffers ready to back them. Head of commercial disputes for Addleshaw Goddard, Mark Molyneux -- mark.molyneux@addleshawgoddard.com -- says it could take one big case to open the floodgates. "People are trying different angles to get these multiple claimants actions up and running . . . the question is whether this will be the start of US, Australian and Canadian-style large claimant group actions?" Mr. Molyneux was instructed by specialist transport law firm Backhouse Jones to co-advise the Road Haulage Association in a group action against a cartel of truck manufacturers which the European Commission has levied a collective fine of £3.4bn against for breaking competition law. Competition group actions are viewed as potentially one of the most fruitful areas for claims as in 2015 a regime for both "opt in" and "opt out" group actions was introduced, the later meaning an action can be brought on behalf of all members of a class, whether or not they specifically ask to be included. However, there have not been any successful cases brought on this basis, with the most significant, a £14bn claim against Mastercard, the largest claim ever brought in the UK courts, struck out by the Competition Appeal Tribunal in 2017, although that decision has been appealed. Meanwhile, there are a number of cases, such as the "dieselgate" action against Volkswagen and the truck cartel claim, that are proceeding on an "opt in" basis, where affected individuals sign up to be part of the class. Another developing area is shareholder litigation, where groups of investors sue companies for losses after they buy shares on a misleading basis, or a company's share price fall sharply through its own wrongdoing. RBS, Lloyds and Tesco have all been targeted by lawsuits of this type. Lianne Craig -- lcraig@hausfeld.com -- a partner in the London office of US litigation firm Hausfeld, says: "In the US these securities class actions have been ten-a-penny for many years, lots of firms bring them as soon as there is evidence of no disclosure to the market and a share price drop. "Previously the US courts took jurisdiction above non-US claims so you could have European investors affected by a non-disclosure and they could get coverage in the US class but the US courts stopped allowing that. "You ended up with US securities litigation firms with deep pockets circling in Europe with lots of European institutional investor clients looking for opportunities to bring these claims." Harry Edwards -- Harry.Edwards@hsf.com -- a partner at Herbert Smith Freehills, which defended RBS and Lloyds, says he expects to see growth in these types of claims. "Clients are worried about it and thinking about it a lot," he says. "Any time there is a crisis event or a large share price fall in a large listed company I am sure both funders and claimant firms are immediately looking at it to see if they can build a claim," he adds. However, barriers remain. The competition sector is the only area with an "opt out" regime and that has not yet been successfully tested. More widely there is not a well-developed framework for bringing group actions in the English legal system, meaning lawyers and judges largely improvising in cases that do reach the courts. The UK also has a cost shifting regime, meaning that in the event of an unsuccessful claim, the claimant could be liable for the defendants costs, which in the RBS litigation topped £100m. Stephen O'Dowd -- stephen.odowd@harbourlf.com -- of litigation funder Harbour, which is currently funding law firm Mishcon de Reya's investigation of a potential claim against Uber, says he is sceptical about a potential explosion of UK group actions, arguing it is likely to be a longer and slower process. "Change will come but we are a long way behind. Australia's regime is 26 years old, it is mature, very well tested, with specialist class action judges; here we have a competition litigation-only regime and it is yet to be tested," he says. While the political will or stability to introduce a more comprehensive framework for class actions in the English courts seems lacking, the desire among claimant firms and litigation funders to try and bring cases is clear. Mr. Molyneux says: ""The big picture is that with the amount of litigation funding available people are out there looking for cases and for claims that they can take to potential claimant groups." Ms. Craig says: "Lots of players in the market are interested in doing this type of work and there is a lot of money there to fund them." Companies then, need to be vigilant. With both claimant lawyers and funders scrutinising their every step, any corporate wrongdoing could prove expensive. [GN] Asbestos Litigation ASBESTOS UPDATE: $13MM Verdict Should Be Upheld, Family Says ------------------------------------------------------------ Lompoc Record reported that attorneys for the family of a deceased Santa Maria man are urging the court to uphold a $13 million verdict against defendant Hillshire Brands, saying the company should be punished for negligence with regard to safety procedures. In August 2017 at Alameda County Superior Court, Hillshire Brands and plaintiff's attorneys Lawrence Gornick and Jeffrey Kaiser faced off in a trial over the death of Mark Lopez, who died in July 2015 at the age of 61 from mesothelioma. The jury found Hillshire fully liable because of Lopez's asbestos exposure while he was growing up during the 1950s in Betteravia, a small town west of Santa Maria that surrounded the Union Sugar Plant, and ordered the company to pay $13 million to the Lopez family. Hillshire appealed the verdict earlier this year, arguing that the mere presence of asbestos at the plant was insufficient to hold them accountable for Lopez's death. The plant turned beets into sugar, and twice a year had workers remove asbestos insulation for maintenance purposes. Hillshire further argued that its operations were consistent with the custom and practice for insulation work, and asbestos exposure risks for bystanders, and that standard rules weren't released until 1979. Attorneys Gornick, Kaiser and Sharon Arkin, opposing the appeal, urged the appellate court to uphold the verdict against Hillshire, claiming that Hillshire had prior knowledge of the safety hazards and regulations released by California Safety Orders as early as 1951, but neglected to eliminate asbestos to legal standards. When one can see visible dust, as one witness testified, that means asbestos exposure was way over the minimum capacity unit of measurement and any exposure was harmful, according to law, Kaiser wrote in his opposition. The company never examined their asbestos problem between 1954 and 1972 and Hillshire's own defense expert admitted that he wasn't aware of Hillshire complying with any existing OSHA rules prior to 1973. A former superintendent of the refinery, Ed Kealm, testified that even after OSHA rules came out, "no rule prohibiting grinding of removed asbestos insulation was established by Hillshire." Another former worker, Reed Brewer, recalled that in 1970-73, he asked his superintendent for a particle mask when it got dusty but was told to simply 'turn my head, take a deep breath and come finish work,'" Kaiser wrote. Three different medical experts -- an epidemiologist, a pulmonologist and pathologist, agreed in their trial testimony that there was no doubt Lopez's mesothelioma was caused by asbestos exposure from the refinery, the opposition continued. Hillshire provided no expert testimony indicating Lopez's exposure could have been from another source, Kaiser wrote. By 1954, when Lopez was living at Betteravia, the company should have known about health risks associated with asbestos and should have trained their employees, the response said; by the time Lopez was visiting the refinery in the 60s, it was known for years asbestos caused cancer. Finally, the jury was properly instructed on negligence, and the safety orders Hillshire failed to follow were evidence relevant to establishing the basis of standard care companies had to follow, Kaiser wrote, adding that Hillshire is also 100 percent at fault and that none of the $13 million verdict should be apportioned to other manufacturers of Union Sugar. Even the judge, who denied Hillshire's motion for a new trial for apportionment of fault, pointed out all "industrial hygiene steps that have been known [as early as the 30s] about controlling asbestos exposure ... and the testimony in this case was that zero was done,'" Kaiser said. ASBESTOS UPDATE: 6 Judges to Hear Montana's Asbestos Claims Backlog ------------------------------------------------------------------- MTPR reported that Montana's Supreme Court has appointed six more judges to the state's year-old asbestos claims court. It's been nearly 20 years since the Libby asbestos disaster hit national news, but many Montanans affected by it are still fighting for reparations in the courts, with no end in sight. Court Administrator Beth McLaughlin says some people have had cases pending for more than 15 years, and without the appointment of the additional judges, "It could take decades to get these cases tried." Many have been tied up because of federal bankruptcy filings by W.R. Grace, the company that mined asbestos in Libby, which prevented the cases from proceeding in state court. Now that the federal proceedings have ended, Montana’s asbestos claims court has identified more than 2,200 pending cases alleging asbestos exposure against more than 40 individual defendants. The supreme court's appointment of six more judges is a relief to attorneys and claimants in the thick of the battle. "We appreciate the attention of the court and of these new asbestos claims court judges on this matter," says Jinnifer Jeresek Mariman, an attorney at a Kalispell law firm that has handled most of the asbestos exposure cases in Montana. She's from Libby and pursued law specifically to help her hometown. "It's our hope that we’ll be able to get these cases resolved more quickly." The asbestos claims court was an attempt to meet the demands of both claimants and defendants. District Judge Amy Eddy in Flathead County was the first appointed to it, and she says adding six more judges only scratches the surface of the demand for legal resolutions. "Well frankly it's not nearly enough," Eddy says. "We've got hundreds and hundreds of cases to try across primarily northwest Montana." Eddy says the Montana judiciary as a whole is understaffed and underfunded. The now seven judges working on the asbestos claims court are doing so voluntarily without additional compensation on top of already hefty workloads. It's not a light undertaking. "The Asbestos Claims Court is handling some of the most long-standing and complicated toxic exposure cases that the judiciary has handled in Montana. I'm unaware of any other litigation with this scope of complexity and history in the state courts." More than 60 countries have banned the use of asbestos entirely, including Canada and the United Kingdom. The U.S. regulates the use of the mineral, but has not banned it. Montana's Supreme Court anticipates an additional 200 asbestos exposure cases to crop up each year in the foreseeable future. ASBESTOS UPDATE: A&E Claims Cost Continue to Rise ------------------------------------------------- Reinsurance News reported that asbestos and environmental claims currently cost the property and casualty (P&C) re/insurance industry around $1.9 billion and $800 million in additional losses per year, respectively, and show no signs of slowing down, according to A.M. Best. The rating agency has raised its estimate of the ultimate net environmental losses for the industry to $46 billion in response to the growth in ultimate loss exposure. This represents a $4 billion increase over the previous estimate, and is due to the continued development on sites that have been found to be more toxic than originally thought, as well as the associated increase in clean-up and defence costs. In terms of asbestos claims, A.M. Best maintained its' net ultimate asbestos loss estimate of $100 billion, although it noted that quantifying the industry's ultimate loss exposure is difficult, given the significant advancements in medical effectiveness, as well as developing litigation strategies. The increase in the environmental estimate reflects the fact that the re/insurance industry continues to incur losses of approximately $700 million per year, while paying out $760 million. Previous estimates anticipated a slow reduction in the level of claims, but A.M. Best said that the pace has not yet declined in any meaningful way. The firm's analysts put the combined ultimate industry losses for asbestos and environmental (A&E) at $146 billion, and noted that the industry had funded approximately 89% of it's A&E exposure through a combination of paid losses and loss reserves. A.M. Best added that, from 2013 to 2017, re/insurers paid out more every year than they incurred, with payments of $17.8 billion for A&E claims and $13.3 billion in incurred losses. Asbestos incurred losses came to approximately $10 billion, and payments, $14 billion, while environmental losses came to $3.7 billion, and payments, $3.8 billion. At year-end 2017, asbestos reserves had decreased nearly 4% to $19.1 billion, and environmental reserves, by 3.0% to $5.2 billion. The industry's A&E losses remain concentrated, with the top 30 re/insurance groups representing nearly 95% of the paid total and 94% of the total A&E reserves. ASBESTOS UPDATE: Atty Hopes $4.69B Verdict to Propel Accountability ------------------------------------------------------------------- St. Louis Record reported that Mark Lanier hopes a Missouri trial court judge's recent decision affirming a $4.69 billion verdict against pharmaceutical giant Johnson & Johnson will propel the company to reach for higher levels of accountability. "We hope this judgment will compel Johnson & Johnson to take responsible, effective action in acknowledging the inherent dangers of the use of talc, and specifically the use of Johnson's Baby Powder and similar products," Lanier, who served as counsel to all 22 of the women that first filed suit against the company last summer blaming their ovarian cancer on asbestos in Johnson's baby powder and other talc products, said in a statement following the five-week long proceedings. Reuters reports since the court's initial July 12 ruling in the case, at least six of the women named as plaintiffs in the suit have perished. In rendering his latest verdict on Dec. 18, Judge Rex Burlison of the Circuit Court of the City of St. Louis was as forceful as he was succinct, asserting "The court finds there is no just reason for delay and hereby certifies this judgment as final for purposes of appeal." Even as Burlison blasted Johnson & Johnson's actions over the years as "reprehensible," the company vowed to fight on in hopes of clearing its name. In a statement, Johnson & Johnson branded the proceedings as "fundamentally unfair," and continued to insist its talc is safe while pledging to pursue all appellate avenues. "The same judge has denied similar motions on prior verdicts in his court that were ultimately overturned by the appellate courts," company officials added. "We are confident this verdict will also be overturned on appeal." As part of a public campaign to uphold the image it has spent over 132 years cultivating, the company has launched a Facts About Talc website and taken out full-page advertisements touting its commitment to health and safety in several national publications. At the time of the initial verdict, the ruling against Johnson & Johnson was the largest ever in lawsuits against companies whose products were alleged to cause cancer. The jury's award broke down to include $550 million in compensatory damages and a punitive award of $4.14 billion. Throughout the proceedings before Burlison, attorneys for the plaintiffs argued that Johnson & Johnson had been fully aware that its products posed asbestos-related health risks for almost the last half-century and actively set out on a course to keep consumers in the dark on the matter. In the wake of Burlison's ruling, company stock prices quickly spiraled downward by as much as 10 percent. In all, the New York Times reports Johnson & Johnson faces nearly 12,000 plaintiffs in talc-related cases where many of the victims make the same claims put forth in the case before Burlison. A group of others go as far as to allege they came to suffer from mesothelioma, a deadly cancer of the lining of internal organs that is associated with asbestos. Though the company has been found to have been negligent in several previous cases that alleged many of the same dangers, Johnson & Johnson has yet to pay out any awards and has appealed in each and every instance where the ruling has gone against them. Beyond insisting that all of its products have proven to be safe based on decades of studies and regulatory assessments, Johnson & Johnson officials have also taken the position the case before Burlison should have never been held in Missouri based on a 2017 Supreme Court decision curtailing where companies can be sued in cases where personal injuries are alleged to have occurred. In quickly rejecting that argument, Burlison maintained that the case was rightfully litigated in the Missouri court system given Johnson & Johnson's long-held connection to the state. ASBESTOS UPDATE: Birmingham Landlord Fined for Asbestos Breaches ---------------------------------------------------------------- Health and Safety Executive reported a landlord and building contractor have been fined after large quantities of asbestos fibres were released from the demolition of a conservatory at a rented property. Birmingham Magistrates' Court heard how the landlord commissioned a building contractor to replace a conservatory containing asbestos panels at a property in Selly Oak, Birmingham between Friday 18 August and Tuesday 29 August 2017. Asbestos was spread as the panels were removed in a haphazard and uncontained way. An investigation by the Health and Safety Executive (HSE) found that the landlord should have had an asbestos survey carried out prior to work beginning, and the building contractor should not have started work without one. The building contractor took no precautions and asbestos was spread to the home, contents and next door. Wah Kei Dany Ng of Penns Lane, Sutton Coldfield pleaded guilty to breaching Regulation 4 of the Construction (Design and Management) Regulations 2015 and has been fined GBP1,200 and ordered to pay costs of GBP607.21. Jasvir Singh Sangha of Tunnel Road, West Bromwich pleaded guilty to breaching Regulations 5 and 16 of the Control of Asbestos Regulations 2012 and has been sentenced to 150 hours unpaid work and ordered to pay costs of GBP596.61. Speaking after the hearing HSE inspector Gareth Langston said "Asbestos surveys need to be carried out prior to any construction work which disturbs the fabric of a structure." ASBESTOS UPDATE: Cashmere Bouquet Suit Proceeds to Trial -------------------------------------------------------- Mesothelioma.net Blog reported that though malignant mesothelioma has long been associated with industrial and construction settings and high heat environments, there has been a recent shift in both the victims of mesothelioma who are being diagnosed and the source of their asbestos exposure. Where the majority of people being diagnosed were once older men who had been exposed on the job, a new generation of victims are largely younger women whose asbestos exposure comes from one of the most trusted consumer products: they claim that they were sickened by asbestos that contaminated the body powder that they used after their baths and showers, and more and more U.S. courts are permitting their cases to be heard and decided by juries. The most recent in this new type of malignant mesothelioma lawsuit that has gotten the go-ahead to proceed was filed by Desiree Hooper-Lynch of New York. She was diagnosed with the rare and fatal form of cancer in April of 2015, and upon investigation she has determined that her exposure came from use of Colgate-Palmolive Company's Cashmere Bouquet cosmetic talc product between the years 1968 and 1985. She indicates that her initial exposure to the product came while she was living in the countries of Guyana and England, when she was a teacher. She recounts relocating to Brooklyn, New York in 1979 and continuing to use the product through 1985 on a daily basis and sometimes more than once a day, shaking the container and releasing enough of the product for the room to become dusty and to sometimes make her sneeze. Expert witnesses provided affidavits supporting her assertion, but Colgate Palmolive filed a motion for summary judgment with the goal of dismissing Hooper-Lynch's complaint and all cross claims, doing so without providing any time of case to disprove her assertions of negligence. The court denied the request, indicating that there are issues of fact to be resolved as to whether the company's product caused her mesothelioma: the case will now proceed to trial, unless the parties agree to a settlement. ASBESTOS UPDATE: Company Fined $318K for Asbestos Exposure ---------------------------------------------------------- TVNZ reported that a demolition company has been fined $318,750 after it was found to have subjected its workers and members of the public to possible asbestos exposure. WorkSafe said in a statement that Crafar Crouch Construction Ltd had failed to manage the risk of asbestos while demolishing two buildings in Blenheim. Asbestos is a known carcinogen which causes cancer when the fibres are breathed in, but it was previously widely used in the construction industry. The first was at 101 Budge Street and the second was at 39 Queen Street, with the demolitions taking place between August 2016 and January 2017. Worksafe was notified and ordered testing of the sites, and found asbestos was present. It also found the company had not adequately checked the buildings for asbestos before beginning demolition, and that it had not taken measures to protect workers. "We found that workers had not worn appropriate respiratory personal protective equipment, which is an absolute mandatory in asbestos management," WorkSafe Head of Specialist Interventions Simon Humphries said. "Workers were seen picking through the last of the rubble by hand with only gloves to protect them from the fibres. "We were also alarmed that the company appeared to show no concern over the possibility that asbestos was present on the jobs – that is startling in a company that regularly undertakes such work. "Around 170 people die every year from asbestos-related diseases, making it New Zealand’s number one [work-related] killer. "The utter negligence displayed by Crafar Crouch and their disregard for worker health is appalling." New requirements for companies removing asbestos were introduced in April of this year, and WorkSafe noted Crafar Crouch do not currently have the relevant license to undertake asbestos removal work. The company was convicted of three charges under the Health and Safety at Work Act by Blenheim District Court. Companies Office records show the listed directors of Crafar Crouch Construction as Norman John Crafar, Shona Louise Crafar, Carol Isabel Crouch and John Robert Crouch. ASBESTOS UPDATE: Contractor Fined $52K for Asbestos Violations -------------------------------------------------------------- Worcester Business Journal reported that a Worcester home improvement contractor will pay almost $52,000 in penalties for violating asbestos regulations at a residential property in the city. According to a news release from the state Department of Environmental Protection, inspectors in 2016 received a complaint of a project being conducted by Stephen Faro and his business JAM Quality Home Improvement. Inspectors saw an asbestos-containing pipe improperly removed from pipes in the residence's basement along with fragments and sections of dry, uncontained asbestos insulation on the basement floor. Other material was in unsealed household trash bags. Faro was required to obtain a licensed asbestos contractor to clean and decontaminate the property. However, Faro didn't file a notification of the asbestos removal work with the state and didn't have the property surveyed for asbestos before any removal work began. Mary Jude Pigsley, director of MassDEP's Central Regional Office in Worcester, said Faro, a licensed contractor, should be well aware of how to handle asbestos. "Asbestos is a known carcinogen, and following required work practices is imperative to protect workers as well as the general public," Pigsley said. "Failure to do so will result in significant penalties, as well as escalated cleanup, decontamination and monitoring costs." ASBESTOS UPDATE: DOJ Objects to Patton as Fairbanks FCR ------------------------------------------------------- Reuters reported that James Patton, the chairman of Young Conaway Stargatt & Taylor, has spent the past 30 years working on asbestos bankruptcies and restructurings. In particular, Patton and his firm specialize in representing the interests of future asbestos victims -- people who will someday develop asbestos-related illness but don't yet know it -- when companies establish special trusts to cabin off their ongoing exposure to asbestos claims. Young Conaway has served either as the future claims representative or as counsel to the future claim representative in the Chapter 11 restructurings of more than two dozen companies with asbestos liability in the past 20 years. The Justice Department smells a rat in that record. DOJ announced that it had filed an objection to a motion by the Fairbanks Company to appoint Patton to represent future claimants in a Chapter 11 case in federal bankruptcy court in Rome, Georgia. The DOJ filing -- the latest Justice Department maneuver in its recent campaign against alleged abuse in the administration of megabillion-dollar asbestos trusts -- argued that Patton and his law firm have a long record of participation in the creation of asbestos trusts that failed to include "anti-fraud protections and safeguards against mismanagement and inflated professional fees." The government's filing posited that Patton and Young Conaway are part of a "closed network of professionals who administer asbestos cases and recycle many of the same trust terms that omit important anti-fraud provisions and cost controls that the United States Trustee Program deems essential." DOJ's press release elaborated on that theme, quoting Principal Deputy Associate Attorney General Jesse Panuccio on the dangers of repeat players in asbestos bankruptcies. "In recent years, there have been credible allegations — and at least one court has found evidence — of misrepresentation, mismanagement and abuse in the asbestos trust system," Panuccio said. "A significant contributing factor is the failure of courts to appoint independent future claimants' representatives who are free from conflicts of interest, including conflicts caused by their involvement in other asbestos trusts." DOJ wants U.S. Bankruptcy Judge Paul Bonapfel of Rome, Georgia, to open up the appointment process to allow candidates without previous connections to any of the parties to apply to represent the future claimants. At the very least, Justice said, Judge Bonapfel should require Patton to disclose all of his and Young Conaway's entanglements with other lawyers and professionals involved in asbestos trust administration, including plaintiffs' lawyers who represent current asbestos claimants. The judge must not appoint Patton, according to the government, unless he can explain why he is not conflicted as a result of Young Conaway's work for other asbestos trusts. "Because the funding of most trusts is fixed, conflicts may arise when the same present claimants file claims with multiple trusts; in this scenario, the various future claimants would have conflicting interests regarding how liability for the present claimants' injuries should be allocated among the various trusts," the DOJ filing said. "Absent an explanation of why this inherent conflict would not prevent Mr. Patton from acting as a fiduciary for (Fairbank's) future claimants, Mr. Patton's appointment should not be approved." If this all sounds vaguely familiar, that's because just three months ago, the Justice Department filed its opposition to Duro Dyne's motion to appoint a future claims representative in its pre-negotiated, asbestos-related Chapter 11 bankruptcy in New Jersey federal court. As I explained at the time, Duro Dyne and plaintiffs' lawyers brought in the extremely experienced future claims representative Lawrence Fitzpatrick to advocate for prospective asbestos victims as they negotiated the terms of Duro Dyne's asbestos trust. After the company entered Chapter 11, Duro Dyne moved for Fitzpatrick's official appointment as the future claimants' representative, hoping to win quick approval of the company's pre-negotiated restructuring plan. DOJ disrupted those plans with its objection to Fitzpatrick's appointment. (Of note: Fairbanks originally moved for Fitzpatrick to be appointed to represent future claimants in its Chapter 11 case but Fitzpatrick asked for the motion to be withdrawn after DOJ objected to his appointment in the Duro Dyne case.) In that previous attempt to block a debtor-proposed future claimants' representative, the Justice Department homed in on Fitzpatrick's purported financial dependence on the plaintiffs' lawyers who routinely serve on asbestos creditors' committees and negotiate the establishment of trusts with companies exposed to asbestos liability. DOJ demanded disclosures and deposition testimony from Fitzpatrick. U.S. Bankruptcy Judge Michael Kaplan of Trenton authorized limited discovery, including testimony about Fitzpatrick's role in the prefiling negotiations. Ultimately, DOJ's gambit backfired. At an Oct. 16 hearing, Judge Kaplan granted Duro Dyne's motion to appoint Fitzpatrick, holding that the government failed to show Fitzpatrick was conflicted or motivated by improper financial interests. More broadly, the judge cast doubt on the entire DOJ theory. "This court questions whether an inquiry into a proposed representative or professional's ability to be effective is appropriate at all," he said. "Demanding proof of effectiveness can become a dangerous and slippery slope for all professionals in a bankruptcy proceeding. This court is not anxious to go down that road." Judge Kaplan called DOJ arguments that Fitzpatrick is beholden to the parties that brought him into the case "nonsensical and a nonstarter," since his retention in the Duro Dyne Chapter 11 parallels that of every other professional engaged in a Chapter 11. He also said that DOJ's objection could imperil pre-negotiated Chapter 11 bankruptcies for companies facing asbestos liability -- even though Congress expressly enacted provisions in the Bankruptcy Code to enable these restructurings. "This court has serious concerns that implementing the standards and employing the disqualifying criteria espoused by the U.S. Trustee … would for all practical purposes render a pre-negotiated plan impossible," he said. "The prepetition selection of, negotiations with and payment to any prepetition FCR is critical for a successful prenegotiated asbestos case … This Court is not prepared to second-guess Congress in its implementation or the 3rd Circuit in its positive assessment of the process." For good measure, Judge Kaplan subsequently approved Young Conaway to act as Fitzpatrick's counsel in his role as the representative of future claimants. The Justice Department, in its objection to Patton's appointment in the Fairbanks Chapter 11, said Judge Kaplan's approach in the Duro Dyne case "creates a powerful incentive for debtors and present claimants to nominate FCR candidates who are unlikely to litigate vigorously against them (and) has had generally poor results for the future claimants." But Fairbanks' counsel from Reed Smith, in a response filed Wednesday, emphasized Judge Kaplan's adherence to the long-accepted procedures for engaging future claims representatives before and during Chapter 11 proceedings. For companies that want to restructure their asbestos liability so they can return to running their otherwise successful businesses, the Fairbanks brief said, it's crucial to engage an experienced representative for future claimants. The open-ended process DOJ is advocating would only eat up "precious time and resources . . . . hat this Chapter 11 case cannot support." The Justice Department is to be determined to disrupt business as usual in asbestos litigation and bankruptcy. But it seems to have selected a problematic tool to accomplish that goal. A DOJ spokesperson emailed me a response to my query on the Duro Dyne and Fairbanks protests, noting that the department has appealed Judge Kaplan's ruling in Duro Dyne: "We are disappointed with the court's ruling in Duro Dyne that the candidate selected by the very parties that he will be required to negotiate or litigate against and who retained and compensated him prior to the bankruptcy can exercise the independence needed to protect future claimants and the integrity of the judicial system." ASBESTOS UPDATE: EPA Asked to Answer Reports on J&J Talc -------------------------------------------------------- Reuters reported that two Democratic U.S. lawmakers have called on the Environmental Protection Agency to answer questions about asbestos exposure after Reuters reported that documents showed Johnson & Johnson knew for decades of the mineral's presence in its popular baby powder. Whether asbestos in the talc supply in Johnson & Johnson's Baby Powder caused cancer has been the subject of litigation for years. The lawmakers, Senator Jeff Merkley and Representative Suzanne Bonamici, did not mention Johnson & Johnson by name but expressed "deep concern" about the Reuters report, according to a copy of their letter dated Dec. 19 and reviewed by Reuters. In their letter, the two lawmakers asked the EPA how it was regulating potentially unsafe asbestos-containing products. J&J has disputed the Reuters report, calling it a "misrepresentation." The company says its talc is safe and has never contained asbestos, adding that decades of studies and regulatory assessments confirm the safety of its product. Representatives for the EPA did not be respond to an email or a telephone call seeking comment on the congressional letter. Asked about the lawmakers' letter, J&J spokesman Ernie Knewitz declined to comment but said the Reuters report was "one-sided, false and inflammatory." According to the Reuters report, documents as well as deposition and trial testimony showed that from at least 1971 to the early 2000s the company's raw talc and finished powders sometimes tested positive for small amounts of asbestos. Most internal J&J asbestos test reports Reuters reviewed did not find asbestos. The company has defended its products in recent days with a series of full-page newspaper advertisements and a television interview with its chief executive. Shares of the company have fallen about 12.5 percent since the Reuters report. Merkley and Bonamici also asked the EPA to detail what steps it was taking to help prevent vulnerable populations such as pregnant women and infants from being exposed to products containing asbestos, including other products with talc, a mineral. Although baby powder is subject to regulation under the Federal Food, Drug, and Cosmetic Act, other talc products sold to consumers would be within the purview of the Toxic Substances Control Act (TSCA) and thus the responsibility of the EPA, they wrote in the letter. Democratic U.S. Senator Edward Markey separately called on the FDA to investigate the findings in the Reuters report in a letter on Friday. The FDA could not immediately be reached for comment. "Asbestos is a known carcinogen, and one for which there is no controlled use or safe level of exposure," Merkley and Bonamici wrote. "Fifty-five countries have already banned asbestos. Unfortunately, the United States still permits the use of asbestos." ASBESTOS UPDATE: Future Asbestos Deaths from Oil Boom Inevitable ---------------------------------------------------------------- Energy Voice reported that future asbestos-related deaths arising from construction in the 1970s North Sea oil boom are "inevitable" according to a legal team supporting victims. Exposure to asbestos can take up to 40 years to develop into a disease, and the Asbestos Action campaign group has said 16 of its north-east clients have died in the last year as a result. Digby Brown solicitors, which work with the group, said this is being attributed to the 70s "oil boom" when older platforms were being constructed were being constructed for the North Sea with the use of asbestos. The firm is currently fighting several cases to seek compensation for sufferers. Energy services companies WorleyParsons and Wood are examples of companies who have inherited asbestos-related liabilities following acquisitions of rival firms. Fraser Simpson, partner and head of industrial disease at Digby Brown, believes the scale of the issue in north-east Scotland may never be fully known. He said: "Future deaths from asbestos are sadly inevitable but we may never know the full scale as it's possible people pass away without being diagnosed, or being misdiagnosed with something else. "Asbestos-related diseases like mesothelioma remain one of the biggest killers in the UK -- more people die from this than are killed on the roads. "We're seeing a worrying increase in the number of asbestos-related conditions across the whole of Scotland, partly because it can take 40 years before asbestos fibres evolve into debilitating conditions. "That's why cases emerge now following industrial 'booms' like with north east oil in the 1970s or shipbuilding in the west in the same era." Asbestos was used extensively in construction activities following World War Two, with industrial surges that followed eventually causing an increase in asbestos-related diseases. The UK's safety watchdog, the Health and Safety Executive (HSE), said the construction of oil and gas platforms in the 1960s and 70s may have led to workers being exposed. These can lead to a number of issues including forms on cancer and chronic conditions affecting the lungs. Asbestos Action helps people in the east of Scotland, while Clydebank Asbestos Group works with sufferers and their families in the west. However, Mr Simpson said there are still "gaps" in support. He said: "We do need to be mindful of the gaps in support such as making sure health and care professionals point sufferers in the right direction of pastoral and legal care at the point of diagnosis to protect not just themselves but their families too. "We will never stop campaigning on this issue and will do everything possible to help Scots affected by employers who were negligent." Many older platforms are now starting the process of being decommissioned, and firms have a duty to manage asbestos in this process, which is enforced by the HSE. Dave Salmon, from the regulator's energy division, said: "There is a reasonable level of abatement activity but there is a lot of ACM (asbestos-containing material) also left in place, which will need to be managed. "As well as the installations remaining in production, there will also be those due for decommissioning. It is important that any ACMs are identified and dealt with. "HSE Offshore inspectors have carried out preventive inspections to ensure that offshore operators are complying with the Control of Asbestos Regulations 2012, particularly the Duty to Manage Asbestos." If anyone is concerned about asbestos-related diseases they should contact their GP for medical assistance and not-for-profit charities like Asbestos Action for additional support. ASBESTOS UPDATE: Glasgow Man Fined for Asbestos Materials Release ----------------------------------------------------------------- Health and Safety Executive reported that a Glasgow based building contractor has been fined after an employee used a powered saw to cut through a kitchen cupboard door, accidentally releasing asbestos containing materials. Glasgow Sheriff Court heard that between 8 November 2015 and 11 December 2015, City Building (Glasgow) LLP was carrying out refurbishment work at a flat in Glasgow. An employee who was unaware of the presence of asbestos fibres within a kitchen cupboard door cut through the door and disturbed the asbestos fibres. An investigation by the Health and Safety Executive (HSE) found that following receipt of an Asbestos Refurbishment Survey pertaining to the kitchen, City Building (Glasgow) LLP failed to realise that the door had not been surveyed. City Building (Glasgow) LLP, Darnick Street, Glasgow has today pleaded guilty to breaching Section 2(1) of the Health and Safety at Work etc Act 1974 and has been fined GBP4,000. Speaking after the hearing HSE principal inspector, Graeme McMinn, said "This incident could so easily have been avoided by simply carrying out correct control measures and safe working practices. When getting an asbestos survey carried out it is important to ensure that all of the planned work areas have been surveyed. "Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards." ASBESTOS UPDATE: Harkreader Couple Sues Over Failure to Warn ------------------------------------------------------------ Madison County Record reported that a husband and wife are suing Borg-Warner and dozens of other businesses that used asbestos products, alleging failure to warn and negligence. Donald Harkreader and Clara Harkreader filed a complaint Dec. 10 in St. Clair County Circuit Court against Borg-Warner Morse TEC LLC, and dozens of defendants, alleging failure to exercise due care and caution for the safety of others. According to the complaint, at various times during Donald Harkreader's career, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by the defendants. On Dec. 16, 2016, the suit says, he first became aware that he had developed mesothelioma, an asbestos-induced disease, and, subsequently, learned that the disease was wrongfully caused. Clara Harkreader says she has suffered loss of consortium, society and service of her husband. The plaintiffs allege the defendants intentionally included asbestos fibers in their products when they knew it had toxic, poisonous and highly deleterious effects to human health and that they failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The Harkreaders seek trial by jury, compensatory and punitive damages of more than $50,000, plus any further appropriate relief. They are represented by attorney Randy L. Gori of Gori, Julian & Associates PC in Edwardsville. St. Clair County Circuit Court Case number 18-L-794 ASBESTOS UPDATE: J&J Execs Raise Asbestos Concerns in 1971 ---------------------------------------------------------- ABA Journal reported that Johnson & Johnson executives raised concerns about the possibility of asbestos in talc used to produce its baby powder as early as 1971. Corporate documents reveal that executives tried to discredit research showing the possibility of asbestos contamination in small amounts, even as the company considered replacing talc, the New York Times reports. The company also urged the Food and Drug Administration to block release of an unfavorable test, according to a memo obtained by the Times. According to the newspaper, the executives' efforts "are now forming the crux of a new legal front in a long-running battle over Johnson's baby powder, potentially leaving the company exposed in nearly 12,000 lawsuits across the country claiming that the product can cause cancer." The Times obtained its information from documents revealed by litigation, public records requests, and interviews with scientists and lawyers. The New York Times story follows a Reuters story on the documents published on Dec. 14. "From at least 1971 to the early 2000s, the company's raw talc and finished powders sometimes tested positive for small amounts of asbestos," according to Reuters' summary of the information. "Company executives, mine managers, scientists, doctors and lawyers fretted over the problem and how to address it while failing to disclose it to regulators or the public." The FDA test, conducted by New York University chemist Seymour Lewin in the early 1970s, had found asbestos in more than half of 11 samples of Johnson's baby powders that had been tested, according to a doctoral candidate who worked with Lewin. After Johnson & Johnson hired its own scientist to inspect the test materials, Lewin issued a final report that said most of the samples did not contain asbestos and that two results were inconclusive. The doctoral candidate, Aviam Elkies, told the Times that Johnson & Johnson had funded his work, but it revoked his scholarship after it learned of the results. A lawyer for the company, Orrick, Herrington & Sutcliffe partner Peter Bicks, told the Times that Elkies tested talc from mines that weren't used by Johnson & Johnson, and the company wasn't aware of any evidence supporting his claim of a scholarship. The FDA tested 34 talc samples in 2009, including a bottle of Johnson & Johnson's baby powder, and found no asbestos, according to Reuters. The company lost three cases this year, including a suit blaming the powder for ovarian cancer in 22 women. Jurors awarded nearly $4.7 billion. The company has filed appeals in all three cases. A Missouri judge denied Johnson & Johnson's request to reverse the $4.69 billion award on Wednesday, the New York Times reported. Johnson & Johnson has said plaintiffs' claims are based on "junk science," and multiple tests have shown there is no asbestos in its baby powder. Plaintiffs' lawyers are distorting historical documents and creating confusion in the courtroom, the company said in a statement. Story updated on Dec. 19 to report that a judge refused to reverse the $4.69 billion award. ASBESTOS UPDATE: J&J Fails to Throw Out $4.69-Bil. Verdict ---------------------------------------------------------- Gizmodo reported that Johnson & Johnson, which lost a lawsuit brought by 22 women and their families who claimed their ovarian mesotheliomas were caused by talc products contaminated with the carcinogen asbestos to the tune of $4.69 billion in July, has failed to have the verdict thrown out on jurisdictional grounds. According to the New York Times, the ruling was upheld by a circuit court judge in Missouri, Rex Burlison, who oversaw the trial in the case. That doesn't mean that the $4.69 billion payout is imminent -- Johnson & Johnson will still have an entire appeals process to exhaust. However, CNBC reported that Burlison wrote in his order that there was "substantial evidence" of "particularly reprehensible conduct" by the company, adding that its management "knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades." The Times wrote: The $4.14 billion in punitive damages and $550 million in compensatory damages, together one of the largest personal injury awards on record, was upheld by Judge Rex Burlison in a circuit court in Missouri. The plaintiffs -- 22 women and their families -- were the first to go to court against Johnson & Johnson claiming that their ovarian cancer was linked to asbestos contamination in the company's talc. ... "The same judge has denied similar motions on prior verdicts in his court that were ultimately overturned by the appellate courts," [Johnson & Johnson] said. "We are confident this verdict will also be overturned on appeal." A damning report last week by Reuters sourced from thousands of pages worth of internal company documents alleged that Johnson & Johnson executives misled the U.S. Food and Drug Administration as to whether they had detected any samples of asbestos from its talc-mining operations. (Talc, a soft white clay, is often dug up around deposits of asbestos, a category of six different silicate minerals.) Reuters wrote: In 1976, as the U.S. Food and Drug Administration (FDA) was weighing limits on asbestos in cosmetic talc products, J&J assured the regulator that no asbestos was "detected in any sample" of talc produced between December 1972 and October 1973. It didn't tell the agency that at least three tests by three different labs from 1972 to 1975 had found asbestos in its talc – in one case at levels reported as "rather high." Another report in the New York Times alleged that executives at Johnson & Johnson had been repeatedly warned that asbestos could be slipping into their talc products, with internal documents, interviews with scientists and lawyers, and government records showing managers "proposed new testing procedures or replacing talc outright, while trying to discredit research suggesting that the powder could be contaminated with asbestos." In general, scientists have never determined a clear link between talcum powder products and cancer, though asbestos-contaminated talc is clearly a problem. The World Health Organization has recognized the latter as a threat to public health. (As Slate noted, "mesothelioma remains a rare cancer" even among factory and mining workers that do come into contact with asbestos on a regular basis.) As the Times noted, nearly 12,000 plaintiffs have sued Johnson & Johnson over the years. But the company has won all but one of the few verdicts against it in the appeals process -- many because the plaintiffs asserted talc itself rather than asbestos was carcinogenic -- and successfully avoided paying out damages in any of them so far. According to the Reuters report, in one case brought by former customer Darlene Coker in 1997, the company successfully suppressed internal documents such as a letter from a Rutgers University geologist confirming the presence of small amounts of asbestos in its Baby Powder product. ASBESTOS UPDATE: J&J Moves to Limit Impact of Asbestos Reports -------------------------------------------------------------- Reuters reported that Johnson & Johnson scrambled to contain fallout from a Reuters report that the healthcare conglomerate knew for decades that cancer-causing asbestos lurked in its Baby Powder, taking out full-page newspaper ads defending its product and practices, and readying its chief executive for his first television interview since investors erased tens of billions of dollars from the company's market value. J&J shares fell nearly 3 percent, closing at $129.14 in New York Stock Exchange trading. That drop was on top of the 10 percent plunge that wiped out about $40 billion of the company's market capitalization following the Reuters report. J&J also announced that it would be repurchasing up to $5 billion of its common stock. Senator Edward Markey, a Massachusetts Democrat on the Environment and Public Works Committee, sent a letter to the head of the U.S. Food and Drug Administration calling on the agency to investigate the findings in the Reuters report to determine whether J&J misled regulators and whether its Baby Powder products threaten public health and safety. J&J Chief Executive Alex Gorsky, in his first interview since the Reuters article was published, defended the company during an appearance on CNBC's "Mad Money" with host Jim Cramer. J&J knew for decades about the presence of small amounts of asbestos in its products dating back to as early as 1971, a Reuters examination of company memos, internal reports and other confidential documents showed. In response to the report, J&J said on Friday that "any suggestion that Johnson & Johnson knew or hid information about the safety of talc is false." A full-page ad from J&J -- headlined "Science. Not sensationalism." -- ran in newspapers including The New York Times and The Wall Street Journal. The ad asserted that J&J has scientific evidence its talc is safe and beneficial to use. "If we had any reasons to believe our talc was unsafe, it would be off our shelves," the ad said. J&J rebutted Reuters' report in a lengthy written critique of the article and a video from Gorsky. In the written critique, posted on the company's website here, J&J said Reuters omitted information it supplied to the news organization that demonstrated the healthcare conglomerate's Baby Powder is safe and does not cause cancer; that J&J's baby powder has repeatedly been tested and found to be asbestos-free; and that the company has cooperated with the U.S. FDA and other regulators around the world to provide information requested over decades. "Since tests for asbestos in talc were first developed, J&J's Baby Powder has never contained asbestos," Gorsky said in the video here. He added that regulators "have always found our talc to be asbestos-free." A Reuters spokeswoman on Monday said the agency "stands by its reporting." Reuters' investigation found that while most tests in past decades found no asbestos in J&J talc and talc products, tests on Baby Powder conducted by scientists at Mount Sinai Medical Center in 1971 and Rutgers University in 1991, as well as by labs for plaintiffs in cancer lawsuits, found small amounts of asbestos. In 1972, a University of Minnesota scientist found what he called "incontrovertible asbestos" in a sample of Shower to Shower. Other tests by J&J's own contract labs and others periodically found small amounts of asbestos in talc from mines that supplied the mineral for Baby Powder and other cosmetic products into the early 2000s. The company did not report to the FDA three tests by three different labs from 1972 to 1975 that found asbestos in the company's talc. The Reuters story drew no conclusions about whether talc itself causes ovarian cancer. Asbestos, however, is a carcinogen. The World Health Organization's International Agency for Research on Cancer has listed asbestos-contaminated talc as a carcinogen since 1987. Reuters also found that J&J tested only a fraction of the talc powder it sold. The company never adopted a method for increasing the sensitivity of its tests that was recommended to the company by consultants in 1973 and in a published report in a peer-review scientific journal in 1991. The ad J&J ran in newspapers Monday also pointed to an online talc fact page the company created with "independent studies from leading universities, research from medical journals and third-party opinions." That website has changed since early December, according to a Reuters review of online archives. The website, for instance, no longer contains a section headlined "Conclusions from Global Authorities" that as recently as Dec. 5 listed organizations including the U.S. FDA, the European Union and Health Canada as among entities that have "reviewed and analyzed all available data and concluded that the evidence is insufficient to link talc use to cancer." On Dec. 14, the day Reuters published its report, that section of the website had been removed. It is not clear exactly when the online page changed. The Canadian government released a draft report this month that found a "consistent and statistically significant positive association" between talc exposure and ovarian cancer. The draft report also said that talc meets criteria to be deemed toxic. The draft report put forth proposed conclusions that are subject to a public comment period and confirmation in a so-called final screening assessment, Health Canada said. If the conclusions are confirmed, Canadian officials will consider adding talc to a government list of toxic substances and implementing measures to prohibit or restrict use of talc in some cosmetics, non-prescription drugs and natural health products, Health Canada said. A J&J spokeswoman said the company removed the website section after the Canadian government issued the draft report. "We chose to be conservative while that draft is under review," the spokeswoman said. While J&J has dominated the talc powder market for more than 100 years, the products contributed less than 0.5 percent of J&J's $76.5 billion in revenue last year. ASBESTOS UPDATE: Long Melford Man Dies Due to Asbestos Exposure --------------------------------------------------------------- Suffolk Free Press reported that a man from Long Melford, who spent much of his working life exposed to asbestos, died from a disease associated with the material, an inquest decided. David Mott, 72, of High Street, died on Tuesday, November 13, after being diagnosed with mesothelioma -- a type of cancer that affects the lining of the lungs and chest wall. An inquest at Suffolk Coroner's Court in Ipswich heard that Mr Mott had been a painter and decorator for a significant portion of his life. During his career, he had been repeatedly exposed to asbestos dust while cleaning asbestos gutters and drainpipes with a wire brush, as sheets of the material were being cut up with power saws. Assistant Suffolk coroner Dr Daniel Sharpstone recorded a conclusion that Mr Mott died as a result of an industrial disease. ASBESTOS UPDATE: Lurgan Man To Be Sentenced for Asbestos Exposure ----------------------------------------------------------------- Armagh I reported that a 46-year-old Lurgan man entered pleas to the offences at Craigavon Crown Court. Jonathon Belshaw, of Old Kilmore Road, appeared charged with failing to make an asbestos assessment, failing to prevent or reduce the spread of asbestos and failing to provide or maintain systems. A prior offence of being an employer who failed to assess risks was not proceeded with and was left on the books. It was heard that the offences dated back to May 9, 2014. Defence counsel commented that he had considered sentencing today but felt this case would benefit from a pre-sentence report. His Honour Judge Patrick Lynch agreed with this and put it back to January 24 for sentencing. Belshaw was released on continuing bail until that date. ASBESTOS UPDATE: No Asbestos in J&J Baby Powder, HSA Says --------------------------------------------------------- The Straits Times reported that the Health Sciences Authority (HSA) has said that it did not find any asbestos in Johnson & Johnson's baby powder or other talc products sold here. HSA has also not received reports on adverse reactions associated with the use of talc in cosmetic products in Singapore, including J&J baby powder, the regulator told The Straits Times. J&J is facing thousands of lawsuits in the United States over claims that some of its talcum powder products caused cancer. On Dec 14, Reuters reported that the pharmaceutical giant was aware of trace amounts of cancer-causing asbestos in its talc-based products since at least 1971. Talc is a mineral made up mainly of magnesium, silicon and oxygen, and it is commonly found in cosmetics. Cosmetic-grade talc, which must not contain contaminants such as asbestos, is generally regarded as a safe ingredient in cosmetics worldwide, including in the United States and Europe. It is allowed as an ingredient under the Asean Cosmetic Directive, which Singapore has adopted. Asbestos is a prohibited substance in cosmetic products under the Health Products (Cosmetic Products - Asean Cosmetic Directive) Regulations. While cosmetic products do not have to undergo evaluation and approval by HSA, they must comply with legal requirements for labelling as well as the restriction and prohibition on the use of certain ingredients. In battle over Johnson & Johnson's baby powder, asbestos opens a new legal front HSA said that dealers of cosmetic products have the legal responsibility for the safety of their products and are required to notify HSA before the products go on the market. For talcum powder used for children, HSA's regulations require such products to be labelled with the warning: "Keep powder away from children's nose and mouth." HSA said that it keeps tabs on products containing talc to make sure that they are safe. This includes testing samples of such products and monitoring adverse reactions among users. Products found to be unsafe will be removed from the market. HSA said it would continue to monitor closely any new safety data related to the use of talc in cosmetic products, and would take appropriate action and inform the public where necessary. ASBESTOS UPDATE: NYCAL Affirms Vacatur of $11MM Jury Award ---------------------------------------------------------- Law.com reported that the Court of Appeals issued a significant ruling on expert proof in the asbestos arena, holding that the plaintiff in a mesothelioma case had not provided sufficient evidence of causation and affirming the vacatur of an $11 million jury award. In In the Matter of New York City Asbestos Litigation, plaintiff's deceased husband was an auto mechanic who claimed exposure to asbestos dust while working on brakes, clutches and gaskets sold or distributed by Ford Motor Company. The court concluded that "the evidence was insufficient as a matter of law to establish that [Ford's] conduct was a proximate cause of the decedent's injuries" and that Ford was therefore entitled to judgment as a matter of law under CPLR 4404(a). The decedent, Arthur Juni, was diagnosed with mesothelioma in 2012. He had worked as an auto mechanic from 1966 to 2009 in two garages owned by Orange & Rockland Utilities servicing mostly Ford vehicles. He brought suit against a number of defendants, including Ford Motor Company, but died in 2014 before trial. His wife continued the lawsuit, asserting claims for negligence, products liability, failure to warn and loss of consortium. Before he died, Juni testified in a deposition, which was read to the jury during a 20-day trial. Juni testified that he was exposed to asbestos-containing dust in a variety of ways, including when he removed brake drums from Ford trucks, replaced brakes in a variety of Ford vehicles, scuffed new brakes with sandpaper, replaced clutches, cleaned gaskets, and swept up asbestos-laden dust generated by other mechanics. Over the four week trial, the jury also heard from experts in epidemiology, toxicology, medicine, occupational hazards, and environmental science. Defendants' experts testified that the chrysotile asbestos fibers in Ford's products were transformed into a biologically inert substance, Forsterite, during the high-heat manufacturing process and the products' subsequent high-heat use. Plaintiff's experts allegedly conceded that chrysotile activity can "become virtually nil" under high heat, that epidemiological studies on garage workers did not show a causal relationship with mesothelioma, and that "no one knows" whether the friction product dust to which Juni was exposed was toxic. The jury found Ford 49 percent liable for Juni's injuries and Orange & Rockland Utilities responsible for the remaining 51 percent. The trial court granted Ford's motion to set aside the verdict on the ground that there was legally insufficient evidence to establish that Juni developed mesothelioma as a result of his exposure to asbestos-containing friction products sold or distributed by Ford. The Appellate Division, First Department affirmed, holding that plaintiff had failed to satisfy the standards set forth in Parker v. Mobil Oil, 7 N.Y.3d 434 (2006), and Cornell v. 360 W. 51st St. Realty, 22 N.Y.3d 762 (2014), which require that plaintiff provide, at a minimum, some "scientific expression" of the level of exposure to toxins in defendant's products that was sufficient to have caused the disease. Then-Justice Feinman wrote a lengthy dissent, arguing that the jury's verdict was not "utterly irrational" and, accordingly, that the majority inappropriately substituted their assessment of the witnesses' credibility for the jury's. The Court of Appeals issued a Memorandum decision joined by Chief Judge DiFiore and Judge Stein in which Judges Fahey and Wilson joined in separate concurring opinions. The Memorandum decision stated without discussion that the evidence was insufficient as a matter of law to establish proximate cause pursuant to the standards set forth in Parker and Cornell. In Parker, the court established that "an opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation), and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." 7 N.Y.3d at 448. In Cornell, the court held that "there must be evidence from which a factfinder can conclude that the plaintiff was exposed to the levels of [the] agent that are known to cause the kind of harm that the plaintiff claims to have suffered." 22 N.Y.3d at 784. Judge Fahey's concurring opinion in the instant case states that, in his view, the evidence was legally insufficient to establish "a connection between [Ford] and decedent's exposure to asbestos" and that he was not addressing issues of "general or specific causation." Judge Wilson concurred to highlight his opinion that the failure of proof related to general causation and not specific causation. Judge Wilson explained that, for him, a "necessary link in the proof of proximate cause was missing" because there was a "gap in proof as to the toxicity of the products at issue." Essentially, Judge Wilson pointed to the fact that while Juni claimed exposure to asbestos-laden dust, Ford's experts proffered reliable unrebutted evidence that "the physical properties of the asbestos in Ford's friction products had been so radically altered as to render conventional toxicology irrelevant." The First Department had similarly found that plaintiff's experts' concessions about chrysotile in friction products so undermined their assertions of causation "as to render those assertions groundless or unsupported." Interestingly, the trial judge noted that the plaintiff's expert had offered in a different case the opinion that visible dust emanating from an asbestos-containing product contained enough dust to be hazardous, but that such proof was lacking in Juni's case. Judge Rivera dissented in a spirited opinion, while Judges Garcia and Feinman did not participate in the appeal. (Judge Feinman had dissented in the First Department decision below.) Judge Rivera noted that she agreed with Judge Feinman's earlier dissent. She focused on the standard for setting aside a jury verdict: that the outcome must be "utterly irrational," meaning that "there is simply no valid line of reasoning and permissible inferences which could possibly lead [a] rational [person] to the conclusion reached by the jury." Judge Rivera believed that there was compelling evidence of Juni's exposure to asbestos while working on Ford vehicles and products and inferred that the jury was unpersuaded by Ford's experts. She did not further address the alleged transformation of "active" chrysotile into "inactive" Forsterite in Ford's products. The Juni decision presents an important development in the court's treatment of expert evidence in the asbestos personal injury field. The court essentially rejects the proffer of conclusory statements that visible dust contains active asbestos in the face of countervailing expert evidence that the active asbestos fibers in friction products have already been converted to biologically inert substances. The decision could be understood as setting up a burden-shifting scheme whereby the plaintiff must rebut the defendant's expert testimony in order to survive a challenge under Parker and Cornell. With this guidance from the court, plaintiffs and the lower courts are on notice as to the evidentiary burden that must be met in order to establish causation. ASBESTOS UPDATE: Opposition to Remand Espinosa Suit Due on Jan. 17 ------------------------------------------------------------------ The Hon. Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California, at the behest of Plaintiffs Angela D. Espinosa et al. and Defendant CertainTeed Corporation, has approved the briefing schedule for Plaintiffs' Motion to Remand. Plaintiffs and CertainTeed have stipulated the following briefing schedule for Plaintiffs' Motion to Remand: (1) deadline for CertainTeed to file its Opposition: Jan. 17, 2018; and (2) deadline for Plaintiffs to file their Reply: Jan. 31, 2018. The case is Angela D. Espinosa, individually and as successor-in-interest to Edward M. Espinosa; Christopher M. Espinosa; Trista Haggard; and Patricia L. Fonseth, Plaintiffs, v. Certainteed Corporation, et al., Defendants. Case No. 4:18-cv-07059-HSG, (N.D. Cal.). A copy of the Order dated Jan. 2, 2019, is available at https://tinyurl.com/y9lffaxr from Leagle.com. Angela D. Espinosa, individually and as successor-in-inerest to, Edward M. Espinosa, Christopher M. Espinosa, Trista Haggard & Patricia L. Fonseth, Plaintiffs, represented by John L. Langdoc , Kazan McClain Satterley & Greenwood PLC & Denise R. Smith , Kazan McClain Satterley Greenwood. Certainteed Corporation, individually and as successor-in-interest, parent, alter ego and equitable trustee of Water Works Supply Company Inc., and Keasbey & Mattison Company, Defendant, represented by Michael Neil Lloyd -- nlloyd@schiffhardin.com -- Schiff Hardin LLP, Emily Katherine Ayers -- emily.ayers@dentons.com -- Dentons US LLP, Jennifer J. Lee -- jennifer.lee@dentons.com -- Dentons US LLP & Lisa Lurline Oberg -- Lisa.Oberg@dentons.com -- Dentons US LLP. Sully-Miller Contracting Company, individually and as successor-in-interest, parent, alter ego and equitable trustee of Sully-Miller Contracting Company, Defendant, represented by Barbara Rose Adams -- badams@clarkhill.com -- Clark Hill LLP & Michael Benjamin Sachs -- msachs@clarkhill.com -- Clark Hill LLC. Foster Wheeler LLC, Defendant, represented by Edward R. Hugo -- ehugo@hugoparker.com -- Hugo Parker, LLP & Charles S. Park -- cpark@hugoparker.com -- Hugo Parker, LLP. Allied Fluid Products Corp fka Allied Packing & Supply, Inc., Defendant, represented by Theodore Thomas Cordery -- tcordery@itkc.com -- Imai Tadlock Keeney & Cordery, LLP. Republic Supply Company, Defendant, represented by Nicole Denine Brown Yuen -- nyuen@foleymansfield.com -- Foley & Mansfield, PLLP. ASBESTOS UPDATE: P. Warner Says Asbestos Caused Husband's Death --------------------------------------------------------------- Madison County Record reported that a widow is suing more than a half-dozen users of asbestos products, alleging breach of duty, failure to warn and negligence in the death of her husband. Pamela Warner, individually and as special administrator of the estate of Allen B. Warner, deceased, filed a complaint Dec. 6 in St. Clair County Circuit Court against CBS, General Electric, Honeywell International Crown, Cork and Seal Company Inc., et al, alleging failure to exercise due care and caution for the safety of others. According to the complaint, during the span of Allen Warner's career that started in 1966, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by the defendants. The suit says on June 30, the Warners first became aware that he had developed lung cancer, which ultimately led to his death Nov. 26. The plaintiff alleges the defendants intentionally included asbestos fibers in their products when they knew they had toxic, poisonous and highly deleterious effects on human health, and they failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing these fibers. Pamela Warner seeks trial by jury, compensatory and punitive damages of more than $50,000 and any further appropriate relief. She is represented by attorneys Ethan A. Flint and Laci M. Whitley of Flint Law Firm LLC in Edwardsville. St. Clair County Circuit Court Case number 18-L-785 ASBESTOS UPDATE: Rail Worker Awarded GBP40K for Asbestos Exposure ----------------------------------------------------------------- Derbyshire Live reported that a Derby man has won almost GBP40,000 in compensation for having been exposed to asbestos for decades while working in the rail industry. Maurice Chapman, 86, started working on the railway as an apprentice in 1946, later becoming an electrical engineer, until his retirement in 1986. He would disturb asbestos while working on the electrics of the trains. He was never told of the dangers of asbestos or supplied with protective equipment by his employer, said Thompsons Solicitors, representing Mr Chapman. After suffering chest pains and breathing problems, he was diagnosed with asbestos-related disease asbestosis. A great-grandfather of six, Mr Chapman lives alone and has already moved his bedroom to the ground floor as his shortness of breath makes going upstairs difficult. Mr Chapman's family said that he had always been a keen gardener and would spend a lot of his time on his allotment. However, his illness left him unable to do this and also prevented him from carrying out simple tasks such as climbing up stairs, said the family. Mr Chapman and his daughter contacted Unite Legal Services and instructed Thompsons Solicitors to investigate an asbestos disease claim. Kevin Hepworth, East Midlands regional legal officer at Unite the Union, said: "People think of asbestos as a thing of the past, but its cases like Maurice's that show it's still very much present and continues to have a devastating effect on families across the country. "We would advise anyone suffering with an asbestos disease, or a loved one, to seek legal advice. "Because of his Unite membership, Maurice had free legal representation and was able to keep 100 per cent of his compensation." The compensation award means he can pay for adaptations to his home. ASBESTOS UPDATE: S. Kosmides Sues ABB, et al., Over Lung Cancer --------------------------------------------------------------- St. Louis Record reported that a woman alleges exposure to asbestos during her career caused her to develop lung cancer. Susan Kosmides filed a complaint on Dec. 20 in the St. Louis 22nd Judicial Circuit Court against ABB Inc., et al. alleging products liability and other counts. According to the complaint, the plaintiff alleges that at various times during her work beginning in 1959 at various locations across the country, she was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about Aug. 27, 2015, she first became aware that she developed lung cancer, an asbestos-induced disease, and subsequently learned that the disease was wrongfully caused. The plaintiff holds ABB Inc., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiff requests a trial by jury and seeks compensatory, exemplary and punitive damages of more than $50,000, costs and any further relief that the court may deem equitable and just. She is represented by Randy L. Gori of Gori, Julian & Associates PC in Edwardsville, Illinois. St. Louis 22nd Judicial Circuit Court case number 1822cc11901 ASBESTOS UPDATE: Scott Couple Files Asbestos Suit vs. CBS Corp -------------------------------------------------------------- St. Louis Record reported that a man alleges exposure to asbestos beginning in the 1960s caused him to develop lung cancer. John Scott and Ruby Scott filed a complaint on Dec. 3 in the St. Louis 22nd Judicial Circuit Court against CBS Corp., et al. alleging strict liability and other counts. According to the complaint, the plaintiffs allege that at various times during John Scott's employment beginning in the 1960s in South Carolina, he was exposed to and inhaled or ingested asbestos fibers emanating from certain products manufactured, sold, distributed or installed by defendants. The suit states that on or about June 12, 2017, he first became aware that he developed lung cancer, an asbestos-induced disease, and that it was wrongfully caused. The plaintiffs hold CBS Corp., et al. responsible because the defendants allegedly negligently included asbestos fibers in their products when adequate substitutes were available and failed to provide adequate warnings and instructions concerning the dangers of working with or around products containing asbestos fibers. The plaintiffs seek compensatory damages of no less than $50,000, plus interest, costs and all further relief that the court may deem proper and just. They are represented by Benjamin R. Schmickle and Matthew C. Morris of SWMW Law LLC in St. Louis. St. Louis 22nd Judicial Circuit Court case number 1822-CC11749 ASBESTOS UPDATE: Scottish Nat'l Gallery Workers Exposed to Asbestos ------------------------------------------------------------------- The Scottish Sun reported that asbestos has been found at the Scottish National Gallery -- amid fears workers may have been exposed. It's understood the potentially deadly material was uncovered by labourers during the GBP22 million redevelopment of the prestigious site. Bosses at the Edinburgh landmark revealed the area where it was discovered has since been sealed off. But a source claimed workers were worried saying: "It's only been found out. At least a dozen people may have got into contact with it. Electrician who 'poisoned' wife with asbestos dust when they kissed 40 years ago sues for £1m after she dies of lung cancer "The asbestos is in the brickwork and has always been there." The iconic Mound venue -- opened in 1859 -- is being revamped to create extra exhibition space and boost accessibility. Asbestos kills around 5,000 workers each year with around 20 tradesmen dying a week due to past exposure. But health and safety chiefs probed the finding as museum bosses insist there's "no risk" to employees or tourists. A spokeswoman for the National Galleries of Scotland said: "Asbestos has been identified in a contained non-public area. "The area is sealed off and it will be removed by a licensed specialist. "Health and safety advisers are satisfied with the measures put in place. There's no risk to staff or visitors." The Health and Safety Executive added: "We are content the contractor has taken the appropriate action. We don't intend to investigate further." ASBESTOS UPDATE: Utica's Extra-Contractual Claims Dismissed ----------------------------------------------------------- The case styled Utica Mutual Insurance Company, Plaintiff, v. Century Indemnity Company, as Successor to CCI Insurance Company, as Successor to Insurance Company of North America, Defendant, Century Indemnity Company, as Successor to CCI Insurance Company, as Successor to Insurance Company of North America, Counter-Claimant, v. Utica Mutual Insurance Company, Counter-Defendant, No. 6:13-CV-995, (N.D.N.Y.) involves a dispute between Utica Mutual Insurance Company, a primary insurer, and Century Indemnity Company, a reinsurer, over whether Century must reimburse Utica for certain sums paid out on behalf of Goulds Pumps, the underlying insured party, to resolve tens of thousands of asbestos exposure claims. District Judge David N. Hurd for the Northern District of New York has issued a Memorandum-Decision and Order denying the Parties' various motions, save for Century's motion to dismiss Utica's extra-contractual claims, which is granted. The Court encourages the Parties to resolve their outstanding disagreements in this matter without further intervention from the Court. The Parties have filed a total of ten different motions requesting various forms of relief. Beginning in 1955 and continuing through at least the end of 1986, Utica issued yearly primary general liability insurance policies to Goulds Pumps. And between 1964 and 1983, Utica also issued seventeen umbrella liability policies to Goulds. Primary and umbrella policies generally obligate an insurer like Utica to defend and, where appropriate, to settle claims against a policyholder like Goulds. Over the course of this 32 year business relationship, Utica would hedge its bets on these Goulds policies by partnering with reinsurers like Century to distribute the risk of possible loss from future claims. According to Utica's complaint, it purchased from Century two reinsurance certificates covering portions of certain umbrella policies issued to Goulds: (1) Certificate FRC 00978 related to a 1973 umbrella policy and (2) Certificate FRC 05441 related to a 1975 umbrella policy. Utica contends that Century agreed to reimburse Utica for a specified percentage of its expense payments (sums paid in connection with the defense of a claim) as well as a percentage of its loss payments (sums paid to settle claims) under these two agreements. Century, for its part, acknowledges it reinsured the 1973 Certificate in question but flatly denies ever coming to terms with Utica on the 1975 Certificate. In support of this denial, Century points out that Utica has not only failed to produce a physical copy of this so-called 1975 Certificate, but also that Utica cannot identify any witness who can say with personal knowledge that it was ever issued. On the contrary, Century asserts that the one-page piece of physical evidence Utica has produced to substantiate the existence of a 1975 Certificate is in fact nothing more than a non-binding quote or offer for coverage. By December 2004, Goulds to call on Utica, which went to work defending and indemnifying its insured against these asbestos claims in accordance with the terms of the old primary and umbrella insurance policies it had issued over the course of their thirty-two-year relationship. At the same time, Utica began billing Century and other reinsurers under the terms of the now-decades-old reinsurance certificates it had purchased from them. As the losses piled up, relations between Goulds and Utica broke down, degenerating into a series of disagreements over which entity should control the defense of the individual asbestos claims, how certain coverage should be allocated under the insurance policies, and whether the primary policies were subject to aggregate limits. In February of 2003, Goulds dragged Utica into existing coverage litigation it had filed in California state court. As part of that suit, Goulds alleged that certain Utica primary policies lacked aggregate limits, that those policies had not been exhausted, and that therefore Utica had failed to fulfill its obligations as the insurer of the primary and umbrella policies it issued to Goulds all those years before. Utica responded in October of that year by filing its own coverage suit against Goulds in New York state court. In both the New York and California litigation, Goulds argued that certain primary policies it had purchased from Utica lacked aggregate limits. And in both suits, the parties sparred over which state's law should apply to the insurance contracts at issue. In February of 2007, Utica and Goulds executed an agreement worth $325 million. Among other things hammered out in this agreement, the parties agreed between themselves that the primary policies contained aggregate limits, that the limits of those policies had already been exhausted, and that the settlement proceeds would therefore be paid out under the umbrella policies. At some point, however, Century acquired information that convinced it Utica had inappropriately leveraged its reinsured umbrella policies as a bargaining chip during settlement negotiations after it realized the gravity of the threat posed by Goulds's litigating position vis-a-vis aggregate limits. Century believes Utica granted Goulds $140 million in additional umbrella coverage in exchange for Goulds's explicit agreement that the primary policies did in fact have aggregate limits and were in fact already exhausted. Century accused Utica of colluding with Goulds to structure the settlement in a way that shifted millions of dollars in coverage from the unreinsured primary policies to the reinsured umbrella layers. Utica denied the accusation and insisted that its decisions about how to allocate payments under the policies reinsured by Century and others were unaffected by its settlement with Goulds. When Century quit paying Utica's billings, Utica filed this suit. Utica has filed three motions for partial summary judgment. Utica contends that its allocation decisions concerning Century's financial responsibility were reasonable and made in good faith as a matter of law. It allocated loss payments to the insurance policies at issue on a pro rata basis before reaching a settlement with Goulds and asserts that these allocation decisions remained unchanged after it consummated the 2007 settlement. Utica asserts that Century's dispute on this issue essentially amounts to a demand for a more favorable allocation "where it pays less and others, including other reinsurers, pay more." Century responds that Utica's billings are inconsistent with the agreement it made with Goulds and serve to demonstrate that Utica is actually attempting to "inflate its reinsurance recovery by billing its reinsurer under a different set of rules than it had agreed to with its policyholder." Century contends Utica granted Goulds an additional $140 million in coverage that is not contemplated by the terms of the reinsurance contract. The Court finds neither party has established, as a matter of law, the propriety (or impropriety) of the allocation decisions at issue here. Accordingly, Utica's motion for partial summary judgment on allocation will be denied. Utica also claims Century has no valid defense against the enforceability of the 1975 Certificate, that is, Century's assertion that the 1975 Certificate identified by Utica is not a valid or binding contract on Century. Utica argues that the existence of a formal reinsurance certificate is actually "technically unnecessary" to establish a binding agreement. According to Utica, courts regularly accept secondary evidence offered by a party to establish the existence and terms of an agreement. Century responds that Utica cannot point to satisfactory secondary evidence in this case. Alternatively, Century asserts that even if Utica could produce satisfactory evidence of the certificate's existence, this is a case of mistaken identity. According to Century, Utica's 1975 reinsurance agreement is with Randall & Quilter Investment Holdings, Ltd. ("R&Q"), an entity that bought out Insurance Company of North America -- Reinsurance ("INA Re"). Century asserts that it is a successor to Insurance Company of North America ("INA"), not INA Re -- while INA and INA Re were once affiliates, they were and are separate companies. Utica has identified documentary and other evidence tending to show the existence of a valid agreement for reinsurance from 1975. But Century's responsive submission also includes a significant amount of evidence undercutting Utica's factual assertions. Century has also introduced evidence that, if credited, might establish that Utica's 1975 reinsurance agreement was with INA Re, not INA. Because these kind of disputes are better left to a finder of fact, the Court will deny Utica's motion for partial summary judgment on Century's sixth affirmative defense. Utica further asserts that Century's counterclaims for breach of contract (Count One) and a breach of the duty of utmost good faith and fair dealing (Count Two) should be dismissed. Utica contends that these counterclaims are an attempt by Century to recover the $5 million it previously paid to Utica. Utica contends that Century has no right to obtain any prior payments. Alternatively, Utica contends Century would still owe $5 million regardless of whether or not Utica's prior allocation decisions are vindicated in court. Century responds that Utica withheld material information relevant to the reinsurance agreement in violation of the duty of utmost good faith and fair dealing owed by a cedent to its reinsurer. According to Century, Utica acted in bad faith by actively concealing information that only came to light during discovery. The Court, citing Gerling Global Reinsurance C.-U.S. Branch v. Ace Prop. & Case. Ins. Co., 42 F., explains that non-disclosure of such material facts renders a reinsurance agreement voidable or rescindable. Utica's supporting memorandum goes to great lengths to establish that Century knew about, but failed to act on, the alleged inconsistencies about which it now complains. But as Century explains, there is also evidence to indicate that it did not learn certain, particularly salient facts until it managed to force their production in discovery beginning in late October 2014. And as Century points out, virtually all of Utica's legal theories -- including waiver, estoppel, and assumption of risk -- presuppose that the counter-party is in full possession of all the material facts underlying the conduct at issue, a state of affairs disputed in this litigation. Thus, the Court concludes the parties have established genuine factual disputes over who knew what and when. Accordingly, the Court will deny Utica's motion for partial summary judgment on Century's counterclaims. Century's first motion for partial summary judgment seeks dismissal of Utica's claim that the 1973 Certificate obligates Century to pay for Utica's defense costs. Century contends that Utica already fully and fairly litigated this question in an arbitration proceeding with R&Q, another reinsurer that challenged an identical obligation in a substantially similar reinsurance certificate. According to Century, the outcome of the R&Q arbitration should be applied to estop Utica from re-litigating the question in this forum. The Court notes that in November of 2008, the relationship between Utica and R&Q devolved after the parties disagreed over approximately $21.7 million in outstanding billings traceable to the R&Q reinsurance certificates. The parties jointly agreed to arbitrate their dispute and engaged in extensive briefing and argument before an arbitration panel. On Oct. 19, 2013, the arbitration panel issued its final order. Among other things, the arbitration panel concluded that the certificates reinsuring the 1978-1982 umbrella policies issued by Utica to Goulds do not cover defense costs. Relying on the outcome of these arbitration proceedings, Century contends this amounted to a rejection of Utica's claim that the "not covered by" provision permitted such costs. Century further contends that Utica should be estopped in this action from what it argues is an attempt to re-litigate the meaning of a "not covered by" provision, since substantively identical language appears in the 1973 umbrella policy at issue here. However, the Court finds Century has failed to show "with clarity and certainty what was determined by the prior judgment" -- the precise contours of the arbitral award. Accordingly, the Court denies Century's motion for partial summary judgment on collateral estoppel. Century also argues that Utica cannot sustain its claim for an account stated, because Century disputed Utica's billings within a reasonable period of time. Utica responds that there are disputed issues of fact surrounding whether or not Century acted reasonably in investigating and in later disputing Utica's billings. However, the Court determines from the current record that the parties have fought each other on these issues almost every step of the way. Thus, no matter how Utica paints Century's conduct before and after it filed this lawsuit, its filings fail to demonstrate the sort of express or implied acquiescence to its billings that are a necessary predicate of an account stated claim. Century also argues that Utica's bad faith claim must fail because Century had an arguable basis on which to investigate and challenge Utica's claims. Utica responds that Century has employed inappropriate tactics to delay making payments under the reinsurance agreements. The Court determines from the dueling legal memoranda submitted on this issue that the parties dispute the precise timeline of events while accusing each other of failing to take certain steps to avert further litigation. As Century details in its moving papers, both parties spent time searching their own and even each other's records for supporting documentation that might clarify or otherwise substantiate their obligations to each other. Even now, after mountains of discovery of have been produced, certain questions seem to lack satisfying answers. However, the Court determines the conduct of both parties and the sequence of events in this case make clear that Utica has not produced sufficient evidence to shoulder the burden of rebutting the general presumption against bad faith. Thus, no reasonable fact finder could conclude that Century lacked at least an arguable basis for objecting to, and investigating the basis for, Utica's claims. Century also argues that Utica's request for a declaratory judgment (Count Four) concerning future billings is moot because Utica has already issued final billings to Century. Utica responds that it remains entitled to a declaration regarding the parties' rights and obligations under the 1973 and 1975 agreements. The Court finds Utica's request for declaratory judgment is an attempt to sort out to the same rights that will be determined under its breach of contract claim, regardless of whether Century is correct about Utica's final billings. Century also seeks partial summary judgment on the issue of whether a mid-term endorsement allegedly issued by Utica modifying certain terms of the 1973 umbrella policy it issued to Goulds can bind Century. According to Century, this endorsement was issued after the 1973 Certificate and effects changes in coverage to which Century never consented. After a review of the parties' submissions, the Court determines genuine disputes of material fact that preclude summary resolution of this issue. Among other things, Utica has submitted evidence to substantiate its position that the mid-term endorsement did not actually "modify" the agreement in the manner claimed by Century. Instead, Utica argues that the 1973 Certificate permitted Utica, as cedent, to issue endorsements, like the mid-term endorsement at issue, without receiving consent from the reinsurer. Utica claims that the standard underwriting practices would have required it to inform Century of any endorsements anyway -- and that there is evidence to substantiate Utica's assertion that it acted in conformity with those practices when transmitting endorsements to Century. Finally, Century has moved to dismiss Utica's claims based on the 1975 Certificate for lack of standing or, in the alternative, for failure to join National Indemnity Company ("NICO") as the real party in interest. Century contends Utica sold off its rights to any outstanding reinsurance billings under the Goulds settlement to NICO in September of 2012. Utica responds that none of these agreements affect its ability to pursue claims against Century based on the reinsurance certificates. Utica maintains that while it may have assigned to NICO certain rights to collect proceeds from any recovery, it did not assign away the rights to the underlying "claims" against Century. Utica insists that, at best, Century has established that Utica partially assigned rights to specific proceeds arising from a single billing, leaving thirty-one other billings totally unaffected. Century further contends that this action should be dismissed because Utica has completely assigned away any and all rights in the certificates. The alleged assignment at issue happened on September 28, 2012, when Utica and NICO entered into a pair of agreements: a Factored Receivables Agreement and a National Division Run-Off Reinsurance Agreement. Moreover, NICO tasked Resolute Management, Inc. to administer the two agreements. Century explains that, after Utica's agreement with NICO was put in place, Resolute, not Utica, began to issue billings for the 1973 Certificate and 1975 Certificate, and in each instance those bills directed Century to remit payment to an account controlled by NICO, not Utica. Century also flags as relevant another set of agreements. On April 25, 2016, NICO, Utica, Goulds, and others entered into an agreement whereby Goulds provided Utica "with a complete release of all pre-1986 Utica policies issued to Goulds" and confirmed that "Utica has no further obligations" under the 2007 settlement. In addition, NICO entered into an agreement with Goulds to pay a fixed sum between now and 2021. Thus, taken together, Century asserts that these agreements operate to establish Utica's complete assignment of its right to assert any claims arising under the certificates. But as Utica points out, the upshot of these agreements seems to be that any proceeds from a recovery secured in litigation by Utica will flow to NICO. Century's alternative claim is that Utica has failed to join NICO as the real party in interest. The Court, rejecting Century's argument, maintains that Utica, as party to the underlying certificates, is the proper party to pursue a claim based on an alleged breach of the obligations set forth in them. The Court determines that Utica has a sufficient stake in the matter to continue to pursue this litigation. Accordingly, the Court will deny Century's motion to dismiss. A copy of the Memorandum-Decision and Order, is available at https://tinyurl.com/y8yt8nyr from Leagle.com. Utica Mutual Insurance Company, Plaintiff, represented by Syed S. Ahmad -- sahmad@HuntonAK.com -- Hunton Andrews Kurth LLP, Patrick M. McDermott -- pmcdermott@HuntonAK.com -- Hunton Andrews Kurth LLP, pro hac vice & Walter J. Andrews -- wandrews@HuntonAK.com -- Hunton Andrews Kurth LLP, pro hac vice. Century Indemnity Company, as Successor to CCI Insurance Company, as Successor to Insurance Company of North America, Defendant, represented by Brad M. Elias -- belias@omm.com -- O'Melveny, Myers Law Firm, Nathanael T. Everhart -- neverhart@omm.com -- O'Melveny, Myers Law Firm, pro hac vice, Tancred V. Schiavoni -- tschiavoni@omm.com -- O'Melveny, Myers Law Firm, Timothy Wood Grinsell , O'Melveny, Myers Law Firm, pro hac vice & Vincent S. Weisband -- vweisband@omm.com -- O'Melveny, Myers Law Firm. Munich Reinsurance America, Inc., Amicus, represented by Bruce M. Friedman -- bfriedman@rubinfiorella.com -- Rubin, Fiorella Law Firm. Fireman's Fund Insurance Company, Amicus, represented by Mary A. Lopatto -- malopatto@williamslopatto.com -- Williams, Lopatto Law Firm. Century Indemnity Company, as Successor to CCI Insurance Company, as Successor to Insurance Company of North America, Counter Claimant, represented by Brad M. Elias -- belias@omm.com -- O'Melveny, Myers Law Firm, Nathanael T. Everhart -- neverhart@omm.com -- O'Melveny, Myers Law Firm, pro hac vice, Tancred V. Schiavoni -- tschiavoni@omm.com -- O'Melveny, Myers Law Firm, Timothy Wood Grinsell , O'Melveny, Myers Law Firm, pro hac vice & Vincent S. Weisband -- vweisband@omm.com -- O'Melveny, Myers Law Firm. Utica Mutual Insurance Company, Counter Defendant, represented by Syed S. Ahmad -- sahmad@HuntonAK.com -- Hunton Andrews Kurth LLP, Patrick M. McDermott -- pmcdermott@HuntonAK.com -- Hunton Andrews Kurth LLP, pro hac vice & Walter J. Andrews -- wandrews@HuntonAK.com -- Hunton Andrews Kurth LLP, pro hac vice. ASBESTOS UPDATE: Warren Pumps Bid for Summary Judgment Denied ------------------------------------------------------------- The Hon. Robert S. Lasnik of the United States District Court for the Western District of Washington has denied Defendant Warren Pumps, LLC's motion for summary judgment filed in the case styled Alice Mikelsen, Surviving Spouse, and Susan Page, as Personal Representative for Arthur Melvin Mikelsen, Deceased, Plaintiffs, v. Air & Liquid Systems Corporation, et al., Defendants, No. 2:17-cv-00700-RSL, (W.D. Wash.). Plaintiffs' decedent, Arthur Mikelsen, worked at the Puget Sound Naval Shipyard from approximately 1942 to 1980. Mr. Mikelsen worked primarily inside the machine shop at the shipyard. Plaintiffs allege that defendant Warren Pumps manufactured pumps that contained asbestos and that Mr. Mikelsen was exposed to its products -- and the asbestos contained therein -- while working in the machine shop. Mr. Mikelsen developed mesothelioma, an asbestos-related disease, and died in 2014. Plaintiffs assert that Warren Pumps is liable for Mr. Mikelsen's death and the plaintiffs' injuries because it put into the stream of commerce products that were negligently designed, were not reasonably safe as manufactured, and were not reasonably safe for lack of warnings. Plaintiffs also assert that Warren Pumps is liable because it failed to reasonably inspect, test, warn, instruct, monitor, and/or recall the products. Warren Pumps does not dispute that at least some of the products it supplied to the Navy during the relevant time frame contained asbestos or that its pumps were maintained and repaired in Shop 31 where Mr. Mikelsen worked. Rather, Defendant argues that mere presence in the workplace is insufficient to create a jury issue regarding whether its products caused Mr. Mikelsen's mesothelioma. Defendant points out that Plaintiffs have no evidence that Mr. Mikelsen ever worked directly on a Warren Pump during his thirty-five years as a machinist. The record shows, however, that a number of the factors identified by the Washington Supreme Court favor allowing the issue of causation to go to the jury even if there is no evidence that Mr. Mikelsen personally worked on a Warren Pumps product. The Court finds Mr. Mikelsen was exposed to asbestos-containing products both on-board ship during his apprenticeship and later in the machinist shop. While three manufacturers provided pumps for the USS Midway, the Court finds that Warren Pumps provided almost 100 of them, (as of 1960) in the middle of Mr. Mikelsen's service. Warren Pumps was supplying a quarter of all pumps purchased by the Navy. The Court determines that Warren Pumps provided a significant portion of the pumps that went through Shop 31, Mr. Mikelsen worked in the same space where the asbestos in defendant's products was exposed, the products were handled in such a way that they generated visible asbestos-containing dust, the work area, while large, was well within the dispersal range of asbestos fibers, Mr. Mikelsen was exposed to defendant's products for decades with no protective equipment, and the causal link between asbestos fibers and mesothelioma is well supported. Moreover, the Court points out that Warren Pumps does not identify any other source of asbestos in the workplace or Mr. Mikelsen's private life that was a dominant contributor to his asbestos exposure, nor does it identify another possible cause of his mesothelioma. Warren Pumps further argues that, as a supplier of military equipment, it is immune from liability for alleged defects in the design or manufacture of the equipment under the "government contractor" defense. Warren Pumps asserts that "the Navy itself actually developed" the specifications to which its pumps were manufactured and "made the considered military decision to use asbestos in association with. . . the equipment it required for use" on its vessels, citing en masse to twenty-five pages of its expert's report. Neither Warren Pumps nor its expert, Rear Admiral David P. Sargent, Jr. (Ret.), identifies a directive from the sovereign requiring Warren Pumps to include asbestos in its packing, gaskets, and/or insulation lagging. Rear Admiral Sargent asserts that "military specifications for gasket and packing for centrifugal pumps required the use of asbestos-containing materials." Because this fact requires no technical or scientific expertise, the admissibility of this evidence is unclear. However, Warren Pumps, which bears the burden of proof on this issue, has not provided any regulation, contract, or other specification that limited its discretion to choose a suitable material when manufacturing the pumps sold to the Navy. In these circumstances, the existence of "reasonably precise specifications" cannot be proven as a matter of law by the ipse dixit of an expert, thus, Warren Pumps is not entitled to summary judgment on the government contractor defense. With regards to plaintiffs' failure to warn claims, Warren Pumps argues that the sovereign retained and exercised its discretion with regards to equipment labels and warnings such that Warren Pumps cannot be held liable for any alleged failure to warn. Rear Adm. Sargent opines that the Navy had detailed specifications regarding written materials provided with equipment that "included strict instructions regarding the labeling of and packaging of the components themselves, and for all technical documentation that was procured with them." Again, the Court finds no specifications, instructions, or regulations are identified. It appears that the Navy's purchase contracts required manufacturers to draft technical manuals to be delivered with the equipment. While there were incredibly specific requirements regarding the formatting, topics to be addressed, and writing style of these manuals, the Court determines that the actual contents thereof, including any NOTES, CAUTIONS, and WARNINGS, were left to the manufacturer. The Court explains that the fact that new warnings had to be approved by the Navy before they could be included in an updated technical manual does not mean that the Navy specified the warnings that were included. Thus, Defendant has not met its burden of showing, as a matter of law, that the Navy had reasonably precise specifications regarding warnings and labeling that precluded it from complying with its state law duty to warn. A copy of the Order, is available at https://tinyurl.com/y7xryf69 from Leagle.com. Alice Mikelsen, surviving spouse & Susan Page, as personal representative for Arthur Melvin Mikelsen, deceased, Plaintiffs, represented by Kristin M. Houser -- houser@sgb-law.com -- Schroeter Goldmark & Bender, Lucas W.H. Garrett -- garrett@sgb-law.com -- Schroeter Goldmark & Bender, Thomas J. Breen -- breen@sgb-law.com -- Schroeter Goldmark & Bender, Craig A. Sims -- csims@sgb-law.com -- Schroeter Goldmark & Bender, Elizabeth Jean McLafferty -- mclafferty@sgb-law.com -- Schroeter Goldmark & Bender, Kaitlin T. Wright -- wright@sgb-law.com -- Schroeter Goldmark & Bender & William Joel Rutzick , Schroeter Goldmark & Bender. CBS Corporation, fka Viacom, Inc., successor by merger with CBS Corporation fka Westinghouse Electric Corporation & Foster Wheeler Energy Corporation, Defendants, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP & Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP. Crane Co, Defendant, represented by G William Shaw -- bill.shaw@klgates.com -- K&L Gates LLP. General Electric Company, Defendant, represented by Christopher S. Marks -- cmarks@tktrial.com -- Tanenbaum Keale LLP, Erin P. Fraser -- efraser@tktrial.com -- Tanenbaum Keale LLP & John Heller -- jheller@sidley.com -- Sidley Austin, pro hac vice. Goulds Pumps (IPG), Inc., Defendant, represented by Ronald C. Gardner -- rgardner@gandtlawfirm.com -- Gardner Trabolsi & Assoc. PLLC. Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski -- gawlowski@wscd.com -- Wilson Smith Cochran & Dickerson. Warren Pumps LLC, sued individually and as successor-in-interest to Quimby Pump Company, Defendant, represented by Allen Eraut -- aeraut@rizzopc.com -- Rizzo Mattingly Bosworth PC. ASBESTOS UPDATE: Woman in 20s Dies of Asbestos Cancer ----------------------------------------------------- Daily Echo reported that a woman in her 20s was killed by an 'very overwhelming and aggressive' cancer usually seen in people in later life, an inquest heard. Winchester Coroner's Court heard 29-year-old Laura Emery was diagnosed with malignant mesothelioma, a type of cancer usually associated with asbestos exposure, last December. The tumour, which had spread around much of Ms Emery's chest and abdomen, was described as the biggest Pathologist Dr Victoria Elliot had seen. Dr Elliot told the inquest Ms Emery's left lung had been "almost completely destroyed" by the disease and the tumour had been pressing on her heart, making it work harder. "This was the most tumour volume I have seen, and some of my colleagues have seen," and was a "very overwhelming and aggressive tumour", Dr Elliot added. However, she said there was typically a 30-year gap between asbestos exposure and symptoms appearing, adding: "This is a very unusual scenario." The inquest heard that between 2005 and 2013, Ms Emery, of Hall Lands Lane, Fair Oak, had been working as an agricultural worker on various poultry farms, and is thought this is where she may have been exposed to asbestos. Solicitor Lynn Yates said at one of the sites -- Cock Pit Farm in Horton Heath – "one of the sheds was in a poor state. She thought it might have been an asbestos roof". Recording a conclusion of death due to industrial disease, senior coroner Grahame Short said: "It's very clear it was a particularly aggressive tumour which had spread to large parts of her body. "What's more difficult... is to establish causation. In my experience, the vast majority who suffer from mesothelioma are in their 50s, 60s, 70s, 80s. "There's evidence Laura was exposed, although Dr Elliot has been unable to demonstrate that. It's possible Laura was one of the unfortunate people where the cancer can develop spontaneously. "It's more likely than not the asbestos dust that had caused the cancer." ********* 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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