/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/190215.mbx C L A S S A C T I O N R E P O R T E R Friday, February 15, 2019, Vol. 21, No. 34 Headlines 125 COURT: 2d Cir. Affirms Dismissal of 421-A Tenants Suit 3M COMPANY: Combat Arms Earplugs Defective, Military Personnel Say ACCOLADE INC: Settlement in Fulton-Green Suit Has Prelim Approval AIRSTREAM INC: Satterly Seeks Overtime Wages for Employees ALLERGAN PLC: Feb. 19 Lead Plaintiff Bid Deadline ALLERGAN PLC: Law Firms File Class Action Over Breast Implants ALTA MESA: Sued over False & Misleading Securities Statements AMAZING HOME: Rivas Seeks Unpaid Wages & Overtime Pay AMERICAN CHORE: Borisovskiy Suit Alleges FLSA, NYLL Violation APHRIA INC: Scott+Scott Posts New Info on Class Action ARRIS INTERNATIONAL: Agnes-Sampson Sues Over Sale to CommScope AUSTRALIA: 110 Businesses Join $400MM Sydney Light Rail Suit AUTOBAHN INC: Court Dismisses S. Ferrari's Suit with Prejudice AUTOBAHN INC: Settlement in S. Ferrari's Suit Has Final Approval BARCLAYS CAPITAL: Court Resolves Deposition Notice Scope in Bigsby BCBSM INC: LP Suit Alleges ERISA Violation BECTON DICKINSON: Defending Against 4,445 Hernia Product Claims BECTON DICKINSON: Has Deal for 15,156 Women Health Product Claims BIG M CASINO: Court Conditionally Certifies Pecora FLSA Class BIG M CASINO: Court Denies Bid to Dismiss Pecora FLSA/SCPWA Suit BLUE NILE: Dennis Files ADA Suit in E.D. New York BP EXPLORATION: Eldridge Suit Over Oil Spill Moved to N.D. Miss. CALIFORNIA SERVICE: Settlement in West TCPA Suit Has Final Approval CANADA: Quebec Nursing Home Residents' Class Action Pending CAPITAL ONE: Court Denies Bid to Remand Langer PCC/MVSFA Suit CITY ISLAND YACHT: Thorne Files ADA Class Action in New York CONNLEY FISHING: Thorne Files ADA Class Action CONTEXTLOGIC INC: Violates ADA, Dennis Suit Asserts CORONA, CA: Failed to Apply Cash-in-Lieu Payments, Sevier Says CRST EXPEDITED: 8th Cir. Appeal Filed in Sellars Harassment Suit DANSKE BANK: March 11 Lead Plaintiff Bid Deadline DOLLAR TREE: Supplemental Pretrial Sched Order in Snipes Issued DURACELL CO: Siddle & Meeks Sue over Defective LED Flashlights DXC TECHNOLOGY: Feb. 25 Lead Plaintiff Bid Deadline EPIC SYSTEMS: Lewis FLSA Suit Can't Proceed in District Court FLIGHT SERVICES: Cook et al. Seek to Certify Classes FLOWERS FOODS: Appeals Class Cert. Ruling in Noll Labor Suit FORD MOTOR: Judge Tosses Swollen Lug Nuts Class Action GENWORTH LIFE: Court Dismisses Rhinehart Suit with Leave to Amend GLV INC: Court Certifies Class in Mullen ICFA/IPFSA Suit GOOGLE INC: Supreme Court Considering Role of Cy pres Awards HAITI: Ex-Government Officials Involved in Wire Transfer Fraud HAVANA'S CUBAN: Spears Seeks Payment for Overtime Work HEARTBEAT HEALTH: Crosson Files ADA Suit in E.D. New York ICON CO: Opal Tower Homebush Residents Mull Class Action ILLINOIS: Court Dismisses Substantive Due Process Claim in Frazier IMMUNOMEDICS INC: Pomerantz Law Firm Probes Securities Claims INFORMATION RESOURCES: May 31 Bakhtiar Class Cert. Bid Filing Due INTU CORP: More Massage Therapists Join Class Action INTUITIVE SURGICAL: Says California Securities Suit Now Concluded KANSAS: Judge Certifies Lawsuit Againts Dep't of Corrections KEURIG DR. PEPPER: Facing False Advertising Lawsuits LELAND, NC: Responds to Builders' Suit Over Illegal Impact Fees LIFESTYLE PUBLICATIONS: Lowe Suit Moved to C.D. California LIFEVANTAGE CORP: Smith Suit Still Ongoing in Utah LOUISIANA: Landry's Bid to Alter/Amend Judgment in Campbell Denied LOVED ONES: Court Allows Filing of 3rd Amended Mayhew FLSA Suit LOXO ONCOLOGY: Stevens Sues over Eli Lilly Merger Deal MAHARD EGG FARM: Miranda Suit Asserts Civil Rights Act Violation MARKEL CORP: Glancy Prongay Files Securities Class Action MARKEL CORP: Schall Law Files Securities Class Action Lawsuit MCKESSON CORP: Seeks Extension of Time to File Writ MDL 2785: Sanofi's Suggestion of Remand Bid Denied w/o Prejudice MDL 2848: Skoczlas Asks Court to Remand Zostavax Case to N.D. Tex. MERCK & CO: Settles 7-Year Equal Pay Class Action for $6.2MM MERCK SHARP: Cannot Compel Arbitration in Rotavirus Antitrust Suit MESA LABORATORIES: Orrington Settlement Receives Initial Approval MICRON TECHNOLOGY: Sued over Misleading Reports, Share Price Drop MONSANTO COMPANY: Alexy Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Lombard Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Martin Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Martinez Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Outlaws Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Peetzs Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Scotts Sue over Sale of Herbicide Roundup MONSANTO COMPANY: Smith Sues over Sale of Herbicide Roundup MONSANTO COMPANY: Susaks Sue over Sale of Herbicide Roundup NANO: Faces 2nd Class Action Over BitGrail Hack NAVIENT CORP: Johnson Fistel Probes Securities Claims vs 3 Companie NESTLE INDIA: Says Noodles Does Not Contain Lead Amid Class Suit NESTLE INDIA: Supreme Court to Reopen Maggi Noodles Class Action NESTLE USA: Tomasella Sues Over Non-disclosure in Product Packaging NEW ERA CAP: Dennis Hits Blind-inaccessible Website NPSG GLOBAL: Reese Sues Over Unpaid Hourly, Overtime Wages OKLAHOMA: National Experts Release Foster Care Reform Report ONTARIO: Court Certifies Class Action Over Youth Segregation PALM BEACH, FL: School Board May Drug Test Substitute Teachers PARBALL NEWCO: Settlement in Slack FLSA Suit Has Final Approval PARKWOOD ENTERTAINMENT: Blind Woman Files Discrimination Case PEPSICO INC: Removed Riddle Case to Middle District of Florida PRIMESOURCE HEALTH: Pfefferkorn Suit Has Conditional Certification RASH CURTIS: Court Denies Bid for Sanctions in McMillion TCPA Suit RCR TOMLINSON: EGL to Acquire Energy Assets Amid Class Action SEMPRA ENERGY: Plumley Appeals S.D. Cal. Ruling to Ninth Circuit SOGOU INC: Johnson Fistel Files Securities Class Actions vs 3 Cos STONEMOR PARTNERS: Continues to Defend Anderson Suit in E.D. Pa. TELACU MANAGEMENT: Sanders Seeks Payment of Overtime Wage TEXAS: Court Dismisses J.R. Gray's Suit for Lack of Jurisdiction THREE STARON: Ortiz Seeks Payment of Minimum Wage TOOTSIE ROLL: Beasley Suit Alleges Breach of Implied Warranty TOTAL CARD: Stephens Sues over Debt Collection Practices TRAININGWHEEL CORP: Freeman et al. Suit Moved to M.D. Florida UBER TECHN: Canadian Drivers' Class Action Can Proceed UNITED STATES: Burleson Tea Party Receives IRS Settlement Checks UNITED STATES: Court Dismisses Gifford Suit With Prejudice VOX MEDIA: Spruill Suit Transferred to District of Columbia WAL-MART STORES: Court Dismisses M. Prado's Suit with Prejudice WASHINGTON: Court Grants Summary Judgment Bid in Schumacher Suit WEDRIVEU INC: Terry Suit Alleges Labor Code Violations WELLS FARGO: Court Grants Bid to Dismiss Rawls' FDCPA/FCCPA Suit WESTERN DIGITAL: Securities Suit in California Ongoing WESTSIDE LAKESHORE: Paz Sues Over Unpaid Minimum, Overtime Wages WOOD GROUP: Class of Drivers in Nino Suit Conditionally Certified WYNN LAS VEGAS: Ninth Circuit Appeal Filed in Cesarz FLSA Suit ZOOMPASS HOLDINGS: Patel Securities Suit Dismissed With Prejudice Asbestos Litigation ASBESTOS UPDATE: 2 PI Suits v. Rexnord's Prager Unit Still Pending ASBESTOS UPDATE: ArvinMeritor Had 1,100 Pending Claims at Dec. 30 ASBESTOS UPDATE: ArvinMeritor Had US$101MM Reserves at Dec. 30 ASBESTOS UPDATE: Ashland Global Records $594MM Liability at Dec.31 ASBESTOS UPDATE: Columbus McKinnon Has $5.8MM Liability at Dec. 31 ASBESTOS UPDATE: DowDuPont Inc. Has $1.1-Bil. Liability at Dec. 31 ASBESTOS UPDATE: Johnson Controls Has $546MM Liability at Dec. 31 ASBESTOS UPDATE: Judgment Favors Armstrong, et al., in Johansen ASBESTOS UPDATE: Judgment Favors Gardner Denver, et al., in Harding ASBESTOS UPDATE: Magnetek Has $944,000 Liability at Dec. 31 ASBESTOS UPDATE: Multiple PI Suits on Falk Products Still Pending ASBESTOS UPDATE: Owens-Illinois Reports $105MM Payments in 2018 ASBESTOS UPDATE: Rexnord Corp. Still Faces Stearns PI Lawsuits ASBESTOS UPDATE: Rexnord's Zurn Had 6,000 Pending Suits at Dec. 31 ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Dec. 31 ASBESTOS UPDATE: Trial of Shulman Suit Stayed Pending Imerys Appeal ASBESTOS UPDATE: Weil-McLain's Summary Judgment v. Harding Denied ********* 125 COURT: 2d Cir. Affirms Dismissal of 421-A Tenants Suit ---------------------------------------------------------- In the cases, 421-A TENANTS ASSOCIATION, INC., VINETTA SCRIVO, RICHARD LEBED, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants, v. 125 COURT STREET LLC, TWO TREES MANAGEMENT CO. LLC, 30 MAIN LLC, DW ASSOCIATES LP, DAVID C. WALENTAS, JED D. WALENTAS, 194 ATLANTIC LLC, Defendants-Appellees, Case Nos. 17-3865-cv and 17-3964-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the district court's judgment (i) dismissing the class action complaint, and (ii) denying their motion for leave to amend. In the complaint, the Plaintiffs-Appellants("tenants"), allege a broad scheme to defraud the State of New York, New York City, and a proposed tenant class by overcharging tenants on their rent at two different housing developments subject to New York City's rent stabilization scheme. According to the tenants, Defendants David Walentas and Jed Walentas, who are New York real estate developers, and some of the business organizations that they control, perpetrated this scheme in order to unlawfully deregulate apartments subject to rent stabilization while still collecting tax breaks under Section 421-a of the Real Property Tax Law of the State of New York. Under section 421-a, New York allows real estate developers to receive certain tax benefits on properties when the developers agree to make the property subject to the New York City Rent Stabilization Law. A landlord's property that is subject to the Rent Stabilization Law must comply with several restrictions on rent increases and respect certain tenant protections. According to the tenants, a landlord whose property is subject to the Rent Stabilization Law must inform the City and the tenant at that property of a unit's "initial legal regulated rent." The Rent Stabilization law protects tenants paying those controlled rates in part by guaranteeing that they receive a renewal lease each time their lease expires. The law also permits strictly regulated rent increases for certain improvements to a tenant's apartment or building. Finally, certain reporting requirements apply to the rent amounts. The tenants contend that the Walentas developers and some of the companies that they control ("Walentas Enterprise") attempted to evade the restrictions of the Rent Stabilization Law while still receiving tax exemptions through a variety of fraudulent acts. The allegations concern two apartment complexes located in Brooklyn: 125 Court Street and Cobble Hills Mews. The tenants allege that in the initial application for section 421-a tax exemptions for the 125 Court Street property, the Walentas Enterprise made many fraudulent statements to New York City's Department of Housing Preservation and Development ("HPD"). The HPD "determines both eligibility for Section 421-a real property tax exemptions and the initial rents in the subject property." The tenants further allege that the Walentas Enterprise then compounded that fraud by using the illegally-inflated initial rent amount to calculate rent increases each time a tenant renewed their lease. They contend that the Walentas Enterprise used the inflated rent amounts to extract higher-than-permissible rents over nearly a decade of operating 125 Court Street. As part of this alleged ongoing fraud, the Enterprise submitted false rent registration reports to DHCR and to the tenants at 125 Court Street. The complaint also alleges that the rent increases coerced tenants into moving out of their apartments, which allowed the Walentas Enterprise to apply further increases to the rent amount because of the tenant vacancy. Similarly, the Walentas Enterprise allegedly used unlawful evictions to remove individuals from their apartments in order to create vacancies that would permit rent increases. Finally, the tenants allege that a similar scheme occurred at the Enterprises' Cobble Hill Mews property, although they provide significantly less detailed factual allegations for that property. The tenants initiated the lawsuit in early 2017, alleging civil Racketeering Influenced and Corrupt Organizations ("RICO") claims, as well as a pendent state law contract reformation claim. After filing an amended complaint, the Walentas realtors and the Defendant business organizations moved to dismiss, primarily on the grounds that the complaint (1) lacked specificity as to the Cobble Hill Mews property, and (2) was untimely. As to the timeliness ground, the Defendants pointed to a New York state court lawsuit alleging similar violations at the 125 Court Street building against the same Defendants, as well as some news articles covering that lawsuit, to argue that the Defendants were put on inquiry notice of the alleged scheme in 2012. The district court agreed and dismissed the complaint for failing to state a claim regarding the Cobble Hill Mews property, and on timeliness grounds as to the claims regarding the 125 Court Street property. The tenants appealed. On appeal, they argue that the district court erred in its analysis of whether their lawsuit was timely, and that the district court erred by denying leave to amend the complaint. The Appellate Court agrees with the district court that the 2012 state court lawsuit put the tenants on inquiry notice of their civil RICO claims. It concludes that the district court correctly refused to equitably toll the statute of limitations. The tenants' failure to prosecute their lawsuit once on inquiry notice forecloses their argument that they acted with "reasonable diligence," a prerequisite for equitable tolling. It also agrees with the district court that the tenants cannot avoid the statute of limitations by characterizing each new lease as a new and independent injury. The tenants allege that they were injured by the renewal leases because the renewal leases used the illegally-inflated initial rent amount to calculate rent increases. Although each renewal lease therefore leads to a new injury, that injury is not independent of the alleged underlying RICO violation because it is caused in material part by the alleged fraud committed in connection with the first lease. The tenants also appeal the district court's decision to deny their motion to reconsider and the request therein to amend the complaint to address the district court's timeliness ruling. The Court holds that although the district court did not explain that decision, it finds no error. The tenants propose amending their complaint to demonstrate that the documents underlying the state court lawsuit and the case were not in the public record and that the defendant in the state court action misrepresented certain facts to that court. The tenants miss the point: the lawsuit itself and the accompanying press coverage put the tenants on inquiry notice of their claims. As a result, any amendment to the complaint cannot fix the statute of limitations problem that the tenants face. Accordingly, it affirms the denial of leave to amend the complaint as to the statute of limitations issues. For the reasons stated, the Court affirmed the district court's judgment. A full-text copy of the Court's Jan. 23, 2019 Summary Order is available at https://is.gd/DwZ54w from Leagle.com. MATTHEW L. BERMAN -- mberman@vkvlawyers.com -- (Robert J. Valli, Jr. -- rvalli@vkvlawyers.com -- on the brief), Valli Kane & Vagnini LLP, Garden City, NY., for Plaintiffs-Appellants. PAUL L. SHECHTMAN -- paul.shechtman@bracewell.com -- (Rita K. Maxwell -- rita.maxwell@bracewelllaw.com -- on the brief), Bracewell LLP, New York, NY., for Defendants-Appellees. 3M COMPANY: Combat Arms Earplugs Defective, Military Personnel Say ------------------------------------------------------------------ A case, SEAN LYNCH, individually and on behalf of all others similarly situated, the Plaintiff, vs. 3M COMPANY, a Delaware Corporation, the Defendant, Case No. 1:19-cv-00273 (D. Colo., Feb. 1, 2019), seeks medical monitoring for Plaintiff and the Class to help diagnose and/or mitigate hearing loss and hearing related maladies resulting from the use of 3M's defective product. The Plaintiff seeks declaratory relief and damages in the form of the reasonably necessary costs of diagnostic testing and mitigation, and asserts claims for negligence, fraudulent concealment, and fraudulent omission. The lawsuit seeks relief on behalf of Lt. Lynch and a Class of all military personnel that have used Combat Arms (TM) Earplugs. According to the complaint, 3M makes the Combat Arms (TM) Earplugs, a dual-ended, selective attenuation earplug for combat use. The Earplugs were designed as a single set of earplugs that provided soldiers with two options for use depending on which end of the earplug was being used. Worn in the closed position (green end), the Earplugs were supposed to offer protection from all sounds. Worn in the open position (yellow end), the Earplugs were supposed to significantly reduce loud impulse noises such as gunfire or battlefield explosions, while still allowing the wearer to hear low-level sounds critical to mission safety such as voice commands or the footsteps of approaching enemies. Unbeknownst to the soldiers who wore them, the lawsuit states, the Earplugs suffered from a dangerous design defect that caused the Earplugs to loosen in the wearer's ear, thereby permitting damaging sounds to enter the ear canals by traveling around the Earplug. The loosening caused by the defect was imperceptible to the wearer who had no reason to believe the Earplug were not operating as represented and then, as a result, were unknowingly exposed to dangerous levels of impulse noise. Specifically, the stem design of the Earplugs was simply too short and cannot be inserted deep enough into the ear canal in order to obtain a proper fit. When the Earplug is inserted into the ear canal pursuant to the fitting instructions provided by Defendant, the basal edge of the third flange of the non-inserted end of the earplug becomes prone to press against the wearers' ear canals and fold back to its original shape, thereby loosening the seal in their ear canal and exposing the wearer to dangerous levels of impulse noises. The Earplug is symmetrical; therefore, the defect exposes the wearer to dangerous levels of noise, notwithstanding which side of the Earplug was being used. In 2003, the Defendant won a bid to supply the Combat Arms (TM) Earplugs to the U.S. Military and ultimately became its exclusive supplier of combat earplugs until 2015, when the product was discontinued. According to the lawsuit, the design defect plaguing the Combat ArmsTM was known to Defendant and its predecessor well in advance of its sale to the U.S. Government and distribution to soldiers for use. In advance of the sale, the Defendant conducted testing which unequivocally revealed the existence of the defect and resulted in the closed end of the Earplugs being half as effective at blocking sound as it ultimately claimed to be, and the open end of the Earplugs amplified sound rather than blocking it. Instead of redesigning the Earplugs, however, Defendant secretly altered the fitting and insertion procedure to compensate for the defect and then retested the closed-end of the Earplugs. The secretly altered fitting procedure allowed the Defendant to artificially boost the Earplugs noise reduction rating sufficiently for Defendant to win the bid. By the time the Combat Arms (TM) was discontinued, 3M had sold millions of Earplugs to the U.S. Government and recklessly exposing tens of thousands of military personnel to the devastating effects of exposure to high levels of impulse noise. In 2016, Moldex-Metric, Inc., a designer and manufacturer of non-linear dual-mode earplugs, filed suit in the name United States Government under the False Claims Act to recover penalties and damages arising from false statements made by 3M to the Government regarding its defective Combat Arms (TM) Earplugs. In July 2018 the Department of Justice announced that 3M agreed to pay $9.1 million to resolve allegations that it knowingly sold the dual-ended Combat Arms Earplugs to the United States military without disclosing defects that hampered the effectiveness of the device that could exacerbate, rather than mitigate, the noise it was intended to protect against. Sean Lynch is an officer of the U.S. Marine Corps. in which he has dutifully served for nearly 19 years. In the course of his service, Lt. Lynch was exposed to impulse noises from weapons fire during his combat and non-combat duties. The Marine Corps provided Lt. Lynch with Combat Arms (TM) Earplugs manufactured by 3M or its predecessor, the purpose of which was to protect Lt. Lynch and other soldiers from the concussive effects associated with service related impulse noise (e.g. weapons fire). In sum, 3M Combat Arms (TM) Earplugs were given to soldiers to protect them from hearing damage resulting from close range weapons fire and battlefield ordinance discharge. Due to a design defect known to 3M, however, the Earplugs did not perform as intended resulting in the exposure of tens of thousands of soldiers to dangerous levels of impulse noise that in turn could cause hearing maladies, the lawsuit says. 3M Company, formerly known as the Minnesota Mining and Manufacturing Company, is an American multinational conglomerate corporation operating in the fields of industry, worker safety, health care, and consumer goods.[BN] Attorneys for Plaintiff: Steven W. Teppler, Esq. MANDELBAUM SALSBURG , PC Becker Farm Road Roseland, NJ 07068 11891 US Highway One, Suite 100 North Palm Beach, FL 33408 Telephone: 202 253 5670 Facsimile: 561 214 4130 E-mail: steppler@lawfirm.ms - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: jyanchunis@ForThePeople.com - and - Kevin S. Hannon, Esq. THE HANNON LAW FIRM , LLC 1641 Downing Street Denver, CO 80218 Telephone: (303) 861-8800 E-mail: khannon@hannonlaw.com ACCOLADE INC: Settlement in Fulton-Green Suit Has Prelim Approval ----------------------------------------------------------------- In the case, TASHICA FULTON-GREEN and DANIEL CREVAK, on behalf of themselves and all others similarly situated, Plaintiffs, v. ACCOLADE, INC., Defendant, Civil Action No. 18-274 (E.D. Pa.), Judge Gene E.K. Pratter of the U.S. District Court for the Eastern District of Pennsylvania granted the parties' Motion for Preliminary Settlement Approval. In January 2017, Accolade was the target of a "phishing" scheme." A cybercriminal requested the W-2s for current and former U.S.-based Accolade employees from an Accolade employee who then sent the unencrypted files via email. The W-2s included personally identifying information ("PII") such as employees' names, addresses, Social Security Numbers, salaries, and taxes withheld for 2016. Fulton-Green and Crevak's PII was included in the breach. They filed suit against Accolade on behalf of themselves and all others similarly situated alleging negligence, negligence per se, breach of implied contract, and breach of fiduciary duty. The parties entered into a settlement agreement following negotiations and a private mediation overseen by Rodney A. Max of Upchurch Watson White & Max. They agreed to settle the action, pursuant to the terms of their settlement agreement, and subject to the approval and determination of the Court as to the fairness, reasonableness, and adequacy of the settlement. The final approval of the settlement will result in dismissal of the action with prejudice. The proposed settlement class will consist of all current and former Accolade employees whose W-2 data was compromised as a result of the Data Disclosure which occurred on or about Jan. 17, 2017. Under the proposed settlement, all the class members are entitled to enroll in identity theft protection for 24 months through Experian's ProtectMyID service. The class members who have already enrolled in the program will be instructed on how to enroll for an additional 24 months. They will also be entitled to seek reimbursement for four claim categories (A-D), with an overall cap of $1500 paid to each class member. However, the participants must have spent at least one full hour dealing with the theft of their PII before they can claim any lost time. The treatment of each claim category is set out as follows: a. Claim Category A: The class members who had a false tax return filed after Jan. 16, 2017 are eligible for a basic payment of $75. They must provide proof of the false tax return, attest that they have no knowledge of a false return being filed in the previous three years, submit a self-verifying statement for time spent dealing with the effects of the breach, and submit documentation of recovery. Accolade will reimburse claimants at $25 per hour spent dealing with the effects of a false tax return. There is a maximum recovery of $275 per claimant for claims made pursuant to Claim Category A. b. Claim Category B: The class members who had an IRS tax transcript requested using their PII after Jan. 16, 2017 and submitted an identity theft affidavit to the IRS are eligible for payment of $75. They must provide proof of the issuance of a tax transcript by the IRS and submission of an identity theft affidavit, attest that they have no knowledge of an IRS transcript being fraudulently requested using their PII in the previous three years, and submit a self-verifying statement for time spent dealing with the effects of the breach. Accolade will reimburse Category B claimants at $25 per hour spent dealing with the effects of having their IRS tax transcript requested using their PII. There is a maximum per claimant recovery of $125 for claims made pursuant to Claim Category B. c. Claim Category C: The class members who experienced incidents of identity theft or financial fraud (other than those covered by Categories A and B) after Jan. 16, 2017 are eligible for payment of $75. This includes the opening of new bank accounts, credit applications, FAFSA applications, etc. It does not include fraud on existing credit cards. These Category C class members must provide proof of fraudulent activity or details of such activity and why proof does not exist, attest that they have no knowledge of identity theft (other than fraudulent credit card activity) filed in the previous three years, and submit a self-verifying statement for time spent dealing with the effects of the breach. Accolade will reimburse claimants at $25 per hour spent dealing with the effects of identity theft. There is a maximum per claimant recovery of $275 for claims made pursuant to Claim Category C. d. Claim Category D: The class members who claim they suffered out of pocket expenses (other than those covered in categories A, B, or C) as a result of the data disclosure are entitled to reimbursement of such amount. They must submit reasonable documentation supporting their claim for expenses, proof of fraudulent activity or details of such activity or why proof does not exist, include a detailed explanation of the activities related to the data disclosure that the claimant spent time on, and submit a self-verifying statement for time spent dealing with the effects of the breach. Accolade will reimburse claimants at $25 per hour spent for up to 3 hours for claims made pursuant to Claim Category D. The claimants are not entitled to reimbursement of expenses that have already been reimbursed through Experian or any other source. The settlement agreement also provides for injunctive relief which includes undertaking and maintaining the following cybersecurity measures for two years: cybersecurity awareness and training program, training employees on new policies for handling PII, implementing and operating systems to help detect and filter phishing attempts, restricting access to tax and payroll information, random testing of policies, and access control review. At this preliminary stage, Judge Pratter finds there is little disputing that the proposed settlement easily passes the reasonableness test. Based on the information provided and critically considered by the Court, the proposed Class Counsel are experienced in litigating and resolving data breach class actions such as this. There are no objectors as of yet. Costs associated with notice and claims administration will be separate from the monies made available to pay claims. Although the Court notes that the Class Representatives are expected to receive a service award, the parties state that the award is nominal and will also be separate from the monies made available to pay claims. The Judge finds nothing to indicate that the Class Representatives have interests antagonistic to the rest of the class members. Finally, the settlement agreement appears to deal with the major issues central to the case: protecting class members whose PII was released in the data breach, reimbursing them for the time and expense spent dealing with the effects of the data breach, and putting systems in place at Accolade to prevent a similar breach in the future. The Judge also finds that the Plaintiffs have satisfied Rule 23(a) and Rule 23(b)(3) requirements. As to the notice of the proposed settlement, he finds that the proposed notice program is sufficient. The parties propose to hire Epiq Systems as the Settlement Administrator. The notice itself explains the settlement in plain language with helpful charts and FAQs. Thus, he finds that the proposed notice program offers the best practicable notice to the class members under the circumstances. For the foregoing reasons, Judge Pratter granted the Motion for Preliminary Settlement Approval in the matter. An appropriate Order, with attendant time requisites, follows. A full-text copy of the Court's Jan. 23, 2019 Memorandum is available at https://is.gd/nWSJv5 from Leagle.com. TASHICA FULTON-GREEN, Plaintiff, represented by BRUCE W. STECKLER -- bruce@stecklerlaw.com -- STECKLER GRESHAM & COCHRAN, CHARLES E. SCHAFFER -- cschaffer@lfsblaw.com -- LEVIN SEDRAN & BERMAN & JOHN A. YANCHUNIS -- jyanchunis@forthepeople.com -- MORGAN & MORGAN. DANIEL CREVAK, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by CHARLES E. SCHAFFER, LEVIN SEDRAN & BERMAN & JOHN A. YANCHUNIS, MORGAN & MORGAN. ACCOLADE, INC., Defendant, represented by PAUL G. KARLSGODT -- pkarlsgodt@bakerlaw.com -- BAKER & HOSTETLER LLP & TYSON Y. HERROLD -- therrold@bakerlaw.com -- BAKER & HOSTETLER LLP. AIRSTREAM INC: Satterly Seeks Overtime Wages for Employees ---------------------------------------------------------- Mark Satterly, On behalf of himself and those similarly situated, the Plaintiff, vs. Airstream, Inc., 419 W. Pike St., Jackson Center, Ohio 45334, the Defendant, Case No. 3:19-cv-00032-TMR (S.D. Ohio, Jan. 31, 2019), alleges that the Defendant failed to fully pay employees overtime wages seeking all available relief under the Fair Labor Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt Pay Act. According to the complaint, Satterly worked as an hourly, non-exempt "employee" of the Defendant as defined in the FLSA and the Ohio Acts as a production worker beginning in February 2016 until the beginning of August 2016. Satterly primarily performed non-exempt duties for the Defendants. The Defendant was fully aware that they have accurate clock-in/clock-out timekeeping records that captures the exact time that its Timeclock Associates are working, but it still did not compensate its Timeclock Associates for the actual amount of compensable time working in one or more workweeks during the three years preceding this complaint, the lawsuit says. Airstream, Inc. manufactures travel trailers, avenue and interstate touring coaches, and motor homes. The company also provides wheel alignment and chassis.[BN] Attorneys for Plaintiff and those similarly situated: Daniel I. Bryant, Esq. BRYANT LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: 614 704-0546 Facsimile: 614 573-9826 E-mail: dbryant@bryantlegalllc.com - and - Matthew J.P. Coffman, Esq. COFFMAN LEGAL, LLC 1550 Old Henderson Road, Suite 126 Columbus, OH 43220 Telephone: 614-949-1181 Facsimile: 614-386-9964 E-mail: mcoffman@mcoffmanlegal.com ALLERGAN PLC: Feb. 19 Lead Plaintiff Bid Deadline ------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until February 19, 2019 to file lead plaintiff applications in a securities class action lawsuit against Allergan plc. (NYSE: AGN), if they purchased the Company's shares between February 24, 2017, and December 19, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. Get Help Allergan investors should visit us at https://www.claimsfiler.com/cases/view-allergan-plc-securities-litigation-1 or call toll-free (844) 367-9658. Lawyers at Kahn Swick&Foti, LLC are available to discuss your legal options. About the Lawsuit Allergan and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On December 19, 2018, the Company announced that it had halted the sale of its textured breast implants in the European market following a compulsory recall request from the French regulatory authority, AgenceNationale de Sécurité du Médicament, after the product's CE Mark certification expired, amid concerns of a link to a rare form of cancer. On this news, the price of Allergan's shares plummeted. The case is Cook v. Allergan Plc et al, No. 18-cv-12089. [GN] ALLERGAN PLC: Law Firms File Class Action Over Breast Implants -------------------------------------------------------------- Phil Carpenter, writing for Global News, reports that the year Judith Lepine turned 19, she says, was one of the most difficult of her life. "I'm telling you [now] I want to live," she said, weeping. "I'm 25, I am not dead." But in her late teens, she thought of giving up. The reason, she says, was suffering as a result of breast implants. When she was 16 years old, she had textured breast implants to correct breast asymmetry. The surgeon, she says, told her and her parents at the time that they were safe. "I developed so many, so many health problems," Ms. Lepine said. For nine years, she suffered from a range of illnesses, from bouts of depression to excruciating pain. But she says her doctor didn't take her seriously. "When I went to see him, he would say it's all in your head," she said. It wasn't until June 2018 that she discovered the problem was likely connected to the implants. She had them removed and it was confirmed they had ruptured. Several women have had similar experiences. That's why two Montreal law firms, LPC Avocats, and Tiger Banon Inc., have filed a class-action lawsuit. "The defendants in this case are Allergan, Mentor and Ideal Implants," explained Joey Zukran -- jzukran@lpclex.com -- of LPC Avocats. The companies, he argues, violated Quebec consumer laws by not informing consumers of the risks involved in using textured implants. "Firstly, the serious risk of cancer, number one," Mr. Zukran said, detailing the risks, "and number two, the fact that these textured implants have an increased risk of rupturing." Since filing the petition for the lawsuit a few days ago, he adds, numerous women have come forward. Among other things, the lawyers are suing for the cost of the implants, which can cost up to $10,000, Mr. Zukran says. Coincidentally, Ms. Lepine had her implants removed December 18th -- the same day the Allergan implants were banned in Europe. She still has health problems and wants women everywhere to understand the risks. "I plan to advocate for this for the rest of my life," she said, wiping tears. On its website, Allergan says, "Patient safety is Allergan's highest priority and we continue to collaborate with clinicians, societies and global health authorities to advance research, understanding and awareness about breast implant effectiveness and safety." LPC Avocats is inviting women who believe they may have been affected by implants from any one of the three manufacturers, to register. [GN] ALTA MESA: Sued over False & Misleading Securities Statements ------------------------------------------------------------- PLUMBERS AND PIPEFITTERS NATIONAL PENSION FUND, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. ALTA MESA RESOURCES, INC. f/k/a SILVER RUN ACQUISITION CORPORATION II, JAMES T. HACKETT, THOMAS J. WALKER, WILLIAM D. GUTERMUTH, JEFFREY H. TEPPER, DIANA J. WALTERS and RIVERSTONE INVESTMENT GROUP LLC, the Defendants, Case No. 1:19-cv-00920 (S.D.N.Y., Jan. 30, 2019), arises out of Defendants' dissemination of false and misleading proxy statement in connection with the February 2018 acquisition of Alta Mesa Holdings, LP and Kingfisher Midstream LLC by Silver Run II. The Plaintiff held Silver Run II Class A common stock at the close of business on January 22, 2018, the record date, and was entitled to vote on the merger. The Defendants are Silver Run II, its Board of Directors and Silver Run II's private equity sponsor. Silver Run II was formed in 2016 as a blank check company organized under the laws of Delaware. Blank check companies do not have established business or operations, but rather, are formed for the purpose of effectuating a merger or acquisition with another firm or business entity. Stockholders in blank check companies depend on management to honestly provide accurate information about any contemplated transactions. According to the complaint, on or about March 24, 2017, Silver Run II carried out an initial public offering, selling 103.5 million ownership units to investors for gross proceeds of $1.035 billion. Each unit was priced at $10 and consisted of one share of Class A common stock and one-third of a warrant to purchase Class A shares. Each whole warrant entitled the holder to purchase one share of Silver Run II Class A common stock at $11.50 per share. The IPO was sponsored by Riverstone Investment Group LLC, a New York-based energy sector private equity firm. In August 2017, Silver Run II announced that it had entered into an agreement, subject to shareholder approval, to merge with two privately held companies, Alta Mesa and Kingfisher, in a deal initially valued at $3.8 billion. Alta Mesa was an oil and gas exploration and production company operating in the STACK play in the Anadarko Basin area of Oklahoma. Kingfisher specialized in the gathering, processing, and marketing of hydrocarbons from oil and gas producers. The two companies were closely related and shared overlapping and affiliated owners. Kingfisher had been built to service Alta Mesa, and nearly 97% of Kingfisher's revenues derived from production out of wells operated by Alta Mesa for the year ended December 31, 2016. On August 14, 2018, Silver Run II provided its second quarter 2018 financial results, again posting disappointing results and slashing its outlook in the midst of numerous operational setbacks. Rather than the hyperbolic growth portrayed in the Proxy, Silver Run II revealed that Alta Mesa's oil production had actually declined sequentially during the quarter and that it now expected to achieve average daily net production of only 30.0 MBOE/d at the midpoint for 2018, 22% below the estimates provided in the Proxy. Far from the reliable and consistent well production represented to investors in the Proxy to induce them to approve the Acquisition, Silver Run II revealed that throughout 2018 Alta Mesa's wells had suffered from repeated "shut-ins" or restricted production caps, resulting in an average daily loss of thousands of BOE. The value of the Class A common stock held by plaintiff and other members of the Class declined substantially in value subsequent and due to the approval of the Acquisition, causing economic loss and damages as the truth about Alta Mesa and Kingfisher and the Proxy's false and misleading nature were revealed over time. By December 2018, the price of Silver Run II Class A common stock was trading below $1 per share, a 90% decline from the price shareholders would have received had they redeemed their shares instead of approving the Acquisition, the lawsuit says.[BN] Attorneys for Plaintiff: Samuel H. Rudman, Esq. Robert M. Rothman, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631 367-7100 Facsimile: 631 367-1173 E-mail: srudman@rgrdlaw.com rrothman@rgrdlaw.com bcochran@rgrdlaw.com - and - Louis P. Malone, esq. O'DONOGHUE & O'DONOGHUE LLP 5301 Wisconsin Avenue, N.W., Suite 800 Washington, DC 20015 Telephone: 202 362-0041 Facsimile: 202 362-2640 AMAZING HOME: Rivas Seeks Unpaid Wages & Overtime Pay ----------------------------------------------------- RICARDO RIVAS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, the Plaintiffs, vs. AMAZING HOME COMMUNITY SERVICES, LLC & ADELA SEGOVIA, the Defendants, Case No. 5:19-cv-00086 (W.D. Tex., Jan. 31, 2019), seeks to recover unpaid wages, unpaid overtime wages, statutory liquidated damages, and attorneys' fees, under the Fair Labor Standards Act. According to the complaint, the Plaintiffs worked in excess of 40 hours per workweek. Despite these hours worked, the Defendants paid Rivas and all others similarly situated only "straight time" for all hours worked and did not provide Rivas and all others similarly situated with the overtime premium required by law. As a result, Defendants have unlawfully withheld overtime compensation from its Providers, including Plaintiffs. On at least one occasion, Rivas asked Segovia he was not paid overtime for hours he worked over forty each week. Segovia responded, incorrectly, that she did not need to pay Providers overtime. The Defendants also failed to make, keep, and preserve accurate records with respect to Plaintiff and other Providers, including hours worked each workday and total hours worked each workweek, as required by 29 U.S.C. section 211(c), and supporting federal regulations. The Defendants' failure to pay proper overtime for all hours worked over 40 was willful and not in good faith. The Defendants did not change their payment practices after Rivas inquired into them. At least one other Provider has filed suit against the Defendants but that have not changed their payment practices, the lawsuit says. The Defendants operated as an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who resided on the premises of such institution during Plaintiffs' employment with Defendants[BN]. Attorneys for Plaintiff: Lawrence Morales II, Esq. Allison S. Hartry, Esq. THE MORALES FIRM, P.C. 6243 IH-10 West, Suite 132 San Antonio, TX 78201 Telephone: (210) 225-0811 Facsimile: (210) 225-0821 E-mail: lawrence@themoralesfirm.com ahartry@themoralesfirm.com AMERICAN CHORE: Borisovskiy Suit Alleges FLSA, NYLL Violation ------------------------------------------------------------- Naum Borisovskiy, individually and on behalf of all others similarly situated v. American Chore Services Inc./City Choice Home Care Services and John Does 1-25, Case No. 1:18-cv-07370 (E.D. N.Y., December 26, 2018), is brought against the Defendants for violations of the Fair Labor Standards Act and the New York Labor Law. The Plaintiff alleges that the Defendants failed to pay overtime as required by the FLSA and also failed to furnish accurate wage statements in violation of the NYLL. The Plaintiff Naum Borisovskiy is an adult resident of the State of New York. The Defendants employed the Plaintiff as a full-time Home Attendant from at least August 2007 until September 2016. The Defendant American Chore Services Inc./City Choice Home Care Services is a domestic corporation operating in the home healthcare industry in the City and State of New York, County of Kings. [BN] The Plaintiff is represented by: David A. Feinerman, Esq. LAW OFFICE OF DAVID A. FEINERMAN 2765 Coney Island Avenue, 2nd Floor Brooklyn, NY 11235 Tel: (718) 646-4800 APHRIA INC: Scott+Scott Posts New Info on Class Action ------------------------------------------------------ Scott+Scott Attorneys at Law LLP ("Scott+Scott"), a national securities and consumer rights litigation firm, announces new information regarding its securities class action lawsuit against Aphria, Inc. ("Aphria" or the "Company") and certain of the Company's officers and directors for violating federal securities laws (the "Action"). Earlier Aphria issued a statement announcing that Chief Executive Officer, Vic Neufeld, a defendant in the Action, and co-founder, Cole Cacciavillani, are stepping down from their executive roles at the Company. This news follows allegations that certain of the Company's assets were acquired at inflated prices from insiders and that the quality of the Company's cannabis was inferior to its competitors -- allegations which the Action directly addresses. The Action, currently pending in the U.S. District Court for the Southern District of New York, asserts claims related to these allegations under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a), and SEC Rule 10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. If you purchased Aphria stock between July 17, 2018 and December 4, 2018, or you have questions about your legal rights, please contact attorney Joe Pettigrew at (844) 818-6982, or at jpettigrew@scott-scott.com. Aphria investors have until February 4, 2019 to move for lead plaintiff. Joe Pettigrew, Esq. Scott+Scott Attorneys at Law LLP 230 Park Ave, 17 Fl, NY NY 10169-1820 Telephone: (844) 818-6982 Email: jpettigrew@scott-scott.com [GN] ARRIS INTERNATIONAL: Agnes-Sampson Sues Over Sale to CommScope -------------------------------------------------------------- Louise Agnes-Sampson, individually and on behalf of all others similarly situated v. ARRIS International PLC, et al., Case No. 1:18-cv-12205 (S.D. N.Y., December 26, 2018), is brought against the Defendants for violations of the Securities Exchange Act of 1934 in connection with the acquisition of Arris by CommScope Holding Company, Inc. On November 8, 2018, ARRIS and CommScope entered into an Agreement and Plan of Reorganization, pursuant to which CommScope has agreed to acquire all of the issued and to be issued ordinary shares of ARRIS for $31.75 in cash per ordinary share (the "Merger Consideration"). On December 19, 2018, in order to convince ARRIS's public common shareholders to vote in favor of the Proposed Transaction, the Defendants authorized the filing of a materially incomplete and misleading Definitive Proxy Statement with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act, the complaint asserts. In particular, the Proxy contains materially incomplete and misleading information concerning: (i) financial projections for ARRIS; and (ii) the valuation analyses performed by ARRIS's financial advisor, Evercore Group L.L.C. The Plaintiff is, and has been continuously throughout all times relevant hereto, the owner of ARRIS common stock. The Defendant ARRIS is a public limited company incorporated under the laws of England and Wales. ARRIS's common stock is traded on the NasdaqGS under the ticker symbol "ARRS." ARRIS, together with its subsidiaries, provides entertainment, communications, and networking technology and solutions worldwide. It operates through three segments: Customer Premises Equipment, Network & Cloud, and Enterprise Networks. The Customer Premises Equipment segment offers digital subscriber lines and cable modems, broadband gateways, set-top boxes, and video gateways The Individual Defendants are members of ARRIS' board of directors. [BN] The Plaintiff is represented by: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, Suite 4405 New York, NY 10118 Tel: (212) 971-1341 Fax: (212) 202-7880 E-mail: jmonteverde@monteverdelaw.com AUSTRALIA: 110 Businesses Join $400MM Sydney Light Rail Suit ------------------------------------------------------------ Heather McNab, writing for Australian Associated Press, reports that the number of businesses and landlords suing the state government over the delayed Sydney light rail project has almost doubled over the past four months. The light rail was originally meant to be finished in 2019 but the company building it now expects it to be completed by May 2020. Some 60 businesses along the route filed a class action lawsuit against Transport for NSW in late August claiming they'd been adversely impacted by construction work along the route from the CBD to the eastern suburbs. But that number has now grown to 110 businesses and landlords who are seeking $400 million in compensation over what they say is the government's poor planning. Lawyer Rick Mitry says claimants have suffered economic and psychological trauma. The class action in the NSW Supreme Court includes small and large businesses some of which are claiming up to $15 million in damages. The suit aims to hold the NSW government accountable, Mr Mitry told AAP. "If you're going to unnecessarily damage people's lives and businesses then you've got to be brought to account -- you can't just do these things with impunity," he said. City of Sydney councillor Angela Vithoulkas -- who's the former owner of Vivo Cafe on George Street on the light rail route -- believes the class action has a strong chance of success because people can document the financial and mental anguish they've experienced. "Families are in crisis over the financial impact . . . there will never be enough money to fix that heartache," she said. A Transport for NSW spokeswoman stated: "TfNSW denies the allegations made in the class action and is defending the proceedings." "It is not appropriate for us to comment further while the matter is before the courts," she said in a statement. The department has filed cross-claims against light rail consortium ALTRAC and its Spanish subcontractor Acciona. It notes the state government has delivered more than $117 million to 115 impacted businesses through its "small business assistance program". The total cost of the light rail project has blown out from $1.6 billion to $2.1 billion. Acciona has launched its own legal action against the government seeking an additional $1.2 billion arguing it was misled over the complexity of the project. [GN] AUTOBAHN INC: Court Dismisses S. Ferrari's Suit with Prejudice -------------------------------------------------------------- Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California dismissed with prejudice the case, STEVE FERRARI, et al., Plaintiffs, v. AUTOBAHN, INC. DBA AUTOBAHN MOTORS; MERCEDES-BENZ USA, LLC; AND SONIC AUTOMOTIVE, INC. Defendants, Case No. 4:17-CV-00018-YGR (N.D. Cal.), except as provided in the Court's Order Granting Plaintiffs' Motion for Final Approval of Class Settlement, etc. The Plaintiffs will take nothing by their complaint against the Defendants. There is no just reason for delay in the entry of theJudgment, and immediate entry by the Clerk of the Court is expressly directed. A full-text copy of the Court's Jan. 23, 2019 Partial Judgment is available at https://is.gd/YJN6x5 from Leagle.com. Steve Ferrari, Mike Keynejad, John Diaz, Harold Fethe & Ray Gapasin, Plaintiffs, represented by Herman Franck, Franck and Associates, Brian William Warwick -- bwarwick@varnellandwarwick.com -- Varnell and Warwick, David K. Lietz -- dlietz@varnellandwarwick.com -- Varnell and Warwick, Elizabeth Betowski -- elizabeth.francklaw@gmail.com -- Franck and Associates & Janet Robards Varnell -- jvarnell@varnellandwarwick.com -- Varnell and Warwick. Patricia Reuben, individually and as representatives of the Class of Persons Similarly Situated, Plaintiff, represented by Herman Franck, Franck and Associates, Brian William Warwick, Varnell and Warwick, Elizabeth Betowski, Franck and Associates & Janet Robards Varnell, Varnell and Warwick. Mercedes Benz USA, LLC, Defendant, represented by Helen Yiea Trac -- helen.trac@hoganlovells.com -- Hogan Lovells US LLP, James Niles Tansey -- james.tansey@hoganlovells.com -- Hogan Lovells US LLP & Regina M. Rodriguez -- regina.rodriguez@hoganlovells.com -- Hogan Lovells US LLP. AUTOBAHN INC: Settlement in S. Ferrari's Suit Has Final Approval ---------------------------------------------------------------- In the case, STEVE FERRARI, et al., Plaintiffs, v. AUTOBAHN, INC. DBA AUTOBAHN MOTORS; MERCEDES-BENZ USA, LLC; AND SONIC AUTOMOTIVE, INC. Defendants, Case No. 4:17-CV-00018-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the Plaintiffs' (i) Motion for Attorney Fees and Class Representative Awards, and (ii) Motion for Final Approval of Pro Tanto Class Action Settlement. Due and adequate notice having been given to the Class of the proposed Settlement and the pending motions, as required by the Court's orders, and upon consideration of all papers filed and proceedings had herein, Judge Rogers granted the motions for Final Approval and for Attorney Fees and Class Representative Awards. The Class, for purposes of the Order, will mean all consumers who during the Class Period received service from Autobahn, together with all consumers who purchased a [Certified Pre-Owned] CPO automobile from Autobahn during the period Jan. 1, 2007 through Dec. 31, 2012. The Class Period is Jan. 1, 2005 through Feb. 28, 2018. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge certified for settlement purposes only the Class, which it previously provisionally certified. The Settlement Class is divided into sub-Classes 1A, 1B, 2, 3A, and 3B, which are defined in the Settlement Agreement. She reaffirmed that the Action is properly maintained as a class action, for settlement purposes only, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(3), and 23(e), and that the Class Counsel and the Plaintiffs, as the Class Representatives, fairly and adequately represent the interests of the Class. The Class Counsel are awarded attorneys' fees in the amount of $577,000 and reimbursement of customary, reasonable, and documented out-of-pocket litigation expenses not to exceed $22,000 to be paid in accordance with the Settlement Agreement. The Judge also awarded Incentive Awards to the named Plaintiffs in the following amounts: Steve Ferrari - $2,500; Mike Keynejad - $8,000; Patricia Rubin - $2,500; Harold Fethe - $4,000; John Diaz - $5,000; and Ray Gapasin - $2,500 as the Class Representatives, to compensate them for their commitments and efforts on behalf of the Class in the Action. The Parties are to bear their own costs, except as awarded by the Court in the Final Approval Order. In its Order Granting Plaintiff's Motion for Preliminary Approval, the Court directed the parties to appoint a Settlement Administrator. The parties selected RSM US LLP. RSM US LLP will continue to perform those duties and responsibilities that remain under the Settlement and theFinal Approval Order. The Parties and Settlement Administrator are directed to implement the Final Approval Order and the Settlement in accordance with the terms and provisions thereof, including the processing and payment of Claims. Judge Rogers dismissed the Action with prejudice against the Autobahn Defendants without fees or costs except as provided in the Settlement Agreement and the Order. She finds no just reason for delay in issuing a judgment as to the claims that are resolved by the Settlement. The Class Counsel will serve a copy of the Final Approval Order on all named parties or their counsel and the Settlement Administrator immediately upon receipt and the Settlement Administrator will post a copy of the Final Approval Order on the Settlement Website immediately upon receipt. The parties will submit a Final Report by Feb. 28, 2020, detailing the number of Vouchers redeemed by the Class. The Judge set a Compliance hearing regarding the filing of the final report and accounting on the Court's calendar at 9:00 a.m. on March 6, 2020. If the parties timely file their report, the Court will vacate the compliance hearing and no appearance will be required. The Order terminates Docket Nos. 164 and 170. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/2AFzJY from Leagle.com. Steve Ferrari, Mike Keynejad, John Diaz, Harold Fethe & Ray Gapasin, Plaintiffs, represented by Herman Franck, Franck and Associates, Brian William Warwick -- bwarwick@varnellandwarwick.com -- Varnell and Warwick, David K. Lietz -- dlietz@varnellandwarwick.com -- Varnell and Warwick, Elizabeth Betowski -- elizabeth.francklaw@gmail.com -- Franck and Associates & Janet Robards Varnell -- jvarnell@varnellandwarwick.com -- Varnell and Warwick. Patricia Reuben, individually and as representatives of the Class of Persons Similarly Situated, Plaintiff, represented by Herman Franck, Franck and Associates, Brian William Warwick, Varnell and Warwick, Elizabeth Betowski, Franck and Associates & Janet Robards Varnell, Varnell and Warwick. Mercedes Benz USA, LLC, Defendant, represented by Helen Yiea Trac -- helen.trac@hoganlovells.com -- Hogan Lovells US LLP, James Niles Tansey -- james.tansey@hoganlovells.com -- Hogan Lovells US LLP & Regina M. Rodriguez -- regina.rodriguez@hoganlovells.com -- Hogan Lovells US LLP. BARCLAYS CAPITAL: Court Resolves Deposition Notice Scope in Bigsby ------------------------------------------------------------------ In the case, Bigsby et al., Plaintiffs, v. Barclays Capital Real Estate, Inc., Defendant, Case No. 1:14-cv-01398 (JGK) (SDA) (S.D. N.Y.), Magistrate Judge Stewart D. Aaron of the U.S. District Court for the Southern District of New York directed BCREI to designate a witness or witnesses to testify regarding Topic 4(h)(iii), as revised; and Topic 6(i) (regarding BCREI's negotiation of attorney fee schedules). The Plaintiffs are mortgagors who filed the putative class action against BCREI, in its capacity as successor to a mortgage-servicing company known as HomEq Servicing Corp. ("HomEq"). HomEq collected on home loans on behalf of mortgage-note holders, who were typically trustees and beneficiaries of securitized loans. BCREI acquired HomEq in 2006. After acquiring HomEq, BCREI continued to operate HomEq using the same employees, guidelines and business strategies as those used by HomEq. HomEq and BCREI serviced note holders' loans pursuant to a Pooling and Servicing Agreement ("PSA"). Under the PSA, a note holder assigned to HomEq and BCREI certain ownership rights of the note, including the right to foreclose on delinquent mortgages. Each Plaintiff obtained at least one mortgage serviced by HomEq and BCREI. All the Plaintiffs went into default on their mortgage obligations, and BCREI instituted foreclosure proceedings against them. Fidelity National Foreclosure Solutions and its successors and related entities provided bankruptcy and foreclosure services to HomEq and BCREI. Fidelity served as the intermediary between the bankruptcy and foreclosure counsel hired by Fidelity, and HomEq and BCREI. The Plaintiffs allege that BCREI engaged in an illegal scheme with Fidelity to shift certain expenses to the Plaintiffs, including attorneys' fees. Prior motion practice resulted in the dismissal of several claims. The Plaintiffs' remaining claims, which relate to fees charged to them, are claims for breach of contract, unjust enrichment and conversion, as well as claims under the California Unfair Competition Law arising out of the alleged fee-shifting scheme. Before the Court is a dispute between the parties regarding the scope of a deposition notice ("Notice") served by the Plaintiffs' counsel, pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. In their Notice, the Plaintiffs seek testimony from one or more corporate representatives of BCREI, regarding 10 identified topics, only certain of which are disputed. The parties' present disputes relate to the following topics contained in the Notice: a. Topic 4(h)(iii): The operation, functionality and capabilities of the principal accounting systems used by HomEq in servicing loans, including the MSP system and IT Turbo relating to the following areas: The use and identity of codes used by HomEq in the Accounting Systems relating to the charging-off, reversal, adjustment or waiver of fees and expenses posted to accounts. b. Topic 6: The agreements between Fidelity and HomEq relating to the provision of default, foreclosure, bankruptcy and eviction services provided by Fidelity, attorneys, trustees and other parties, including: (i) the negotiation of the fee schedules and indemnity provisions in the agreements. c. Topic 9: Communications among Barclays employees, between Barclays and Fidelity, or between Barclays and any related-entity concerning contractual provisions such as the one in the April 9, 2009 agreement between Barclays and Fidelity titled Default Statement of Work requiring indemnifying Barclays if the Fidelity business model is alleged to be unlawful or improper or constitutes an impermissible `fee splitting' or `referral fee' arrangement. An Oral argument was held by telephone on Jan. 25, 2019. Magistrate Judge Aaron finds in his discretion that using Topic 4(h)(iii) as written would not be proportional to the needs of the case. Thus, he amends the topic to require testimony with respect to accounting system codes that actually appear on the Plaintiffs' account transcripts. As to Topic 6(i), the Magistrate finds that the negotiation of attorney fee schedules is relevant at least to the Plaintiffs' remaining UCL claim. He also finds that the discovery sought on Topic 6(i) is proportional to the needs of the case. BCREI will make a conscientious good faith effort to prepare a designated witness to testify regarding negotiation of the fee schedules that appear in the identified agreements between BCREI and Fidelity, including by referring such witness to documents within the possession, custody or control of BCREI; by having the witness interview past employees of BCREI; and/or by referring the witness to other reasonably available sources. And finally, as to Topic 9, the Judge finds that testimony regarding negotiation of the indemnity provisions is not relevant. In any event, even if he were to find some marginal relevance of such testimony, it would not be sufficiently important in resolving the remaining issues in the case, and the burden and expense of such discovery would outweigh its likely benefit. Thus, BCREI needs not designate a witness to testify regarding indemnity provisions in the Fidelity agreements, although it may choose to do so. If BCREI declines to designate a witness on this topic, it may not introduce at trial evidence regarding the indemnity provisions, including evidence regarding the reasons why it added the indemnity provisions to the Fidelity agreements. For the foregoing reasons, Magistrate Judge Aaron ordered BCREI to designate a witness or witnesses to testify regarding Topic 4(h)(iii), as revised; and Topic 6(i) (regarding BCREI's negotiation of attorney fee schedules). A full-text copy of the Court's Jan. 25, 2019 Opinion and Order is available at https://is.gd/SY1FQJ from Leagle.com. Lamar Bigsby, Jr., on behalf of himself and all others similarly situated, Plaintiff, represented by Joseph Karl Jones, Jones, Wolf & Kapasi LLC, Benjamin Jarret Wolf, Jones, Wolf & Kapasi, LLC & Paul Stewart Grobman, Paul Grobman, Esq. Karla Freeland, Plaintiff, represented by Benjamin Jarret Wolf, Jones, Wolf & Kapasi, LLC & Paul Stewart Grobman, Paul Grobman, Esq. Barclays Capital Real Estate, Inc., doing business as, Defendant, represented by James Ellis Brandt -- james.brandt@lw.com -- Latham & Watkins LLP, Michael Andrew Watsula -- michael.watsula@lw.com -- Latham & Watkins LLP, Serrin Andrew Turner -- serrin.turner@lw.com -- Latham & Watkins LLP & Tracey L. Orick, Latham & Watkins, LLP. Maria Brandt, Herman Grimes & Kathleen Murry, ADR Providers, represented by Benjamin Jarret Wolf, Jones,Wolf & Kapasi, LLC. BCBSM INC: LP Suit Alleges ERISA Violation ------------------------------------------ L.P., by and through her father, J.P., individually and on behalf of all others similarly situated v. BCBSM, Inc., dba Blue Cross and Blue Shield of Minnesota, Case No. 0:18-cv-03472 (D. Minn., December 26, 2018), is brought against the Defendant for violation of the Employee Retirement Income Security Act. The action arises from the Defendant's practice of reducing insured's covered benefits by amounts that Blue Cross claims, without adjudication and without proper notice, it overpaid to the same insured for unrelated health care expenses. Offsetting in this manner is permitted only when an insurer's ERISA-regulated plan authorizes it. Blue Cross's language, which is standardized among its various insurance products, does not, asserts the comaplaint. The Plaintiff J.P. was a full-time employee of Bolton & Menk, Inc., an engineering firm with headquarters in Mankato, MN. While employed at Bolton & Menk, J.P. lived in Nicollet County, within this judicial district. His employer-sponsored health insurance at issue in this litigation was administered by defendant Blue Cross and Blue Shield of Minnesota and is regulated by ERISA. The Defendant BCBSM, Inc. is a non-profit company incorporated in Minnesota with its principal place of business located within this judicial district. [BN] The Plaintiff is represented by: Charles N. Nauen, Esq. Susan Ellingstad, Esq. David W. Asp, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South Suite 2200 Minneapolis, MN 55401 Tel: (612) 339-6900 Fax: (612) 339-0981 E-mail: cnnauen@locklaw.com seellingstad@locklaw.com dwasp@locklaw.com - and - Jordan Lewis, Esq. JORDAN LEWIS, P.A. 4473 N.E. 11th Avenue Fort Lauderdale, FL 33334 Tel: (954) 616-8995 Fax: (954) 206-0374 E-mail: jordan@jml-lawfirm.com BECTON DICKINSON: Defending Against 4,445 Hernia Product Claims --------------------------------------------------------------- Becton, Dickinson and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2019, for the quarterly period ended December 31, 2018, that the company is defending approximately 4,445 product liability claims involving the Company's line of hernia repair devices. As of December 31, 2018, the Company is defending approximately 4,445 product liability claims involving the Company's line of hernia repair devices (collectively, the "Hernia Product Claims"). The majority of those claims are currently pending in a coordinated proceeding in Rhode Island State Court, but claims are also pending in other state and/or federal court jurisdictions. In addition, those claims include multiple putative class actions in Canada. Generally, the Hernia Product Claims seek damages for personal injury allegedly resulting from use of the products. From time to time, the Company engages in resolution discussions with plaintiffs' law firms regarding certain of the Hernia Product Claims, but the Company also intends to vigorously defend Hernia Product Claims that do not settle, including through litigation. Trials are scheduled throughout 2019 in various state and/or federal courts. The Company expects additional trials of Hernia Product Claims to take place over the next 12 months. In August 2018, a new hernia multi-district litigation ("MDL") was ordered to be established in the Southern District of Ohio. The Company cannot give any assurances that the resolution of the Hernia Product Claims that have not settled, including asserted and unasserted claims and the putative class action lawsuits, will not have a material adverse effect on the Company’s business, results of operations, financial condition and/or liquidity. Becton, Dickinson and Company develops, manufactures, and sells medical supplies, devices, laboratory equipment, and diagnostic products worldwide. Becton, Dickinson and Company was founded in 1897 and is based in Franklin Lakes, New Jersey. BECTON DICKINSON: Has Deal for 15,156 Women Health Product Claims ----------------------------------------------------------------- Becton, Dickinson and Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2019, for the quarterly period ended December 31, 2018, that as of December 31, 2018, the Company has reached agreements or agreements in principle with various plaintiffs' law firms to settle their respective inventories of cases totaling approximately 15,156 of the Women's Health Product Claims. As of December 31, 2018, the Company is defending approximately 1,098 product liability claims involving the Company's line of pelvic mesh devices. The majority of those claims are currently pending in either the federal MDL in the United States District Court for the Southern District of West Virginia, or a coordinated proceeding in New Jersey State Court, but claims are also pending in other state and/or federal court jurisdictions. In addition, those claims include putative class actions filed in the United States. Not included in the figures above are approximately 1,026 filed and unfiled claims that have been asserted or threatened against the Company but lack sufficient information to determine whether a pelvic mesh device of the Company is actually at issue. The claims identified above also include products manufactured by both the Company and two subsidiaries of Medtronic plc (as successor in interest to Covidien plc) ("Medtronic"), each a supplier of the Company. Medtronic has an obligation to defend and indemnify the Company with respect to any product defect liability relating to products its subsidiaries had manufactured. As described below, in July 2015 the Company reached an agreement with Medtronic (which was amended in June 2017) regarding certain aspects of Medtronic's indemnification obligation. The foregoing lawsuits, unfiled claims, putative class actions, and other claims, together with claims that have settled or are the subject of agreements or agreements in principle to settle, are referred to collectively as the "Women's Health Product Claims." The Women's Health Product Claims generally seek damages for personal injury allegedly resulting from use of the products. As of December 31, 2018, the Company has reached agreements or agreements in principle with various plaintiffs' law firms to settle their respective inventories of cases totaling approximately 15,156 of the Women's Health Product Claims. The Company believes that these Women's Health Product Claims are not the subject of Medtronic's indemnification obligation. These settlement agreements and agreements in principle include unfiled and previously unknown claims held by various plaintiffs' law firms, which are not included in the approximate number of lawsuits set forth in the first paragraph of this section. Each agreement is subject to certain conditions, including requirements for participation in the proposed settlements by a certain minimum number of plaintiffs. The Company continues to engage in discussions with other plaintiffs' law firms regarding potential resolution of unsettled Women's Health Product Claims, which may include additional inventory settlements. Starting in 2014 in the MDL, the court entered certain pre-trial orders requiring trial work up and remand of a significant number of Women's Health Product Claims, including an order entered in the MDL on January 30, 2018, that requires the work up and remand of all remaining unsettled cases (the "WHP Pre-Trial Orders"). The WHP Pre-Trial Orders may result in material additional costs or trial verdicts in future periods in defending Women's Health Product Claims. Trials are anticipated throughout 2019 in state courts. A trial in the New Jersey coordinated proceeding began in March 2018, and in April 2018 a jury entered a verdict against the Company in the total amount of $68 million ($33 million compensatory; $35 million punitive). The Company is in the process of appealing that verdict. The Company expects additional trials of Women's Health Product Claims to take place over the next 12 months, which may potentially include consolidated trials. In July 2015, as part of the agreement with Medtronic noted above, Medtronic agreed to take responsibility for pursuing settlement of certain of the Women’s Health Product Claims that relate to products distributed by the Company under supply agreements with Medtronic, and the Company has paid Medtronic $121 million towards these potential settlements. In June 2017, the Company amended the agreement with Medtronic to transfer responsibility for settlement of additional Women's Health Product Claims to Medtronic on terms similar to the July 2015 agreement, including with respect to the obligation to make payments to Medtronic towards these potential settlements. The Company also may, in its sole discretion, transfer responsibility for settlement of additional Women's Health Product Claims to Medtronic on similar terms. The agreements do not resolve the dispute between the Company and Medtronic with respect to Women's Health Product Claims that do not settle, if any. During the course of engaging in settlement discussions with plaintiffs' law firms, the Company has learned, and may in future periods learn, additional information regarding these and other unfiled claims, or other lawsuits, which could materially impact the Company's estimate of the number of claims or lawsuits against the Company. Becton, Dickinson and Company develops, manufactures, and sells medical supplies, devices, laboratory equipment, and diagnostic products worldwide. Becton, Dickinson and Company was founded in 1897 and is based in Franklin Lakes, New Jersey. BIG M CASINO: Court Conditionally Certifies Pecora FLSA Class ------------------------------------------------------------- In the case, MICHAEL PECORA, on behalf of himself and all other similarly situated, Plaintiffs, v. THE BIG M CASINO, INC. and JOHN DOE 1-10, individually, Defendant, Civil Action No. 4:18-cv-01422-RBH (D. S.C.), Judge R. Bryan Harwell of the U.S. District Court for the District of South Carolina, Florence Division, granted in part and denied in part the Plaintiffs' Motion for Conditional Class Certification under the FLSA and to Authorize Notice to Putative Class Members. The action arises from Pecora's allegations that the Defendants have violated 29 U.S.C. Section 216(b) "Fair Labor Standards Act" or "FLSA") and/or S.C. Code Ann. Section 41-10-10 et seq. ("South Carolina Payment of Wage Act" or "SCPWA"). On May 24, 2018, Pecora brought suit against his former employer, Defendant Big M for unpaid wages. Pecora has sued both in his individual capacity and on behalf of all other similarly situated putative class members. According to the allegations within the complaint, Pecora was employed by Big M, a casino boat cruise company, as a "dealer" and "shift supervisor" for over ten years. Pecora alleges that Defendants paid him and others less than the statutory minimum wag by taking the "tip credit" under the FLSA. He further alleges that Big M had a policy requiring dealers, including Pecora, to participate in a mandatory tip pool, and Big M would then redistribute those tips to shift supervisors. Pecora further alleges that he, as well as other employees, were not paid for time spent working prior to and after the casino boat's departure and return to the dock. Within the complaint, Pecora alleges violations of both the FLSA and SCPWA. Pecora filed the lawsuit on behalf of himself and as a collective action under the FLSA and as a Rule 23 class action to recover damages resulting from the failure to pay the proper minimum wage and failure to pay overtime wages. Pecora filed a motion to certify the class under the FLSA only. Pecora asserted in his motion that he and one other individual who worked for Big M have joined the lawsuit. Since the filing of the initial motion, eight more former employees have filed a notice evidencing their consent to become a party Plaintiff to the lawsuit. According to Pecora, Big M implemented a policy wherein it would pay employees acting as "floor supervisors" less than minimum wage by taking the Tip Credit provided for in the FLSA. He argues that because floor supervisors received funds from this tip pool but were not regularly and customarily tipped employees, the policy invalidated the use of the tip credit. The Defendants refute these "facts" and, relying upon the affidavit of Big M's general manager, Mary Slabinski, state that Pecora worked as either a dealer or a supervisor and that there is no such position as "floor supervisor." She provides payroll records, purportedly showing that Pecora was paid one rate as a supervisor, and another rate, a tip credit wage rate, as a dealer. The Plaintiffs now seeks to conditionally certify a class in the matter and have filed a motion to certify the lawsuit as a collective action. The Plaintiffs wish to define the class as all individuals who were employed by the Defendants as Dealers or Floor Supervisors at any time within the three years prior to joining the lawsuit, who were nonexempt employees paid a direct, or hourly, rate less than the minimum wage of Seven and 25/100 dollars ($7.25) per hour and participated in a mandatory tip pool created by the Big M. They further seek to provide and effectuate notice via several methods of communication, and therefore requests the Court enters an order requiring Big M to provide specific information, include the full names and addresses of employees, dates of employment, mailing addresses, email addresses, and telephone numbers. Further, they ask the Court authorizes the mailing of a specific Notice and Consent. Big M disagrees that conditional class certification is proper, arguing that: (1) Pecora has failed to establish a class of "similarly situated" individuals; (2) Pecora has only provided the consent of one other individual interested in joining the lawsuit; and (3) that the requested Notice is deficient. After the filing of Big M's response, eight more individuals filed a Notice of Joinder in the lawsuit. Accordingly, in addition to Pecora, there are now nine opt-in Plaintiffs, bringing the total number of the Plaintiffs, including those seeking to opt-in, at 10. Judge Harwell finds that the Plaintiffs have met that standard for conditional class certification. Taking into account the arguments made by both parties, the class is defined as any individual employed at Big M at any time since (Date 3 years prior to mailing) who at any time was paid a direct, or hourly, rate less than the statutory minimum wage of Seven and 25/100 dollars ($7.25) per hour and held the position of dealer. In reviewing all of the arguments made by the counsel, the Judge Court orders that Big M transmit the following contact information to the TPA for each member of the putative class: (1) full names of each individual of the putative class, along with the identification of whether each individual is a current employee; (2) the dates of employment for each named individual; (3) the last known mailing address on file, included in either payroll records, W-2, or elsewhere in the employee file of each named individual; and (4) all known e-mail addresses on file for each individual of the putative class. The Judge approves the Plaintiffs' revised Notice and Consent attached as Exhibit 2, as well as the E-Mail Notice attached as Exhibit 1, to their reply brief. And, in order to be consistent with respect to the mailed notice, he orders that the subject line read as follows: "Big M Collective (Class) Action Lawsuit under the Fair Labor Standards Act — Please Read." This is the subject line that the Court approves of in the e-mail notice. For the reasons stated, Judge Harwell granted in part and denied in part, subject to the modifications and limitations as outlined in the Order. He conditionally certified as a collective action under 29 U.S.C. Section 216(b). The class will be defined as any individual employed at Big M at any time since (Date 3 years prior to mailing) who at any time was paid a direct, or hourly, rate less than the statutory minimum wage of Seven and 25/100 dollars ($7.25) per hour and held the position of dealer. The revised Notice and Consent (Notice) attached to the Plaintiffs' Reply as Exhibit 2 is appropriate to provide notice to the potential members of the class, via U.S. mail and for allowing potential members to of the class to opt-in, or join the class. The revised E-mail Notice attached to the Plaintiffs' Reply as Exhibit 1 is appropriate for sending notice to the potential class members via e-mail. The subject line will read: Big M Collective (Class) Action Lawsuit under the Fair Labor Standards Act — Please Read. The email will include a .pdf attachment of the same Notice sent via U.S. mail, and attached as Exhibit 2 to the Plaintiffs' Reply [ECF #24-2], to the e-mail sent to the potential class members. The Judge directed that the Notice will be authorized to the potential class members for a 30-day period of time. The putative class members will have 30 days from the date of the Notice to return their Consent form. The timeliness will be determined based upon the date that the Consent is post-marked. The parties will use the service of TPA Simpluris, Inc. to handle distribution of Notice and Consent. The Plaintiff will pay all fees and costs of TPA, subject to reimbursement pending the outcome of the lawsuit. The TPA will need to insert appropriate dates within the Notice wherein language is contained requesting the insertion of a date. Within five calendar days of the entry of the Order, the Judge ordereed Big M to provide, in electronic format, if available, the TPA, for all the potential class members the following information: (a) full names of each individual of the putative class, along with the identification of whether each individual is a current employee; (b) the dates of employment for each named individual; (c) the last known mailing address on file, included in either payroll records, W-2, or elsewhere in the employee file of each named individual; and (d) all known e-mail addresses on file for each individual of the putative class. The TPA, will within 10 calendar days of the entry of the Order: (a) mail, via first class U.S. mail, a copy of the Notice and Consent, attached as Exhibit 2 to the Plaintiffs' Reply to all members of the potential class; and (b) e-mail to all members of the potential class, a copy of the Notice and Consent. The body of the e-mail will reflect the language found in Exhibit 1 attached to the Plaintiffs' Reply. The mailing envelope will have a return address as follows: Class Action Lawsuit Bruce E. Miller Bruce E. Miller, P.A. 147 Wappoo Creek Drive, Suite 603 Charleston, SC 29412 Enclosed with the Notice will be a self-addressed, postage-paid envelope using the name and mailing address of the Plaintiffs' counsel for both the address and return address. Within seven days of receiving the contact information from the Defendant, the TPA will provide the Plaintiffs' counsel with the following information: (a) the number of putative class numbers; (b) the number of mailing addresses; (c) the number of e-mail addresses. If the TPA receives any completed Consents, the TPA shall, within 24 hours of receiving the Consent, email a copy of each to the counsel for the Plaintiffs to be filed with the Court. Within five business days, the TPA will also mail the original Consent to the Plaintiffs' counsel. Within 65 days of the entry of the Order, the TPA will send the identical report to counsel for the parties, showing all activity of the TPA in the action, redacting the names and contact information for all putative class members who did not opt-in to the lawsuit. This will include a list of all the potential class members and whether the TPA mailed and/or e-mailed the Notice, along with indications of which methods, if any, were unsuccessful. This report will also include any telephone calls received from any potential class members, along with what subsequent action, if any, the TPA took. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/mmvkfT from Leagle.com. Michael Pecora, on behalf of himself and all others similarly situated, Plaintiff, represented by Bruce E. Miller -- bmiller@brucemillerlaw.com -- Bruce E Miller Law Office. The Big M Casino Inc, Defendant, represented by Allan Riley Holmes -- aholmes@gibbs-holmes.com -- Gibbs and Holmes & Emma Ruth H. Brittain, Thomas and Brittain. BIG M CASINO: Court Denies Bid to Dismiss Pecora FLSA/SCPWA Suit ---------------------------------------------------------------- Judge R. Bryan Harwell of the U.S. District Court for the District of South Carolina, Florence Division, denied the Defendant's motion to dismiss the case, MICHAEL PECORA, on behalf of himself and all other similarly situated, Plaintiffs, v. THE BIG M CASINO, INC. and JOHN DOES 1-10, individually, Defendant, Civil Action No. 4:18-cv-01422-RBH (D. S.C.). The action arises from Pecora's allegations that the Defendants have violated 29 U.S.C. Section 216(b) "Fair Labor Standards Act" or "FLSA") and/or S.C. Code Ann. Section 41-10-10 et seq. ("South Carolina Payment of Wage Act" or "SCPWA"). On May 24, 2018, Pecora brought suit against his former employer, Defendant Big M for unpaid wages. Pecora has sued both in his individual capacity and on behalf of all other similarly situated putative class members. According to the allegations within the complaint, Pecora was employed by Big M, a casino boat cruise company, as a "dealer" and "shift supervisor" for over ten years. Pecora alleges that Defendants paid him and others less than the statutory minimum wag by taking the "tip credit" under the FLSA. He further alleges that Big M had a policy requiring dealers, including Pecora, to participate in a mandatory tip pool, and Big M would then redistribute those tips to shift supervisors. Pecora further alleges that he, as well as other employees, were not paid for time spent working prior to and after the casino boat's departure and return to the dock. Within the complaint, Pecora alleges violations of both the FLSA and SCPWA. Pecora filed the lawsuit on behalf of himself and as a collective action under the FLSA and as a Rule 23 class action to recover damages resulting from the failure to pay the proper minimum wage and failure to pay overtime wages. Specifically, his complaint alleges causes of action for: (1) Violation of the FLSA as an "opt-in" collective action; and (2) Violation of SCPWA as a collective class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Big M has now filed a motion to dismiss the state law claim for recovery of tips. It argues that any state law claim is preempted by the FLSA. While Big M acknowledges that this issue has previously been addressed by the Court, it argues that the issue has not been properly framed for consideration, and further, that a recent amendment to section 203(m) affects all related claims after March 23, 2018. According to Big M, the passage of the Consolidated Appropriations Act, which was effective March 23, 2018, amends section 203(m) of the FLSA and now provides a specific remedy for a violation of this section. Pecora denies that it is proper to grant the motion and urges the Court to follow prior case law, including its own previous orders. Judge Harwell finds that the arguments made by Big M in the case have been previously considered in one form or fashion several times, and Big M has not provided any additional reasoning to persuade the Court to rule any differently that in its prior decisions. He has thoughtfully considered Big M's arguments but is unpersuaded to reject the sound reasoning articulated in its prior orders and the orders from other judges within the district. Additionally, as pointed out by Pecora, the Judge holds that the fact that the FLSA may provide a remedy for potential claims acquired after March 23, 2018 would not necessarily alter the analysis in the cases previously analyzed finding that the Plaintiff could bring both an FLSA and a state law claim. Pecora's employment ended Jan. 10, 2018. The Court does not currently have before it a plaintiff with claims that accrued after March 23, 2018. Thus, Big M's argument may be premature, and the Judge declines to make a ruling at this time on a claim that is not presently before the Court. While the Court is aware that a motion for conditional class certification is pending, the Judge cannot determine at this date whether any of the potential class members seek to bring a claim accruing after March 23, 2018. Accordingly, for the foregoing reasons, he will deny the Defendant's motion to dismiss the complaint at this time based upon the claims currently before the Court. Based on this, Judge Harwell denied the Defendant's motion to dismiss. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/3HVWr8 from Leagle.com. Michael Pecora, on behalf of himself and all others similarly situated, Plaintiff, represented by Bruce E. Miller -- bmiller@brucemillerlaw.com -- Bruce E. Miller Law Office. The Big M Casino Inc, Defendant, represented by Allan Riley Holmes -- aholmes@gibbs-holmes.com -- Gibbs and Holmes & Emma Ruth H. Brittain, Thomas and Brittain. BLUE NILE: Dennis Files ADA Suit in E.D. New York ------------------------------------------------- A class action lawsuit has been filed against Blue Nile, Inc. The case is styled as Derrick U Dennis on behalf of himself and all others similarly situated, Plaintiff v. Blue Nile, Inc., Defendant, Case No. 1:19-cv-00678 (E.D. N.Y., Feb. 4, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Blue Nile, Inc. operates as an online retailer of diamonds and fine jewelry worldwide.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com BP EXPLORATION: Eldridge Suit Over Oil Spill Moved to N.D. Miss. ---------------------------------------------------------------- Magistrate Judge Joseph C. Wilkinson, Jr. of the U.S. District Court for the Eastern District of Louisiana transferred the case, ADAM LEE ELDRIDGE, v. BP EXPLORATION AND PRODUCTION INC. ET AL., SECTION "J" (2), Civil Action No. 18-8326 (E.D. La.), to the U.S. District Court for the Northern District of Mississippi. The BELO portion of the Medical Benefits Class Action Settlement Agreement in In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, Record Doc. No. 6427-1 at pp. 60-73, and the court's Case Management Orders, Record Doc. No. 14099 in MDL No. 2179 and Record Doc. No. 3 in the captioned case, provide for determination by the court, with the input of the parties, of the appropriate venue for discovery and dispositive proceedings. The Defendants have filed a Motion to Transfer Venue to the U.S. District Court for the Northern District of Mississippi, noticed for submission on Jan. 23, 2019. The Plaintiff has failed to file an opposition memorandum. However, his complaint argues that venue is proper in the Southern District of Alabama. Having considered the record, the applicable law, and the written submissions of counsel for the parties, Magistrate Judge Wilkinson granted the Defendants' motion, and transferred the instant matter to the U.S. District Court for the Northern District of Mississippi. He finds that venue is both proper and most appropriate in the Northern District of Mississippi. The convenience of the parties and witnesses and the interests of justice warrant transfer of the case. A magistrate judge is authorized to transfer a case of this sort to another district. Accordingly, he transferred the instant matter to the U.S. District Court for the Northern District of Mississippi. A full-text copy of the Court's Jan. 23, 2019 Order and Reasons is available at https://is.gd/sL1m4q from Leagle.com. Adam Lee Eldridge, Plaintiff, represented by Craig Downs, Downs Law Group, PA, Nathan Lee Nelson, Downs Law Group, PA & Vanessa Elizabeth Diaz, Downs Law Group, PA. BP America Production Company & BP Exploration & Production, Inc., Defendants, represented by Don Keller Haycraft -- dkhaycraft@liskow.com -- Liskow & Lewis, Catherine Pyune McEldowney -- CPM@maronmarvel.com -- Maron Marvel Bradley and Anderson LLC & Kevin Michael Hodges -- khodges@wc.com -- Williams & Connolly, LLP. CALIFORNIA SERVICE: Settlement in West TCPA Suit Has Final Approval ------------------------------------------------------------------- In the case, SANDRA WEST and HECTOR MEMBRENO, individually and on behalf of all other similarly situated, Plaintiffs, v. CALIFORNIA SERVICE BUREAU, INC. Defendant, Case No. 4:16-cv-03124-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted (i) the parties' Motion for Final Approval of Class Action Settlement, and (ii) the Plaintiffs' Motion for an Award of Attorneys' Fees, Costs, and Incentive Awards. On Sept. 12, 2018, the Court granted preliminary approval of a proposed class action settlement between the parties in the Action. In the Preliminary Approval Order, the Court approved the procedures for giving notice and the forms of notice. Additionally, it concluded that the parties' proposed settlement, as set forth in the Class Action Settlement Agreement, was within range of possible final approval. Now, pending before the Court is the parties' Motion for Final Approval, and the Plaintiffs' Motion. In accordance with the Preliminary Approval Order and the parties' Class Action Settlement Agreement, on Jan. 22, 2019, the Court held a duly noticed Fairness Hearing. Hving reviewed the papers filed in support of the Motions, heard the arguments of the counsel, and good cause appearing therefore, Judge Rogers granted (i) the Motion for Final Approval, and (ii) the Plaintiffs' Motion. Accordingly, she finally approved the Class Action Settlement Agreement in all respects, and directed the parties to implement and consummate the Class Action Settlement Agreement according to its terms and provisions. The Judge awarded $1,365,300 to Bursor & Fisher, P.A. and Martin & Bontrager APC ("Class Counsel") as attorneys' fees. Bursor & Fisher, P.A. will be solely responsible for determining the amount of monies to be paid, if any, to the other Plaintiffs' counsel. She also awarded (i) to Plaintiffs Sandra West and Hector Membreno $7,500 and $5,000 each as an incentive award for their participation in the matter; and (ii) $214,457.10 to the Class Counsel as reimbursement of out-of-pocket costs and expenses in connection with the prosecution of the matter. The Defendants will pay the Fee Award and Incentive Awards pursuant to and in the manner provided by the Class Action Settlement Agreement. The Settlement Approval Order and Final Judgment constitutes a judgment within the meaning and for purposes of Rule 54 of the Federal Rules of Civil Procedure. Subject to the terms and conditions of the Class Action Settlement Agreement, the Judge dismissed the Action with prejudice, without fees or costs to any party, except the Fee Award and Incentive Awards provided by the Class Action Settlement Agreement. The Judge set a compliance hearing for Nov. 8, 2019 on the Court's 9:01 a.m. calendar in Courtroom 1 of the United States Courthouse located at 1301 Clay Street in Oakland, California. No later than five business days prior to the date of the hearing, the parties will file a Post-Distribution Accounting in compliance with the District's Procedural Guidance for Class Action Settlements. If compliance is complete, the parties need not appear, and the compliance hearing will be taken off calendar. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/58GMU4 from Leagle.com. Sandra West, Plaintiff, represented by G. Thomas Martin, III -- tom@mblawapc.com -- Martin & Bontrager, APC, Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A., Yitzchak Kopel -- ykopel@bursor.com -- Bursor Fisher & Nicholas J. Bontrager -- Nick@mblawapc.com -- Martin & Bontrager, APC. Hector Membreno, Consol Plaintiff, represented by Lawrence Timothy Fisher, Bursor & Fisher, P.A., Nicholas J. Bontrager, Martin & Bontrager, APC, Annick Marie Persinger, Bursor & Fisher, P.A., Thomas A. Reyda, Burosr and Fisher, P.A., Yeremey O. Krivoshey, Bursor Fisher, P.A. &Yitzchak Kopel, Bursor Fisher. California Service Bureau, Inc., Defendant, represented by Charles Robert Messer -- messerc@cmtlaw.com -- Carlson & Messer LLP, David J. Kaminski -- kaminskid@cmtlaw.com -- Carlson & Messer LLP & Stephen Albert Watkins WatkinsS@cmtlaw.com -- Carlson and Messer LLP. CANADA: Quebec Nursing Home Residents' Class Action Pending ----------------------------------------------------------- Aaron Derfel, writing for Montreal Gazette, reports that as a resident of a long-term care centre in St-Jean-sur-Richelieu, Daniel Pilote sometimes fears for his life. Since the age of nine, Mr. Pilote has suffered from muscular dystrophy. He's paralyzed from the neck down, and has a breathing tube in his trachea that needs to be replaced every morning. But there are days when the harried staff forget to replace the tube, increasing the risk that Mr. Pilote might catch a life-threatening infection. Then there are days when he's noted errors in his medication. "Fortunately, given my age and lucidity, I can notice these things," said Mr. Pilote, who turns 57 in February. "But imagine a person who suffers from Alzheimer's. I can tell the staff that my cannula was not replaced in the morning, but someone with dementia can't complain." In July, Mr. Pilote became the lead plaintiff in a $500-million class action against the government for its "shameful" handling of the province's network of public nursing homes, known in French as Centres d'hebergement de soins de longue duree, or CHSLDs. In November, the class action -- which has yet to be authorized -- was nonetheless given a boost when provincial ombudsman Marie Rinfret released a report on the state of CHSLDs, using words like "mistreatment" and "deficient" to describe the conditions of some of the residences. But regardless of the outcome of the legal action, Mr. Pilote and other patients are urging the Quebec government to adopt a law that would protect the elderly and disabled living in public and private nursing homes. They note that Ontario adopted such a law in 2007, which includes a "residents' bill of rights" as well as clauses on nursing care, diet and hydration, among other services. "We absolutely need to have law," Mr. Pilote said. "What we're dealing with is organizational mistreatment, and the only way to address this problem is a law." For Mr. Pilote, the law would also be about restoring the dignity of long-term care residents and giving them a place they can call a real home. Patients-right advocate Paul Brunet, of the Conseil pour la protection des malades, is also lobbying for such a law. Brunet has a meeting scheduled at the end of the month with Marguerite Blais, the minister responsible for seniors and informal caregivers, to discuss how Quebec could follow Ontario's lead in passing its own nursing-home legislation. "The spirit of such a law would be to render compulsory a minimum quality of care and services that must be provided if you want to operate a long-term care facility, whether it's public or private," Brunet explained. He recommended that the law should have teeth, with severe sanctions for nursing-home operators who flout its provisions repeatedly. "We do not want to hear anymore about the kinds of systemic mistreatment that we have witnessed in the last few years," Brunet added. Premier François Legault pledged in an economic update in December to allocate more resources to CHLSDs, but he hasn't commented on the need for a law on nursing homes. (In August, while campaigning in the last provincial election, Mr. Legault promised to replace CHSLDs with what he called Maisons des Aînes, smaller seniors' homes with air-conditioned rooms.) Mr. Pilote is heartened by some of the comments that the CAQ government has made about improving care in CHSLDs. But that talk must now translate into action in the new year, he said. "I know there are good intentions," Mr. Pilote added. "But the government will have to do something about this problem, because at the end of the day it's the residents of long-term care centres who are suffering." [GN] CAPITAL ONE: Court Denies Bid to Remand Langer PCC/MVSFA Suit ------------------------------------------------------------- Judge Harvey Bartle, III of the U.S. District Court for the Eastern District of Pennsylvania denied the Plaintiffs' motion to remand the case, RANDY LANGER, et al., v. CAPITAL ONE AUTO FINANCE, Civil Action No. 16-6130 (E.D. Pa.), to the Court of Common Pleas of Philadelphia County. The Plaintiffs commenced the putative class action on Oct. 5, 2016 in the Court of Common Pleas of Philadelphia County against Capital One. They allege violations of the Pennsylvania Commercial Code ("PCC"), and the Pennsylvania Motor Vehicle Sales Finance Act ("MVSFA"), in connection with the repossession by Capital One of the Plaintiffs' and the class members' automobiles. In April 2015, Capital One repossessed a vehicle belonging to Plaintiffs James and Randy Langer for failure to make payments on the loan financing the vehicle. The Plaintiffs allege that this repossession violated certain of their rights under the PCC and MVSFA. The Plaintiffs seek as compensation for these alleged violations of Pennsylvania law the greater of actual or statutory damages. They contend that the Pennsylvania Department of Transportation would not have transferred the title of the repossessed vehicles from them to Capital One had the Department been aware of Capital One's failure to comply with Pennsylvania law. The Plaintiffs further assert that any remaining indebtedness to Capital One for the vehicles should be extinguished due to Capital One's failure to act in a commercially reasonable manner. Thus, they seek to restrain collection or enforcement by Capital One of any deficiency balances and to vacate any deficiency judgments entered against the Plaintiffs. On Nov. 15, 2018, some two years after the action was brought, the Plaintiffs filed a motion for leave to amend the complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. The Plaintiffs sought to add additional named Plaintiffs and to raise new claims relating to alleged "hidden fees" charged by Capital One in connection with the repossessions and Capital One's alleged failure to disclose that vehicles were sold at public, rather than private, auctions. Plaintiffs also included new claims regarding Capital One's Post-Sale Notices under the laws of Ohio, Michigan, New Jersey, New York, Texas, Florida, Georgia, North Carolina, and Washington. Capital One timely removed the action on Nov. 21, 2016 under the Class Action Fairness Act of 2005. On Dec. 31, 2018, the Plaintiffs took a different tack by withdrawing their motion for leave to amend and by filing the instant motion to remand on the ground that the Court does not have subject matter jurisdiction because the Plaintiffs do not have standing to pursue the action. They've also filed a putative class action complaint in the Court of Common Pleas of Jefferson County, Pennsylvania in which they raised claims similar to those asserted in the complaint pending here as well as certain of the claims alleged in their now-abandoned proposed amended complaint. Judge Bartle finds that the Plaintiffs have not alleged an attenuated risk of future harm or a bare violation of statute divorced from any actual injury. Instead, they have alleged a particularized and concrete injury, that is, the repossession of their vehicles in a manner contrary to Pennsylvania law. The Plaintiffs have further alleged that, in light of these violations, they should not have lost title to their vehicles and that any amounts due on loans made to finance the vehicles should be extinguished. The Plaintiffs have standing under Article III of the United States Constitution, and the Court has subject matter jurisdiction. Accordingly, the Judge denied the motion of Plaintiffs to remand. A full-text copy of the Court's Jan. 23, 2019 Memorandum is available at https://is.gd/dfKleW from Leagle.com. RANDY LANGER & JAMES LANGER, Plaintiffs, represented by RICHARD E. SHENKAN -- rshenkan@shenkanlaw.com -- SHENKAN INJURY LAWYERS LLC. CAPITAL ONE AUTO FINANCE, A DIVISION OF CAPITAL ONE, N.A., Defendant, represented by SAMANTHA BETH KATS -- skats@stradley.com -- STRADLEY RONON STEVENS & YOUNG LLP, BURT M. RUBLIN -- RUBLINBALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS & INGERSOLL, LLP, DANIEL J.T. MCKENNA -- MCKENNADBALLARDSPAHR.COM -- BALLARD SPAHR ANDREWS & INGERSOLL, LLP, JOSEPH THOMAS KELLEHER -- jkelleher@stradley.com -- STRADLEY, RONON, STEVENS & YOUNG, LLP & ROBERT EVAN HAIMES -- HAIMESRBALLARDSPAHR.COM -- BALLARD SPAHR LLP. CITY ISLAND YACHT: Thorne Files ADA Class Action in New York ------------------------------------------------------------ A class action lawsuit has been filed against City Island Yacht Club. The case is styled as Braulio Thorne and On Behalf of All Other Persons Similarly Situated, Plaintiff v. City Island Yacht Club, Defendant, Case No. 1:19-cv-01073 (S.D. N.Y., Feb. 4, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. The City Island Yacht Club (CIYC) was formed during the Winter of 1904-1905. At first, the Club was located at Herman Cordes' boathouse on the west side of City Island Avenue, just north of Ditmar Street. Ike Tabor designed the Club's burgee and it was first raised on May 30, 1905.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com CONNLEY FISHING: Thorne Files ADA Class Action ----------------------------------------------- A class action lawsuit has been filed against Connley Fishing LLC. The case is styled as Braulio Thorne and On Behalf of All Other Persons Similarly Situated, Plaintiff v. Connley Fishing LLC, Defendant, Case No. 1:19-cv-01075 (S.D. N.Y., Feb. 4, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Connley Fishing LLC manufactures custom fishing rods and outfit saltwater tournament boats. They specialize in building high end serious fishing equipment for fishing enthusiasts.[BN] The Plaintiff is represented by: Jeffrey M. Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com CONTEXTLOGIC INC: Violates ADA, Dennis Suit Asserts ---------------------------------------------------- A class action lawsuit has been filed against Contextlogic, Inc. The case is styled as Derrick U Dennis on behalf of himself and all others similarly situated, Plaintiff v. Contextlogic, Inc., Defendant, Case No. 1:19-cv-00694 (E.D. N.Y., Feb. 4, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. ContextLogic Inc., doing business as Wish, provides online services that include media sharing and communication tools, personalized and other content, and e-commerce.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. Shalom Law, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11374 Phone: (516) 807-1748 Email: jshalom@jonathanshalomlaw.com CORONA, CA: Failed to Apply Cash-in-Lieu Payments, Sevier Says -------------------------------------------------------------- KAREN SEVIER, on behalf of herself and all similarly situated individuals, the Plaintiffs, vs. CITY OF CORONA, the Defendant, Case No. 5:19-cv-00190 (C.D. Cal., Jan. 30, 2019), alleges that Defendant failed to apply the Cash-in-Lieu payments to Plaintiffs in their "regular rate" of pay under the Fair Labor Standard Act. According to the complaint, the City of Corona and the bargaining units representing the City's employees, including the Plaintiffs, have entered into agreements set forth in Memorandum of Understandings, which allows for employees to choose a health insurance "cash-out" option. The Defendant is obligated to follow the terms of the MOUs. Under the City's Benefit Plans, employees of the City, including Plaintiffs, were entitled to receive "cash-out" payments in exchange for not using some or all of the medical benefits provided by the City ("Cash-in-Lieu"). Pursuant to 29 U.S.C. Section 207(e), the "regular rate" must include all remuneration received by an employee unless it is explicitly excluded. The California Central District Court in 2013 (affirmed by the Ninth Circuit in 2016) found this form or payment to not be excludable in determining the "regular rate" when calculating overtime payments. This was widely publicized in the public employment sector and Defendant was aware of these decisions. The lawsuit contends that the Defendant knew or should have known of their obligation to include the Cash-in-Lieu payments in employees' regular rate of pay but nevertheless failed to do so. Thus, the Defendant failed to pay Plaintiffs for overtime compensation at one and one half times their regular rate of pay. In addition to the "cash-out" portion that was improperly excluded from the overtime rate, the entire amount paid as either "cash-out" or for medical benefits should have been included in the overtime rate. This is so because the entire benefit amount is not part of a "bona-fide plan" that is required for the City to exclude the amount paid toward medical benefits from the overtime rate. The City's medical benefit plan is not a "bona-fide plan" because the cash payments made to employees is more than "incidental" to the plan. Corona is a city in Riverside County, California, United States. As of the 2010 census, the city had a population of 152,374, up from 124,966 at the 2000 census.[BN] Attorney for Plaintiffs: Dieter C. Dammeier, Esq. DAMMEIER LAW FIRM 9431 Haven Avenue, Suite 232 Rancho Cucamonga, CA 91730 Telephone: (909) 240-9525 Facsimile: (909) 912-1901 E-mail: Dieter@DammeierLaw.com CRST EXPEDITED: 8th Cir. Appeal Filed in Sellars Harassment Suit ---------------------------------------------------------------- Plaintiffs Leslie Fortune, Claudia Lopez and Cathy Sellars filed an appeal from a court ruling in their lawsuit styled Cathy Sellars, et al. v. CRST Expedited, Inc., Case No. 1:15-cv-00117-LTS, in the U.S. District Court for the Northern District of Iowa - Cedar Rapids. As reported in the Class Action Reporter on Feb. 4, 2019, Judge Leonard T. Strand granted the Defendant's (i) motion for partial summary judgment on the Plaintiffs' retaliation claim, and (ii) motion for decertification of the Hostile Work Environment class. CRST operates its transportation company by teaming together two drivers per truck so one driver may sleep while the other is driving. CRST has a written policy prohibiting sexual harassment in its workplace. The policy also prohibits unlawful employment discrimination and retaliation. The policy is contained within the handbooks that are distributed to CRST drivers and home office employees, including driver managers ("DMs"). The Plaintiffs are female truck drivers who assert claims of hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 against their employer, CRST. They contend that CRST repeatedly failed to discipline DMs for failure to follow its policy of immediately separating drivers upon receipt of a sexual harassment complaint and escalate that complaint to HR. They suggest that DMs are incentivized to keep the trucks moving because stopping them due to sexual harassment complaints will affect their compensation metrics. They allege sexual harassment is allowed to thrive under this purported policy, pattern or practice of failing to discipline DMs for mishandling complaints. The appellate case is captioned as Cathy Sellars, et al. v. CRST Expedited, Inc., Case No. 19-8002, in the United States Court of Appeals for the Eighth Circuit.[BN] Plaintiffs-Petitioners Cathy Sellars, On behalf of herself and all others similarly situated; Claudia Lopez, On behalf of herself and all others similarly situated; and Leslie Fortune, On behalf of herself and all others similarly situated, are represented by: Joshua N. Friedman, I, Esq. Rebecca Houlding, Esq. Giselle Schuetz, Esq. FRIEDMAN & HOULDING LLP 1050 Seven Oaks Lane Mamaroneck, NY 10543 Telephone: (888) 369-1119 E-mail: josh@joshuafriedmanesq.com rebecca@joshuafriedmanesq.com giselle@joshuafriedmanesq.com - and - Thomas Andrew Newkirk, Esq. NEWKIRK ZWAGERMAN PLC 521 E. Locust, Suite 300 Des Moines, IA 50309 Telephone: (515) 883-2000 E-mail: tnewkirk@newkirklaw.com Defendant-Respondent CRST Expedited, Inc., is represented by: Nicholas Petersen, Esq. Kevin James Visser, Esq. SIMMONS PERRINE MOYER BERGMAN PLC 1200 Firstar Bank Building 115 Third Street, S.E. Cedar Rapids, IA 52401-0000 Telephone: (319) 366-7641 E-mail: npetersen@simmonsperrine.com kvisser@simmonsperrine.com DANSKE BANK: March 11 Lead Plaintiff Bid Deadline ------------------------------------------------- Kahn Swick&Foti, LLC ("KSF") and KSF partner, former Attorney General of Louisiana, Charles C. Foti, Jr., remind investors that they have until March 11, 2019 to file lead plaintiff applications in a securities class action lawsuit against Danske Bank A/S (OTC: DNKEY), if they purchased the Company's American Depositary Receipts ("ADRs") between January 9, 2014 and October 23, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the Southern District of New York. What You May Do If you purchased ADRs of Danske and would like to discuss your legal rights and how this case might affect you and your right to recover for your economic loss, you may, without obligation or cost to you, contact KSF Managing Partner Lewis Kahn toll-free at 1-877-515-1850 or via email (lewis.kahn@ksfcounsel.com), or visit https://www.ksfcounsel.com/cases/otc-dnkey/ to learn more. If you wish to serve as a lead plaintiff in this class action, you must petition the Court by March 11, 2019. About the Lawsuit Danske and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On October 23, 2018, media reports revealed the full extent of information provided by a whistleblower to Danske regarding money laundering activities in 2013, which it subsequently concealed while including profits from the illicit activities in its reporting, exposing it to regulatory action and fines. On this news, the price of Danske's ADRs plummeted, erasing more than $2.54 billion in market capitalization. The case is Plumbers & Steamfitters Local 773 Pension Fund v. Danske Bank A/S, et al., No. 19-cv-00235. Lewis Kahn, Esq. Managing Partner Kahn Swick&Foti, LLC 1100 Poydras St., Suite 3200 New Orleans, LA 70163 Telephone: 1-877-515-1850 Website: www.ksfcounsel.com. Email: lewis.kahn@ksfcounsel.com [GN] DOLLAR TREE: Supplemental Pretrial Sched Order in Snipes Issued --------------------------------------------------------------- In the case, TERRY T. SNIPES, SR., an individual, residing in San Joaquin County, California, Plaintiff, v. DOLLAR TREE DISTRIBUTION, INC., A Virginia Corporation; and Does 1 through 50, inclusive, Defendant, Case No. 2:15-cv-00878-MCE-KJN (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the Plaintiff's Proposed Supplemental Pretrial Scheduling Order. On Nov. 28, 2017, the Court granted the Plaintiff's Motion for Class Certification, certifying six classes and five subclasses related to various California Labor Code violations. On Sept. 17, 2018, the Court denied the Defendant's Motion for Reconsideration of the Certification Order. Thereafter, on Nov. 20, 2018, the Court granted the Plaintiff's Motion for Supplemental Pretrial Scheduling Order in order to allow the Plaintiff to conduct such post-certification discovery as may be necessary, and ordered the Parties to meet and confer and submit a proposed Supplemental Scheduling Order for the Court's consideration. The deadline provided by the Court for submission of the joint proposal was Jan. 8, 2018. Beginning on Dec. 12, 2018, the Class Counsel met and conferred in good faith with the Defendant's counsel in an attempt to reach an agreement on a timeline for post-certification discovery. Ultimately, the counsel were unable to agree. The most generous proposal of the Defendant's counsel was to set trial in June 2020, which would have allowed the Plaintiff approximately nine months to complete all post-certification non-expert discovery. The Class Counsel was not willing to stipulate to a period of that length. Accordingly, the nine-month non-expert discovery period offered by the Defendant's counsel was not adequate to account for the amount of discovery to be done, nor the various delays expected to arise. Therefore, the Plaintiff hereby submits his separate Proposed Supplemental Pretrial Scheduling Order as follows, for the Court's consideration: (i) all dispositive motions to be filed by April 15, 2020; (ii) non-expert post-certification discovery will be completed by April 30, 2020; (iii) disclosure of expert witnesses will be completed by May 31, 2020; (iv) disclosure of rebuttal expert witnesses will be completed by July 10, 2020; (v) expert discovery will be completed by Aug. 31, 2020; (vi) the Parties will submit a Joint Pretrial Statement by Oct. 5, 2020, in accordance with Local Rule 281; (vii) Final Pretrial Conference is set for Oct. 12, 2020; (viii) trial briefs will be filed in accordance with Local Rule 285; and (ix) trial is set for Nov. 16, 2020. Furthermore, in recognition that the Class Period is open and ongoing, supplemental Class Notices will be mailed by the Class Administrator at regular intervals until the time of the Final Pretrial Conference, to ensure that all putative Class Members are properly notified of this Action. The supplemental Class Notices will be mailed according to the following schedule: (i) Supplemental Notice #1: On or around June 30, 2019; (ii) Supplemental Notice #2: On or around Jan. 31, 2020; and (iii) Supplemental Notice #3: On or around but not later than Aug. 31, 2020. To the extent the Court does not enter an Order in accordance with the foregoing proposed discovery timeline, the Plaintiff respectfully requests that the Court schedules a conference during which the Parties may further discuss the matter with the Court. Having considered the Parties' Proposed Supplemental Pretrial Scheduling Orders, Judge England set the following deadlines: (i) all dispositive motions to be filed by April 15, 2020; (ii) non-expert post-certification discovery will be completed by April 30, 2020; (iii) disclosure of expert witnesses will be completed by May 31, 2020; (iv) disclosure of rebuttal expert witnesses will be completed by July 10, 2020; (v) expert discovery will be completed by Aug. 31, 2020; and (vi) the parties are ordered to file a Joint Notice of Trial Readiness not later than 30 days after receiving the Court's ruling on the last filed dispositive motion. The parties are to set forth in their Notice of Trial Readiness, the appropriateness of special procedures, whether the case is related to any other case(s) on file in the Eastern District of California, the prospect for settlement, their estimated trial length, any request for a jury, and their availability for trial. After review of the parties' Joint Notice of Trial Readiness, the Court will issue an order that sets forth new dates for a final pretrial conference and trial. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/uQmaKq from Leagle.com. Terry T. Snipes, Plaintiff, represented by Anthony Eugene Guzman -- anthony@suttonhague.com -- Sutton Hague Law Corporation. Terry T. Snipes, Plaintiff, represented by S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law Corporation, PC, Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation, PC & Joseph Vidal Macias -- joseph.macias@maxmintegrated.com -- Sutton Hague Law Corporation, PC. Dollar Tree Distribution, Inc., Defendant, represented by Jeffrey J. Mann -- jmann@littler.com -- Littler Mendelson, P.C., Kurt R. Bockes -- kbockes@littler.com -- Littler Mendelson, P.C., Lindbergh Porter, Jr. -- lporter@littler.com -- Littler Mendelson, Elena R. Baca -- elenabacca@paulhastings.com -- Paul Hastings LLP, George W. Abele, Paul Hastings LLP & Ryan David Derry -- ryanderry@paulhastings.com -- Paul Hastings LLP. DURACELL CO: Siddle & Meeks Sue over Defective LED Flashlights -------------------------------------------------------------- STANLEY SIDDLE and JEF MEEKS, individually and on behalf of all those similarly situated, the Plaintiffs, vs. THE DURACELL COMPANY, BERKSHIRE-HATHAWAY, INC., THE PROCTER & GAMBLE COMPANY, COSTCO WHOLESALE CORPORATION, HOME DEPOT, U.S.A., INC., AMAZON.COM SERVICES, INC., the Defendants, Case No. 3:19-cv-00568 (N.D. Cal., Jan. 31, 2019), is a class action brought by Representative Plaintiffs on behalf of themselves, a California class, and a national class, of all persons who purchased Duracell's LED flashlight models 250, 300 or 350, with full sets of Duracell batteries included, distributed by Duracell's retail partners including COSTCO, HOME DEPOT, and AMAZON, within the last four years. These flashlights are defective: they rapidly drain batteries in less than 30 days when turned OFF. Duracell Co. has been distributing Duracell LED flashlight models 250, model 300, and model 350 since at least 2014, (also marketed by Duracell as "Durabeam Ultra"), with iterations of substantially 10 similar Duracell-branded LED flashlights appearing nationwide in the U.S. market through the present time. All of these LED flashlights were marketed by Duracell inside sealed single or, more commonly, multi-packs containing three or four flashlights. Each of these sealed retail packages of flashlights have also included a full set of Duracell AAA-size "COPPERTOP Alkaline-Manganese Dioxide" batteries (presently designated as model 16 MN2400), one set for each of the flashlights, all made prominently visible in the clear plastic packaging. Conveniently, these "bonus" sets of Duracell batteries can be immediately installed and used for powering these LED flashlights by the consumers. Duracell AAA batteries are suggested by DURACELL as the best replacement batteries to be purchased for use in these flashlights in the future. Replacement Duracell alkaline AAA batteries, sold separately from Duracell flashlights in many different multi-unit packages, are available from DURACELL retail partners, as well as in wide distribution, at virtually every type of retail outlet in the USA and worldwide. In addition, COSTCO markets its own "Kirkland" brand AAA alkaline batteries, manufactured for COSTCO by DURACELL, and presently sold by COSTCO in 64-packs. The packaging and marketing for the defective Duracell LED flashlights promotes the reliability of these products, assuring consumers that these products are "ideal" for use in "emergencies" and boasting performance providing light continuously for up to 1 hour and 30 minutes at the high-intensity setting, and up to 7 hours at the low-intensity setting when used with Duracell batteries. However, the defective Duracell LED flashlights do not actually have the performance characteristics represented by Duracell's promises related to either these flashlights or when stored and not in use. Specifically, these flashlights are defective in that they continuously and rapidly drain the installed batteries when their LED lights are switched OFF, thus causing the batteries stored inside these flashlights to become fully depleted and dead, in less than 30 days, instead of the 10-year advertised storage lifespan for the Duracell batteries sold with these flashlights or the replacement batteries sold separately. In contrast, batteries installed in non-defective LED flashlights (made by either DURACELL or other manufacturers) do not suffer this parasitic power drain defect, and can be safely stored inside such non-defective flashlights for the advertised battery storage lifespan at specified reasonable conditions, the lawsuit says. Duracell Company is an American manufacturing company, with principal executive offices in Chicago, Illinois (and subsidiaries in the United Kingdom (UK) and China). Duracell is 100% owned by its parent holding company, Berkshire-Hathaway, Inc., headquartered in Omaha, Nebraska, since completing its purchase of Duracell on February 29, 2016, from Procter & Gamble, which owned Duracell since 2005.[BN] Attorneys for the Representative Plaintiffs and the Plaintiff Classes: Timothy P. Rumberger, Esq. LAW OFFICES OF TIMOTHY P. RUMBERGER 1339 Bay Street Alameda, CA 94501 Telephone: (510) 841-5500 Facsimile: (510) 521-9700 E-mail: tim@rumbergerlaw.com DXC TECHNOLOGY: Feb. 25 Lead Plaintiff Bid Deadline --------------------------------------------------- ClaimsFiler, a FREE shareholder information service, reminds investors that they have until February 25, 2019 to file lead plaintiff applications in a securities class action lawsuit against DXC Technology Company (NYSE:DXC), if they purchased the Company's shares between February 8, 2018 and November 6, 2018, inclusive (the "Class Period"). This action is pending in the United States District Court for the Eastern District of Virginia. Get Help DXC investors should visit us at https://www.claimsfiler.com/cases/view-dxc-technology-company-securities-litigation or call toll-free (844) 367-9658. Lawyers at Kahn Swick&Foti, LLC are available to discuss your legal options. About the Lawsuit DXC and certain of its executives are charged with failing to disclose material information during the Class Period, violating federal securities laws. On November 6, 2018, the Company revealed a range of adverse financial news including the loss of sales to significant customers, quarterly revenue shortfall in the hundreds of millions of dollars, and an $800 million reduction to its 2019 revenue outlook as well as a lack of growth in the digital space and ineffective sales strategies. On this news, the price of DXC's shares plummeted. The case is City of Warren Police and Fire Retirement System v. DXC Technology Company, et al., No. 18-cv-1599. [GN] EPIC SYSTEMS: Lewis FLSA Suit Can't Proceed in District Court ------------------------------------------------------------- In the case, J. LEWIS, individually and on behalf of all others similarly situated, Plaintiffs, v. EPIC SYSTEMS CORPORATION, Defendant, Case No. 15-cv-82-bbc (W.D. Wis.), Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin (i) granted Jon Erik Haines' motion to withdraw consent to join the action; (ii) granted the Defendant's motion for leave to file a sur-reply; and (iii) denied the Plaintiff's motion to proceed in the district court. Lewis, a former technical writer for the Defendant, filed the proposed collective and class action against the Defendant, contending that it misclassified his position as exempt from the requirement to pay overtime wages under the Fair Labor Standards Act. On April 2, 2014, the Defendant emailed an arbitration agreement to its employees, including the Plaintiff. The arbitration agreement was attached to the email. The agreement itself includes mutual promises to arbitrate and states that the Defendant considers any employee who continues to work for it to be subject to the contract's terms. The agreement includes a waiver of class and collective claims and limited discovery. Specifically, parties are limited to a single interrogatory identifying potential witnesses, 25 requests for production of documents, and a maximum of two eight-hour days of witness depositions. The agreement expressly provides that both sides will have the right to legal representation in arbitration, but states that neither would be entitled to attorney fees unless provided for by law. Finally, it states that Epic may change or terminate the agreement after giving employees 90 days written or electronic notice, but that any change or termination will not apply to a pending claim. In the end of the April 2, 2014 email directed employees to "review and acknowledge" the agreement by selecting the "I understand and agree" option included in the email. Alternatively, employees could select a "contact me" option if they had questions. The Plaintiff responded the day after he received the agreement by selecting the "I understand and agree" option. The Plaintiff has identified one employee who did not respond to the email at all and was never contacted by the Defendant. He also has also identified an employee who selected "I understand and agree," but responded to the email with several questions about the scope of the arbitration agreement that defendant never answered. Neither the email nor the agreement itself identify a specific date on which the terms of the contract would become effective. In September 2015, Judge Crabb denied the Defendant's motion to dismiss the case and compel arbitration of the Plaintiff's claims, concluding that the class action waiver in the parties' arbitration agreement violated the National Labor Relations Act. On appeal, the Court of Appeals for the Seventh Circuit agreed that the class waiver violated the NLRA, but the United States Supreme Court reversed the decision. After the case was remanded to the court of appeals, plaintiff argued that the Court should consider his arguments that the arbitration agreement is unenforceable because it is unconscionable and unsupported by consideration. The court of appeals remanded the case for that purpose. Judge Crabb concludes that Plaintiff has failed to show that the arbitration agreement is invalid. Therefore, he must proceed with his claims in arbitration. Because it is clear that the parties' entire dispute will be resolved by arbitration, the Judge will direct the clerk of Court to close the case, subject to reopening for purposes of confirmation of or challenges to the arbitration decision. The Judge (i) granted Jon Erik Haines' motion to withdraw consent to join the action; (ii) granted the Defendant's motion for leave to file a sur-reply; and (iii) denied the Plaintiff's motion to proceed in the district court. A full-text copy of the Court's Jan. 25, 2019 Opinion and Order is available at https://is.gd/m1E7Jm from Leagle.com. J. Lewis, Plaintiff, represented by Breanne Leigh Snapp -- bsnapp@habush.com -- Habush Habush & Rottier S.C., Caitlin Marie Madden -- cmadden@hq-law.com -- Hawks Quindel, S.C., Daniel Anthony Rottier -- rottier@habush.com -- Habush Habush & Rottier S.C., David C. Zoeller -- dzoeller@hq-law.com -- Hawks Quindel, S.C., Jason Joel Knutson -- jknutson@habush.com -- Habush Habush & Rottier S.C., William Ernest Parsons -- wparsons@hq-law.com -- Hawks Quindel, S.C. & James R. Jansen -- jjansen@habush.com -- Habush Habush & Rottier S.C. Epic Systems Corporation, Defendant, represented by Noah A. Finkel -- nfinkel@seyfarth.com -- Seyfarth Shaw LLP & Andrew Lylburn Scroggins -- ascroggins@seyfarth.com -- Seyfarth Shaw. FLIGHT SERVICES: Cook et al. Seek to Certify Classes ---------------------------------------------------- In the class action lawsuit captioned STANLEY COOK, et al., on behalf themselves and all others similarly situated, the Plaintiffs, vs. FLIGHT SERVICES & SYSTEMS, INC., the Defendant, Case No. 2:16-cv-15759-JTM-DMD, the Plaintiffs ask the Court for an order: 1. conditionally certifying these putative classes: "(i) all hourly workers working for Defendant between May 14, 2014 (three years prior to the filing of the Second Amended Complaint) and the present who have had edits or deductions to their time entries that have reduced the amount of work hours recorded in a workweek ("the Time Deduction Collective"); and (ii) all hourly workers working for Defendant between May 14, 2014 (three years prior to the filing of the Amended Complaint) and the present who were not paid for time spent training while employed with Defendant, including recurrent training, on-the-job training, computer-based training, out- of-town training, classroom training, and training conducted remotely, including computer-based training ("the Training Collective"). 2. approving written notice and consent forms and to be sent to the putative collective action members via First Class Mail, e-mail, and text message; 3. requiring Defendants to produce in Excel format the names, last-known addresses, e-mail addresses, telephone numbers, and dates of employment/work of all putative collective action members for purposes of distributing the notice and consent forms; 4. directing Defendants to post the attached written notice, along with the consent forms, in conspicuous spots at Defendant's headquarters and all of its locations; and 5. prohibiting the Defendants and their managers from retaliating against any individuals who exercise their rights under the FLSA or opt-in to this lawsuit.[CC] Attorneys for Plaintiffs: Christopher L. Williams, Esq. WILLIAMS LITIGATION, L.L.C. 639 Loyola Ave., Suite 1850 New Orleans, LA 70113 Telephone: 504.308.1438 Facsimile: 504.308.1446 E-mail: chris@williamslitigation.com - and - Jody Forester Jackson, Esq. Mary Bubbett Jackson, , Esq. JACKSON+JACKSON 201 St. Charles Avenue, Suite 2500 New Orleans, LA 70170 Telephone: (504) 599-5953 Facsimile: (888) 988-6499 E-mail: jjackson@jackson-law.net mjackson@jackson-law.net - and - Imtiaz A. Siddiqui, Esq. IAS LAW LLC 900 Camp Street, 3rd Floor New Orleans, LA 70130 Telephone: (504) 500-1876 Facsimile: (504) 910-9919 E-mail: ias@iaslawllc.com FLOWERS FOODS: Appeals Class Cert. Ruling in Noll Labor Suit ------------------------------------------------------------ Defendants CK Sales Co., LLC, Flowers Foods Inc. and LePage Bakeries filed an appeal from a court ruling in the lawsuit entitled Noll v. Flowers Foods Inc., et al., Case No. 1:15-cv-00493-LEW, in the U.S. District Court for the District of Maine, Bangor. As reported in the Class Action Reporter on Feb. 4, 2019, Judge Lance E. Walker (i) granted the Plaintiff's Motion for Class Certification, and (ii) denied the Defendants' Motion for Decertification of the Conditionally Certified Collective Action. In the action, Plaintiff Noll alleges that Defendants Flowers Foods, LePage Bakeries, and CK Sales Company misclassify Maine-based product distributors as independent contractors, and that Maine and federal law require that he and other distributors be compensated as employees. The appellate case is captioned as Noll v. Flowers Foods Inc., et al., Case No. 19-8001, in the United States Court of Appeals for the First Circuit. The briefing schedule in the Appellate Case states that appearance form was due on February 13, 2019.[BN] Plaintiff-Respondent TIMOTHY NOLL, individually and on behalf of all similarly-situated individuals, is represented by: David Cialkowski, Esq. Gordon Rudd, Esq. ZIMMERMAN REED PLLP 80 S 8th Street 1100 IDS Center Minneapolis, MN 55402-0000 Telephone: (612) 341-0400 E-mail: david.cialkowski@zimmreed.com gordon.rudd@zimmreed.com - and - Brian D. Clark, Esq. Susan E. Ellingstad, Esq. Rachel A. Kitze Collins, Esq. Scott A. Moriarity, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue S, Suite 2200 Minneapolis, MN 55401-0000 Telephone: (612) 339-6900 E-mail: bdclark@locklaw.com seellingstad@locklaw.com rakitzecollins@locklaw.com samoriarity@locklaw.com - and - Christopher D. Jozwiak, Esq. Shawn J. Wanta, Esq. BAILLON THOME JOZWIAK & WANTA LLP 100 S 5th St., Suite 1200 Minneapolis, MN 55402 Telephone: (612) 252-3570 E-mail: cdjozwiak@baillonthome.com sjwanta@baillonthome.com - and - Charles E. Schaffer, Esq. LEVIN SEDRAN & BERMAN 510 Walnut St., Suite 500 Philadelphia, PA 19106-3697 Telephone: (212) 592-1500 E-mail: cschaffer@lfsblaw.com - and - Rebecca S. Webber, Esq. LINNELL, CHOATE & WEBBER 83 Pleasant Street P.O. Box 190 Auburn, ME 04212-0190 Telephone: (207) 784-3200 E-mail: rwebber@lcwlaw.com Defendants-Petitioners FLOWERS FOODS INC., LEPAGE BAKERIES, PARK STREET, LLC, and CK SALES CO., LLC, are represented by: Peter Bennett, Esq. Frederick B. Finberg, Esq. BENNETT LAW FIRM 121 Middle St., Suite 300 Portland, ME 04112-7799 Telephone: (207) 773-4775 E-mail: pbennett@thebennettlawfirm.com rfinberg@thebennettlawfirm.com - and - Margaret S. Hanrahan, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 201 South College St., Suite 2300 Charlotte, NC 28244 Telephone: (704) 342-2588 E-mail: maggie.hanrahan@ogletree.com - and - Kevin P. Hishta, Esq. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 191 Peachtree St. NE, Suite 4800 Atlanta, GA 30303 Telephone: (404) 881-1300 E-mail: kevin.hishta@ogletree.com - and - Timothy H. Powell, Esq. BOWDITCH & DEWEY LLP 311 Main St. PO Box 15156 Worcester, MA 01615-0156 Telephone: (508) 926-3477 E-mail: tpowell@thebennettlawfirm.com FORD MOTOR: Judge Tosses Swollen Lug Nuts Class Action ------------------------------------------------------ David A. Wood, writing for CarComplaints.com, reports that a Ford swollen lug nuts lawsuit has been dismissed in its entirety because the judge ruled the plaintiffs "presented no legally viable claims" in the 120-count complaint. According to the proposed class-action lawsuit, the lug nuts allegedly swell, deform and crack, making it nearly impossible to remove the lug nuts to change the tires. The alleged problem is blamed on vibrations from the road, temperature changes and moisture that deform the lug nuts. The plaintiffs claim the Ford F-150, F-350, Escape, Flex, Focus and Fusion are all equipped with two-piece lug nuts that have steel cores with chrome, aluminum or stainless steel caps. However, the lawsuit alleges the automaker should have used one-piece solid steel lug nuts instead of the two-piece nuts with caps. Although the lawsuit claims Ford uses the two-piece capped lug nuts to save money, attorneys for vehicle owners admitted in court the two-piece nuts are in reality more expensive to purchase than other lug nuts. That was an important point that wasn't missed by U.S District Court Judge Stephen J. Murphy, III in his decision to dismiss the case. Based on court documents, the plaintiffs claim Ford owners must pay labor costs to get the swollen lug nuts removed, then must pay to replace the nuts that Ford allegedly should pay to replace. One of the plaintiffs says he paid nearly $60 to replace the lug nuts for just one wheel on his Ford Fusion. In Ford's motion to dismiss the lawsuit, the automaker says the 120 counts contain "nonsensical" claims that don't prove the lug nuts are defective or a safety hazard. The judge came down on the side of Ford, including for alleged violations of the laws of each of 50 states even though the plaintiffs make allegations for only 27 states. According to the judge, the plaintiffs don't allege injuries in states other than their own or base their claims on other states' laws. This caused the judge to rule the plaintiffs lack standing to bring claims under the laws of the remaining 23 states. The plaintiffs didn't fare any better with breach of warranty claims against the automaker because the judge ruled there were no facts to support the claims under the Magnuson-Moss Warranty Act or under state laws. The plaintiffs claim Ford should have replaced and repaired the lug nuts under warranty, but the judge noted none of the plaintiffs presented their vehicles to Ford within the warranty periods. Part of the requirement of the new vehicle limited warranty is that an owner present the vehicle to a Ford dealer during the 3-year/36,000-mile warranty period, but only one plaintiff claims he did anything within that period. However, the plaintiff says he took the lug nuts to a dealer but never took his vehicle, an action not covered under the clear terms of the warranty. The judge further ruled fraud and consumer protection claims fail because the plaintiffs didn't allege necessary facts to plead the claims. According to the dismissal order, the plaintiffs can't prove Ford knew about alleged lug nut defects before the vehicles were sold, and the plaintiffs "simply have not pleaded any representations related to lug nuts." According to the judge, the plaintiffs claim Ford must have known about alleged lug nut problems because of negative reviews on third-party websites and complaints made to the National Highway Traffic Safety Administration (NHTSA). However, the judge ruled complaints made to NHTSA are not sufficient to allege Ford knew about swollen lug nuts. According to the Court, the plaintiffs fail to provide facts that prove Ford was even aware of the complaints. In addition, the judge referenced other legal cases where previous courts found complaints made to NHTSA and third-party websites don't rise above mere speculation that manufacturers had knowledge, "let alone exclusive knowledge," of alleged product failures. The swollen lug nuts lawsuit also failed in asserting claims of unjust enrichment as the judge ruled there were no sufficient facts to establish Ford benefited from customers complaining about the lug nuts. As mentioned earlier, attorneys claimed in the original lawsuit that Ford used two-piece lug nuts to save money compared to one-piece nuts, but those same attorneys conceded in Ford's motion to dismiss the opposite is true. "The lack of facts supporting the assertion that the two-piece lug nuts are cheaper than other lug nuts— especially in light of contradictory evidence presented during the motion hearing—fails to raise the claim above the speculative level." - Judge Stephen J. Murphy, III In addition, the plaintiffs allege Ford unjustly benefits from not having to purchase new lug nuts for customers and from not reimbursing dealerships for replacing the lug nuts. But the judge didn't see it the same way. In dismissing the lawsuit, the judge ruled Ford couldn't have made money by not having to purchase new lug nuts for customers or dealers considering the vehicles were no longer under warranty. "Because the Court already determined that Plaintiffs failed to adequately plead presentment within the warranty period, the second basis for the unjust enrichment claims necessarily is without merit." - Judge Murphy The Ford swollen lug nuts lawsuit was filed in the U.S. District Court for the Eastern District of Michigan - Wozniak, et. al, vs. Ford Motor Company. The plaintiffs are represented by Hagens Berman, and the Miller Law Firm, PC. CarComplaints.com has complaints from drivers of the vehicles named in the Ford lawsuit. Ford F-150 Ford F-350 Ford Escape Ford Flex Ford Focus Ford Fusion [GN] GENWORTH LIFE: Court Dismisses Rhinehart Suit with Leave to Amend ----------------------------------------------------------------- In the case, GERALD B. RHINEHART, an individual by and through his Power of Attorney SUZANNE VILLANUEVA, and on behalf of similarly situated persons, Plaintiffs, v. GENWORTH LIFE AND ANNUITY INSURANCE COMPANY, a Virginia corporation, Defendant, Case No. 1:18-cv-01391-LJO-SAB (E.D. Cal.), Judge Lawrence J. O'Neill of the U.S. District Court for the Eastern District of California (i) denied the Plaintiff's motion to remand the case to state court, and (ii) granted in part and denied in part the Defendant's Motion to Dismiss. The complaint alleges unlawful sales practices by the Defendant in failing to adequately include statutory disclosures in individual life insurance policies. According to the Plaintiff, the California Insurance Code mandates that consumers of life insurance policies who are 60 years or older must receive a 30-day "free look" period, during which time a "Senior" can return the policy for a full refund of premiums. California Insurance Code Section 10127.10 requires notice of the "free-look" period to be given son the cover page or policy jacket in 12-point bold print with one inch of space on all sides or printed on a sticker that is affixed to the cover page of the policy jacket. On Jan. 11, 2011, when the Plaintiff was 72 years old, the Defendant issued a life insurance policy to him. According to the Plaintiff, neither the policy cover page nor the policy jacket contained disclosures regarding the 30-day free look period, and the cover page makes no reference to surrender charges. Instead, the Rhinehart Policy's schedule of surrender charges appears at least seven pages into the policy. The Plaintiff alleges he would not have purchased the Rhinehart Policy had he known there were surrender charges and penalties that would be imposed upon lapse or cancellation of the policy. He avers the improper notice by the Defendant is intended to be less evident to California senior citizens than proper, code-compliant notice would be, and the improper notice is intended by the Defendant to mislead seniors by directing them to the wrong page of the policy. Based on these allegations, the complaint sets forth a claim for Unfair Business Practices pursuant to California Business & Professions Code Sections 17200, et seq. and a claim for Financial Elder Abuse pursuant to California Welfare & Institutions Code Sections 15600 et. seq. The Plaintiff's prayer for relief seeks to enjoin the Defendant from pursing the complained-of practices; for disgorgement and restitution of its "ill-gotten gains"; for an unspecified amount of special and general damages, for punitive and exemplary damages under the California Welfare & Insurance Code Section 15657(a), California Civil Code Section 1780(a)(4), and California Civil Code Section 3294; for a constructive trust; reasonable attorney's fees and costs associated with the suit; and pre- and post-judgment interest. In October 2018, the Defendant removed the complaint to the Court asserting subject matter jurisdiction pursuant to the Class Action Fairness Act. The Plaintiff subsequently filed a motion to remand the case to Merced County Superior Court arguing the Defendant had not established by a preponderance of evidence that the amount in controversy met the $5 million threshold required. To address the Plaintiff's argument in this regard, the Court ordered the Defendant to submit a supplemental declaration clarifying the type of policies on which the calculated surrender charges were incurred and delineating the surrender charges incurred in each year from 2004 to present, rather than presenting one cumulative amount of surrender charges. The Defendant filed a supplemental declaration addressing these issues, and the Plaintiff filed a sur-reply reasserting that calculating the surrender charges from 2004 to the present was unsupported by any evidence. At the time the Plaintiff filed a motion to remand, the Defendant filed a motion to dismiss arguing the Plaintiff's claims were barred by the applicable statutes of limitations. Judge O'Neill finds that the Defendant's calculations of surrender charges dating from 2004 is adequately supported by the allegations of the complaint. The surrender charges incurred on policies issued to the putative class since 2004 on Count I total $5,103,712.54. Because of his review of the billing rates and work performed, the Judge finds convincing evidence that a 25% award of attorney's fees is a reasonable estimate of the amount placed into controversy by the Plaintiff's request for attorney's fees. Twenty-five percent of the surrender charges under Count I ($4,187,985.85) totals $1,046,996.46. Adding the surrender charges ($4,187,985.85) in Count I to the attorney's fees ($1,046,996.46), the total amount in controversy is at least $5,234,982.31. As the Defendant has established these amounts by a preponderance of evidence, the amount in controversy is satisfied, and the Plaintiff's motion to remand will be denied. The Judge will grant in part the Defendant's Motion to Dismiss. He finds that (i) the Plaintiff's claims accrued in February 2011 when the policy was purchased and received; and (ii) the Complaint's allegations are insufficient to support application of the discovery rule to toll the statutes of limitation. And while the Defendant urges the Court to dismiss the complaint with prejudice, he finds that the Plaintiff will be given a single opportunity to amend the complaint to plead facts that, if true, could allow a reasonable trier of fact to find that the Plaintiff could not have, with reasonable diligence, discovered the defective notices sooner than January 2018. The Plaintiff is cautioned that mere conclusory allegations that he did not know or could not have known of the policy's deficiencies are insufficient to trigger application of the discovery rule. For the reasons set forth, Judge O'Neill (i) denied the Plaintiff's Motion to Remand; and (ii) granted in part and denied in part the Defendant's Motion to Dismiss. He dismissed the Plaintiff's complaint with leave to amend. The Plaintiff will file an amended complaint within 14 days from the date of the Order. If the Plaintiff fails to file an amended complaint, the action will be dismissed with prejudice. A full-text copy of the Court's Jan. 23, 2019 Memorandum Decision and Order is available at https://is.gd/MsajaU from Leagle.com. Gerald B. Rhinehart, and individual, by and through his Power of Attorney Suzanne Villanueva, and on behalf of similarly situated persons, Plaintiff, represented by A.J. de Bartolomeo -- ajdebartolomeo@milberg.com -- Milberg Tadler Phillips Grossman LLP & Ingrid M. Evans, Evans Law Firm, Inc. Genworth Life and Annuity Insurance Company, a Virginia corporation, Defendant, represented by Steven A. Erkel -- steven.erkel@alston.com -- Alston & Bird LLP, Thomas A. Evans -- thomas.evans@alston.com --Alston & Bird LLP & Robert D. Phillips, Jr. -- Robert.phillips@alston.com -- Alston & Bird. GLV INC: Court Certifies Class in Mullen ICFA/IPFSA Suit -------------------------------------------------------- In the case, LAURA MULLEN, individually and on behalf of all others similarly situated, Plaintiff, v. GLV, INC., RICKY BUTLER, and CHERYL BUTLER, Defendants, Case No. 18 C 1465 (N.D. Ill.), Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Plaintiff's motion for class certification but modified the proposed class definition. Mullen sued GLV, also known as the Sports Performance Volleyball Club and Great Lakes Center, and its two co-owners, Rick and Cheryl Butler. She alleges that the Defendants committed fraud by failing to disclose and affirmatively concealing that Rick Butler raped and sexually abused at least six underage women in the 1980s. She has asserted claims for common-law fraud, fraudulent concealment, and unjust enrichment, as well as violations of the Illinois Consumer Fraud Act ("ICFA") and the Illinois Physical Fitness Services Act ("IPFSA"). Butler is a volleyball coach in the Chicago suburbs. He and his wife Cheryl co-own GLV. GLV offers a wide variety of camps and clinics in Illinois and nationwide, and it is known for outstanding athletic achievement and its record of placing participants into top-tier college volleyball programs. Several women have accused Rick Butler of sexual abuse and rape when he coached them in the 1980s. They also allege that Rick and Cheryl Butler used threats and intimidation to prevent them from speaking out about their experiences. In January 2018, after investigating the allegations, USA Volleyball (the national governing body of volleyball) banned Rick Butler from participating in the sport for life. For his part, Rick Butler has admitted that he had sexual relationships with some of his accusers, but he denies that the women were underage and denies the allegations of rape and abuse. Mullen brought the case against Rick Butler, Cheryl Butler, and GLV, alleging that their attempts to conceal and failure to disclose Rick Butler's alleged misconduct constitute fraud. Mullen's two daughters participated in volleyball programs at GLV. She brought claims for common-law fraud, fraudulent concealment, and unjust enrichment, as well as unlawful deception under the ICFA and the IPFSA. In addition to her fraud claims, Mullen also alleges that GLV's physical fitness contracts fail to comply with certain requirements of the IPFSA, which renders the contracts void and entitles her to statutory damages. Mullen proposes to represent a class consisting of all individuals who, between Feb. 27, 2013, and Jan. 20, 2018, paid money to the Defendants for youth volleyball instruction provided by or through GLV in the State of Illinois. In the alternative, she also suggests a narrower class consisting of only individuals who paid for volleyball instruction through the Sports Performance programs that Rick Butler supervised. Judge Kennelly granted the Plaintiff's motion for class certification but modified the proposed class definition. He certified the class, under Rule 23(b)(3), of all individuals who paid money to the defendants for youth volleyball instruction through the Sports Performance program provided by or through GLV Inc. in the State of Illinois between Feb. 27, 2013 and Jan. 10, 2018. The Judge found that the Plaintiff has satisfied the Rule 23(a) and Rule 23(b)(3) requirements. He also concluded that only the narrower proposed class satisfies the predominance requirement in light of the differences among GLV programs. The Court also appointed the following attorneys as the class counsel: Jay Edelson, Eve-Lynn J. Rapp, Christopher L. Dore, Alfred K. Murray II, and Sydney M. Janzen. The status hearing set for Feb. 12, 2019 is advanced to Jan. 31, 2019 at 9:30 a.m. The class counsel are directed to provide a draft class notice to the Defendants' counsel by no later than Jan. 23, 2019, and the Defendants' counsel are directed to provide comments and objections to the class counsel by Jan. 28, 2019. The counsel are likewise directed to confer regarding the information needed to send notice. A joint status report regarding these matters is to be filed by Jan. 30, 2019. A full-text copy of the Court's Jan. 23, 2019 Corrected Memorandum Opinion and Order is available at https://is.gd/auYVpZ from Leagle.com. Laura Mullen, Individually and on behalf of all others similarly situated, Plaintiff, represented by Alfred Kirkland Murray, II -- erapp@edelson.com -- Edelson P.C., Jay Edelson -- jedelson@edelson.com -- Edelson PC, Sydney M. Janzen -- sjanzen@edelson.com -- Edelson Pc & Christopher Lillard Dore -- cdore@edelson.com -- Edelson PC. GLV, Inc, an Illinois corporation, Ricky Butler, an Individual & Cheryl Butler, an Individual, Defendants, represented by Danielle D'Ambrose, D'Ambrose P.C.. GOOGLE INC: Supreme Court Considering Role of Cy pres Awards ------------------------------------------------------------ John Campbell, writing for Law360, reports that in Frank v. Gaos, the U.S. Supreme Court is considering the appropriate role of cy pres awards in class actions. Cy pres awards occur when money a defendant is obligated to pay to class members is unclaimed, or when distribution of funds to the class is impracticable. In those cases, after the judge confirms the money can't be distributed to the class, the judge orders the residual money distributed to one or more nonprofit organizations. The judge must conclude that distribution to those organizations will provide a related benefit to the class members, and that overall, the resolution is fair, adequate and reasonable. In Frank, the lawsuit was against Google, alleging that it violated consumer laws prohibiting the distribution of its users' search terms to third parties. Money could not be realistically distributed to the class (the cost of mailing exceeded the amount that would be returned). So, the court approved the distribution to various cy pres recipients who agreed to use the money received on initiatives relating to internet privacy. Some corporations and other interested parties argue that the cy pres distribution is inappropriate and have seized on Frank as a chance to eliminate cy pres awards. Specifically, they argue that the distribution of funds to nonprofit organizations violates the rights of the absent class members. The argument is wrong on many levels and ignores the fact that prohibiting cy pres awards creates far more problems than it solves. Namely, eliminating cy pres awards would reduce the deterrent effect of class actions, harm honest companies, decrease compliance with the rule of law, and overall, erode confidence in the judicial system as a mechanism for righting wrongs. It simultaneously would be a reason to celebrate for corporations that violate the law. Without cy pres awards, defendants will be partially or completely immunized in many cases. To understand the issue more fully, it is useful to consider how a cy pres award occurs. There are two requisite conditions: (1) The defendant must be obligated to pay a specific sum, and (2) it must be impracticable to distribute all of the money to the class members. The defendant can be obligated to pay either because (a) it settled the case and agreed to a certain amount, or (b) because a verdict was entered against the defendant at trial. Money may be unclaimed by the class when checks mailed to them are not cashed or not all class members can be found. Other times, distribution may be entirely impracticable in cases in which the cost of distributing the benefit to the class is comparable to, or sometimes exceeds, the benefit itself. This occurs, particularly in cases with large classes, because there can be significant costs for updating the addresses of thousands of people, designing notice, printing notice, mailing notice, building a website, creating a toll-free number and paying a company to accomplish these tasks. There are a variety of reasons why maintaining the long-established practice of allowing cy pres awards is the most appropriate use of residual funds. First, and perhaps most important, the choice of how to distribute the money ultimately is decided by the judge -- not the parties and not the attorneys. The judge decides, considering all the information available, which nonprofit organizations are most likely to advance the interests of the absent class members. Most federal judges do this by relying on American Law Institute Principles of the Law of Aggregate Litigation (Section 3.07) which provides guidelines for how to handle cy pres distribution. Indeed, that section, assembled by a variety of class action experts, concludes that "cy pres is preferable to other options available to a court when direct distributions are not viable." Consistent with this opinion, the Advisory Committee on Civil Rule's Subcommittee on Rule 23, the rule authorizing class actions, recently rejected new cy pres amendments to Rule 23, expressly concluding that judges already have appropriate guidance available and routinely follow it. Indeed, the 2018 version of Rule 23 contains an official committee note suggesting that parties should plan for unclaimed funds in their settlement agreements and should provide the court with suggestions for distribution. Second, parties who oppose cy pres awards fail to note that the alternative to a cy pres is to either (1) return the money to the defendant (called reverter), or (2) have the money escheat to the state. Returning the money to the defendant should be a nonstarter. The defendant either (a) agreed to pay the money, or (b) was ordered to pay by a court as a result of a jury verdict or bench trial. This happens only after a defendant is sued for allegedly violating the law. If the defendant receives a reverter, the defendant escapes fulfilling its end of the bargain and, more troublingly at the macro level, the economic disincentive to break the law is reduced or eliminated. Escheating the money to the state is no solution either. It makes it even less likely money will benefit class members, as there is no class in which every member of the state has a claim. The result is that the very problem that allegedly concerns those opposed to cy pres awards -- the idea that the money might be used for purposes that don't align with the class' interests -- is amplified. Third, in the cases in which returning money to the class is entirely impracticable, the defendant could escape liability altogether. In some cases, the amount taken from any single class member is very small. For this hypothetical, let's assume $1. The cost of distributing that amount back to class members may exceed the refund, making distribution impossible. For example, if it costs $1.10 to administer the settlement per class member, it would be economically impossible to mail $1 checks. In those cases, if cy pres were prohibited there would be no way to cause the defendant to pay back money illegally obtained. This would be true even if the case went to trial and even if a jury determined the company broke the law. This immunization effect is particularly troubling. It reduces the economic disincentive to cheat, damaging the free market. In particular, it handicaps honest companies who choose not to pad their bottom line with illegal gains. Simultaneously, immunizing defendants diminishes the rule of law. Having laws on the books that can't be enforced is a characteristic of many struggling countries. The U.S. should not willfully join their ranks. Finally, the best way to consider whether the well-established cy pres policy works is not to consider a parade of hypothetical horribles, invented to color the issue. The better way is to view an average, real-world example. I'll offer one from my time in practice. Mr. Campbell says, "I was involved in a series of lawsuits against payday lenders. They charged an APR of 469 percent. They made loans that routinely trapped borrowers in debt cycles on which the lender recovered many multiples of the loan amount. We alleged the loans violated the law. Some of the lenders ultimately agreed to settle the claims, returning money to the class. Checks were sent to class members. Some class members did not cash the checks and some class members could not be found. This left money in the fund -- money the defendant agreed to pay after extensive negotiations. We petitioned the court to distribute the remainder to legal services -- an organization that represented low-income individuals, often in financial disputes about payday loans, debt collection and other financial issues. The court distributed the money and the legal services organization was able to add staff that worked on issues that directly and indirectly benefited our class members. In the absence of the cy pres vehicle, the money would have been returned to the payday lender instead." "The takeaway is this: The perfect can't be the enemy of the good. It is true that not every cy pres will be perfectly distributed, but it is equally true that eliminating cy pres awards is a net negative. It prevents judges from making case-specific decisions, immunizes defendants, neuters various laws meant to protect us all, and makes it harder for the free market to reward good actors while discouraging illegal behavior." [GN] HAITI: Ex-Government Officials Involved in Wire Transfer Fraud -------------------------------------------------------------- Bianca Silva, writing for The Haitian Times, reports that when Odlion Celestin, 43, sends money to his family in Haiti from his residence in Miami, he always believed that the $1.50 wire transfer fee enacted by former President Michel Martelly in 2011 would help pay for his family's education. However, on a trip back to Haiti since leaving for the United States in 1998, he saw that nothing had changed. The school he once traveled to for three hours after work growing up was gone. "I said: 'god, what do we have to do to change something in Haiti?'" he recalls Wanting legal advice on the matter, Celestin reached out to Brooklyn-based, Haitian-American attorney Marcel P. Dennis through a radio show where he got his phone number and eventually flew up to New York to pursue the lawsuit. "I asked him: how could we come together to be the change, to find a way to help me out with this," he says. Celestin's testimony is one of a few that's stated in a multi-million dollar class action lawsuit filed on Dec. 24 that accuses Martelly, Jocelerme Privet and current President Jovenel Moise of pocketing money that came from wire transfers companies like Western Union, Unitransfer, Natcom and CAM that were meant to fund education in Haiti. The lawsuit doesn't come as a complete surprise given the string of allegations where the Haitian government has been accused of corruption lack of donations after the 2010 earthquake and the August 2018 Petrocaribe scandal where $2 billion was embezzled. Shortly after Martelly was elected President, he called for education reform that would allow for free and universal education for all students through a government subsidy program known as PSUGO. According to court documents, his administration had intended on building schools in 10 different regions that never came to fruition. In June 2011, Martelly began to impose fees to raise money for free education. As a result, a fee of $1.50 for each wire transfer in addition to five cents a minute on telephone calls were charged to Haitians living abroad who routinely send money to their families. At the time, Martelly claimed that the fees would generate $144 million over five years. From the start, the act was met with skepticism from the Haitian diaspora who wanted to provide aid in rebuilding Haiti but were unsure about where the education money would go. As of 2017, Haitians abroad send $2 billion annually to their country. Some like Celestin, however, seemed optimistic that the fees to fund schooling was a step in the right direction. "Every money you send, you pay $1.50. Trust me, everybody is happy to do that," he says. Attorney Marcel P. Dennis, one of the two lawyers who filed the lawsuit at Brooklyn Federal Court, explains why imposing fees has failed. "The reason why it's so poorly concocted is the fact that they do not have an agent on sight at every money transfer agency or bureau in Haiti," Dennis says. "Here, in the United States, we check out the money that will be transferred over to the agent of Western Union or CAM. That is the absurdity of the whole scam." If Western Union, Unitransfer and CAM were complying with Martelly's law, the blame would ultimately have to be shifted to the Bank of the Republic of Haiti Central (BRH) who are responsible for financing such a program. Following the earthquake, Western Union had announced they would be suspending transfer fees sent to Haiti from the United States, Dominican Republic, France and Canada-countries with significant Haitian populations outside Haiti. In addition, its foundation also donated $250,000 to help provide basic necessities to the Haitian people. Dennis says while the idea to raise money for education is a good one, more could've been done to ensure that the money had gone into the right hands. "The idea was a novel idea but it could've been done legally," he says. "If it were done legally, it could not have reached us here in the United States or elsewhere. This was something that should've been limited to Haiti only." Ultimately, Celestin hopes the money that had disappeared would eventually come back and is optimistic about winning the lawsuit. "We want to put this money back to the schools," he says. "We have to come up with a plan. Now, we have to pull a plan for education. For real education, not a fake one. That's why if we win a lawsuit tomorrow, money will go back to education where people can get a good education for the future, not for the corruption of government." [GN] HAVANA'S CUBAN: Spears Seeks Payment for Overtime Work ------------------------------------------------------ PRINCE KAREEM SPEARS, and all others similarly situated, the Plaintiff, vs. HAVANA'S CUBAN CUISINE, INC., a Florida Corporation, the Defendant, Case No. 0:19-cv-60284-KMW (S.D. Fla., Jan. 31, 2019), seeks to recover monetary damages, liquidated damages, interests, costs and attorney's fees for Defendant's willful violations of overtime wages and retaliation under the Fair Labor Standards Act. According to the complaint, Spears and at least one other employee of Havana's Cuban Cuisine would routinely handle or use restaurant tools and materials, such as cooking utensils and tools, as well as food supplies. The use of restaurant tools and materials, that were routinely handled or used by Spears and at least one other employee on a regular and consistent basis, had traveled in interstate commerce. The Defendant knew and/or showed reckless disregard of the provisions of the FLSA concerning the payment of overtime wages as required by the Fair Labor Standards Act. The Defendant was aware of Plaintiff's work schedule and further aware that Plaintiff was working more than 40 hours per week. The Defendant issued paystubs to Plaintiff which did not reflect the total hours worked or the rate of pay. These paystubs contain itemized columns for "Regular" pay, "Bonus" pay and "Misc pay" in order to avoid reflecting that Plaintiff was working overtime hours and was being paid overtime wages. The Defendant paid other employees their overtime wages when they worked overtime. Defendant was 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 Defendant continued to fail to pay overtime wages, the lawsuit says. The Defendant operates a Cuban cuisine restaurant located in Broward County, 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 HEARTBEAT HEALTH: Crosson Files ADA Suit in E.D. New York --------------------------------------------------------- A class action lawsuit has been filed against Heartbeat Health, Inc. The case is styled as Aretha Crosson Individually and as the representative of a class of similarly situated persons, Plaintiff v. Heartbeat Health, Inc., Defendant, Case No. 1:19-cv-00667 (E.D. N.Y., Feb. 4, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Heartbeat Health Inc. provides cardiology services. The company was founded in 2017 and is headquartered in New York, New York.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Phone: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com ICON CO: Opal Tower Homebush Residents Mull Class Action -------------------------------------------------------- News.com.au's Ben Graham and Australian Associated Press report that as shocking new pictures reveal how Sydney Opal Tower residents' homes have been left in pieces, one firm has had to take the extraordinary step of clarifying it has no connection with the debacle. Some of the grim photos posted on Facebook show how one unit has had its ceiling and flooring torn away to allow equipment to prop up the concrete slabs separating each floor -- as beds, furniture and clothing were tossed in a pile near a window. Others show wall panels torn out and ominous-looking wires dangling from the ceiling of another home. And, as anger grows over the evacuation and the manner of the investigation, a construction company which shares its name with the company at the centre of the scandal has been forced to take the extraordinary step of clarifying it has no connection with the Homebush tower. Privately owned construction and maintenance services company Icon Construction Group, says it is being confused with construction group Icon Co. It has been forced to post a prominent message on the landing page of its website. "Please be advised the matter surrounding the Opal Tower Homebush was not built by our company. "The building was built by a company with a similar trading name. Note the two companies have nothing to do with each other." It comes as the tower's real builder -- Icon Co -- has defended its gutting of some apartments which has sparked fury among residents. Having been in temporary accommodation for nearly two weeks, some residents say they weren't notified before their possessions were shifted, ceilings ripped apart and fridges emptied. One woman told other residents in a social media group chat that her locks were changed, even though she provided a spare key to those working on her unit. "It's absolutely trashed," she said in the chat. "We are so upset. This is horrific." Close to 50 units have been gutted and dozens more are also set to be torn apart, Seven News reported. "We're all very angry about this," one resident told AAP. "I mean, at least send us a notice or something. It's just wrong for them to do things like this." However, construction firm Icon said the body corporate has been kept abreast of their workers' movements through the building. "That was their request and they were to communicate with residents," a spokeswoman said in a statement. "No locks have been removed, however some were damaged by emergency services." The builder also said it had taken photographs of apartments prior to starting its investigations and another set of photos when protection was laid out or furniture removed. Fridges were cleared out in the interests of residents as power had to be isolated and insurance claims for the cost of those goods can be made immediately, Icon said. It comes as subcontractors who worked on the crumbling building have revealed some worrying details. Australian Subcontractors Association spokeswoman Louise Stewart said workers were employed at "bargain basement prices" and claim they were not paid on time. She told The Daily Telegraph on Jan. 5 that eight businesses claimed they were expected to build the tower for "unreasonable pay" and "when payment was due it was not forthcoming". However an Icon spokeswoman said the firm "categorically rejected" any claims of late payments to subcontractors. "Icon is one of the best payers in the business," she told the Telegraph -- adding that none of the variations were "unusual". An independent investigation has found numerous faults with Opal Tower. An interim briefing by two engineering experts, commissioned by the state government, has identified a number of problems in the building. The tower was evacuated on Christmas Eve after cracks were found in the structure with residents still shut out of their apartments as investigations continue. In a statement issued by the planning minister's office on Jan. 4, Professor Mark Hoffman and Professor John Carter said they had identified issues that would require further investigation. That came after a preliminary investigation found no evidence of any issues with the foundations of the building. "We are now able to focus our attention on these key areas to determine what has caused the issues," the engineering experts said. "We have also met with the engineers working on these matters and those who are working on the rectification proposals." NSW Premier Gladys Berejiklian said she "wholeheartedly" encouraged residents to explore their legal options as some consider a class action against whoever's responsible for the building's faults. She said those found responsible for the debacle should be held accountable. "Absolutely, I think residents should exercise every right, every legal opportunity they have. I would if I was in their shoes," she told reporters. A final report was due on Jan. 11. [GN] ILLINOIS: Court Dismisses Substantive Due Process Claim in Frazier ------------------------------------------------------------------ Judge Gary Feinerman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied IDOC's motion to dismiss the Plaintiffs' substantive due process claim in the case, ROBIN FRAZIER, BRANDI EDWARDS, JENNIFER TYREE, CELINA MONTOYA, and SHARON FRAZIER, as guardian and next friend of T.G., individually and on behalf of all others similarly situated, Plaintiffs, v. JOHN BALDWIN, in his official capacity as Director of the Illinois Department of Corrections, Defendant, Case No. 18 C 1991 (N.D. Ill.). Four women serving terms of mandatory supervised release following their state court convictions for sex offenses bring the putative class action under 42 U.S.C. Section 1983 against John Baldwin in his official capacity as the director of the IDOC, alleging that an IDOC policy prohibiting them from having any contact with their minor children for the first six months of mandatory supervised release violates their procedural and substantive due process rights. The Plaintiffs, mothers of minor children, are either eligible for or serving terms of mandatory supervised release ("MSR"), a nondiscretionary form of parole, after having been convicted in Illinois state court of crimes for which they must register as sex offenders. An Illinois statute, 730 ILCS 5/3-3-7(b-1)(9), provides that persons required to register as sex offenders must during their MSR terms refrain from all contact, directly or indirectly, personally, by telephone, letter, or through a third party, with minor children without prior identification and approval of an agent of IDOC. In words nearly identical to the statute, the Illinois Prisoner Review Board, the body responsible for setting MSR conditions, imposed on the Plaintiffs what will be called "the Contact Condition": "You will refrain from all contact, directly or indirectly, personally, by telephone, letter, or through a third party, with minor children without prior identification and approval of an agent of IDOC. To implement the Contact Condition, IDOC adopted a policy that categorically prohibits all persons subject to the condition, regardless of individual circumstances or risks, from contacting their minor children for the first six months of their MSR term. Pursuant to that policy, IDOC barred the Plaintiffs from contacting their minor children by any means during the first six months of MSR even though they had maintained regular contact through letters, phone calls, and in-person visits with their minor children while incarcerated. IDOC moves under Civil Rule 12(b)(6) to dismiss the substantive due process claim. It contends that the substantive due process claim should be dismissed because it must be brought, if at all, in a habeas corpus petition, not a Section 1983 suit. Judge Feinerman finds that the dispositive question is whether the Plaintiffs' substantive due process challenge to the way IDOC implements the Contact Condition may be brought under Section 1983 or instead must be brought in a habeas petition. The answer is that the challenge may proceed under Section 1983. He explains that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief, and for a parolee, the conditions of parole are the confinement. The Plaintiffs' challenge, however, is not a challenge to their confinement because it is not a challenge to the Contact Condition itself. If they succeed on their substantive due process claim, the Contact Condition will continue to apply and IDOC will continue to implement it, so long as it does so in a constitutional manner. For the same reason, victory for the Plaintiffs on their claim will not result in the "elimination or substitution" of the Contact Condition. Nor does the Plaintiffs' substantive due process challenge necessarily imply the invalidity of their convictions or sentencs, since a challenge to one way of implementing the Contact Condition does not suggest that the condition itself, or any other aspect of the Plaintiffs' convictions or sentences, is unlawful. And although the Contact Condition, like the Plaintiffs' other MSR conditions, is among the "bars" of their metaphorical prison cells, how IDOC has chosen to implement that condition is the equivalent of what prison officials do within the confines of an actual prison cell—the archetypical subject of a Section 1983 prison conditions suit. In addition, the Judge finds that IDOC offers no principled reason for treating any differently discretionary decisions regarding implementation of MSR conditions like the Contact Condition. IDOC does not seek dismissal of Plaintiffs' substantive due process claims on any other ground, so any such argument is forfeited for purposes of the motion. For the foregoing reasons, Judge Feinerman denied IDOC's motion to dismiss the Plaintiffs' substantive due process claim. A full-text copy of the Court's Jan. 23, 2019 Memorandum Opinion and Order is available at https://is.gd/Vt8sXo from Leagle.com. Robin Frazier, Brandi Edwards, Jennifer Tyree, Celina Montoya & Sharon Frazier, as guardian and next friend of T.G., a minor, individually and on behalf of all others similarly situated, Plaintiffs, represented by Mark G. Weinberg -- mweinberg@sbcglobal.net -- Attorney at Law & Adele D. Nicholas -- adele@civilrightschicago.com -- Law Office of Adele D. Nicholas. John Baldwin, in his official capacity as Director of the Illinois Department of Corrections., Defendant, represented by Sarah Hughes Newman -- snewman@atg.state.il.us -- Illinois Attorney General & Thomas A. Ioppolo -- tioppolo@atg.state.il.us -- Illinois Attorney General's Office. IMMUNOMEDICS INC: Pomerantz Law Firm Probes Securities Claims ------------------------------------------------------------- Pomerantz LLP is investigating claims on behalf of investors of Immunomedics Inc. ("Immunomedics" or the "Company") (NASDAQ:IMMU). Such investors are advised to contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529, ext. 9980. The investigation concerns whether Immunomedics and certain of its officers and/or directors have violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. On December 17, 2018, FDAnews.com published an article entitled "FDA Hits Immunomedics for Data Integrity Breach." The article reported, in part, that "[t]he FDA cited Immunomedics for a host of violations -- including its handling of a data integrity breach -- observed at its Morris Plains, New Jersey, drug substance manufacturing facility between August 6 and 14." The article further stated that the data breach included "manipulated bioburden samples, misrepresentation of an integrity test procedure in the batch record, and backdating of batch records, such as dates of analytical results." Following publication of this article, Immunomedics' stock price fell sharply, damaging investors. Robert S. Willoughby, Esq. Pomerantz LLP Telephone: 888-476-6529 ext. 9980 Website: www.pomerantzlaw.com Email: rswilloughby@pomlaw.com [GN] INFORMATION RESOURCES: May 31 Bakhtiar Class Cert. Bid Filing Due ----------------------------------------------------------------- In the case, IRAM BAKHTIAR, Plaintiff, v. INFORMATION RESOURCES, INC., Defendant, Case No. 17-cv-04559-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S. District Court for the Northern District of California has issued an order amending deadlines for the Plaintiff's motion for class certification. The parties have filed a joint stipulation to continue the deadlines for the Plaintiff's motion for class certification and the Defendant's motion to decertify the conditional Fair Labor Standards Act ("FLSA") collective, as well as competing proposals for the briefing schedule on those motions. Judge Tigar will adopt the parties' stipulated deadline for the Plaintiff to file a motion for class certification. He will further adopt the Plaintiff's proposed briefing schedule on that motion. The Judge anticipates that the resolution of the Plaintiff's motion will clarify the issues pertinent to FLSA decertification and perhaps even remove some issues from dispute. He will therefore entertain the Defendant's FLSA decertification motion only after it decides the Plaintiff's motion for class certification. Accordingly, Judge Tigar set the following deadlines for the Plaintiff's motion: a. The Plaintiff's motion for class certification due - May 31, 2019 b. The Defendant's opposition due - July 2, 2019 c. The Plaintiff's reply due - July 16, 2019 d. Hearing on motion - Aug. 7, 2019 or any date thereafter After the Court decides the motion for class certification, the Defendant may file a motion for FLSA decertification. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/UyZSLW from Leagle.com. Iram Bakhtiar, individually, and on behalf of all others similarly situated, Plaintiff, represented by Bryan Jeffrey Schwartz -- bryan@bryanschwartzlaw.com -- Bryan Schwartz Law & Logan McMillan Starr -- logan@bryanschwartzlaw.com -- Bryan Schwartz Law. Information Resources, Inc., Defendant, represented by Janelle Jad Sahouria -- Janelle.Sahouria@jacksonlewis.com -- Jackson Lewis P.C., Fraser Angus McAlpine -- Fraser.McAlpine@jacksonlewis.com -- Jackson Lewis P.C., Jinny S. Hwang -- Jinny.Hwang@jacksonlewis.com -- Jackson Lewis P.C. & Mitchell F. Boomer -- Mitchell.Boomer@jacksonlewis.com -- Jackson Lewis P.C.. INTU CORP: More Massage Therapists Join Class Action ---------------------------------------------------- Flush Draw reports that there are new developments in the interesting class-action case pitting poker and casino massage therapists against their former employer, Las Vegas-based INTU Corporation. Among the developments present in a just-filed and amended complaint against INTU is an increase in the number of plaintiffs, from two to eight. Since the case was filed roughly three weeks ago on behalf of original plaintiffs Krystal Johnson and Shannon DeLelle, six more plaintiffs have joined the action. The six new plaintiffs are Crystal Honeck, Dusty Dangerfield, Jennifer Wakuzawa-Kida, Sarah Pascoe, Elizabeth Spangler, and Shannon Thompson. As with Johnson and DeLelle, these six massage therapists were former third-party contractors who were scheduled to work at the World Poker Tour's WTP Five Diamond Classic at the Bellagio in Las Vegas. Those plans went awry when INTU suddenly lost its contract at the Bellagio just prior to the WPT event. All eight of the former INTU-associated massage therapists were immediately rehired by another prominent Las Vegas massage therapy firm, Professional Massage, Inc. (PMI), which is familiar to many of our readers as the massage service available at the WSOP. All eight former therapists were barred from working at the Bellagio's big poker event by the allegedly illegal invocation of a non-compete clause located within the third-party contracts signed by the therapists, as a mandatory condition of employment by INTU. The Bellagio, under legal demand from INTU, was forced to block the eight -- and perhaps more -- from working at the WPT event, causing significant personal expense to some of them. Since then, and in light of the filing of the case, the Bellagio has reinstated the right of the plaintiffs to work at the casino if contracted by the new service, PMI. INTU President Deanna Edwards Added as Defendant The class action has added a second defendant, INTU founder and president Deanna Edwards, alleging that it was by Edwards' direct hand that the illegal non-compete imposition was launched, perhaps as a vindictive measure against the Bellagio and rival service PMI as much as against the barred therapists themselves. Edwards maintains multiple residences, spending time in Las Vegas and Tennessee in addition to her native Mississippi. The lawsuit also maintains, as a second primary point, that conditions imposed upon the contracted massage therapists by Edwards and INTU stretched far beyond the norms of third-party-contractor relationships, and that the plaintiffs were actual INTU employees who collectively are owed years of back wages, overtime, and other benefits. The amended complaint also introduces additional evidence relevant to the various claims, including a 2013 threat of termination if contracted therapists accepted work with a rival company at the Wynn poker room, an expansion of INTU's "vacation" and "time off" policies (highly unusual for supposed third-party contractors), and even a "points system" (incentive program) where the contractors were assessed penalty points and barred from certain incentives if they failed to meet certain hours-worked goals. Expanded allegations detail suspect employment conditions The expanded section of general allegations against INTU and Edwards offers new details and insight into INTU's operations and alleged working terms. Included in the latest filing: 36. Specifically, on January 2, 2016, the Defendants notified all of their massage employees that INTU is implementing an incentive program where the individuals who log certain requisite numbers of hours will be eligible for gift card drawings, but cautioned that they will be disqualified from such drawings if they have "5 or more points accumulated during" the qualifying month. 37. The "points" system is itself further evidence of the Defendants' treatment of their massage employees as genuine employees, with the massage employees being demerited in the form of "points" if they cannot make a scheduled shift, arrive late, or have to leave early (even if for medical reasons), and such points cumulatively inviting various degrees of discipline including employees being stripped of shifts and/or facing termination. 38. The employer/employee relationship is further evidenced by the "time off" protocol used by INTU; while employees are permitted to request certain times they wish to work in a given month, by indicating availability through a software interface, INTU has made clear that it maintains full control of scheduling, going so far as to note in an e-mail, dated March 1, 2012: Hi Ladies, There is some confusion about the time off request policy. The policy is that you can request time off up to 6 month in advance. This means if know you are going on vacation in July you can send us an email and request the time off now. Since it is March we are only taking time off request through September. We understand that last minute trips and days off come up and those can still be included in your monthly schedule requests. This is to prevent all the therapists at one property taking the same day off and if you want to take a long vacation you will know sooner than later that it is approved. 39. The employer/employee relationship is further evidenced by the precise demands of INTU on its employees, as evidenced by written policies governing the use of cell phones during work hours, prohibiting employees from spending break time on the casino floor, prohibiting employees from congregating near slot machines during the break time, and dictating employees keep their "conversations with clients to a minimum." 40. The employer/employee relationship is further evidenced by a strict uniform policy imposed by INTU on its employees, requiring them to purchase conforming company-branded clothing from INTU, dictating the colors of shoes employees are allowed to wear to work, dictating the style of pants employees are allowed to wear to work, and even dictating the degree to which a jacket may be unzipped so as to note the showing of any cleavage is impermissible. Edwards Demanded Compliance with Non-Compete Clause The amended complaint also references a memo sent from Edwards to the affected massage therapists, demanding compliance. The November 17, 2018 message implies that the ending of INTU's contract with the Bellagio ended in late Novemeber, rather than in early December as conjectured in the initial complaint. This new passage details Edwards' expectations that the out-of-work therapists would still be unable to work the Bellagio WPT event: 52. Upon information and belief, INTU took this action at the direction of Ms. Edwards, its owner, who has involved herself in the day-to-day operations of INTU at all times relevant, approved all operational decisions of INTU of any significance at all times relevant, maintained the personal relationships that gave rise to INTU's contract with the Bellagio poker room, and personally e-mailed her employees making note of the Covenant Not to Compete and the demand of INTU and herself that the Covenant Not to Compete be treated with "compliance" by the various massage employees. 53. Specifically, on November 17, 2018, Ms. Edwards e-mailed each of the Plaintiffs, writing, inter alia, "We understand there may be apprehension regarding the signed non-compete agreement therapists have with Bellagio. Compliance is expected." Separately, Edwards and INTU sent the same non-compete legalese to the Bellagio, which led to the Bellagio's temporary decision to bar the former INTU therapists from working the Five Diamond event. Six Claims of Action Now Filed Also expanded under the amended complaint are the actionable claims against INTU and Edwards. Now numbering six, these include: -- Violation of the Fair Labor Standards Act (FLSA) -- Intentional Interference with Contractual Relations -- Violation of the Anti-Retaliation Provision of the Fair Labor Standards Act -- Failure to Pay Overtime Wages/ Wages -- Failure to Pay Minimum Wages - Violation of the Nevada Constitution -- Declaratory Judgment Prior to the filing of the amended complaint, INTU already had been granted an extension of time to respond, to January 14, 2019. This amended complaint will push that response time later, likely to a date in late January or early February. The case is filed in the US District Court for the District of Nevada. [GN] INTUITIVE SURGICAL: Says California Securities Suit Now Concluded ----------------------------------------------------------------- Intuitive Surgical, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on February 4, 2019, for the fiscal year ended December 31, 2018, that the case entitled, In re Intuitive Surgical Securities Litigation, No. 5:13-cv-1920, has been concluded. On April 26, 2013, a purported class action lawsuit entitled Abrams v. Intuitive Surgical, et al., No. 5-13-cv-1920, was filed against a number of the Company's current and former officers and directors in the U.S. District Court for the Northern District of California. The case has since been re-titled In re Intuitive Surgical Securities Litigation, No. 5:13-cv-1920. The plaintiffs sought damages on behalf of a putative class of persons who purchased or otherwise acquired the Company's common stock between February 6, 2012, and July 18, 2013. The amended complaint alleged that the defendants violated federal securities laws by allegedly making false and misleading statements and omitting certain material facts in certain public statements and in the Company's filings with the Securities and Exchange Commission (SEC). On June 11, 2018, the Company reached an agreement in principle to enter into a settlement agreement which stipulates a payment of $42.5 million by the Company. The court granted preliminary approval on October 4, 2018, and on December 20, 2018, the court granted final approval. During the year ended December 31, 2018, the Company recorded a pre-tax charge of $42.5 million for this matter. In connection with the settlement, the Company deposited $42.5 million into an escrow account established for disbursements, which was recorded in prepaids and other current assets in the accompanying Consolidated Balance Sheets as of December 31, 2018. The appeals period expired on January 21, 2019 and the matter has been concluded. Intuitive Surgical, Inc. designs, manufactures, and markets da Vinci surgical systems, and related instruments and accessories. The company was founded in 1995 and is headquartered in Sunnyvale, California.. KANSAS: Judge Certifies Lawsuit Againts Dep't of Corrections ------------------------------------------------------------ San Francisco Chronicle reports that up to 15,000 paroled inmates who were sent back to jail for parole violations could be eligible for relief after a federal judge certified as a class action a lawsuit that argues the inmates were re-incarcerated without hearings or legal representation. The certification of the case as a class action by U.S. District Judge Stephen Bough puts pressure on the state to resolve the lawsuit, which was filed in 2017 by the MacArthur Justice Center in St. Louis, KCUR reported . The center argues the state's corrections department and its Division of Probation and Parole ignored U.S. Supreme Court decisions establishing procedures to protect parolees' due process rights. "These cases have been around since the'70s, so there's really no excuse for Missouri being this behind the times in providing these constitutional rights to parolees," said Amy Breihan, Esq.-- amy.breihan@macarthurjustice.org -- director of the McArthur Justice Center's Missouri office. The Missouri Attorney General's Office will not comment on ongoing litigation, spokesman Drew Dziedzic said. Breihan said many parolees have been re-incarcerated for technical violations such as crossing the state line -- like going from Missouri to Kansas to work. "They're most often for those kinds of alleged violations and not for committing other crimes," she said. In 2017, about 6,600 parolees went through the revocation process, Breihan said, "and of those, at least 90 percent had their parole revoked and were sent back to prison." The U.S. Supreme Court ruled in the early 1970s that parole revocation hearings trigger certain minimum due process requirements, including a preliminary hearing and a formal revocation hearing. Breihan said many of the parolees being re-incarcerated without due process have mental health or addiction issues that aren't being addressed. "They're just being re-incarcerated and their lives and their communities are continually disrupted," she said. "It's not a central focus of the case, but I think it's important to think about why these folks are being sent back to prison and how it is impacting their lives and their ability get back on steady ground." [GN] KEURIG DR. PEPPER: Facing False Advertising Lawsuits ---------------------------------------------------- Joseph Brean, writing for National Post, reports that rather than go to trial to defend its ginger content, Canada Dry ginger ale will no longer claim to be "Made from Real Ginger," as part of a proposed settlement to a series of U.S. class action lawsuits over false advertising. The company that makes the popular soft drink, Keurig Dr. Pepper, will also offer payments to people who purchased Canada Dry for personal use in the United States since 2013. Those payments are capped at $5.20 per household without proof of purchase, and at $40 per household with proof of purchase, according to the proposed settlement, which does not apply to Canadian sales. The company is now trying to give broad notice to anyone who might qualify for these payments, in anticipation of final court approval in April, according to Van Beckwith, Esq. -- van.beckwith@bakerbotts.com -- a lawyer for Keurig Dr. Pepper. A minuscule amount of a ginger flavour extract That follows the decision of a California court last year to let the case proceed to trial, which was slated to begin this week. It would have aimed to resolve several related lawsuits from various states, from Massachusetts to Missouri. The New York lawsuit, for example, alleges violations of state business law including "common law fraud, deceit and/or misrepresentation, breach of express and implied warranties and unjust enrichment." As a brand, Canada Dry dates to the 1890 opening of a carbonated water plant in Toronto by John J. McLaughlin. His "Canada Dry" Pale Ginger Ale was widely sold in Canada by 1904, and soon expanded to New York, where it was a popular mix for home brew liquor during Prohibition, and globally by the 1930s. New York remains its retail "heartland," according to court records. Today, Canada Dry is made with carbonated water, high fructose corn syrup, citric acid, preservatives and natural flavours, which one of the lawsuits claims include only "a minuscule amount of a ginger flavour extract." Research by the New York complainant's lawyer pegs the actual ginger compound content of Canada Dry at two parts per million, which is below the threshold for human taste, and far lower than any amount that could have health benefits. Health benefits are a key aspect of the dispute. Flat ginger ale is a common folk remedy for an upset stomach, for example, and lawyers in the New York case have claimed Keurig Dr. Pepper added the "Real Ginger" claim to the labelling to "cultivate a wholesome and healthful image." The aim, according to the lawsuit, was to position Canada Dry as a "BFY" option, meaning "Better For You." The claims on packaging 'deceive and mislead reasonable customers' This included a television ad, "Jack's Ginger Farm," about a woman taking a ginger ale out of a cooler at a picnic and finding it was connected, through the ground, to a handsome ginger farmer. It appears to have worked. Court records in the New York action allege Keurig Dr. Pepper saw sales increase by almost 9% in just the first six months of adding the "Made from Real Ginger" claim to the packaging. The California judge cited internal company documents that suggested 30% of Canada Dry consumers who increased their consumption did so because of expected health benefits from real ginger. "In truth, DPSG's soft drink is not made from real ginger," reads the claim in New York District Court. The claims on packaging "deceive and mislead reasonable customers into believing that (Canada Dry is) made using ginger root -- i.e. the spice made by chopping or powdering the root of the ginger plant -- and not minuscule amounts of flavouring ‘extracts.'" This lawsuit was brought by Julie Fletcher of Bolivar, N.Y., near the border with Pennsylvania. She claimed to have often bought it for her sick children, thinking it was a "healthier alternative to regular sodas." Katie Gilroy, director of corporate communications at Keurig Dr. Pepper, did not respond before deadline to a request for comment.[GN] LELAND, NC: Responds to Builders' Suit Over Illegal Impact Fees --------------------------------------------------------------- Johanna Ferebee, writing for PortCityDaily, reports that Leland has formally denied allegations it charged builders illegal impact fees in its response to a lawsuit, brought against the town in September. According to the town's first legal filing answering Plantation Building Corporation's complaint, Leland states all impact fees it charged in recent years have been legal. Leland argues court opinions that lead to a 2016 North Carolina Supreme Court ruling in favor of a builder, used as the base of the plaintiff's case, are not a persuasive or controlling authority to resolve the matter. The case was initiated on Sept. 7, 2018, by Plantation Building Corporation, a prominent Wilmington-based development company. Filed as a class action lawsuit, no additional builders have joined in, according to available court filings reviewed by Port City Daily. After Leland's 30-day extension was granted on Oct. 17, the town offered its first legal response to Plantation Building Corporation's complaints on Dec. 3. So, what are impact fees? The case alleges Leland charged Plantation Building Corporation and other developers and contractors illegal water and sewer impact fees as a prerequisite to development. "Impact fees," also referred to as "capacity fees" and more recently, "system development fees," refer to charges that do not relate to regular utility use. These fees are typically charged to parties who want to connect to a municipalities' existing utility system before building new commercial or residential development. According to state law and legal precedent, the fees are now legal as long as they are calculated via a professional analysis and represent the actual projected cost required to meet the new customer's needs; in other words, they cannot be an arbitrary amount or based on an unfounded estimate of future costs. In 2016, the North Carolina Supreme Court ruled in favor of a builder in a similar matter. The case, Quality Built Homes, Inc. vs. Town of Carthage, concluded existing state statutes empowered Carthage to charge for "contemporaneous" utility service, but not to collect fees for "future spending." The impact fees Carthage collected were found to be illegal. And the court ruled the town's ordinances used to collect them were invalid, exceeding Carthage's legal authority. Later, on Oct. 2017, the North Carolina General Assembly further clarified and legalized "system development fees." House Bill 436 allows municipalities to recoup capital improvement costs -- that include some future utility plans -- to service new development through system development fees. The law does not, however, retroactively authorize municipalities to charge these fees collected prior to Oct. 1, 2017. The North Carolina Supreme Court recently left the door open for future similar suits, ruling in May 2018 that the builder had a three-year statute of limitations to bring forth their complaints. Plantation vs. Leland Plantation Building Corporation's suit cites 19 properties it built in Brunswick Forest that Leland collected impact fees for within a three year period from the suits filing; Sept. 2014 through Sept. 2017. Leland admitted to collecting such fees within this period on all but two of the properties, but denies the fees were charged illegally. This isn't the first time Leland has gotten into a legal spat with developers; In Oct. 2015, four LLCs, all connected by the same Fayetteville-based property management company, brought a lawsuit against the town in regards to its newly implemented FlexCode zoning. That suit claimed Leland's Town Council did not give the Ocean Gate Plaza owners proper and adequate notice in their effort to involuntarily re-zone the property. The case was settled one month after it was filed. In its response to the impact fees suit, Leland admits to "formerly" charging impact fees. However, the town denies the fees were used to fund future utility costs. "Leland did not, and does not, charge impact fees for future expansion," the filing states. On Jan. 19, 2017, Leland acknowledged the Supreme Court's ruling and new law, two months after it passed. It created new fees, called "capacity fees," to "recover the outflow of utility capital costs." "Once the town became aware of the ruling [Quality Built Homes vs. Town of Carthage], the town immediately ceased assessment and collection of impact fees," Leland's Jan. 2017 resolution, used as an exhibit in the lawsuit, states. The lawsuit alleges the town did not come into compliance with the new state law until at least June 1, 2018. State law granted local governments until July 1, 2018, to conform to new legal requirements associated with system development fees. In the town's December legal filing, it argues the builder's claims are barred by a statute of limitations. Also, the town argues Plantation Building Corporation unreasonably delayed in filing its action. Leland denies the builder's assertion that the 2016 Supreme Court case concludes municipalities may not charge for future expansion of utility systems or services -- a conclusion the Aug. 2016 opinion explicitly makes. Still, the town rejects the opinion's authority in the matter. "Defendant expressly denies that [Quality Built Homes vs. Town of Carthage] is persuasive or controlling authority for the resolution of this case," Leland's filing states. Similar cases Impact fees have added millions to Leland's utility fund in recent years. But by the town's 2016-2017 audit, specific line items that account for "impact fees," "capacity fees," or "system development fees," were gone. Specific reference to such fees is absent from the town's most recent audit, released in December. Leland isn't the only utility operator defending itself against builders. In August, a similar suit was introduced against Cape Fear Public Utility Authority (CFPUA), filed by the same Raleigh law firm, Whitfield, Bryson, and Mason, LLP. The law firm is also involved in nine similar cases against towns that allegedly charged illegal fees. Mecklenburg-based J.A.C.K. Development, LLC, and Wilmington-based Coastal Cypress Building Company, founded by Steve Swain, are suing CFPUA for charging allegedly illegal impact fees. The suit alleges CFPUA's collection of fees "shocks the conscience" and were charged arbitrarily. CFPUA denies it broke the law in charging the fees. It filed a motion in Nov. 2018 to throw out the case entirely. Leland also argued its case should be tossed. In one of its final affirmative defenses, the town claims Plantation Building Corporation lacks standing to maintain the case and that all claims should be dismissed. [GN] LIFESTYLE PUBLICATIONS: Lowe Suit Moved to C.D. California ---------------------------------------------------------- A case, Christopher Lowe, an individual on behalf of himself and others similarly situated, the Plaintiff, vs. Lifestyle Publications, LLC, a Kansas Limited Liability Company and Does 1 to 100, inclusive, the Defendants, Case No.: 30-02019-01044249-CU-OE-CXC, was removed from the Superior Court of Orange County, to the U.S. District Court for the Central District of California (Southern Division - Santa Ana) on Jan. 31, 2019. The Central District of California Court Clerk assigned Case No. 8:19-cv-00198-JVS-ADS to the proceeding. The case is assigned to the Hon. Judge James V. Selna. The suit alleges labor related violations. Lifestyle Publications, LLC publishes community-based monthly magazines. The company also provides electronic publishing and advertising services.[BN] Attorneys for Plaintiff: Aaron A. Bartz, Esq. Ross E. Shanberg, Esq. Shane C. Stafford, Esq. SHANBERG STAFFORD AND BARTZ LLP 5031 Birch Street Newport Beach, CA 92660 Telephone: (949) 205-7515 Facsimile: (949) 205-7144 E-mail: abartz@ssbfirm.com rshanberg@ssbfirm.com sstafford@ssfirm.com Attorneys for Lifestyle Publications, LLC: Carrie M. Francis, Esq. STINSON LEONARD STREET LLP 1850 North Central Avenue Suite 2100 Phoenix, AZ 85004 Telephone: (602) 212-8535 Facsimile: (602) 586-5214 E-mail: carrie.francis@stinson.com LIFEVANTAGE CORP: Smith Suit Still Ongoing in Utah --------------------------------------------------- LifeVantage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2019, for the quarterly period ended December 31, 2018, that the company continues to defend itself against a class action suit entitled, Smith v. LifeVantage Corp. On January 24, 2018, a purported class action was filed in the United States District Court for the District of Connecticut, entitled Smith v. LifeVantage Corp., Case No. 3:18-cv-a35 (D. Conn., filed Jan. 24, 2018). In this action, plaintiff alleged that the Company, its Chief Executive Officer, Chief Sales Officer and Chief Marketing Officer operated a pyramid scheme in violation of a variety of federal and state statutes, including RICO and the Connecticut Unfair Trade Practices Act. On April 16, 2018, the Company filed motions with the court to dismiss the complaint against LifeVantage, dismiss the complaint against the Company's executives, transfer the venue of the case from the State of Connecticut to the State of Utah, and contest class certification. On July 23, 2018, the parties filed a stipulation with the Court agreeing to transfer the case to the Federal District Court for Utah. On September 20, 2018, Plaintiffs filed an amended complaint in Utah. As per the parties stipulated agreement, plaintiff's amended complaint dropped the RICO and Connecticut state law claims and removed the Company's Chief Sales Officer and Chief Marketing Officer as individual defendants (the Chief Executive Officer remains a defendant in the case). However, the amended complaint adds a new antitrust claim, alleging that the Company fraudulently obtained patents for its products and is attempting to use those patents in an anti-competitive manner. LifeVantage filed a Motion to Dismiss the amended complaint on November 5, 2018, Plaintiffs filed a response to LifeVantage's Motion to Dismiss on December 17, 2018, and LifeVantage filed a reply brief on January 10, 2019. LifeVantage said, "With the matter now being fully briefed for the Court, the Court can issue a ruling based on the briefs submitted by the parties or schedule a hearing for oral argument before entering a decision on the motion. The Company has not established a loss contingency accrual for this lawsuit as it believes liability is not probable or estimable, and the Company plans to vigorously defend against this lawsuit. Nonetheless, an unfavorable resolution of this matter could have a material adverse effect on the Company's business, results of operations or financial condition." LifeVantage Corporation engages in the identification, research, development, and distribution of nutraceutical dietary supplements and skin care products. LifeVantage Corporation is headquartered in Sandy, Utah. LOUISIANA: Landry's Bid to Alter/Amend Judgment in Campbell Denied ------------------------------------------------------------------ In the case, LAURA CAMPBELL, ET AL., v. JOHN BEL EDWARDS, ET AL, Civil Action No. 17-1261-JWD-EWD (M.D. La.), Judge John W. DeGravelles of the U.S. District Court for the Middle District of Louisiana denied Attorney General of Louisiana Jeff Landry's unopposed Motion to Alter or Amend Judgment. In the case, Campbell and other pro se Plaintiffs filed a class action seeking to declare the current method of judicial elections in St. John the Baptist Parish unconstitutional and to enjoin judicial elections in the parish, until such time as remedial legislation, providing for at-large election of judges, can be passed. The Plaintiffs alleged that the 40th Judicial District, in and for the Parish of St. John the Baptist, was subject to re-districting/sub-districting as a result of the ruling in Clark v. Roemer, which was decided on June 12,1990. The Plaintiffs further claim that shortly after the ruling in Clark v. Roemer occurred, an at-large judicial election took place and resulted in the election of a Black/African American female to the bench, the Hon. Madeline Jasmine. But, they state that despite the result of the foregoing parish-wide judicial election, St. John the Baptist Parish was divided into three subdistricts -- Division A, Division B, and Division C -- with only those voters domiciled and residing in each district able to cast a ballot for candidates running for judgeships within each division/subdistrict. District A was a majority African-American district, but Divisions B and C were comprised of purportedly contiguous and compact areas where White voters constituted a majority. According to the Plaintiffs, the problem of vote dilution currently exists by election of state judges by subdistrict, rather than at-large, in St. John the Baptist Parish, because minorities, such as Pro Se Plaintiffs, who reside outside of Divisions B and C, are precluded from casting a vote for candidates running in these subdistricts. The Plaintiffs sought the following relief: a. Under the totality of the circumstances, St. John the Baptist Parish's method of electing members for the 40th Judicial District by subdistrict, rather than at-large, has the purpose and effect of denying a substantial percentage of registered Black voters the opportunity to participate in the political process and to elect representatives of their choice, in violation of Section 2 of the Voting Rights Act, and the constitutional guarantees of the Fourteenth and Fifteen Amendments. b. Unless enjoined by order of the Court, the Defendants will continue to act in violation Of Section 2 of the Voting Rights Act and the constitutional guarantees of the Fourteenth and Fifteen Amendments by administering, implementing, and conducting future elections for the 40th Judicial District using a method of election, which, history shows, was never needed, and, which, if allowed to continue, violates the equal protection and voting rights of Pro Se Plaintiffs and other Black/African American residents situated similarly to them in St. John the Baptist Parish. The Plaintiffs also prayed for the following: (1) a declaration that the Defendants' method of electing members for the 40th Judicial District by subdistrict violates Section 2 of the Voting Rights Act, and the Fourteenth and Fifteenth Amendments to the U.S. Constitution; (2) a declaration that the method of electing judges to the district has the result of denying or abridging the right to vote on account of race or color in violation of the same laws; (3) an injunction prohibiting the Defendants from enforcing or conducting any future elections to that district under the current subdistrict method of election; (4) an order setting an immediate and reasonable deadline for the State to enact and adopt an at-large method of election for the district, or, alternatively, an order for the implementation of an election system for the district that complies with the above laws; and (5) an order retaining jurisdiction over the case and requiring the parish to obtain preclearance from the Court or U.S. Department of Justice for all future changes in voting law affecting the district, until there is compliance with the above laws. After suit was filed, Plaintiff Deborah Weber moved to dismiss herself from the case. On Dec. 6, 2017 that motion was granted. On the same day, the Attorney General filed an answer. He prayed for, among other things, the following: (i)the Court reopens Clark v. Roemer and order joinder of the parties thereto to the extent protection of their interests may be impaired by a ruling; and (ii) the Court enters judgment declaring that subdistricts for the election of district court judges are no longer legally viable and ought to be dissolved and that the method of electing district judges district wide should be restored and reinstated beginning with the first regular primary election following a final decision in the case. Subsequently, other Plaintiffs moved to dismiss themselves. The Court granted these requests. Then, on Jan. 8, 2018, the parties filed a Joint Motion to Retrieve Case Record in Clark v. Roemer. They represented that the record was believed to be located in the Records Center Archives, National Archives and Records in Fort Worth, Texas, and they asked for the Court to direct the Clerk of Court to retrieve them. The motion was granted. Subsequently, more Plaintiffs moved to dismiss themselves, without opposition. The Court granted the motion. Following the answer by Defendant Governor Edwards, on Feb. 20, 2018, the remaining Plaintiffs filed a motion to dismiss themselves. The following day, on Feb. 21, 2018, the Court granted the Plaintiff's motion and dismissed the Plaintiffs' claims with prejudice. On March 20, 2018, the Attorney General filed the instant motion. He argues that, in his answer, he pled a cause of action independent of the Plaintiffs' and prayed for affirmative relief to declare that the current method of electing judges in the 40th Judicial District by sub district no longer legally viable. He further contends that while the Attorney General did not style his affirmative plea for relief as a counterclaim, the nature of the pleading as a counterclaim with an independent prayer for affirmative relief allows the pleading to be treated as a counterclaim under Rule 8(c)(2) and (e). The Attorney General maintains that, to the extent the Court dismissed the counterclaims asserted in his answer, such a dismissal would constitute a manifest error of law and fact, and the judgment should be altered or amended to allow the claims and demands of the Attorney General to go forward as a counterclaim. He concedes that the motion is unusual both from a procedural standpoint and from the standpoint of a defendant petitioning to re-open a case where the plaintiffs have voluntarily dismissed their claims, but he relies on the state's vital interest in how district judges are elected and his duty to pursue those interests. Judge DeGravelles will deny the Attorney General's motion on two grounds. First, he disagrees with the Attorney General's characterization of his answer as asserting a counterclaim. Second, the instant action is no longer justiciable. The Judge has reviewed the relevant portions of the Attorney General's answer and finds that he did not assert a counterclaim. Moreover, he finds that the relief the Attorney General seeks cannot possibly be adjudged separately from the Plaintiffs' claims. At the very least, the Attorney General has not shown that the Court manifestly erred in reaching this result. In addition, he finds that the Plaintiffs have voluntarily dismissed their claims because they can obtain the relief they seek legislatively. Thus, there is no longer a case or controversy at issue. The Attorney General essentially seeks an advisory opinion based on a hypothetical dispute -- one which would carry the added unfairness of requiring pro se parties to litigate a complex area of statutory and constitutional law. For this additional reason, the Court's order granting the Plaintiffs' motion to dismiss was not manifestly erroneous. Again, the Judge holds that reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly. In sum, the Attorney General has failed to demonstrate entitlement to such seldom-granted relief. Consequently, the Attorney General's motion will be denied. Accordingly, he denied the Motion to Alter or Amend Judgment filed by Defendant Attorney General. A full-text copy of the Court's Jan. 23, 2019 Ruling and Order is available at https://is.gd/XoMOdg from Leagle.com. Laura Campbell, Emelda Gray Pierce, Mary Ann Gray, Richard Gray, Paula Murray, Michelle James & Ron James, Plaintiffs, represented by Nghana Lewis Gauff, Nghana Lewis Gauff, LLC. John Bel Edwards, in his Official Capacity as Governor of the State of Louisiana, Defendant, represented by Matthew F. Block, Office of the Governor, Megan Kathleen Terrell, Office of the Governor & Tina Marie Vanichchagorn, Office of the Governor. Jeff Landry, in his Official Capacity as Attorney General of the State of Louisiana, Defendant, represented by Angelique Duhon Freel, Louisiana Department of Justice, Alicia Edmond Wheeler, Louisiana Department of Justice Office of Attorney General & Carey T. Jones, Carey T. Jones, Attorney. Tom Schedler, in his Official Capacity as Secretary of State of State of Louisiana, Defendant, represented by Celia R. Cangelosi, Celia R. Cangelosi, Attorney at Law. LOVED ONES: Court Allows Filing of 3rd Amended Mayhew FLSA Suit --------------------------------------------------------------- In the case, PAMELA MAYHEW, BETSY FARNSWORTH, on behalf of themselves and others similarly situated, Plaintiffs, v. LOVED ONES IN HOME CARE, LLC, and DONNA SKEEN, Defendants, Civil Action no. 2:17-cv-03844 (S.D. W.V.), Judge John T. Copenhaven, Jr. of the U.S. District Court for the Southern District of West Virginia, Charleston Division, granted the Plaintiffs' motion for leave to file a third amended complaint. On July 28, 2017, Ms. Mayhew initiated an individual action under the Fair Labor Standards Act ("FLSA"), related to pay practices of Loved Ones regarding their payment of overtime wages. On Aug. 30, 2017, Ms. Mayhew filed her first amended complaint expanding her prior claims to include a collective action under the FLSA. Betsy Farnsworth joined the action as a named Plaintiff in the second amended complaint, filed Oct. 31, 2017. On Dec. 1, 2017, the Court conditionally certified the collective action in the case. The Defendants subsequently moved to limit the conditional collective action certification on the grounds that it was too broad. After full briefing, the Court ordered, on Feb. 23, 2018, that the collective action be limited to employees who worked for defendants in home health aide in two or more programs during the course of the same pay period at any time between July 28, 2014 and May 31, 2017. A proposed notice of the collective action was filed by the Plaintiffs on March 5, 2018 and was approved by the Court on March 6, 2018. Importantly, the Notice set a June 1, 2018 deadline for potential Plaintiffs to mail consents to sue. Named Plaintiffs Mayhew and Farnsworth did not file consents to sue in accordance with the Notice approved by the Court. The Court, however, in its Dec. 27, 2018 memorandum opinion and order on the Plaintiffs' motion to file consents to sue outside the opt-in period, found that Ms. Mayhew was deemed to have consented to joining the collective action on Aug. 30, 2017. Further, the Court permitted Ms. Farnsworth to file her consent to sue outside of the timeframe provided by the Notice. In December 2018, Loved Ones distributed to currently-employed collective class members and other employees two employment-related documents: an "Arbitration Agreement" and an "Addendum to Arbitration Agreement. The Plaintiffs contend that the Defendants "contemporaneously" distributed these two documents to employees. These documents were the subject of the Plaintiffs' Dec. 13, 2018 motion to issue a clarifying notice to the Plaintiffs in the action. On Dec. 19, 2018, the Court approved the Clarifying Notice that the Plaintiffs' counsel was to distribute to collective action Plaintiffs. The Plaintiffs seek to amend their complaint to include FLSA retaliation claims pursuant to 29 U.S.C. Section 215(a)(3), which arise out of the distribution of the "Arbitration Agreement" and "Addendum." They maintain that Loved Ones informed employees who are also members of the class that if an employee failed to sign both documents, Loved Ones would terminate their employment on Dec. 21, 2018. The Plaintiffs also contend that Loved Ones, apart from the two documents noted, threatened conduct to terminate the employment of the collective class Plaintiffs who refuse to agree to or to execute the two described documents, which they believe is retaliatory in nature based on the Plaintiffs' status and participation in the litigation. Further, they assert that distributing these documents invades the exclusive province of the Court to control and to direct communications relative to the collective action with the collective class Plaintiffs, and that the invasion is employment-related retaliation and discrimination against the collective class Plaintiffs. The Defendants filed three separate responses to the Plaintiffs' motion, one on Jan. 2, 2018 and two on Jan. 10, 2018. The Jan. 2, 2018 response and the first Jan. 10, 2018 response are identical and argue that inasmuch as no named Plaintiff filed a consent to sue during the timeframe set in the Notice, the statute of limitations in the matter has run and the entire case should be dismissed. The Defendants' second response of Jan. 10, 2018 states that because the Clarifying Notice that was approved on Dec. 19, 2018 resolved the conflict between the terms of the "Arbitration Agreement" and the "Addendum," the issues raised in the amended complaint are moot. Judge Copenhaven finds that it cannot be said that the Plaintiffs' allegations of retaliation would be futile inasmuch as it appears that a prima facie showing of the required elements laid out in Darveau v. Detecon, Inc. are met. Further, there is no indication of bad faith on the part of the Plaintiffs and inasmuch as it is the Defendants' alleged misconduct, which took place in December 2018, that prompted the proposed amendment, that amendment does not unduly prejudice the Defendants. The Plaintiffs' FLSA retaliation claims against the Defendants are appropriately included in the complaint. For these reasons, he finds that good cause exists to modify the Court's scheduling order, entered March 8, 2018. Accordingly, Judge Copenhaven granted the Plaintiffs' motion for leave to file the third amended complaint. He directed the Clerk to file as of the date the complaint attached to the Plaintiffs' motion as the third amended complaint in the action. Although the Defendants include, in their second Jan. 10, 2018 response, answers to the additional allegations raised in the proposed complaint, the Judge ordered the Defendants to file their answers to the third amended complaint within 10 days of the entry of the Order. The parties confer and submit to the Court, by Feb. 15, 2019, a document akin to a Rule 26(f) report that reflects the schedule the parties envision in light of the amendment. Finally, it is ordered that the final settlement conference, scheduled for Feb. 11, 2019, and the trial, scheduled for Feb. 12, 2019, be continued until the further order of the Court. The Clerk is directed to forward copies of the Order to all the counsel of record. A full-text copy of the Court's Jan. 23, 2019 Memorandum Opinion and Order is available at https://is.gd/zHArDF from Leagle.com. Pamela Mayhew & Betsy Farnsworth, on behalf of themselves and others similarly situated, Plaintiffs, represented by Mark A. Toor -- mark@marktoor.com -- MARK A. TOOR. Loved Ones In Home Health Care, LLC & Donna Skeen, Defendants, represented by Andrew L. Ellis -- drew.ellis@wwdhe.com -- WOOTON DAVIS HUSSELL & ELLIS, Charles Whittaker Neely -- RNeely@NeelyCallaghan.com -- NEELY & CALLAGHAN, Michael O. Callaghan -- mcallaghan@neelycallaghan.com -- NEELY & CALLAGHAN & Richard Neely, NEELY & CALLAGHAN. LOXO ONCOLOGY: Stevens Sues over Eli Lilly Merger Deal ------------------------------------------------------ MICHAEL STEVENS, on behalf of himself and all others similarly situated, the Plaintiff, vs. LOXO ONCOLOGY, INC., JOSHUA H. BILENKER, STEVE ELMS, KEITH T. FLAHERTY, AVI Z. NAIDER, LORI A. KUNKEL, ALAN FUHRMAN, TIM MAYLEBEN, and STEVE D. HARR, the Defendants, Case No. 1:19-cv-00207-UNA (D. Del., Jan. 31, 2019), alleges the Defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 in connection with a proposed acquisition of Loxo by Eli Lilly and Company. According to the complaint, on January 5, 2019, the Company announced that it had entered into an agreement and plan of merger with Eli Lilly, by which Lilly will acquire all of the outstanding shares of Loxo common stock through an all-cash tender offer at a purchase price of $235 per share. The January 5 Press Release disclosed that the Proposed Transaction would be accomplished through a tender offer rather than a shareholder vote. The Tender Offer commenced on January 17, 2019 when the Company filed a Recommendation Statement on Schedule 14D-9 with the SEC, recommending that the Company's stockholders tender their shares for the Tender Offer price. The Tender Offer is set to expire on February 14, 2019. The Plaintiff alleges that the 14D-9 is materially false and/or misleading because, inter alia, it fails to disclose certain material projected internal financial information about the Company, relied on by the Individual Defendants to recommend the Tender Offer and by the Company's financial advisor, Goldman Sachs & Co. LLC to render an opinion that the Tender Offer is fair to Loxo stockholders, and certain material information regarding the sale process leading up to the Tender Offer, which omissions render the 14D-9 incomplete and/or misleading. In particular, the 14D-9 omits material information regarding: (i) certain of the Company's financial projections and/or explanation of the manner in which the projections were calculated, which appear to differ from Loxo's financial metrics reported to shareholders in prior SEC filings; (ii) the valuation analyses performed by Goldman Sachs in support of its fairness opinion; and (iii) certain information regarding the background of the transaction. These omissions render the 14D-9 materially misleading, including the basis for the Board's recommendation that shareholders tender their shares and the non-GAAP financial disclosures that were relied on and utilized by the Board and Goldman Sachs to recommend the Proposed Transaction. The failure to adequately disclose such material information constitutes a violation of sections 14(e) and 20(a) of the Exchange Act, among other reasons, because Loxo stockholders are entitled to such information in order to make a fully-informed decision regarding whether to tender their shares in connection with the Tender Offer, the lawsuit says. Loxo Oncology, Inc., a biopharmaceutical company, develops and sells medicines for patients with genetically defined cancers in the United States.[BN] Counsel for Plaintiff: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 685 Third Ave., 26th Fl. New York, NY 10017 Telephone: (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com mvangorder@faruqilaw.com MAHARD EGG FARM: Miranda Suit Asserts Civil Rights Act Violation ---------------------------------------------------------------- Isabel Transito Miranda, Cesar Bautista, and Cesar Islas, Individually and On Behalf of All Others Similarly Situated, Plaintiffs, v. Mahard Egg Farm, Inc., and Mahard Pullet Farms, Inc., Defendants, Case No. 4:19-cv-00092 (E.D. Tex., February 4, 2019) is an action on behalf of Plaintiffs and a class of similarly situated current and former Hispanic employees against Defendants for subjecting the Hispanic Workers to an objectively hostile and abusive work environment on account of their Hispanic race, in violation of the Civil Rights Act of 1866. Mahard Egg Farm, Inc. operates a poultry farm. The complaint notes that the Hispanic Workers assigned to the hen and pullet houses were required to eat in the filthy farm environment, and were provided no hand washing facilities or clean break area. If Hispanic Workers assigned to the hen and pullet houses attempted to eat indoors, Mahard supervisory or management personnel kicked them out. Mahard's actions constitute a continuing violation that began at least as early as 1999 and continues to this day, the complaint relates. Mahard unlawfully discharged Named Plaintiffs and other Class Members because they opposed or resisted Mahard's racially-motivated harassment, adds the complaint. Plaintiffs were employed at Mahard's egg and pullet farm and processing plant in Chillicothe, Texas at various times since February 4, 2015. Mahard Egg Farm, Inc. and Mahard Pullet Farm, Inc. are a domestic for-profit corporations formed and existing under the laws of the State of Texas.[BN] The Plaintiffs are represented by: Aaron Johnson, Esq. Rebecca Eisenbrey, Esq. EQUAL JUSTICE CENTER and TRANSNATIONAL WORKER RIGHTS CLINIC 510 S. Congress Ave., Ste. 206 Austin, TX 78704 Phone: (512) 474-0007 Fax: (512) 474-0008 Email: ajohnson@equaljusticecenter.org reisenbrey@equaljusticecenter.org - and - Shana Khader, Esq. EQUAL JUSTICE CENTER and TRANSNATIONAL WORKER RIGHTS CLINIC 1250 W. Mockingbird Ln., Ste. 455 Dallas, TX 75247 Phone: (469) 228-4223 Fax: (469) 941-0861 Email: skhader@equaljusticecenter.org MARKEL CORP: Glancy Prongay Files Securities Class Action --------------------------------------------------------- Glancy Prongay & Murray LLP has filed a class action lawsuit in the United States District Court for the Southern District of New York, captioned Bergen v. Markel Corporation et al., (Case No. 1:19-cv-00319), on behalf of persons and entities that: a) purchased or otherwise acquired Markel Corporation (NYSE: MKL) ("Markel" or the "Company") securities between July 26, 2017 and December 6, 2018, inclusive (the "Class Period"). Plaintiff pursues claims under the Securities Exchange Act of 1934 (the "Exchange Act"). Investors are hereby notified that they have 60 days from the date of this notice to move the Court to serve as lead plaintiff in this action. If you are a shareholder who suffered a loss, click here to participate. On December 6, 2018, the Company disclosed that "after having been contacted on November 30, 2018, it is fully cooperating with inquiries by US and Bermuda authorities into loss reserves recorded in late 2017 and early 2018 at Markel CATCo Investment Management Ltd and its subsidiaries." On this news, the Company's share price fell $99.70 per share, more than 8%, to close at $1048.23 per share on December 7, 2018, on unusually high trading volume, thereby injuring investors. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company's subsidiaries did not appropriately record loss reserves; (2) that, as a result, the loss reserves would need to be adjusted and/or restated; (3) that these misleading accounting practices would lead to regulatory scrutiny and financial loss to investors; and (4) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects, were materially misleading and/or lacked a reasonable basis. If you purchased Markel securities during the Class Period, you may move the Court no later than 60 days from the date of this notice to ask the Court to appoint you as lead plaintiff. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. Lesley Portnoy,Esq. GlancyProngay and Murray LLP 1925 Century Park East, Suite 2100 Los Angeles, California 90067 Telephone: 310-201-9150 888-773-9224 Website: www.glancylaw.com Email: lportnoy@glancylaw.com [GN] MARKEL CORP: Schall Law Files Securities Class Action Lawsuit ------------------------------------------------------------- The Schall Law Firm, a national shareholder rights litigation firm, announces the filing of a class action lawsuit against Markel Corporation (Markel or the Company) (NYSE: MKL) for violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities and Exchange Commission. Investors who purchased the Company's shares between July 26, 2017 and December 6, 2018, inclusive (the "Class Period"), are encouraged to contact the firm before March 12, 2019. We also encourage you to contact Brian Schall, or SherinMahdavian, of the Schall Law Firm, 1880 Century Park East, Suite 404, Los Angeles, CA 90067, at 424-303-1964, to discuss your rights free of charge. You can also reach us through the firm's website at www.schallfirm.com, or by email at brian@schallfirm.com. The class, in this case, has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, the Company made false and misleading statements to the market. Markels subsidiaries failed to record loss reserves as appropriate. This failure would cause the Company to have to restate or adjust its loss reserves. This misleading accounting also opened up the Company to the risk of regulatory scrutiny. Based on these facts, the Companys public statements were false and materially misleading throughout the class period. When the market learned the truth about Markel, investors suffered damages. Join the case to recover your losses. Brian Schall, Esq. SherinMahdavian, Esq. The Schall Law Firm 1880 Century Park East, Suite 404 Los Angeles, CA 90067 Telephone: 310-301-3335 Email: brian@schallfirm.com. sherin@schallfirm.com [GN] MCKESSON CORP: Seeks Extension of Time to File Writ --------------------------------------------------- McKesson Corporation and McKesson Technologies, Inc. requested a 58-day extension within which to file a petition for a writ of certiorari to review a judgment entered by the United States Court of Appeals for the Ninth Circuit. True Health Chiropractic, Inc. and McLaughlin Chiropractic sued McKesson under the Telephone Consumer Protection Act based on unsolicited fax advertisements that a McKesson business unit sent during 2009 and 2010 in violation of the TCPA. The case is captioned True Health Chiropractic, et al., Plaintiffs v. McKesson Corporation, et al., filed in the United States District Court for the Northern District of California under Case No. 13-02219-HSG. The District Court denied True Health's request to certify a class under Rule 23(b)(3). Consequently, the Court of Appeals granted True Health's petition for interlocutory appeal under the Federal Rules of Civil Procedure 23(f) and reversed in part. McKesson Corporation is represented by: Joseph R. Palmore, Esq. SEth W. Lloyd, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA Phone: (415) 268-7000 - and - Tiffany Cheung, Esq. MORRISON & FOERSTER LLP 2000 Pennsylvania Avenue, N.W. Washington, DC 20006 Phone: (202) 887-6940 Email: JPalmore@mofo.com MDL 2785: Sanofi's Suggestion of Remand Bid Denied w/o Prejudice ---------------------------------------------------------------- In the case, IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation, ()This Document Applies to the Sanofi case), MDL No: 2785, Case No. 17-md-2785-DDC-TJJ (D. Kan.), Judge Daniel D. Crabtree of the U.S. District Court for the District of Kansas denied without prejudice Sanofi's Motion for a Suggestion of Remand. On Aug. 3, 2017, the Judicial Panel on Multidistrict Litigation ("JPML") transferred four lawsuits to the Court for coordinated and consolidated proceedings. The JPML concluded that centralization in the District of Kansas will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation by eliminating duplicative discovery; preventing inconsistent pretrial rulings; and conserving the resources of the parties, their counsel, and the judiciary. The JPML transferred the actions to the District of Kansas for coordinated and consolidated pretrial proceedings. Individual consumers or third-party payors filed all but one of the lawsuits in the MDL. Those consumers or third-party payors allege they purchased EpiPens for use by themselves, their families, or their members, employees, insureds, participants, or beneficiaries. Among other things, the consumer class cases assert that the Defendants-Sellers and Manufacturers of the EpiPen—violated federal and state antitrust laws, the federal RICO Act, and various state consumer protection laws. The Plaintiffs in the consumer class cases also seek certification of multiple classes. The other case in the MDL differs from the consumer class cases. It is Sanofi-Aventis U.S. LLC v. Mylan Inc. et al., No. 17-2452 ("Sanofi case"). Sanofi filed the lawsuit in the District of New Jersey on April 24, 2017. It alleges that Mylan engaged in a variety of anticompetitive conduct designed to prevent Auvi-Q®—Sanofi's product that competed with the EpiPen—from gaining access to the epinephrine autoinjector market, and designed to prevent consumers from acquiring the Auvi-Q®. Sanofi asserts three Sherman Antitrust Act Section 2 claims against Mylan. These claims assert: (1) exclusive dealing; (2) deceptive conduct to further monopolization; and (3) monopolization. Sanofi brings the action only for itself, and not on behalf of any other Plaintiffs or putative class members. So, Sanofi's Complaint neither asserts class action allegations nor seeks certification of a class. On Sept. 14, 2017, the Court determined that the differences between the consumer class cases and the Sanofi case warranted separate litigation tracks. Thus, it established two separate tracks for the MDL -- i.e., the consumer class cases and, distinct from them, the Sanofi case. Indeed, the JPML's Transfer Order envisioned that the court might use this approach: To the extent Sanofi presents unique factual and legal issues, the transferee judge has the discretion to address those issues through the use of appropriate pretrial devices, such as separate tracks for discovery and motion practice. Also, the JPML recognized, the Court may recommend Section 1407 remand of Sanofi in advance of other actions if he deems it appropriate. On Oct. 19, 2017, the Court entered Scheduling Order No. 2. The Scheduling Order applies to both litigation tracks, and it established deadlines for coordinated fact discovery. Among other things, the Scheduling Order established an Oct. 31, 2018, deadline for completing coordinated fact discovery and a Nov. 30, 2018, deadline for filing a motion to remand the Sanofi case. After Sanofi asked the Court to accelerate the briefing schedule for the Sanofi remand motion, the Court accelerated the deadline for a remand motion to Nov. 1, 2018. The parties completed coordinated fact discovery by the Oct. 31, 2018 deadline. On Oct, 18, 2018, the Court entered Scheduling Order No. 4. It established a schedule governing expert discovery for the Sanofi case only. Also, on Nov. 26, 2018, the Court entered Scheduling Order No. 6. It established deadlines for dispositive and Daubert motions for the Sanofi case only. Sanofi represents that the parties currently are engaged in non-coordinated discovery of experts in the Sanofi case. Meanwhile, the consumer class plaintiffs have filed their Motion for Class Certification. The Defendants' response to that motion is due March 18, 2019, and the class plaintiffs' reply is due April 22, 2019. With its current motion, Sanofi asserts that the Court now should follow the JPML's proposal and file a suggestion of remand of the Sanofi case, suggesting that the JPML should remand its case to its original district—the District of New Jersey. Sanofi argues that remand is appropriate at this stage because the parties have completed all coordinated proceedings. And, Sanofi contends, each of the [separate litigation tracks] have gone their separate ways. Thus, Sanofi asserts, its continued participation in the MDL will produce no additional efficiencies. Mylan disagrees. Mylan argues that, consistent with Section 1407, the JPML transferred the MDL cases to the Court for coordinated or consolidated pretrial proceedings. It contends that the MDL's coordinated pretrial proceedings are not yet complete. And, Mylan argues, issues in the Sanofi case still overlap with issues in the consumer class cases. Thus, Mylan contends, remanding the Sanofi case is not yet appropriate because continued consolidation and coordination of all the MDL cases will maximize efficiencies, prevent duplication, and avoid inconsistent rulings. Judge Crabtree concludes merely that a suggestion of remand is not appropriate now. He finds taht the Court is not deciding when remand of the Sanofi action will become appropriate. The delay also concerns the Court. That is why it has ordered the cases to proceed on separate litigation tracks -- so that the Sanofi case is not delayed while the parties litigate the class certification issues in the consumer class cases. Finally, while remand is not appropriate now, the Judge finds that it will become appropriate at some point. Sanofi can renew its motion when circumstances change and after additional coordinated pretrial proceedings have concluded. Thus, his fair warning to Mylan: Any future argument that it's devoting energy and attention to work in the consumer class cases is unlikely to justify postponement of work in the Sanofi case. For reasons explained, Judge Crabtee denied Sanofi's Motion for a Suggestion of Remand, but without prejudice to refiling at a later stage in the litigation. A full-text copy of the Court's Jan. 23, 2019 Memorandum and Order is available at https://is.gd/hnBRZW from Leagle.com. All Plaintiffs, Plaintiffs, represented by Lynn Lincoln Sarko, Keller Rohrback, LLC, Paul J. Geller -- Pgeller@kellerrohrback.com -- Robbins Geller Rudman & Dowd, LLP, Rex A. Sharp -- rsharp@midwest-law.com -- Rex A. Sharp, PA, Ryan C. Hudson -- rhudson@midwest-law.com -- Rex A. Sharp, PA & Warren T. Burns -- wburns@burnscharest.com -- Burns Charest, LLP. Consumer Class Cases Plaintiffs, (For Filings as to All Consumer Class Cases Plaintiffs), Plaintiffs, represented by Alison Elizabeth Chase -- achase@kellerrohrback.com -- Keller Rohrback, LLP, Arthur L. Shingler, III -- ashingler@rgrd.com -- Robbins Geller Rudman & Dowd, LLP, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Daniel C. Hedlund -- dhedlund@gustafsongluek.com -- Gustafson Gluek PLLC, Eric Fierro -- efierro@kellerrohrback.com -- Keller Rohrback LLP, Joseph C. Bourne -- jbourne@gustafsongluek.com -- Gustafson Gluek PLLC, Lynn Lincoln Sarko -- lsarko@kellerrohrback.com -- Keller Rohrback, LLC, Mahde Youssef Abdallah -- mya@miller.law.com -- The Miller Law Firm, PC, Rex A. Sharp , Rex A. Sharp, PA, Ryan C. Hudson , Rex A. Sharp, PA, Ryan McDevitt -- rmcdevitt@kellerohrback.com -- Keller Rohrback, LLC, Sharon S. Almonrode -- ssa@miller.law.com -- The Miller Law Firm, PC, pro hac vice, Stuart A. Davidson -- sdavidson@kellerrohrback.com -- Robbins Geller Rudman & Dowd, LLP, Tanya Korkhov -- tkorkhov@kellerrohrback.com -- Keller Rohrback, LLP & William L. Kalas -- WK@miller.law.com -- The Miller Law Firm, PC. Mylan N.V., Defendant, represented by Adam K. Levin -- adam.levin@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, Benjamin Frederick Holt -- benjamin.holt@hoganlovells.com -- Hogan Lovells US LLP, Brian C. Fries -- bfries@lathropgage.com -- Lathrop Gage LLP, Brian R. Richichi -- brian.richichi@hoganlovells.com -- Hogan Lovells US LLP, Carolyn Anne DeLone -- carrie.delone@hoganlovells.com -- Hogan Lovells US LLP, Chad E. Blomberg -- cblombe@lathropgage.com -- Lathrop Gage, LLP, Christopher D. Edelman , Hogan Lovells US LLP, Daniel Thomas Graham -- dgraham@clarkhill.com -- Clark Hill, PLC, pro hac vice, David M. Foster -- david.foster@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice, James Moloney -- jmaloney@lathropgage.com -- Lathrop Gage LLP, Jon Myer Talotta -- jon.talotta@hoganlovells.com -- Hogan Lovells US LLP, Justin Bernick ,Kathryn M. Ali , Hogan Lovells US LLP, pro hac vice, Sue Lin -- tony.lin@hoganlovells.com -- Hogan Lovells US LLP, Timothy Robert Herman -- therman@clarkhill.com -- Clark Hill, PLC, pro hac vice & Yuri Fuchs -- yuri.fuchs@hoganlovells.com -- Hogan Lovells US, LLP. MDL 2848: Skoczlas Asks Court to Remand Zostavax Case to N.D. Tex. ------------------------------------------------------------------ The Plaintiff designates the U.S. District Court for the Northern District of Texas, Fort Worth Division, as the place of remand for the case captioned, KAREN H. SKOCZLAS, the Plaintiff, vs. MERCK & CO., INC. and MERCK SHARP & DOHME CORP., the Defendants, Case No. 2:19-cv-00455-HB (E.D. Pa, Jan. 31, 2019). The Skoczlas case is being consolidated in MDL No. 2848 Re: Zostavax (Zoster Vaccine Live) Products Liability Litigation. The United States Judicial Panel on Multidistrict Litigation created the order on August 2, 2018. All actions involve common factual questions arising out of allegations that Zostavax, a live vaccine for the prevention of shingles, caused plaintiffs to develop shingles or other injuries triggered by exposure to the live, attenuated varicella zoster virus contained in the vaccine, and that defendants did not provide sufficient warning of the risks to healthcare providers or consumers. Issues concerning the design, testing, manufacture, regulatory approval, labeling, and marketing of Zostavax are common to all actions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings on Daubert issues and other pretrial matters; and conserve the resources of the parties, their counsel and the judiciary. In its August 2, 2018 order, the MDL Panel found that these actions involve common questions of fact, and that centralization will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. The Panel concluded that the Eastern District of Pennsylvania is an appropriate transferee district for this litigation. Seven actions are pending in this district, and they are the earliest filed and most advanced actions in this litigation. The record indicates that the Merck facilities involved in the development, manufacturing, labeling, and marketing of Zostavax are located in Pennsylvania and nearby at its New Jersey headquarters. Thus, many of the common documents and witnesses likely will be located in this area. Merck & Co. is an American pharmaceutical company and one of the largest pharmaceutical companies in the world.[BN] Attorneys for Plaintiff: Nicholass R. Rockforte, Esq. PENDLEY, BAUDIN & COFFIN, L.L.P. 24110 Eden Street Plaquemine, LA 70765 Telephone: (225) 687-6396 Facsimile: (225) 687-6398 E-mail: nrockforte@pbclawfirm.com MERCK & CO: Settles 7-Year Equal Pay Class Action for $6.2MM ------------------------------------------------------------ More than seven years ago, female sales representatives who worked for Merck filed a class and collective action alleging discrimination in pay on the basis of their gender in violation of the Equal Pay Act (EPA) and Title VII. After years of litigation that resulted in a class and collective of 672 opt-in plaintiffs, the parties in Smith, et al. v. Merck & Co., Inc., recently reached a settlement of $6.2 million. We now wait to see if the court will approve the settlement. What do employers need to know about this proposed resolution? Plaintiffs' Equal Pay Claims Plaintiff Kelli Smith filed a class action complaint against Merck in New Jersey's federal court in May 2013 alleging gender discrimination. The complaint was thereafter amended to include a total of four named plaintiffs -- all female sales representatives -- and allege class and collective claims under the EPA, Title VII, the Family and Medical Leave Act (FMLA), and the Employee Retirement Income and Security Act (ERISA). The complaint alleged that Merck systematically paid its female sales representatives less than similarly situated male sales representatives who performed the same job duties and worked under the same conditions. To support these claims, the complaint alleged that female sales representatives were routinely assigned to lower tiers than male sales representative -- resulting in a lower salary range -- and pointed to flaws in the compensation and evaluation decision making processes which negatively impacted compensation and promotional opportunities for women. The complaint further alleged that Merck fostered a "boys' club" environment where women were excluded from promotional opportunities, denied access to leadership positions, and were particularly vulnerable if they became pregnant or take maternity leave. In April 2016, the court conditionally certified a collective action regarding the EPA claims. As a result, notice of the collective action was mailed, and ultimately 672 female sales representatives opted in to the lawsuit. Prior to reaching a settlement, the parties engaged in discovery that consisted of an exchange of documents, interrogatories, and almost 100 depositions. These depositions included 17 Merck fact witnesses, eight Rule 30(b)(6) deponents (corporate representatives), the four named plaintiffs, 66 opt-in plaintiffs, and four expert witnesses. Settlement Details Under New Jersey law, all settlements under the Fair Labor Standards Act (FLSA) -- which includes the EPA as an amendment to the FLSA -- must be approved by the court. On Dec. 19, 2018, the parties filed a motion for preliminary approval of the settlement, which defines the class as including all female employees who are or were employed by Merck and its affiliates and worked in assorted sales representative capacities for at least one day between Dec. 8, 2010 and Oct. 1, 2018. According to the documents filed with the New Jersey court, the $6.2 million total settlement amount is comprised of the following: -- Class Member Awards determined pursuant to an allocation formula based on the total number of weeks worked during the liability period; -- Service awards of $25,000 to each of the four class representatives; -- Service awards of $4,000 for each of the 66 collective action members who were deposed; -- Service awards of $1,000 for each of the 55 collective action members who submitted written discovery but were not deposed, and for the one collective action member who submitted a declaration but was not deposed; -- Service awards of $100 for each of the 550 opt-in collective action members who did not participate in discovery; -- Attorneys' fees and reasonable litigation expenses not to exceed $3 million; and -- Settlement administration fees not to exceed $50,000. If the court approves the settlement, notice will be issued to the entire class/collective of current and former female sales representatives. All sales representatives who do not opt out of the settlement will receive a class member award and a service award, if applicable, following the final approval of the settlement. Conclusion The Smith lawsuit was at the forefront of the recent wave of EPA litigation that we have seen across the country. Since this 2013 filing, lawsuits alleging claims of discrimination based on similar fact patterns have become commonplace. In fact, the plaintiffs' attorneys in this case (Sanford Heisler Sharp, LLP) have filed dozens of high profile EPA class and collective actions against large employers throughout the country, and routinely obtained multimillion dollar settlement awards for their clients. Your organization might even be more at risk of a pay equity dispute in New Jersey now -- or at least a costlier one -- than was Merck in the above -- described case. That's because Smith's lawsuit was filed before New Jersey enacted the Diane B. Allen Equal Pay Act (effective July 1, 2018), which provides more extensive remedies than the EPA and Title VII. Now that a heightened standard and greater potential damages are in play, you have every incentive to ensure full and complete pay equity compliance. Sarah Wieselthier, Esq. Fisher & Phillips LLP Email: swieselthier@fisherphillips.com [GN] MERCK SHARP: Cannot Compel Arbitration in Rotavirus Antitrust Suit ------------------------------------------------------------------ In the case, IN RE ROTAVIRUS VACCINES ANTITRUST LITIGATION, Civil Action No. 18-CV-1734 (Consolidated) (E.D. Pa.), Judge J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania denied Merck's motion to compel each individual Plaintiff to arbitration and to stay these proceedings pending such arbitrations. As averred in the Consolidated Amended Class Action Complaint filed by Sugartown Pediatrics, LLC and Schwartz Pediatrics S.C., the lawsuit challenges Merck's anticompetitive vaccine bundling scheme whereby Merck leverages its monopoly power in multiple pediatric vaccine markets to maintain its monopoly power in the Rotavirus Vaccine Market and, consequently, to charge supracompetitive prices to purchasers of its rotavirus vaccines. In essence, the Plaintiffs allege that as to its RotaTeq Rotavirus vaccine, instead of lowering the price which it was charging when it held 100% of the Rotavirus market, Merck responded to the entry of GlaxoSmithKline's competing vaccine, Rotarix, by adding an exclusionary RotaTeq Bundled Loyalty Condition to its buying contracts, thereby bundling RotaTeq with its other pediatric vaccines. In so doing, they aver that Merck penalized any of its customers who would buy Rotarix from GSK by forcing them to pay substantially higher prices for all of the vaccines in the Merck Bundle, including those for which Merck is the sole seller. The Plaintiffs allege that they suffered anti-trust injury because they, like most physicians, practices and hospitals, purchase the vaccines which they administer to their patients through Physician Buying Groups ("PBGs") and Merck has effectively co-opted the PBGs to impose and enforce its anticompetitive and exclusionary conduct with the result that they and the proposed class members have repeatedly paid artificially inflated prices for rotavirus vaccines since Rotarix entered the market and continuing through the present. By the motion that is now before the Court, Merck seeks to stay the matter and compel the Plaintiffs to submit its claims to arbitration on the basis of arbitration clauses contained within Merck's contracts with the three Physician Buying Groups through which the Plaintiffs purchased their vaccines. The Defendant appears to be arguing that, insofar as the PBGs purportedly signed the Agreements with it on behalf of themselves and their members, the PBGs were therefore acting as the Plaintiffs' agents and/or that the Plaintiffs were therefore the third-party beneficiaries of the Agreements and should be estopped from avoiding the arbitration clauses. The Plaintiffs rejoin that the matter should not be submitted to arbitration because they were not signatories to any agreements directly with Merck and the agreements which they entered into with the Physician Buying Groups of which they were members did not contain any such clauses requiring submission of any of their disputes to arbitration. Judge Joyner finds that although these clauses obviously reflect Merck's desire to impose the terms and conditions of its buying agreements with the PBGs on the individual medical practices/"vaccine clinics" with whom the PBGs have relationships, in and of themselves, however, they do not evince an agency relationship between Plaintiffs and the PBGs. Likewise, they do not demonstrate that the Plaintiffs either consented or had knowledge that, by becoming PBG members, they were giving authority to the PBGs to enter into an agreement with Merck to arbitrate. Furthermore, there is no other evidence to suggest that either a parent-subsidiary, ownership, or any other significant relationship existed between the signatory and the non-signatory parties, nor is there any other evidence that Plaintiffs (acting as principals) said or did anything which might have caused Defendant to believe that they had granted the PBGs the authority to act broadly on their behalves. Given that the burden of proving agency rests upon the party seeking to assert it, without more, the Judge cannot find that the Defendant has established as a matter of law that the PBGs were the agents of the Plaintiffs. He also cannot find that the requisite showing of relatedness or congruence has been made. Although the Plaintiffs are PBG members, there is no evidence that they are closely related in terms of their ownership, administration, mission, business functions or otherwise. The Plaintiffs are private medical practices presumably independently owned and operated by either larger, medical practice groups or some or all of the individual physicians who practice with them. There is absolutely no evidence on the record that they have any relationship whatsoever with Merck or with the PBG(s) to which they belong aside from having entered into contractual agreements for membership in the PBGs. Accordingly, he cannot find that the claims at issue are intimately founded in and intertwined with the underlying obligations of the contract(s) to which the Plaintiffs were not a party. Based upon all of the foregoing, Judge Joyner simply cannot find that sufficient grounds exist to compel the Plaintiffs to arbitrate their anti-trust claims in the case. Accordingly, he denied the Defendant's Motion to Compel Arbitration and Stay Proceedings. A full-text copy of the Court's Jan. 23, 2019 Memorandum and Order is available at https://is.gd/aaoo4o from Leagle.com. SUGARTOWN PEDIATRICS, LLC, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by BART D. COHEN -- bcohen@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, DANIEL J. WALKER -- dwalker@bm.net -- BERGER MONTAGUE PC, ERIC L. CRAMER -- ecramer@bm.net -- BERGER MONTAGUE PC, LINDA P. NUSSBAUM -- lnussbaum@nussbaumpc.com -- NUSSBAUM LAW GROUP PC, BRENT W. LANDAU -- blandau@hausfeld.com -- HAUSFELD LLP, GARY I. SMITH, Jr. -- gsmith@hausfeld.com -- HAUSFELD LLP, MICHAEL J. GAVIN, GAVIN LAW LLC & ZACHARY D. CAPLAN -- zcaplan@bm.net -- BERGER MONTAGUE PC. SCHWARTZ PEDIATRICS S.C., Plaintiff, represented by DANIEL H. SILVERMAN, COHEN MILSTEIN SELLERS & TOLL PLLC, DANIEL A. SMALL, COHEN, MILSTEIN, HAUSFELD AND TOLL, GARY L. AZORSKY, COHEN MILSTEIN SELLERS & TOLL PLLC & ERIC L. CRAMER, BERGER MONTAGUE PC. MARGIOTTI & KROLL PEDIATRICS, P.C., Plaintiff, represented by JOSHUA H. GRABAR -- jgrabar@grabarlaw.com -- Grabar Law Office, MARC H. EDELSON -- medelson@edelson-law.com -- EDELSON & ASSOCIATES, LLC & ERIC L. CRAMER, BERGER MONTAGUE PC. MERCK SHARP & DOHME CORP., Defendant, represented by ASHLEY E. BASS -- abass@cov.com -- COVINGTON & BURLING LLP, ANDREW D. LAZEROW -- alazerow@cov.com -- COVINGTON & BURLING LLP & LISA DYKSTRA -- lisa.dykstra@morganlewis.com -- MORGAN LEWIS & BOCKIUS. MESA LABORATORIES: Orrington Settlement Receives Initial Approval ----------------------------------------------------------------- Mesa Laboratories, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2019, for the quarterly period ended December 31, 2018, that the company has received preliminary court approval of the settlement of a class action lawsuit by Dr. James L. Orrington II in the amount of $3,300. In February 2018, Dr. James L. Orrington II filed a purported civil class action in the United States District Court for the Northern District of Illinois, Eastern Division, alleging that the company sent unsolicited advertisements to telephone facsimile machines. The complaint includes counts alleging violations of the Telephone Consumer Protection Act ("TCPA"), the Illinois Consumer Fraud Act, Conversion, Nuisance, and Trespass to Chattels. The plaintiff seeks monetary damages, injunctive relief, and attorneys' fees. Additionally, in June 2018, Rowan Family Dentistry, Inc. filed a purported class action complaint in the United States District Court for the District of Colorado making substantially the same claims as Dr. James L. Orrington II and seeking substantially the same relief. During the nine months ended December 31, 2018, the company recorded an expense of $3,300 as an estimate of our potential loss associated with the matter. The expense is recorded as estimated legal settlement on its condensed consolidated statements of operations and a corresponding liability is included as estimated legal liability on our condensed consolidated balance sheets. In January 2019, the company received preliminary court approval of a class action settlement with Dr. James L. Orrington II in the amount of $3,300. Mesa Laboratories said, "We will continue to vigorously defend the aforementioned cases and while we believe that the liability recorded as of December 31, 2018 approximates the amount that we will ultimately pay, it is possible that we will be subject to liabilities greater or less than the current amount accrued." Mesa Laboratories, Inc. designs, manufactures, and markets quality control instruments and disposable products. Mesa Laboratories, Inc. was founded in 1982 and is headquartered in Lakewood, Colorado. MICRON TECHNOLOGY: Sued over Misleading Reports, Share Price Drop ----------------------------------------------------------------- KJELL ROJVALL, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, vs. MICRON TECHNOLOGY, INC., SANJAY MEHROTRA, ERNEST E. MADDOCK, and DAVID A. ZINSNER, the Defendants, Case No. 1:19-cv-00990 (S.D.N.Y., Jan. 31, 2019), is a class action on behalf of persons and entities that acquired Micron securities between September 26, 2017 and November 19, 2018, inclusive. Micron purports to sell high-performance memory and storage technologies, including dynamic random access memory. On November 19, 2018, Financial Times reported that Chinese investigators said they had found "'massive evidence' of anti-competitive behavior" by Micron and two other companies. On this news, the Company's share price fell $2.61 per share, nearly 7%, to close at $36.83 per share on November 19, 2018, on unusually heavy trading volume. Throughout the Class Period, the Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company engaged in anti-competitive behavior, including artificially restricting supply growth of DRAM; (2) that these anti-competitive efforts were reasonably likely to lead to regulatory scrutiny; (3) that the Company's anti-competitive efforts artificially boosted its operating metrics; (4) that, as a result, the Company's financial performance, including revenue, was overstated; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. As a result of Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, the lawsuit says. Micron Technology is an American global corporation based in Boise, Idaho. The company is a holding company for subsidiaries engaged in the design and production of computers, semiconductors, and other related products.[BN] Attorneys for Plaintiff: Lesley F. Portnoy, Esq. Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Avenue, Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: lportnoy@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 MONSANTO COMPANY: Alexy Sues over Sale of Herbicide Roundup ----------------------------------------------------------- DWIGHT ALEXY, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00149 (E.D. Mo., Jan. 31, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff says that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings 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 the Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC 9500 Nall Ave. Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MONSANTO COMPANY: Lombard Sues over Sale of Herbicide Roundup ------------------------------------------------------------- JIMMY LOMBARD, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00139 (E.D. Mo., Jan. 30, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: 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 MONSANTO COMPANY: Martin Sues over Sale of Herbicide Roundup ------------------------------------------------------------ WENDELL P. MARTIN, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00133 (E.D. Mo., Jan. 29, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the 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 MONSANTO COMPANY: Martinez Sues over Sale of Herbicide Roundup -------------------------------------------------------------- ALONZO MARTINEZ, the Plaintiff, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00150 (E.D. Mo., Jan. 31, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiff says that Roundup (TM) and/or glyphosate is defective, dangerous to human health, unfit and unsuitable to be marketed and sold in commerce, and lacked proper warnings and directions as to the dangers associated with its use. The Plaintiff's injuries, like those striking thousands of similarly situated victims across the country, were avoidable. The Plaintiff brings 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 the Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: Kirk J. Goza, Esq. GOZA & HONNOLD LLC 9500 Nall Ave. Suite 400 Overland Park, KS 66207 Telephone: (913) 451-3433 Facsimile: (913) 839-0567 E-mail: kgoza@gohonlaw.com MONSANTO COMPANY: Outlaws Sue over Sale of Herbicide Roundup ------------------------------------------------------------ JAMES M. OUTLAW and KAREN OUTLAW, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00128 (E.D. Mo., Jan. 29, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the 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 MONSANTO COMPANY: Peetzs Sue over Sale of Herbicide Roundup ----------------------------------------------------------- CHARLES I. PEETZ and LINDA G. PEETZ, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00129 (E.D. Mo., Jan. 29, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the 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 MONSANTO COMPANY: Scotts Sue over Sale of Herbicide Roundup ----------------------------------------------------------- MARGARET C. SCOTT AND DEL SCOTT, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00131 (E.D. Mo., Jan. 29, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the 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 MONSANTO COMPANY: Smith Sues over Sale of Herbicide Roundup ----------------------------------------------------------- DENNIS W. SMITH, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00138-CAS (E.D. Mo., Jan. 30, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: 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 MONSANTO COMPANY: Susaks Sue over Sale of Herbicide Roundup ----------------------------------------------------------- FRANK SUSAK and JENNIFER SUSAK, the Plaintiffs, v. MONSANTO COMPANY, the Defendant, Case No. 4:19-cv-00140 (E.D. Mo., Jan. 30, 2019), seeks to recover damages suffered by the Plaintiff, as a direct and proximate result of the Defendant's negligent and wrongful conduct in connection with the design, development, manufacture, testing, packaging, promoting, marketing, advertising, distribution, labeling, and/or sale of the herbicide Roundup (TM), containing the active ingredient glyphosate. The Plaintiffs say 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 the Defendant's Roundup products, including, but not limited to, Roundup Concentrate Poison Ivy and Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide, Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN] The Plaintiff is represented by: 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 NANO: Faces 2nd Class Action Over BitGrail Hack ----------------------------------------------- P. H. Madore, writing for CCN, reports that for the second time, Nano's developers and other parties are facing a class action lawsuit. The lawsuit names Francesco Firano, Nano as an entity, BitGrail, and four others in a lawsuit proposed on Jan. 4 in a California federal court. Among the allegations against them are fraud and violations of the Securities Act. The lawsuit alleges the defendants tricked investors. Nano was once worth more than $50 but today is around $1. For Firano's part, he last tweeted about the BitGrail situation back in June 2018: Criminal activity is a good method of justifying a lawsuit. Early on in the complaint, the plaintiffs, who are led by James Fabian, say: "Throughout the Class Period as defined below, Defendants directed the investing public to purchase XRB through BitGrail by providing specific investment instructions and assurances that the cryptocurrency exchange was secure and could be trusted to safeguard investment assets." NANO LAWSUIT: THE SEQUEL Fabian is a litigation secretary in San Francisco. He was also an investor in Nano. Fabian lost $260,000 in the BitGrail hack. According to Law360, the current suit draws heavily on the activities of Nano developers and on a lawsuit that was withdrawn last year. In the other suit, a plaintiff named Alex Brola said he had invested $50,000 into Nano. His investment grew to $237,000 before he lost everything in a breach of BitGrail. According to James Fabian's lawyer David Silver, Nano became liable when they violated securities law and encouraged people to buy and store their Nano on BitGrail. Social media posts by Nano and others plays a prominent role in the complain. You can read the whole complaint below. Silver told Law360: Mr. Fabian suffered damages, and we believe Nano, its core team, BitGrail and the owner of BitGrail are liable. SECURITIES VIOLATIONS CRUCIAL TO NEW SUIT A law firm called Levi & Korsinsky LLP are involved in this case as well. Levi & Korsinsky have conducted other crypto security cases. One such case involves Cloud With Me. Silver points out that the claims made in the previous suit are different from the current one. Primarily using the Securities Act as an underpinning for the claims, a court can understand that the investors had no protection. In short, if the plaintiffs can prove that Nano were acting illegally, their chances of winning the suit are increased. Being a registered or unregistered security is like the difference between hitting someone with and without car insurance. In the latter case, you are 100% liable. In the former, your insurance may absorb some or all of your responsibility. FUNDS SEIZED BY ITALIAN GOVERNMENT STILL IN LIMBO Italian authorities continue to hold the remainder of BitGrail's funds following the hack of more than 80% of its Nano. Nano have said told people they are trying to get it back, but their efforts "have gone nowhere" according to David Silver. CCN conducted an interview with Colin LeMahieu, a lead developer at Nano and one of the defendants, last year. At the time, LeMahieu was confident that Nano development would continue: While the BitGrail situation is extremely unfortunate, it has not impeded the project. We allocated significant resources towards both determining what exactly happened, as well as investigating legal options, but as far as protocol development and overall project milestones are concerned we have continued to move forward. Nano developers were still posting updates as of early December. NANO DEVELOPERS TRY TO "ERASE THE FACT" OF BITGRAIL INVOLVEMENT According to the lawsuit, Nano developers have made efforts to distance themselves from BitGrail. BitGrail once provided a large amount of liquidity for Nano. [T]he Nano Defendants have made every effort they could conceive of to distance themselves from BitGrail and erase the fact that each was substantially involved with BitGrail's operations related to XRB. Indeed, the Nano Defendants have even gone so far as to fund a lawsuit against its former partner-in-crime, the BitGrail Defendants, so as to avoid unwanted attention for their actions. For example, on April 6, 2018, a putative class action (which has since been settled on an individual non-public basis) was filed in the United States District Court for the Southern District of New York. A mere three (3) days later, on April 9, 2018, the Nano Defendants announced that the Company was "sponsoring" a "legal fund" purportedly designed to "provide all victims of the hack of the cryptocurrency exchange BitGrail with equal access to representation" and enable such investors to seek recourse against the exchange. Today, more than 70% Nano's volume takes place on massive exchange Binance. THE RESCUE FORK OPTION The lawsuit talks about a technical solution that Nano developers have so far not pursued: Defendants can rewrite the XRB code and simply restore ownership to Plaintiff and the Class. In crypto terms, Defendants can create a "rescue fork" to protect Plaintiff's and the Class' property rights. Defendants, however, have refused to implement that strategy because it is not in their own best interests. The reason is simple: Defendants still own and control millions if not tens of millions of XRB and do not want to sacrifice any financial advantage they currently hold over the average XRB investor victimized by the XRB disappearance at BitGrail, which Defendants would do by "rescue forking" and returning the stolen digital assets. The previous lawsuit demanded as much. A rescue fork never materialized. INTERNATIONAL INVESTORS NOT REPRESENTED The lawsuit only represents US investors. If it comes out in favor of the plaintiffs, international victims of the same class would have something to base yet another lawsuit on. Its outcome will depend heavily on how the courts view Nano's standing with the SEC and its decision to never become a registered security. Its unknown what level of damages would come out of a decision favorable to plaintiffs. Losses total more than $170 million in the BitGrail hack, but that figure may only play nominally into a decision. As the suit says: Between January 2015 and March 2018, in connection with the offer and sale of XRB, Defendants unlawfully made use of means or instruments of transportation or communication in interstate commerce or of the mails for the purposes of offering, selling, or delivering unregistered securities in direct violation of the Securities Act. UNTOLD DAMAGES SOUGHT The relief sought in the suit is multi-fold. They want their XRB back as well as they want pre-judgement and post-judgement interest and "equitable compensation" for losses incurred. Fabian and his class want the defendants declared liable under the Securities Act, which opens a new can of worms for Nano and other co-defendants. Also: An award of any and all additional damages recoverable under law -- jointly and severally entered against Defendants -- including but not limited to compensatory damages, punitive damages, incidental damages, and consequential damages. Overall, the suit appears directed more at recovering lost money for members of the class. While it mentions that a rescue fork was one solution that Nano developers never pursued, its actual "relief" demands do not include a rescue fork. The entire market capitalization of Nano at time of writing was just under $140 million. The amount lost in the BitGrail hack was more than that. It seems evident that the damages sought could go much higher than these figures combined. [GN] NAVIENT CORP: Johnson Fistel Probes Securities Claims vs 3 Companie ------------------------------------------------------------------- Shareholder Rights Law Firm Johnson Fistel, LLP is investigating potential claims against the following companies: Navient Corporation Synchrony Financial Ebix, Inc. Navient Corporation (NAVI) Shareholder Rights Law Firm Johnson Fistel, LLP is investigating potential violations of federal and state laws by Navient Corporation (NASDAQ:NAVI) and certain of its officers. Navient provides asset management and business processing services to education, health care, and government clients at the federal, state, and local levels in the United States. Several years ago a securities class action complaint was filed alleging that during the Class Period, defendants materially misstated the Company's business metrics and financial prospects. Then in October 2018, a consumer class action lawsuit was filed against Navient for misleading borrowers regarding their loan servicing options in violation of numerous state and federal laws. If you have held Navient shares continuously long-term, you may have standing to hold Naviant harmless from the damage the officers and directors caused by making them personally responsible. You may also be able to assist in reforming the Company's corporate governance to prevent future wrongdoing. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. There is no cost or obligation to you. Synchrony Financial (SYF) Shareholder Rights Law Firm Johnson Fistel, LLP is investigating potential violations of federal and state laws by Synchrony Financial (NYSE:SYF) and certain of its officers. Recently a securities class action lawsuit was filed on behalf of purchasers of the securities of Synchrony from October 21, 2016 through November 1, 2018, (the "Class Period"). According to the lawsuit, Defendants made false and/or misleading statements and/or failed to disclose that Synchrony misrepresented that its consistent and disciplined underwriting practices had led to a higher quality loan portfolio than those of its competitors. In truth, Synchrony had relaxed its underwriting standards and increasingly offered private-label credit cards to riskier borrowers in order to sustain growth, which consequently damaged its relationship with retail partners. On July 26, 2018, news outlets reported that Walmart had chosen a competitor to replace Synchrony. Then, on November 1, 2018, Wal-Mart sued Synchrony, accusing it of improper underwriting in connection with a Wal-Mart/Synchrony credit card program. If you are a long-term shareholder of Synchrony continuously holding shares before February 2017, you may have standing to hold Synchrony harmless from the alleged harm caused by the officers and directors of the Company by making them personally responsible. You may also be able to assist in reforming the Company's corporate governance to prevent future wrongdoing. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. There is no cost or obligation to you. Ebix, Inc. (EBIX) Shareholder Rights Law Firm Johnson Fistel, LLP is investigating potential violations of federal and state laws by Ebix, Inc. (NASDAQ:EBIX) and certain of its officers. On October 5, 2018, Ebix announced that the company had approved the appointment of T R Chadha & Co. LLP as Ebix's independent registered public accounting firm replacing Cherry Bekaert LLP. Following this news, Ebix's share price plummeted more than 19%. Then, in December 2018, Viceroy Research Group published a series of reports, asserting, among other things, that Ebix is "Over the course of our investigation we uncovered evidence of what we believe is a scheme to incorrectly book revenue and earnings." Following these reports, the Company's share price declined further. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. There is no cost or obligation to you. Jim Baker, Esq. Johnson Fistel, LLP Telephone: 619-814-4471 Website: http://www.johnsonfistel.com Email: jimb@johnsonfistel.com [GN] NESTLE INDIA: Says Noodles Does Not Contain Lead Amid Class Suit ---------------------------------------------------------------- Economic Times reports that under the spotlight again, Maggie on Jan. 7 said that its noodles are safe and it does not contain lead. Nestle, the maker of Maggie noodles, in an advertisement (published in the Economic Times) said: "Your Maggie Noodles' safety has been confirmed and reaffirmed many times through rigorous testing by laboratories accredited by NABL (National Accreditation Board for Testing and Calibration Laboratories)." "We do not add lead to Maggi noodles in any form at any stage," Nestle added in the advertisement. In the ad, Nestle said that "lead occurs naturally in the Earth's crust (present in the air, soil, water, grains and other materials)". Nestle said that to ensure food is safe, Food Regulations specify safe-limits for several elements including lead. "Maggi noodles has consistently cleared these tests," Nestle claimed in the ad. The ad campaign came after the Supreme Court instructed the National Consumer Disputes Redressal Commision (NCDRC) to revive a three-years-old class-action suit against Maggi noodle makers, filed by the Centre, for allegedly selling noodles which fell short of the existing food standards. The Centre had filed a class action suit against the company in 2015 in an unprecedented move seeking Rs 640 crore by way of compensation for allegedly selling noodles containing excessive lead and flavour enhancer MSG to consumers. [GN] NESTLE INDIA: Supreme Court to Reopen Maggi Noodles Class Action ---------------------------------------------------------------- Mydigitalfc.com reports that the Supreme Court is to reopen the class action suit against Nestle India in its case of Maggi Noodles. The company has been accused of having excessive lead and flavour enhancer MSG in its products. The case had surfaced in January 2015. The peak of the share price in January 2015 was Rs 7,425, which fell to Rs 4,990 by February 2016. The share peak in December 2018 was Rs 11,700, which has fallen to Rs 10,878 as of Friday, the 4th of January. How long this case would last or come to a logical end is anybody's guess, but there would be price damage for sure. Depending on the outcome, this share is likely to be in focus till the case gets over. [GN] NESTLE USA: Tomasella Sues Over Non-disclosure in Product Packaging ------------------------------------------------------------------- Danell Tomasella, on behalf of herself and all others similarly situated, Plaintiff, v. Nestle USA, Inc., a Delaware corporation, Defendant, Case No. 1:18-cv-1269-ADB (D. Mass., February 4, 2019) is a lawsuit against Defendant alleging violation of Massachusetts General Laws and a claim for unjust enrichment based on Nestle's failure to disclose on its product packaging that its chocolate products likely contain cocoa beans farmed by child and slave labor. Some of the cocoa beans that Nestle sources from West Africa come from Cote d'Ivoire (also known as the Ivory Coast), where children and forced laborers engage in dangerous tasks while harvesting cocoa. Some children become laborers after being sold by their parents to traffickers, while others are kidnapped and then sold into conditions of bonded labor. The children who labor on cocoa farms in Cote d'Ivoire are frequently not paid for their work, forced to work long hours, held against their will on isolated farms, and punished by their employers with physical abuse, says the complaint. Plaintiff purchased Nestle's chocolate products from various retail stores in Plymouth, Massachusetts from 2014 through the present. Nestle is one of the largest and most profitable food manufacturers in the United States.[BN] The Plaintiff is represented by: Elaine Byszewski, Esq. Hagens Berman Sobol Shapiro LLP 301 N. Lake Ave, Suite 920 Pasadena, CA 91101 Phone: 213-330-7150 Email: elaine@hbsslaw.com - and - Steve W. Berman, Esq. Hagens Berman Sobol Shapiro LLP 1301 2nd Ave, Suite 2000 Seattle, WA 98101 Phone: 206-623-7292 Fax: 206-623-0594 Email: steve@hbsslaw.com - and - Hannah W. Brennan, Esq. Hagens Berman Sobol Shapiro LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA 02142 Phone: 617-482-3700 Email: hannahb@hbsslaw.com The Defendants are represented by: Bryan A. Merryman, Esq. White & Case LLP 555 S. Flower Street, Suite 2700 Los Angeles, CA 90071 Phone: 213-620-7700 Email: bmerryman@whitecase.com - and - Julian A. Lamm, Esq. White & Case LLP 555 South Flower Street, Suite 2700 Los Angeles, CA 90071 Phone: 213-620-7700 Email: jlamm@whitecase.com - and - Lauren M. Papenhausen, Esq. White & Case, LLP 24th Floor 75 State Street Boston, MA 02109 Phone: 212-819-7077 Email: lauren.papenhausen@whitecase.com - and - Michael Kendall, Esq. White & Case, LLP 24th Floor 75 State Street Boston, MA 02109 Phone: 617-939-9310 Email: michael.kendall@whitecase.com NEW ERA CAP: Dennis Hits Blind-inaccessible Website --------------------------------------------------- Derrick U Dennis, on behalf of himself and all others similarly situated, Plaintiffs, v. New Era Cap Co., Inc., Defendant, Case No. 1:19-cv-00685 (E.D. N.Y., February 4, 2019) is a civil rights action against Defendant for its failure to design, construct, maintain, and operate its website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people. The Defendant's denial of full and equal access to its website, and therefore denial of its goods and services offered thereby, is a violation of Plaintiff's rights under the Americans with Disabilities Act ("ADA"), says the complaint. Plaintiff seeks a permanent injunction to cause a change in the Defendant's corporate policies, practices, and procedures so that the Defendant's website will become and remain accessible to blind and visually-impaired consumers. Plaintiff is a visually-impaired and legally blind person who requires screen-reading software to read website content using his computer. Defendant is and was at all relevant times a New York Corporation doing business in the United States, including New York.[BN] The Plaintiff is represented by: Jonathan Shalom, Esq. SHALOM LAW, PLLC 124-04 Metropolitan Avenue Kew Gardens, NY 11415 Phone: (718) 971-9474 Facsimile: (718) 865-0943 Email: Jshalom@jonathanshalomlaw.com NPSG GLOBAL: Reese Sues Over Unpaid Hourly, Overtime Wages ---------------------------------------------------------- DeVonte' Reese, on his own behalf and on behalf of all other similarly situated, Plaintiff, v. NPSG Global, LLC, a Foreign Limited-Liability Company, NPSG Construction LLC, a Foreign Limited-Liability Company, Does I-X and Roe Corporations I-X, Defendants, Case No. 2:19-cv-00209 (D. Nev., February 4, 2019) is a collective action under the Fair Labor Standards Act ("FLSA"). The Defendants have engaged in an illegal, willful and malicious policy and practice of failing to properly classify their salaried employees as hourly employees, including Plaintiff and all others similarly situated, and, therefore, failing to pay said employees hourly wages and overtime for all hours worked, says the complaint. Plaintiff started his employment with Defendant in April 2015. NPSG Global delivers e-fulfillment warehouse implementation services, from design consultation to technical integaration, to buildout, to retrofits -- providing facility operators maximum site efficiencies.[BN] The Plaintiff is represented by: Jenny L. Foley, Ph.D., Esq. Marta D. Kurshumova, Esa. HKM EMPLOYMENT ATTORNEYS LLP 1785 East Sahara, Suite 300 Las Vegas, NV 11415 Phone: (702) 625-3893 Facsimile: (703) 625-3893 Email: jfoley@hkm.com mkurshumova@hkm.com OKLAHOMA: National Experts Release Foster Care Reform Report ------------------------------------------------------------ Corey Jones, writing for Tulsa World, reports that transitioning the Laura Dester Children's Center from a shelter to a treatment facility has garnered the spotlight, but the state also is grappling with improving the quality and array of foster care while screening out unsafe homes, according to a report. An oversight panel expressed concern about a "significant number" of foster home approvals despite prior cases of confirmed child maltreatment. It lamented that the state's pool of therapeutic foster homes has shrunk throughout most of the reform period, calling for a "long overdue" plan that is more focused and robust. "The department has been unable to increase the safety of children placed in foster homes during the course of this reform effort," the panel wrote. "DHS' highest priority during the next period must be child safety, and specifically strengthening practice in the field to monitor and assess the safety of children placed in foster homes." In response to child maltreatment concerns, the Oklahoma Department of Human Services conducted a comprehensive review of 4,000 foster homes toward the end of 2017 that resulted in some closures and child placement moves. The agency also said it has since installed additional layers of protection and checks and balances to identify and address indicators that a foster child may be unsafe. Regarding the declining number of therapeutic foster homes, the agency touts a focus on the quality -- not an expansion -- of the program for children with behavioral issues. Three national experts released another six-month progress report on how DHS is reforming its child-welfare system in accordance with a class-action lawsuit settlement struck in 2012. Dubbed as "co-neutrals," the experts applauded the state for "marked improvement" recently in its care of foster children. This report followed the release of an unflattering update over the summer. Four of the five areas considered to lack good-faith efforts in the latest report centered on child maltreatment and numbers of therapeutic foster homes. Child maltreatment The co-neutrals reported that reviews of foster homes with confirmed maltreatment cases consistently found extensive histories of maltreatment allegations that were screened out, ruled out or unsubstantiated by DHS. The case histories often presented a documented pattern of safety risks to children that were either overlooked or not fully considered. The co-neutrals found the quality and depth of reviews of allegations to be a challenge. Tricia Howell, DHS' deputy director of foster care and adoptions, said the comprehensive review of every open resource foster home -- 4,000 -- ended in December 2017. Since then, the agency has developed a quality assurance team for foster care and adoption. It also has begun conducting random reviews of foster kinship and adoption homes, which Ms. Howell said are the areas officials felt needed to be "shored up" in the approval process. In kinship homes -- in which relatives take in children who would otherwise be placed with strangers in foster care -- any history involving domestic violence, substance abuse or sexual allegations now are reviewed at a higher level of management, she said. Resource workers previously contacted families at least quarterly to update cases, identify concerns or add supports to keep children safe. Now they meet in person with the family at least quarterly and talk on the phone at least monthly, Ms. Howell said. The agency also developed an alert system for injuries to notify all caseworkers assigned to a home or child. The alert system makes it easier to identify patterns that may cause concern. "We have a better handle on the day-to-day activities of the family and what their stress level is," Ms. Howell said. Therapeutic foster homes The co-neutrals report that the state has been unable to increase the number of therapeutic foster homes and the quality of care provided to children with behavioral needs in those placements. The report acknowledges that budget and staff cuts over the past several years have adversely affected the Developmental Disabilities Services program and its ability to recruit more therapeutic homes. However, DHS spokeswoman Sheree Powell emphasized that therapeutic foster homes are just one treatment service and aren't needed by most of the state's children. Powell said the child-welfare system has matured during the reform period and is developing continuum of care options for children with a variety of needs. She said DHS isn't receiving credit for transitioning the Laura Dester facility to a treatment option for foster children with co-occurring intellectual disabilities and severe behavioral challenges. "We're looking at this from an entire system standpoint and only being measured on the number of therapeutic foster care homes," Ms. Powell said. A DHS assessment two years ago found that therapeutic home families often lacked the skills and abilities to meet the higher level behavioral health needs of children. The agency introduced an enhanced training module six months ago that focuses on foster families managing behavior on a day-to-day basis because of the past trauma experienced by the children. Millie Carpenter, interim child welfare director, said the agency is developing a Medicaid waiver program for children with intellectual disabilities to treat them in home or a small residential setting. Each child would have an individual plan, which may include a psychologist, psychiatrist, therapy or behavioral supports. Carpenter said the ultimate goal is to achieve enough wraparound service success for the child to either stay in or return home to benefit further from family support. "We do find that families become fatigued, and there, quite frankly, isn't the level of support in the state that we would desire for children with intellectual disabilities," Ms. Carpenter said. [GN] ONTARIO: Court Certifies Class Action Over Youth Segregation ------------------------------------------------------------ On Dec. 17, 2018, Mr. Justice Perell certified a class action against the government of Ontario on behalf of all persons who, while under the age of 18, were placed in Youth Segregation at Youth Justice Facilities that were directly operated by the Ministry of Children and Youth Services between Apr. 1, 2004 and Dec. 17, 2018, including: -- Bluewater Youth Centre, -- Brookside Youth Centre; -- Cecil Facer Youth Centre; -- Donald Doucet Youth Centre; -- Invictus Youth Centre; -- Justice Ronald Lester Youth Centre; -- Roy McMurtry Youth Centre; -- Sprucedale Youth Centre; -- Toronto Youth Assessment Centre "Youth Segregation" refers to the segregation at one of the above Youth Justice Facilities of a person under the age of 18 alone in a designated room or area for more than 6 consecutive hours without any meaningful human contact. It does not include segregation by reasons of a lock-down at a Youth Justice Facility and the routine locking of youth in their rooms overnight at Youth Justice Facilities, as authorized by statute. The claim alleges, among other things, that Ontario has been negligent, breached its fiduciary duties, and violated sections 7, 9 and 12 of the Canadian Charter of Rights and Freedoms, by subjecting inmates to Youth Segregation at the above Youth Justice Facilities. C.S. has been appointed as the lead representative plaintiff in the action. While C.S. was under the age of 18, C.S. was incarcerated at Roy McMurtry Youth Centre and Brookside Youth Centre. C.S. claims that he was placed in Youth Segregation on multiple occasions during his incarceration. Kirk M Baert, Esq. -- kmbaert@kmlaw.ca -- lead counsel at KoskieMinsky LLP, stated: "The class members are all young people who are subject to segregation for extended periods of time. This practice is shocking and unacceptable. We will continue to push the case forward seeking justice for all class members." The allegations have not been proven in court. Now that a class action has been given the approval to go ahead by the Court, the next step will be for the parties to litigate the case on its merits. KoskieMinsky LLP and StrosbergSassoSutts LLP have been appointed as class counsel.[GN] PALM BEACH, FL: School Board May Drug Test Substitute Teachers -------------------------------------------------------------- Kathryn J. Russo, Esq. -- Kathryn.Russo@jacksonlewis.com -- of Jackson Lewis P.C., in an article for The National Law Review, reports that a federal appeals court has held that a public school district may drug test applicants for substitute teacher positions, concluding that such testing does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. Friedenberg v. School Bd. Of Palm Beach County, 9:17-cv-80221-RLR (11th Cir. Dec. 20, 2018). Joan Friedenberg applied for a position as a substitute teacher in the Palm Beach County School District. Among other things, the School District required her to take and pass a pre-employment drug test. She refused to do so. Friedenberg subsequently sued the School Board in federal court, claiming that the suspicionless drug testing of applicants violated the Fourth Amendment. She sought class action relief, describing the putative class as including "all job applicants for non-safety-sensitive positions with the Palm Beach County School District." She sought declaratory and injunctive relief. The district court denied injunctive relief, noting that the School Board had established a "special need" to conduct drug testing of substitute teacher applicants because even "a momentary lapse of attention . . . could be the difference between life and death," and that the balance of the interests weighed in the School Board's favor. Ms. Friedenberg appealed. In reviewing whether injunctive relief was appropriate, the Court first analyzed whether there was a substantial likelihood of success on the merits, i.e., whether the drug testing constituted an unreasonable search and seizure in violation of the Fourth Amendment. Given that the drug test was conducted without individualized suspicion, the School Board was required to demonstrate a "special need" to conduct the drug testing. The Court agreed with the School Board that a "special need" existed, given that the School Board has a "compelling interest in ensuring that teachers -- including substitutes -- are not habitual drug users." Among other things, the Court focused on the safety-sensitive aspects of the substitute teacher's job, including: being alone with students; monitoring students for safety purposes such as preventing or stopping fights; reporting and addressing hazards or other unsafe circumstances; detecting and promptly responding to student health issues; detecting and reporting student drug use or possession; and reporting suspected child abuse. Once the "special need" was established, the Court then weighed the competing private and governmental interests implicated by the search. Noting that public school teachers "enter a heavily regulated field with diminished privacy expectations," the Court examined the testing protocol adopted by the School District and the efficacy of the testing regime. The drug testing was performed in accordance with the requirements of the Florida Administrative Code, Fla. Admin. Code R. 59A-24.005(3), and pursuant to the School District's written policy. The Court concluded that the urine drug testing regime was "minimally intrusive" and that the School District had a "compelling interest" in weeding out applicants who abuse drugs "in order to better achieve the basic safety and tutelary obligations of our schools." In sum, the Court held: "[a]s we see it, ensuring the safety of millions of schoolchildren in the mandatory supervision and care of the state, and ensuring and impressing a drug-free environment in our classrooms, are compelling concerns. Because we recognize today a special need to conduct such testing, and because the balance of interests weighs heavily in its favor, we hold that the suspicionless testing of substitute teacher applicants in Palm Beach County is permissible. . . ." [GN] PARBALL NEWCO: Settlement in Slack FLSA Suit Has Final Approval --------------------------------------------------------------- In the case, WILLIAM SLACK, HARRY STROCK, and EDWARD CHAMPA Individually and on behalf of others similarly situated, Plaintiffs, v. PARBALL NEWCO LLC dba BALLY'S, PARBALL CORP., PARBALL LLC, PHWLV, LLC dba PLANET HOLLYWOOD LAS VEGAS RESORT AND CASINO, and "JOHN DOE CORPORATIONS" 1 to 50, name fictitious, actual name and number unknown, Defendants, Case No. 2:16-cv-02324-JAD-CWH (D. Nev.), Judge Jennifer A. Dorsey of the U.S. District Court for the District of Nevada granted (i) the parties' Joint Motion for an Order Granting Final Approval to Class Action Settlement, and (ii) the Plaintiffs' Counsel's Unopposed Motion for Order Granting Proposed Award of Attorneys' Fees and Costs and Approval of Plaintiff Service Awards. On Jan. 25, 2019, the Court heard the motions. Pursuant to the FLSA, Judge Dorsey granted final approval of the settlement. She confirmed the appointment of Leon Greenberg and Dana Sniegocki of Leon Greenberg Professional Corp. as the class counsel for the settlement class, and approved their requests for attorneys' fees of $32,000 and an expenses payment of $2,000 from the Settlement Fund for their services on behalf of the Plaintiffs and the Class. She also confirmed the appointment of William Slack, Harry Strock, and Edward Champa as the Class Representatives and approves, and directed the payment of $1,000 to each of them, to be paid from the Settlement Fund, as the Class Representative Service Awards for prosecuting the case successfully and securing the recovery for the Class and such awards will be so paid as set forth in the Stipulation. The Judge further approved the payment of $700 each to Paul Trovato, Josianne Mills, and Andrew Craig, who provided deposition testimony during the discovery process and whose testimony aided and assisted the Class Counsel in successfully securing the Settlement for the Class. Upon entry of the Order, the case will have resulted in a Final Judgment in respect to all claims and all parties and the Complaint will be dismissed with prejudice. A full-text copy of the Court's Jan. 25, 2019 Order is available at https://is.gd/KI75es from Leagle.com. William Slack & Harry Strock, Plaintiffs, represented by Dana Sniegocki -- dana@overtimelaw.com -- Leon Greenberg & Leon Marc Greenberg -- leongreenberg@overtimelaw.com -- Leon Greenberg Professional Corporation. Michael Sugarman, Vicky Woodruff, Gurminder Singh, Andrew Craig, Edward Champa, Tony Exposito, Shawn Kelley, Milton Turner, Scott Kleven, Lourdes Fear, Hani Toutounji, Michael Willoughby, Steve Logsdon, Chris Reynolds, Linda Cross, Louis Darrin, Richard Balint, John A Bigando, Maria Cecilia Bouffard, Nicholas Brancato, Mark Brasi, Elena Brewer, Cathryn Cai, Chuck Camtan, Wei G Chen, Man Chen, Donny Cheng, Sovannah Chheng, Brian Corcoran, Travis Cottrill, Paul Cournoyer, Tina Felps, Richard Fitzpatrick, Debra Flugstad, Corrie Foley, Vincent Fonner, Arlene Frances, Karl Francis, Maynor Gonzalez, Xenia Guam, Lorraine Horton, Virginia Hyatt, Sevan Kassabian, Crystal Labbe, Larry Lemberg, Wai C Leung, Daniel Liberatore, Cristina Marker, Shelli Martinez, Joe Martinez, Craig Massimino, Sam Mathavorn, Lynn Mills, Josiane Mills, Gerardo Navarro, Russell Nelson, Mark Neyman, Anh Kim Nguyen, LaRon O'Neal, James Owens, Terry Potts, Jim Rafferty, Chris Reyolds, Bob Richey, Stephanie Robuza, Connie Rohn, Javier Ruiz, Jr., Joseph Russo, Joel Sanchez, Dawn Sapien, Sherman Shea, Michael Su, Carol Sukert, Tan Weiling, Alin Tanasecu, Paul J Trovato, Andy Phan Truong, Job Weiss, Gerri Young-Barnes, Xiao Zhang, Kenneth Gersh & Judy Steward, Plaintiffs, represented by Leon Marc Greenberg, Leon Greenberg Professional Corporation. Parball Newco LLC, doing business as Bally's & PHWLV, LLC, doing business as Planet Hollywood Las Vegas Resort and Casino, Defendants, represented by Allison Somers Papadopoulos -- apapadopoulos@akingump.com -- Akin Gump Strauss Hauer & Feld LLP, Daniel L. Nash -- dnash@akingump.com -- Akin Gump Strauss Hauer & Feld, Elayna J. Youchah -- Elayna.Youchah@jacksonlewis.com -- Jackson Lewis P.C & Nathan Joshua Oleson -- noleson@akingump.com -- Akin Gump Strauss Hauer & Feld. Parball Corp. & Parball LLC, Defendants, represented by Allison Somers Papadopoulos, Akin Gump Strauss Hauer & Feld LLP & Elayna J. Youchah, Jackson Lewis P.C. PARKWOOD ENTERTAINMENT: Blind Woman Files Discrimination Case ------------------------------------------------------------- Mark Osborne, writing for ABC News, reports that a blind woman has filed a class action lawsuit against Beyonce Knowles' Parkwood Entertainment LLC, claiming the singer's website discriminates against those who are visually impaired. Mary Conner, who is legally blind, filed the lawsuit in U.S. District Court for the Southern District of New York -- where both Beyonce's entertainment company is located and Conner lives -- on Feb. 3. The website does not allow blind fans to buy tickets, get tour updates, buy merchandise or learn more about the pop superstar, according to the lawsuit. "Plaintiff brings this civil rights action against Parkwood for their failure to design, construct, maintain, and operate their website to be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired persons," according to the lawsuit. "Defendant are denying blind and visually-impaired persons throughout the United States with equal access to the goods and services Parkwood provides to their non-disabled customers through http//:www.Beyonce.com." The suit cites the Americans with Disabilities Act, signed by George H.W. Bush in 1990, and New York state law, which "requires places of public accommodation to ensure access to goods, services, and facilities by making reasonable accommodations for persons with disabilities." Ms. Conner, on behalf of the class, is asking for an injunction against the website for violating the ADA and in order to take the necessary steps to make the singer's site accessible to the blind. The suit also asks for a payout of "compensatory damages in an amount to be determined by proof, including all applicable statutory damages and fines." Ms. Conner is represented by Dan Shaked of the Shaked Law Group in Brooklyn. ABC News reached out to Beyonce's representatives for comment on Feb. 4, but have not heard back. ABC News' Andrea Dresdale contributed to this report. [GN] PEPSICO INC: Removed Riddle Case to Middle District of Florida -------------------------------------------------------------- Pepsico, Inc. removed the case captioned KEVIN AND VALERIE RIDDLE, individually and on behalf of all others similarly situated, the Plaintiffs, vs. PEPSICO, INC., the Defendant, Case No. 2019-CA-000296 (Filed Jan. 9, 2019) from the State Court of Hillsborough County, Florida, to the U.S. District Court for the Middle District of Florida on Jan. 30, 2019. The Middle District of Florida Court Clerk assigned Case No.: 8:19-cv-00250-SDM-TGW to the proceeding. The Plaintiffs allege that Pepsico violated the Consolidated Omnibus Budget Reconciliation Act of 1985 and the Employee Retirement Income Security Act of 1974 because it failed to provide its health plan participants and beneficiaries with legally sufficient required notices of their right to continued health care coverage under COBRA and ERISA.[BN] Attorney for Plaintiff: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, P.A. 1110 North Florida Ave., Suite 300 Tampa, FL 33602 Attorney for Defendant: Alex S. Drummond, Esq. SEYFARTH SHAW LLP adrummond@seyfarth.com 1075 Peachtree Street, N.E., Suite 2500 Atlanta, GA 30309-3958 Telephone: (404) 885-1500 Facsimile: (404) 892-7056 PRIMESOURCE HEALTH: Pfefferkorn Suit Has Conditional Certification ------------------------------------------------------------------ In the class action lawsuit captioned Erin Pfefferkorn, et al., the Plaintiff, vs. PrimeSource Health Group LLC, et al., the Defendant, Case No. 1:17-cv-01223 (N.D. Ill., Jan. 29, 2019), the Hon. Judge John Robert Blakey entered an order granting Plaintiffs' motion for conditional certification. According to the docket entry made by the Clerk on Jan. 29, 2019, the Court grants Plaintiffs' motion for conditional certification. The Court also grants Plaintiffs' request to equitably toll the statute of limitations as of June 29, 2017, for all Plaintiffs who joined this case after that date and for all opt−in plaintiffs who have yet to join. Before the parties issue notice, the Defendants shall produce to Plaintiffs two lists (in Microsoft Excel format) of all persons employed by PrimeSource (1) as Clinical Assistants, and (2) as Patient Assistants, from June 29, 2014 through present. The lists should contain each persons name, address, email address, and dates of employment. The lists should be produced to Plaintiffs within 7 days of this order. The parties are directed to meet and confer regarding revised notices that accord with this Courts rulings. The parties should file the revised notices within 7 days of this order. The parties are also directed to meet and confer about case management dates. The parties should file a joint status report with a proposed case schedule to include deadlines for the close of discovery, dispositive motions, and motions for decertification of the collective action within 7 days of this order. The status hearing set for Jan. 31, 2019 is stricken and reset to Feb. 19, 2019 at 9:45 a.m. in Courtroom 1203.[CC] RASH CURTIS: Court Denies Bid for Sanctions in McMillion TCPA Suit ------------------------------------------------------------------ In the case, SANDRA McMILLION, ET AL., Plaintiffs, v. RASH CURTIS & ASSOCIATES, Defendant, Case No. 16-cv-03396-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied the Plaintiffs' motion for terminating sanctions. Plaintiffs McMillion, Jessica Adekoya, and Ignacio Perez bring the class action against Rash Curtis, alleging that the Defendant called the Plaintiffs and the class members without consent. On Sept. 6, 2017, the Court certified four classes with Perez as the class representative, both for injunctive relief pursuant to Rule 23(b)(2) and damages pursuant to Rule 23(b)(3).2 On Feb. 2, 2018, the Court ruled on parties cross-motions for summary judgment. In that order, it granted the Plaintiffs' motion for partial summary judgment regarding the dialer systems defendant used to make the alleged phone calls and held that those dialers constitute Automatic Telephone Dialing Systems within the meaning of the TCPA. It also granted the Plaintiffs' motion for partial summary judgment on the issue of prior express consent regarding Perez and held that Rash Curtis never possessed prior express consent to call Perez. On June 18, 2018, the Court denied Rash Curtis's motion to reconsider that summary judgment order. On Aug. 10, 2018, the Plaintiffs filed the instant motion for terminating sanctions based upon the allegation that Nick Keith, Robert Keith, and Dan Correa, through their testimony regarding calls placed to phone numbers found in fields 5 through 10, committed coordinated perjury on the most central issue in the case. The Plaintiffs filed their motion along with the testimony of Colin B. Weir, which contained his statistical analysis of the call logs produced by Rash Curtis6 that the Plaintiffs claim reflect over 14 million "matches" between phone calls made by Rash Curtis and phone numbers listed in phone fields 5 through 10 of the Defendant's account database. The Defendant's account database supports storage of up to 10 telephone number fields for each account. Phone fields 1 through 4 are reserved for phone numbers that the Defendant purportedly receives from its creditor-clients, whereas phone numbers obtained via skip tracing are loaded into phone fields 5 through 10, a policy which it instituted sometime in 2013. The Defendant's collection managers chose which telephone number fields, and therefore which numbers contained therein, are loaded into the Dialers according to criteria set for any given call campaign. Defendant opposes the instant motion for sanctions on the grounds that Weir's methodology is flawed because he did not disqualify from what was considered a `match' calls that were placed to phone numbers not only stored in fields 5 to 10 but also stored in phone fields 1 to 4, or calls placed where Rash Curtis separately got the number not from skip tracing or otherwise obtained the prior express consent of the called party. However, at the time of their opposition, the Defendant had not produced, in full, the phone data held in fields 1 through 4. A discovery dispute ensued in which the Plaintiffs averred that they had no reason to suspect that there were any potential matches between phone numbers in phone fields 5 through 10 and phone fields 1 through 4 and did not raise the issue when the account storage data was originally produced because they had assumed that the data for phone fields 1 through 4 was either non-existent or irrelevant. The Defendant countered that the Plaintiffs' counsel never requested the data in fields 1 through 4 and had confirmed to the Court on several occasions that plaintiffs were only requesting fields 5 through 10, as well as the associated account number and debtor name. On Sept. 27, 2018, after hearing oral argument, Magistrate Judge Jaqueline Scott Corley found that to allow the Defendant to withhold documents central to its defense under these circumstances would be contrary to the purpose of the Federal Rules of Civil Procedure to secure the just determination of every action and proceeding, and ordered the records produced at the Plaintiffs' expense. On Oct. 11, 2018, the Defendant moved for relief from Judge Corley's non-dispositive pretrial order. The Plaintiffs did not file any response or opposition thereto. The parties subsequently filed several discovery letter briefs, two from the Defendant on Oct. 3, 2018 and Oct. 10, 2018 and one from the Plaintiffs on Oct. 11, 2018, regarding a dispute among the parties as to precisely what the Defendant needed to produce in light of Judge Corley's Sept. 27, 2018 order. Specifically, the dispute concerned whether the Defendant needed to produce "historical" records of account files as they existed in November 2017 or the Defendant's account records for all previously produced accounts as they are kept today. Despite the dispute, the Defendant agreed to produce both sets of records and completed its production on Oct. 19, 2018. On Nov. 6, 2018, pthe Plaintiffs filed a motion for leave to enter into the record in support of their motion for sanctions a supplemental declaration from Weir regarding his analysis of the newly produced data. Judge Rogers finds that the Plaintiffs focus primarily on terminating sanctions. Such sanctions violate due process when imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case. The Defendant has not attempted to "use" the allegedly false statements during summary judgement, or at any other juncture. Accordingly, she says the Plaintiffs have failed to show how the allegedly false statements could have interfered with the disposition of the case. Although she does not agree with the Plaintiffs that the issue of whether the Defendant called numbers in phone fields 5 through 10 is the only issue left to be proved at trial, the Judge finds that it is certainly central to determining whether Rash Curtis violated the TCPA as to a member of the class by autodialing a cellular phone number which it obtained via skip tracing and did not either separately acquire via another method or receive prior express consent of the called party. Accordingly, although there is a nexus between the alleged misconduct and the matters in controversy for the reasons stated, she finds that the Plaintiffs have not established that the alleged misstatements constituted an extraordinary circumstance resulting from willfulness, bad faith, or fault, which could not be addressed by lesser sanctions, as required to support terminating sanctions. Therefore, to impose terminating sanctions would constitute an unnecessary and drastic substitute for the adversary process of litigation. For the foregoing reasons, Judge Rogers denied the Plaintiffs' motion for sanctions. The Order terminates Docket Numbers 211, 212, 241, and 247. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/gQdMHT from Leagle.com. Sandra McMillion, Plaintiff, represented by Yeremey O. Krivoshey -- ykrivoshey@bursor.com -- Bursor Fisher, P.A. & Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor & Fisher, P.A. Jessica Adekoya & Ignacio Perez, on Behalf of Themselves and all Others Similarly Situated, Plaintiffs, represented by Yeremey O. Krivoshey, Bursor Fisher, P.A., Blair E. Reed, Bursor and Fisher, P.A., L. Timothy Fisher, Bursor & Fisher P.A. & Lawrence Timothy Fisher, Bursor & Fisher, P.A. Rash Curtis & Associates, Defendant, represented by Andrew M. Steinheimer, Ellis Law Group, LLP, Anthony Paul John Valenti -- AValenti@EllisLawGrp.com -- Ellis Law Group, LLP & Mark Ewell Ellis -- mellis@ellislawgrp.com -- Ellis Law Group, LLP. Kourtney Richardson, Movant, represented by Yeremey O. Krivoshey, Bursor Fisher, P.A. RCR TOMLINSON: EGL to Acquire Energy Assets Amid Class Action ------------------------------------------------------------- Rachel Williamson, writing for Stockhead, reports that the Environmental Group is picking up gear in the RCR Tomlinson fire sale, following the latter's descent into voluntary administration in November last year. The smaller company (ASX:EGL), which runs a gas turbine engineering company, and water and air pollution divisions, is buying RCR's (ASX:RCR) energy assets. Those assets include the original Tomlinson Boilers arm, which handles maintenance and installation of renewable- and conventionally-fired generators and water heaters. RCR went into voluntary administration last year after the weight of cost blowouts at its solar projects became too heavy for the troubled company to carry any longer. It came two days after a class action was launched by shareholders angry about a "catastrophic decline in their share value". The Environmental Group expects to have the assets in hand, and will pay for it out of existing debt. RCR's energy services made sales of $21.5m in fiscal 2018 and earnings before tax and interest of $1.5m. The Environmental Group made sales of $32m in the same period and profit of $1.5m, down 9 per cent on the year before. "The acquisition is part of EGL's strategy to establish a footprint in each Australian state and build an environmental business to improve air quality, reduce carbon emissions, enhance waste to energy production and lift water quality," the company said. "RCR Energy Service is an essential link in our strategy to build a bio/waste-to-energy platform as part of the technology acquired enables a combination of gasses and waste energy sources to be used to produce electrical power or steam." The company has been contacted for comment. The Environmental Group shares opened flat at 3.5c on Jan. 7 morning. [GN] SEMPRA ENERGY: Plumley Appeals S.D. Cal. Ruling to Ninth Circuit ---------------------------------------------------------------- Plaintiffs Richard Berkowitz, Stephen Graham and Craig M. Plumley filed an appeal from a court ruling in their lawsuit titled Craig Plumley, et al. v. Sempra Energy, et al., Case No. 3:16-cv-00512-BEN-AGS, in the U.S. District Court for the Southern District of California, San Diego. The appellate case is captioned as Craig Plumley, et al. v. Sempra Energy, et al., Case No. 19-55121, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, Sempra Energy is a publicly traded energy-services holding company whose operating units invest in, develop, and operate energy infrastructure, and provide gas and electricity services to customers in North and South America. Southern California Gas Company (SCG) is one of Sempra's operating units. SCG is a natural gas distribution utility and operates over 20,000 square miles throughout Central and Southern California. SCG's operation includes the storage of natural gas. It owns four natural gas storage facilities, the largest located at the Aliso Canyon, which contains approximately 115 underground wells. One of its well, the SS-25 had a gas leak. Sempra/SCG discovered the Aliso Canyon gas leak at the SS-25 well on or about October 23, 2015, when residents in the nearby Porter Ranch neighborhood reported what they believed to be a home with a major gas leak. Sempra/SCG did not immediately report the gas leak to the appropriate government agencies, but instead, SCG went door-to-door reassuring residents that all was under control and that no danger existed. Three days later, on October 26, 2015, Sempra/SCG reported the gas leak to the appropriate authorities. The gas leak persisted for months. On December 4, 2015, Sempra/SCG began constructing a relief well. On January 6, 2016, Governor Brown declared or made a proclamation of a state of emergency regarding the gas leak. The proclamation directed additional immediate actions to respond to the leak, and ordered a comprehensive independent review of the safety of the storage wells and the air quality of the surrounding community. The proclamation also charged SCG with payment of the costs related to the gas leak, as well as the funding of a program to mitigate the emissions. Sempra/SCG sealed the gas leak on February 18, 2016. Sempra and SCG have been jointly or separately named as defendants in at least 138 lawsuits related to the gas leak, including this lawsuit. The first amended complaint claims violations of Section 10(b) and 20(a) of the Exchange Act of 1934 and Securities and Exchange Commission (SEC) Rule 10b-5. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by February 27, 2019; -- Transcript is due on March 29, 2019; -- Appellants Richard Berkowitz, Stephen Graham and Craig M. Plumley's opening brief is due on May 8, 2019; -- Appellees Dennis V. Arriola, Debra L. Reed, Sempra Energy and Southern California Gas Company's answering brief is due on June 7, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants CRAIG M. PLUMLEY, STEPHEN GRAHAM and RICHARD BERKOWITZ, Individually and On Behalf of All Others Similarly Situated, are represented by: Adam M. Apton, Esq. Adam McCall, Esq. Nicholas I. Porritt, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 E-mail: AApton@zlk.com amccall@zlk.com nporritt@zlk.com - and - Jeremy Alan Lieberman, Esq. Jennifer Banner Sobers, Esq. Matthew L. Tuccillo, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 E-mail: jalieberman@pomlaw.com jbsobers@pomlaw.com mltuccillo@pomlaw.com Defendants-Appellees SEMPRA ENERGY and SOUTHERN CALIFORNIA GAS COMPANY are represented by: Robert Elliott Gooding, Jr., Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 E-mail: robert.gooding@morganlewis.com Defendant-Appellee DEBRA L. REED is represented by: Jack P. DiCanio, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 525 University Avenue Palo Alto, CA 94301 Telephone: (650) 470-4500 E-mail: jack.dicanio@skadden.com - and - Allen Louis Lanstra, Jr., Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 687-5513 E-mail: allen.lanstra@skadden.com Defendant-Appellee DENNIS V. ARRIOLA is represented by: Matthew W. Close, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6000 E-mail: mclose@omm.com SOGOU INC: Johnson Fistel Files Securities Class Actions vs 3 Cos ----------------------------------------------------------------- Johnson Fistel, LLP disclosed that class actions have commenced on behalf of shareholders of the following companies: Sogou Inc. Immunomedics, Inc. Ternium S.A. Sogou Inc. (SOGO) Shareholder Rights Law Firm Johnson Fistel, LLP announces that a class action lawsuit has commenced on behalf of persons or entities who purchased or otherwise acquired securities of Sogou Inc. (NYSE: SOGO) pursuant and/or traceable to Sogou's November 9, 2017 Initial Public Offering ("IPO"). The lawsuit seeks to recover damages for Sogou investors under the federal securities laws. According to the lawsuit, the Registration Statement and Prospectus issued in connection with Sogou's IPO was materially false and misleading and failed to disclose that: (1) Chinese regulators were analyzing Sogou for regulatory action for various reasons, including an increase in counterfeit goods sold by Sogou merchants, and Sogou's existing software and procedures were insufficient to safeguard against compliance violations; (2) Sogou's cost of revenues were skyrocketing primarily due to significant increases in Traffic Acquisition Cost, a primary driver of Sogou's cost of revenues; (3) Sogou was going to alter its strategy concerning smart hardware and push its artificial intelligence ("AI") capabilities to increase product competitiveness; (4) as a result of altering its smart hardware strategy, Sogou decided to phase out non-AI-enabled hardware products, such as legacy models of Teemo Smart Watch, and transition to use products integrating AI technologies, which Sogou hoped would reduce its hardware revenues in the second half of 2018; and (5) as a result, Sogou's public statements were materially false and misleading at all relevant times. Shareholders have until March 11, 2019, to seek appointment as a lead plaintiff. There is no cost or obligation to you. Your ability to share in any future recovery is not dependent upon serving as a lead plaintiff. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. There is no cost or obligation to you. Immunomedics, Inc. (IMNU) Shareholder Rights Law Firm Johnson Fistel, LLP announces that a class action lawsuit has commenced on behalf of persons or entities who purchased or otherwise acquired securities of Immunomedics, Inc. (NASDAQ: IMMU) from August 23, 2018 through December 20, 2018, inclusive (the "Class Period"). According to the lawsuit, defendants throughout the Class Period made false and misleading statements and failed to disclose that the FDA cited Immunomedics in August 2018 for a host of violations observed at its Morris Plains, NJ facility. According to the complaint, these violations included the manipulation of bioburden samples, misrepresentation of an integrity test procedure in the batch record, and the backdating of batch records. Shareholders have until February 25, 2019, to seek appointment as a lead plaintiff. There is no cost or obligation to you. Your ability to share in any future recovery is not dependent upon serving as a lead plaintiff. If you are a long-term shareholder of Immunomedics continuously holding shares before August 23, 2018, you may have standing to hold Immunomedics harmless from the alleged harm caused by the officers and directors of the Company by making them personally responsible. You may also be able to assist in reforming the Company's corporate governance to prevent future wrongdoing. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number.There is no cost or obligation to you. Ternium S.A. Shareholder Rights Law Firm Johnson Fistel, LLP announces that a class action lawsuit has commenced on behalf of persons or entities who purchased or otherwise acquired securities of Ternium S.A. (NYSE: TX) from May 1, 2014 through November 27, 2018, inclusive (the "Class Period"). According to the lawsuit, Defendants made false and misleading statements and failed to disclose that: (1) Defendant Rocca, Ternium's Chairman, knew that one of his company's executives paid cash to government officials from 2009 to 2012 to expedite compensation payments for the sale of Ternium'sSidor unit; (2) this conduct would lead Rocca to be charged in a graft scheme and subject Ternium, its affiliates, and/or its executives to heightened governmental scrutiny; and (3) as a result, Ternium's public statements were materially false and/or misleading at all relevant times. Shareholders have until January 28, 2019, to seek appointment as a lead plaintiff. There is no cost or obligation to you. Your ability to share in any future recovery is not dependent upon serving as a lead plaintiff. If you are interested in learning more about your legal rights and remedies, please contact Jim Baker (jimb@johnsonfistel.com) at 619-814-4471. If you email, please include your phone number. There is no cost or obligation to you. Jim Baker, Esq. Johnson Fistel, LLP Telephone: 619-814-4471 Email: jimb@johnsonfistel.com [GN] STONEMOR PARTNERS: Continues to Defend Anderson Suit in E.D. Pa. ---------------------------------------------------------------- StoneMor Partners L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 4, 2019, for the quarterly period ended March 31, 2018, that the company continues to defend itself in a case entitled, Anderson v. StoneMor Partners, LP, et al., No. 2:16-cv-06111 pending in the United States District Court for the Eastern District of Pennsylvania, and filed on November 21, 2016. The plaintiffs in this case (as well as Klein v. StoneMor Partners, LP, et al., No. 2:16-cv-06275, filed in the United States District Court for the Eastern District of Pennsylvania on December 2, 2016, which has been consolidated with this case) brought an action on behalf of a putative class of the holders of Partnership units and allege that the Partnership made misrepresentations to investors in violation of Section 10(b) of the Securities Exchange Act of 1934 by, among other things and in general, failing to clearly disclose the use of proceeds from debt and equity offerings by making allegedly false or misleading statements concerning (a) the Partnership's strength or health in connection with a particular quarter's distribution announcement, (b) the connection between operations and distributions and (c) the Partnership's use of cash from equity offerings and its credit facility. Plaintiffs sought damages from the Partnership and certain of its officers and directors on behalf of the class of Partnership unitholders, as well as costs and attorneys' fees. Lead plaintiffs have been appointed in this case and filed a Consolidated Amended Class Action Complaint on April 24, 2017. Defendants filed a motion to dismiss that Consolidated Amended Complaint on June 8, 2017. The motion was granted on October 31, 2017, and the court entered judgment dismissing the case on November 30, 2017. Plaintiffs filed a notice of appeal on December 29, 2017. Oral argument was held before the United States Court of Appeals for the Third Circuit on November 1, 2018. The Partnership expects the court to render a decision within 90-120 days of the argument, but there can be no assurance as to when the court will issue its ruling. StoneMor Partners L.P., together with its subsidiaries, owns and operates cemeteries and funeral homes in the United States. It operates through two segments, Cemetery Operations and Funeral Home Operations. The company was founded in 1999 and is headquartered in Trevose, Pennsylvania. TELACU MANAGEMENT: Sanders Seeks Payment of Overtime Wage --------------------------------------------------------- COTRINA SANDERS, individually and on behalf of others similarly situated, the Plaintiff, vs. TELACU MANAGEMENT, a California corporation, the Defendant, Case No. 2:19-cv-00766 (C.D. Cal., Jan. 31, 2019), seeks to recover unpaid overtime compensation under the Fair Labor Standards Act and the Virgin Islands Fair Labor Standards Act. According to the complaint, TELACU failed to pay overtime as required by FLSA and VIFLSA. Instead, TELACU paid Cotrina Sanders, and other workers like her, at the same hourly rate for all hours worked, including those in excess of 40 in a workweek and 8 hours a day. This practice violates the overtime requirements of the FLSA, and the VIFLSA, the lawsuit says. TELACU is a provider of construction management services to capital improvement projects throughout the United States and its territories.[BN] Attorneys for Plaintiff: Matthew S. Parmet, Esq. PARMET PC 409 S. Fair Oaks Ave. P.O. Box 540907 (77254) Pasadena, CA 91105 Telephone: 713 999 5228 Facsimile: 713 999 1187 E-mail: matt@parmet.law - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713 877-8788 Facsimile: 713 877-8065 E-mail: rburch@brucknerburch.com TEXAS: Court Dismisses J.R. Gray's Suit for Lack of Jurisdiction ---------------------------------------------------------------- Judge Gray H. Miller of the U.S. District Court for the Southern District of Texas, Houston Division, dismissed the case, JOHN ROBERT GRAY, Petitioner, v. LORIE DAVIS, Respondent, Civil Action No. H-18-4815 (S.D. Tex.). The Petitioner, a state inmate proceeding pro se, filed the section 2254 habeas petition challenging the execution of his 1988 conviction and 27-year sentence for indecency with a child. After reviewing the pleadings under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court concludes that the case must be dismissed for lack of jurisdiction as an unauthorized successive petition. The Petitioner claims in the proceeding that (1) he has been unlawfully and jointly confined under state and federal custody since Aug. 9, 2014; (2) the United States and State of Texas unlawfully interfered with his right to over "90 years" of good time credit for purposes of mandatory supervised release; (3) the federal and state courts improperly reviewed his earlier state habeas cases; and (4) he is entitled to "class action" relief for unlawful joint detentions by the State, the U.S. Attorney General's Office, the Department of Justice, and federal district courts. As habeas relief, the Petitioner seeks immediate release from state prison with orders for correction of certain records. Judge Miller finds that the Plaintiff raised, or could have raised, these or similar claims in his unsuccessful 2016 section 2254 habeas petition and appeal. The primary distinction between the 2016 and the instant petition is that the Petitioner adds claims against the United States for "joint federal and state custody" based on an unidentified federal funding statute he "discovered" in 2017. His pending claims against the State must be dismissed as the claims presented in a second or successive habeas corpus application under Section 2254 that were presented in a prior application. To the extent petitioner is raising new claims challenging the execution of his 1988 conviction and sentence, the claims are successive. The Petitioner does not state, and public records for the Fifth Circuit Court of Appeals do not show, that he has obtained authorization from the Fifth Circuit to file a successive habeas challenge to his 1988 conviction or execution of his sentence. Consequently, the Judge holds that the Court is without jurisdiction to consider his claims. To any extent the Petitioner's claim of "joint custody" could be construed as a section 2241 habeas claim, the Judge finds that the Petitioner's allegations and public state prison records show that he is in custody of the Texas Department of Criminal Justice pursuant to a state conviction. Neither the Petitioner nor available public records show that he currently is in federal custody, and no grounds for section 2241 jurisdiction are shown. Based on the foregoing, Judge Miller dismissed the lawsuit for lack of jurisdiction as an unauthorized successive habeas petition. He denied as moot any and all pending motions. He denied a certificate of appealability. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/K4Q0dq from Leagle.com. John Gray, Petitioner, pro se. Lorie Davis-Director TDCJ-CID, Respondent, represented by Edward Larry Marshall, Office of the Attorney General. THREE STARON: Ortiz Seeks Payment of Minimum Wage ------------------------------------------------- MARIO CESAR VARGAS ORTIZ, individually and on behalf of others similarly situated, the Plaintiff, vs. THREE STARON FIRST INC. (D/B/A 3 STAR DINER), IOANNIS (A.K.A. JOHN) KIRIAKAKIS, GEORGIA I. KIRIAKAKIS and JIMMY KIRIAKAKIS, the Defendants, Case No. 1:19-cv-00928 (S.D.N.Y., Jan. 30, 2019), seeks to recover unpaid minimum wages, liquidated damages, interest, attorneys' fees and costs 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 a diner, located at 1462 1st Avenue, New York, NY 10021 under the name "3 Star Diner". Vargas is a former delivery worker of the Defendants. However, he was required to spend a considerable part of his work day performing non-tipped duties, including but not limited to dishwashing, stocking deliveries, preparing food, cleaning, sweeping and mopping and taking out the trash ("non-tipped duties"). The Plaintiff worked for Defendants without appropriate minimum wage compensation for the hours that he worked. Rather, the Defendants failed to maintain accurate record-keeping of the hours worked and failed to pay Plaintiff appropriately for any hours worked at the straight rate of pay. The Defendants employed and accounted for Vargas as a delivery worker in their payroll, but in actuality his duties required a significant amount of time spent performing the alleged non-tipped duties.[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 TOOTSIE ROLL: Beasley Suit Alleges Breach of Implied Warranty ------------------------------------------------------------- Maxine Beasley, on behalf of herself and all others similarly situated v. Tootsie Roll Industries, Inc., Case No. 4:18-cv-07724 (N.D. Calif., December 26, 2018), is brought against the Defendant for violations of the Unfair Competition Law and for breach of implied warranty. The Plaintiff alleges that Tootsie Industries unlawfully made the Tootsie products with partially hydrogenated oil, an unsafe, unapproved food additive. Unless otherwise stated, references to the Tootsie products only include the Tootsie products during the period they contained PHO, ending around 2016. The Tootsie Products were sold in stores throughout California. The Plaintiff Maxine Beasley is a citizen of California who repeatedly purchased the Tootsie Products for personal and household consumption. The Defendant Tootsie Industries is a Virginia corporation headquartered in Chicago, Illinois. Tootsie Products are sold in stores throughout California. Tootsie Industries owns, manufactures, distributes, and sells the Tootsie Products. [BN] The Plaintiff is represented by: Gregory S. Weston, Esq. Andrew C. Hamilton, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Tel: (619) 798-2006 Fax: (619) 343-2789 E-mail: greg@westonfirm.com andrew@westonfirm.com TOTAL CARD: Stephens Sues over Debt Collection Practices -------------------------------------------------------- PAUL STEPHENS, individually and on behalf of all others similarly situated, the Plaintiffs, vs. TOTAL CARD, INC., CAVALRY PORTFOLIO SERVICES a.k.a. CAVALRY SPV I, LLC, the Defendants, Case No. 3:19-cv-00225-BEN-BLM (S.D. Fla., Jan. 31, 2019), seeks to recover damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of Defendants with regard to their unlawful attempts to collect a debt allegedly owed by Plaintiff, in violation of the Fair Debt Collection Practices Act and Rosenthal Fair Debt Collection Practices Act. According to the complaint, over four years ago, the Plaintiff allegedly incurred financial obligations to Capital One Bank. These alleged obligations were for money, property or their equivalent, which is due or owing, or alleged to be due or owing, from a natural person to another person and are therefore a "debt" as that term is defined by California Civil Code section 1788.2(d), and a "consumer debt" as that term is defined by California Civil Code section 1788.2(f) and section 1692a(5). Sometime thereafter, but before March 2018, Capital One Bank sold the debt to Cavalry, which in turn retained Total Card for collection. Total Card was an employee and/or agent of Cavalry acting within the course and scope of its employment and/or agency. Total Card's conduct was on behalf of and with the authorization of Cavalry in a coordinated effort to collect a debt from Plaintiff. Consequently, Total Card's illegal actions were the responsibility of Cavalry both directly and vicariously under Respondeat Superior, as well as other vicarious liability theories. Therefore, Cavalry is liable for Total Card's unlawful conduct discussed herein. On or about, March 5, 2018, Total Card sent an initial form collection letter demanding payment of the debt, and stated that satisfying this obligation would be "the right thing" to do. In addition, the letter made various offers to resolve the account, claiming that the offers would result in savings. The Defendants' letter however, failed to state that Total Card could not also sue on 13 the debt; indeed, Defendants could not sue to collect the debt because it was time-barred by the statute of limitations, both federally and in the State of California. Nonetheless, Total Card's letter stated Cavalry "will not sue" rather than it "cannot" sue. Therefore, the letter implies that Cavalry still has the option to take those actions, and that it was simply choosing not to do so. In addition, the letter failed to warn that making any payment on the debt would restart the statute of limitations. Defendants' failure to disclose that neither Defendant could sue is material. The lack of proper disclosure leaves consumers without adequate information to decide how to treat the debt collection letter at issue. Such misleading statements therefore cause consumers to believe payment of a debt is an obligation that needs to be resolved, and/or that payment would result in the alleged savings. In fact, payment on the debt, as in this case, is detrimental to consumers as it reinstates the expiration of the statute of limitations on a debt, the lawsuit says.[BN] Attorneys for Plaintiff: Josh B. Swigart, Esq. Yana A. Hart, Esq. HYDE & SWIGART, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com yana@westcoastlitigation.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7429 Facsimile: (866) 431-3292 E-mail: danielshay@tcpafdcpa.com TRAININGWHEEL CORP: Freeman et al. Suit Moved to M.D. Florida ------------------------------------------------------------- A case, KATRINA FREEMAN and AIREANNE CLARK, individually and on behalf of all persons similarly situated, the Plaintiffs, vs. TRAININGWHEEL CORPORATION, LLC A/K/A TRAININGWHEEL, INC., the Defendant, Case No. 1:18-cv-01932, was removed from the U.S. District Court for the District of Delaware from the U.S. District Court for the Middle District of Florida (Ft. Myers) on Jan. 30, 2019. The Middle District of Florida Court Clerk assigned Case No. 2:19-cv-00052-SPC-UAM to the proceeding. The case is assigned to the Hon. Judge Sheri Polster Chappell. The Plaintiffs seek all available relief under the Fair Labor Standards Act of 1938, alleging that they and other similarly situated consultants were improperly classified as independent contractors, and, as a result, did not receive overtime pay for hours worked in excess of 40 in a workweek.[BN] Attorneys for Plaintiffs: Daniel R. Miller, Esq. K & L GATES, LLP 210 Sixth Ave Pittsburgh, PA 15222-2613 - and - Olena Savytska, Esq. LICHTEN & LISS-RIORDAN, P.C. 729 Boylston Street, Suite 2000 Boston, MA 02116 Telephone: (617) 994-5800 E-mail: osavytska@llrlaw.com info@llrlaw.com - and - Sarah R. Schalman-Bergen, Esq. BERGER & MONTAGUE, PC 1818 Market St No. 3600 Philadelphia, PA 19103 Telephone: 215 875-3000 E-mail: sschalman-bergen@bm.net - and - Shanon J. Carson, Esq. Alexandra Piazza, Esq. BERGER & MONTAGUE, PC 1818 Market St Ste 3600 Philadelphia, PA 19103-6305 Telephone: (215) 875-4656 Facsimile: (215) 875-5704 E-mail: scarson@bm.net apiazza@bm.net Attorneys for Defendant: Daniel Charles Herr, Esq. LAW OFFICE OF DANIEL C. HERR LLC 1225 North King Street, Suite 1000 Wilmington, DE 19801 Telephone: (302) 483-7060 Facsimile: (302) 483-7065 E-mail: DHerr@dherrlaw.com - and - Jason Gunter, Esq. GUNTER FIRM 1514 Broadway Ste 101 Fort Myers, FL 33901-3006 Telephone: 239 334-7017 E-mail: jason@gunterfirm.com UBER TECHN: Canadian Drivers' Class Action Can Proceed ------------------------------------------------------ Graham Rapier, writing for Business Insider, reports that the court rulings against Uber are stacking up. As the company races towards an initial public offering this year, a number of outstanding lawsuits by drivers unhappy with their status as independent contractors could weigh on the IPO. A judge in Ontario's highest court said in a ruling that Uber has used its (technically) optional arbitration clause, one that forbids drivers from bringing court actions against the company, to "take advantage of its drivers, who are clearly vulnerable to the market strength of Uber." The ruling allows the suit, lead by driver David Heller, to proceed in its attempts to certify the group of drivers as a cohesive group and attain the class status of a class action lawsuit. Under Uber Canada's terms and conditions, drivers who want to pursue arbitration for any disputes against the company have to do so overseas, in the Netherlands, and pay $14,500 up front to begin the proceedings. Those requirements are "unconscionable" and "invalid" the court said. Michael Wright, the lawyer for the plaintiffs in the case, said he's never seen anything like Uber's arbitration requirements in his career. "This doesn't make it difficult for people to pursue arbitration," he said in an interview. "It makes it impossible." Uber is reviewing the court's decision, it said. "We are proud to offer a flexible earning opportunity to tens of thousands of drivers throughout Ontario," spokesperson Josh McConnell said in an email. Canada has been a tricky market for Uber, but is also the hearth of one some of its newest- and fastest-growing businesses. In Montreal, where it faced stiff backlash from taxi drivers and operated illegally for some time, its offices were raided by investigators in 2015 after years of tension. But in the largest city of Toronto, it's quickly staffing up an office to handle things like grocery delivery and more Uber Eats expansion. Arbitration has been a headache for Uber outside of Canada, too. While its policies for arbitration differ in the US, most notably in that the company must pay an arbiters fee to begin proceedings, drivers there are also prohibited from taking legal action against the company through the courts. In December, a group of more than 12,000 drivers filed a lawsuit against the company, saying it has refused to begin their arbitration processes. Even if it were to begin paying the fees on their disputes, working through all of the claims could take up to a decade. And in Britain, a court in December sided with U.K. drivers in a decision that could give them a type of employment status, and thus be entitled to some benefits like paid vacations or a minimum wage. "I think the message here is for companies," Lior Samfiru, another of the plaintiff's lawyers, told Canada's Financial Post. "If you're going to operate in Ontario, if you're going to operate in Canada, you have to abide by our laws . . . You have to play by the same rules as everyone else." [GN] UNITED STATES: Burleson Tea Party Receives IRS Settlement Checks ---------------------------------------------------------------- Matt Smith, writing for Cleburne Times-Review, reports that Justice both was and was not served, former Texas Patriots Tea Party president Barry Schlech said. Either way, the Burleson situated tea party just received IRS settlement checks totalling $24,330. That said, Schlech and other members contend, it's more about the principle of the matter than the monetary award. The case, which stretched from spring of 2013 until recently, proved both historic and taxing, Mr. Schlech said. "We're just a local grassroots organization that made history in that not many have sued the IRS successfully though I know there have been quite a few individuals and groups who wish they could," Mr. Schlech said. "It was also a vulnerable and risky situation for us but we decided to go bold because we believed we were on the right side of the law and they were wrong. TPTP board member Jami Shelton credited Mr. Schlech's tenacity through the bureaucratic thicket of the process. "A lot of the other tea parties in the suit dropped out along the way but Barry stuck to it like a bulldog throughout," Shelton said. Current TPTP President Brendan Bagnell agreed. "Barry was the lynch pin in my opinion through this whole process for TPTP and the other organizations involved in the suit," Mr. Bagnell said. "He was instrumental in many ways. In fact, I believe the lawyers used much of his testimony and research for the basis of the case." It wasn't always easy. "There were several times when we were very discouraged, but we kept at it," Mr. Schlech said. "A couple of TPTP board members resigned because they didn't like the publicity. But most of us [through several boards] stuck to it." The original lawsuit included 10 named, including TPTP, and several hundred unnamed plaintiffs all of which are tea party and/or conservative leaning organizations. By the time the class action settlement finalized only TPTP and four other named plaintiffs remained in addition to several hundred unnamed plaintiffs still involved. Join together Formed in 2010 and created as a Texas non-profit corporation in September that same year, TPTP includes members from Johnson, Tarrant and Hood counties. The organization filed taxes in 2010 and 2011 but applied for 501(c)(4) tax exemption status in 2012 "Usually IRS approvals are fairly rapid, maybe six weeks or so," Mr. Schlech said. Not so for TPTP. "After two rounds of questions from the IRS that delayed our approval for over a year, we decided to pursue one of the several lawsuits that were being formed in 2013," Mr. Schlech said. "I was the vice president of communications for TPTP and interviewed several law firms about their lawsuits and finally chose to join the NorCal Tea Party vs. IRS lawsuit." The TPTP board appointed Mr. Schlech as chief correspondent on the issue, a duty he maintained from 2013 to now. His chief duties involved handling communications between the board and attorneys representing TPTP and the other groups involved in the case. "I was deposed by IRS lawyers twice over that period for two days," Mr. Schlech said. "It was my testimony that helped solidify our case as a class action lawsuit. My testimony confirmed that it was the IRS that created this special class of targeted conservative groups. I prepared hundreds of documents defending TPTP's activities, speakers, motivations and political involvement." TPTP is neither a Republican nor a partisan organization, Shelton said. "We stand for fiscal and personal responsibility, which is something that affects everyone whether they're Republican, Democrat, Libertarian or independent," Mr. Shelton said. "A lot of Democrats, for example, are fiscally responsible but maybe socially liberal. We have some of all in our group, I believe. We don't check a person's party preference at the door. "But we're about the Constitution and the Bill of Rights, which, again, affects everyone. We host a lot of great speakers and get into informational and historical issues, award a scholarship do other things to help spread information and benefit our community." At issue The suit maintained that the IRS unfairly targeted conservative groups and "weaponized the agency" against such groups based on ideology and political preference, Mr. Schlech said. Such violates the First Amendment rights for freedom of speech and association and the Fourth Amendment protections against unlawful and/or unreasonable searches, according to the suit. Although the various tea parties and other groups involved stretched across the country and formed for various reasons, they had one commonality, according to the suit, that being dissent of the policies and ideologies of the then current Executive Branch of the U.S. Government, according to the case. "Because [the groups'] primary purposes are charitable or to promote the common good and general welfare of the citizens of their respective communities, the dissenting groups sought recognition of exemption form taxation by the IRS under Section 501(c)(3) or 501(c)(4) or the IRS Code," according to the suit. "However, the IRS and/or its agents targeted the dissenting groups for intensive and intrusive scrutiny, probing pervasively into their members' associations, speech, activities and beliefs." TPTP and other groups endured years of delay and expense while awaiting recognition of their tax exemption requests, according to the suit. TPTP couldn't have done it alone, Mr. Schlech said. "We were lucky that another benevolent conservative group, the Citizens for Self-Governance, was funding the lawsuit," Mr. Schlech said. "We would never have had the cash to do this. The CSG didn't have any involvement with the attorneys or us, or our decisions during the lawsuit." Members of several of the organizations involved gave depositions to IRS attorneys and attorneys made many presentations to judges but the case settled before going to court. The named and unnamed plaintiffs involved each received checks for $14,330, Mr. Schlech said. The five named plaintiffs, including TPTP, each received an additional $10,000 check for their leadership efforts during the suit, he said. Although he remains involved with the organization, Mr. Schlech stepped down from his leadership role in November and therefore said he's unsure how TPTP plans to use the money. "It will be up to the current board and [Bagnell] to decide what they will do with the $24,000," Mr. Schlech said. "I'm confident they will do something significant and continue to be a credit to our community." Shelton added that even though the matter never reached trial the IRS were obviously wrong because they agreed to pay. Shelton added that it's more about the principle of a governmental agency attempting to squelch free thought. Mr. Schlech said he worked as hard as he ever has during the case, in addition to working his actual job, but called the efforts of himself and others worth it. "I think [TPTP benefitted from the publicity and will continue to do so," Mr. Schlech said. "It offered us courage that we could make a difference in the face of tyranny of our federal government. For the country it was worth it. A federal agency should not be weaponized against a certain class of citizens. Conservatives were dealt a serious blow during the Obama Administration and this lawsuit proved how devious and political the IRS was during this time." As to whether justice was served. "Yes, the IRS was punished with a $3.5 million settlement, though that ultimately came from the taxpayers," Mr. Schlech said. "But no in that the Obama Administration never admitted their guilt nor apologized for what they did. And not one of the defendants, such as Lois Lerner, was ever brought to trial or punished. But, as I've said before, we never did this for the money. It was always the principle." Mr. Schlech noted that officials for the IRS under Trump apologized for the situation even though they had nothing to do with it. Mr. Bagnell said TPTP also received their 501(c)(4) designation in September and that it was retroactively applied, a development Mr. Schlech characterized as unprecedented. "Approval took five years," Mr. Schlech said. "But the IRS approved our application back to our founding date of Sept. 1, 2010. This retroactive approval is rarely, if ever, done by the IRS." [GN] UNITED STATES: Court Dismisses Gifford Suit With Prejudice ---------------------------------------------------------- In the case, ALEXANDER GIFFORD, Plaintiff, v. UNITED STATES OF AMERICA, et al. Defendants, Case No. 18-13344-BC (E.D. Mich.), Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, (i) overruled the Plaintiff's objections; (ii) adopted Magistrate Judge Patricia T. Morris' report and recommendation; (iii) denied the request for a new judge; and (iv) dismissed with prejudice the complaint. On Oct. 25, 2018, the Plaintiff filed the present pro se complaint purporting to represent the "people of Puerto Rico" in a class action lawsuit against the United States of America, Represented by Pres. Donald J. Trump, and the Federal Bureau of Investigation. The complaint was completed on a preprinted form. In the space provided for listing the laws at issue, the Plaintiff writes, "U.S. Constitution, Amendment 14, Section 1." The Plaintiff states he is a citizen of Michigan. He states that he knows that the U.S. government had prior knowledge of Hurricane Maria, that they used the information in a negligent manner, resulting in injury or/and loss of life. The event occurred between 9/16/17 and 10/2/17. He believes the Federal Tort Claims Act supercedes sovereign immunity. As relief, the Plaintiff wants the Court to make Puerto Rico 51st state of United States and also asks for estructuring/abolishment of all debt. On Oct. 30, 2018, pre-trial matters were referred to Magistrate Judge Morris. On Nov. 2, 2018, the Plaintiff filed a request for a new judge, stating as follows: 1) He would like to have the case heard by a Judge. He believes the magnitude of the material warrants it. 2) He would like to request a new Judge. The request will be denied as it fails to set forth any basis for the requested relief. On Nov. 6, 2018, Judge Morris issued a report, recommending that the Court dismisses the Plaintiff's complaint for frivolity and failure to state a claim. She found several defects in the complaint, including: 1) the Plaintiff alleges no injury to himself; 2) he does not explain how the 14th amendment is implicated; 3) the Plaintiff does not elaborate on his conclusory allegations that the Defendant had "prior knowledge" or used it in a "negligent manner." On Nov. 15, 2018, the Plaintiff filed objections: (i) first objection elaborates on statement of Claim to clarify the case, and (ii) second objection is on President Trump's role, and as an additional Defendant. Judge Ludington finds that the Plaintiff's filing does not constitute an objection because it does not attempt to set forth any defect in Judge Morris's reasoning. To the extent his filing can be construed as a motion to amend insofar as he seeks to offer an "elaboration on statement of claim," the motion is denied. His "elaboration" of the claim still fails to set forth basic information such as 1) what allegedly wrongful conduct the Defendants engaged in; 2) how that conduct violated the 14th amendment; and 3) what injury he suffered as a result of that conduct. Accordingly, he (i) overruled the Plaintiff's objections; (ii) adopted Magistrate Judge Morris' report and recommendation; (iii) denied the request for a new judge; and (iv) dismissed with prejudice the complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C. Section 1915(e)(2)(B). A full-text copy of the Court's Jan. 25, 2019 Order is available at https://is.gd/DLtO2n from Leagle.com. Alexander R. Gifford, Representing the People of Puerto Rico, Plaintiff, pro se. VOX MEDIA: Spruill Suit Transferred to District of Columbia ----------------------------------------------------------- Judge Phyllis J. Hamilton of the District Court for the Northern District of California, Oakland Division, (i) transferred the case, TAMRYN SPRUILL, individually and on behalf of all those similarly situated, Plaintiffs, v. VOX MEDIA, INC., a Delaware corporation (d.b.a. SB NATION); and DOES 1 to 10 inclusive, Defendants, Case No. 18-cv-06807-PJH (N.D. Cal.), to the U.S. District Court for the District of Columbia; and (ii) gave the Plaintiff 30 days from issuance of notice that the case has been received by the District Court for the District of Columbia to file an amended complaint. The Plaintiff filed a complaint in the action in the Superior Court of the State of California in Alameda County on Sept. 21, 2018 in Spruill v. Vox Media, Inc., No. 18921742. The Defendant filed a notice of removal to the U.S District Court, Northern District of California on Nov. 9, 2018. Shortly thereafter, on Nov. 16, 2018, the Defendant filed a Motion to Dismiss, Stay, or Transfer Proceedings, seeking the dismissal or stay of the matter or, in the alternative, transfer for coordination with the case of Bradley v. Vox Media, Inc., No. 1:17-cv-01791 (D.D.C.), which has been pending for more than a year, on the ground that because the parties and issues in this case are substantially similar to those in Bradley, application of the first-to-file rule would avoid the risk of inconsistent decisions and would conserve judicial and litigant resources. The Plaintiff filed a motion to remand the proceedings to Alameda Superior Court on Dec. 5, 2018. In accordance with the schedule ordered by the Court, the Defendant filed an opposition to the motion to remand on Jan. 4, 2019. The Plaintiff now agrees that federal jurisdiction under the Class Action Fairness Act of 2005 is proper and will file a notice of withdrawal of the motion to remand within 48 hours of entry of the stipulation. The parties now agree that transfer of the matter to the U.S. District Court for the District of Columbia for coordination with the Bradley case is in the interests of the parties and the Court given the substantial overlap between the cases. The Plaintiff has indicated that she intends to amend her complaint to, among other things, add a claim under the California Private Attorney General Act. Therefore, they agreed that (i) within 48 hours of entry of the stipulation, the Plaintiff will file a notice withdrawing her motion to remand in compliance with Local Civil Rule 7-7; (ii) the case will be transferred to the U.S. District Court for the District of Columbia, where the Parties agree that coordination with Bradley v. Vox Media, Inc., No. 1:17-cv-01791 (D.D.C.) is appropriate; and (iii) the Plaintiff will have 30 days from issuance of notice that the case has been received by the District Court for the District of Columbia to file an amended complaint. based on the foregoing, Judge Hamilton ordered that (i) the Plaintiff withdraws her motion to remand in compliance with Local Civil Rule 7-7; (ii) the case is transferred to the U.S. District Court for the District of Columbia (D.D.C.) so that D.D.C. may coordinate the action with Bradley v. Vox Media, Inc., No. 1:17-cv-01791 (D.D.C.), if it deems appropriate to do so; and (iii) the Plaintiff will have 30 days from issuance of notice that the case has been received by the D.D.C. to file an amended complaint. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/KSfK31 from Leagle.com. TAMRYN SPRUILL, Plaintiff, represented by Barry L. Goldstein -- bgoldstein@gbdhlegal.com -- GOLDSTEIN, DEMCHAK, BALLLER, BORGEN & DARDGRIAN. VOX MEDIA, INC., doing business as SB NATION, Defendant, represented by Katherine V.A. Smith -- ksmith@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP. WAL-MART STORES: Court Dismisses M. Prado's Suit with Prejudice --------------------------------------------------------------- Judge Andre Birotte, Jr. of the U.S. District Court for the Central District of California dismissed with prejudice the case, MARK PRADO, individually, and on behalf of other members of the general public similarly situated, Plaintiff, v. WAL-MART STORES, INC., a Delaware Corporation; and DOES 1 through 10, Defendants, Case No. 2:17-cv-05630-AB-KKx (C.D. Cal.). Pursuant to Rule 41 of the Federal Rules of Civil Procedure, Prado and the Defendant requested and stipulated to dismissal of the action, with prejudice, as to all parties and claims. Each party will bear his/her/its own attorneys' fees and costs. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/TXZzw2 from Leagle.com. Mark Prado, individually, and on behalf of other members of the general public similarly situated, Plaintiff, represented by Shawn C. Westrick -- swestrick@westricklawfirm.com -- Westrick Law Firm. Wal-Mart Stores, Inc, a Delaware Corporation, Defendant, represented by Ian A. Wright -- ian.wright@alston.com -- Alston and Bird LLP, James Robert Evans, Jr. -- james.evans@alston.com -- Alston and Bird LLP & Jesse M. Jauregui -- jesse.jauregui@alston.com -- Alston and Bird LLP. WASHINGTON: Court Grants Summary Judgment Bid in Schumacher Suit ---------------------------------------------------------------- In the case, LINDA SCHUMACHER, et al., Plaintiffs, v. JAY INSLEE, et al., Defendants, Case No. C18-5535 MJP (W.D. Wash.), Judge Marsha J. Pechman of the U.S. District Court for the Western District of Washington, Seattle, granted the State Defendants' Motion to Dismiss or for Summary Judgment. The Plaintiffs are in-home care providers ("IPs"), paid by the State through Washington Medicaid. Defendant Service Employees International Union Healthcare 775 NW ("SEIU") is the exclusive bargaining representative (by state law) for the IPs. State law also permitted the "bargaining parties" (State of Washington and SEIU) to include a "union security provision" in the collective bargaining agreement ("CBA") which required IPs to contribute union dues or their equivalent whether or not they chose to be members of the union. Prior to 2014, the union dues deduction was mandatory as a condition of employment. Since 2017, the bargaining parties have been operating under a Memorandum of Understanding ("MOU") which removed the compulsory payment of dues/fees, substituted an "opt-out" system requiring each IP to affirmatively decline to financially support the union, and directed SEIU to inform the State to cease deductions for any opt-out IP. The 2017-2019 CBA incorporated the opt-out feature into the deduction system. On June 27, 2018, the Supreme Court declared the opt-out system for deducting nonmandatory union dues/fees unconstitutional. On the first payday following the effective date of the decision (July 16, 2018), the dues/fees were only deducted from the paychecks of IPs who had affirmatively opted in to the system. The bargaining parties entered into a new MOU which permitted dues/fees deductions only when authorized in writing; i.e., an "opt-in" system. The class action was originally filed on July 3, 2018. An amended complaint was filed on July 17, 2018. The Plaintiffs allege that the state statute and the CBAs violate their First Amendment rights by compelling speech and mandatory association (through the involuntary dues/fees), by failing to allow the Plaintiffs an informed choice regarding the payment of the union dues and union membership, and by failing to provide "necessary procedural safeguards. An additional claim of unjust enrichment is lodged against SEIU for the 3.2% wage deduction pursuant to the CBAs. The Plaintiffs seek declaratory and injunctive relief, as well as compensatory and punitive damages. Pending before the Court are (i) the State Defendants' Motion to Dismiss or for Summary Judgment; (ii) the Plaintiffs' Response to State Defendants' Motion to Dismiss or for Summary Judgment; and (iii) the State Defendants' Reply in Support of Motion to Dismiss or for Summary Judgment. The motion is brought by two of the three named Defendants in the action -- Washington State Governor Jay Inslee and Secretary of the Department of Social and Health Services Cheryl Strange ("the State Defendants") and is brought as a motion to dismiss under FRCP 12(b)(6) or, alternatively, for summary judgment under FRCP 56. The State Defendants make two arguments in support of their request for dismissal: (i) no Article III standing, and (ii) immunity of the State Defendants to retrospective relief and money damages. Judge Pechman finds that the Plaintiffs have failed to establish "injury in fact" from the practices of which they complain and on that basis have failed to satisfy the fundamental requirements of standing to sue. There are no disputed issues of material fact as regards the issue; the State Defendants being entitled to dismissal as a matter of law, the Judge will grant their motion for summary judgment and dismisses the claims against them with prejudice. Additionally, the Judge finds that the Plaintiffs have failed to state a claim upon which relief can be granted as regards any requests for monetary or retrospective declaratory relief concerning the State Defendants, and those damages requests will be dismissed on FRCP 12(b)(6) grounds. Based on the foregoing, Judge Pechman granted the State Defendants' motion for summary judgment regarding the Section 1983 claims. He dismissed with prejudice the Plaintiffs' claims against them. The claims for monetary or retrospective declaratory relief against the State Defendants are dismissed for failure to state a claim upon which relief can be granted. The clerk is ordered to provide copies of the Order to all the counsel. A full-text copy of the Court's Jan. 25, 2019 Order is available at https://is.gd/5qt4gL from Leagle.com. Linda Schumacher, Robb Israel, Surena Israel & Miranda Thorpe, Washington Individual Providers, Plaintiffs, represented by Caleb Jon Fan Vandenbos -- cvandenbos@freedomfoundation.com -- FREEDOM FOUNDATION, Hannah S. Sells -- hsells@freedomfoundation.com -- FREEDOM FOUNDATION & James Gideon Abernathy -- jabernathy@freedomfoundation.com -- FREEDOM FOUNDATION. Service Employees International Union Healthcare 775NW, a labor organization, Defendant, represented by Michael C. Subit -- msubit@frankfreed.com -- FRANK FREED SUBIT & THOMAS & Scott A. Kronland -- skronland@altshulerberzon.com -- ALTSHULER BERZON LLP, pro hac vice. WEDRIVEU INC: Terry Suit Alleges Labor Code Violations ------------------------------------------------------ Anthony Terry, on behalf of himself and others similarly situated v. WeDriveU, Inc., and Does 1-10 inclusive, Case No. RG18933576 (Cal. Super. Ct., Alameda Cty., December 5, 2018), is brought against the Defendant for failure to provide meal periods, failure to authorize and permit rest periods, failure to provide adequate wage statements and unfair business practices in violation of the California Labor Code. The Plaintiff alleges that prior to August 1, 2018, WeDriveU required Plaintiff and Class Members to work continuously without providing proper off-duty meal breaks. The Plaintiff Anthony Terry has worked as a driver for WeDriveU from March 24, 2016, to present, in California. He lives in Alameda County and regularly drives for WeDriveU in Alameda County. The Defendant WeDriveU, a California corporation, describes itself as the leader in transportation solutions, specializing in corporate and university shuttles and managed services including data collection services, automotive event services, and executive driver services. [BN] The Plaintiff is represented by: Hunter Pyle, Esq. Chad Saunders, Esq. HUNTER PYLE LAW 428 Thirteenth Street, Eleventh Floor Oakland, CA 94612 Tel: (510) 444-4400 Fax: (510) 444-4410 E-mails: hunter@hunterpylelaw.com csaunders@hunterpyelaw.com WELLS FARGO: Court Grants Bid to Dismiss Rawls' FDCPA/FCCPA Suit ---------------------------------------------------------------- In the case, ROSE MARY RAWLS, JOHN RAWLS, and CARMELA FOURNIER, Plaintiffs, v. WELLS FARGO BANK, N.A., Defendant, Case No. 8:18-cv-2571-T-33TGW (M.D. Fla.), Judge Virginia M. Hernandez Covington of the U.S. District Court for the Middle District of Florida, Tampa Division, granted the Defendant's Motion to Dismiss Class Action Complaint and Strike Class Allegations. The Rawlses took out a mortgage with Wachovia in 2005 to purchase a property in St. Petersburg, Florida. Additionally, in 2008, the Rawlses obtained a home-equity line of credit from Wachovia, which was secured by the same property. Wells Fargo later merged with Wachovia and acquired the Rawlses' loans. The Rawlses struggled to make the loan payments, so with Wells Fargo's approval, the property was sold through a short sale in 2012. Both the mortgage and the home-equity loan were satisfied using the proceeds from the short sale. Indeed, Wells Fargo filed a "Satisfaction/Release of Mortgage" in the Pinellas County Clerk's Office declaring the loans satisfied. In an unrelated transaction, Fournier took out a mortgage with Wells Fargo in 2005 to purchase a different property in St. Petersburg, Florida. Additionally, Fournier took out another mortgage with Wells Fargo in 2012. Fournier also struggled to make her loan payments, so with Wells Fargo's approval, the property was sold through a short sale in 2016. Both mortgages were satisfied using the proceeds from the short sale. ( In October of 2017, both the Rawlses and Fournier received letters from Wells Fargo, which referenced the loan numbers associated with their previously satisfied loans. According to the Rawlses and Fournier, by sending these letters, Wells Fargo illegally collected or attempted to collect on the loans by systematically misrepresenting the status of the loans, obligations under the loans, and initiated debt collection procedures to pressure the Plaintiffs and the other Class members to pay on the unenforceable loans. Therefore, on Oct. 19, 2018, the Rawlses and Fournier initiated the proposed class action seeking declaratory relief and damages under both the Fair Debt Collection Practices Act ("FDCPA") and Florida Consumer Collection Practices Act ("FCCPA"). The Complaint asserts diversity jurisdiction under the Class Action Fairness Act. On Dec. 17, 2018, Wells Fargo filed the instant Motion to Dismiss Class Action Complaint and Strike Class Allegations, which was accompanied by a Request for Judicial Notice. The Rawlses and Fournier filed their response to the Motion on Jan. 15, 2019. As a preliminary matter, Wells Fargo requests the Court take judicial notice of certain documents. The Rawlses and Fournier failed to respond to the request within the time parameters of Local Rule 3.01(b). Therefore, the Court considers the request unopposed. First, Wells Fargo offers for judicial notice the Rawlses and Fournier's mortgage agreements. Second, Wells Fargo offers for judicial notice various documents regarding Wells Fargo and Wachovia's merger. Judge Covington takes judicial notice of (i) the Rawlses and Fournier's mortgage agreements, and (ii) of all these documents regarding Wells Fargo and Wachovia's merger. Count I of the Complaint alleges the letters sent by Wells Fargo violated Sections 1692e and 1962f of the FDCPA. The Judge finds that the Complaint fails to provide any allegations that Wells Fargo is a debt collector. The Complaint does not allege the principal purpose of Wells Fargo's business is collecting debts. As such, Wells Fargo is excluded from the definition of a debt collector under Section 1692a(6)(F). Having dismissed the only federal claim, the Judge next considers whether it has jurisdiction over the remaining state law claims. The Complaint asserts diversity jurisdiction under the Class Action Fairness Act. He finds that the Rawlses and Fournier's Complaint was filed on Oct. 19, 2018, and therefore, the motion for class certification was due by Jan. 17, 2019. The Rawlses and Fournier, however, failed to file either a motion for class certification or any motion for extension of time. Thus, there are no remaining grounds for the Court's exercise of original jurisdiction, and the Judge declines to exercise supplemental jurisdiction over the state law claims. Accordingly, Covington granted the DefendantA.'s Motion to Dismiss Class Action Complaint and Strike Class Allegation. He dismissed with prejudice Count I of the Complaint, and dismissed without prejudice Counts II and III of the Complaint. The Clerk is directed to close the case. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/ZiYaJL from Leagle.com. Rose Mary Rawls, on behalf of herself and all others similarly situated and the general public, John M. Rawls, on behalf of himself and all others similarly situated and the general public & Carmela Fournier, on behalf of herself and all others similarly situated and the general public, Plaintiffs, represented by Christopher W.E. Boss -- cpservice@bosslegal.com -- Boss Law PLLC & William Craft Hughes -- craft@hughesellzey.com -- Hughes Ellzey, LLP, pro hac vice. Wells Fargo Bank, N.A., Defendant, represented by Jacqueline Simms-Petredis -- jsimms-petredis@burr.com -- Burr & Forman, LLP & Reid Stephens Manley -- rmanley@burr.com -- Burr & Forman, LLP. Peter J. Grilli, Mediator, pro se. WESTERN DIGITAL: Securities Suit in California Ongoing ------------------------------------------------------ Western Digital Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 5, 2019, for the quarterly period ended December 28, 2018, that the company continues to defend itself against a securities lawsuit in California. Beginning in March 2015, SanDisk and two of its officers, Sanjay Mehrotra and Judy Bruner, were named in three putative class action lawsuits filed with the U.S. District Court for the Northern District of California. Two complaints are brought on behalf of a purported class of purchasers of SanDisk's securities between October 2014 and March 2015, and one is brought on behalf of a purported class of purchasers of SanDisk's securities between April 2014 and April 2015. The complaints generally allege violations of federal securities laws arising out of alleged misstatements or omissions by the defendants during the alleged class periods. The complaints seek, among other things, damages and fees and costs. In July 2015, the District Court consolidated the cases and appointed Union Asset Management Holding AG and KBC Asset Management NV as lead plaintiffs. The lead plaintiffs filed an amended complaint in August 2015. In January 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In February 2016, the District Court issued an order appointing as new lead plaintiffs Bristol Pension Fund; City of Milford, Connecticut Pension & Retirement Board; Pavers and Road Builders Pension, Annuity and Welfare Funds; the Newport News Employees' Retirement Fund; and Massachusetts Laborers' Pension Fund (collectively, the "Institutional Investor Group"). In March 2016, the Institutional Investor Group filed an amended complaint. In June 2016, the District Court granted the defendants' motion to dismiss and dismissed the amended complaint with leave to amend. In July 2016, the Institutional Investor Group filed a further amended complaint. In June 2017, the District Court denied the defendants' motion to dismiss. In September 2018, the District Court granted the Institutional Investor Group's motion to certify a class of all persons and entities who purchased or otherwise acquired SanDisk's publicly traded common stock between October 2014 and April 2015, excluding those who purchased or otherwise acquired SanDisk's publicly traded common stock during the class period but who sold their stock prior to the first corrective disclosure in March 2015. The Institutional Investor Group alleges artificial inflation in the price of SanDisk's publicly traded common stock of $9.04 per share from October 16, 2014 through March 25, 2015, $2.26 per share on March 26, 2015, and $1.35 per share from March 27, 2015 through April 15, 2015. Western Digital said, "The Company believes the allegations to be without merit and intends to defend itself vigorously in this matter." Western Digital Corporation develops, manufactures, and sells data storage devices and solutions worldwide. Western Digital Corporation was founded in 1970 and is headquartered in San Jose, California. WESTSIDE LAKESHORE: Paz Sues Over Unpaid Minimum, Overtime Wages ---------------------------------------------------------------- Walter Jeovany Vasquez Paz, an individual, and all others similarly situated, Plaintiff, v. Westside Lakeshore, LLC, Gal Aloni, Defendants, Case No. 1:19-cv-20454 (S.D. Fla., February 4, 2019) is an action arising under the Fair Labor Standards Act. The Defendants have employed several other similarly situated employees like Plaintiff who have not been paid overtime and/or minimum wages for work performed in excess of 40 hours weekly from the filing of this complaint back three years, says the complaint. Plaintiff was a resident of Miami-Dade County. Westside Lakeshore, LLC, is a corporation that regularly transacts business within the Southern District of Florida. Gal Aloni is a corporate officer and/or owner and/or manager of the Defendant Corporation.[BN] The Plaintiff is represented by: J.H. Zidell, Esq. J.H. Zidell, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865 – 7167 WOOD GROUP: Class of Drivers in Nino Suit Conditionally Certified ----------------------------------------------------------------- In the case, JOSE LUIS NINO, Individually and on behalf of all others similarly situated Plaintiff, v. WOOD GROUP PSN, INC., Defendant, Civil Action No. 2:2018-cv-00241 (S.D. Tex.), Judge Nelva Gonzales Ramos of the U.S. District Court for the Southern District of Texas, Corpus Christi Division, granted the parties' Agreed Stipulation Regarding Conditional Certification and Notice to the Putative Class Members. She conditionally certified a Putative Class of all transportation drivers employed by Wood Group PSN, Inc., anywhere in the United States, at any time within the past three years through the present. The Defendant will provide the names, personal email addresses, dates of employment, and last known addresses for the Putative Class Members no later than 14 days following the Court's granting of the Order for Conditional Certification. This information will be provided in a usable electronic format, such as Excel. In the event any mail is returned as undeliverable to a Putative Class Member, the Defendant will provide the last four digits of the social security number and telephone number for that individual. The Judge approved the form and content of the Plaintiff's Proposed Notice and Consent Form. The Plaintiff's counsel will have seven days from the date of receipt of the information from the Defendant to distribute the Notice and Consent forms to the Putative Class Members. The Judge also authorized the Plaintiff's counsel to send (i) the Putative Class Members a Notice and Consent form by regular First Class Mail and Email; and (ii) an identical reminder Notice and Consent form by regular First Class Mail and Email 30 days after the initial mailing. The Putative Class Members will have 60 days from the initial mailing of the Notice and Consent form to file the Consent form with the Court to opt-in to the above captioned lawsuit. The Plaintiff's counsel must maintain the names and physical addresses as confidential records and will not share the information with any third-party. At the conclusion of the opt-in period, the Plaintiff's counsel must destroy/delete all copies of the information pertaining to any Putative Class Member who did not timely file a Consent form. A full-text copy of the Court's Jan. 23, 2019 Order is available at https://is.gd/BDLh71 from Leagle.com. Jose Luis Nino, Individually and on behalf of all others similarly situated, Plaintiff, represented by William Clifton Alexander -- clif@a2xlaw.com -- Anderson Alexander,PLLC, Alan Cliffton Gordon -- cgordon@a2xlaw.com -- Anderson Alexander PLLC, Austin W. Anderson -- austin@a2xlaw.com -- Anderson Alexander PLLC, Carter Tilden Hastings , Anderson2X PLLC, Lauren Elizabeth Braddy -- lauren@a2xlaw.com -- Anderson Alexander PLLC & Vernon George Schimmel, III -- geordie@a2xlaw.com -- A2X Law. Wood Group, PSN, Inc., Defendant, represented by Bryan Edward Bowdler -- beb@kullmanlaw.com -- The Kullman Firm, P.L.C., Samuel Zurik, III -- sz@kullmanlaw.com -- Kullman Firm, Kelly D. Reese -- kr@kullmanlaw.com -- The Kullman Firm PLC & S. Mark Klyza -- smk@kullmanlaw.com -- The Kullman Firm, pro hac vice. WYNN LAS VEGAS: Ninth Circuit Appeal Filed in Cesarz FLSA Suit -------------------------------------------------------------- Plaintiffs Joseph Cesarz and Quy Ngoc Tang filed an appeal from a court ruling in their lawsuit titled Joseph Cesarz, et al. v. Wynn Las Vegas, LLC, et al., Case No. 2:13-cv-00109-RCJ-CWH, in the U.S. District Court for the District of Nevada, Las Vegas. The lawsuit is brought over alleged violations of the Fair Labor Standards Act. The appellate case is captioned as Joseph Cesarz, et al. v. Wynn Las Vegas, LLC, et al., Case No. 19-15166, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by February 27, 2019; -- Transcript is due on March 29, 2019; -- Appellants Joseph Cesarz and Quy Ngoc Tang's opening brief is due on May 8, 2019; -- Appellees Steve Wynn and Wynn Las Vegas, LLC's answering brief is due on June 10, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants JOSEPH CESARZ and QUY NGOC TANG, individually and on behalf of all others similarly situated, and all persons whose names are set forth in Exhibit A to the First Amended Complaint, are represented by: Joshua D. Buck, Esq. Mark Russell Thierman, Esq. THIERMAN BUCK, LLP 7287 Lakeside Drive Reno, NV 89511 Telephone: (775) 284-1500 E-mail: josh@thiermanbuck.com mark@thiermanbuck.com - and - James P. Kemp, Esq. KEMP & KEMP - ATTORNEYS AT LAW 7435 W. Azure Drive Las Vegas, NV 89130 Telephone: (702) 258-1183 E-mail: jp@kemp-attorneys.com Defendants-Appellees WYNN LAS VEGAS, LLC, and STEVE WYNN are represented by: Bryan J. Cohen, Esq. WYNN LAS VEGAS, LLC 3131 Las Vegas Blvd. South Las Vegas, NV 89109 Telephone: (702) 770-2116 E-mail: bryan.cohen@wynnlasvegas.com - and - Richard Todd Creer, Esq. Gregory J. Kamer, Esq. KAMER ZUCKER ABBOTT 3000 W. Charleston Blvd. Las Vegas, NV 89102-1990 Telephone: (702) 259-8640 E-mail: tcreer@kzalaw.com gkamer@kzalaw.com - and - Joshua S. Lipshutz, Esq. GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105 Telephone: (415) 393-8200 E-mail: jlipshutz@gibsondunn.com - and - Eugene Scalia, Esq. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 Telephone: (202) 955-8206 E-mail: escalia@gibsondunn.com ZOOMPASS HOLDINGS: Patel Securities Suit Dismissed With Prejudice ----------------------------------------------------------------- In the case, NAYMISH PATEL, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. ZOOMPASS HOLDINGS, INC., et al., Defendants, Civil Action No. 17-3831 (JLL) (D. N.J.), Judge Lose L. Linares of the U.S. District Court for the District of New Jersey granted the Defendants' motion to dismiss the Second Amended Complaint. Defendant Zoompass is a financial services technology company that has built a platform that helps its customers digitize their financial transactions. Its common stock trades on the "Venture Market" or the "OTCQB," which is one of three financial markets organized by OTC Markets Group, Inc. Defendant Robert Lee is the director and CEO of Zoompass and the owner of roughly 38.1% of the company's common stock as of April 18, 2017. Defendant Brian Morales is Zoompass' CFO and has served in that role since August of 2016. The Plaintiff is a purchaser of Zoompass securities during the Class Period -- between April 24, 2017 and May 24, 2017 who purchased those securities "at artificially inflated prices." The Plaintiff brings the putative federal securities class action on behalf of all persons or entities who purchased or otherwise acquired Zoompass common stock during the Class Period. On March 27, 2017, Zoompass stock began actively trading on the OCTOB. Shortly thereafter, on April 10, 2017, Currin Technology released a "special high-tech issue" of its technology stock newsletter titled "Wall Street Investor." The Plaintiff alleges that this newsletter was a paid-for advertisement for Zoompass as opposed to an unbiased analysis of certain technology stocks. The newsletter set forth a glowing recommendation of Zoompass stock. Following the dissemination of the newsletter and the accompanying website, Zoompass shares rose from $1.80 per share to $3.64 per share from April 10, 2017 through May 9, 2017. On April 24, 2017, the date on which the Class Period began, Zoompass filed its 2016 annual financial disclosure statement, which stated that Zoompass did not have any promoters at any time during the past five fiscal years. The 2016 10-K also informed investors that Zoompass' CEO and CFO had looked at the effectiveness of the company's internal disclosure controls and procedures, and that the price of Zoompass common stock may be negatively impacted by factors that are unrelated to its operations. Mr. Lee and Mr. Morales signed the 2016 10-K. The next day, nearly 2 million Zoompass shares traded on the OTCQB, the largest volume in Zoompass' trading history. Zoompass stock continued to rise steadily through May 8, 2017. On that day, OTC Markets became aware of the newsletter promoting Zoompass stock and so informed the company. OTC Markets then labeled Zoompass shares as "caveat emptor," notifying traders that there is a public interest concern associated with Zoompass, which may include a spam campaign, questionable stock promotion, known investigation of fraudulent activity committed by the company or insiders, regulatory suspensions, or disruptive corporate actions. Zoompass then issued two statements. The company issued the first statement on May 9, 2017 after the close of the market, stating that the Company is unaware of the full nature and content of the promotional newsletter and any related promotional activity, the responsible parties and the extent of the email newsletters' dissemination. Zoompass continued, stating that after inquiry, the Company states definitively that its officers, directors and, to the Company's knowledge, its controlling shareholders (i.e., shareholders owning 1000 or more of the Company's securities), of which there are only two, have not directly or indirectly, authorized or been involved in any way (including payment to a third-party) with the creation or distribution of promotional materials including the subject newsletter. Additionally, the shares currently held by the Company's officers, directors and controlling shareholders are not registered. Following these announcements, Zoompass' share price fell 45% over three trading days. Then, on May 11, 2017, Zoompass publicly acknowledged that OTC Markets moved Zoompass stock from the OTCQB to OTC Pink Current Information, and that OTC Markets had placed the caveat emptor label on the company's stock as a result of the promotional newsletter and website. The following day, nearly 2.6 million shares of Zoompass stock traded on the OTC Pink Current Information market, which was the second heaviest daily trading volume in the company's history. On May 15, 2017, Zoompass filed its quarterly financial disclosure statement ("10-Q") for the first quarter of 2017. In its 10-Q, Zoompass conceded that its disclosure controls and procedures were "ineffective." After Zoompass made its two press releases and filed its 10-Q, its shares briefly rebounded until May 25th, 2017, when an article published on the website Seeking Alpha fully and finally exposed and outlined the Defendants' involvement in the scheme to make hidden payments to stock promoters to pump up the price of Zoompass stock. After the release of the Seeking Alpha article, Zoompass' share price fell over 23% by close of business on May 25, 2017. The following day, Zoompass acknowledged that it was aware of the Seeking Alpha article and filed an amended 10-K to correct the identity of its CEO, a mistake the Seeking Alpha article exposed. Zoompass did not issue any other statements rebutting or denying the information in the Seeking Alpha article. Over the course of the next week, Zoompass shares plummeted to less than $1 per share. The Plaintiff sets forth six statements made by Zoompass or the individual Defendants that he believes are material false or misleading statements. On Aug. 8, 2018, the Court granted the Defendants' motion to dismiss the Amended Complaint. In its Opinion, the Court granted the Plaintiff leave to amend, despite the PSLRA's narrowed application of the amendment standard in securities fraud cases, and the Court's intuition that amendment may well be futile, as the Plaintiff had failed to satisfy the pleading requirements of the PSLRA, and had failed to propose an amendment to the FAC that would satisfy this requirement. On Aug. 21, 2018, Plaintiff filed the SAC. Attached to the SAC is a redlined copy of the SAC against the FAC. The redline shows that the SAC is essentially unchanged from the FAC, with the exception of a new section titled "Additional Allegations Connecting Defendants to the Promotional Campaign." This new section alleges a series of facts that compare the promotional activity surrounding Zoompass to the promotional activity surrounding Pura Naturals, a company that Defendant Lee was allegedly also a director of. The allegations in the SAC remain the same. The putative class action asserts securities violations under the Securities and Exchange Act of 1934. Specifically, in Count I of the Second Amended Complaint, the Plaintiff asserts a violation of Section 10(b) of the Act, and Rule 10b-5 promulgated thereunder. In Count II, he asserts derivative claims against Defendants Lee and Morales for violation of Section 20(a) of the Act. The Defendants now move again for a dismissal of this action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Judge Linares opines that as the Defendants point out, reaching the Plaintiff's conclusions based on these allegations requires a fair amount of speculation. The Plaintiff alleges no facts that Sargon Finance -- the alleged financier of the promotional campaign was a consultant of Zoompass. The Plaintiff alleges no facts showing that Sargon Finance received either stock options, deferred share units, or warrants. Lastly, the Plaintiff alleges no facts showing that Sargon Finance exercised its rights to any of these options, deferred shares, or warrants and then used those options, shares, or warrants to pay for the promotional campaign. These new facts, even interpreted in the light most favorable to the Plaintiff, fail to sufficiently establish what the Court found previously lacking: the Defendants' involvement with or financing of the promotional campaign. For the reasons stated, Judge Linares dismissed with prejudice the Plaintiff's Second Amended Complaint. An appropriate Order accompanies the Opinion. A full-text copy of the Court's Jan. 23, 2019 Opinion is available at https://is.gd/xaWq3u from Leagle.com. Carlos Guillermo Julian Vega, Movant, represented by CORREY ANN KAMIN -- Kamin@whafh.com -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP & KEVIN COOPER -- kcooper@whafh.com -- WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP. Robert S. Davis, Movant, represented by DONALD A. ECKLUND -- DEcklund@carellabyrne.com -- CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. Larry Madewell & Lanah Madewell, Movants, represented by SHERIEF MORSY -- smorsy@faruqilaw.com -- FARUQI & FARUQI LLP. HENRY C REUSCH, CHERYL D PUCCIO & MIHAITA VIRJOGHE, Movants, represented by BRUCE DANIEL GREENBERG -- bgreenberg@litedepalma.com -- LITE DEPALMA GREENBERG, LLC. NAYMISH PATEL, Plaintiff, represented by BRUCE DANIEL GREENBERG, LITE DEPALMA GREENBERG, LLC. ZOOMPASS HOLDINGS, INC., ROBERT LEE & BRIAN MORALES, Defendants, represented by PETER C. HARVEY -- pcharvey@pbwt.com -- PATTERSON, BELKNAP, WEBB & TYLER, LLP. Asbestos Litigation ASBESTOS UPDATE: 2 PI Suits v. Rexnord's Prager Unit Still Pending ------------------------------------------------------------------ Rexnord Corporation's Prager subsidiary remains a defendant in two pending personal injuries lawsuits relating to alleged presence of asbestos in a product it manufactured, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 31, 2018. Rexnord states, "The Company's Prager subsidiary is a defendant in two pending multi-defendant lawsuits relating to alleged personal injuries due to the alleged presence of asbestos in a product allegedly manufactured by Prager. Additionally, there are numerous individuals who have filed asbestos related claims against Prager; however, these claims are currently on the Texas Multi-district Litigation inactive docket. The ultimate outcome of these asbestos matters cannot presently be determined. To date, the Company's insurance providers have paid 100% of the costs related to the Prager asbestos matters. The Company believes that the combination of its insurance coverage and the Invensys indemnity obligations will cover any future costs of these matters." "In connection with its sale, Invensys plc provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company with respect to the matters relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations relating to the matters are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of US$900 million." A full-text copy of the Form 10-Q is available at https://bit.ly/2UZkfyy ASBESTOS UPDATE: ArvinMeritor Had 1,100 Pending Claims at Dec. 30 ----------------------------------------------------------------- Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., still defends approximately 1,100 pending active asbestos claims in lawsuits at December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 30, 2018. The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of Meritor, along with many other companies, has also been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell products many years ago. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. There were approximately 1,100 and 1,400 pending active asbestos claims in lawsuits that name AM, together with many other companies, as defendants at December 31, 2018 and September 30, 2018. "A significant portion of the claims do not identify any Rockwell products or specify which of the claimants, if any, were exposed to asbestos attributable to Rockwell products, and past experience has shown that the vast majority of the claimants will likely never identify any of Rockwell products. Historically, AM has been dismissed from the vast majority of similar claims filed in the past with no payment to claimants. For those claimants who do show that they worked with Rockwell products, management nevertheless believes it has meritorious defenses, in substantial part due to the integrity of the products involved and the lack of any impairing medical condition on the part of many claimants." A full-text copy of the Form 10-Q is available at https://bit.ly/2USGS7U ASBESTOS UPDATE: ArvinMeritor Had US$101MM Reserves at Dec. 30 -------------------------------------------------------------- Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., had reserves of US$101 million for asbestos-related liabilities at December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 30, 2018. The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of Meritor, along with many other companies, has also been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos used in certain components of Rockwell products many years ago. Liability for these claims was transferred at the time of the spin-off of the automotive business from Rockwell in 1997. There were approximately 1,100 and 1,400 pending active asbestos claims in lawsuits that name AM, together with many other companies, as defendants at December 31, 2018 and September 30, 2018. "The company engaged a third-party advisor with extensive experience in assessing asbestos-related liabilities to conduct a study to estimate its potential undiscounted liability for pending and future asbestos-related claims as of September 30, 2018. Management continuously monitors the underlying claims data and experience, for the purpose of assessing the appropriateness of the assumptions used to estimate the liability. "As of September 30, 2018, the estimated probable range of equally likely possibilities of the company's obligation for asbestos-related claims over the next 41 years is US$103 million to US$186 million. Based on the information contained in the actuarial study, and all other available information considered, management concluded that no amount within the range of potential liability was more likely than any other and, therefore, recorded a liability at the low end of the range. The company recognized a liability for pending and future claims over the next 41 years of US$101 million as of December 31, 2018 and US$103 million as of September 30, 2018. "AM has insurance coverage that management believes covers indemnity and defense costs, over and above self-insurance retentions, for a significant portion of these claims. The insurance receivables for Rockwell asbestos-related liabilities totaled US$68 million as of December 31, 2018 and September 30, 2018. "The amounts recorded for the asbestos-related reserves and recoveries from insurance companies are based upon assumptions and estimates derived from currently known facts. All such estimates of liabilities and recoveries for asbestos-related claims are subject to considerable uncertainty because such liabilities and recoveries are influenced by variables that are difficult to predict. The future litigation environment for Rockwell could change significantly from its past experience, due, for example, to changes in the mix of claims filed against Rockwell in terms of plaintiffs' law firm, jurisdiction and disease; legislative or regulatory developments; the company's approach to defending claims; or payments to plaintiffs from other defendants. Estimated recoveries are influenced by coverage issues among insurers and the continuing solvency of various insurance companies. If the assumptions with respect to the estimation period, the nature of pending claims, the cost to resolve claims and the amount of available insurance prove to be incorrect, the actual amount of liability for Rockwell asbestos-related claims, and the effect on the company, could differ materially from current estimates and, therefore, could have a material impact on the company's financial condition and results of operations." A full-text copy of the Form 10-Q is available at https://bit.ly/2USGS7U ASBESTOS UPDATE: Ashland Global Records $594MM Liability at Dec.31 ------------------------------------------------------------------ Ashland Global Holdings Inc. has noncurrent asbestos litigation reserve of US$594 million at December 31, 2018, compared to US$612 million at September 30, 2018, according to a press release on February 5, 2019. The Company also disclosed asbestos insurance receivable of US$178 million at December 31, 2018, compared to US$179 at September 30, 2018. A full-text copy of the Company's Earnings News Release dated February 5, 2019 is available at https://bit.ly/2SP9ce6 ASBESTOS UPDATE: Columbus McKinnon Has $5.8MM Liability at Dec. 31 ------------------------------------------------------------------ Columbus McKinnon Corporation has US$5,877,000 asbestos-related aggregate liability that is probable and estimable as of December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. The Company states, "Like many industrial manufacturers, the Company is involved in asbestos-related litigation. In continually evaluating costs relating to its estimated asbestos-related liability, the Company reviews, among other things, the incidence of past and recent claims, the historical case dismissal rate, the mix of the claimed illnesses and occupations of the plaintiffs, its recent and historical resolution of the cases, the number of cases pending against it, the status and results of broad-based settlement discussions, and the number of years such activity might continue. Based on this review, the Company has estimated its share of liability to defend and resolve probable asbestos-related personal injury claims. This estimate is highly uncertain due to the limitations of the available data and the difficulty of forecasting with any certainty the numerous variables that can affect the range of the liability. The Company will continue to study the variables in light of additional information in order to identify trends that may become evident and to assess their impact on the range of liability that is probable and estimable. "Based on actuarial information, the Company has estimated its asbestos-related aggregate liability including related legal costs to range between US$4,100,000 and US$8,000,000 using actuarial parameters of continued claims for a period of 37 years from December 31, 2018. The Company's estimation of its asbestos-related aggregate liability that is probable and estimable, in accordance with U.S. generally accepted accounting principles approximates US$5,877,000, which has been reflected as a liability in the consolidated financial statements as of December 31, 2018. The recorded liability does not consider the impact of any potential favorable federal legislation. This liability will fluctuate based on the uncertainty in the number of future claims that will be filed and the cost to resolve those claims, which may be influenced by a number of factors, including the outcome of the ongoing broad-based settlement negotiations, defensive strategies, and the cost to resolve claims outside the broad-based settlement program. Of this amount, management expects to incur asbestos liability payments of approximately US$2,000,000 over the next 12 months. Because payment of the liability is likely to extend over many years, management believes that the potential additional costs for claims will not have a material effect on the financial condition of the Company or its liquidity, although the effect of any future liabilities recorded could be material to earnings in a future period. "The Company believes that a share of its previously incurred asbestos-related expenses and future asbestos-related expenses are covered by pre-existing insurance policies. The Company has engaged in a legal action against the insurance carriers for those policies to recover these expenses and future costs incurred. When the Company resolves this legal action, it is expected that a gain will be recorded for previously expensed cost that is recovered. During fiscal 2019 and fiscal 2018, the Company received settlement payments of US$430,000 and US$2,362,000, respectively, net of legal fees, from its insurance carriers as partial reimbursement for asbestos-related expenses. These partial payments have been recorded as gains in cost of products sold. The Company is continuing its actions to recover further past costs and to cover future costs." A full-text copy of the Form 10-Q is available at https://bit.ly/2IfmTix ASBESTOS UPDATE: DowDuPont Inc. Has $1.1-Bil. Liability at Dec. 31 ------------------------------------------------------------------ DowDuPont Inc. has recorded noncurrent asbestos-related liabilities of US$1.142 billion at December 31, 2018, compared to the US$1.237 billion at December 31, 2017, according to a press release on January 31, 2019. A full-text copy of the Company's press release announcing results for the fourth quarter of 2018 is available at https://bit.ly/2TQEUVo ASBESTOS UPDATE: Johnson Controls Has $546MM Liability at Dec. 31 ----------------------------------------------------------------- Johnson Controls International plc estimated its asbestos-related liability for pending and future claims and related defense costs to be US$546 million as of December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. Johnson Controls states, "The Company and certain of its subsidiaries, along with numerous other third parties, are named as defendants in personal injury lawsuits based on alleged exposure to asbestos containing materials. These cases have typically involved product liability claims based primarily on allegations of manufacture, sale or distribution of industrial products that either contained asbestos or were used with asbestos containing components. "As of December 31, 2018, the Company's estimated asbestos related net liability recorded on a discounted basis within the Company's consolidated statements of financial position was US$194 million. The net liability within the consolidated statements of financial position was comprised of a liability for pending and future claims and related defense costs of US$546 million, of which US$55 million was recorded in other current liabilities and US$491 million was recorded in other noncurrent liabilities. "The Company also maintained separate cash, investments and receivables related to insurance recoveries within the consolidated statements of financial position of US$352 million, of which US$33 million was recorded in other current assets, and US$319 million was recorded in other noncurrent assets. Assets included US$20 million of cash and US$243 million of investments, which have all been designated as restricted. "In connection with the recognition of liabilities for asbestos-related matters, the Company records asbestos-related insurance recoveries that are probable; the amount of such recoveries recorded at December 31, 2018 was US$89 million. As of September 30, 2018, the Company's estimated asbestos related net liability recorded on a discounted basis within the Company's consolidated statements of financial position was US$173 million. The net liability within the consolidated statements of financial position was comprised of a liability for pending and future claims and related defense costs of US$550 million, of which US$55 million was recorded in other current liabilities and US$495 million was recorded in other noncurrent liabilities. "The Company also maintained separate cash, investments and receivables related to insurance recoveries within the consolidated statements of financial position of US$377 million, of which US$33 million was recorded in other current assets, and US$344 million was recorded in other noncurrent assets. Assets included US$6 million of cash and US$281 million of investments, which have all been designated as restricted. In connection with the recognition of liabilities for asbestos-related matters, the Company records asbestos-related insurance recoveries that are probable; the amount of such recoveries recorded at September 30, 2018 was US$90 million." A full-text copy of the Form 10-Q is available at https://bit.ly/2BChFaK ASBESTOS UPDATE: Judgment Favors Armstrong, et al., in Johansen --------------------------------------------------------------- U.S. District Judge Maryellen Noreika has issued an Order adopting Magistrate Judge Fallon's Jan. 23, 2019 Report and Recommendation and granting the unopposed motions for summary judgment of Defendants Armstrong International, Inc., Gardner Denver, Inc., Crosby Valve LLC, J.R. Clarkson Company LLC, as successor by merger to Kunkle Industries, Inc., FMC Corporation on behalf of its former Northern Pump, Chicago Pump and Peerless Pump businesses, Anchor/Darling Valve Company, Flowserve US Inc. solely as successor to Edward Vogt Valve Company, Vogt Valve Co., Nordstrom Valves, Inc., Edwards Valves, Inc. and Rockwell Manufacturing Company, Neles-Jamesbury, Inc., Warren Pumps, LLC, Air & Liquid Systems Corporation, as successor by merger to Buffalo Pumps, Inc., Jenkins Bros., Atwood & Morrill Company, Inc., The Nash Engineering Company, and Red White Valve Corp. in the case entitled William J. Johansen, Plaintiff, v. Air & Liquid Systems Corp., et al., Defendants. C.A. No. 17-452 (MN) (SRF), (D. Del.) A copy of the Order is available at http://tinyurl.com/y6py2zqj from Leagle.com. William J. Johansen, Plaintiff, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. Crane Co., Defendant, represented by Nicholas E. Skiles -- nskiles@swartzcampbell.com -- Swartz Campbell LLC & Allison L. Texter -- atexter@swartzcampbell.com -- Swartz Campbell LLC. Ford Motor Company, Defendant, represented by Christian J. Singewald -- singewaldc@whiteandwilliams.com -- White & Williams & Rochelle Libid Gumapac -- gumapacr@whiteandwilliams.com -- White & Williams. Goulds Pumps, Incorporated & ITT Corporation, Defendants, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. IMO Industries, Inc., Defendant, represented by Eileen M. Ford -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. The Fairbanks Company, Defendant, represented by Timothy A. Sullivan, III , Wilbraham, Lawler & Buba. Crane Co., Cross Defendant, represented by Nicholas E. Skiles -- nskiles@swartzcampbell.com -- Swartz Campbell LLC & Allison L. Texter -- atexter@swartzcampbell.com -- Swartz Campbell LLC. Goulds Pumps, Incorporated & ITT Corporation, Cross Defendants, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. William J. Johansen, Cross Defendant, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. The Fairbanks Company, Cross Defendant, represented by Timothy A. Sullivan, III , Wilbraham, Lawler & Buba. The Fairbanks Company, Cross Claimant, represented by Timothy A. Sullivan, III , Wilbraham, Lawler & Buba. Ford Motor Company, Cross Defendant, represented by Christian J. Singewald -- singewaldc@whiteandwilliams.com -- White & Williams & Rochelle Libid Gumapac -- gumapacr@whiteandwilliams.com -- White & Williams. IMO Industries, Inc., Cross Claimant, represented by Eileen M. Ford -- eford@moodklaw.com -- Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. Ford Motor Company, Cross Claimant, represented by Christian J. Singewald -- singewaldc@whiteandwilliams.com -- White & Williams & Rochelle Libid Gumapac -- gumapacr@whiteandwilliams.com -- White & Williams. ASBESTOS UPDATE: Judgment Favors Gardner Denver, et al., in Harding ------------------------------------------------------------------- Judge Maryellen Noreika of the U.S. District Court for the District of Delaware has issued an Order adopting Magistrate Judge Fallon's Jan. 22, 2019 Report and Recommendation and granting the unopposed motions for summary judgment of Defendants Gardner Denver, Inc., Crosby Valve LLC, DAP, Inc., Foster Wheeler LLC, Rheem Manufacturing Company, Burnham LLC, individually and as successor to Burnham Corporation, Superior Boiler Works, Inc., Spirax Sarco, Inc., Slant/Fin Corporation, Dominion Energy Nuclear Connecticut, Inc. f/k/a Dominion Nuclear Connecticut Inc., A.O. Smith Corporation, and Air & Liquid Systems Corporation, as successor by merger to Buffalo Pumps, Inc. in the case entitled Michael R. Harding and Sally Harding, his wife, Plaintiffs, v. A.O. Smith Corp., et al. Defendants, C.A. No. 17-251 (MN) (SRF), (D. Del.). A copy of the Order, is available at http://tinyurl.com/y36duwb2 from Leagle.com. Michael R. Harding & Sally Harding, his wife, Plaintiffs, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. Georgia-Pacific LLC, Defendant, represented by Irina N. Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross + Massenburg LLP & Whitney L. Frame , Manning Gross + Massenburg LLP. ITT Corporation, Defendant, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. Marley-Wylain Company, Individually and as successor in interest to The Weil-McLain Company, Inc., Defendant, represented by Matthew P. Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. Georgia-Pacific LLC, Cross Defendant, represented by Whitney L. Frame , Manning Gross + Massenburg LLP & Irina N. Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross + Massenburg LLP. ITT Corporation, Cross Defendant, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. Marley-Wylain Company, Individually and as successor in interest to The Weil-McLain Company, Inc., Cross Defendant, represented by Matthew P. Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. Michael R. Harding & Sally Harding, his wife, Cross Defendants, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. ASBESTOS UPDATE: Magnetek Has $944,000 Liability at Dec. 31 ----------------------------------------------------------- Columbus McKinnon Corporation's subsidiary, Magnetek, recorded approximately US$944,000 for asbestos-related liability as of December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. The Company states, "Magnetek has been named, along with multiple other defendants, in asbestos-related lawsuits associated with business operations previously acquired but which are no longer owned. During Magnetek's ownership, none of the businesses produced or sold asbestos-containing products. For such claims, Magnetek is uninsured and either contractually indemnified against liability, or contractually obligated to defend and indemnify the purchaser of these former business operations. The Company aggressively seeks dismissal from these proceedings. Based on actuarial information, the asbestos related liability including legal costs is estimated to be approximately US$944,000 which has been reflected as a liability in the consolidated financial statements at December 31, 2018." A full-text copy of the Form 10-Q is available at https://bit.ly/2IfmTix ASBESTOS UPDATE: Multiple PI Suits on Falk Products Still Pending ----------------------------------------------------------------- Multiple lawsuits related to personal injuries due to the alleged presence of asbestos in certain products previously manufactured by The Falk Corporation remains pending, according to Rexnord Corporation's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 31, 2018. Rexnord states, "Falk, through its successor entity, is a defendant in multiple lawsuits pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain clutches and drives previously manufactured by Falk. There are approximately 100 claimants in these suits. The ultimate outcome of these lawsuits cannot presently be determined. Hamilton Sundstrand is defending the Company in these lawsuits pursuant to its indemnity obligations and has paid 100% of the costs to date. "In connection with the Company's acquisition of The Falk Corporation ("Falk"), Hamilton Sundstrand provided the Company with indemnification against certain products-related asbestos exposure liabilities. The Company believes that, pursuant to such indemnity obligations, Hamilton Sundstrand is obligated to defend and indemnify the Company with respect to the asbestos claims, and that, with respect to these claims, such indemnity obligations are not subject to any time or dollar limitations." A full-text copy of the Form 10-Q is available at https://bit.ly/2UZkfyy ASBESTOS UPDATE: Owens-Illinois Reports $105MM Payments in 2018 --------------------------------------------------------------- Owens-Illinois, Inc. has made asbestos-related payments of US$105 million in 2018, according to the Company's press release on February 5, 2019. Owens-Illinois states, "The Company continues to manage its overall risk profile, including asbestos-related risk. Asbestos-related payments were US$105 million in 2018, which was US$5 million less than the prior year. For the year 2018, the Company's comprehensive legal review of its asbestos-related liabilities resulted in a US$125 million charge due, in part, to factors such as changes in the law and litigation dynamics in specific jurisdictions. As mentioned at Investor Day 2018, the Company is executing on a risk mitigation strategy. This is expected to drive average annual cash payments of US$150 million for 2019 and 2020. In 2021, the Company projects cash payments of US$60 to US$80 million and a year-end total estimated asbestos-related accrual of not more than US$250 million(2), consistent with overall targets conveyed at Investor Day 2018." A full-text copy of the Company's Press Release dated February 5, 2019 announcing results of operations for the year ended December 31, 2018, is available at https://bit.ly/2GsDvS6 ASBESTOS UPDATE: Rexnord Corp. Still Faces Stearns PI Lawsuits -------------------------------------------------------------- Rexnord Corporation still faces multiple lawsuits relating to personal injuries due to the alleged presence of asbestos in certain products by the Company's Stearns division, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 31, 2018. The Company states, "Multiple lawsuits (with approximately 300 claimants) are pending in state or federal court in numerous jurisdictions relating to alleged personal injuries due to the alleged presence of asbestos in certain brakes and clutches previously manufactured by the Company's Stearns division and/or its predecessor owners. Invensys and FMC, prior owners of the Stearns business, have paid 100% of the costs to date related to the Stearns lawsuits. "In connection with its sale, Invensys plc provided the Company with indemnification against certain contingent liabilities, including certain pre-closing environmental liabilities. The Company believes that, pursuant to such indemnity obligations, Invensys is obligated to defend and indemnify the Company with respect to the matters relating to the Ellsworth Industrial Park Site and to various asbestos claims. The indemnity obligations relating to the matters are subject, together with indemnity obligations relating to other matters, to an overall dollar cap equal to the purchase price, which is an amount in excess of US$900 million." A full-text copy of the Form 10-Q is available at https://bit.ly/2UZkfyy ASBESTOS UPDATE: Rexnord's Zurn Had 6,000 Pending Suits at Dec. 31 ------------------------------------------------------------------ There were approximately 6,000 asbestos-related lawsuits against Rexnord Corporation's Zurn subsidiary as of December 31, 2018, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal quarter ended December 31, 2018. The Company states, "As of December 31, 2018, Zurn and numerous other unrelated companies were defendants in approximately 6,000 asbestos related lawsuits representing approximately 14,000 claims. Plaintiffs' claims allege personal injuries caused by exposure to asbestos used primarily in industrial boilers formerly manufactured by a segment of Zurn. Zurn did not manufacture asbestos or asbestos components. Instead, Zurn purchased them from suppliers. These claims are being handled pursuant to a defense strategy funded by insurers. "As of December 31, 2018, the Company estimates the potential liability for the asbestos-related claims as well as the claims expected to be filed in the next ten years to be approximately US$38.0 million, of which Zurn expects its insurance carriers to pay approximately US$29.0 million in the next ten years on such claims, with the balance of the estimated liability being paid in subsequent years. The US$38.0 million was developed based on actuarial studies and represents the projected indemnity payout for current and future claims. There are inherent uncertainties involved in estimating the number of future asbestos claims, future settlement costs, and the effectiveness of defense strategies and settlement initiatives. As a result, actual liability could differ from the estimate described herein and could be substantial. The liability for the asbestos-related claims is recorded in Other liabilities within the condensed consolidated balance sheets. "Management estimates that its available insurance to cover this potential asbestos liability as of December 31, 2018, is in excess of the ten year estimated exposure, and accordingly, believes that all current claims are covered by insurance. "As of December 31, 2018, the Company had a recorded receivable from its insurance carriers of US$38.0 million, which corresponds to the amount of this potential asbestos liability that is covered by available insurance and is currently determined to be probable of recovery. However, there is no assurance the Company's current insurance coverage will ultimately be available or that this asbestos liability will not ultimately exceed the Company's coverage limits. Factors that could cause a decrease in the amount of available coverage or create gaps in coverage include: changes in law governing the policies, potential disputes and settlements with the carriers regarding the scope of coverage, and insolvencies of one or more of the Company's carriers. The receivable for probable asbestos-related recoveries is recorded in Other assets within the condensed consolidated balance sheets." A full-text copy of the Form 10-Q is available at https://bit.ly/2UZkfyy ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at Dec. 31 ----------------------------------------------------------------- Rockwell Automation, Inc. still faces personal injury lawsuits filed by relating to alleged exposure to asbestos in certain product components, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended December 31, 2018. The Company states, "We (including our subsidiaries) have been named as a defendant in lawsuits alleging personal injury as a result of exposure to asbestos that was used in certain components of our products many years ago. Currently there are a few thousand claimants in lawsuits that name us as defendants, together with hundreds of other companies. In some cases, the claims involve products from divested businesses, and we are indemnified for most of the costs. However, we have agreed to defend and indemnify asbestos claims associated with products manufactured or sold by our former Dodge mechanical and Reliance Electric motors and motor repair services businesses prior to their divestiture by us, which occurred on January 31, 2007. We are also responsible for half of the costs and liabilities associated with asbestos cases against our former Rockwell International Corporation's divested measurement and flow control business. But in all cases, for those claimants who do show that they worked with our products or products of divested businesses for which we are responsible, we nevertheless believe we have meritorious defenses, in substantial part due to the integrity of the products, the encapsulated nature of any asbestos-containing components, and the lack of any impairing medical condition on the part of many claimants. We defend those cases vigorously. Historically, we have been dismissed from the vast majority of these claims with no payment to claimants. "We have maintained insurance coverage that we believe covers indemnity and defense costs, over and above self-insured retentions, for claims arising from our former Allen-Bradley subsidiary. Following litigation against Nationwide Indemnity Company (Nationwide) and Kemper Insurance (Kemper), the insurance carriers that provided liability insurance coverage to Allen-Bradley, we entered into separate agreements on April 1, 2008 with both insurance carriers to further resolve responsibility for ongoing and future coverage of Allen-Bradley asbestos claims. In exchange for a lump sum payment, Kemper bought out its remaining liability and has been released from further insurance obligations to Allen-Bradley. Nationwide entered into a cost share agreement with us to pay the substantial majority of future defense and indemnity costs for Allen-Bradley asbestos claims. We believe that this arrangement with Nationwide will continue to provide coverage for Allen-Bradley asbestos claims throughout the remaining life of the asbestos liability. "We also have rights to historic insurance policies that provide indemnity and defense costs, over and above self-insured retentions, for claims arising out of certain asbestos liabilities relating to the divested measurement and flow control business. Following litigation against several insurers to pursue coverage for these claims, we entered into separate agreements with the insurers that resulted in both lump sum payments and coverage-in-place agreements. We believe these arrangements will provide substantial coverage for future defense and indemnity costs for these asbestos claims throughout the remaining life of asbestos liability. "The uncertainties of asbestos claim litigation make it difficult to predict accurately the ultimate outcome of asbestos claims. That uncertainty is increased by the possibility of adverse rulings or new legislation affecting asbestos claim litigation or the settlement process. Subject to these uncertainties and based on our experience defending asbestos claims, we do not believe these lawsuits will have a material effect on our business, financial condition or results of operations. "We have, from time to time, divested certain of our businesses. In connection with these divestitures, certain lawsuits, claims and proceedings may be instituted or asserted against us related to the period that we owned the businesses, either because we agreed to retain certain liabilities related to these periods or because such liabilities fall upon us by operation of law. In some instances the divested business has assumed the liabilities; however, it is possible that we might be responsible to satisfy those liabilities if the divested business is unable to do so. "In connection with the spin-offs of our former automotive business, semiconductor systems business and Rockwell Collins avionics and communications business, the spun-off companies have agreed to indemnify us for substantially all contingent liabilities related to the respective businesses, including environmental and intellectual property matters. "In conjunction with the sale of our Dodge mechanical and Reliance Electric motors and motor repair services businesses, we agreed to indemnify Baldor Electric Company for costs and damages related to certain legal, legacy environmental and asbestos matters of these businesses arising before January 31, 2007, for which the maximum exposure would be capped at the amount received for the sale." A full-text copy of the Form 10-Q is available at https://bit.ly/2SP7Qjw ASBESTOS UPDATE: Trial of Shulman Suit Stayed Pending Imerys Appeal ------------------------------------------------------------------- In the case styled In Re: New York County Asbestos Litigation. Jenny Shulman, et al., Plaintiffs-Respondents, v. Brenntag North America, Inc., et al., Defendants, Imerys Talc America, Inc., Defendant-Appellant, Motion No. M-179, Index No. 190025/17 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, First Department granted the motion and stayed the trial on condition that the appeal is perfected on or before March 18, 2019 for the June 2019 Term. Defendant-appellant has moved to stay of trial pending hearing and determination of the appeal taken from the order of the Supreme Court, New York County, entered on Dec. 4, 2018. A copy of the Order, is available at http://tinyurl.com/y3gyhdmp from Leagle.com. ASBESTOS UPDATE: Weil-McLain's Summary Judgment v. Harding Denied ----------------------------------------------------------------- In the case entitled Michael R. Harding and Sally Harding, his wife, Plaintiffs, v. A.O. Smith Corp., et al. Defendants, C.A. No. 17-251 (MN) (SRF), (D. Del.), the Hon. Maryellen Noreika of the U.S. District Court for the District of Delaware has issued an Order adopting Magistrate Judge Fallon's Jan. 22, 2019 Report and Recommendation, recommending that the Court grant Weil-McLain's Motion for Summary Judgment of no punitive damages and deny Weil-McLain's Motion for Summary Judgment with respect to all other claims. A copy of the Order, is available at http://tinyurl.com/y3pbd247 from Leagle.com. Michael R. Harding & Sally Harding, his wife, Plaintiffs, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. Georgia-Pacific LLC, Defendant, represented by Irina N. Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross + Massenburg LLP & Whitney L. Frame , Manning Gross + Massenburg LLP. ITT Corporation, Defendant, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. Marley-Wylain Company, Individually and as successor in interest to The Weil-McLain Company, Inc., Defendant, represented by Matthew P. Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. Georgia-Pacific LLC, Cross Defendant, represented by Whitney L. Frame , Manning Gross + Massenburg LLP & Irina N. Luzhatsky -- iluzhatsky@mgmlaw.com -- Manning Gross + Massenburg LLP. ITT Corporation, Cross Defendant, represented by Kelly A. Costello -- kelly.costello@morganlewis.com -- Morgan Lewis & Bockius LLP. Marley-Wylain Company, Individually and as successor in interest to The Weil-McLain Company, Inc., Cross Defendant, represented by Matthew P. Donelson -- mdonelson@eckertseamans.com -- Eckert Seamans Cherin & Mellott, LLC. Michael R. Harding & Sally Harding, his wife, Cross Defendants, represented by Bartholomew J. Dalton -- bdalton@bdaltonlaw.com -- Dalton & Associates P.A., Adam Balick -- abalick@balick.com -- Balick & Balick, LLC, Andrew Caulfield Dalton , Dalton & Associates P.A., Ipek Kurul Medford -- imedford@bdaltonlaw.com -- Dalton & Associates, P.A. & Michael Collins Smith , Balick & Balick, LLC. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. 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. 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